United States District Court, N.D. Illinois, Eastern Division
ALYONA ADLER, LEONID ADLER, NICOLE ADLER, ILYA TARKOV, RIMMA TARKOV Plaintiffs,
FRONTIER AIRLINES, Defendant.
J. Tharp, Jr. United States District Judge.
reasons stated below, Defendant's motion to dismiss and
sever  is granted. All claims for non-economic damages
are dismissed with prejudice. Claims brought by the Adler
Plaintiffs (who were joined after the Tarkov Plaintiffs) are
severed pursuant to Fed.R.Civ.P. 21; if they wish to pursue
their claims further, the Adler Plaintiffs are required to
refile their claims in a new complaint and as a separate
case; they will also be required to pay a separate filing
fee. Further, the Adler Plaintiffs are directed when filing
the new case to indicate on the Civil Cover Sheet (Section X)
that their case is a refiling of case number 15-cv-3430
previously dismissed by Judge Tharp; the Clerk of the Court
is directed to assign this new case directly to Judge
Tharp's docket. The Tarkov Plaintiffs will be required to
file a fifth amended complaint that omits allegations
relevant only to the Adler claims. Neither revised complaint
should be prepared or filed, however, until after a status
hearing to be held on May 23, 2017 at 9:00 a.m.
Defendant's motion for leave to supplement its motion to
dismiss instanter  is denied without prejudice as moot in
light of this ruling.
plaintiffs' claims in this case are simple (even if the
282-paragraph, 57-page fourth amended complaint that
describes them clearly violates Fed.R.Civ.P. 8(a)'s call
for a “short and plain statement”). Illinois
residents Alyona, Leonid, and Nicole Adler (“the
Adlers”) were scheduled to return to Chicago from Punta
Cana on October 24, 2015 on a Frontier Airlines flight.
Fourth Am. Compl. (“Compl.”) ¶ 251.
According to the complaint, that flight was delayed for four
hours, during which time the Adlers were confined to the
airplane without adequate food or lavatories. Id. at
¶ 254. As a result, the Adlers confusingly assert that
they both missed an “entire day of work” and that
they “lost their unique sight-seeing reservations and
pre-paid sightseeing excursions.” Id. at
¶ 258-59. They also claim damages for “travel
cancelation expenses, loss of vacation time, loss of benefits
of their bargain, per diem and lodging expenses, indifferent
treatment, physical inconvenience, physical discomfort,
physical exhaustion, loss of time, delay, uncertainty, loss
of use of money, loss of use of benefit of bargain and other
legally cognizable damages.” Id. at ¶
seven months earlier, Ilya and Rimma Tarkov (“the
Tarkovs”) had been scheduled to return to Chicago from
Punta Cana on March 28, 2015 on a Frontier Airlines flight.
Compl. ¶ 194. Their flight was delayed and eventually
canceled, forcing the Tarkovs to spend an additional night at
a hotel before being able to return on a Frontier Airlines
flight the following morning. Id. at ¶ 196-98.
The Tarkovs claim they lost “one day of their
employment, ” as well as “additional
transportation expenses incurred at the port of departure and
port of arrival, loss of benefit of their bargain, per diem
and local foodstuffs/refreshment expenses, medicine
procurement expenses, ” “physical inconvenience,
physical discomfort, physical exhaustion, ” “loss
of time, delay, physical anxiety, physical frustration, loss
of use of money and other legally cognizable economic
damages, losses and injuries.” Id. at ¶
208, 210, 212.
Frontier Airlines filed a two-part motion to dismiss. First,
it asked the Court to dismiss all claims for non-economic
damages. Second, it requested the remaining claims be
dismissed or severed under Fed.R.Civ.P. 21. Because
non-economic damages are unavailable and the claims have been
misjoined, the Court grants the motion.
survive a Fed.R.Civ.P. 12(b)(6) motion, a claim must have
facial plausibility meaning “the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). In other words, “a motion to dismiss tests the
legal sufficiency of a pleading.” Szabo v.
Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir.
2001). All well-pleaded facts are taken as true and viewed in
the light most favorable to the plaintiffs. See United
Cent. Bank v. Davenport Estate LLC, 815 F.3d 315, 318
(7th Cir. 2016).
parties agree that all the plaintiffs' claims are brought
under Article 19 of the Montreal Convention, which provides
that international “carriers shall be liable for delay
of passengers, baggage, or cargo" and allows for the
collection of "damages occasioned by delay.”
Convention for International Carriage by Air, S. Treaty Doc.
No. 106-45, 1999 WL 33292734, May 28, 1999. The parties agree
that a carrier like Frontier is not liable for the delay
itself, only damages resulting from the delay. The plaintiffs
concede that “purely emotional damages” are not
allowable damages. See Pl.'s Resp. at 6, ECF No.
31. Instead, the plaintiffs contend they are not seeking
non-economic damages, because all their asserted damages
are economic damages. See
Id. at 8. Specifically, they contend that
“inconvenience damages with nexuses to finical [sic]
injury” are allowed. Id. at 9. No argument is made
by the plaintiffs with regard to the other damages identified
by Frontier as non-economic, including “discomfort,
exhaustion anxiety, frustration, spoliation of their
memorable trip and loss of time.” Def.'s Mot. at 3,
ECF No. 24. It is not clear if the plaintiffs mean to contend
these are encompassed by “inconvenience damages”
or if they intended to waive argument with regard to these
parties also do not dispute that there are some economic
damages that have been alleged by the plaintiffs, including
commonly accepted “travel cancellation expenses such as
the cost of food, a hotel room, and loss of wages.”
See Dochak v. Polskie Linie Lotnicze LOT S.A., No.
15 C 4344, 2016 WL 3027896, at *8 (N.D. Ill. May 27, 2016).
However, the Court agrees with the well-reasoned opinion by
Judge Gettleman that at a minimum “inconvenience
damages must truly encompass economic damages” that are
not duplicative of other economic damages claimed.
Serpytiene v. United Airlines, Inc., No.
1:15-cv-00832, Doc #93 (Aug. 03, 2016). Here, the plaintiffs
have alleged, among other damages, “delay” (which
is clearly not compensable under the terms of the Montreal
Convention itself), “anxiety, ”
“inconvenience, ” “frustration, ” and
at one point “spoliation of their memorable
trip.” Compl. ¶ 17-18. These damages have not been
connected to any particular economic damages and are purely
emotional. While the plaintiffs tout the Eleventh
Circuit's decision in Campbell, the court there
rejected the plaintiff's claims
for inconvenience damages because “Campbell has not
pled that he suffered any harm due to inconvenience.”
Campbell v. Air Jam., Ltd., 760 F.3d 1165, 1171
(11th Cir. 2014). As here, the plaintiffs have not explained
what economic harms, other than the ones listed elsewhere in
their complaint, arose from their various feelings.
Court dismisses with prejudice the non-economic injury claims
because the plaintiffs cannot recover damages for such
injuries under the Montreal Convention. The Court agrees with
Frontier's summary that this leaves the Tarkovs and
Adlers with their claims for lost wages, missed pre-paid
sight-seeing, and out-of-pocket expenses for food,
transportation, lodging, beverages, and medication.
See Def.'s Reply at 6, ECF No. 6. The question
is then whether the claims should proceed as one lawsuit or
be severed under Fed.R.Civ.P. 21.
provides that “misjoinder of parties is not a ground
for dismissing an action” although a court may add or
drop a party or sever claims. Fed.R.Civ.P. 21. The plaintiffs
claim the parties were not misjoined because “all the
above-named Plaintiffs were subjected to travel delays and
cancellations” of their Frontier flights from Punta
Cana to Chicago. Pl.'s Resp. at 7. Generally, parties may
be joined in a lawsuit if “they assert any right to
relief jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence, or
series of transactions or occurrences.” Fed.R.Civ.P.
20(a)(1)(A). There are no hard and fast rules for determining
if conduct is a part of the same transaction or series of
transactions; “[a]mong the factors considered are when
the alleged conduct occurred, whether the same people were
involved, whether the conduct was similar, and whether it
implicated a system of decision-making or widely-held
policy.” Martinez v. Haleas, No. 07 C 6112,
2010 WL 1337555, at *3 (N.D. Ill. Mar. 30, 2010). Here, the
Adlers and Tarkovs flew seven months apart, and there is
nothing to suggest any of the same personnel were involved on
Frontier's side. Furthermore, the conduct alleged is
different and presents different factual questions - the
Tarkovs' flight was canceled and they were forced to stay
another night, while the Adlers merely suffered a few hours
of delay. The Adlers seem to have alleged they were forced to
stay on an airplane for the entirety of their delay, away
from restrooms and food, while the Tarkovs complain they were
forced to spend money acquiring food and a place to stay. The
plaintiffs have not suggested that the delays themselves were
the result of any sort of Frontier-wide policy or other
common cause. Therefore, the parties were misjoined and
the Tarkovs' claims are severed from the Adlers'
under Fed.R.Civ.P. 21.
the Court admonishes Plaintiff's counsel, Vladimir M.
Gorokhovsky, for the quality of his filings to date in this
case. In addition to filing a massive complaint in a
relatively simple case in violation of Rule 8, Mr.
Gorokhovsky has been unable to even keep straight who the
defendant is in this case. Apparently reflecting a use of
boilerplate pleadings, the complaint in this case refers
twice to “United Airlines” (which is not, and has
never been, a party in this case) and Mr. Gorokhovsky refers
to “United Airlines” three times in his
four-paragraph opposition to the motion to dismiss.
See Compl. ¶ 43, 103; Pl.'s Opp. at 2, ECF
No. 31 ¶ 2, 3. Other legal and factual inconsistencies
have abounded in Mr. Gorokhovsky's filings. For example,
the complaint alleges jurisdiction under the Class Action
Fairness Act, 28 U.S.C. § 1332, despite the fact that
the complaint pleads an amount in controversy below $5, 000,
000, which renders jurisdiction under CAFA legally impossible
on the terms of the complaint. The Court expects Mr. Gorokhovsky
to proceed with greater diligence going forward.