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Pavel Polinovsky and Ilona v. Deutsche Lufthansa

March 30, 2012


The opinion of the court was delivered by: Judge Sharon Johnson Coleman

Magistrate Judge Maria Valdez


Plaintiffs, Pavel Polinovsky , Ilona Polinovsky and Hans-Peter Baumeister, individually and on behalf of all others similarly situated (the "Class"), bring this putative class action for breach of contract against Defendant Deutsche Lufthansa AG ("Lutfhansa") based upon its failure to comply with Regulation No. 261/2004 of the European Parliament and European Council ("EU 261"). Defendant has moved to dismiss plaintiffs' complaint under the Federal Rules of Civil Procedure 12(b)(6). For the following reasons, the motion is denied.


Plaintiffs Pavel and Ilona Polinovsky ("the Polinovskys") are residents of Illinois and were confirmed passengers on Lufthansa Flight 467 scheduled to depart from Miami, Florida to Dusseldorf, Germany on December 18, 2010 at 6:25 PM. From Dusseldorf, the Polinovskys had a connecting flight scheduled to arrive at Warsaw on Sunday, December 19, 2010 at 12:05. As with all United States passengers traveling to Europe, plaintiffs' ticket with Lufthansa incorporated a contract, (the "Conditions of Carriage"), that provided certain remedies pursuant to EU 261. The Conditions of Contract state that "[i]n the case of a flight cancellation or flight delay, we offer assistance and compensation to the concerned passengers according to the [EU 261]." Def.'s Ex. C art. 9.2.2. Pursuant to EU 261 passengers on certain flights that have been cancelled are entitled to a specified amount of compensation as long as the cancellation was not caused by unavoidable extraordinary circumstances. EU 261, however, does not explicitly provide compensation for passengers whose flights are delayed. Instead, the European Court of Justice ("ECJ"), has interpreted EU 261 to make no distinction between passengers whose flights have been delayed by three or more hours and passengers whose flights have been cancelled. Sturgeon v. Condor Fludienst GmbH, 2009 E.C.R. I-10923.

On the day of departure, the Polinovskys' flight was delayed and as a result they missed their connecting flight in Dusseldorf. The Polinovskys ultimately suffered a loss of time in excess of three hours. The Polinovskys were not offered re-routing nor compensation for this delay.

Additionally, plaintiff Hans-Peter Baumeister ("Baumeister") is a resident of California and was a confirmed passenger on Lufthansa Flight 1371 scheduled to depart from Stuttgart, Germany on October 4, 2010 at 1:20 PM and arrive in Munich, Germany. Baumeister had a connecting flight scheduled to depart from Munich at 4:15 PM and arrive in San Francisco, California. Baumeister's ticket also included a contract with Lufthansa that provided remedies under EU 261. Baumeister's flight was cancelled and he was not offered an opportunity to re-route his travel plans nor compensation for his delay.

Because plaintiffs have not received compensation for their cancelled or delayed flights, plaintiffs claim that Lufthansa has violated its own Conditions of Carriage. Consequently, plaintiffs have filed this punitive class action for breach of contract.


A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted. Christensen v. County of Boone, 483 F.3d 454, 458 (7th Cir. 2007). Pursuant to the federal notice pleading standard, a complaint need only provide "a short and plain statement of the claim" showing that the plaintiff is entitled to relief and sufficient to provide the defendant with fair notice of the claim and its basis. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). In order to withstand a motion to dismiss under 12(b)(6), a plaintiff's complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 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." Id. Thus, the complaint need not set forth "detailed factual allegations," but it must plead facts that "raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).


1. Airline Deregulation Act

Defendant first argues that plaintiffs' claim should be dismissed because it is preempted by the Airline Deregulation Act ("ADA"). In order to ensure that states would not ignore federal airline regulation in favor of regulation of their own, the ADA provides that "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 price, route, or service of an air carrier that may provide air transportation under this subpart." 49 U.S.C. § 41713 (b)(1); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L. Ed. 2d 157 (1992). Essentially, the ADA displaces all state law, including those that "fall within its sphere" that relate to an air carrier's price, routes and services. Morales, 504 U.S. 387. Therefore, state law causes of action are preempted by the ADA when two elements are present: (1) the claim relates to airline prices, routes or services; and (2) the claim involves the enactment or enforcement of a state law, regulation or provision, including state common law. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1432 (7th Cir. 1996); United Airlines, Inc. v. Mesa Airlines, Inc. 219 F.3d 605, 607 (7th Cir. 2000). Here, defendant argues that the plaintiffs' claim meets both of these elements and therefore should be preempted.

In response, plaintiffs argue that the exception to ADA preemption established in American Airlines v. Wolens exempts their claim from dismissal. In Wolens, the Supreme Court articulated an exception to ADA preemption for routine breach of contract claims "seeking recovery for an airline's breach of its own self imposed undertakings." American Airlines v. Wolens, 513 U.S. 219, 115 S. Ct. 817, 130 L. Ed. 2d 715 (1995). To avoid ADA preemption under Wolens, a breach of contract claim must be based on the parties' own contract, with no enlargement or enhancement through state laws or policies external to the agreement. Id., at 233. Plaintiffs' argue that because EU 261 is ...

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