Pumputiena v. United Airlines, Inc. et al

Filing 71

MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 5/23/2017.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 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
from Chicago, Illinois to Brussels, Belgium, and ensuing travel 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 did not conform to the
court’s dismissal order, Doc. 45, Pumputyte, no longer a minor and proceeding in her own name,
filed a second amended complaint. Doc. 48. United now moves to dismiss parts of the second
amended complaint, to strike certain allegations, and to recover its attorney fees. Doc. 50. The
motion is granted in part and denied in part.
Background
In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative
complaint’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N.

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Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider
“documents attached to the complaint, documents that are critical to the complaint and referred
to in it, and information that is subject to proper judicial notice,” along with additional facts set
forth in Pumputyte’s brief opposing dismissal, so long as those additional facts “are consistent
with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013)
(internal quotation marks omitted). The facts are set forth as favorably to Pumputyte as those
materials allow. See Pierce v. Zoetis, 818 F.3d 274, 277 (7th Cir. 2016). In setting forth those
facts at this stage, the court does not vouch for their accuracy. See Jay E. Hayden Found. v. First
Neighbor Bank, N.A., 610 F.3d 382, 384 (7th Cir. 2010).
The relevant background is set forth in the court’s prior dismissal order, familiarity with
which is assumed. 2017 WL 66823 at *1. The operative complaint adds allegations that
Pumputyte incurred $1,750 in damages caused by delayed delivery and mishandling of her
luggage, which ultimately arrived in a damaged condition. Doc. 48 at ¶¶ 59f, 147, 151. The
complaint seeks to certify two classes, which will be called the “8804 Class” and the “General
Class,” respectively:
1. All persons residing in the United States who: (1) had a confirmed
reservation and/or boarding passes on UA 8804 operated by United on June 7,
2015 from Chicago to Brussels; (2) incurred actual out-of-pocket
compensable economic damages as a direct and proximate result of delayed
departure or cancellation of UA 8804 operated by United on June 7, 2015; or
(3) incurred actual compensable economic damages as a direct and proximate
result of United’s efforts or United’s failure to mitigate consequences of
delayed departure or cancellation of UA 8804 operated by United on June 7,
2015 from Chicago to Brussels; (4) had their flights delayed or cancelled; (5)
were not adequately informed by United of the delay or cancellation less than
seven days before the scheduled time of departure and were not offered
meaningful rerouting, 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; (6) were affected by said delay
or cancellation for at least three hours; and (7) did not receive advanced notice

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of cancellation of UA 8804 as scheduled to depart from Chicago, Illinois to
Brussels on June 7, 2015 (“8804 Class”).
2. All persons residing in the United States who: (1) submitted to United a
Pre-Suit Notice of Claim for economic damages caused by delayed departure
of cancellation of international air flights operated by United to and from the
USA since June 7, 2015 until present time; (2) submitted this claim to United
pursuant to Art. 22(6) of the Montreal Convention; (3) had such claim denied
or rejected by United; or (4) had such claim ignored by United (“the General
Class”).
Id. at ¶ 70 (slightly edited by the court).
The operative complaint sets forth three counts. Id. at ¶¶ 93-152. Count I is an
individual and 8804 Class claim under Article 19 of the Montreal Convention for damages
caused by the delay of UA 8804. Count II is an individual and General Class claim for “breach
of duty and 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
of Cancellation of International Airfare Pursuant to Article 19 and 22(6) of the Montreal
Convention” (slightly edited by the court). 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.
Discussion
United moves to strike the operative complaint’s allegations concerning the General
Class, to dismiss Counts II and III, to strike allegations concerning “pre-suit notice of claims”
and “voluntarily assumed and self-imposed contractual obligations,” to strike allegations seeking
the cost of airfare or lost wages, and to recover its attorney fees. Doc. 50 at 2.
I.

Count II and the General Class
United moves to dismiss Count II on the ground that the court’s prior order dismissed it

with prejudice. Doc. 50 at 3-4. Count II alleges that United breached its voluntarily assumed

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duty to settle disputes prior to a passenger suing. Doc. 48 at ¶¶ 116-142. For the reasons given
in the court’s prior opinion, that duty does not exist. 2017 WL 66823 at *6. Indeed, Pumputyte
concedes that the claim fails as a matter of law. Doc. 57 at 9. Count II accordingly is dismissed,
and along with it the General Class allegations.
United also moves to strike any reference to “voluntarily assumed and self-imposed
contractual obligations” and “pre-suit notice of claims.” Doc. 50 at 5. United is correct that
many of the operative complaint’s allegations pertaining to those terms do not go beyond the
legal theory underlying Count II. Accordingly, the court strikes the allegations referencing those
terms in support of the dismissed legal theory, Doc. 48 at ¶¶ 15, 16, 80d, 80g-i, and 98, as well as
the request for relief in Count I to the extent it references either term.
II.

Count III
United moves to dismiss Count III as duplicative of Count I. Id. at 4. Duplicative claims

are subject to dismissal, as the court noted in its prior opinion. 2017 WL 66823 at *6-7.
However, dismissal is not appropriate here.
Count III includes a claim under Article 17 of the Montreal Convention for damage to
Pumputyte’s baggage. Doc. 48 at ¶ 145. 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.
Montreal Convention, Art. 17. Count I includes a claim under Article 19 for damages
occasioned by the flight delay. Those are two distinct injuries.
United argues that Pumputyte’s Article 17 claim is really just a disguised Article 19 claim
because the delay of Pumputyte’s baggage caused damage only to the extent that she was
required to purchase replacement items while the baggage was delayed. Doc. 59 at 3. That is
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not quite right, however, as Pumputyte alleges actual damage to her property—specifically, that
when she finally received her baggage, it was in “partially damaged” condition, Doc. 48 at ¶ 147,
and that it was “looted and damaged,” id. at ¶ 151. Those factual allegations are sufficient to
state a claim under Article 17, and thus Count III is not duplicative of Count I.
III.

Airfare and Lost Wages
United also moves to dismiss or strike any allegations relating to cost of airfare or lost

wages. Doc. 50 at 5. Pumputyte did not respond to this argument, thus forfeiting the point. See
Firestone Financial Corp. v. Meyer, 796 F.3d 822, 825 (7th Cir. 2015) (“[A] party generally
forfeits an argument or issue not raised in response to a motion to dismiss.”); G&S Holdings LLC
v. Cont’l Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012) (“We have repeatedly held that a party
waives an argument by failing to make it before the district court.”); Alioto v. Town of Lisbon,
651 F.3d 715, 720-21 (7th Cir. 2011) (finding arguments forfeited where the plaintiff responded
only to one asserted basis for dismissal while ignoring the others). The court thus grants the
motion to strike the complaint’s reference to cost of airfare, Doc. 48 at ¶ 94. The only reference
to lost wages is in Count II (id. at ¶ 138), which has been dismissed in its entirety, so there is no
need to separately strike that reference.
IV.

Attorney Fees
United’s motion seeks the attorney fees incurred in pursuing this motion. Doc. 50 at 2.

United premises its request on Rule 54. Ibid. However, Rule 54 governs fee awards in
connection with a judgment, and no judgment has been entered here. See Fed. R. Civ. P.
54(d)(2)(B)(ii) (stating that a motion for fees under Rule 54 must “specify the judgment” that is
the basis for the motion) (emphasis added). The appropriate avenues to request fees at this stage
are Rule 11, the court’s inherent authority, and/or 28 U.S.C. § 1927. See Chambers v. NASCO,

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Inc., 501 U.S. 32, 47-50 (1991). If United wishes to seek the attorney fees that it incurred in
filing this motion, it should do so via a separate motion, either to satisfy the requirements of Rule
11 or to offer a separate basis for sanctions. See Divane v. Krull Elec. Co., Inc., 200 F.3d 1020,
1025 (7th Cir. 1999) (“Rule 11(c)(1)(A) requires that … the motion for sanctions must be made
‘separately from other motions or requests and must describe the specific conduct alleged to
violate subdivision (b).’ Permitting a motion for sanctions to be made in conjunction with
another motion constitutes an abuse of discretion.”) (citation and brackets omitted).
Conclusion
United’s motion to dismiss and strike is granted in part and denied in part. Count II is
dismissed, and the operative complaint’s allegations regarding “voluntarily assumed and selfimposed contractual obligations,” “pre-suit notice of claims,” and the cost of airfare (Doc. 48 at
¶¶ 15, 16, 80d, 80g-i, 94, 98, and part of the request for relief in Count I) are stricken. The
dismissal and the strikes are with prejudice; Pumputyte has already had multiple opportunities to
amend the complaint, and the defects cannot be remedied by amendment. United’s motion to
dismiss Count III and for attorney fees is denied.

May 23, 2017
United States District Judge

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