Shabotinsky v. Deutsche Lufthansa, A.G.

Filing 66

MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 3/27/2017. Mailed notice. (mgh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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

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Case No. 16 C 4865

MEMORANDUM OPINION AND ORDER
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.
I.

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.

1
Lufthansa contends that the email was sent on August 21, 2014,
and has submitted a copy of the email, which is dated August 21,
2014. Even if I were to take judicial notice of the email,
however, it would not show that Shabotinsky received it on the
date on which it was sent. In any case, the issues raised in
this motion do not turn on the precise date on which Shabotinsky
received the email.
2 

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.

3 

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
4 

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

2
 Lufthansa further argues that any claim under the Conditions of
Carriage must fail because they expressly permit Lufthansa to
make schedule changes. Because I conclude that Shabotinsky’s
claims arise under the Montreal Convention rather than the
Conditions of Carriage, I do not address these arguments.

5 

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 Convention3 is inapplicable.”); In re Nigeria Charter

3
The Warsaw Convention is the Montreal Convention’s predecessor.
As a result, courts rely on the Warsaw Convention in
6 

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.

interpreting the Montreal Convention where the two conventions’
provisions are similar. See, e.g., Narayanan v. British Airways,
747 F.3d 1125, 1127 n.2 (9th Cir. 2014) (“Although designed to
replace the Warsaw Convention, the Montreal Convention
incorporates many of its substantive provisions. Accordingly, in
interpreting the Montreal Convention, courts have routinely
relied upon Warsaw Convention precedent where the equivalent
provision in the Montreal Convention is substantively the
same.”) (citations omitted). The Warsaw Convention’s provision
relating to delays in carriage is essentially the same as the
Montreal Convention’s. Compare Warsaw Convention, Art. 19 (“The
carrier is liable for damage occasioned by delay in the carriage
by air of passengers, luggage or goods.”) with Montreal
Convention, Art. 19 (“The carrier is liable for damage
occasioned by delay in the carriage by air of passengers,
baggage or cargo.”).
7 

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
8 

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
“changes and schedules and frequencies [] necessarily occurring
hours or days before departure.” Id. Hence, the fact that
Shabotinsky’s delay resulted from a scheduling change prior to
his flight’s departure does not place his claims outside the
Montreal Convention’s scope.
In short, I conclude that Shabotinsky’s claims are based on
delay rather than nonperformance and are therefore properly
asserted under the Montreal Convention.
2.

Damages

Lufthansa next argues that Shabotinsky’s claims must be
dismissed because he has failed to allege compensable damages.
Lufthansa contends that the Montreal Convention allows recovery
only for economic damages and asserts that Shabotinsky has
failed to allege any such damages. I disagree.
It is true that Shabotinsky’s amended complaint appears to
seek recovery for some non-economic damages. For example, in
various places, he appears to request compensation for
9 

“inconvenience, tardiness, loss of time, loss of pre-planned
sight-seeing activities, ... [and] psychical exhaustion.” Am.
Compl. ¶ 126. In his response brief, however, Shabotinsky “urges
this Court to note that the Plaintiff is only requesting award
of actual economic damages.” Pl.’s Resp. Br. at 11. Thus, to the
extent that Shabotinsky may formerly have sought relief for noneconomic damages, I understand him now to have abandoned the
request. For present purposes, the relevant point is that
Shabotinsky alleges some forms of harm that are indisputably
economic (e.g., out-of-pocket expenses for food, Am. Compl. ¶
52). While the value of Shabotinsky’s claims is potentially
quite limited, the harm he alleges is compensable under the
Convention.
In the alternative, Lufthansa argues that the amended
complaint alleges economic damages of only $150 and asks that
Shabotinsky’s damages be capped at that amount. In point of
fact, however, Shabotinsky offers several different damage
amounts. In some places, he claims that he and putative class
members suffered “out-of-pocket, Per Diem and general damages in
the sum of $150.” Am. Compl. ¶ 104. In other places, he asserts
that he and other class members “were needlessly subjected to
compensable damages in the set amount of 4694 SDR4 or $6467.94

4
“SDR” refers to “Special Drawing Rights,” “an artificial
currency, the exchange rate for which is published daily by the
10 

per class member or alternatively in the sum of in the sum of
$300 or in the sum to be ascertained and proven at appropriate
stages of this litigation.” Am. Compl. ¶ 105. In light of this
ambiguity, capping Shabotinsky’s damages at $150 would be
inappropriate.
Accordingly, Lufthansa’s motion to dismiss is denied
insofar as it is based on Shabotinsky’s purported failure to
allege economic damages.
3.

Counts II and III

Count II of Shabotinsky’s complaint is styled as a “Claim
for Failure to Meaningfully Consider Pre-Suit Notices of Claims
Submitted to Defendant per Art. 19 and 22(6) of the Montreal
Convention and Failure to Pay for Damages Caused by Delay or
Cancellation of International Airfare Pursuant to Article 19 and
22(6) of the Montreal Convention”; Count III is styled as a
“Cause of Action Under Art. 19 and 22(6) of the Montreal
Convention for Failure to Comply with Statutory Duty to
Meaningfully [sic] Pre-Suit Notices of Claims and Demands for

International Monetary Fund.” Ekufu v. Iberia Airlines, No. 12
CV 6669, 2014 WL 87502, at *4 (N.D. Ill. Jan. 9, 2014)
(quotation marks omitted). “The value of an SDR fluctuates based
on the global currency market, and, under the Montreal
[Convention], Art. 23, is determined at the date of judgment.”
Id. (quotation marks omitted). For the week of March 23, 2017,
one SDR is equal to .734 U.S. Dollars. See https://www.imf.org
/external/np/fin/data/rms_five.aspx.

11 

Pre-Suit Settlements Submitted to Defendant Pursuant to Art.
22(6) of the Montreal Convention.”
Both counts are based on Shabotinsky’s apparent assumption
that Article 22(6) of the Convention requires plaintiffs to
serve airlines with formal “Notices of Claim” or demands for
settlement prior to bringing suit, and that air carriers are
required to give “meaningful consideration” to such claims and
demands. This is mistaken. Article 22(6) provides:
The limits prescribed in Article 21 and in this
Article shall not prevent the court from awarding, in
accordance with its own law, in addition, the whole or
part of the court costs and of the other expenses of
the litigation incurred by the plaintiff, including
interest. The foregoing provision shall not apply if
the amount of the damages awarded, excluding court
costs and other expenses of the litigation, does not
exceed the sum which the carrier has offered in
writing to the plaintiff within a period of six months
from the date of the occurrence causing the damage, or
before the commencement of the action, if that is
later.
Montreal Convention, art. 22(6).
As the plain language of the article makes clear, it merely
provides that the limits on damages otherwise applicable under
the Convention do not prevent courts from awarding fees and
costs to a prevailing party -- so long as the plaintiff’s
damages are less than any settlement amount previously offered
by the air carrier. See, e.g., Bytska v. Swiss Int’l Air Line,
Ltd., No. 15-CV-483, 2016 WL 6948375, at *3 (N.D. Ill. Nov. 28,
2016) (“The text of the first sentence of Article 22(6) does no
12 

more than authorize a court to apply its domestic law as the
rule of decision when a party requests costs and fees.”).
Article 22(6) does not require plaintiffs to submit pre-suit
notices of claim or settlement demands to defendants, much less
does it impose a “statutory duty” to “meaningfully consider”
such claims and demands. See, e.g., Pumputiena, 2017 WL 66823,
at *7 (“[Article 22(6)] is designed to encourage settlement by
exempting litigation-related attorney fees and expenses allowed
under domestic law from the Montreal Convention’s damage
ceilings, except where the airline’s offer of judgment exceeds
the plaintiff’s ultimate recovery, but it does not require the
airline to offer a settlement or even to negotiate in good
faith.”).
Because Counts II and III seek to hold Lufthansa liable for
violating a non-existent legal requirement, both claims are
dismissed.
4.

Class Action Allegations

Lastly, Lufthansa argues that Shabotinsky’s class action
claims should be dismissed. The amended complaint appears to
describe two classes. The first (“Class 1”) consists of all
persons who had confirmed reservations on Flight LH 690 from
Frankfurt to Tel Aviv, and who: (1) submitted a pre-suit demand
for compensation that Lufthansa improperly rejected or failed
meaningfully to consider; (2) were not “adequately informed by
13 

Lufthansa of the delay or cancellation less than seven days
before the scheduled time of departure and [were] not offered
meaningful re-routing, allowing them to depart no more than one
hour before the scheduled time of departure and to reach their
final destination less than two hours after the scheduled time
of arrival”; Am. Compl. ¶ 66(a)(6); (3) were affected by the
delay or cancellation for at least three hours; and (4) did not
receive advance notice of the cancellation. The second class
(“Class 2”) is identical to the first, except that it applies to
“any international flights between countries [that are]
signatories to the Montreal Convention as operated by Lufthansa
since August of 2014.” Id. ¶ 66(a)(2).
Shabotinsky contends that Lufthansa’s motion to dismiss the
class action claims is premature. It is true that “[a]s a
general rule, whether a suit can be maintained as a class or
collective action is determined not on a Rule 12(b)(6) motion,
but on a motion to certify a class action under Rule 23.”
Dominguez v. Micro Ctr. Sales Corp., No. 11 C 8202, 2012 WL
1719793, at *2 (N.D. Ill. May 15, 2012). Nevertheless, the
Seventh Circuit has observed that courts have an “independent
obligation to decide whether an action brought on a class basis
is to be so maintained,” and that a court may therefore “deny
class certification even before the plaintiff files a motion
requesting certification,” Kasalo v. Harris & Harris, Ltd., 656
14 

F.3d 557, 563 (7th Cir. 2011); see also McCrary v. Stifel,
Nicolaus & Co., 687 F.3d 1052, 1059 (8th Cir. 2012)(“[C]lass
claims that fail to meet the requirements of Rule 23 may be
properly dismissed by granting a Rule 12(b)(6) motion.”). I
consider each class separately.
(a)

Class 1

Lufthansa argues that the class claims pertaining to Class
1 must be dismissed on several grounds. First, Lufthansa takes
issue with requirement (1), which limits the class to those who
submitted a pre-suit notice of claim or settlement demand to
Lufthansa. This requirement seems to be based on Shabotinsky’s
mistaken notion, discussed above, that Article 22(6) of the
Montreal Convention requires plaintiffs to present carriers with
such notices and demands prior to filing suit. However, the fact
that the Convention in fact requires no such pre-suit
communications at most shows only that requirement (1) is
superfluous; it does not show that the requirement vitiates the
class or warrants dismissal of the claims based on it.
Lufthansa also maintains that the claims based on Class 1
must be dismissed in light of requirement (4), which limits the
class to those who did not receive advance notice of the
flight’s cancellation. Lufthansa argues that the flight from
Frankfurt to Tel Aviv was rescheduled, not cancelled. In
addition, Lufthansa contends that Shabotinsky received advance
15 

notice of the flight’s cancellation (or rescheduling), and that,
as a result, he is excluded from the class by virtue of
requirement (4).
These arguments are largely terminological. There is
nothing especially significant about the complaint’s use of the
term “cancelled” rather than “rescheduled.” Shabotinsky appears
to contend that his original flight from Frankfurt to Tel Aviv
was cancelled and then rescheduled; Lufthansa contends that the
flight was simply rescheduled. Lufthansa offers no reason for
thinking that this is anything but a verbal disagreement. As for
requirement (4)’s reference to “advance notice,” the amended
complaint does not clearly define what the term entails. As
noted above, Shabotinsky was alerted to the changes to his
itinerary no earlier than three days before his scheduled
departure time. If “advance notice” means more than three days’
notice, Shabotinsky would not have received advance notice and
would not be excluded from the class. Thus, requirement (4)’s
references to “cancellation” and “advance notice” do not warrant
dismissal of the class claims based on Class 1.
Nevertheless, I have concerns regarding Class 1’s
viability. At a hearing on Lufthansa’s motions to dismiss and
for sanctions, plaintiff’s counsel further limited the potential
class. When questioned as to how he would prove his case with
respect to non-American passengers who took only the flight from
16 

Frankfurt to Tel Aviv, and whether this court would even have
jurisdiction over these people, counsel stated that his class
was limited to American passengers who took both flights, the
flight from Chicago to Frankfurt, and the second flight from
Frankfurt to Tel Aviv. While I am somewhat skeptical as to
whether that group, if there is a group at all, will be
numerically sufficient to constitute a class for purposes of
Fed. R. Civ. P. 23, I will not dismiss the claims pertaining to
this potential class at this time.
(b)

Class 2

Class 2 suffers from the opposite problem and raises more
thoroughgoing concerns. As noted above, Class 2 is identical to
Class 1, except that it essentially applies to all international
Lufthansa flights since August 2014. Such a class would
encompass disparate claims based on delays arising in connection
with hundreds of flights. A class of such proportions is not
maintainable. Plaintiff’s counsel proposed a similar class in
Pumputiena, which asserted claims under the Montreal Convention
against United Airlines as well as Lufthansa.5 There, the
proposed class consisted of all passengers on any international

The claims in Pumputiena were originally combined in a single
complaint along with those in this case and those in Godun v.
United Airlines, Inc., 16 C 4869 (N.D. Ill. filed Dec. 9, 2015).
Judge Gettleman severed the actions. See Serpytiene et al v.
United Airlines Inc., No. 15 C 832 (N.D. Ill. filed Jan. 28,
2015), ECF No. 79.
5

17 

United flight since June 8, 2015. Id. at *2. In granting United
Airlines’ motion to strike6 the claims based on the proposed
class, the court explained:
The question that is apt to drive the resolution of
the litigation, is whether United, as Article 19
states, took all measures that could reasonably be
required to avoid the damage or that it was impossible
for it ... to take such measures. If so, then United
is not liable under Article 19, and if not, then
United likely is liable under Article 19.... [T]hat
question might possibly be answered on a flight-byflight basis, but not across the hundreds or thousands
of delayed flights since June 2015. It follows that
the ... [class] could not possibly be certified,
meaning that it is appropriate to strike those class
allegations at the pleading stage.
Id. at *10 (citation and quotation marks omitted). For the same
reasons, the class claims based on Class 2 in this case must be
dismissed.
Shabotinsky’s sole argument in response is a lengthy
quotation from Dochak v. Polskie Linie Lotnicze LOT S.A., 189 F.
Supp. 3d 798 (N.D. Ill. 2016), in which the court declined to
address a motion to dismiss class claims prior to a motion for
class certification. As Lufthansa points out, however, the
classes in Dochak were not challenged on the basis asserted

6
Although brought by United Airlines as a motion to dismiss the
class claims, the court construed it as a motion to strike
because United had not moved to dismiss all of the plaintiff’s
claims against it. See Pumputiena, 2017 WL 66823, at *6
(“Although United moves to ‘dismiss’ ... the putative class
claims, because it does not move to dismiss all of Pumputiena’s
claims against it, the court construes that part of the motion
as a motion to strike under Civil Rule 12(f).”).
18 

here. Rather, the defendant airline in that case advanced only a
more general argument that claims arising under the Montreal
Convention and EU 261 required individualized assessment and
were therefore inappropriate for class treatment.
For these reasons, I dismiss Shabotinsky’s class claims
insofar as they relate to Class 2 but not as to Class 1.
III. Motion for Sanctions
As noted above, Lufthansa has separately moved for Rule 11
sanctions against Shabotinsky’s counsel. Specifically, Lufthansa
asserted that: (1) Shabotinsky’s counsel had no objectively
reasonable basis for asserting claims under European Union
Regulation (EC) No. 261/2004 (“EU 261”); (2) he lacked any basis
for claiming that the Montreal Convention establishes a “set
amount” of recovery for violations of Article 19; (3) the
complaint’s length, at ninety-two pages, violated Fed. R. Civ.
P. 8 and is part of a “pattern of inundating Lufthansa with
unmanageable court filings”; and (4) that Shabotinsky’s counsel
had no objective, good-faith ground for bringing the claims on a
class-wide basis.
In a previous order, I declined to impose sanctions based
on ground (1) because Shabotinsky abandoned his EU 261 claims in
his amended pleading. Likewise, I denied the motion for
sanctions as to ground (3) because the length of the amended
complaint had been reduced to roughly a third of the original
19 

complaint’s length. I deferred ruling on grounds (2) and (4)
pending a response from Shabotinsky’s counsel.
Ground (2) claims that Shabotinsky’s complaint posits that
the Montreal Convention establishes a “set amount” of recovery
-- i.e., 4,694 SDR -- for violations of Article 19 of the
Montreal Convention.7 As Lufthansa correctly points out, this
figure represents a cap on damages, not a specified amount to be
awarded for every violation of Article 19. Because there is no
basis for the “set amount” theory, Lufthansa argues that
Shabotinsky’s counsel should be sanctioned for asserting it.
In response, Shabotinsky’s counsel agrees that the 4,694
SDR figure represents a cap on recovery and states that he did
not intend to suggest otherwise. He notes that the complaint
itself describes the 4,694 SDR amount as a cap. See Comp. ¶ 82
(asserting that “the Montreal Convention provides a cap of 4694
SDR on recoverable damages.”); Am. Compl. ¶¶ 12, 34. However,
Shabotinsky’s counsel also uses the expression “set amount” in
describing the figure. See, e.g., Compl. ¶¶ 172, 192, 218, 305
(alleging that “each and every member of class [was] needlessly
subjected to compensable damages in the set amount of 4694
SDR”). This is true even in the amended complaint, which was

7
Under the current exchange rate, 4,694 SDR is equivalent to
roughly U.S. $3,445.
20 

filed after Lufthansa raised the issue in its motion for
sanctions. See Am. Compl. ¶¶ 105, 125.
It is unclear whether Shabotinsky’s counsel’s continued
reference to a set amount of recovery reflects a linguistic
confusion, poor draftsmanship, or a substantive misapprehension
of the law. Nevertheless, the issue is a relatively minor one,
and it does not appear that opposing the complaint’s purported
“set amount” theory has required significant effort on
Lufthansa’s part.
Ground (4) of Lufthansa’s motion similarly contends that
Shabotinsky’s counsel lacked any objective, good-faith basis for
asserting Shabotinsky’s claims on class-wide basis. Based on the
discussion of the class claims above, this contention appears to
be only partially true. While Class 2 of the amended complaint
is untenable on its face, Class 1 is not. Thus, at least at this
juncture, it is not possible to say as a general matter that
Shabotinsky’s counsel lacked any good-faith basis for asserting
his claims on a class-wide basis.
In short, while Lufthansa’s complaints are not without
merit, I conclude that they do not warrant an award of fees and
costs in this case.
IV.
For the reasons above, I deny Lufthansa’s motion to dismiss
the amended complaint as to Count I, but grant the motion as to
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Counts II and III. I dismiss Shabotinsky’s class claims relating
to Class 2 and direct Shabotinsky to file a motion for the
certification of Class 1 within ninety days of the date of this
memorandum opinion and order, supported by facts obtained in
discovery. I deny Lufthansa’s motion for fees and costs.

Elaine E. Bucklo
United States District Judge
Dated: March 27, 2017

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