The opinion of the court was delivered by: Hon. Joan H. Lefkow
Plaintiffs Theodoros and Alexandra Giannopoulos (the "Giannopoulos plaintiffs"), James Mitchell and Lauren Mitchell Varsamis (collectively "plaintiffs") filed this putative class action lawsuit for breach of contract against Iberia Lineas Aereas de Espana, S.A. Operadora, Sociedad Unipersonal ("Iberia") alleging that Iberia failed to compensate them for flight delays as required by Iberia's conditions of contract and Regulation No. 261/2004 of the European Parliament and European Council ("EU 261"). The court previously denied Iberia's motion to dismiss the Giannopoulos plaintiffs' claims, and the airline now moves for summary judgment on the same. In their response brief, plaintiffs concede that the Giannopoulos plaintiffs are not appropriate class representatives but ask this court to deny Iberia's motion with respect to their individual claims. For the reasons set forth herein, Iberia's motion (dkt. #91) will be denied.*fn1
The Giannopoulos plaintiffs, Illinois residents, purchased tickets to fly on Iberia from Chicago, Illinois to Athens, Greece with a connecting flight in Madrid, Spain. (Def.'s SOF ¶¶ 2-- 3.) The Giannopoulos plaintiffs' tickets incorporated Iberia's conditions of contract, which incorporated EU 261. (Id. ¶ 37; Am. Compl. Ex. 2 at 3 of 8.) The conditions of contract included 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.) The conditions of contract also provided 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.)*fn3
Article 7 of EU 261 provides standardized money awards to passengers whose flights are cancelled based on the length in kilometers of the flight. (Am. Compl. Ex. 1, art. 7.)*fn4 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. Article 5 excuses liability under Article 7 if the air carrier "can prove that the cancellation [or delay was] caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken." (Am. Compl. Ex. 1, art. 5(3).)
On May 9, 2010, the Giannopoulos plaintiffs were scheduled to depart on Iberia flight #6274 from Chicago, Illinois to Madrid, Spain. (Def.'s SOF¶ 20.) From Madrid, the Giannopoulos plaintiffs were to continue to their final destination of Athens, Greece, arriving on May 10, 2010. (Id.) During discrete time periods of late April and early May 2010, normal flight operations across the North Atlantic and European airspace were disrupted by a vast volcanic ash cloud caused by volcanic eruptions of the Eyjafjallajokull Volcano in Iceland. (Pls.' Resp. Def.'s SOF ¶ 6.) On May 9, 2010, the Iceland Meteorological Office issued a volcanic ash advisory for the continued eruption of the Eyjafjallajokull Volcano. (Arroyo Decl. ¶ 8 & Ex. B.) This advisory forecasted the ash plume created by the volcano. It showed the volcano's ash cloud extending from Iceland, south through the North Atlantic to almost the tip of Africa and east into parts of Europe, including at times covering Madrid and/or Vienna. (Id.) Guidance from the International Civil Aviation Organization ("ICAO") instructs that "[v]olcanic ash is a known hazard to aircraft, and . . . [an] aircraft encountering volcanic ash must avoid it completely."
(Christensen Decl. Ex. E at 55 of 145.) Iberia procedures similarly require pilots to "[a]void flight into areas of known volcanic activity." (Arroyo Decl. Ex. A at 2 of 39.)
In response to the Eyjafjallajokull Volcano eruption, Iberia's Fight Dispatch Department used meteorological data to create flight plans re-routing flights around airspace with known or forecasted volcanic ash clouds. (Def.'s SOF ¶ 8.) This caused inbound flight #6275 from Madrid to arrive in Chicago a little over two hours late. (Id. ¶ 12.) Consequently, outbound flight #6274, the Giannopoulos plaintiffs' flight, departed Chicago for Madrid just over two hours after its scheduled time of departure. (Id. ¶ 14.) The Flight Dispatch Department also rerouted outbound flight #6275 to the south end of the ash cloud, adding approximately 1,100 nautical miles and 1 hour and 30 minutes to the flight. (Id. ¶ 15.)
Due to the delay and re-routing, Iberia thought it unlikely that the Giannopoulos plaintiffs would reach Madrid in time to connect with their scheduled Athens flight. (Id. ¶ 26.) As a result, two hours after flight #6274 departed Chicago, Iberia reserved space on alternative flights for the Giannopoulos plaintiffs in case they missed their connection. (Calatayud Decl. ¶ 8.) These alternative flights included Iberia flight #3572, which was scheduled to depart Madrid at 3:35 p.m. and arrive in Vienna at 6:25 p.m., and Aegean Airlines flight A3 881, which was scheduled to depart Vienna at 7:00 p.m. and arrive in Athens at 10:20 p.m. (Def.'s SOF¶ 27--28.) This route left the Giannopoulos plaintiffs 35 minutes to make their connecting flight in Vienna. (See id. ¶ 28.)
The Giannopoulos plaintiffs arrived in Madrid on May 10, 2010 at 11:03 a.m., more than three hours after their scheduled arrival time. (Def.'s SOF ¶¶ 16, 26.) Upon their arrival, the Giannopoulos plaintiffs accepted Iberia's proposed re-route and Iberia booked them on the alternative flights just under two hours before the flight #3572 was scheduled to depart Madrid. (Id. ¶ 27; Pls.' Resp. Def.'s SOF ¶ 27.) At the time of the booking, Iberia knew that the volcanic ash cloud was causing significant delays and disruptions in flight operations at the Madrid airport and generally in Europe. (Pls.' Resp. Def.'s SOF ¶ 27.)
The Giannopoulos plaintiffs were scheduled to depart Madrid for Vienna at 3:35 p.m., but due to the volcanic ash cloud they did not depart until 4:44 p.m. (Def.'s SOF ¶¶ 17, 29; Arroyo Decl. ¶ 21.) As a result, the Giannopoulos plaintiffs did not arrive in Vienna until 7:48 p.m., after Aegean Airlines flight A3 881 had already departed. (Def.'s SOF ¶¶ 29--30.) In Vienna, Iberia booked the Giannopoulos plaintiffs on the next available flight to Athens, which was Olympic Airways flight #160, departing on May 11, 2010 at 12:10 p.m. (Id. ¶ 31.) Iberia also provided them with hotel and meal vouchers to use during their overnight stay in Vienna on May 10, 2010. (Id. ¶ 32.) The next day, the Giannopoulos plaintiffs boarded flight #160 without incident and arrived in Athens approximately twenty-four hours after their originally scheduled arrival time. (Id. ¶ 33.) After returning to the United States, the Giannopoulos plaintiffs filed a claim for EU 261 compensation but Iberia denied their request. (Id. ¶ 35; Christensen Decl. Ex. D, T. Giannopoulos Dep. 49:15--19.)
Summary judgment is proper where the movant is entitled to judgment as a matter of law because the "depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials" in the record demonstrate that "there is no genuine issue as to any material fact." Fed. R. Civ. P. 56(a) & (c). In determining whether there is such a genuine issue of fact, the court must "construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The party seeking summary judgment bears the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). This burden is satisfied and summary judgment is proper against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. To avoid summary judgment, the non-moving party must therefore go ...