Carlos Alfaro, et al v. Bank of America, N.A., et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10948
____________________
CARLOS ALFARO,
on behalf of themselves and all others similarly situated,
HENRIETTA I. EGBUNIKE,
on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants,
versus
BANK OF AMERICA, N.A.,
BANK OF AMERICA CORPORATION,
Defendants-Appellees.
____________________
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2 Opinion of the Court 21-10948
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-22762-MGC
____________________
Before J ORDAN , L UCK , and L AGOA, Circuit Judges.
L UCK , Circuit Judge:
Carlos Alfaro and Henrietta Egbunike sued Bank of Amer-
ica, N.A., because it charged them an “international transaction
fee” when they used their bank-issued debit cards for foreign trans-
actions. They alleged claims for (1) breach of contract, (2) breach
of the implied covenant of good faith and fair dealing, (3) uncon-
scionability, and (4) unjust enrichment. The district court dis-
missed Alfaro and Egbunike’s lawsuit because the Truth in Savings
Act and its regulations preempted Alfaro and Egbunike’s claims
and because it failed to state a claim for relief. Because we agree
that Alfaro and Egbunike failed to state a claim, we affirm the dis-
trict court’s dismissal.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Alfaro and Egbunike are Bank of America customers. Since
May 16, 2014, both of them have held personal deposit accounts
with the bank. The bank issued each one a debit card linked to
their accounts.
Three documents make up the bank’s contractual relation-
ship with its personal deposit accountholders: the deposit agree-
ment; the personal schedule of fees; and the card brochure. The
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21-10948 Opinion of the Court 3
deposit agreement specifically referenced the personal schedule of
fees. Under the heading “The Agreement for Your Account,” it
provided:
This Deposit Agreement and Disclosures, the applicable
Schedule of Fees, the signature card and other account
opening documents for your account are part of the
binding contract between you and us (this “Agree-
ment”) for your deposit account and your deposit re-
lationship with us. They contain the terms of our
agreement with you. . . . The Schedule of Fees lists our
accounts and account fees. . . .
We may change this Agreement at any time. We may
add new terms. We may delete or amend existing
terms. We may add new accounts and services and
discontinue existing accounts or services. We may
convert existing accounts and services into new ac-
counts and services.
We ordinarily send you advance notice of an adverse
change to this Agreement. However, we may make
changes without prior notice unless otherwise re-
quired by law. We may, but do not have to, notify you
of changes that we make for security reasons or that
we believe are either beneficial or not adverse to you.
Under the heading for “Checking and Savings Accounts,” the de-
posit agreement explained that the “Personal Schedule of Fees de-
scribes our personal accounts and lists applicable fees.” And under
the heading for “Information About Fees and Charging Your
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4 Opinion of the Court 21-10948
Account,” the deposit agreement said that the “Personal Schedule of
Fees lists account fees that apply to our personal deposit accounts.”
Besides the personal deposit accounts, the bank “offer[ed]
many other services.” The deposit agreement described these
other services and noted that the bank “may occasionally list fees
for some of [them] in the Schedule of Fees.”
We offer a variety of electronic banking services for
use with your deposit accounts. We describe some in
this section and also provide certain disclosures that
apply to use of an electronic banking service with per-
sonal deposit accounts. We provide separate agree-
ments to you that govern the terms of some services,
including separate agreements for ATM and debit
cards and Online and Mobile Banking services. Please
review the following provisions and the separate
agreement for the service.
. . . .
We may issue you an ATM or debit card (either is
called a ‘card’) . . . when you open your account. The
terms that govern this service are in a separate agree-
ment that you receive with your card. Please review
that agreement carefully. . . .
. . . .
For other fees that apply to electronic banking ser-
vices, please review the Schedule of Fees for your ac-
count and each agreement or disclosure that we pro-
vide to you for the specific electronic banking service,
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21-10948 Opinion of the Court 5
including the separate agreement for Online and Mo-
bile Banking services and the separate agreement for
ATM and debit cards.
The personal schedule of fees listed debit cards as an “Op-
tional Service[]” that “can help you manage your account. To learn
more about them, please review the agreement for that service.”
The “separate agreement” for the debit card was in the card bro-
chure. In the card brochure, the accountholder agreed that if she
“use[d] [the] debit card to purchase goods or services in a foreign
currency or in [United States] dollars with a foreign merchant (a
‘Foreign Transaction’),” the bank would charge her an interna-
tional transaction fee. The international transaction fee, the card
brochure explained, would be three percent of the purchase price.
Between May 16, 2014, and May 8, 2015, the bank applied
this three-percent fee to three purchases by Alfaro and Egbunike.
The bank assessed a $2.44 fee when Alfaro used his debit card for
an $81.40 purchase, a $1.79 fee when he used it for a $59.52 pur-
chase, and a $0.81 fee when Egbunike used her debit card for a
$26.95 purchase. But, according to Alfaro and Egbunike, they had
not received a card brochure when they were issued their debit
cards. And, before May 8, 2015, the personal schedule of fees didn’t
mention the international transaction fee.
On May 8, 2015, the bank amended the personal schedule of
fees to list the international transaction fee and explain how it ap-
plied to foreign transactions. The bank didn’t notify Alfaro and Eg-
bunike of these changes to the schedule of fees, and it continued
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6 Opinion of the Court 21-10948
assessing the international transaction fee for their foreign transac-
tions. After May 8, 2015, the bank assessed a $15.60 fee when Al-
faro used his card to make a $520.00 purchase, a $4.95 fee when he
used it for a $165.00 purchase, and a $1.58 fee when Egbunike used
her card for a $52.50 purchase.
Alfaro and Egbunike sued the bank on behalf of themselves
and other Bank of America accountholders who were charged the
international transaction fee. They proposed two classes of plain-
tiffs. The first proposed class—the “Undisclosed FX Fee Class”—
included all accountholders who were assessed an international
transaction fee on debit card transactions between July 3, 2014 and
May 7, 2015. The second—the “Unnotified FX Fee Class”—in-
cluded all accountholders who opened a personal deposit account
before May 8, 2015, and were assessed an international transaction
fee after May 8, 2015.
The eight-count complaint alleged four claims for each class.
For the Undisclosed FX Fee Class, Alfaro and Egbunike first alleged
a breach of contract claim, asserting that the bank “promised . . .
that it would only assess the fees disclosed . . . in the [s]chedule of
[f]ees” but, until May 8, 2015, the bank assessed the fee without
disclosing it in the schedule. Second, they alleged that the bank
breached the implied covenant of good faith and fair dealing be-
cause the bank assessed the international transaction fee despite it
being “hidden, concealed, or disclosed . . . in an inaccessible man-
ner in a document other than the [s]chedule of [f]ees prior to
May 8, 2015.” Third, they alleged that the international transaction
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21-10948 Opinion of the Court 7
fee was procedurally and substantively unconscionable because the
bank didn’t (1) “disclose or reasonably disclose” the fee, its amount,
or when it would be assessed, (2) obtain consent before charging it,
(3) give accountholders a chance to cancel transactions before
charging it, or (4) mention the fee in either the deposit agreement
or personal schedule of fees before May 8, 2015, making those doc-
uments “ineffective, ambiguous, deceptive, unfair, and mislead-
ing.” And fourth, they alleged that the bank unjustly enriched itself
by collecting the international transaction fee without listing it in
the schedule of fees before May 8, 2015.
For the Unnotified FX Fee Class, Alfaro and Egbunike
brought the same four claims. First, Alfaro and Egbunike alleged
that the bank breached the deposit agreement because it assessed
the international transaction fee without notifying them of the May
8, 2015 amendments to the personal schedule of fees. Second, they
alleged that the bank breached the implied covenant of good faith
and fair dealing for the same reason. Third, Alfaro and Egbunike
alleged the international transaction fee was procedurally and sub-
stantively unconscionable for the same reasons as the Undisclosed
FX Fee Class, adding that the bank didn’t notify them about the
amendments to the schedule of fees. Lastly, they alleged that the
bank unjustly enriched itself by assessing the international transac-
tion fee without notifying them that it amended the personal
schedule of fees.
The bank moved to dismiss the complaint for two reasons.
First, the bank argued that Alfaro and Egbunike’s claims were
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8 Opinion of the Court 21-10948
preempted by the Truth in Savings Act and its regulations. See 12
U.S.C. § 4301 et seq.; 12 C.F.R. § 1030.1(a), (d). Second, the bank
contended that, even if the Act did not preempt Alfaro and Eg-
bunike’s claims, “the claims . . . [we]re contradicted by the express
language of the applicable account agreements and . . . based on
conclusory, implausible allegations.”
The district court granted the bank’s motion to dismiss on
both grounds. As for preemption, the district court explained that
the Act and its regulations prescribed what information banks must
disclose to their accountholders and how the banks must do it. And
the regulations expressly preempted state-law requirements that
were “inconsistent with” the federal disclosure requirements. 12
C.F.R. § 1030.1(d). Alfaro and Egbunike’s claims, the district court
concluded, were inconsistent with federal disclosure requirements
because the complaint’s “gravamen” was that the bank didn’t dis-
close the international transaction fee as required by state law.
The district court also concluded that, even if the claims
were not preempted, the complaint failed to state a claim. As to
the Undisclosed FX Fee Class’s breach of contract claim, the district
court explained, the bank did not promise to disclose the interna-
tional transaction fee in the personal schedule of fees, meaning the
bank hadn’t breached a promise by not listing the international
transaction fee there. Similarly, as to the Unnotified FX Fee Class’s
breach of contract claim, the bank did not promise to notify ac-
countholders about all changes to the schedule of fees. The deposit
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21-10948 Opinion of the Court 9
agreement only provided that the bank would “ordinarily” send ad-
vance notice of adverse changes.
The remaining counts also failed to state a claim, the district
court concluded, because: without any breach of an express con-
tractual provision, the implied covenant of good faith and fair deal-
ing claims failed; even if unconscionability was a standalone claim
under Florida law, Alfaro and Egbunike sought money damages for
breach of the allegedly unconscionable contract, a legal remedy not
available for an equitable claim like unconscionability; and Alfaro
and Egbunike couldn’t pursue equitable unjust enrichment claims
because they alleged that an express contract governed the parties’
relationship, meaning they had adequate legal remedies.
Alfaro and Egbunike appealed the district court’s dismissal
order.
STANDARD OF REVIEW
We review de novo dismissals for failure to state a claim.
Cavalieri v. Avior Airlines C.A., 25 F.4th 843, 847 (11th Cir. 2022).
“To survive a motion to dismiss, a complaint must contain suffi-
cient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
DISCUSSION
On appeal, Alfaro and Egbunike argue that their complaint
stated plausible claims for breach of contract, breach of the implied
covenant of good faith and fair dealing, unconscionability, and
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10 Opinion of the Court 21-10948
unjust enrichment.1 We break up our discussion by reviewing each
claim.
Breach of Contract: Undisclosed FX Fee Class
As to the Undisclosed FX Fee Class, Alfaro and Egbunike al-
leged that the bank breached the deposit agreement because the
bank imposed the international transaction fee despite “pro-
mis[ing] . . . it would only assess the fees disclosed . . . in the
[s]chedule of [f]ees.” Until May 8, 2015, they alleged, the bank as-
sessed the international transaction fee even though it wasn’t listed
in the personal schedule of fees.
“For a breach of contract claim, Florida law requires the
plaintiff to plead and establish: (1) the existence of a contract; (2) a
material breach of that contract; and (3) damages resulting from
the breach.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th
Cir. 2009) (citing Friedman v. N.Y. Life Ins. Co., 985 So. 2d 56, 58 (Fla.
Dist. Ct. App. 2008)). Here, Alfaro and Egbunike did not plausibly
allege a breach of their contract with the bank. That’s because the
bank didn’t promise that it would assess only those fees listed in the
personal schedule of fees.
First, the deposit agreement simply provided that the sched-
ule of fees “list[ed the bank’s] accounts and account fees.” That
1 Alfaro and Egbunike also contend that the district court erred in concluding
that their claims were preempted by the Truth in Savings Act and its regula-
tions. Because we agree with the district court that Alfaro and Egbunike failed
to state a claim, we decline to reach the preemption issue.
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21-10948 Opinion of the Court 11
language didn’t promise accountholders that the schedule of fees
would be an exhaustive list of all fees the bank might charge for
other products or services.
Second, other language in the deposit agreement made clear
that the bank assessed fees for “other services”—like for debit
cards—that were not listed in the personal schedule of fees. The
deposit agreement stated, for example, that the schedule “de-
scribe[d the bank’s] personal accounts” and listed fees “that appl[ied]
to [the bank’s] personal deposit accounts” (emphasis added). But the
international transaction fee related to the bank’s debit cards. And
the deposit agreement distinguished between the bank’s debit-card
services and its personal deposit accounts, providing that “[i]n ad-
dition to checking, savings and CD accounts[,] we also offer many
other services . . . . We may occasionally list fees for some of these ser-
vices in the Schedule of Fees” (emphasis added).
Likewise, the deposit agreement warned accountholders
that “[f]or other fees that apply to electronic banking services, please re-
view the Schedule of Fees for your account and each agreement or
disclosure that we provide to you for the specific electronic bank-
ing service, including the separate agreement for Online and Mo-
bile Banking services and the separate agreement regarding ATM
and debit cards.” One “other service” was the service that Alfaro
and Egbunike used—the debit card. The deposit agreement, in
short, referred debit card users to a separate agreement for debit
cards that might list fees besides those listed in the personal sched-
ule of fees.
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12 Opinion of the Court 21-10948
Alfaro and Egbunike’s arguments to the contrary aren’t per-
suasive. First, they contend that, at worst, the deposit agreement
is ambiguous as to whether the personal schedule of fees was the
exclusive place to list fees and should be construed in their favor as
the non-drafter. But, under Florida law, “[t]he intention of the par-
ties must be determined from an examination of the whole con-
tract and not from the separate phrases or paragraphs,” and thus,
we “must review the entire contract without fragmenting any seg-
ment or portion.” Jones v. Warmack, 967 So. 2d 400, 402 (Fla. Dist.
Ct. App. 2007) (first quoting Lalow v. Codomo, 101 So. 2d 390, 393
(Fla. 1958); then quoting J.C. Penney Co. v. Koff, 345 So. 2d 732, 735
(Fla. Dist. Ct. App. 1977)). Read as a whole, the deposit agree-
ment’s plain language isn’t ambiguous as to whether the personal
schedule of fees was the exclusive listing place for fees; it told ac-
countholders to review separate agreements for ATM and debit
cards to find “other fees that apply to electronic banking services.”
See Frulla v. CRA Holdings, 543 F.3d 1247, 1252 (11th Cir. 2008) (ex-
plaining that a contract’s language is not ambiguous where one
party’s alternative interpretation “is unreasonable in light of the
contract’s plain language”).
Second, Alfaro and Egbunike argue that they never received
the card brochure, which listed the international transaction fee be-
fore May 8, 2015, and thus the card brochure wasn’t incorporated
into the deposit agreement. But whether the bank gave them a
card brochure that listed the fee is irrelevant to whether the bank
promised that it would only charge fees listed in the personal sched-
ule of fees. Because the deposit agreement didn’t make that
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21-10948 Opinion of the Court 13
promise, we affirm the district court’s dismissal of this breach of
contract claim.
Breach of Contract: Unnotified FX Fee Class
As to the Unnotified FX Fee class, Alfaro and Egbunike al-
leged that the bank breached the deposit agreement by assessing
the international transaction fee without notifying them of the
May 8, 2015, amendments to the personal schedule of fees. But the
bank did not breach the deposit agreement because that agreement
didn’t promise it would give advance notice of changes to the per-
sonal schedule of fees. The deposit agreement stated that the bank
would “ordinarily send . . . advance notice of an adverse change,”
but the bank could “make changes without prior notice unless oth-
erwise required by law.” And the bank could, “but d[id] not have
to,” notify users of “changes that [the bank] ma[de] for security rea-
sons or that [the bank] believe[d] [were] either beneficial or not ad-
verse to [the accountholder].”
As this language makes plain, the bank didn’t promise to al-
ways provide notice of an adverse change; it only promised to “or-
dinarily” provide advance notice unless otherwise required by law.
Because Alfaro and Egbunike did not allege that notice was re-
quired by law, we affirm the district court’s dismissal of this claim.
Breach of the Implied Covenant of Good Faith and
Fair Dealing: Both Classes
For the Undisclosed FX Fee Class, Alfaro and Egbunike al-
leged that the bank breached the implied covenant of good faith
and fair dealing because the bank charged the international
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14 Opinion of the Court 21-10948
transaction fee although it was “hidden, concealed, or disclosed . . .
in an inaccessible manner” before May 8, 2015. And for the Unno-
tified FX Fee Class, Alfaro and Egbunike alleged that the bank
breached the implied covenant by charging them the fee without
notice that the bank added it to the personal schedule of fees on
May 8, 2015.
“Under Florida law, every contract contains an implied cov-
enant of good faith and fair dealing, requiring that the parties fol-
low standards of good faith and fair dealing designed to protect the
parties’ reasonable contractual expectations.” Centurion Air Cargo,
Inc. v. United Parcel Serv. Co., 420 F.3d 1146, 1151 (11th Cir. 2005)
(citing Cox v. CSX Intermodal, Inc., 732 So. 2d 1092, 1097 (Fla. Dist.
Ct. App. 1999)). But there is no breach of the implied covenant if
“there is no accompanying action for breach of an express term of
the agreement.” Diageo Dominicana, S.R.L. v. United Brands, S.A.,
314 So. 3d 295, 299 (Fla. Dist. Ct. App. 2020) (citation omitted). In-
stead, a duty of good faith must “relate to the performance of an
express term of the contract.” Id. (citation omitted). “The duty of
good faith does not attach until the [p]laintiff can establish a term
of the contract that [the defendant] was obligated to perform.” Ins.
Concepts & Design, Inc. v. Healthplan Servs., Inc., 785 So. 2d 1232,
1235 (Fla. Dist. Ct. App. 2001) (citations omitted).
Alfaro and Egbunike failed to state claims for breach of the
implied covenant because, as we explained above, the bank did not
breach express provisions of the contract. See id. Because the bank
never promised to include all fees in the personal schedule of fees
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21-10948 Opinion of the Court 15
or to always notify accountholders of adverse changes, it did not
and could not breach an implied covenant to do those things. Com-
pare Main St. Mgmt. Servs., Inc. v. Eight Sixty S. Ocean Blvd., Inc., 993
So. 2d 1155, 1157–58 (Fla. Dist. Ct. App. 2008) (“In the present case,
there was no express term in the contract that required 860 South
to notify Main Street of its repair elections, and so there could not
have been a breach of the implied covenant of good faith and fair
dealing for 860 South’s failure to do so.”), with Underwater Eng’g
Servs., Inc. v. Util. Bd. of Key W., 194 So. 3d 437, 444–45 (Fla. Dist.
Ct. App. 2016) (concluding that when the contract required notice
to be given within 24 hours, the defendant failed to provide notice,
and the failure to provide notice damaged the plaintiff, the failure
to give notice constituted a breach of the duty of good faith and fair
dealing). So the district court’s dismissal of the implied covenant
claims is also due to be affirmed.
Unconscionability: Both Classes
For both classes, Alfaro and Egbunike alleged that the inter-
national transaction fee was both procedurally and substantively
unconscionable because the bank did not: (1) “disclose or reason-
ably disclose” the fee, its amount, or when it would be imposed; (2)
obtain consent before charging the fee; (3) give accountholders a
chance to cancel transactions before charging the fee; or (4) men-
tion the fee in either the deposit agreement or personal schedule of
fees before May 8, 2015, making those documents “ineffective, am-
biguous, deceptive, unfair, and misleading.” For the Unnotified FX
Fee Class’s unconscionability claim, specifically, Alfaro and
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16 Opinion of the Court 21-10948
Egbunike also alleged that the bank failed to notify class members
that it amended the schedule of fees.
Florida courts have invoked the unconscionability doctrine
“to prevent the enforcement of contractual provisions that are
overreaches by one party” to create unjust advantages over the
other. Basulto v. Hialeah Auto., 141 So. 3d 1145, 1157 (Fla. 2014)
(citations omitted). It “has generally been recognized to include an
absence of meaningful choice on the part of one of the parties to-
gether with contract terms which are unreasonably favorable to
the other party.” Id. at 1160 (citation omitted). The first prong,
lack of a meaningful choice, is referred to as “procedural” uncon-
scionability. Id. at 1157. And the second prong, which looks to the
contract terms themselves, is referred to as “substantive” uncon-
scionability. Id. at 1157–58. Each type must exist to some degree.
See id. at 1159–61 (holding that “both elements must be present,”
although “they need not be present to the same degree”); see also
12550 Biscayne Condo. Ass’n v. NRD Invs., LLC, 336 So. 3d 750, 755
(Fla. Dist. Ct. App. 2021) (citations omitted).2
Although Alfaro and Egbunike claim the international trans-
action fee is both procedurally and substantively unconscionable,
the complaint doesn’t allege facts plausibly establishing either type
of unconscionability. As for procedural unconscionability, Alfaro
and Egbunike didn’t allege a lack of meaningful choice to accept or
reject the bank’s terms. There are no allegations that Alfaro and
2 We assume without deciding that Florida law recognizes unconscionability
as a standalone cause of action.
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Egbunike were unable to “obtain the desired product or services
elsewhere,” that the bank “pressured or rushed” them into con-
tracting for debit cards, or that they were “otherwise precluded
from inquiring into the terms.” Kendall Imports, LLC v. Diaz, 215
So. 3d 95, 110 (Fla. Dist. Ct. App. 2017) (citations omitted). Nor are
there any facts showing that the bank actually “did not disclose,”
or deceived Alfaro and Egbunike into believing through an “am-
biguous” or “unfair” deposit agreement and schedule of fees, that
they’d be responsible for fees not listed in the schedule. For exam-
ple, the deposit agreement expressly stated that “other fees” for
debit cards may be listed in a “separate agreement.” See Semerena
v. Dist. Bd. of Trs. of Mia. Dade Coll., 282 So. 3d 974, 977–78 (Fla. Dist.
Ct. App. 2019) (affirming dismissal of an unconscionability claim
based on “excessive” insurance premiums because there were no
allegations that the defendant “deceive[d]” the plaintiff or “lure[d]
him into a bad bargain”). The complaint offers only conclusory
allegations that a “great disparity” of bargaining power existed be-
cause the bank has “great business acumen and experience . . . in
relation to [Alfaro and Egbunike].” But conclusory allegations
aren’t enough to state a plausible claim. See Iqbal, 556 U.S. at 678
(“Threadbare recitals of the elements of a cause of action, sup-
ported by mere conclusory statements, do not suffice.” (citation
omitted)).
Even assuming the complaint plausibly alleged procedural
unconscionability, it falls short on substantive unconscionability.
See Basulto, 141 So. 3d at 1159–61. “A substantively unconscionable
contract is one that ‘no man in his senses and not under delusion
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18 Opinion of the Court 21-10948
would make on the one hand, and [one that] no honest and fair
man would accept on the other.’” 12550 Biscayne Condo. Ass’n, 336
So. 3d at 755 (quoting Woebse v. Health Care & Ret. Corp. of Am., 977
So. 2d 630, 632 (Fla. Dist. Ct. App. 2008)). The challenged contract
term must be “so ‘outrageously unfair’ as to ‘shock the judicial con-
science.’” Id. (quoting Woebse, 977 So. 2d at 632).
Conscience-shocking is a high bar to clear, even when
money’s at stake. For example, in Hot Developers, Inc. v. Willow Lake
Estates, Inc., after the buyer failed to close on an agreement to pur-
chase commercial real estate, the buyer challenged the agreement’s
nonrefundable deposit provision as unconscionable. 950 So. 2d
537, 538–39 (Fla. Dist. Ct. App. 2007). Under that provision, the
seller retained the buyer’s $550,000 deposit, which was “only 9.65%
of the total contract price.” Id. at 539, 541. The Fourth District
Court of Appeal affirmed summary judgment for the seller. Id. at
538. Under Florida law, it reasoned, the nonrefundable deposit
provision didn’t shock the conscience even though the deposit was
hundreds of thousands of dollars. See id. at 541–42 (citing, among
other cases, Johnson v. Wortzel, 517 So. 2d 42, 43 (Fla. Dist. Ct. App.
1987), where the amount exceeded three hundred thousand dol-
lars, or 18.2% of the purchase price, and Bradley v. Sanchez, 943 So.
2d 218, 222 (Fla. Dist. Ct. App. 2006), where the deposit exceeded
five hundred thousand dollars, or 4.85% of the total purchase
price).
Take another example. In Belcher v. Kier, mobile-home
renters alleged that annual increases to their rent across a six-year
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21-10948 Opinion of the Court 19
span were unconscionable. 558 So. 2d 1039, 1040 (Fla. Dist. Ct.
App. 1990). The increased rent prices “ranged from a low of [nine
dollars] per month” above fair market value (or 6.6%) “to a high of
[twenty-seven dollars] per month” above fair market value (or
15.9%). Id. at 1045. The Second District Court of Appeal reversed
a trial judgment for the renters. Id. at 1040. It stressed that the
relevant question was whether the rent increases were “mon-
strously harsh or grossly excessive,” rather than just unreasonable.
Id. at 1045. And, the court concluded, the six-to-fifteen-percent
higher than fair market value monthly rent prices were not mon-
strously harsh or grossly excessive. See id. (“We cannot say that
‘no man in his right mind’ would pay these rents . . . .”).
Here, the three-percent international transaction fee isn’t
monstrously harsh or grossly excessive, either. Charging a three-
percent fee for foreign transactions is a far cry from retaining de-
posits exceeding hundreds of thousands of dollars or increasing
rents up to twenty-seven dollars higher than fair market value per
month. See Hot Devs., Inc., 950 So. 2d at 541 (noting the $550,000
deposit was “only 9.65% of the total contract price”); Johnson, 517
So. 2d at 43 (noting the $347,011.66 “amount forfeited by the buy-
ers represent[ed] 18.2% of the total contract”); Bradley, 943 So. 2d
at 222 (noting the $510,000 deposit was “4.85% of the total sales
price”); Belcher, 558 So. 2d at 1045 (noting the increased rent price
was twenty-seven dollars or “15.9% above fair market rental
value”); cf. Dade Nat’l Dev. Corp. v. Se. Invs. of Palm Beach Cnty., Inc.,
471 So. 2d 113, 114–17 (Fla. Dist. Ct. App. 1985) (reasoning that two
contractual provisions stating the buyer would receive $200,000 in
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20 Opinion of the Court 21-10948
cancellation fees if the seller cancelled after six months, which
“amounted to 8.7% of [one contract’s] purchase price and . . . 18%
of the [other contract’s] purchase price,” did not “require[] equity
to intervene”). Indeed, Alfaro and Egbunike’s complaint provides
six examples of when the bank applied the fee to their purchases.
The fee exceeded five dollars only once—when the bank assessed
$15.60 for a $520.00 purchase—and was only three percent of the
price. Because the complaint did not allege plausible unconscion-
ability claims, we affirm the district court’s dismissal of them.
Unjust Enrichment: Both Classes
Finally, Alfaro and Egbunike alleged that the bank unjustly
enriched itself by assessing the international transaction fee with-
out (1) listing that fee in the personal schedule of fees before May 8,
2015, and (2) notifying accountholders that it amended the sched-
ule to list the fee on May 8, 2015. But Florida law is clear that unjust
enrichment claims are unavailable if there is an express contract on
the same subject matter. Diamond “S” Dev. Corp. v. Mercantile Bank,
989 So. 2d 696, 697 (Fla. Dist. Ct. App. 2008) (explaining that “Flor-
ida courts have held that a plaintiff cannot pursue a quasi-contract
claim for unjust enrichment if an express contract exists concerning
the same subject matter” (citations omitted)).
Here, Alfaro and Egbunike’s complaint alleged that, “[a]t all
times relevant to this action, [the bank]’s relationship with [Alfaro
and Egbunike] and all of its personal deposit [accountholders] has
been governed by a standardized set of contractual documents.”
Both unjust enrichment counts incorporated that allegation. And
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21-10948 Opinion of the Court 21
both unjust enrichment counts incorporated the allegations that
the bank breached an express contract with Alfaro and Egbunike
by assessing the international transaction fee. Because Alfaro and
Egbunike alleged an express contract as part of their unjust enrich-
ment claims, they are not entitled to an unjust enrichment remedy
under Florida law.
Alfaro and Egbunike are right that they could have pleaded
their unjust enrichment claims in the alternative. See Fed. R. Civ.
P. 8(d)(2) (“A party may set out 2 or more statements of a claim or
defense alternatively or hypothetically, either in a single count or
defense or in separate ones.”). But they didn’t; they alleged that
the express contract governed “[a]t all times relevant to this ac-
tion.” Because “a plaintiff may not plead an unjust enrichment
claim in the alternative to a claim for breach of contract when it is
undisputed . . . that a valid contract exists,” Techjet Innovations Corp.
v. Benjelloun, 203 F. Supp. 3d 1219, 1234 (N.D. Ga. 2016), the district
court properly dismissed the claims. See Global Network Mgmt., Ltd.
v. Centurylink Latin Am. Sols., LLC, 67 F.4th 1312, 1316–19 (11th Cir.
2023) (applying Florida law and affirming the dismissal of an unjust
enrichment claim because the complaint “alleged that there was an
express agreement governing the relationship between the two
parties”); cf. Marquez v. Amazon.com, Inc., 69 F.4th 1262, 1276 (11th
Cir. 2023) (“Plaintiffs . . . specifically incorporated the terms of their
contract with Amazon as part of their unjust enrichment count.
So, while plaintiffs may plead breach of contract and unjust enrich-
ment in the alternative, . . . they have not done so. Instead, plain-
tiffs pleaded a contractual relationship as part of their unjust
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22 Opinion of the Court 21-10948
enrichment claim, and that contractual relationship defeats their
unjust enrichment claim under Washington law.”).
CONCLUSION
We affirm the district court’s order dismissing Alfaro and
Egbunike’s complaint for failure to state a claim.
AFFIRMED.
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