Pumputiena v. United Airlines, Inc. et al

Filing 126

MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 3/9/2018.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NERINGA PUMPUTYTE, on behalf of herself and all
others similarly situated,
Plaintiff,
vs.
UNITED AIRLINES, INC.,
Defendant.

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16 C 4868
Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER
Lilija Pumputiena brought this suit on behalf of herself, her then-minor child Neringa
Pumputyte, and four putative classes against Deutsche Lufthansa and United Airlines, alleging
breach of contract and violation of the Convention for the Unification of Certain Rules for
International Carriage by Air (“Montreal Convention”) in connection with a June 2015 flight on
United from Chicago, Illinois to Brussels, Belgium, and ensuing travel on Lufthansa from
Brussels to Vilnius, Lithuania. Doc. 7. The court dismissed all claims against Lufthansa and
some claims against United. Docs. 37-38 (reported at 2017 WL 66823 (N.D. Ill. Jan. 6, 2017)).
Pumputiena filed an amended complaint, Doc. 43, and after United argued that the amendment
contravened the dismissal order, Doc. 45, Pumputyte, no longer a minor and proceeding in her
own name, filed a second amended complaint. Doc. 48. United then filed a motion to dismiss
and to strike parts of the second amended complaint, Doc. 50, which the court granted in part and
denied in part, Docs. 70-71 (reported at 2017 WL 2243095 (N.D. Ill. May 23, 2017)).
United now moves for summary judgment on the remaining claims. Doc. 87. While that
motion was pending, Pumputyte moved for class certification on one of those claims. Doc. 105.
The summary judgment motion is granted and the class certification motion is denied.

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Background
The following facts are stated as favorably to Pumputyte as permitted by the record and
Local Rule 56.1. See Woods v. City of Berwyn, 803 F.3d 865, 867 (7th Cir. 2015). In
considering United’s motion, 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).
On June 7, 2015, Pumputyte was a passenger on United Airlines Flight 972 from O’Hare
International Airport in Chicago, Illinois to Brussels Airport in Brussels, Belgium. Doc. 89 at
¶ 12; Doc. 113-2 at ¶ 12. Her ultimate destination was Vilnius, Lithuania. Doc. 89 at ¶ 3; Doc.
113-2 at ¶ 3. UA 972 was scheduled to depart Chicago at 6:25 p.m. and to arrive in Brussels at
9:35 a.m. Doc. 89 at ¶ 13; Doc. 113-2 at ¶ 13. The flight left the gate at 6:33 p.m., eight minutes
behind schedule. Doc. 89 at ¶ 14. (Pumputyte denies this fact, citing her affidavit, Doc. 113-2 at
¶ 14, but the affidavit, Doc. 113-1, does not address UA 972’s delayed departure from the gate,
so the fact is deemed admitted. See Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817
(7th Cir. 2004) (“[W]here a non-moving party denies a factual allegation by the party moving for
summary judgment, that denial must include a specific reference to the affidavit or other part of
the record that supports such a denial.”); Schwab v. N. Ill. Med. Ctr., 42 F. Supp. 3d 870, 874
(N.D. Ill. 2014) (“[T]he court will disregard any of Schwab’s assertions … that are not supported
with specific record citations.”).)
UA 972 was scheduled to taxi for 27 minutes before taking off. Doc. 89 at ¶ 15.
(Pumputyte denies this fact, citing her affidavit, Doc. 113-2 at ¶ 15, but the affidavit does not
address UA 972’s scheduled taxi time at O’Hare, so the fact is deemed admitted.) Due to
directives from air traffic control in Chicago, UA 972 actually taxied for 87 minutes, 60 minutes
longer than scheduled. Doc. 89 at ¶¶ 15, 17-18. (Pumputyte denies this fact, citing her affidavit,

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Doc. 113-2 at ¶¶ 15, 17-18, but the affidavit does not address UA 972’s actual taxi time at
O’Hare, so the fact is deemed admitted.) Because federal law obligated UA 972 to follow air
traffic control’s directives, United could not avoid that 60-minute delay. Doc. 89 at ¶ 18.
(Pumputyte denies this fact, citing her affidavit, Doc. 113-2 at ¶ 18, but the affidavit does not
address the need to comply with air traffic control directives in the United States, so the fact is
deemed admitted.)
Although UA 972 was scheduled to fly from Chicago to Brussels in 458 minutes, it made
the journey in 441 minutes, making up seventeen minutes of the on-the-ground delay at O’Hare.
Doc. 89 at ¶ 20. (Pumputyte denies this fact, citing her affidavit, Doc. 113-2 at ¶ 20, but the
affidavit does not address UA 972’s actual or scheduled flight time, so the fact is deemed
admitted.) Upon arriving in Brussels, UA 972 was scheduled to taxi for five minutes, but it
actually taxied for ten minutes. Doc. 89 at ¶ 16. (Pumputyte denies this fact, citing her affidavit,
Doc. 113-2 at ¶ 16, but the affidavit does not address UA 972’s actual or scheduled taxi time in
Brussels, so the fact is deemed admitted.) As with the taxi delay in Chicago, this five-minute
delay was attributable to directives from air traffic control. Doc. 89 at ¶ 17. (Pumputyte denies
this fact, citing her affidavit, Doc. 113-2 at ¶ 17, but the affidavit does not address the need to
comply with air traffic control directives in the European Union, so the fact is deemed admitted.)
Pumputyte’s connecting flight to Vilnius was scheduled to depart at 10:45 a.m. Doc. 89
at ¶ 24; Doc. 113-2 at ¶ 24. Had her flight from Chicago arrived in Brussels at the scheduled
arrival time of 9:35 a.m., she would have had 70 minutes to make the connection. Doc. 89 at
¶ 24; Doc. 113-2 at ¶ 24. But UA 972 arrived in Brussels at 10:31 a.m., 56 minutes late, giving
her only fourteen minutes to make the connection. Doc. 89 at ¶ 24; Doc. 113-2 at ¶ 24.
Anticipating this delay, and consistent with company policy, United rerouted Pumputyte on the

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next available flight to Vilnius, a Lufthansa flight making a connection in Frankfurt, Germany.
Doc. 89 at ¶¶ 25-27. (Pumputyte denies this fact, citing her affidavit, Doc. 113-2 at ¶¶ 25-27, but
the relevant portions of her affidavit state only that United “negligently amended” Pumputyte’s
travel plans “in total disregard of [her] travel related plans and possibility of her boarding her
original connecting flight,” Doc. 113-1 at ¶¶ 4-6; see also id. at ¶¶ 11-12. Because these are
solely legal arguments, the fact is deemed admitted. See Judson Atkinson Candies, Inc. v. LatiniHohberger Dhimantec, 529 F.3d 371, 382 n.2 (7th Cir. 2008) (“It is inappropriate to make legal
arguments in a Rule 56.1 statement of facts. … The district court was correct that by labeling the
charts ‘fraudulent transfers,’ Judson Atkinson made an improper legal argument since whether or
not any transfers were fraudulent is a legal conclusion. In striking the exhibits, the court acted
within its discretion in interpreting its own local rules.”); Cady v. Sheahan, 467 F.3d 1057, 106061 (7th Cir. 2006) (holding that the district court did not abuse its discretion in disregarding the
plaintiff’s “statement of material facts” because it “did not comply with Rule 56.1 as it failed to
adequately cite the record and was filled with irrelevant information, legal arguments, and
conjecture”); J & J Sports Prods., Inc. v. Pantchev, 2013 WL 6050168, at *1 (N.D. Ill. Nov. 15,
2013) (same).)
As it turned out, Pumputyte’s originally scheduled flight from Brussels to Vilnius was
delayed by 40 minutes, giving her time to make the connection despite her late arrival from
Chicago. Doc. 89 at ¶ 28. (Pumputyte denies this fact, citing her affidavit, Doc. 113-2 at ¶ 28,
but the affidavit undermines her denial, averring that “her connecting flight from Brussels to
Vilnius was late on departure” and so “was still by the gate” when she deplaned in Brussels,
Doc. 113-1 at ¶ 4.) When Pumputyte arrived at the gate, Lufthansa employees refused to let her
board. Doc. 89 at ¶ 29. (Pumputyte denies this fact, citing her affidavit, Doc. 113-2 at ¶ 29,

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which avers that “she was not allowed by United to board her connecting flight to Vilnius,” Doc.
113-1 at ¶ 5 (emphasis added). Because Pumputyte’s deposition testimony clearly contradicts
her affidavit on this point, Doc. 89-4 at 17-18 (testifying that she gave her boarding pass to a
Lufthansa gate agent, who did not permit her to board, and then spoke to United employees only
afterwards), and because she does not even attempt to explain the discrepancy, the fact is deemed
admitted. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806-07 (1999) (noting that
lower courts “have held with virtual unanimity that a party cannot create a genuine issue of fact
sufficient to survive summary judgment simply by contradicting his or her own previous sworn
statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn
deposition) without explaining the contradiction or attempting to resolve the disparity”); Velez v.
City of Chicago, 442 F.3d 1043, 1049 (7th Cir. 2006) (“A party may not attempt to survive a
motion for summary judgment by manufacturing a factual dispute through the submission of an
affidavit that contradicts prior deposition testimony. Consequently, where a deposition and
affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the
statement in the deposition was mistaken, perhaps because the question was phrased in a
confusing manner or because a lapse of memory is in the circumstances a plausible explanation
for the discrepancy.”) (citation, alterations, and internal quotation marks omitted).) United
provided Pumputyte with a meal voucher for use in the Brussels airport. Doc. 89 at ¶ 27.
(Pumputyte denies this fact, citing her affidavit, Doc. 113-2 at ¶ 27, but the affidavit does not
address United’s offer of a meal voucher, and Pumputyte admitted during her deposition that she
used one, Doc. 89-4 at 4, so the fact is deemed admitted.)
Due to further delays unconnected with UA 972, Doc. 48 at ¶ 9, Pumputyte ultimately
spent several additional hours in the Brussels airport before flying to and arriving in Vilnius on

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June 8, 2015, Doc. 89 at ¶ 33; Doc. 113-2 at ¶ 33. During the delay in Brussels, she incurred
expenses buying snacks, water, and medicine, and calling her parents. Doc. 89 at ¶¶ 32, 39; Doc.
113-2 at ¶¶ 32, 39.
Pumputyte checked one bag on UA 972. Doc. 89 at ¶ 35; Doc. 113-2 at ¶ 35. The bag
was delivered in damaged condition to her grandparents’ home in Vilnius the day after she
arrived. Doc. 89 at ¶¶ 32, 37; Doc. 113-2 at ¶¶ 32, 37.
Discussion
As a result of the court’s dismissal orders, two claims remain. Count I of the operative
complaint is an individual and class claim under Article 19 of the Montreal Convention for
damages caused by the delay of UA 972. Doc. 48 at ¶¶ 93-115. Count III is an individual claim
for loss and delay of checked baggage under Article 17 (the claim’s heading says “Article 19,”
but the substance places it within Article 17) and Article 22(2) of the Montreal Convention. Id.
at ¶¶ 143-152.
I.

Count I: Article 19 Claim
Article 19 of the Montreal Convention 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. “[T]o satisfy Article 19’s requirement that all reasonable measures
required to avoid the delay be taken, the defendant carrier must show that, on the whole, it took
measures reasonably available and reasonably calculated to prevent the subject loss.” Dochak v.
Polskie Linie Lotnicze LOT S.A., 2017 WL 2362570, at *8 (N.D. Ill. May 30, 2017) (citation and
internal quotation marks omitted). The carrier need not show that it took “every possible
precaution”; rather, it “need only show that it took all precautions that, in sum, were appropriate
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to the risk.” Bernfeld v. US Airways, Inc., 2016 WL 1583057, at *2 (N.D. Ill. Apr. 20, 2016)
(citation and internal quotation marks omitted); see also Giannopoulos v. Iberia Lineas Aereas
de Espana, S.A., Operadora, Sociedad Unipersonal, 2012 WL 5499426, at *4 (N.D. Ill. Nov. 9,
2012) (same).
United’s Local Rule 56.1(a)(3) statement and Pumputyte’s Local Rule 56.1(b)(3)(B)
response—Pumputyte did not file a Local Rule 56.1(b)(3)(C) statement—are the only means of
presenting facts on summary judgment. See FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627,
634 (7th Cir. 2005) (“We have noted before that rules like 56.1 provide[] the only acceptable
means of disputing the other party’s facts and of presenting additional facts to the district court.”)
(alteration in original, internal quotation marks omitted); Perez v. Town of Cicero, 2011 WL
4626034, at *2 (N.D. Ill. Sept. 30, 2011) (“Under settled law, facts asserted in a brief but not
presented in a Local Rule 56.1 statement are disregarded in resolving a summary judgment
motion.”). Neither United’s statement nor Pumputyte’s response identify any record evidence
undermining United’s submission that, because its pilots were obligated to follow air traffic
control’s orders, it was not responsible for UA 972’s 56-minute delay in arriving in Brussels.
Rather, the undisputed facts show that, while the eight-minute delay in leaving the gate at
O’Hare was United’s fault, United more than made up those eight minutes in flight, and also that
responsibility for the remaining delays on the ground at O’Hare and in Brussels were attributable
to air traffic control, whose directions United had to follow. Given this, no reasonable juror
could find that United could have taken reasonable measures to avoid that delay. See Dochak,
2017 WL 2362570, at *10 (granting summary judgment in an Article 19 suit where “the
undisputed facts establish that [the] delays were caused by unavoidable and unforeseen
mechanical issues with the aircraft”); Bernfeld, 2016 WL 1583057, at *2 (same, where the

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plaintiffs “d[id] not controvert US Airways’ assertion that the bird strike that took aircraft 507
out of service was unpredictable and unavoidable. Nor d[id] they offer any evidence
controverting US Airways’ evidence that it attempted to substitute another aircraft but that no
suitable aircraft were available and that the only remaining option was to rebook the Bernfelds
on the next available flight. The Bernfelds offer[ed] no argument, let alone evidence, identifying
any reasonable measure that US Airways could have taken, but failed to take, in order to avoid or
minimize the delay in the Bernfelds’ travel”).
The only remaining question is whether a reasonable juror could find that it was
unreasonable for United—in anticipation of UA 972’s delayed arrival in Brussels, which would
have left Pumputyte with only fourteen minutes to make her connection to Vilnius—to reroute
her onto a later flight to Vilnius and provide her with a meal voucher, even though, as it turned
out, the original connecting flight ultimately was delayed long enough that it would have been
possible for her to make that flight. Pumputyte contends that United’s decision was “negligent”
and “reckless.” Doc. 113 at 8. But Pumputyte points to nothing in the record suggesting that
United knew about the delay in her originally scheduled Brussels-to-Vilnius flight and rerouted
her anyway, or even that the delay had manifested itself at the time United rerouted her, let alone
that United should have predicted the delay and known that it would prove durable. Nor does
Pumputyte identify anything in the record suggesting that United could or should have
anticipated or avoided additional delays in Pumputyte’s re-booked flight from Brussels. Absent
such evidence, no reasonable juror could find that United acted unreasonably in taking
precautions (rerouting her and providing a meal voucher) to address the chance that she would
have missed her originally scheduled connection due to UA 972’s late arrival, and would then
have been left without a booked seat on any later flights, thereby risking even further delay. See

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Dochak, 2017 WL 2362570, at *9-10 (holding that, after the plaintiffs’ flights were canceled, the
airline acted reasonably under Article 19 “by working to rebook them on next available flights
and providing them with food and lodging during the delay”); Bernfeld, 2016 WL 1583057, at *2
(granting summary judgment where the plaintiffs “offer[ed no] evidence controverting US
Airways’ evidence that … no suitable [replacement] aircraft were available and that the airline’s
only remaining option was to rebook the Bernfelds on the next available flight”); Helge Mgmt.,
Inc. v. Delta Air Lines, Inc., 2012 WL 2990728, at *4 (D. Mass. July 19, 2012) (“No flights were
available to Moscow after the cancellation of Flight 46 at 9:49 P.M. on December 29, 2010, and
Delta took the reasonable measures of providing Uritsky with hotel and food vouchers, and rebooking him on a flight to his destination the following day.”).
Pumputyte also contends that it was unreasonable for United to refuse to seat her on her
originally scheduled Lufthansa flight from Brussels to Vilnius after she arrived at the Lufthansa
gate with enough time to board. Doc. 113 at 9-10. But Pumputyte points to nothing in the
record suggesting that United had any control over the Lufthansa gate agents’ actions, or that
United was unreasonable in failing to exercise such control. Cf. 2017 WL 66823, at *6 (noting
that, under Article 36 of the Montreal Convention, United would be liable for Lufthansa’s
actions only if United expressly agreed to assume liability for the whole journey, and noting
further that the complaint lacked such an allegation); Best v. BWIA W. Indies Airways Ltd., 581
F. Supp. 2d 359, 363 (E.D.N.Y. 2008) (“[T]he initial carrier does not become liable for an injury
taking place on one of the successive legs of the trip merely by virtue of the fact that the traveler
purchased tickets for the entire trip through that initial carrier.”). Thus, there is no genuine issue
of material fact as to that issue as well.

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II.

Count III: Article 17 Claim
That leaves Pumputyte’s Article 17 claim for damage to her checked luggage and

United’s delay in delivering it to her in Vilnius. Article 17 states in relevant part:
The carrier is liable for damage sustained in case of destruction or loss of, or
of damage to, checked baggage upon condition only that the event which
caused the destruction, loss or damage took place on board the aircraft or
during any period within which the checked baggage was in the charge of the
carrier. However, the carrier is not liable if and to the extent that the damage
resulted from the inherent defect, quality or vice of the baggage.
Montreal Convention art. 17(2). Article 17 further provides that the carrier is liable for a delay
in delivering a passenger’s checked bag only if it “has not arrived at the expiration of twenty-one
days after the date on which it ought to have arrived.” Id. art. 17(3).
Article 31 limits a carrier’s liability for delayed and damaged luggage in two additional
ways. First,
[i]n the case of damage, the person entitled to delivery must complain to the
carrier forthwith after the discovery of the damage, and, at the latest, within
seven days from the date of receipt in the case of checked baggage and
fourteen days from the date of receipt in the case of cargo. In the case of
delay, the complaint must be made at the latest within twenty-one days from
the date on which the baggage or cargo have been placed at his or her
disposal.
Id. art. 31(2). Second, “[e]very complaint must be made in writing … .” Id. art. 31(3). Failure
to comply with either requirement means that “no action shall lie against the carrier, save in the
case of fraud on its part.” Id. art. 31(4).
United’s Local Rule 56.1(a)(3) statement asserts that: (1) “[t]here is no evidence of any
records showing that [Pumputyte] contacted United or Lufthansa regarding checked luggage
allegedly arriving in Vilnius later than [she] arrived in Vilnius”; and (2) she did not “contact[]
United or Lufthansa regarding allegedly damaged luggage.” Doc. 89 at ¶¶ 50-51. Pumputyte
denies those assertions. Doc. 113-2 at ¶¶ 50-51. The denials are baseless, for in the portion of

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her deposition that her Local Rule 56.1(b)(3)(B) cites in support, Pumputyte testified only that
she made an oral complaint to airport officials in Vilnius once she realized her luggage was not
there, Doc. 89-4 at 6, and her affidavit states only that she “lodged [a] missing luggage
complaint” with United’s “local Vilnius[] office,” Doc. 113-1 at ¶ 34. Nothing in the record
materials cited by Pumputyte supports the proposition that she contacted United again to
complain about any damage to the luggage after she received it, nor that she made a complaint in
writing about any luggage damage.
Accordingly, because Pumputyte identifies no record evidence showing that she made a
complaint in writing about either the delay in delivering her luggage or the damage to the
luggage, Article 31(3) precludes recovery for both. See Nwokeji v. Arik Air, 2017 WL 4167433,
at *12 (D. Mass. Sept. 20, 2017) (“Article 31(3) expressly requires that notice be given in
writing. Verbal or actual notice is insufficient as a matter of law.”) (citation omitted); Zurich
Am. Ins. Co. v. Lan Cargo S.A., 2013 WL 7963678, at *2 (S.D.N.Y. Dec. 9, 2013) (“Article 31
does not require that any ‘claim’ be filed or that a formal ‘claims procedure’ be used. It simply
requires that the carrier be given written notice that there is a problem for which it may be held
liable, at a time when it is possible to conduct a meaningful investigation into how the damage
was caused.”); Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 496 (S.D.N.Y. 2009)
(same, citing additional cases). And because there is no dispute that United delivered
Pumputyte’s luggage the day after she arrived in Vilnius, Doc. 89 at ¶¶ 32, 37; Doc. 113-2 at
¶¶ 32, 37, Article 17(3) independently forecloses any damages for the delay. See Candelo v. Am.
Airlines, 2010 WL 1743964, at *1 (W.D. Ky. Apr. 28, 2010) (“The right of action for a missing
bag [under Article 17(3)] does not accrue until the luggage is gone for 21 days or more. Here the
plaintiffs’ first claim relates to baggage that was delayed only four days. They therefore have no

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cause of action and the portion of their complaint that relates to that four-day delay must be
dismissed.”); Molefe, 602 F. Supp. 2d at 496 (citing Article 17(3) in holding that “[t]he delay
claim would have to be dismissed on the substantive ground that plaintiff received his luggage
well within twenty-one days after his flight”).
Conclusion
United’s summary judgment motion is granted, and its motion to strike portions of
Pumputyte’s affidavit, Doc. 115, is denied as moot. Because her claims have been dismissed,
Pumputyte’s class certification motion, which pertains only to her Article 17 claim, is denied.
See Premium Plus Partners, L.P. v. Goldman, Sachs & Co., 648 F.3d 533, 538 (7th Cir. 2011)
(“It takes a representative with a live claim to carry on with a class action.”); Shipp v. Memphis
Area Office, Tenn. Dep’t of Emp’t Sec., 581 F.2d 1167, 1172-73 (6th Cir. 1978) (“This complaint
must be dismissed as to the purported class … because the named plaintiff is not an appropriate
class representative within the meaning of Rule 23(a), his individual claim having been
dismissed form this action prior to any certification.”). It is true that “[a] decision that the claim
of the named plaintiff[] lacks merit” does not “invariably … disqualif[y] the named plaintiff[] as
proper class representative[].” Cowen v. Bank United of Tex., FSB, 70 F.3d 937, 941 (7th Cir.
1995). Here, however, the basis for dismissing Pumputyte’s Article 17 claim almost certainly
would “apply equally to any other member of the class.” Ibid. Because that claim “can quickly
be shown to be groundless,” it makes sense “to skip certification and proceed directly to the
merits.” Thomas v. UBS AG, 706 F.3d 846, 849-50 (7th Cir. 2013); see also 3 William B.
Rubenstein, Newberg on Class Actions § 7:8 (5th ed. 2017) (noting that “if a court grants a
dispositive motion before class certification, it may preclude the need to rule on certification at
all thereafter,” and that “the emerging trend in the courts appears to be to decide dispositive

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motions prior to the certification motion”); id. at § 7:10 (“[C]ourts have been willing to rule on
motions for summary judgment prior to class certification in circumstances in which it would
facilitate efficient resolution of the case.”). In any event, Pumputyte does not contend that she
would be prejudiced by the court’s deciding the merits of her Article 17 claim before resolving
her class certification motion, thereby forfeiting any such contention. Judgment will be entered
in favor of United and against Pumputyte.

March 9, 2018
United States District Judge

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