The opinion of the court was delivered by: Judge Joan H. Lefkow
On February 3, 2011, plaintiffs Theodoros and Alexandra Giannopoulos filed this putative class action lawsuit for breach of contract againstIberia Lineas Aereas de Espana, S.A., Operadora, Sociedad Unipersonal ("Iberia")alleging that Iberia failed to compensate them for a delayed flight as required by Iberia's conditions of contract and Regulation No. 261/2004 of the European Parliament and European Council ("EU 261").*fn1 The court denied Iberia's motion to dismiss on July 27, 2011 holding, inter alia, that the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, (the "Montreal Convention") did not completely preempt the Giannopoulos plaintiffs' claim. (See Dkt. #57.) On December 7, 2011, the Giannopouloses amended their complaint to name James Varsamis and Lauren Mitchell Varsamis as plaintiffs (the "Varsamis plaintiffs"). (Dkt. #83.) Iberia now moves to dismiss the Varsamis plaintiffs' breach of contract claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion (dkt. #88) will be denied.*fn2
The Varsamis plaintiffs, Texas residents, purchased tickets to fly on Iberia to Europe. The tickets incorporated Iberia's conditions of contract, a three-page document that incorporates multiple regulations including the Montreal Convention and EU 261. (See Am. Compl. Ex. 2.) EU 261 applies to passengers with confirmed tickets on flights departing from an airport located in an European Union ("EU") member state and flights departing from a non-EU member state to an airport in an EU member state if the operating carrier has an operating license granted by an EU member state. Iberia has such a license granted by Spain. The conditions of contract include a notice to passengers that "[a]s established in [EU 261], compensation is fixed in the event of a flight cancellation unless the latter is due to extraordinary circumstances." (Id. at 2.) The contract also provides that "[a]s established in [EU 261], in the event of a long delay in relation to the scheduled departure time of flight, passengers are entitled to immediate aid and assistance throughout the duration of the delay." (Id.)
Pursuant to EU 261, passengers on qualifying flights that are cancelled are entitled to a set amount of compensation so long as the cancellation was not caused by unavoidable extraordinary circumstances.*fn4 This compensation is separate from any other right a passenger may have to compensation. Article 7 of EU 261 provides standardized money awards based on the length in kilometers of the flight, while an airline may reduce the standardized award based on a passenger's actual arrival time compared to the original scheduled arrival time.*fn5 Although EU 261 does not explicitly provide compensation for passengers whose flights are delayed, the European Court of Justice ("ECJ") has interpreted EU 261 to require airlines to treat passengers whose flights are delayed by three or more hours as passengers whose flights are cancelled for purposes of the compensation provision. Cases C-402/07 & C-432/07, Sturgeon v. Condor Flugdienst GmbH, 2009 E.C.R. I-10923.
The Varsamis plaintiffs were scheduled to depart on Iberia Flight 3609 on June 25, 2011 from Rome, Italy to Madrid, Spain with continued travel to their final destination of Dallas, Texas. Flight 3609 was delayed over five hours, and as a result, the Varsamis plaintiffs were rerouted by Iberia through Amsterdam, Netherlands with an overnight connection to Dallas. This alternative flight left Rome approximately 11 hours after the Varsamis plaintiffs arrived at the Rome airport for their original flight. When they arrived at the Amsterdam airport, there was no Iberia agent present to assist them or issue them a hotel voucher. As a result, the Varsamis plaintiffs were required to pay for their overnight stay in Amsterdam out of pocket. The Varsamis plaintiffs ultimately reached Dallas on June 26, 2011 almost 21 hours after their original scheduled arrival time. They filed multiple complaints with Iberia through the fax, email and telephone seeking compensation but received only a form email response from Iberia indicating that the airline had received their online submission.
A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6); GE Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). In ruling on a 12(b)(6) motion, the court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis, but must also establish that the requested relief is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); see Bell Atl. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. At the same time, the plaintiff need not plead legal theories. Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010). Rather, it is the facts that count.
An affirmative defense need not be anticipated in the complaint to survive a motion to dismiss. United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). A plaintiff may, however, "plead [himself] out of court by pleading facts that establish an impenetrable defense to [his] claims." Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008). Where "the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense" the court may dismiss a claim in a Rule 12(b)(6) motion if the claim is precluded. Lewis, 411 F.3d at 842.
Iberia argues that the Varsamis plaintiffs' claim is expressly prohibited under Article 29 of the Montreal Convention, which prohibits recovery of non-compensatory damages. The Montreal Convention was adopted in 1999 and came into force in the United States on September 5, 2003. See Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., Ltd., 522 F.3d 776, 780--81 (7th Cir. 2008). It replaced the Warsaw Convention, which had been in effect since 1929 to "achiev[e] uniformity of rules governing claims arising from international air transportation." El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 169, 119 S. Ct. 662, 142 L. Ed. 2d 576 (1999) (quoting E. Airlines, Inc. v. Floyd, 499 U.S. 530, 552, 111 S. Ct. 1489, 113 L. Ed. 2d 569 (1990)). Provisions of the Montreal Convention are similar to those of the Warsaw Convention, leading courts to look to cases interpreting the latter in determining the Montreal Convention's effect. See, e.g., Narkiewicz-Laine v. Scandinavian Airlines Sys., 587 F. Supp. 2d 888, 890 (N.D. Ill. 2008); Schoeffler-Miller v. Nw. Airlines, Inc., No. 08-CV-4012, 2008 WL 4936737, at *3 (C.D. Ill. Nov. 17, 2008); Paradis v. Ghana Airways Ltd., 348 F. Supp. 2d 106, 111 (S.D.N.Y. 2004).
Article 29 of the Montreal Convention, upon which Iberia bases its argument for dismissal, provides:
In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under the Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.
Montreal Convention, art. 29.*fn6 It is settled that the Montreal Convention-like the Warsaw Convention before it-preempts state law causes of action to the extent that they conflict with it. See Giannopoulos v. Iberia Lineas Aereas de Espana, S.A., No. 11 C 775, 2011 WL 3166159, at *4 (N.D. Ill. July 27, 2011). Instead of preempting all state law claims, however, the Montreal Convention's conditions and limits on liability operate as an affirmative defense to ensure that carriers are only subjected to liability as allowed by the Convention. See Narkiewicz-Laine, 587 F. Supp. 2d at 890 ("[C]laims may be brought under the [Montreal] Convention or they may be brought 'in contract or in tort or otherwise' but such claims are subject to an affirmative defense based on the conditions and ...