Levey v. Concesionaria Vuela Compañía De Aviación

529 F.Supp.3d 856

Samantha LEVEY, individually and on behalf of all others similarly situated, Plaintiff,

v.CONCESIONARIA VUELA COMPAÑÍA DE AVIACIÓN, S.A.P.I. DE C.V., and Controladora Vuela Compañía de Aviación, S.A.B. de C.V., foreign corporations d/b/a/ "Volaris", Defendants.

Case No. 20-cv-2215

United States District Court, N.D. Illinois, Eastern Division.

Signed March 29, 2021

William M. Sweetnam, Keith James Keogh, Keogh Law, Ltd., Chicago, IL, for Plaintiff.

Robert Edwin Tonn, Holland & Knight LLC, Chicago, IL, for Defendant Concesionaria Vuela Compania de Aviacion, S.A.P.I. de C.V.

MEMORANDUM OPINION AND ORDER

John Robert Blakey, United States District Judge

In 2019, Plaintiff Samantha Levey bought an airline ticket from Defendant Concesionaria Vuela Compañía de Aviación, S.A.P.I. de C.V. (Volaris) to travel to Mexico in March 2020. She claims that after the COVID-19 outbreak, Volaris cancelled her ticket and refused to provide a refund. Plaintiff now sues Volaris on behalf of a putative class under state law for breach of contract, unjust enrichment, unconscionability, and violations of the Illinois Consumer Fraud and Deceptive Practices Act (ICFA). Volaris has moved to dismiss the complaint in its entirety. [15]. Plaintiff has moved to appoint interim class counsel. [34]. Finally, non-party Carlos Martinez-Sanchez has moved to intervene for the limited purpose of opposing Plaintiff's motion to appoint interim class counsel. [38]. For the reasons explained below, this Court grants in part and denies in part Volaris’ motion [15], denies Plaintiff's motion to appoint [34] without prejudice, and denies Martinez-Sanchez’ motion to intervene [38] as moot.

I. Background

A. The Complaint's Allegations

1. The Parties

Plaintiff is a Cook County resident. [1] at ¶ 7. Volaris operates an ultra-low-cost air carrier. Id. at ¶¶ 8–10.¹ Volaris serves 66 cities throughout Mexico, the United States, and Central America and operates up to 394 daily flights to 40 cities in Mexico and to 26 cities in the United States and Central America. Id. at ¶ 10.

2. Plaintiff's Flight

In June 2019, Plaintiff bought roundtrip airfare from Chicago Midway International Airport to Bajio International Airport in Silao, Guanajuato, Mexico; the ticket reflects a March 20, 2020 date of departure and a March 24, 2020 date of return. Id. at ¶¶ 20, 21. She paid $636.57 for the airfare. Id. at ¶ 20.

But on or about March 19, 2020, after the COVID-19 pandemic hit, Volaris cancelled Plaintiff's flights without notice or explanation. Id. at ¶¶ 2, 22. After Plaintiff unsuccessfully tried to reach Volaris by phone, email, and social media, Volaris contacted Plaintiff on or about March 23, 2020, by phone. Id. at ¶ 23. On the call, Volaris refused to provide Plaintiff with a refund of the $636.57 she paid for the flight, offering instead to provide a credit toward future travel in the next thirty days, less applicable change fees. Id. at ¶¶ 23–24.

Plaintiff could not travel at a later date and therefore rejected Volaris’ offer, again demanding a refund, which Volaris refused. Id. at ¶ 24. Thereafter, Volaris issued Plaintiff a credit for $404.15 ($232.12 less than she originally paid) to use on another Volaris flight between April 6 and July 5, 2020. Id. at ¶ 25.

The relevant contract of carriage (COC) effective at the time Plaintiff purchased her ticket provided that, in the event of a flight cancellation, "alternate transportation or compensation will be provided to Passengers in accordance with rules issued by the U.S. Department of Transportation (DOT)." Id. at ¶ 8.

B. Procedural History

Plaintiff filed her class action complaint in April 2020, invoking this Court's original jurisdiction under 28 U.S.C. § 1332(d)(2). [1] at ¶ 4. The complaint asserts state-law claims for breach of contract (Count I); unjust enrichment (Count II); unconscionability (Count III); and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. Ann. 505/1–12 (West 2020) (Count IV). Id. at ¶¶ 39–63. Volaris has moved to dismiss the complaint in its entirety. [15].

II. Legal Standard

Volaris moves to dismiss for lack of standing and for failure to state a claim. Rule 12(b)(1) permits dismissal for lack of standing. Taylor v. McCament , 875 F.3d 849, 853 (7th Cir. 2017). Analyzing a motion to dismiss under Rule 12(b)(1) requires this Court to construe Plaintiff's complaint in the light most favorable to Plaintiff, accept as true all well-pleaded facts, and draw reasonable inferences in her favor. Silha v. ACT, Inc. , 807 F.3d 169, 173 (7th Cir. 2015) ; Long v. Shorebank Dev. Corp. , 182 F.3d 548, 554 (7th Cir. 1999).

Similarly, a motion to dismiss under Rule 12(b)(6) requires the court to construe the facts and draw inferences in the plaintiff's favor. Yeftich v. Navistar, Inc. , 722 F.3d 911, 915 (7th Cir. 2013). To survive, the complaint must "state a claim to relief that is plausible on its face." Yeftich , 722 F.3d at 915. For a claim to have facial plausibility, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While the sufficiency of the factual allegations depends upon the complexity of the case, threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, will not suffice. Limestone Dev. Corp. v. Village of Lemont , 520 F.3d 797, 803–04 (7th Cir. 2008).

III. Volaris’ Motion to Dismiss

In moving to dismiss, Volaris argues that Plaintiff lacks standing to pursue her breach of contract claim; that the Airline Deregulation Act of 1978 (ADA) expressly preempts Plaintiff's state-law claims; that Plaintiff otherwise fails to state plausible state-law claims; and that the putative class members’ claims are moot. [15]. As a jurisdictional question, the issue of standing comes first in this Court's analysis. Gadelhak v. AT&T Servs., Inc. , 950 F.3d 458, 461 (7th Cir. 2020).

A. Standing

Article III of the Constitution limits "federal judicial power to certain ‘cases’ and ‘controversies.’ " Silha , 807 F.3d at 172–73 (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 559-60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). To establish Article III standing, "a plaintiff must show that: (1) [he] has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Silha , 807 F.3d at 173 (internal quotation omitted) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ). The party invoking federal jurisdiction bears the burden of establishing the elements of Article III standing. Bryant v. Compass Grp. USA, Inc. , 958 F.3d 617, 620 (7th Cir. 2020).

Volaris argues that Plaintiff fails to establish both an injury-in-fact and an injury traceable to Volaris on her breach of contract claim because nothing in the COC requires Volaris to provide Plaintiff a refund. [15] at 15; [32] at 10. But this argument conflates Article III standing with the merits of Plaintiff's breach of contract claim. See Bond v. United States , 564 U.S. 211, 219, 131 S.Ct. 2355, 180 L.Ed.2d 269 (2011) (noting that "the question whether a plaintiff states a claim for relief ‘goes to the merits’ in the typical case, not the justiciability of a dispute"); Arreola v. Godinez , 546 F.3d 788, 794–95 (7th Cir. 2008) ("Although the two concepts unfortunately are blurred at times, standing and entitlement to relief are not the same thing."); see also, e.g. , Tri-State Disposal, Inc. v. Village of Riverdale , 369 F. Supp. 3d 866, 874 (N.D. Ill. 2019) (finding that plaintiff's allegation of economic harm sufficiently established injury in fact for breach of contract claim, and noting that courts do not "consider the merits" of the claim in assessing standing).

Indeed, for standing purposes, Plaintiff need not definitively establish a contractual entitlement to a refund, but a cognizable injury-in-fact traceable to Volaris’ conduct. Silha , 807 F.3d at 172–73. Plaintiff does so: she claims to have suffered an economic injury caused by Volaris’ refusal to refund her. [1] at ¶¶ 42, 43. This suffices to allege a concrete and particularized economic injury for the purposes of Article III standing, see Milwaukee Police Ass'n v. Flynn , 863 F.3d 636, 639 (7th Cir. 2017) (noting that "financial injuries are prototypical of injuries for the purposes of Article III standing"), as well as an injury suffered as a consequence of Volaris’ conduct, Johnson v. U.S. Office of Pers. Mgmt. , 783 F.3d 655, 660 (7th Cir. 2015) (holding that an injury is "fairly traceable" if it results from the defendant's alleged conduct). As Plaintiff sufficiently demonstrates she possesses standing to pursue her breach of contract claim, this Court now turns to the merits of the case.

B. Preemption

Volaris next argues that the ADA expressly preempts all of Plaintiff's state-law claims. [15] at 8–13.

1. The ADA

In 1978, Congress enacted the ADA, which "largely deregulated domestic air transport." Am. Airlines, Inc. v. Wolens , 513 U.S. 219, 222, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995). To ensure that States would not undo federal deregulation with their own regulations, Congress included an express preemption clause in the ADA. Nw., Inc. v. Ginsberg , 572 U.S. 273, 280, 134 S.Ct. 1422, 188 L.Ed.2d 538 (2014).

That preemption clause states, in relevant part:

Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a

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