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Volodarskiy v. Delta Air Lines, Inc.

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

October 16, 2013

GENNADIY VOLODARSKIY and OXANA VOLODARSKAYA on behalf of themselves and their minor children, and RICHARD COHEN on behalf of himself, and all others similarly situated, Plaintiffs,
v.
DELTA AIR LINES, INC., Defendant

Page 785

For Gennadiy Volodarskiy, Oxana Volodarskaya, on behalf of their minor children, and on behalf of herself, and all others similarly situated, Plaintiffs: Daniel O. Herrera, Jennifer Winter Sprengel, Cafferty Clobes Meriwether & Sprengel LLP, Chicago, IL; Vladimir M. Gorokhovsky, Law Offices of Vladimir M. Gorokhovsky, Mequon, WI; Joseph Henry " Hank" Bates, III, Carney Bates & Pulliam, PLLC, Little Rock, AR.

For Delta Airlines, Inc., Defendant: Mark Robert Filip, LEAD ATTORNEY, Gabor Balassa, Martin Louis Roth, Kirkland & Ellis LLP, Chicago, IL.

OPINION

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Memorandum Opinion and Order

Honorable Edmond E. Chang, United States District Judge.

Plaintiffs Gennadiy Volodarskiy, Oxana Volodarskaya, and Richard Cohen bring this putative class action lawsuit against Defendant Delta Air Lines [1] for Delta's alleged failure to comply with Regulation No. 261/2004 of the European Parliament and European Council (EU 261). [2] In their original complaint [R. 1], the Volodarskiys asserted an Illinois breach-of-contract claim against Delta and alleged that EU 261 was incorporated into Delta's International Conditions of Carriage. In October 2012, the Court held that EU 261 was not incorporated into the contract and dismissed Plaintiffs' first complaint for failure to state a claim. R. 87, Order at 12, 16. The Volodarskiys, now joined by Richard Cohen, have since filed an amended complaint [R. 92], abandoning their breach-of-contract claim and instead raising a direct claim under EU 261. Delta now moves to dismiss Plaintiffs' amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons explained more fully below, Delta's motion [R. 96] is granted.

I. Background

In evaluating a motion to dismiss, the Court must accept as true the complaint's factual allegations and draw reasonable inferences in Plaintiffs' favor. Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2079,

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179 L.Ed.2d 1149 (2011). The original putative class representatives, Plaintiffs Gennadiy Volodarskiy and his wife Oxana Volodarskaya, are Illinois residents who purchased tickets to travel with their two minor children from London's Heathrow Airport to Chicago O'Hare Airport on August 17, 2009. R. 92, First Am. Compl. ¶ ¶ 5-6, 18-19. Their flight was delayed at Heathrow Airport for over eight hours, and they arrived in Chicago more than eight hours after the scheduled arrival time. Id. ¶ ¶ 20, 22. The Volodarskiys were not informed of this delay any time before the scheduled departure time, and Delta did not compensate them for the delay. Id. ¶ ¶ 21, 23.

Similarly, Plaintiff Richard Cohen and his wife Inna Cohen are New Jersey residents who were confirmed passengers on a Delta flight from Paris, France to Philadelphia, Pennsylvania on November 29, 2010. Id. ¶ ¶ 7, 24. The Cohens' flight was cancelled nearly three hours after the scheduled departure time, and the Cohens were delayed more than twenty-four hours in arriving in Philadelphia. Id. ¶ 24. Delta also did not compensate the Cohens. Id. ¶ 26. Plaintiff Cohen was added as an additional putative class representative in Plaintiffs' First Amended Complaint. See id. ¶ 7.

The sole claim in Plaintiffs' First Amended Complaint is a direct claim under EU 261. Id. ¶ ¶ 1, 43-45. Adopted in 2004, EU 261 requires airlines to provide standardized compensation to passengers for certain delays and cancellations of flights departing from or arriving at airports in EU Member States. Id. ¶ ¶ 1, 9-13. Because Plaintiffs did not receive compensation for their delayed and cancelled flights, they claim that Delta violated EU 261. Id. ¶ ¶ 1, 44-45.

II. Legal Standard

Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only include " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). This short and plain statement must " give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell A. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted). The Seventh Circuit has explained that this rule " reflects a liberal notice pleading regime, which is intended to 'focus litigation on the merits of a claim' rather than on technicalities that might keep plaintiffs out of court." Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)).

" A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). " [W]hen a ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citing Twombly, 550 U.S. at 555-56); McGowan v. Hulick, 612 F.3d 636, 638 (7th Cir. 2010) (explaining that courts accept factual allegations as true and draw all reasonable inferences in the plaintiff's favor). " [A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570). These allegations " must be enough to raise a right to relief above the

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speculative level." Twombly, 550 U.S. at 555. The allegations that are entitled to the assumption of truth are those that are factual, rather than mere legal ...


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