               Case: 12-10257       Date Filed: 02/28/2013      Page: 1 of 10

                                                                    [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT

                                      _____________

                                       No. 12-10257
                                      _____________

                     D. C. Docket No. 8:09-cv-00445-VMC-TBM

BRITT GREEN TRUCKING, INC.,
a.k.a. Brett Green,
LANNY D. WHITSON,
individually and on behalf of all
others similarly situated,
a.k.a. Lanny Whitson,
                                                                 Plaintiffs-Appellants,

                                           versus

FEDEX NATIONAL LTL, INC.,

                                                                 Defendant-Appellee.

                                     ______________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                                   ______________

                                    (February 28, 2013)

Before DUBINA, Chief Judge, MARTIN and ALARCÓN, * Circuit Judges.

       *
       Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit Court of
Appeals, sitting by designation.
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PER CURIAM:


      Appellants Britt Green Trucking, Inc. and Lanny D. Whitson (“Appellants”)

appeal the district court’s denial of their motion for partial summary judgment as to

their breach of contract claim. They also appeal the district court’s grant of

Appellee FedEx National LTL, Inc.’s (“FedEx”) motion for summary judgment as

to the same breach of contract claim and Appellants’ remaining claims for breach

of the implied duty of good faith and fair dealing and violation of Florida’s

Deceptive and Unfair Trade Practices Act (“FDUTPA”), FLA. STAT. § 501.201 et

seq. Finally, Appellants appeal the district court’s denial of their motion for class

certification. After reviewing the record, reading the parties’ briefs, and having the

benefit of oral argument, we reverse the judgment of the district court.

                                          I.

      In August 2006, FedEx acquired Watkins Motor Lines (“Watkins”), an

interstate motor carrier based in Lakeland, Florida, which had employed

individuals and trucking companies as independent contractors (“ICs”). Each IC

had entered into an Equipment Lease and Operating Contract (“ELOC”) with

Watkins which set forth terms for the provision of shipping services. In September

2006, FedEx re-executed one-year, automatically renewing ELOCs with

Appellants. The ELOC, drafted by FedEx, described both the manner in which
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FedEx would lease, on an as-needed basis, transportation equipment from

Appellants and the manner in which Appellants would provide transportation

services. The ELOC provided as follows:

      [FedEx] desires to lease, on an as-needed basis, transportation
      equipment it does not own from [IC] and desires that [IC] provide
      transportation services, as needed, for the transportation of certain
      commodities provided by [FedEx] or its customers; and [IC] desires to
      contract with [FedEx] to transport such commodities;

      NOW, THEREFORE, in consideration of the mutual covenants and
      agreements contained herein, the Parties agree as follows:

      ***

[R. 85-1 at 1.] The ELOC continued:

      [FedEx] agrees to make commodities available to [IC] for shipment,
      from time to time, although this shall not be construed as an
      agreement by [FedEx] to furnish any specific number or types of
      loads or units, pounds, gallons or any other measurements of weight
      or volume, quantity, kind or amount of freight, for transport by [IC] at
      any particular time or place.

      . . . . As an independent contractor, [IC] is free to accept or reject
      assignments from [FedEx].

[Id. ¶¶ 2–3.] Among other things, the ELOC required Appellants to pay into an

escrow fund controlled by FedEx, wear FedEx uniforms, maintain their trucks with

FedEx signs and permits, and provide written notice to FedEx before performing

transportation services for other carriers. The ELOC allowed either party to

terminate “at any time, without cause, by giving written notice [to] the other Party
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at least thirty (30) days prior to the effective termination date.” [Id. ¶ 15(a).] All

written notices under the ELOC had to be delivered in person, mailed by certified

mail, or sent by FedEx Express Service to FedEx’s Orlando address. [Id. ¶ 15(c).]

      In February 2007, FedEx withdrew all work from Appellants without any

written notice. Appellants filed a class action complaint in November 2008

alleging breach of contract (Count I), breach of the duty of good faith and fair

dealing (Count II), and violation of FDUTPA (Count III). Thereafter, they filed a

motion for class certification, seeking to serve as class representatives for all

persons and entities throughout the United States operating as ICs who contracted

to carry freight for FedEx and whose ELOCs were terminated by FedEx without 30

days’ written notice. The district court denied Appellants’ motion for class

certification, finding that they failed to meet the typicality requirement of Federal

Rule of Civil Procedure 23(a)(3) and the common “questions of law or fact”

requirement of Rule 23(b)(3).

      Appellants moved for partial summary judgment on their breach of contract

claim, and FedEx moved for summary judgment on all claims. Relying on

paragraphs 2 and 3 of the ELOC, quoted supra, the district court found the parties’

promises illusory and the ELOC unenforceable. Based on that finding alone, the

district court denied Appellants’ partial motion for summary judgment and granted

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FedEx’s motion for summary judgment as to all claims. Appellants then perfected

this appeal.

                                          II.

      We review the district court’s rulings on the parties’ cross motions for

summary judgment de novo. Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th

Cir. 2011). “[S]ummary judgment is proper if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,

322, 106 S. Ct. 2548, 2552 (1986) (internal quotation marks omitted). The parties

agree that Florida contract law governs this dispute.

      We review the district court’s order on class certification for abuse of

discretion. Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d 1330, 1337

(11th Cir. 2006). “[A]n abuse of discretion occurs if the judge fails to apply the

proper legal standard or to follow proper procedures in making the determination,

or makes findings of fact that are clearly erroneous.” Id.

                                         III.

                                          A.




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      “A contract is made under Florida law when three elements are present:

offer, acceptance, and consideration.” SCG Harbourwood, LLC v. Hanyan, 93

So. 3d 1197, 1200 (Fla. Dist. Ct. App. 2012). “A promise, no matter how slight,

qualifies as consideration if the promisor agrees to do something that he or she is

not already obligated to do.” Palm Lake Partners II, LLC v. C & C Powerline,

Inc., 38 So. 3d 844, 851 n.10 (Fla. Dist. Ct. App. 2010) (internal quotation marks

omitted). “The consideration required to support a contract need not be money or

anything having monetary value, but may consist of either a benefit to the promisor

or a detriment to the promisee.” Lake Sarasota, Inc. v. Pan Am. Sur. Co., 140 So.

2d 139, 142 (Fla. Dist. Ct. App. 1962). Florida adheres to the rule of contract

construction that a contract’s provisions are construed against the drafter (here,

FedEx). See Seifert v. U.S. Home Corp., 750 So. 2d 633, 641 (Fla. 1999).

      The district court concluded that the parties’ “mutual illusory promises do

not bind either [FedEx or Appellants] to do anything, which is insufficient

consideration to create an enforceable contract.” [R. 98 at 10.] We disagree. The

ELOC contains promises made by both parties which serve as sufficient

consideration under Florida law. See Palm Lake Partners II, LLC, 38 So. 3d at 851

n.10. Moreover, the ELOC contains a provision which purports to allow “the

mutual covenants and agreements contained” in the ELOC to serve as

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consideration. [R. 85-1 at 1 (emphasis added).] Construing the ELOC provisions

against FedEx as the drafter, we conclude that the parties’ promises contained

therein create benefits and/or detriments for both parties and qualify as sufficient

consideration under Florida law, making the ELOC an enforceable contract.

Because the district court erred in finding the parties’ promises illusory, we reverse

its grant of summary judgment to FedEx and denial of summary judgment to

Appellants on their breach of contract claim. On remand, the district court should

reconsider Appellants’ claim in light of our holding above.

                                          B.

      Because the district court relied on its erroneous conclusion that the ELOC

was unenforceable when granting FedEx’s motion for summary judgment on

Appellants’ remaining claims—breach of the implied duty of good faith and fair

dealing and violation of FDUTPA—we reverse those findings as well. On remand,

the district court should reanalyze Appellants’ claims in light of our holding that

the ELOC is an enforceable contract.

                                         IV.

      In order to obtain class certification, Appellants must satisfy all requirements

set forth in Federal Rule of Civil Procedure 23(a) and at least one standard

described in Rule 23(b). Turner v. Beneficial Corp., 242 F.3d 1023, 1025 (11th

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Cir. 2001). In its order denying class certification, the district court found that

Appellants did not meet the requirements of either subsection, based in part on the

existence and content of oral communications between FedEx representatives and

the ICs in February 2007. Under its Rule 23(a)(3) typicality analysis, the court

found that the claims of Appellant Green, who was informed orally by FedEx that

“his Contract was not being terminated, but that he would not be receiving any

loads, at least in the short term” and who thereafter turned in his FedEx materials,

would not necessarily be typical of the class because his injury may be different

“from those class members who . . . never initiated any actions to ‘terminate’ the

Contract.” [R. 60 at 9.] Similarly, under its Rule 23(b)(3) common “questions of

law or fact” analysis, the district court stated “The record evidence establishes that

members of the proposed class were notified orally that there would be no more

loads,” and “It is foreseeable that in determining whether FedEx’s conduct

constitutes breach of the Contract, each Contractor’s conduct in terms of ending

their relationship with FedEx would have to be examined.” [Id. at 11.]

      In other words, the district court based its decision to deny class certification

on oral communications between FedEx and the various ICs. Since the ELOCs

clearly called for written notice to terminate, however, oral communications may

not be material to the breach of contract issue according to Florida law. See Fid. &

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Deposit Co. of Md. v. First State Ins. Co., 677 So. 2d 266, 269 (Fla. 1996) (noting,

in an insurance contract context, that a court “should not read oral cancellation

privileges where none exist”). Further, while the parties are free to modify the

written notice provision of the ELOC by subsequent oral agreement, WSOS-FM,

Inc. v. Hadden, 951 So. 2d 61, 63–64 (Fla. Dist. Ct. App. 2007), such a

modification “must be supported by new consideration as well as the consent of

both parties,” and the “party who alleges a contract has been modified has the

burden of proving it,” Newkirk Construction Corp. v. Gulf County, 366 So. 2d 813,

815 (Fla. Dist. Ct. App. 1979). FedEx has not shown that the ICs consented to a

modification of the 30-day written termination notice, such that oral termination

without advanced notice would suffice, nor that such a modification was supported

by consideration. Because the district court based its denial of class certification

on the parties’ oral communications without analyzing whether those oral

communications were indeed material to the issue of breach of contract under

Florida law, we conclude that the district court abused its discretion. Accordingly,

we reverse the district court’s denial of class certification and remand with

instructions to reconsider Appellants’ motion in light of Florida law and this

opinion.

                                          V.

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      For the foregoing reasons, the grant of summary judgment in favor of FedEx

and the order denying class certification are reversed and this case is remanded for

further proceedings consistent with this opinion.

      REVERSED and REMANDED.




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