Global Network Management, Ltd. v. CenturyLink Latin American Solutions, LLC

[ PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13719
____________________
GLOBAL NETWORK MANAGEMENT, LTD.,
Plaintiff-Appellant,
versus
CENTURYLINK LATIN AMERICAN SOLUTIONS, LLC,
a Florida Limited Liability Company
f.k.a. Level 3 Latin American Solutions, LLC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-20723-JB
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2 Opinion of the Court 21-13719
____________________
Before WILSON, J ORDAN, and BRASHER , Circuit Judges.
J ORDAN, Circuit Judge:
This diversity case arises out of the theft—possibly by a
group of third-party contractors—of 1,380 memory cards which be-
longed to Global Network Management, LTD., and were stored in
a data center operated by Centurylink Latin American Solutions,
LLC. Global Network sued Centurylink for implied bailment,
breach of contract implied in law, and breach of contract implied
in fact to hold Centurylink liable for the theft of the memory cards.
The district court dismissed all of the claims with prejudice, and
Global network now appeals.
Applying Florida law, and with the benefit of oral argument,
we affirm in part and reverse in part. The district court correctly
dismissed the contract implied in law and contract implied in fact
claims. But Global Network plausibly alleged that Centurylink
possessed the memory cards at the time of the theft, and as a result
the implied bailment claim survives at the Rule 12(b)(6) stage.1
I
We exercise plenary review of the dismissal of a complaint
for failure to state a claim.
See Dorfman v. Aronofsky, 36 F.4th
1306, 1311–12 (11th Cir. 2022). In conducting this review, we
1 As to all other issues raised by Global Network, we summarily affirm.
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21-13719 Opinion of the Court 3
accept the factual allegations in the complaint as true and construe
them in the light most favorable to the nonmoving party.
See id.
at 1310.
“To survive a motion to dismiss, a complaint must contain
sufficient 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) (internal quotation marks omitted). A claim is facially plau-
sible if the plaintiff “pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.”
Id. In other words, the factual allegations in
the complaint must “possess enough heft” to set forth “a plausible
entitlement to relief.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545
(2007) (internal quotation marks omitted).
The plausibility standard “is not akin to a ‘probability re-
quirement,’ but it asks for more than a sheer possibility that a de-
fendant has acted unlawfully.”
Iqbal, 556 U.S. at 678 (citation omit-
ted). The question, therefore, is whether a claim is “substantive[ly]
plausib[le].”
Johnson v. City of Shelby, 574 U.S. 10, 12 (2014).
II
The operative complaint alleges the following facts.
Centurylink operates a data center in Miami, Florida, that
houses Global Network’s servers. Those servers store and process
Global Network’s data.
From 2014 through 2018, the parties and some of their pre-
decessors and related entities signed a series of contracts for data
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4 Opinion of the Court 21-13719
storage and processing services: (1) in 2014, Telegram Messenger
LLP and Level 3 Communications GmbH (later acquired by Cen-
turylink) signed a master service agreement; (2) in 2015, Telegram
Messenger LLP and Level 3 signed a U.S. addendum agreement to
add provisions specific to services rendered in the United States; (3)
in 2017, Telegram Messenger LLP and Level 3 signed a letter agree-
ment which canceled the 2014 master service agreement and exe-
cuted a new one; and (4) in February of 2018, the parties signed (a)
a novation agreement substituting Global Network for Telegram
Messenger LLP in the 2017 master service agreement, and (b) a no-
vation agreement substituting Global Network for Telegram Mes-
senger LLP in the 2015 addendum. Each of these contracts was
attached to the complaint, and Global Network expressly alleged
that the parties were “bound” by them.
See D.E. 24 ¶ 14.
In a paragraph titled “Security,” the operative contract—the
master service agreement signed in 2017—requires that Centu-
rylink maintain “card readers, scanners [or] other access devices”
at its facility.
See D.E. 24-3 at 16. It also requires that Centurylink
provide a “locking mechanism” for the facility.
See id.
Global Network placed orders for two deliveries of 224 serv-
ers (each of which contained eight 128-megabyte memory cards).
The servers were delivered to Centurylink’s data center in Novem-
ber of 2017 and April of 2018. Global Network hired a Centurylink
employee named Diego Oubina to install the servers, and Mr. Ou-
bina in turn hired outside contractors to do the job. He let these
contractors into the data center to install the servers in November
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21-13719 Opinion of the Court 5
and again in April. After the April installation, Global Network dis-
covered that 1,380 memory cards were missing.
According to Global Network, Mr. Oubina circumvented all
the data center’s extensive security protocols when he let the con-
tractors inside. Those security protocols included the use of key
access cards, metal detectors, cameras, and elevator key pads.
The sixth floor of the data center, where Global Network’s
servers are stored, is protected by doors made of break-resistant
glass and security cameras. Visitors to the data center—including
the owners of the servers stored there—are required to obtain a
ticket to enter, and are escorted by security guards to their destina-
tion and back to the entrance when they leave. But on the days the
contractors came to install Global Network’s servers, Mr. Oubina
allowed them to bypass these security measures—they did not ob-
tain tickets to enter and they were not escorted to the sixth floor
and back out to the lobby.
III
Global Network asserted a claim for breach of contract im-
plied in law. The district court properly dismissed this claim with
prejudice.
Florida courts use the term “contract implied in law” inter-
changeably with “unjust enrichment” and “quasi contract.”
See
14th & Heinberg, LLC v. Terhaar and Cronley Gen. Contractors,
Inc., 43 So. 3d 877, 880 (Fla. 1st DCA 2010) (“an implied-in-law
‘quasi-contract’ . . . is also referred to by some courts as unjust
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6 Opinion of the Court 21-13719
enrichment”) (internal citation omitted). In Florida, a contract im-
plied in law exists where “the parties . . . have never by word or
deed indicated in any way that there was any agreement between
them.”
Tooltrend, Inc. v. CMT Utensili, SRL, 198 F.3d 802, 805
(11th Cir. 1999) (citing
Com. P’ship 8098 Ltd. P’ship v. Equity Con-
tracting Co., 695 So. 2d 383, 386 (Fla. 4th DCA 1997) (en banc)).
The law will “create” this sort of implied agreement where “it is
deemed unjust for one party to have received a benefit without
having to pay compensation for it.”
Id.
The elements of a cause of action for a contract implied in
law are that “(1) the plaintiff has conferred a benefit on the defend-
ant; (2) the defendant has knowledge of the benefit; (3) the defend-
ant has accepted or retained the benefit conferred[;] and (4) the cir-
cumstances are such that it would be inequitable for the defendant
to retain the benefit without paying fair value.”
Com. P’ship, 695
So. 2d at 386. The legal fiction of a contract implied in law “was
adopted to provide a remedy where one party was unjustly en-
riched, where that party received a benefit under circumstances
that made it unjust to retain it without giving compensation.”
Id.
Global Network alleges that it paid Centurylink for services
that included security, and that Centurylink “made the representa-
tion that it would provide security.” Then Centurylink, “having
received the benefit of the money,” purportedly “failed to properly
secure [Global Network’s] servers[.]” These allegations do not
plausibly set out a claim for breach of a contract implied in law.
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21-13719 Opinion of the Court 7
First, we reject Global Network’s attempt to base the claim
on Centurylink’s representation that it would provide security.
This representation cannot serve as the basis for Centurylink’s
claim because a contract implied in law is an obligation “created by
the law without regard to the parties’ expression of assent by their
words or conduct.”
Com. P’ship, 695 So. 2d at 386. Global Net-
work’s focus on Centurylink’s alleged promise is misguided and
cannot support a claim for breach of contract implied in law.
Second, even if we ignore this foundational problem the
claim still fails. Global Network alleged that there was an express
agreement governing the relationship between the two parties, and
the 2017 contract sets out Centurylink’s obligations regarding se-
curity. When a contract addresses a certain topic, that topic cannot
be the subject of a claim for a contract implied in law.
See Diamond
“S” Development Corp. v. Mercantile Bank, 989 So. 2d 696, 697
(Fla. 1st DCA 2008) (“Florida courts have held that a plaintiff can-
not pursue a quasi-contract claim for unjust enrichment if an ex-
press contract exists concerning the same subject matter.”);
Ocean
Communications, Inc. v. Bubeck, 956 So. 2d 1222, 1225 (Fla. 4th
DCA 2007) (“A plaintiff cannot pursue an equitable theory, such as
unjust enrichment or quantum meruit, to prove entitlement to re-
lief if an express contract exists.”); 42 C.J.S.
Implied Contracts § 62
(2023 update) (“[F]or a court to award a quantum meruit recovery,
the court must conclude that there is no enforceable express con-
tract between the parties covering the same subject matter.”).
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8 Opinion of the Court 21-13719
Global Network’s assertion that the parties did not sign a
separate, stand-alone agreement for security services does not
change this outcome. Global Network paid Centurylink pursuant
to the contracts that the parties entered into for data storage and
processing services, and Global Network alleged that the “parties
were bound by [those] contract[s].” D.E. 24 ¶ 14. As explained
earlier, the 2017 contract required Centurylink to take certain se-
curity measures to protect Global Network’s property. 2
In a paragraph titled “Security,” the 2017 contract requires
that Centurylink maintain “card readers, scanners [or] other access
devices.” D.E. 24-3 at 16. The contract also requires that Centu-
rylink provide a “locking mechanism” for the facility.
See id.
Global Network may not assert an implied-in-law contract claim
because it made payments pursuant to a contract that addressed
the matter of security. And it may not now demand higher security
measures than those that were bargained for.
See 42 C.J.S.
Implied
Contracts § 60 (2023 update) (“[A] court may not make a better
contract for the parties through an unjust enrichment claim than
they have made for themselves.”). 3
2 Global Network argues in its initial brief that “[t]he various agreements at-
tached to the [c]omplaint are not even contracts between the parties.” Initial
Br. at 17. This argument is meritless, as Global Network expressly alleged that
the parties “became bound by the contractual relationship.” D.E. 24 ¶ 14.
3 Of course, if Centurylink failed to provide the security services or features
spelled out in the 2017 contract, and those failures led to the theft of the
memory cards, the remedy available to Global Network was a straightforward
breach of contract claim. Global Network initially asserted certain breach of
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21-13719 Opinion of the Court 9
There is also no allegation that Global Network paid Centu-
rylink any additional money for security above and beyond what
was owed pursuant to the parties’ 2017 contract. Absent this kind
of allegation, there is nothing inequitable about Centurylink retain-
ing the contractual payments made by Global Network.
Compare
Ruck Bros. Brick, Inc. v. Kellogg & Kimsey, Inc., 668 So. 2d 205,
206–07 (Fla. 2d DCA 1995) (holding that an unjust enrichment
claim was valid because the contract payments did not include ad-
ditional material delivery).
IV
Global Network also asserted a claim for breach of contract
implied in fact. As the district court correctly explained, this claim
similarly fails because of the well-settled rule that “the law will not
imply a contract where a valid express one exists.”
Quayside As-
soc., Ltd. v. Triefler, 506 So. 2d 6, 7 (Fla. 3d DCA 1987).
Unlike contracts implied in law, parties to contracts implied
in fact “have . . . entered into an agreement[.]”
Tooltrend, Inc. v.
CMT Utensili, SRL, 198 F.3d 802, 806 (11th Cir. 1999) (quoting
Com. P’ship, 695 So. 2d at 385–86). “[B]ut [they have done so]
without sufficient clarity, so a fact finder must examine and inter-
pret the parties’ conduct to give definition to their unspoken agree-
ment.”
Id. A contract implied in fact is “founded upon a meeting
of the minds, which, although not embodied in an express contract,
contract claims, but at some point those claims were dismissed. Global Net-
work does not appeal the dismissal of those claims, so we do not address them.
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10 Opinion of the Court 21-13719
is inferred, as a fact, from the conduct of the parties showing, in the
light of the surrounding circumstances, their tacit understanding.”
Hercules Inc. v. United States, 516 U.S. 417, 424 (1996).
See also
Tipper v. Great Lakes Chemical Co., 281 So. 2d 10, 13 (Fla. 1973)
(“Express contracts and contracts implied in fact require the assent
of the parties, whereas contracts implied in law . . . do not rest upon
the assent of the contracting parties.”).
Global Network contends that it can be inferred—from Cen-
turylink’s use of various security protocols—that the deal included
promises that Centurylink would keep the servers safe and that it
would conduct an investigation if property was lost. But a court
will not imply a contract in fact where there is an express agree-
ment addressing the matter at hand.
See Baron v. Osman, 39 So.
3d 449, 451 (Fla 5th DCA 2010) (“[T]he law will not recognize an
implied-in-fact contract where an express contract exists.”).
See
also Triefler, 506 So. 2d at 7 (the “settled rule [is] that the law will
not imply a contract where a valid express one exists”). As previ-
ously discussed, the 2017 contract provided the negotiated-for se-
curity measures. Because Global Network alleged that this con-
tract constituted a binding agreement, we will not imply another
contract to replace the parties’ agreed-upon terms.
V
The district court dismissed the implied bailment claim be-
cause Global Network did not sufficiently allege that Centurylink
had exclusive use and possession of the property (i.e., the servers
and the memory cards). Based on our decision in
Puritan Insurance
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21-13719 Opinion of the Court 11
Company v. Butler Aviation-Palm Beach, Inc., 715 F.2d 502, 504
(11th Cir. 1983), we disagree.
A
“In a bailment situation, the plaintiff makes a prima facie
case for damages when he shows that the bailed property was de-
livered to the bailee in good condition and that it was damaged
while it was in the care, custody, and control of the bailee.”
Mil-
lennium Partners, L.P. v. Colmar Storage, LLC, 494 F.3d 1293,
1299 (11th Cir. 2007) (applying Florida law). Under Florida law, a
bailment “requires complete delivery of possession, custody and
control of the chattel.”
Butler Aviation, 715 F.2d at 504. As a “gen-
eral rule, delivery of the item to the bailee must give him or her the
right to exclusive[ly] use and possess[ ] the item.”
Meeks ex rel.
Estate of Meeks v. Fla. Power & Light Co., 816 So. 2d 1125, 1129
(Fla. 5th DCA 2002).
As noted, Global Network’s claim is for implied bailment.
Florida law recognizes that a “constructive bailment” can result
when “the possession of one’s personal property passes to another
by mistake, accident or through force of circumstances under
which the law imposes upon the recipient thereof the duty and ob-
ligation of a bailee . . . [and] an absence of any voluntary undertak-
ing, and no reasonable basis for implying an intent of any mutual
benefit[.]”
Armored Car Service, Inc. v. First Nat. Bank of Miami,
114 So. 2d 431, 434 (Fla. 3d DCA 1959).
See also 8A Am. Jur. 2d
Bailments § 38 (Nov. 2022 update) (“An implied-in-law bailment
also may arise when a party engages another to perform some
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12 Opinion of the Court 21-13719
service with respect to that party’s personal property, without in-
structions as to the property’s disposition.”); 8 C.J.S.
Bailment § 14
(Nov. 2022 update) (“[T]here is a class of bailments that arise by
operation of law, such as when justice requires it.”); 19 Williston
on Contracts § 53:3 (4th ed. 2022) (recognizing the concept of “con-
structive bailment”).
The “duty imposed in such circumstances [is for] the bailee
to exercise some care, the degree thereof to be determined by the
facts relating to the bailment.”
Armored Car Service, 114 So. 2d at
435. But where the bailment is gratuitous a showing of gross neg-
ligence is required for recovery.
See id. at 434;
Fireman’s Fund Ins.
Co. v. Dollar Systems, Inc., 699 So. 2d 1028, 1031 (Fla. 4th DCA
1999).
B
In
Butler Aviation, an aircraft owner left his plane with a
fixed base operator at the Palm Beach Airport. The operator tied
down and stored the plane.
See 715 F.2d at 503.
The operator controlled the area, which was surrounded by
a perimeter fence maintained by the county, by stationing a secu-
rity guard at its access gate and a dispatcher at the service counter
at the other entrance. It also had one of its employees conduct a
nightly check to see what aircraft were in the parking area.
See id.
No key was needed to operate the plane, but the owner re-
tained a key and gave another key to a third party who planned to
use the plane for business purposes.
See id. at 504. A day after
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21-13719 Opinion of the Court 13
leaving the plane, the owner returned. He put his flight case in the
wing locker and relocked the plane, but did not move it. A little
more than a week later, an unknown person entered the lot, paid
the parking and refueling charges, and stole the plane.
See id.
We affirmed a jury verdict for the plane owner on a bail-
ment claim under Florida law because the operator had practical
control of the aircraft, notwithstanding the owner’s access: “The
facts that we have set out—a fenced area, control of the access gate,
a dispatcher on duty, registration procedures, placement and tying
down of the plane by [the operator], and a nightly check—indicate
that [the operator] had control of the aircraft and was properly con-
sidered a bailee. Although [the owner] retained his key (and sent
another to a third party) practical control remained with [the oper-
ator].”
Id.
Based on
Butler Aviation, Global Network plausibly alleged
that Centurylink had practical physical control over the servers and
the memory cards in its data center. The alleged facts—the use of
key access cards, elevator key cards, and security cameras, as well
as the requirements for visitors (including owners like Global Net-
work) to obtain entrance tickets and be accompanied by a security
guard to and from the data center—plausibly indicate that Centu-
rylink was a bailee.
See id.
See also Lonray, Inc. v. Azucar, Inc.,
775 F.2d 1521, 1525 (11th Cir. 1985) (holding under Florida law that
a warehouse owner had sole possession and control of the sugar it
stored for the plaintiff, even though the plaintiff’s agent supervised
the loading and weighing of the sugar and visited the warehouse
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14 Opinion of the Court 21-13719
twice a month for inspections, because “at all times [the warehouse
owner] maintained lock and key control over access to the interior
of the warehouse and the sugar stored there”). Given cases like
Butler Aviation and
Lonray, Global Network has stated a claim for
implied bailment.
According to Centurylink, Global Network’s ability to visit
the servers means that it did not possess the servers exclusively and
as a result no bailment relationship was formed. But this argument
does not carry the day at this stage of the proceeding, where the
standard is plausibility and not probability. The plane owner in
Butler Aviation was able to visit and access his aircraft (and did in
fact do so), and yet we concluded that a bailment existed.
See 715
F.2d at 504. And in
Lonray there was a bailment even though an
agent for the owner visited the warehouse twice a month for in-
spections of the sugar.
See 775 F.2d at 2525.
C
Centurylink also argues that
Butler Aviation is distinguisha-
ble on its facts because Global Network was able to use its servers
remotely to run its business, while the plane owner in
Butler Avia-
tion could not use the plane from afar while it was stored with the
fixed base operator. Centurylink contends this continued use pre-
cludes us from concluding that an implied bailment existed. The
district court essentially agreed, explaining that bailment does “not
contemplate” a situation where one party’s possession of property
does not prevent the owner from using it.
See D.E. 35 at 7–8.
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21-13719 Opinion of the Court 15
We are not persuaded. First, although Global Network may
have been able to continue to use its servers, it was not able to use
the property that was stolen—the memory cards. Second, Global
Network does not seek damages for its inability to use its network
or intangible data on the servers. Instead, it wants to recover dam-
ages to replace the physical memory cards.
See D.E. 24 ¶ 66. The
bailment analysis in a case like this one, dealing with the loss of
tangible, physical objects, is relatively straightforward.
See DW
Data, Inc. v. C. Coakley Relocation Sys., Inc., 951 F. Supp. 2d 1037,
1048–53 (N.D. Ill. 2017) (applying Illinois law and finding, after a
bench trial, that plaintiff was entitled to judgment on its bailment
claim against the defendant, which lost its servers after delivery). 4
In addition, Centurylink cites to
S & W Air Vac Systems, Inc.
v. Department of Revenue, 697 So. 2d 1313, 1315 (Fla. 5th DCA
1997). In
S&W, the Fifth District addressed whether S&W’s place-
ment of “air-vac” units at convenience stores and gas stations—
units which customers could use for a fee to vacuum their car or
put air in the tires—created a bailment. It held that there was no
bailment because only S&W had keys to a unit’s money vault, and
4 The tort of trespass to chattels, which Florida recognizes,
see Burshan v. Nat’l
Union Fire Ins. Co. of Pittsburgh, 805 So. 2d 835, 846 (Fla. 4th DCA 2001), has
been applied by some courts to the loss of use of computer networks or serv-
ers.
See, e.g., Register.com v. Verio, Inc., 356 F.3d 393, 404 (2d Cir. 2004)
(New York law). Whether or not Florida applies the tort in this way is unclear.
Compare Flagstone Island Gardens, LLC v. Ser, 2011 WL 13223685, at *6 (S.D.
Fla. Sept. 13, 2011) (yes),
with Inventory Locator Servs., LLC v. Partsbase, Inc.,
2005 WL 2179185, at *11 (W.D. Tenn. Sept. 6, 2005) (no).
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16 Opinion of the Court 21-13719
it was solely responsible for (a) inspecting and maintaining the units
at no cost to the business owners and (b) carrying liability insurance
for the units. In sum, the business owners did not have exclusive
possession of the units.
See id. at 1214–1215.
S&W makes the exclusive possession element of bailment
somewhat closer. But it does not mandate dismissal of the implied
bailment claim because of two significant distinctions. The first is
that the units in
S&W (unlike Global Network’s servers) were not
locked inside the businesses but were instead located outside
where they could be accessed by cars. The second is that S&W (un-
like Global Network) was “authorized to enter the [premises] at
any time to collect monies or perform maintenance and repairs.”
Id. at 1314–15.
Given Global Network’s allegations, and our decision in
Butler Aviation, the implied bailment claim survives Centurylink’s
motion to dismiss. To be clear, we do not hold there was an im-
plied bailment as a matter of fact or law. We hold only that Global
Network plausibly alleged an implied bailment.
Cf. Annecca, Inc.
v. Lextent, Inc., 345 F.Supp.2d 897, 908 (N.D. Ill. 2004) (explaining
that, under Illinois law, an implied bailment existed when the plain-
tiff delivered its new computer servers to the defendant “to be in-
stalled for [the plaintiff’s] own use after completion of [its] acquisi-
tion [of the defendant]”).
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21-13719 Opinion of the Court 17
VI
We affirm the dismissal of Global Network’s claims for
breach of contract implied in law and breach of contract implied in
fact. We reverse the dismissal of Global Network’s claim for im-
plied bailment and remand for further proceedings.
AFFIRMED IN PART, REVERSED IN PART, AND R EMANDED.
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