                                                                            FILED
                                 NOT FOR PUBLICATION
                                                                            APR 23 2019
                       UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                                 FOR THE NINTH CIRCUIT


In re: UNITED PARCEL SERVICE “AIR-                No.   16-55918
IN-GROUND” MARKETING AND
SALES PRACTICES LITIGATION,                       D.C. No.
                                                  2:10-ml-02153-GW-PJW
------------------------------

POCINO FOODS COMPANY;                             MEMORANDUM*
ARAPAHOE HYUNDAI, LLC; OWENS
FINANCIAL GROUP, INC.; DESIGNER
IMPORTS INTERNATIONAL, INC.,

               Plaintiffs-Appellants,

 v.

UNITED PARCEL SERVICE, INC.,
Delaware, DBA United Parcel Service Co.
(Air); UNITED PARCEL SERVICE
GENERAL SERVICES CO., a Delaware
corporation; UNITED PARCEL SERVICE
COMPANY, a Delaware corporation,
DBA United Parcel Service Co. (Air),

               Defendants-Appellees.


                      Appeal from the United States District Court
                         for the Central District of California


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                      George H. Wu, District Judge, Presiding

                        Argued and Submitted April 9, 2019
                               Pasadena, California

Before: GRABER and BYBEE, Circuit Judges, and ARTERTON,** District Judge.


      Plaintiffs shipped packages relatively short distances via “Next Day Air”

and “2nd Day Air,” two services offered by defendants United Parcel Service and

its affiliates (collectively “UPS”). According to plaintiffs, UPS transported their

“Air” packages by truck instead of airplane and imposed a fuel surcharge on those

shipments derived from indexed prices of jet fuel instead of diesel fuel. Plaintiffs

filed this lawsuit claiming that UPS breached the shipping contracts, breached the

implied covenant of good faith and fair dealing, and committed mail and wire fraud

for purposes of the Racketeer Influenced and Corrupt Organizations Act (“RICO”),

18 U.S.C. §§ 1961 et seq.

      The district court determined that, with respect to plaintiffs’ state-law

claims, California law governs the claims brought by plaintiffs Pocino Foods

Company and Designer Imports International, Inc.; Colorado law governs the

claims brought by plaintiff Arapahoe Hyundai, LLC; and Georgia law governs the



      **
              The Honorable Janet Bond Arterton, United States District Judge for
the District of Connecticut, sitting by designation.
                                          2
claims brought by plaintiff Owens Financial Group, Inc. The district court then

granted UPS’s motion to dismiss, and plaintiffs appeal. Reviewing de novo, see

Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012), we

affirm.

      1.     The district court correctly dismissed plaintiffs’ claims that UPS

breached the shipping contracts by transporting their “Air” packages by truck

instead of airplane. These claims rest on the premise that the word “Air” in UPS’s

trademarked service names was a contractual promise by UPS to use airplane

transportation.

      But “clear and explicit” contractual language “governs,” State v. Cont’l Ins.

Co., 281 P.3d 1000, 1004 (Cal. 2012) (citation omitted); accord Pinnacol

Assurance v. Hoff, 375 P.3d 1214, 1222 (Colo. 2016); First Data POS, Inc. v.

Willis, 546 S.E.2d 781, 784 (Ga. 2001), and in this case the governing contracts

clearly and explicitly permitted UPS to transport plaintiffs’ “Air” packages by

truck. From 1995 until 2001, the contracts provided that “[s]ome air shipments

may be shipped by surface transportation.” In 2000 and 2001, the contracts also

provided that “UPS will determine, in its sole discretion, the mode(s) of

transportation for packages shipped via [Next Day and 2nd Day] Services” and that

those packages “may be shipped by air or surface transportation, or both, at UPS’s


                                          3
sole discretion.” And from 2002 to the present, the contracts provided that “UPS

reserves the right in its sole discretion to use any mode of transportation

whatsoever to provide the services selected by the shipper.”

      Plaintiffs try to inject ambiguity into these clear contract provisions based on

the word “Air” in UPS’s service names, asserting that “Air” services “plainly

referred to ‘air transport.’” This interpretation conflates UPS’s “services” with

modes of “transportation” despite the above-quoted contract provisions

distinguishing these two concepts. Plaintiffs cannot override the clear contract

terms by relying on their “subjective understanding” of the single word “Air,”

isolated from its context as part of a service name. FDIC v. Fisher, 292 P.3d 934,

937–38 (Colo. 2013); accord Cont’l Ins., 281 P.3d at 1004; First Data, 546 S.E.2d

at 784.

      Because we conclude that these breach-of-contract claims fail on the merits,

we need not reach the district court’s alternative conclusion that some of the claims

are barred by the applicable statutes of limitations.

      2.     The district court correctly dismissed plaintiffs’ claims that UPS

breached the shipping contracts by imposing on their truck-transported “Air”

packages a fuel surcharge derived from indexed prices of jet fuel instead of diesel

fuel. Plaintiffs’ interpretation finds no support in the shipping contracts, which


                                           4
expressly authorized UPS to apply a “fuel surcharge” to “such services and for

such periods as UPS, in its sole discretion, may determine necessary.” The

contracts do not in any way limit UPS’s “sole discretion” to use only certain fuel

indexes, and the contracts plainly link the fuel surcharges to UPS’s service levels,

not to particular modes of transportation. Indeed, the fuel-surcharge contract

provisions also directed plaintiffs to UPS’s website, which disclosed the fuel

surcharges applicable to UPS’s various “services” and explained that the fuel

surcharge applicable to “Air” services was based on a jet-fuel price index.

Although plaintiffs suggest that UPS’s website is too “massive” to find this

disclosure, that suggestion flatly contradicts the allegation in plaintiffs’ complaint

that “shippers who search for information about the UPS fuel surcharge on the

UPS website are ‘sent’ to this disclosure.”

      3.     The district court correctly dismissed plaintiffs’ claims for breach of

the implied covenant of good faith and fair dealing. These claims rest on UPS’s

decision to transport plaintiffs’ “Air” packages by truck and to then charge “Air”

prices and a fuel surcharge based on indexed jet-fuel prices.

      Although the implied covenant requires a party holding “discretionary

power” under a contract to exercise that discretion according to the “reasonable

expectations of the parties,” the implied covenant cannot “vary express terms” of


                                           5
the contract. Carma Developers (Cal.), Inc. v. Marathon Dev. Cal., Inc., 826 P.2d

710, 727–28 (Cal. 1992); accord Amoco Oil Co. v. Ervin, 908 P.2d 493, 498 (Colo.

1996); Automatic Sprinkler Corp. of Am. v. Anderson, 257 S.E.2d 283, 284 (Ga.

1979). Here, the shipping contracts expressly gave UPS the “discretion to use any

mode of transportation whatsoever” in transporting plaintiffs’ packages, and the

implied covenant does not override that express language. Moreover, plaintiffs

have not plausibly alleged that UPS had discretion over pricing, and the shipping

contracts plainly link shipping prices to service levels, not to modes of

transportation.

      Because we conclude that plaintiffs’ implied-covenant claims fail on the

merits, we need not reach the district court’s alternative conclusion that they are

preempted by the Federal Aviation Administration Authorization Act of 1994, 49

U.S.C. § 14501(c)(1), and Northwest, Inc. v. Ginsberg, 572 U.S. 273, 285–88

(2014).

      4.     The district court correctly dismissed Arapahoe’s RICO claims, which

are predicated on allegations of mail and wire fraud, 18 U.S.C. §§ 1341, 1343,

because Arapahoe has failed to adequately allege “a scheme to defraud,” Eclectic

Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014). A

“scheme to defraud” is a “scheme to deprive another of money or property by


                                           6
means of false or fraudulent pretenses, representations, or promises,” United States

v. Brugnara, 856 F.3d 1198, 1207 (9th Cir.), cert. denied, 138 S. Ct. 409 (2017)

(citation omitted), which can come in the form of “affirmative, material

misrepresentation[s],” United States v. Benny, 786 F.2d 1410, 1418 (9th Cir.

1986), or “deceitful statements of half truths or the concealment of material facts,”

United States v. Woods, 335 F.3d 993, 998 (9th Cir. 2003) (citation omitted).

      Arapahoe asserts that UPS affirmatively misrepresented that it would

transport Arapahoe’s “Air” packages by airplane and charge a diesel fuel

surcharge. This claim is premised entirely on UPS’s use of the word “Air” in the

service name, and it fails for the same reasons as the breach-of-contract

claims—the word “Air” was not an affirmative representation that UPS would use

a particular mode of transportation or impose a particular fuel surcharge.

      Arapahoe also contends that UPS’s use of the word “Air” in the service

name constituted a misleading “half-truth” because it led customers to believe “that

they would receive something beyond Ground service in return for purchasing

premium Air service, while concealing that they would receive nothing additional.”

This argument once again conflates UPS’s service levels with modes of

transportation; the fact that Arapahoe’s “Next Day Air” packages were transported

by truck does not mean that Arapahoe received “Ground” service.


                                          7
AFFIRMED.




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