Concovich v. Air Evac EMS Inc

Filing 36

ORDER GRANTING Plaintiff's request for expedited, limited discovery (Doc. 33 ). See attached for details. Signed by Chief Judge Michael J. Reagan on 6/26/2015. (jls)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOAN CONCOVICH, individually and
on behalf of all others similarly
situated,
Plaintiff,
vs.
AIR EVAC EMS, INC.,
Defendant.

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Case No. 15–cv–0294–MJR–DGW

ORDER
REAGAN, Chief Judge:
In this putative class action, Plaintiff brings a claim against Air Evac EMS,
Inc., for alleged violations of the Illinois Consumer Fraud and Deceptive Business
Practices Act (“IFCA”), 8715 ILCS 505/1, et seq. Very broadly, Plaintiff alleges
Defendant Air Evac EMS, Inc., sold worthless memberships (to her and to others
similarly situated) in something called the AirMedCare Network.
The Airline Deregulation Act of 1978 (“ADA”) explicitly preempts state
regulations “related to” an air carrier’s “price, route, or service.” 49 U.S.C.
§ 41713(b)(1) (“[A] State, political subdivision … or political authority … may not
enact or enforce a law, regulation or other provision having the force and effect of
law related to a price, route, or service of an air carrier that may provide air
transportation”). See also Northwest, Inc. v. Ginsberg, 134 S.Ct. 1422, 1429 (2014).
On pre-emption grounds, Defendant has filed a dispositive motion.
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Though the case is in its early stages and the motion targets the legal
underpinnings of the case, Defendants attached documentary evidence, so the
motion is made via Rule 56’s procedural machinations. See Fed. R. Civ. P. 12(d)
(courts must convert motions to dismiss into summary judgment motions if
“matters outside the pleadings are presented to and not excluded by the Court”).
Pursuant to Rule 56(f), Plaintiff’s counsel has filed a procedurally sound affidavit
swearing he needs more evidence—through “limited and expedited discovery”—to
establish whether Defendant is simply an air carrier, or subsidizes / is part of a
quasi-insurance company, or perhaps both. (Doc. 33).
Cognizant that the ADA pre-empts the IFCA in a case where an airline’s
frequent flyer program was challenged, American Airlines, Inc. v. Wolens, 513 U.S.
219 (1995), and that state fare advertising guidelines have been held pre-empted,

Morales v. Trans World Airlines, Inc., 504 U.S. 374, 390 (1992), the Court is
nonetheless disinclined to grant summary judgment (or prevent additional
discovery) on Defendant’s argument—supported (and hemmed in) only by
Defendant’s own evidence—that its business model and practices are sufficiently
analogous to prompt a pre-emption ruling at this early stage. See King v. Cooke, 26
F.3d 720, 726 (7th Cir. 1994) (Rule 56(f) “is intended as a safeguard against a
premature grant of summary judgment” so courts “should construe the rule
liberally”). Plaintiff’s affidavit / motion for expedited, limited discovery (Doc. 33) is
GRANTED.

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To a motion previously denied (on procedural grounds), Plaintiff attached an
eight-paragraph request for production and limited 30(b)(6) deposition notice.
Whether the contents of that proposed discovery are permissible is not a matter
before this Court. But the document should provide a starting point for a good faith
meet and confer, which the Court DIRECTS the parties to undertake on or before
July 3, 2015, for the purposes of quickly identifying (and, if necessary, taking before
the magistrate judge) any discovery disputes. Expedited, limited discovery SHALL
be completed by July 31, 2015, and Plaintiff’s response to Defendant’s dispositive
motion SHALL be due on or before August 14, 2015.
s/ Michael J. Reagan
MICHAEL J. REAGAN
Chief Judge
UNITED STATES DISTRICT COURT

IT IS SO ORDERED.
DATE: June 26, 2015

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