[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________

No. 2 1

- 11567

____________________

IBALDO ARENCIBIA
, Plaintiff

- Appell ant ,

versus

AGA SERVICE COMPANY d

. b

. a

. A llianz Global Assis tance, JEFFERSON INSURANCE COMPANY,

Defendant s

- Appell ees

.

____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1: 20

- cv

- 24694

- BB

____________________ USCA11 Case: 21-11567 Date Filed: 05/12/2022 Page: 1 of 132 Opinion of the Court 2 1

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Before W ILSON , R OSENBAUM , Circuit Judges, and C OVINGTON , ∗ District Judge.

C OVINGTON , District Judge: This appeal arises from Ibaldo Arencibia’s online purchase of a travel insurance policy

— one he believed to be a broad, “no

fault” policy. When the insurer declined to provide coverage for a canceled trip

, Arencibia filed the instant law suit. Arencibia appeals the district court’s dismissal of his claims for unjust enrichment and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and the lower court’s refusal to allow him to amend his complaint. Because the district court correc tly dismissed Arencibia’s claims without leave to amend, we affirm.

I According to the amended complaint, on August 17, 2019, Arencibia purchased a roundtrip airline ticket on American Airlines’ website from Miami, Florida, to Bogota, Colombia. When booki ng his ticket, Arencibia was offered the option of purchasing travel insurance from AGA Service Company, doing business as Allianz Global Assistance (“Allianz”). 1 Arencibia alleges that the

∗ Honorable Virginia M. Covington, United States District Judge for the Middle District of Florida, sitting by designation.

1 Defendant Jefferson Insurance Company is the insurance underwriter. USCA11 Case: 21-11567 Date Filed: 05/12/2022 Page: 2 of 132 1

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offer box that appeared on American Airlines’ website was substan tially similar to the following:

Arencibia decided to purchase the travel insurance in exchange for the payment of a $36.83 premium. Following his purchase, Allianz emailed Arencibia a copy of the 36

- page Individual Travel Insurance Policy (the “ Policy ”) , which provided that he could cancel the Policy for any reason within ten days of purchase and receive a full refund. Later, Arencibia was offered a stint of temporary employment in the United States on dates that overlapped with his planned trip to Bogota. Arencibia alleges that, “[t]hinking he was ‘insured,’” he telephoned Allianz and was told that “his work conflict was not covered by his [travel insurance] policy.” The Allianz representative directed Arencibia to cancel his flight and submit a claim under the Policy to “ see what could be done.” Arencibia did so, and on September 9, 2019, he received a letter from Allianz formally declining to provide coverage under the Policy. The September 9 letter stated in pertinent part that Al lianz was “unable to provide benefits under the coverage [Arencibia] USCA11 Case: 21-11567 Date Filed: 05/12/2022 Page: 3 of 134 Opinion of the Court 2 1

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purchased because . . . [the Policy] is a named perils travel insurance program, which means it covers only the specific situations, events and losses included in [the Policy], and only under the conditions we describe. Unfortunately, trip cancellation due to being required to work is not included among those
reasons.” Arencibia alleges that the denial letter was in “stark contrast” with the representations made by Allianz prior to his pu rchase of the Policy. According to Arencibia, the Allianz offer box led him to believe that he was purchasing “broad, no fault insurance protection and coverage” such that, if he accepted the insurance option, he would not be responsible for any cancellati on fees and would be reimbursed the price of his flight, no matter the reason for cancellation. Based on this theory, Arencibia brought suit in the Southern
District of Florida against American Airlines, 2 Allianz, and Jefferson, alleging claims for declar atory relief, unjust enrichment, violation of the Florida Deceptive and Unfair Trade Practices Act, violation of the federal RICO statute, and false advertising. All three defendants filed motions to dismiss the original complaint. On August 5, 2020, the district court ordered that the entire case be transferred to the United States District Court for the Northern District of Texas, and that the pending motions to

2 American Airlines is not a party to this appeal. USCA11 Case: 21-11567 Date Filed: 05/12/2022 Page: 4 of 132 1

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dismiss would also be transferred so that the court in Texas might rule upon them.
Upon tra nsfer, the case was assigned to the Honorable Reed O’Connor, and Arencibia filed an amended complaint. 3 Pursuant to the court’s order, the parties re

- briefed their motions to dismiss. Judge O’Connor granted American Airlines’ motion to dismiss and ordered that the remaining claims against Allianz and Jefferson be transferred back to the Southern District of Florida. After a third round of briefing, the district court in Florida dismissed the amended complaint in its entirety without leave to amend. This
ap peal followed.

II We review the grant of a motion to dismiss under Rule 12(b)(6) de novo , accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff. Jackson v. BellSouth Telecomms.

, 372 F.3d 1250, 1262 (11th Cir.

200 4 ). We review a district court’s denial of leave to amend a complaint for an abuse of discretion , but we review de novo its legal conclusion that amendment would be futile

. Coventry First, LLC v. McCarty
, 605 F.3d 865, 869 (11th Cir. 2010). We may affirm a district court’s decision on any ground supported by the re cord. Brown v. Johnson , 387 F.3d 1344, 1351 (11th Cir. 2004).

3 In the amended complaint, Arencibia raised substantially identical claims to those he brought in the original complaint , and any changes are not pertinent to the issues on appeal. USCA11 Case: 21-11567 Date Filed: 05/12/2022 Page: 5 of 136 Opinion of the Court 2 1

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III Although the district court dismissed all Arencibia’s claims, on appeal he challenges the dismissal of just two

– his claim s for unjust enrichment and for RICO violation s . We will examine ea ch
in turn.

A. Unjust Enrichment The district court dismissed Arencibia’s unjust enrichment claim for two independent reasons. First, it held that there is no private right of action under Florida’s Unfair Insurance Trade Practices Act (FUITPA) for damages caused by false or deceptive representations concerning insurance coverag e. Second, it held that the unjust enrichment claim was due to be dismissed because a valid contract existed between the parties.

We need not reach the FUITPA issue beca use even

a ssuming ( without deciding ) that a private cause of action for unjust enrichment may exist with respect to the alleged violations under FUITPA, we affirm because a valid contract existed between Arencibia and Appellees

. Under Florida law, to state a claim for unjust enrichment, a party must establish all the following: “ (1) a benefit conferred upon a defendant by the plaintiff, (2) the defendant ’ s appreciation of the benefit, and (3) the defendant ’ s acceptance and retention of the benefit under cir cumstances that would make it inequitable for him to retain it without paying the value thereof.” Vega v. T

Mobile USA, Inc. , 564 F.3d 1256, 1274 (11th Cir. 2009) (cleaned up). USCA11 Case: 21-11567 Date Filed: 05/12/2022 Page: 6 of 132 1

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The general rule in Florida is that the equitable remedy of unjust enrichment i s unavailable if an express contract exists. Ocean Commc’ns, Inc. v. Bubeck , 956 So. 2d 1222, 1225 (Fla. 4th DCA 2007). Indeed, “ [i] t is well settled that the law will not imply a contract where an express contract exists concerning the same subject matte r.” Kovtan v. Frederiksen , 449 So. 2d 1, 1 (Fla. 2d DCA 1984). That is so because “ t he theory of unjust enrichment is equitable in nature and is, therefore, not available where there is an adequate legal remedy.” Bowleg v. Bowe , 502 So. 2d 71, 72 (Fla. 3d DCA 1987)

. Here, an express contract

– the Policy

– existed. See State Farm Fire & Cas. Ins. Co. v. Deni Assocs. of Fla., Inc. , 678 So. 2d 397, 400 (Fla. 4th DCA 1996) (“ An insurance policy is a contract between the insured and the carrier

. ”). A nd A rencibia does not dispute that he entered into a n express contract of insurance with Jefferson and Allianz

. Instead, Arencibia argues that he may pursue an unjust enrichment claim because the Policy is “ void and un enforceable .” In Arencibia’s view, Appell ees induce consumer s to enter into the
P olicy by “ grossly misrepresenting ” its contents. The facts

, however, demonstrate that Appellees did not misrepresent the terms of the Policy. The Policy expressly warns consumers that flight cancellation coverage is not unlimited. Specifically, the Policy provides, in pertinent part: USCA11 Case: 21-11567 Date Filed: 05/12/2022 Page: 7 of 138 Opinion of the Court 2 1

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WHAT THIS POLICY INCLUDES AND WHOM IT COVERS This travel insurance policy covers only the specific situations, events, and losses included in this policy, and only under the conditions d escribed. For this reason, it is known as a “named perils” policy. Please review this policy carefully. . . .

NOTE: Not every loss is covered, even if it is due to something sudden, unexpected, or out of your control. Only those losses meeting the conditio ns described in this policy may be covered. The Policy also detail s the “covered reasons” that would trigger
coverage

— for example, if the insured or a family member became ill or injured, if the insured is in a traffic accident on the departure date, or if the insured is required to attend a legal proceeding during the trip. The Policy does not list a conflicting work

co mmitment or the insured’s unilateral decision to cancel the trip under “covered reasons .”
What’s more, Arencibia was given multiple opportunities to view the Policy’s terms. When Arencibia first viewed the offer box on American Airlines’ website, the offe r of insurance warned consumers that it was subject to “t erms, conditions

, and exclusions ,” instructed consumers to “[s]ee coverage details ,” and provided consumers with a hyperlink to view the terms of the insurance coverage . Then, followin g Arencibia’s p urchase, Allianz also emailed Arencibia a copy of the P olicy . Arencibia was afforded USCA11 Case: 21-11567 Date Filed: 05/12/2022 Page: 8 of 132 1

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a 10

- day grace period to cancel the P olicy for any reason and receive a full refund

. Even if Arencibia did not read the terms of the Policy before purchasing it

, we agree with the district court that Arencibia was on inquiry notice that “[t]erms, conditions

, and exclusions apply” because the hyperlink in the offer box was conspicuous and plainly disclosed. See MetroPCS Commc’ns, Inc. v. Porter , 273 So. 3d 1025, 1028 (Fla. 3d DCA 2018) (explaining that, under Florida law, browsewrap agreements like the one here are enforceable “ when the purchaser has actual knowledge of the terms and conditions, or when the hyperlink to the terms and conditions is conspicuous enough to put a reasonably prudent person on inquiry notice ”). In addition, Arencibia does not deny that he received a fu l l copy of the Policy shortly after his purchase and that he had ten days in which to review the Policy and cancel it for a full refund if he was diss atisfied for any reaso n. See Allied Van Lines, Inc. v. Bratton , 351 So. 2d 344, 347

- 48 (Fla. 1977) (explaining that a party is bound by his contract and charged with knowledge of its contents); R ocky Creek Ret. Props., Inc. v. Estate of Fox , 19 So. 3d 1105, 1108 (Fla. 2d DCA 2009) (holding that a party is generally bound by a contract the party signs u nless he is prevented from reading it or induced by the other party to refrain from reading it). Finally, Arencibia availed himself of the insurance by making a claim under the P olicy , effectively conceding that a contract existed between the parties

. The fact that Arencibia does USCA11 Case: 21-11567 Date Filed: 05/12/2022 Page: 9 of 1310 Opinion of the Court 2 1

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not like the terms of the Policy does not serve to make the contract unenforceable. Accordingly, the district court’s dismissal of Arencibia’s unjust enrichment claim is affirmed. 4

B

. RICO

In his amended complaint, Arencibia also brought a claim for alleged RICO violations , relying on the predicate acts of mail fraud and wire fraud to plead a pattern of racketeering activity

. The district court held that this claim failed for multiple reasons, but we confine ourselve s to just two. Section 1962(c) of the RICO statute requires that a plaintiff prove that a defendant participated in an illegal enterprise “through a pattern of racketeering activity.” 18 U.S.C. § 1962(c). “Racketeering activity” is defined to include such predicate acts as

4 While this appeal was pending, Appellees drew the Court’s attention to two

recent ly issued decisions: Marrache v. Bacardi U.S.A., Inc. , 17 F.4th 1084 ( 11th Cir. 2021) and Pincus v. American Traffic Solutions, Inc., 333 So. 3d 1095 (Fla. 2022). In Marrache , this Court affirmed the dismissal of an unjust enrichment claim because the defendant made a full and accurate pre

- sale disclosure of certain information and the plaintiff thus received what they bargained for. 17 F.4th at 1101

- 02. And in Pincus , the Flo rida Supreme Court held that the plaintiff’s unjust enrichment claim failed as a matter of law because the defendant “gave value in exchange” to the plaintiff such that it was not inequitable for the defendant to retain a fee. 33 3 So. 3d at 1097. While the se

cases provide further support for the Court’s decision, we need not address them in great detail, as Arencibia’s unjust enrichment claim fails for the reasons described above. USCA11 Case: 21-11567 Date Filed: 05/12/2022 Page: 10 of 132 1

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mail and wire fraud. 18 U.S.C. § 1961(1). To state a claim, then, Arencibia needed to sufficiently allege that the defendants “intentionally participate[d] in a scheme to defraud another of
money or property ” and “ use[d] the mails or wire s in furtherance of that scheme.” Am. Dental Ass’n v. Cigna Corp. , 605 F.3d 1283, 1290 (11th Cir. 2010) (citing Pelletier v. Zweifel , 921 F.2d 1465, 1498 (11th Cir. 1991 ) ). As we have explained: A scheme to defraud requires proof of a material misrepresentation, or the omission or concealment of a material fact calculated to deceive another out of money or property. “Material” misrepresentations or omissions are ones having a natural tendency to influence, or capable of influencing, the decision maker to whom it is addressed. The misrepresentation or omission must be one on which a person of ordinary prudence would rely.
United States v. Foster , 878 F.3d 1297, 1304 (11th Cir. 2018) (internal citations and quotation s omitted).

The district court correctly determined that Arencibia failed to plausibly allege a material misrepresentation , which is fatal to his RICO claim. As explained above, t he Allianz offer box conspicuously warned Arencibia that “terms, conditions, and exclusions apply,” Allianz provided him with a hyperlink to view those terms, Allianz provided him with the 36

- page Policy at the time of purchase, and Arencibia was afforded ten days to review and cancel the Policy for any reason and receive a full refund. Arencibia does not deny t hat the terms and exclusions of coverage USCA11 Case: 21-11567 Date Filed: 05/12/2022 Page: 11 of 1312 Opinion of the Court 2 1

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were laid out in the full Policy that was sent to him, nor that he had

ten days to review the Policy and cancel it if he was unhappy with any of the stated terms. Thus, the offer box and Policy provided a full and accurate disclosure of the terms, conditions, and exclusions of the insurance coverage offered , and Arencibia has failed to plead any actionable misrepresentation by the Appellees. Moreover, Arencibia failed to plausibly allege any injury caused by the alleged mail and wire fraud . See Ray v. Spirit Airlines,
Inc. , 836 F.3d 1340, 1348 (11th Cir. 2016) (“A civil plaintiff must also show (1) the requisite injury to ‘business or property,’ and (2) that such injury was ‘by reason of’ the substantive RICO violation.”) (quotation marks omitted) (quoting 18 U.S.C. § 1964(c))

. The district court correctly held that Arencibia could no t demonstrate any injury under RICO because he received exactly what he bar gained and paid for

– insurance coverage for his roundtrip flight, subject to certain conditions and restrictions. In other words, Arencibia received the benefit of his bargain and has not suffered any injury or loss. Accordingly, his RICO claim was

correc tly dismissed.

C. Leave to Amend While district courts should freely give leave to amend when justice so requires, they need not grant leave to amend when such amendment would be futile. See Foman v. Davis , 371 U.S. 178, 182 (1962). “This court has found t hat denial of leave to amend is USCA11 Case: 21-11567 Date Filed: 05/12/2022 Page: 12 of 132 1

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justified by futility when the ‘ complaint as amended is still subject to dismissal. ’ ” Burger King Corp. v. Weaver , 169 F.3d 1310, 1320 (11th Cir. 1999) (citation omitted).

The district court concluded that Arencibia’s amended complaint failed to state a plausible claim for relief, despite Arencibia having the benefit of two fully briefed motions to dismiss prior to amendment. What’s more, it held that amendment would be futi le because his own allegations “negate” any misrepresentation on the part of Appellees . We agree. Arencibia’s claims are fatally undermined by the offer box disclosures, and by the terms of and circumstances surrounding the Policy. The district court did n ot abuse its discretion in denying Arencibia leave to further amend his complaint.

IV
For the reasons stated, we conclude that the district court did not err in dismissing Arencibia’s operative complaint without leave to amend. Therefore, we affirm the district court.

AFFIRMED. USCA11 Case: 21-11567 Date Filed: 05/12/2022 Page: 13 of 13