The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff Harlene Newman, on behalf of herself and others similarly situated, brought a three count complaint against defendant Spirit Airlines in the Circuit Court of Cook County, Illinois, alleging violations of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), breach of contract, and unjust enrichment, based on defendant's decision to charge a two dollar each-way fee on all airline purchases, which defendant described on its bill as an "Unintended Consequence of DOT Regulations." (The "UCDTR fee"). Plaintiff alleges that despite the label, the Department of Transportation regulations "played no role in defendant's decision to charge this fee to its customers."
Defendant removed the case to this court and has moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), arguing that all three counts are preempted by the express preemption provision of the Airline Deregulation Act ("ADA"), 49 U.S.C. § 41713.
In response, plaintiff seeks to withdraw or dismiss her ICFA and unjust enrichment claims without prejudice. To accomplish this task, plaintiff filed a "stipulation of dismissal of Counts I & III without prejudice," purportedly pursuant to Fed. R. Civ. P. 41(a)(1)(A), (B). As defendant argues, however, Rule 41 governs dismissal of an entire action, not dismissal of a particular claim within an action. See Berthold Types Ltd. v. Adobe Systems, Inc., 242 F.3d 772, 777 (7th Cir. 2001). Thus, plaintiff's effort to drop the two counts should be treated as an attempt to amend her complaint under Fed. R. Civ. P. 15(a). See In re Ameriquest Mortg. Co. Mortg. Lending Practices Litig., 2011 WL 3021229 at *1 (N.D. Ill. July 22, 2011). Under Rule 15(a)(1)(B), a plaintiff has an absolute right to amend once if done within 21 days of service of a motion under Rule 12(b). Defendant originally filed and served its motion on May 16, 2012. The court granted it on May 23, 2012, when plaintiff failed to appear at the presentation of the motion. At plaintiff's request, the court vacated that order and reinstated defendant's motion to dismiss on June 6, 2012, but even if that date is used to start the clock, and the court treats plaintiff's motion under Rule 41 as one for leave to amend under Rule 15, plaintiff did not file until June 28, 2012, or 22 days after service of the motion to dismiss and one day late. Thus, plaintiff does not have a right to amend under Rule 15(a)(1)(B).
Nonetheless, under Rule 15(a)(2), the court should freely grant leave to amend when justice so requires. Defendant argues that dismissal of Counts I and IIIshould be with prejudice because those counts cannot be amended to circumvent the preemption provision of the ADA. Although defendant is likely correct, the court need not reach that issue given plaintiff's willingness to dismiss her claims. Accordingly, the court grants plaintiff leave to amend the complaint on its face by dismissing without prejudice Counts I and III.
Count II alleges that by calling the $2 each-way fee as an unintended consequence of DOT Regulations, defendant falsely represents to its customers that the "line item charge is a governmentally-mandated fee." The complaint does not attach or even reference a specific contract, but has attached a copy of plaintiff's confirmation, which lists the fee under the heading TAXES & FEES. Thus, plaintiff was made aware that she was paying a $4 fee for a round-trip ticket, just as she was made aware that she was paying a $9 passenger facility fee.
Unable to point to any provision of a contract that defendant has breached, plaintiff alleges that defendant breached the duty of good faith and fair dealing that is implied by law in every contract governed by Illinois law. But, as defendant points out, under Illinois law the covenant of good faith and fair dealing is not an independent source of duties for the parties to a contract. The covenant merely "guides the construction of the explicit terms in the agreement." Baxter Healthcare Corp. v. O.R. Concepts, Inc., 69 F.3d 785, 792 (7th Cir. 1995). To establish a breach of the duty of good faith and fair dealing the complaining party must show that the contract vested the opposing party with discretion in performing an obligation under the contract and that that party exercised that discretion in bad faith, unreasonably, or in a manner inconsistent with the reasonable expectations of the parties. LaSalle Bank Nat'l Assoc. v. Paramont Properties, 588 F.Supp.2d 840, 857 (N.D. Ill. 2008) (and cases cited therein). Because plaintiff makes no such allegation in Count II, it fails to state a claim for breach of contract and must be dismissed.
Whether dismissal should be without prejudice as is this court's practice when dismissing an original complaint under Fed. R. Civ. P. 12(b)(6), or with prejudice as defendant argues, depends on whether plaintiff's proposed breach of contract claim is preempted by the preemption clause of the ADA, 49 U.S.C. § 41713(b)(1), which provides:
Except as provided in this subsection, a State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law relating to a price, route or service of an air carrier that may provide air transportation under this subpart.
A claim is preempted by the ADA if it: (1) relates to airline prices, routes, or services; and (2) derives from the enactment or enforcement of state law. Travel All Over the World, Inc. v. Kingdom of Saudi Arabian, 73 F.3d 1423, 1432 (7th Cir. 1996). The term "relating to a price, route, or service . . ." is to be interpreted broadly. "The meaning of these words is a broad one -- 'to stand in relation; to have bearing on or concern; to pertain; refer; to bring in association with or in connection with,' . . . and the words thus express a broad preemptive purpose." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992). Using this broad definition, the Seventh Circuit has held that a claim "relates to" an airline's price if the claim expressly refers to price or has a significant economic effect upon price. Travel All Over the Worlds, 73 F.3d at 1432.
In the instant case, despite plaintiff's protestations to the contrary, her challenge to the UCDTR obviously relates to the price of an airline ticket. The fee is listed on plaintiff's receipt and is undoubtedly a direct component of the final airline ticket purchase price.
To be preempted, however, the claim must also derive from the enactment or enforcement of state law. Travel All Over the World, 73 F.3d at 1432. In American Airlines, Inc. v. Wolens, 513 U.S. 219, 229 (1995), the Supreme Court held that a state does not "enact or enforce any law" by enforcing private agreements. Therefore, a claim "seeking recovery solely for the airline's alleged breach of its own, self imposed undertakings," does not derive from the enactment or enforcement of state law and is not preempted. Id. at 228.
In the instant case, plaintiff's complaint fails to identify any self-imposed obligation that defendant breached. In her brief, plaintiff illogically argues that defendant "obligated itself to collect a $2 fee from its consumers for every flight due to a purported obligation it implied was imposed by the United States Department of Transportation." Plaintiff then argues that defendant breached the self-imposed obligation by collecting the fee. As defendant argues, its only ...