                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 12-2048

                               NAOMI REED,

                        Plaintiff, Appellant,

                                     v.

                              ZIPCAR, INC.,

                         Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                                  Before

                      Thompson, Circuit Judge,
                    Souter,* Associate Justice,
                     and Stahl, Circuit Judge.


     Frank John Jablonski, with whom Progressive Law Group, LLC,
Eugene R. Richard and Wayne, Richard & Hurwitz, LLP were on brief,
for appellant.
     Matthew Rawlinson, with whom Michael E. Bern, Christopher J.
Cunio, Patrick E. Gibbs, Nicholas D. Stellakis, Cooley Manion Jones
LLP, and Latham & Watkins LLP, were on brief, for appellee.


                              July 17, 2013




     *
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
             SOUTER,   Associate   Justice.     Naomi    Reed   appeals   the

district court’s dismissal of her complaint against Zipcar, Inc.,

claiming that certain fees charged by the corporation are unlawful.

We affirm.

                                     I

             Zipcar, Inc. operates a car-sharing service in major

cities. Its customers become “members” by paying an annual fee and

signing a membership agreement, after which they may reserve cars

by the hour for a fee proportional to the period agreed upon.                  A

critical term of the reservation contract obligates the customer to

return the rented car to its origin by the end of the specified

period to ensure that the next customer with a reservation is not

delayed.    As a condition of membership, Zipcar customers agree to

pay a $50 hourly late fee if they return a car late.

             Reed is a Zipcar member, who has twice paid a $50 fee for

returning a car within one hour after the reservation time expired.

She filed a putative class action on diversity grounds in the

district court contending that Zipcar’s late fees violate governing

Massachusetts law because they are “unfair and disproportionate

relative to the costs of late returns, and further, do not reflect

reasonable forecasts of damages due to late returns.”               J.A. 19.

She alleged that Zipcar’s fees exceed those of four comparable

firms, which charged late fees of $25 or less.                Based on these

purported    benchmarks,   Reed    argued   Zipcar’s    fee   was   unlawful,


                                    -2-
subject to claims for unjust enrichment, and for money had and

received,   and   was   a   violation   of   the   Massachusetts   Consumer

Protection Act, Mass. Gen. Laws ch. 93A; she sought restitution and

a declaration that Zipcar had acted unlawfully.

            After argument, the district court granted Zipcar’s

motion to dismiss the complaint for failure to state a claim.

First, the court concluded that Reed had failed to state an

“unlawful penalty” claim under Massachusetts law, because a party

may argue that a liquidated damages provision provides for an

unlawful penalty only as a defense to enforcement; it refused “to

endorse a claim for relief heretofore unrecognized by Massachusetts

courts, especially in light of the present consensus against its

recognition as an independent cause of action.”            J.A. 206.   The

court noted in any event that such a claim would have been

precluded by the voluntary payment doctrine.            Second, the court

dismissed Reed’s equitable claims because under Massachusetts law

they would arise only when there is no express contract between the

parties governing the subject; they were also barred because of the

existence of an adequate remedy at law.

            Finally, the district court rejected Reed’s Chapter 93A

count because she had failed to plead sufficient facts to make out

a plausible claim for relief.       Her statutory complaint comprised

two theories: that Zipcar’s late fees were grossly disproportionate

to the damages caused by tardy returns and that the late fees were



                                    -3-
procedurally unconscionable.         On the former, the district court

found that “[e]stimating the damages resulting from late returns

. . . cannot be done with precision, much less easily,” J.A. 212,

and that Reed had failed to offer any reasonable approximation of

the harm that Zipcar could expect from breach. The fact that other

companies charged lower fees did not support a plausible inference

that Zipcar’s fees were grossly disproportionate, owing to the

variety of reasons that could support a variance in fees, and in

any event, “it would be a stretch to characterize Zipcar’s only

slightly higher late fees as ‘grossly disproportionate.’”            J.A.

212.   On the latter Chapter 93A theory, the court found that Reed

had failed to allege that Zipcar’s late fee was concealed or that

she was misled.

              Reed timely appealed, and this court has jurisdiction

under 28 U.S.C. § 1291.

                                      II

              We review a dismissal under Rule 12(b)(6) de novo,

Freeman v. Town of Hudson, 714 F.3d 29, 35 (1st Cir. 2013),

accepting here “all factual allegations in [Reed’s] complaint as

true” and asking whether she has set forth allegations sufficient

to warrant relief as a matter of law, Tellabs, Inc. v. Makor Issues

&   Rights,    Ltd.,   551   U.S.   308,   322   (2007).   The   “combined

allegations . . . must state a plausible, not a merely conceivable,

case for relief.”      Sepulveda-Villarini v. Dep’t. of Educ. of P.R.,



                                     -4-
628 F.3d 25, 29 (1st Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S.

662,   678-79    (2009)).   A   claim    is    plausible   if   its   factual

allegations taken as true “allow[] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678.     While “[t]he plausibility standard is not

akin to a ‘probability requirement,’” it demands “more than a sheer

possibility that a defendant has acted unlawfully.”             Id. (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).            Unless the

allegations push a claim “across the line from conceivable to

plausible,” dismissal is proper. Twombly, 550 U.S. at 570.

                                    A

           Reed says that the district court errantly rejected her

two theories of relief under Chapter 93A.            Massachusetts General

Laws   Chapter    93A   makes   unlawful      any   “[u]nfair   methods    of

competition and unfair or deceptive acts or practices in the

conduct of any trade or commerce.”            We have previously observed

that “[t]he statute does not define ‘unfair’ and ‘deceptive,’” but

the Supreme Judicial Court (SJC) has held “[a] practice [to be]

unfair if it is within the penumbra of some common-law, statutory,

or other established concept of unfairness; is immoral, unethical,

oppressive, or unscrupulous; and causes substantial injury to other

businessmen.”     Kenda Corp. v. Pot O’Gold Money Leagues, Inc., 329

F.3d 216, 234 (1st Cir. 2003) (quoting Linkage Corp. v. Trustees of

Boston Univ., 679 N.E.2d 191, 209 (Mass. 1997)) (second alteration



                                   -5-
in original) (internal quotation marks omitted).      “Chapter 93A

liability is decided case-by-case, and Massachusetts courts have

consistently emphasized the ‘fact-specific nature of the inquiry.’”

Arthur D. Little, Inc. v. Dooyang Corp., 147 F.3d 47, 55 (1st Cir.

1998) (quoting Linkage Corp., 679 N.E.2d at 209).   “Massachusetts

leaves the determination of what constitutes an unfair trade

practice to the finder of fact, subject to the court’s performance

of a legal gate-keeping function.”    Mass. Eye & Ear Infirmary v.

QLT Phototherapeutics, Inc., 552 F.3d 47, 69 (1st Cir. 2009)

(citing Milliken & Co. v. Duro Textiles, LLC, 887 N.E.2d 244, 259

(Mass. 2008)).

            Reed insists that she stated a plausible Chapter 93A

claim by alleging facts sufficient to show that Zipcar’s late fee

is an unlawful penalty.   She argues that she showed that the fee

does not approximate damages anticipated at the time of contract

formation, and that she demonstrated that Zipcar’s late fees are

about twice as high, or more, as those of other companies in the

industry.   We assume without deciding that a litigant could bring

a Chapter 93A claim by carrying the burden Reed says she has




                                -6-
satisfied.1   But even assuming the adequacy of such a claim, Reed’s

complaint falls short of sufficient facts to state one plausibly.

           First, Reed did not plausibly allege that damages were

easy to ascertain at the time of contract formation; her complaint

is essentially silent on the issue. Although it contains a variety

of conclusory statements about Zipcar’s capacity to monitor its

fleet, the fact that it clusters cars close together, and that

Zipcar has in place “protocols” “to systematically impose” the late

fees, none of these supports a fair inference that the parties

could have anticipated with ease the magnitude of likely damages

from breach.     See   Appellant’s Br. 35 n.14.     As a point of

comparison, the SJC has found damages “difficult to ascertain” at

the time of formation in a case where the value of the item at

issue “would vary depending on the demand . . . at the time of

breach.”   Minihane, 886 N.E.2d at 674.    Here, Reed has failed to

allege that the cost of breach would not be similarly variable,



     1
      Her proffered showing may well fall within the “penumbra” of
the standard under Massachusetts law for raising an affirmative
defense to enforcement of a liquidated damages provision.
Massachusetts courts will reject such a defense and enforce the
provision so long as two criteria are met: first, “damages flowing
from a breach [must have been] difficult to ascertain” at the time
of contracting; and second, “the sum agreed on as liquidated
damages [must] represent[] a ‘reasonable forecast of damages
expected to occur in the event of a breach.’”         NPS, LLC v.
Minihane, 886 N.E.2d 670, 673 (Mass. 2008) (quoting Cummings
Props., LLC v. Nat’l Commc’ns Corp., 869 N.E.2d 617, 620 (Mass.
2007). Reed disavows that she raised this claim outside of Chapter
93A. See Appellant’s Br. 18 (“Reed did not assert a stand-alone
unlawful penalty claim.”).

                                 -7-
rendering damages “extremely difficult, if not impossible” to

anticipate at the time of formation.   Id.

          Indeed, her complaint works against her, being replete

with self-defeating allegations that could support the inference

that damages would have been difficult to predict at the time of

formation.   She acknowledges that the cost to Zipcar of a late

return will fluctuate depending on when the car is ultimately

returned, whether another customer with an immediately subsequent

reservation is waiting, and whether alternative accommodations for

the unlucky customer would have been ready to hand.   The district

court was entirely justified in concluding that the pleadings

indicate that “[e]stimating damages resulting from late returns

. . . cannot be done with precision, much less easily.”   J.A. 212.

          Second, Reed failed to allege facts that could support an

inference that the late fee was on the upside of a reasonable

forecast of Zipcar’s damages in the event of breach, under the

standard that liquidated damages will pass muster where the “sum is

not grossly disproportionate to the expected damages arising from

a breach of the . . . agreement, nor is it ‘unconscionably

excessive’ so as to be defeated as a matter of public policy.”

Kelly v. Marx, 705 N.E.2d 1114, 1117 (Mass. 1999) (quoting A-Z

Servicenter, Inc. v. Segall, 138 N.E.2d 266, 268 (Mass. 1956)).

Simply put, Reed’s complaint contains no allegations as to what a

reasonable estimate of damages would be. This is sufficient to



                               -8-
defeat this claim because, as the district court explained, Reed

cannot       adequately       plead   “that      the     late    fee    is    ‘grossly

disproportionate’ to the expected harm caused by late returns

without coming up with a reasonable approximation of that harm.”

J.A. 212.

                 What Reed has pleaded are a series of fees charged by

competitors that are lower than the fee charged by Zipcar, but this

alone       is   not    enough,   because    Reed      has   failed    to    put   forth

sufficient facts to support an inference that the cited charges

reasonably approximate the cost of breach.                   For one thing, we note

that the question for the district court was whether Zipcar’s fee

was   grossly          disproportionate     as   properly       estimated    when    the

contract was made, but two of the four competitors cited by Reed

did not exist in 2006 when Reed became a Zipcar member.                       The fees

imposed by the remaining two are offered in a vacuum, devoid of

facts that would support an inference that their fees exemplified

a persuasive industry standard or reflected the actual costs faced

by a firm like Zipcar.            The need for some such factual allegation

follows from the commonly understood fact that there are myriad

reasons that firms (particularly, new market entrants) might offer

rates lower than the dominant market participant, and Reed has

alleged nothing to support a plausible inference that these fees

reflected their true costs of breach.2

        2
      Reed contests the district court’s use of the voluntary
payment doctrine as an alternative basis for its decision. We need

                                          -9-
                                       B

           Reed also excepts to the dismissal of her equitable

claims for unjust enrichment and for money had and received.             She

says that the district court erroneously established a “bright

line” rule that precludes equitable claims arising from contract,

Appellant’s Br. 44, and that, contrary to the district court’s

finding, she did not have an adequate remedy at law.          These claims

were properly dismissed for the reasons given by the district

court.    Under Massachusetts law, litigants may not “override an

express contract by arguing unjust enrichment,” Platten v. HG

Bermuda Exempted Ltd., 437 F.3d 118, 130 (1st Cir. 2006), and the

claim of money had and received is simply a narrower form of an

unjust enrichment, limited to wrongs arising from money changing

hands, see Jelmoli Holding, Inc. v. Raymond James Fin. Servs.,

Inc., 470 F.3d 14, 17 n. 2 (1st Cir. 2006).                  Thus, neither

equitable ground asserted by Reed can trump the plain terms of the

contract willingly entered by both parties.         Because Reed neither

alleges   that   the   contract   is   invalid   generally   or   that   its

provisions are unclear, Reed cannot escape its terms by resort to

equity.

                                       C

           Finally, Reed faults the district court for failing to

address her request for a declaration that Zipcar’s fees were



not pass on this additional ground for affirmance.

                                   -10-
illegal.   But Reed’s declaratory relief claim is premised upon the

validity of her inadequately pleaded substantive claims, and she

offers no other basis for issuing a declaration.   There was simply

nothing alleged for the district court to declare unlawful.   See,

e.g., Lozano v. AT&T Wireless Servs., Inc., 504 F.3d 718, 729 (9th

Cir. 2007) (rejecting a declaratory judgment claim as merely

“parasitic” of other claims rejected).

                                III

           The judgment of the district court is affirmed.

           It is so ordered.




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