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Shabotinsky v. Deutsche Lufthansa, AG

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

March 27, 2017

DAVID SHABOTINSKY, on behalf of himself and all other similarly situated members of both proposed classes of passengers, Plaintiffs,
DEUTSCHE LUFTHANSA AG, a foreign corporation, Defendant.


          Elaine E. Bucklo United States District Judge

         Plaintiff David Shabotinsky (“Shabotinsky”) brings this putative class action against Deutsche Lufthansa AG (“Lufthansa”) for violations of the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45 (the “Montreal Convention” or “the Convention”). Lufthansa has moved to dismiss the complaint pursuant to Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure. In addition, Lufthansa has separately moved to impose sanctions on plaintiff's counsel pursuant to Rule 11 of the Federal Rules of Civil Procedure. For the reasons discussed below, the motion to dismiss is granted in part and denied in part, and the motion for sanctions is denied.


         For purposes of a Rule 12(b)(6) motion to dismiss, I take the complaint's allegations as true and draw all reasonable inferences in the plaintiff's favor. See, e.g., Lavalais v. Village of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013). Shabotinsky alleges that in May 2014, he held tickets for an August 24, 2014 Lufthansa flight from Chicago to Tel Aviv, Israel. The first leg of the flight was from Chicago to Frankfurt, Germany; the second was from Frankfurt to Tel Aviv.

         According to Shabotinsky, he was notified on or about August 23, 2014 that the flight from Frankfurt to Tel Aviv had been cancelled and that he had been re-booked on another flight from Frankfurt to Tel Aviv.[1] The new flight's departure time was four hours later than the original flight's. Shabotinsky claims that he was “estranged” at Frankfurt International Airport while waiting for his connecting flight and incurred out-of-pocket expenses for food, refreshments, medications, and telecommunication services. Am. Compl. ¶ 5. He further alleges that he arrived in Tel Aviv almost five hours later than he had been scheduled to arrive on the original flight, and that as a result, he missed the event for which he had taken the trip.

         Shabotinsky initially filed a ninety-two-page complaint alleging claims against Lufthansa under the Montreal Convention as well as Regulation No. 261/2004 of the European Parliament and European Council (“EU 261”). He also asserted claims for breach of contract. In addition to moving to dismiss the complaint, Lufthansa also sought sanctions based on the length of Shabotinsky's pleading and the asserted baselessness of certain of his claims. Shabotinsky was given leave to file an amended complaint, which ultimately dropped all claims save those arising under the Montreal Convention. The amended complaint asserts three such claims, each based on Article 19 of the Convention, which provides:

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

Montreal Convention, art. 19.

         Count I of the amended complaint is based on damages Shabotinsky and other alleged class members suffered as a result of the flight's delay. Counts II and III appear to be based on Lufthansa's failure to “meaningfully consider” Shabotinsky's and other class members' pre-suit “notices of claim” and settlement offers.

         II. Motion to Dismiss

         A. Rule 8

         Lufthansa argues that the amended complaint should be dismissed for failing to comport with Federal Rule 8(a)'s requirement that plaintiffs provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Lufthansa acknowledges that the current pleading has been considerably shortened (from over ninety pages to thirty-five) but it insists that the amended complaint is still too long for a dispute involving a flight delay of no more than five hours. While I agree that Shabotinsky's complaint could be more concise, it provides Lufthansa with fair notice of the nature of Shabotinsky's claims. See, e.g., Pumputiena v. Deutsche Lufthansa, AG, No. 16 C 4868, 2017 WL 66823, *3 (N.D. Ill. Jan. 6, 2017) (declining to dismiss on the basis of Rule 8 a seventy-five page complaint drafted by plaintiff's counsel in this case, despite the fact that the “complaint is way too long, riddled with typographical and other errors, laced with irrelevant material, and poorly organized”). Accordingly, Lufthansa's motion to dismiss based on Rule 8 is denied.

         B. Rule 12(b)(6)

         Lufthansa additionally argues that the amended complaint fails to state a claim under Rule 12(b)(6) because Shabotinsky's causes of action are not covered by the Montreal Convention and because he has failed to allege compensable damages under the Convention. Lufthansa also argues that Shabotinsky's class claims must be dismissed. I consider these contentions in turn.

         1. The Montreal Convention

         Lufthansa first argues that Shabotinsky's claims must be dismissed because they are not covered by the Montreal Convention. This is so, according to Lufthansa, because the Convention does not govern matters occurring prior to a flight's departure but instead applies only after “‘the passenger presents herself to the carrier or its agents as ready to begin the air journey.'” Def.'s Mem. at 6 (quoting Lathigra v. British Airways PLC, 41 F.3d 535, 539 (9th Cir. 1994)). Lufthansa maintains that Shabotinsky's complaint is based on pre-departure “scheduling and ticketing issues, ” Def.'s Reply Br. at 6, not on a delay in his transportation or carriage. As a result, Lufthansa contends that Shabotinsky's dispute is governed by his contract with the airline (i.e., the Conditions of Carriage), rather than the Montreal Convention.[2]

         I am unpersuaded. As another court in this district recently observed in rejecting the argument Lufthansa presents here, “nothing in Article 19 of the Montreal Convention suggests that it only applies to delays that occur after a plaintiff's initial flight takes off.” Dochak v. Polskie Linie Lotnicze LOT S.A., 189 F.Supp.3d 798, 808 (N.D. Ill. 2016). Courts have frequently been called upon to decide whether a passenger's claim sounds in contract or arises under the Montreal Convention. Case authority makes clear that the answer to this question depends not on whether the plaintiff's claim arose before or after a flight's departure, but whether the airline failed completely to perform under the contract (by, for example, “bumping” a passenger or otherwise failing to transport him to his destination) or merely caused a delay in the passenger's arrival. Claims alleging nonperformance are regarded as claims for breach of contract; claims alleging delay are governed by the Convention. See, e.g., Wolgel v. Mexicana Airlines, 821 F.2d 442, 445 (7th Cir. 1987) (“This case is one of nonperformance of a contract. The Wolgels are not attempting to recover for injuries caused by their delay in getting to Acapulco. Rather, their complaint is based on the fact that, as far as the record shows, they never left the airport. Because the Wolgels' claim is for total nonperformance of a contract, the Warsaw Convention[3] is inapplicable.”); In re Nigeria Charter Flights Contract Litig., 520 F.Supp.2d 447, 455 (E.D.N.Y. 2007) (“The plain language of Article 19 of the Montreal Convention indicates that it governs claims for delay, not nonperformance.”); Ratnaswamy v. Air Afrique, No. 95 C 7670, 1998 WL 111652, at *4 (N.D. Ill. Mar. 3, 1998) (plaintiffs' claims fell within purview of Warsaw Convention because they were “not attempting to recover for total nonperformance of their contract with Air Afrique” but instead were “seeking compensation for damages they allegedly sustained as a result of their delay in leaving Africa”). Here, Shabotinsky does not allege that Lufthansa failed to perform its obligation to transport him to Tel Aviv; he maintains that Lufthansa failed to transport him to Tel Aviv on time. Because his claims are based on delay, not nonperformance, they fall under the Montreal Convention.

         Lufthansa's reliance on Lathigra v. British Airways, is misplaced. There, the plaintiffs were traveling from Seattle to Madagascar via British Airways (“BA”) with a connecting flight on Air Mauritius from Nairobi, Kenya to Antananarivo, Madagascar. Several days before the flight, the plaintiffs confirmed their reservations with BA but BA failed to inform them that the Air Mauritius flight had been discontinued. As a result, the plaintiffs were stranded for several days in Kenya. The plaintiffs brought a negligence claim against BA in state court. BA removed the suit to federal court, arguing that the claim was governed by the Warsaw Convention. The Ninth Circuit disagreed, holding that the Warsaw Convention applied “only to actions for delays related to the performance of the international transportation.” Id. at 539. Because the plaintiffs' claim arose out of BA's confirmation of their reservation several days before their flight, the Warsaw Convention did not apply.

         Unlike the plaintiffs in Lathigra, Shabotinsky does not allege that Lufthansa was negligent in failing to inform him of the changes to his flight. As already noted, his claims are based on Lufthansa's failure to transport him to Tel Aviv on time. Lufthansa cites the Lathigra court's remark that “[o]nce the passenger presents herself to the carrier or its agents as ready to begin the air journey, the Convention generally governs liability for delays in the carrier's performance, and its provisions apply until completion of disembarkation at the destination airport.” Id. at 539. But nothing in Lathigra suggested that the Warsaw Convention was never applicable to delays resulting from activity occurring prior to takeoff. In fact, the court expressly refrained from offering any opinion as to whether the Warsaw Convention applied to decisions regarding ‚Äúchanges and schedules and frequencies [] ...

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