Doug Cook v. General Nutrition Corp ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-3216
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DOUG COOK; JODY EBERHART; BARBARA SWILLEY; MATTHEW DOVNER;
CODY MAYFIELD,
Appellants
v.
GENERAL NUTRITION CORPORATION
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-17-cv-00135)
District Judge: Honorable Nora B. Fischer
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Submitted Under Third Circuit L.A.R. 34.1(a)
May 2, 2018
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Before: SMITH, Chief Judge, HARDIMAN, and RESTREPO, Circuit Judges.
(Opinion Filed: September 17, 2018)
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OPINION
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RESTREPO, Circuit Judge.

This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Appellants appeal an order of the District Court dismissing their suit against
General Nutrition Corporation (“GNC”) for breach of contract, unjust enrichment, and
breach of Florida and California consumer protection laws. For the reasons that follow,
we will affirm.
I
As we write solely for the benefit of the parties, we set out only the facts necessary
for the discussion that follows. GNC, one of the world’s largest specialty retailers of
health, wellness and performance products, launched its membership program, known as
the Gold Card Program, in 1991. To join, GNC customers paid a $15 annual membership
fee and in return received benefits at GNC stores, including up to 50% off purchases, for
one or two years from the date of payment. By October 2016, GNC knew that it would
terminate the Gold Card Program by the end of that year, but did not disclose its plans to
customers and continued to sell memberships until December 18, 2016. On December 28,
2016, GNC officially terminated the Gold Card Program. Despite possessing more than
$24 million in deferred revenue from the sale of Gold Card memberships, GNC refused
to honor the benefits that Gold Card members had purchased or to refund the membership
fees.
The Gold Card Program Terms and Conditions (“T&Cs”), as well as terms on the
physical Gold Card, governed the Gold Card Program. The T&Cs expressly provided that
GNC could alter or terminate membership benefits or conditions at any time, with or
without notice, and that the membership fee would not be refunded. The T&Cs also
contained a choice-of-law provision:
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Any claim relating to the Program, our Terms, and the relationship between
you and us shall be governed by the laws of the United States and the
Commonwealth of Pennsylvania without regard to its conflict of law
provisions. You and GNC agree to submit to the personal and exclusive
jurisdiction of the courts located within the Commonwealth of
Pennsylvania.
App. 95.
GNC replaced the Gold Card Program with a new membership program called
myGNC Rewards, which was free to join and allowed members to accumulate points
based on purchases. The myGNC Rewards Terms and Conditions contained an
arbitration clause.
Five Plaintiff-Appellants, citizens of Georgia, Pennsylvania, Florida, and
California, all of whom were Gold Card members and one of whom, Barbara Swilley,
was also myGNC Rewards member, filed a class action suit against GNC alleging breach
of contract, unjust enrichment, and breach of Florida and California consumer protection
laws. The named individual Plaintiffs filed suit on behalf of a nationwide class comprised
of all Gold Card members in the United States with membership expirations subsequent
to December 31, 2016, as well as Florida and California subclasses for the members in
those states. GNC moved to dismiss the Amended Complaint and to compel arbitration
of Swilley’s claim. The District Court granted both motions and stayed the proceedings
with respect to Swilley’s claim. Swilley filed a motion for reconsideration on the motion
to compel, which the District Court denied. This timely appeal followed.
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II1
We exercise plenary review over a district court’s dismissal of claims pursuant to
Rule 12(b)(6). McGovern v. City of Phila., 554 F.3d 114, 115 (3d Cir. 2009). “The
District Court’s judgment is proper only if, accepting all factual allegations as true and
construing the complaint in the light most favorable to the plaintiff, we determine that the
plaintiff is not entitled to relief under any reasonable reading of the complaint.” Id.
III
Appellants make four arguments on appeal. We will address each in turn.
Appellants first argue that the District Court erred when it concluded that the
T&Cs were an enforceable contract that precluded Appellants’ unjust enrichment claim
under Pennsylvania law. We disagree. An unjust enrichment claim is “inapplicable when
the relationship between the parties is founded on a written agreement or express
contract.” Benefit Tr. Life Ins. Co. v. Union Nat. Bank of Pittsburgh, 776 F.2d 1174, 1177
(3d Cir. 1985) (quoting Schott v. Westinghouse Elec. Corp., 436 Pa. 279, 290 (1969)).
The T&Cs constitute such a contract, the provisions of which are express, clear and
unambiguous. Accordingly, an unjust enrichment claim is unavailable to Appellants here
and the District Court did not err in dismissing such a claim on that basis.
In the alternative, Appellants argue that the T&Cs constituted an enforceable
contract, which GNC breached by terminating the Gold Card Program without providing
full membership benefits or refunds of membership fees. Although we agree that the
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The District Court had jurisdiction under 28 U.S.C. § 1332(d), and we have
appellate jurisdiction under 28 U.S.C. § 1291.
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terms constitute an enforceable contract, we must disagree with the latter contention.
Under Pennsylvania law, a breach of contract claim has three elements: (1) a contract and
its essential terms; (2) a breach of a duty imposed by the contract; and (3) damages.
Kaymark v. Bank of Am., 783 F.3d 168, 182 (3d Cir. 2015). “Before concluding that there
is a valid contract . . . the court must ‘look to: (1) whether both parties manifested an
intention to be bound by the agreement; (2) whether the terms of the agreement are
sufficiently definite to be enforced; and (3) whether there was consideration.’” Blair v.
Scott Specialty Gases, 283 F.3d 595, 603 (3d Cir. 2002) (quoting ATACS Corp. v. Trans
World Commc’ns, Inc., 155 F.3d 659, 666 (3d Cir. 1998)).
A valid contract was formed when the Appellants paid GNC to join the program
and signed the accompanying T&Cs, which expressly permit GNC to unilaterally modify
or cancel the agreement at any time, with or without notice. Accordingly, GNC’s decision
to terminate, while unfortunate, is permissible by the terms of the contract. There is,
therefore, no breach and the District Court properly dismissed the claim.
Next, Appellants argue that the District Court improperly applied Pennsylvania
law when it chose to honor the T&Cs’ forum selection clause. Specifically, while
conceding that the T&Cs contained a choice-of-law provision designating Pennsylvania
law, Appellants assert that the District Court erred in finding Pennsylvania had a
substantial relationship to the Florida and California subclasses. This argument fails.
When a district court’s jurisdiction rests on the diversity of the parties, the district court
must apply the choice of law rules of the forum state. Collins v. Mary Kay, Inc., 874 F.3d
176, 183 (3d. Cir. 2017). Under Pennsylvania law, “courts generally honor the intent of
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the contracting parties and enforce choice of law provisions in contracts executed by
them.” Kruzits v. Okuma Mach. Tool, 40 F.3d 52, 55 (3d Cir. 1994). Pennsylvania courts
have adopted section 187 of the Restatement (Second) Conflict of Laws, which honors
choice-of-law provisions “unless either (a) the chosen state has no substantial relationship
to the parties or the transaction and there is no other reasonable basis for the parties’
choice, or (b) application of the law of the chosen state would be contrary to a
fundamental policy of a state which has a materially greater interest than the chosen state
in the determination of the particular issue.” Gay v. CreditInform, 511 F.3d 369, 389 (3d
Cir. 2007).
Neither of those conditions is present here. Not only is Pennsylvania the choice of
law designated in the contract, but GNC is a Pennsylvania corporation with its principal
place of business in Pennsylvania. This qualifies as a substantial relationship. See Kruzits,
40 F.3d at 56. Nor have Appellants shown that either Florida or California has a
materially greater interest in the issues of this case than Pennsylvania that would
overcome the presumption in favor of Pennsylvania law.
Finally, Appellant Swilley argues that the District Court erred by granting GNC’s
motion to compel arbitration of her claim. However, we are unable to consider this
argument as the Federal Arbitration Act (FAA) limits appellate review to final orders. 9
U.S.C. § 16(a)(3). Where a district court orders parties to resolve their dispute by
arbitration and dismisses the case, the arbitration order is final and immediately
appealable. Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 86–89 (2000). On the other
hand, where, as here, a district court orders the parties to arbitration, but chooses to stay
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the proceedings, the FAA specifies that an immediate appeal is not available. Id. at 87 n.
2 (“Had the District Court entered a stay instead of a dismissal in this case, that order
would not be appealable.”). Because there is no appealable order, we have no jurisdiction
to address whether the District Court erred in finding this controversy arbitrable.
IV
For the foregoing reasons, we will affirm the judgment of the District Court.
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