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Kogan v. Scandinavian Airlines System

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

May 23, 2017

ELLEN KOGAN, Plaintiff,
v.
SCANDINAVIAN AIRLINES SYSTEM, a foreign corporation Defendant.

          MEMORANDUM OPINION AND ORDER

          Gary Feinerman Judge

         Ellen Kogan sued Scandinavian Airlines System (“SAS”) for breach of contract and violation of the Convention for the Unification of Certain Rules for International Carriage by Air (“Montreal Convention”) after her flight from Copenhagen, Denmark, to Chicago was delayed by several hours. Doc. 22. Kogan initially sought to represent a class, Doc. 25, but she later abandoned her class claims, Doc. 99; Doc. 129 at ¶ 1; Doc. 140-3 at ¶ 1. Kogan also tried to add as a second plaintiff an individual who suffered delays on other SAS flights, Doc. 51, but the court denied her request, Doc. 64 (Bucklo, J.). SAS now moves for partial summary judgment on most of Kogan's claims. Doc. 128. The motion is granted.

         Background

         The facts are set forth as favorably to Kogan as the record and Local Rule 56.1 permit. See Canen v. Chapman, 847 F.3d 407, 412 (7th Cir. 2017). On summary judgment, the court must assume the truth of those facts, but does not vouch for them. See Arroyo v. Volvo Grp. N. Am., LLC, 805 F.3d 278, 281 (7th Cir. 2015).

         Kogan is an Illinois resident. Doc. 129 at ¶ 12; Doc. 140-3 at ¶ 12. SAS is an international airline based in Sweden. Doc. 129 at ¶ 13; Doc. 140-3 at ¶ 13. On August 24, 2014, Kogan was scheduled to fly from Copenhagen to Chicago on SAS Flight No. SK 943. Doc. 129 at ¶ 3; Doc. 140-3 at ¶ 3. Flight 943's arrival in Chicago was delayed by approximately five hours. Doc. 129 at ¶ 3; Doc. 140-3 at ¶ 3.

         While delayed at the Copenhagen airport, Kogan spent $285 on sanitary napkins, water, and two meals. Doc. 129 at ¶ 10 (asserting this fact, with proper citation to Kogan's deposition testimony); Doc. 129-1 at 43, p. 63 (Kogan's testimony, supporting the assertion); Doc. 140-3 at ¶ 10 (denying the assertion, with citation to portions of the deposition that do not contradict it). Kogan also gave $150 in cash to another traveler after borrowing his cell phone to notify acquaintances in the United States of the delay. Doc. 129 at ¶ 10 (asserting that Kogan spent $150 for “international telecommunication expenses, ” with proper citation to her deposition testimony); Doc. 129-1 at 40, pp. 50-51 (Kogan's testimony, supporting the assertion); Doc. 140-3 at ¶ 10 (denying the assertion, with citation to portions of the deposition that do not contradict it). The delay also caused Kogan to miss a family reunion, for which she had already incurred $200 in prepaid expenses. Doc. 129 at ¶ 10 (asserting this fact, with proper citation to Kogan's deposition testimony); Doc. 129-1 at 44, pp. 66-67 (Kogan's testimony, supporting the assertion); Doc. 140-3 at ¶ 10 (denying the assertion, with citation to portions of the deposition that do not contradict it). Upon arriving at O'Hare International Airport in Chicago, Kogan paid $60 for a taxi home. Doc. 129 at ¶ 10 (asserting this fact, with proper citation to Kogan's deposition testimony); Doc. 129-1 at 42, p. 58 (Kogan's testimony, supporting the assertion); Doc. 140-3 at ¶ 10 (denying the assertion, with citation to portions of the deposition that do not contradict it). Kogan claims these expenses, which total $695, as economic damages stemming from the delay. Doc. 129 at ¶ 9 (asserting this fact, with proper citation to Kogan's interrogatory response); Doc. 129-1 at 81 (Kogan's interrogatory response, supporting the assertion); Doc. 140-3 at ¶ 9 (denying the assertion, with citation to portions of Kogan's deposition that do not contradict it). Although Kogan has no documentation of these expenses, Doc. 129 at ¶ 11; Doc. 140-3 at ¶ 11, SAS does not contest them.

         In addition, Kogan asserts that the delay of Flight 943 caused her to miss a business meeting, harming her future employment prospects. Doc. 129-1 at 45-46, pp. 70-74; Doc. 140-4 at ¶¶ 1-3. According to her testimony, the meeting was to take place at 8:00 p.m. on the night of her scheduled arrival (a Sunday), with an individual whom she refused to identify, so that she could sign an employment contract worth $45, 000 per year. Doc. 129-1 at 45, pp. 70-72. Although she claimed to have already interviewed for, had extensive discussions about, and even been offered the job in question, Kogan has no written job offer or any other corroborating documents. Id. at 46, pp. 73-74. Kogan testified that, because she missed the Sunday night meeting, somebody else got the job instead. Id. at 46, p. 74. Kogan also testified that she felt ill and vomited several times during the delay, the flight to Chicago, and the days that followed, causing her to miss three days of work. Id. at 34, p. 25; id. at 44-45, pp. 68-69; id. at 48, p. 84; Doc. 140-4 at ¶ 4.

         Discussion

         Kogan brings a direct claim for compensation under the Montreal Convention, as well as a claim under her airfare contract with SAS, which she alleges promised her compensation according to the terms of the Montreal Convention and/or European Union Regulation (EC) No. 261/2004 (“EU 261”). Doc. 22. SAS's motion for partial summary judgment seeks (1) a ruling that Kogan is not entitled to any compensation under the terms of EU 261 and (2) a ruling limiting her potential compensation under the Montreal Convention to $695. Doc. 128. SAS does not at this stage dispute that Kogan is entitled to compensation under the Montreal Convention, either directly or via the Convention's incorporation into her airfare contract.

         I. EU 261

         EU 261, a regulation setting forth a framework for ensuring that passengers are adequately compensated for flight delays and cancellations, is not directly enforceable in United States courts. See Baumeister v. Deutsche Lufthansa, AG, 811 F.3d 963, 966 (7th Cir. 2016); Volodarskiy v. Delta Airlines, Inc., 784 F.3d 349, 357 (7th Cir. 2015) (“[W]e conclude that EU 261 is not judicially enforceable outside the courts of EU Member States.”). The Seventh Circuit has left open the question whether an airline can incorporate EU 261 by reference into its airfare contract with a passenger, thereby voluntarily assuming an enforceable duty to comply with its terms. See Baumeister v. Deutsche Lufthansa, AG, 811 F.3d 963, 966 (7th Cir. 2016) (“We'll assume for purposes of this appeal that Baumeister can indeed bring a breach of contract suit to enforce [EU 261], although it can be questioned how a promise to abide by it could be enforced in U.S. courts given our holding in Volodarskiy that the regulation can be enforced only in European courts or agencies.”). It is not necessary to resolve that question here because even if EU 261 could be rendered enforceable in that way, SAS's airfare contract with Kogan does not attempt to incorporate EU 261 by reference.

         Kogan's contract claims are governed by Illinois law because she filed suit in a district court located in Illinois and neither party argues choice of law. See Ryerson Inc., v. Fed. Ins. Co., 676 F.3d 610, 611 (7th Cir. 2012). To determine whether a contract incorporates by reference another document, the touchstone is the parties' intent. See 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 736 (7th Cir. 2002) (“For a contract to incorporate all or part of another document by reference, the reference must show an intention to incorporate the document and make it part of the contract.”); Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 664 (7th Cir. 2002) (“The contract must show an intent to incorporate the other document and make it a part of the contract itself.”); Dochak v. Polskie Linie Lotnicze LOT S.A., 189 F.Supp.3d 798, 802 (N.D. Ill. 2016) (“The party seeking to enforce the terms of the allegedly incorporated document must show an intention to incorporate the document and make it a part of the contract.”) (internal quotation marks and ellipsis omitted). The intent to incorporate by reference must be discernible within the contract's four corners, see Rosenblum, 299 F.3d at 664, and the incorporation must be “clear and specific, ” 188 LLC, 300 F.3d at 736. “Mere reference to another contract or document is not sufficient to incorporate its terms into a contract.” Rosenblum, 299 F.3d at 666.

         Kogan contends that SAS incorporated EU 261 into its airfare contract through Paragraph 17.2 of the Conditions of Carriage. Doc. 140 at ...


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