Sigall v. Zipcar, Inc. , 582 F. App'x 18 ( 2014 )

14-899-cv
Sigall v. Zipcar, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007,
is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing
a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic
database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
31st day of October, two thousand fourteen.
PRESENT:
ROBERT D. SACK,
DEBRA ANN LIVINGSTON,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_______________________________________________
MICHAEL SIGALL, on behalf of plaintiffs and the class
members described herein, JESSICA SIGALL, on behalf of
plaintiffs and the class members described herein,
Plaintiffs-Appellants,
- v. - No. 14-899-cv
ZIPCAR, INC., ZIPCAR NEW YORK, INC.,
Defendants-Appellees.
_______________________________________________
LAWRENCE KATZ (Daniel A. Edelman and Cathleen M.
Combs, on the brief), Edelman, Combs, Latturner &
Goodwin, LLC, for Plaintiffs-Appellants.
DENNIS R. LAFIURA (Paul J. Halasz and Elizabeth J. Sher, on
the brief), Day Pitney LLP, Parsippany, NJ, for Defendants-
Appellees.
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UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED
that the judgment of the district court is AFFIRMED.
Plaintiffs-Appellants Jessica and Michael Sigall, on behalf of themselves and others similarly
situated (“Appellants”), filed a complaint on July 1, 2013 in the Southern District of New York
against Defendants-Appellees Zipcar, Inc. and Zipcar New York, Inc. (“Appellees”). On February
24, 2014, the district court (Oetken, J.) granted Appellees’ motion to dismiss the complaint. We
review the district court’s grant of a motion to dismiss de novo. Fahs Constr. Grp., Inc. v. Gray, 725
F.3d 289, 290 (2d Cir. 2013) (per curiam). We assume the parties’ familiarity with the underlying
facts and procedural history of the case, and with the issues on appeal.
Appellants’ complaint asserted three claims against Appellees.1 Each claim relates to
Appellees’ alleged violation of New York General Business Law (“GBL”) § 396-z, which regulates
rental car companies. In Count I of the complaint, Appellants sought, inter alia, a declaratory
judgment that certain vehicle damage charges debited by Appellees are void pursuant to GBL § 396-
z, along with injunctive relief barring the collection of such charges in the future, and damages equal
to all amounts obtained by Appellees for such charges. Count II of the complaint alleges that
Appellees engaged in deceptive acts and practices in violation of GBL § 349 by representing to
consumers that they are liable for such damages even though GBL § 396-z provides that they are
not liable for such damages, by representing to credit card issuers that charges related to such
damages were authorized, and by selling waivers to waive such damage charges even though the
charges are not valid. Count III of the complaint alleges that Appellees committed common law
fraud.
1
A fourth claim, which alleged a violation of the Truth in Lending Act, applied only to a
different defendant not subject to this appeal, Citibank, N.A. Appellants voluntarily dismissed their
claims against Citibank, N.A. on January 30, 2014.
2
Appellants have failed to state a claim because GBL § 396-z does not provide a private right
of action, and each of Appellants’ claims relies solely on the fact that Appellees allegedly violated
GBL § 396-z.2 Appellants’ claim for declaratory and injunctive relief is squarely barred by the
decisions of the New York Appellate Division, First Department, in Han v. Hertz Corp., 784
N.Y.S.2d 106 (App. Div. 2004), and Goldberg v. Enterprise Rent-A-Car Co., 789 N.Y.S.2d 114
(App. Div. 2005), abrogated on other grounds by Rhodes v. Herz, 920 N.Y.S.2d 11 (App. Div.
2011). In Han, plaintiffs sought a declaration that defendants’ rental car contracts were void for
failure to abide by the requirements of GBL § 396-z and restitution for monies paid under those
contracts. 784 N.Y.S.2d at 107. There, the Appellate Division held that plaintiffs’ claims were
barred because GBL § 396-z does not provide for a private right of action. Id. The court stated that
“[s]ince no private right of action exists [under GBL § 396-z], the claims for money had and
received and unjust enrichment were properly dismissed as an effort to circumvent the legislative
preclusion of private lawsuits.” Id. Goldberg similarly involved quasi-contractual claims for
restitution which were dismissed “as an effort to circumvent the legislative preclusion of private
lawsuits for violation of [GBL § 396-z].” 789 N.Y.S.2d at 115.
Appellants now attempt to distinguish Han and Goldberg on the basis that in those cases
plaintiffs sought to void entire rental contracts, whereas Appellants seek only to invalidate the
portions of Zipcar’s membership contract that violate GBL § 396-z. Appellants argue that the
plaintiffs in Han and Goldberg needed a separate private right of action beyond the declaratory relief
2
In addition to arguing that the judgment of the district court should be affirmed because
Appellants failed to state a claim, Appellees alternatively argue that the judgment should be affirmed
on the ground that GBL § 396-z does not apply to them. We need not reach this alternative
argument. Appellees have filed a motion to file a sur-reply brief pertaining to it, which we dismiss
as moot.
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that they sought because, unlike Appellants, those plaintiffs would not have been entitled to
restitution if only the provisions of their rental agreements that violated GBL § 396-z were declared
to be void. Appellants’ argument ignores the explicit holdings of Han and Goldberg. Han and
Goldberg held that plaintiffs’ claims were barred not because declaratory relief would be insufficient
to permit them to obtain restitution or because GBL § 396-z did not provide them a basis for voiding
plaintiffs’ rental agreements, but rather because plaintiffs’ claims relied solely on a violation of GBL
§ 396-z, which does not provide for a private right of action. Han, 784 N.Y.S.2d at 107; Goldberg,
789 N.Y.S.2d at 115. “As a federal court applying state law,” we are obliged to follow Han and
Goldberg because there is no “contrary New York authority” and no “other persuasive data
establish[es] that the highest court of the state would decide otherwise.” Broder v. Cablevision Sys.
Corp., 418 F.3d 187, 199-200 (2d Cir. 2005) (internal quotation marks omitted).
Appellants’ claims alleging violations of GBL § 349 and common law fraud are barred
because they merely repackage Appellants’ GBL § 396-z claim. The Court of Appeals of New York
held in Schlessinger v. Valspar Corp., 991 N.E.2d 190, 193-94 (N.Y. 2013), that a plaintiff could
not allege a violation of GBL § 349 where the alleged violation was premised solely on the fact that
the alleged conduct violated another statute for which the plaintiff did not have a private right of
action. This holding bars Appellants’ claim under GBL § 349 because Appellants also have not
alleged facts that if found to be true would demonstrate a free-standing GBL § 349 violation.3
Appellants’ claim for common law fraud is also barred because it likewise cannot stand on its own
3
Appellants now attempt to argue that they have a free-standing claim under GBL § 349
because Zipcar’s membership contract does not clearly provide Appellees with authorization to debit
Zipcar members’ credit cards for damage fees. This argument is belied, however, by the language
of the membership contract, which is attached as an exhibit to Appellants’ complaint and clearly
authorizes Zipcar to debit such charges.
4
absent the alleged violations of GBL § 396-z. See Assured Guar. (U.K.) Ltd. v. J.P. Morgan Inv.
Mgmt. Inc., 962 N.E.2d 765, 770 (N.Y. 2011).
We have reviewed Appellants’ remaining arguments and find them to be without merit. For
the foregoing reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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