Rambarran et al v. Dynamic Airways, LLC
Filing
42
OPINION & ORDER re: 27 MOTION to Certify Class and Notice of Motion. filed by Rohan Rambaran, Moses Rambarran. For the reasons set forth above, plaintiffs' motion for class certification is DENIED. The Clerk of Court is directed to terminate the motion at ECF No. 27. (Signed by Judge Katherine B. Forrest on 7/27/2015) (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------MOSES RAMBARRAN and ROHAN
RAMBARAN, on behalf of themselves and all
others similarly situated,
X
:
:
:
:
Plaintiffs,
:
:
-v:
:
:
DYNAMIC AIRWAYS, LLC,
:
Defendant.
:
------------------------------------------------------------------ X
KATHERINE B. FORREST, District Judge:
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: July 27, 2015
14-cv-10138 (KBF)
OPINION & ORDER
This putative class action was commenced on December 29, 2014, and
reassigned to the undersigned on February 27, 2015. Plaintiffs Moses V.
Rambarran and Rohan Rambaran (“plaintiffs”) allege that they purchased roundtrip tickets for a December 23, 2014 flight from New York to Guyana—and that
defendant Dynamic Airways, LLC (“Dynamic Airways” or “Dynamic”) unreasonably
delayed this and other New York–Guyana flights, in violation of Article 19 of the
Montreal Convention. See Convention for the Unification of Certain Rules for
International Carriage by Air (“Convention”) art. 19, May 28, 1999, reprinted in S.
Treaty Doc. No. 106-45, 1999 WL 33292734 (2000). Plaintiffs seek damages
pursuant to Article 22 of the Montreal Convention.1
1 While the Complaint also states that “[t]his class action seeks a mandatory injunction requiring the
immediate refund of all passengers who have requested refunds” (Compl. ¶ 1), plaintiffs withdrew
their motion for a preliminary injunction based on Dynamic’s representation that all passengers
have received refunds. (See ECF No. 9; Plaintiffs’ Memorandum of Law in Support of Class
Certification, Appointment of Plaintiffs as Class Representations, and Donald J. Schutz, Esq., Class
Counsel (“Pls.’ Br.”) at 3, ECF No. 28; Declaration of Moses V. Rambarran (“Rambarran Decl.”) ¶¶ 8,
12(a), ECF No. 28-1.) There is no indication that plaintiffs are currently pursuing injunctive relief.
On April 29, 2015, plaintiffs filed a motion for class certification, seeking to
certify two classes of passengers who experienced delays on New York–Guyana
flights operated by Dynamic. (ECF No. 27.) Defendant opposed the motion on June
8, 2015. On June 19, 2015, plaintiffs filed a reply—along with a motion to compel
discovery.2
For the reasons set forth below, class certification must be denied on the
record before the Court. On a motion for class certification, plaintiffs bear an
evidentiary burden of demonstrating that each Rule 23 requirement is satisfied.
Here, plaintiffs have plainly failed to carry this burden. This failure is most
pronounced with respect to the typicality and predominance requirements: plaintiffs
have not presented any evidence indicating that these requirements are met. Faced
with an opposition that correctly states that such failure requires denial of the class
certification motion, plaintiffs made an eleventh-hour, 59-minute motion to compel
discovery. This motion to compel came too late; the Court will not extend all class
certification deadlines at this juncture to allow plaintiffs to assemble the requisite
factual record in response to defendant’s opposition. To do so would be unfairly
prejudicial to defendant, inefficient for all concerned, and a tremendous waste of
judicial resources.
2 The Court notes that plaintiffs raised discovery issues in a letter dated April 9, 2015 (ECF No. 17).
This letter was filed in response to Dynamic’s April 8, 2015 motion to allow the withdrawal of its
attorneys. Defendant did not respond to plaintiffs’ arguments relating to discovery—and plaintiffs
did not renew them until May 25, 2015, a month after filing the motion for class certification. On
May 25, 2015, plaintiffs filed a motion to compel discovery but withdrew it the next day. (ECF Nos.
31, 32.)
2
In any event, this is an unusual case where failure to satisfy the adequacy
requirement provides an independent basis to deny class certification. The
proposed class counsel, Mr. Donald J. Schutz, lacks the qualifications to litigate this
case as a class action. Counsel used an incorrect legal standard on the motion,
failed to recognize plaintiffs’ burden and that this burden is distinct from and
unrelated to any burden under the Montreal Convention, failed to assemble the
minimal factual record necessary to demonstrate that the requirements of Rule 23
are satisfied, and failed to assemble from his own clients necessary factual
materials or to timely file a motion to compel discovery or seek an extension of the
class certification briefing schedule based on the need to obtain additional evidence.
These failures plainly demonstrate counsel’s inability to adequately serve as class
counsel.
I.
BACKGROUND
In support of their motion for class certification, plaintiffs submitted the
Declaration of Moses V. Rambarran (the “Rambarran Declaration”)—in which
plaintiff Rambarran summarily affirms that he has read the Complaint and that
“[t]he factual allegations of Paragraphs 1, 4, 5, and 9-46, and 48-50 are true and
correct.” (Rambarran Decl. ¶ 3.) Attached to the Rambarran Declaration are
several Internet articles whose factual statements plaintiff Rambarran has not
“personally investigated” (Rambarran Decl. ¶ 5, ECF Nos. 28-2–28-6), a printout
from Dynamic’s website (ECF No. 28-7), press releases about the instant case (ECF
No. 28-8), a letter from Dynamic to the U.S. Department of Transportation (ECF
3
No. 28-9), and a Declaration of Donald J. Schutz, Attorney at Law, in Support of
Motion to Appoint Class Counsel (“Schutz Decl.”) (ECF No. 28-10).
The facts as alleged in the Complaint and set forth in the Rambarran
Declaration are as follows: In November 2014, Dynamic announced the inception of
direct airline service from New York’s John F. Kennedy airport (“JFK”) to
Georgetown, Guyana (“Guyana”). (Compl. ¶ 1, ECF No. 1.) Plaintiffs purchased
tickets for a round-trip Dynamic Airways flight from New York to Guyana, Flight
No. 2D-0401 (HK), scheduled for check-in on December 22, 2014, at 10 p.m., and
departure on December 23, 2014, at 1 a.m. (the “Flight” or the “December 23, 2014
flight”). (Compl. ¶¶ 1, 10; see also Rambarran Decl. ¶ 3.) Plaintiffs allege that upon
arrival at JFK, they “learned that hundreds of people who had purchased tickets
from Dynamic Airways for travel to Guyana had been waiting at JFK for days.”
(Compl. ¶ 1; see also id. ¶¶ 11, 13.) Plaintiffs “immediately witnessed an estimated
500 people on the check in line.” (Compl. ¶ 11.) Dynamic’s representatives
allegedly informed plaintiffs that the Flight was cancelled and that they should
return to the airport the following day, December 23, 2014, for a 7 p.m. departure.
(Compl. ¶¶ 1, 14; see also Rambarran Decl. ¶ 3.)
Plaintiffs—“along with hundreds of other passengers”—returned on
December 23, 2014. (Compl. ¶ 1.) Plaintiffs “witnessed approximately 500 to 700
passengers awaiting check in.” (Id. ¶ 16; see also Rambarran Decl. ¶ 3.) According
to the Rambarran Declaration, between 100 and 200 passengers accompanied
plaintiff Rambarran to Gate 1 to board the Flight. (See Rambarran Decl. ¶ 3.)
4
Between approximately 3 p.m. and 2 a.m., Dynamic’s representatives “continued to
promise a departure.” (Compl. ¶ 1.) Following general announcements that the
flight was experiencing issues (id. ¶¶ 31, 33), the passengers were informed that “a
monitor was not working on the plane” and that one had been ordered from
American Airlines and would arrive shortly (id. ¶ 35). At approximately 2 a.m., the
“passengers were finally told that the flight would not depart.” (Compl. ¶ 1; see also
id. ¶ 26, Rambarran Decl. ¶ 3.)
Plaintiff Moses V. Rambarran asserts that he has “received communications
from many passengers supporting this class action.” (Rambarran Decl. ¶ 9.) He
recites two such communications in his Declaration. (Id. ¶¶ 9-10.)
Plaintiffs seek to certify two proposed classes:
Class One: All persons who purchased and held reservations for roundtrip tickets from New York’s JFK Airport to Guyana on Dynamic
Airways Flight 2D-0401, also referred to as Flight 0402, with the
outbound trip scheduled for check in on December 22, 2014 [at] 10:00
p.m., with departure [from] New York on December 23rd, 2014, at 1:00
A.M., and any return flight from Guyana to New York.
Class Two: All persons who had purchased round-trip tickets from New
York’s JFK Airport to Guyana on any Dynamic Airways, with the
outbound trip scheduled for check in and departure from New York’s
JFK Airport on any day in December, 2014, where the flight was
delayed from scheduled departure by at least three hours.
(Pls.’ Br. at 8.)
Plaintiffs submitted no additional factual materials in support of their class
certification motion.
In opposition to plaintiffs’ motion, Dynamic has submitted a sworn
declaration by Raveena Persaud (“Persaud”)—Dynamic’s Station Manager—
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describing the circumstances surrounding the delay of the December 23, 2014 flight.
(ECF No. 34.) The Persaud Declaration states as follows: The aircraft that was
designated for the Flight arrived from Guyana—and, upon arrival, was connected to
a ground power unit (“GPU”) in accordance with standard procedure. (Declaration
of Raveena Persaud in Support of Defendant Dynamic Airways LLC’s Opposition to
Plaintiffs’ Motion for Class Certification (“Persaud Decl.”) ¶¶ 6-7, ECF No. 34.) An
electrical surge occurred within the GPU and “caused damage to certain flight
controls and the main monitors of the aircraft, which were required to be repaired
before the flight departed to Guyana.” (Id. ¶ 7.) “Repairs were immediately made”
but “were more extensive than anticipated and resulted in [Dynamic’s] inability to
fly the aircraft out of JFK on December 23.” (Id. ¶ 9.) Dynamic informed the
passengers that the flight would be cancelled. (Id. ¶ 11.)
According to Persaud, “[d]ue to the late hour of the cancellation, as well as
the fact that it was two days before the Christmas holiday, no other aircrafts were
immediately available” (id.)—but Dynamic rebooked some of the delayed passengers
on a Swift Air flight the next morning (id. ¶ 12). Persaud also states that Dynamic’s
gate agents “addressed individual passenger needs, providing flight vouchers for
passengers who chose to rebook with another carrier, hotel vouchers for passengers
who were not local to the area, meal coupons and, in some instances, cab fare for
certain elderly passengers who requested transportation home until the new flight
information was announced.” (Id. ¶ 13.)
6
Defendant has also presented a number of facts relating to plaintiff Moses V.
Rambarran, one of the two named plaintiffs in this action. According to Persaud,
while Dynamic attempted to accommodate passengers experiencing delay, plaintiff
Rambarran “began to verbally threaten the gate agents in a loud and abusive
manner”—and stated, “I’m a big time U.S. lawyer and we’re going to sue the hell
out of Dynamic and make sure they never fly to this country again.” (Id. ¶¶ 14, 15.)
Persaud states that Rambarran created such chaos that the Port Authority Police
were called. (Id. ¶ 16.)3 Defendant has also represented—and plaintiffs do not
dispute—that Rambarran is an attorney who has been disbarred from practicing
law in New York for having mismanaged client escrow funds—and who has pled
guilty to the felony of concealing a person from arrest.
II.
LEGAL STANDARDS
A.
Class Certification
The Supreme Court has made clear that “[t]he class action is ‘an exception to
the usual rule that litigation is conducted by and on behalf of the individual named
parties only.’” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011) (quoting
Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). A plaintiff seeking certification
of a class must prove by a preponderance of the evidence that its proposed class
meets the requirements of Rule 23(a) and, if those requirements are met, that the
class is maintainable under at least one of the subdivisions of Rule 23(b). See id. at
2548; Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d
3 Rambarran denies these allegations and, in addition, states that he is unaware of any effort on the
part of Dynamic to rebook or otherwise assist passengers. (See Declaration of Moses V. Rambarran
(“Rambarran Reply Decl.”) ¶¶ 4-7, ECF No. 37-1.)
7
196, 202 (2d Cir. 2008). Here, plaintiffs allege that they have met the requirements
of two subsections of Rule 23(b)—23(b)(3) and 23(b)(1)(A).
Rule 23(a) provides that class certification may be appropriate if:
(1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common to
the class; (3) the claims or defenses of the representative parties
are typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23(a).
Rule 23(b)(3) allows certification if “the questions of law or fact common to
class members predominate over any questions affecting only individual members,
and . . . a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3); see also Johnson v. Nextel
Commc’ns Inc., 780 F.3d 128, 137 (2d Cir. 2015).
Rule 23(b)(1)(A) allows certification if “prosecuting separate actions by or
against individual class members would create a risk of inconsistent or varying
adjudications with respect to individual class members that would establish
incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P.
23(b)(1)(A).
Rule 23 is not a mere pleading standard. Dukes, 131 S. Ct. at 2551.
Plaintiffs bear the burden of affirmatively showing that each element of Rule 23 is
satisfied. See id. (“A party seeking class certification must affirmatively
demonstrate his compliance with the Rule—that is, he must be prepared to prove
that there are in fact sufficiently numerous parties, common questions of law or
8
fact, etc.”). In making a determination as to whether class certification is
appropriate, the district court must receive enough evidence—by affidavits,
documents, or testimony—to be satisfied by a preponderance of the evidence that
each Rule 23 requirement has been met. See Teamsters Local 445, 546 F.3d at 20204 (quoting In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006))
(internal quotation marks omitted). Courts in this Circuit have consistently denied
class certification motions where the party seeking certification failed to present
sufficient evidence as to one or more Rule 23 elements. See, e.g., Myers v. Hertz
Corp., 624 F.3d 537, 548 (2d Cir. 2010) (affirming the district court’s denial of a
motion for class certification on the basis that “the evidence put forward by the
plaintiffs was insufficient to carry their burden to establish by a preponderance that
common questions would predominate over individual ones”); New Jersey
Carpenters Health Fund v. Rali Series 2006-QO1 Trust, 477 F. App’x 809, 813 (2d
Cir. 2012) (summary order) (affirming a denial of class certification for failure to
meet the predominance requirement where, inter alia, defendants’ evidence
“indicated that individual knowledge inquiries might be necessary” and “[t]he court
had a limited record without the benefit of discovery of absent potential class
members’ records”). The district court’s “obligation to make a determination that
every Rule 23 requirement is met before certifying a class” is not lessened “just
because of some or even full overlap of that requirement with a merits issue.” In re
Initial Pub. Offerings Sec. Litig., 471 F.3d at 41.
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B.
Montreal Convention
The Montreal Convention—a multilateral treaty to which the United States
and Guyana are parties—establishes an exclusive liability regime for damages
claims against international air carriers and their agents. See Convention art. 29
(“In the carriage of passengers, baggage and cargo, any action for damages, however
founded, whether under this Convention or in contract or in tort or otherwise, can
only be brought subject to the conditions and such limits of liability as are set out in
this Convention without prejudice to the question as to who are the persons who
have the right to bring suit and what are their respective rights.”); see also El Al
Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 174-75 (1999).
Article 19 of the Montreal Convention provides that:
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.
Convention art. 19. Measures taken to rebook or otherwise accommodate
passengers experiencing delay—as well as measures taken to prevent the original
delay-causing events—are relevant to determining liability under Article 19. See
Cohen v. Delta Air Lines, Inc., 751 F. Supp. 2d 677, 678-79, 680 (S.D.N.Y. 2010)
(considering Delta’s efforts to rebook); Helge Mgmt., Inc. v. Delta Air Lines, Inc.,
No. CIV.A. 11-10299-RBC, 2012 WL 2990728, at *4-6 (D. Mass. July 19, 2012)
(same). “In order to satisfy the standard of undertaking reasonable measures, the
defendant carrier need only show that it took ‘all precautions that in sum are
10
appropriate to the risk, i.e., measures reasonably available to defendant and
reasonably calculated, in cumulation, to prevent the subject loss.’” Helge, 2012 WL
2990728, at *4 (citation and internal quotation marks omitted).
Article 22 provides that “[i]n the case of damage caused by delay as specified
in Article 19 in the carriage of persons, the liability of the carrier for each passenger
is limited to 4[,]150 Special Drawing Rights [‘SDR’].” Id. art. 22(1).4 However, this
cap on damages is subject to a “willful misconduct” exception: it does not apply if
“the damage resulted from an act or omission of the carrier . . . done with intent to
cause damage or recklessly and with knowledge that damage would probably
result.” Id. art. 22(5). “Courts in the Second Circuit have found that Article 19 only
applies to ‘economic loss occasioned by delay in transportation.’” Vumbaca v.
Terminal One Grp. Ass’n L.P., 859 F. Supp. 2d 343, 367 (E.D.N.Y. 2012) (quoting
Sobol v. Cont’l Airlines, No. 05 CV 8992(LBS), 2006 WL 2742051, at *5 (S.D.N.Y.
Sept. 26, 2006)); see also Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1170 (11th
Cir. 2014) (“The parties agree that Article 19 permits the payment of economic
damages but does not contemplate compensation for emotional loss or physical
injury.” (citation omitted)).
III.
DISCUSSION
Plaintiffs’ papers in support of the instant motion are written without
citations to an evidentiary record necessary to support class certification. They
4 The SDR is an international reserve asset created by the International Monetary Fund (“IMF”).
Currently, one SDR is equivalent to $1.388570. See International Monetary Fund,
http://www.imf.org/external/np/fin/data/rms_sdrv.aspx (last visited July 20, 2015).
11
have not tried—and therefore cannot carry—their burden of demonstrating that the
requirements of Rule 23 are satisfied as to either of their two proposed classes.
Plaintiffs’ opening brief broadly argues that class certification is warranted
because all passengers suffered a common delay—and while damages cannot be
determined on a class-wide basis, “individual damages do not defeat class
certification under the Montreal Convention.” (Pls.’ Br. at 10.) As Dynamic points
out in its opposition, however—and plaintiffs effectively concede in their reply—the
liability determination under the Montreal Convention is fraught with likely
individualized issues. Article 19—the sole basis for liability alleged in the
Complaint—insulates Dynamic from all liability for flight delays if it proves that it
“took all measures that could reasonably be required to avoid the damage” from the
delays or that it was impossible for it to take such measures. Convention art. 19.
This defense—which Dynamic has asserted in its Answer—requires, inter alia, a
passenger-specific inquiry into the reasonableness of Dynamic’s accommodations in
light of each passenger’s individual circumstances and needs. To meet their burden
of demonstrating that liability could be resolved on a class-wide basis, plaintiffs
needed to have submitted evidence as to the measures that Dynamic took or did not
take vis-à-vis the putative class members. Plaintiffs have not done so here.
Plaintiffs do not dispute in their reply that evidence that Dynamic
“reasonably accommodated individual passengers in varying manners and methods”
could “defeat” class certification. (Plaintiffs’ Reply to Defendant’s Opposition to
Plaintiffs’ Motion for Class Certification (“Pls.’ Reply”) at 5, ECF No. 37; see also id.
12
at 4, 6, 8.) Plaintiffs also do not dispute that they have failed to present any
evidence as to Dynamic’s accommodations. Instead, plaintiffs argue that (1) the
missing evidence is within Dynamic’s control and Dynamic should have produced it
in discovery, and (2) the burden is on Dynamic “to plead and prove that it acted
differently from passenger to passenger to avoid class certification” because Article
19 is a strict liability provision subject only to affirmative defenses. (Pls.’ Reply at
3; see also id. at 4, 7, 8, 9.) Notably, plaintiffs’ opening does not mention the need
for any additional discovery—and plaintiffs waited until the day their reply was due
to file a motion to compel discovery.5
Plaintiffs are, of course, incorrect as to the legal standard. They bear the
burden of proof on this motion, not defendant. See Dukes, 131 S. Ct. at 2551;
Myers, 624 F.3d at 551. While Dynamic will ultimately bear the burden of proving
the merits of its reasonableness defense, plaintiffs must, at this stage, show that
Rule 23 is satisfied. If plaintiffs wished to litigate this action on a class-wide basis,
they had an obligation to assemble a factual record demonstrating that each Rule
23 requirement is met. Discovery from Dynamic was but one available source of
evidence from which such a record could have been developed (though a plainly
obvious and basic one); a factual record also could have been developed through
other sources, including the named plaintiffs, other putative class members, and
third parties. Notably, plaintiff Moses V. Rambarran asserts in his declaration that
he has “received communications from many passengers supporting this class
5 The Court denied the motion to compel discovery with leave to renew for failure to meet-and-confer.
Plaintiffs have not refiled the motion to date.
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action” (Rambarran Decl. ¶ 9)—suggesting that plaintiffs had access to putative
class members.
Plaintiffs’ eleventh-hour motion to compel discovery from Dynamic—filed at
the same time as their reply brief—does not mitigate or justify plaintiffs’ failure to
assemble the requisite factual record. This action was filed on December 29, 2014—
and discovery has been ongoing since (at least) February 2015, when plaintiffs
served discovery requests on Dynamic. (See Pls.’ Reply at 4-5.) If plaintiffs sought
to rely on discovery from Dynamic, and such discovery were not forthcoming,
plaintiffs should have promptly filed a motion to compel—and, if necessary,
requested an extension of the deadline to move for class certification. The
undersigned’s Individual Rules provide for efficient procedures to raise and obtain
resolution of discovery and scheduling issues. Plaintiffs did not avail themselves of
these procedures—choosing instead to file a motion for class certification with
hardly any evidence (and without mentioning the need for any additional discovery
in their opening). Now—through their belated motion to compel discovery—
plaintiffs are essentially asking this Court to extend all class certification deadlines
while they assemble the requisite facts. The Court declines this request.
A.
Numerosity
Class certification is inappropriate unless “the class is so numerous that
joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “[N]umerosity is
presumed at a level of 40 members.” Consol. Rail Corp. v. Town of Hyde Park, 47
F.3d 473, 483 (2d Cir. 1995) (citation omitted). Here, Dynamic has conceded
14
numerosity by acknowledging in its opposition that “there were approximately 236
passengers on the Plaintiffs[’] flight.” (Defendant Dynamic Airways LLC’s
Memorandum of Law in Opposition to Plaintiffs’ Motion for Class Certification
(“Def.’s Br.”) at 9, ECF No. 33.) While Dynamic argues that this “number alone
does not establish numerosity” because liability under Article 19 must be
determined on a passenger-by-passenger basis (id.), that argument is properly
directed to the other Rule 23 requirements, not to numerosity.
B.
Commonality
Under Rule 23(a)(2), plaintiffs must demonstrate that “there are questions of
law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “Commonality requires
the plaintiff to demonstrate that the class members ‘have suffered the same injury.’”
Dukes, 131 S. Ct. at 2551 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157
(1982)). “What matters to class certification . . . is not the raising of common
‘questions’—even in droves—but, rather the capacity of a classwide proceeding to
generate common answers apt to drive the resolution of the litigation.” Id. (citation
and internal quotation marks omitted); see also Johnson, 780 F.3d at 137 (a
question is common to the class if it is “capable of classwide resolution—which
means that its truth or falsity will resolve an issue that is central to the validity of
each one of the claims in one stroke” (quoting Dukes, 131 S. Ct. at 2551) (internal
quotation marks omitted)).
Here, the commonality requirement is met (albeit barely) as to the first
proposed class, consisting of the passengers on the December 23, 2014 flight. As to
15
that proposed class, common questions include the length of the delay, the reasons
for the delay, and the nature of the measures, if any, that Dynamic undertook to
prevent the delay-causing events. Importantly, however, several key questions are
not susceptible to class-wide answers, including whether Dynamic took all available
reasonable measures vis-à-vis each passenger who experienced delay, and whether
Dynamic acted with intent to cause damage or recklessly vis-à-vis each such
passenger.
As to the second proposed class, there is no basis for a finding6 of
commonality. That class consists of all persons who booked any New York–Guyana
round-trip flight from Dynamic with the outbound trip in December 2014, provided
that the flight was delayed at least three hours. Plaintiffs have not set forth any
admissible evidence as to which other New York–Guyana Dynamic flights were
delayed, much less the nature of those delays or the measures that Dynamic
undertook or could have undertaken to prevent or mitigate the delay-causing events
or the damage therefrom. On this record, the Court finds that the second proposed
class does not present questions that are susceptible to class-wide answers.
C.
Typicality
Rule 23(a)(3) provides that a class action may be maintained only if “the
claims or defenses of the representative parties are typical of the claims or defenses
of the class.” Fed. R. Civ. P. 23(a)(3). Typicality “is satisfied when each class
member’s claim arises from the same course of events and each class member
6 Throughout this decision, the Court uses the word “finding” to mean “ruling” or “determination,”
mindful of the Second Circuit’s discussion of that term in In re Initial Pub. Offerings Sec. Litig., 471
F.3d 24 (2d Cir. 2006).
16
makes similar legal arguments to prove the defendant’s liability.” Robidoux v.
Celani, 987 F.2d 931, 936 (2d Cir. 1993) (citations omitted).
The typicality requirement is not satisfied on the record before the Court.
Plaintiff Rambarran has represented that following the cancellation of the
December 23, 2014 flight, he “received no other communication from Dynamic
Airways through [the] date of the filing of the Complaint in this case regarding a
refund, alternative transportation from Dynamic Airways, or rebooking with
another carrier.” (Rambarran Decl. ¶ 4.) Both plaintiffs allege that they “were
forced to secure alternate transportation . . . without communication from Dynamic
Airways to learn whether Dynamic Airways would transport them to their
destination.” (Compl. ¶ 48.) However, there is no evidence that the named
plaintiffs’ experience in this regard is typical of the experiences of other putative
class members. The proposed classes may well include passengers who, unlike the
named plaintiffs, awaited and received alternate flight arrangements or other
accommodations from Dynamic. In fact, the Persaud Declaration states that
Dynamic accommodated different passengers in different ways—rebooking some on
a Swift Air flight, providing flight vouchers to others who chose to rebook with
another carrier, providing hotel vouchers to passengers who were not local to the
area, and providing meal coupons, and in some instances, cab fare to certain elderly
passengers. (Persaud Decl. ¶¶ 11-13.) Passengers who received such
accommodations would be required to make substantially different legal arguments
17
from the named plaintiffs to overcome the reasonableness defense. On this record,
there is no basis for a finding of typicality.
D.
Adequacy
To prove that the “representative parties will fairly and adequately protect
the interests of the class,” Fed. R. Civ. P. 23(b)(4), plaintiffs must demonstrate that
(1) the proposed class counsel is “qualified, experienced and able to conduct the
litigation,” and (2) the proposed class representatives have no interests that are
“antagonistic to the interest of other members of the class.” In re Flag Telecom
Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir. 2009) (citation and internal
quotation mark omitted).
In marching through the Rule 23 requirements, courts often glance over
adequacy; counsel’s qualifications and ability to litigate a class action are rarely
questioned. This, however, is one of the atypical cases where the proposed class
counsel has demonstrated a lack of ability to litigate on behalf of the class. Mr.
Schutz has not previously been appointed class counsel in any class action and has
never prosecuted a case under the Montreal Convention. (Schutz Decl. ¶ 2(d).)
While Mr. Schutz asserts that “this is a relatively straight forward case” (Pls.’ Reply
at 14) and he does not “anticipate any impediments in representing a class in this
litigation” (Schutz Decl. ¶ 2(d)), his conduct of this litigation thus far belies these
representations.
Mr. Schutz has persistently misunderstood even the most basic requirements
under Rule 23. He has failed to acknowledge the burden of proof on a class
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certification motion (and conflated this burden with the allocation of burdens under
the Montreal Convention), failed to submit the minimal factual materials necessary
to show that plaintiffs’ proposed classes satisfy Rule 23, failed to make a timely
motion to compel discovery, and failed to anticipate and timely apply for an
extension of the briefing schedule in order to assemble the necessary factual record.
Mr. Schutz has also improperly invoked Rule 23(b)(1)(A), which plainly does not
apply in the instant case. Finally, the Court notes that Mr. Schutz has previously
represented plaintiff Rambarran in connection with certain disciplinary
proceedings, which may give rise to a potential conflict of interest. In sum, the
Court finds that Mr. Schutz is not “qualified, experienced and able” to litigate this
case as a class action.
The Court also finds that plaintiff Moses V. Rambarran is not an adequate
class representative. Plaintiff Rambarran is an attorney who has been disbarred
from practicing law in New York for having mismanaged client escrow funds—and
who has pled guilty to the felony of concealing a person from arrest. This conduct
suggests that plaintiff Rambarran is not “of sufficient moral character to represent
a class.” Lapin v. Goldman Sachs & Co., 254 F.R.D. 168, 176 (S.D.N.Y. 2008)
(citation and internal quotation mark omitted).
Plaintiffs assert that “to the extent that the Court believes that class counsel
with more traditional class counsel experience is necessary, the solution is to
require the class representatives to retain a different law firm.” (Pls.’ Reply at 15.)
As to class representatives, plaintiffs similarly assert that “[i]f the Court deems
19
additional class representatives necessary, class certification may be deferred
pending a determination if additional passengers are willing to act as class
representatives.” (Pls.’ Reply at 11.)7 In plaintiffs’ view, “Dynamic should not
escape class certification because the personal history of the proposed class
representatives without providing undersigned counsel the opportunity to invite
others to serve.” (Id.)
The very fact that counsel made these arguments demonstrates his
inadequacy. Class certification is not for Dynamic to “escape”—it is for plaintiffs to
obtain. Plaintiffs must show at this stage the presence on the field of adequate
class counsel; the Court cannot certify a class action with counsel to follow.
Similarly, it was plaintiffs’ responsibility to secure adequate class representatives
before filing a motion for class certification, not after such motion became fully
briefed.
E.
Rule 23(b)(3)
“[T]o certify a class pursuant to Rule 23(b)(3), a plaintiff must establish
(1) predominance—‘that the questions of law or fact common to class members
predominate over any questions affecting only individual members’; and
(2) superiority—‘that a class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.’” Johnson, 780 F.3d at 137 (citing Fed.
R. Civ. P. 23(b)(3)). Plaintiffs have not met their burden of establishing these
elements by a preponderance of the evidence.
7 As an alternative, plaintiffs propose appointing “a class consultation committee made up of
passengers who are not formally class representatives, but who could fill an advisory role.” (Pls.’
Reply at 11.)
20
Predominance. Predominance “tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation.” Myers, 624 F.3d at
547 (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997)) (internal
quotation marks omitted). The purpose of the predominance requirement is to
ensure that a class will be certified only where it would “achieve economies of time,
effort, and expense, and promote uniformity of decision as to persons similarly
situated, without sacrificing procedural fairness or bringing about other undesirable
results.” Id. (quoting Cordes & Co. Fin. Servs. v. A.G. Edwards & Sons, Inc., 502
F.3d 91, 104 (2d Cir. 2007)) (internal quotation marks omitted). “Like the
commonality inquiry, a court examining predominance must assess (1) the
‘elements of the claims and defenses to be litigated’; and (2) ‘whether generalized
evidence could be offered to prove those elements on a class-wide basis or whether
individualized proof will be needed to establish each class member’s entitlement to
relief.’” Johnson, 780 F.3d at 138 (citation omitted). However, the predominance
requirement is “more demanding than Rule 23(a)”—and requires a further inquiry
“into whether the common issues can profitably be tried on a classwide basis, or
whether they will be overwhelmed by individual issues.” Id. (citation and internal
quotation marks omitted); see also Myers, 624 F.3d at 547 (predominance is
satisfied “if resolution of some of the legal or factual questions that qualify each
class member’s case as a genuine controversy can be achieved through generalized
proof, and if these particular issues are more substantial than the issues subject
only to individualized proof” (citation and internal quotation marks omitted)).
21
Plaintiffs argue that the initial delays common to all passengers render the
proposed classes sufficiently cohesive to meet the predominance requirement.
However, common delay is a needle in a haystack of issues requiring individualized
proof. As already discussed, assessing liability under the Montreal Convention
requires a passenger-specific inquiry into the reasonableness of the measures that
Dynamic took in response to the alleged delays. Assessing damages also requires
individualized proof as to each passenger’s delay-caused expenses. In fact, plaintiffs
concede that “damages for the cost of a meal, a taxi ride, a night in a hotel while
waiting, are all individual damages.” (Pls.’ Br. 8.) Based on the factual record
before the Court, including the Persaud Declaration, this case presents a host of
passenger-specific, fact-driven questions, such as:
What measures, if any, did Dynamic implement to avoid or mitigate each
passenger’s individual damages from the delays?
What were each passenger’s circumstances and needs at the time of the
delays (connecting and return flights, reasons for travel, age, health
conditions, etc.)?
Was Dynamic’s decision to implement some measures but not others
reasonable in light of these circumstances and needs, as well as other
relevant factors?8
A few examples: If Dynamic had the ability to arrange same-day alternative flights only for a small
set of passengers, it may have been reasonable to prioritize passengers who were traveling due an
emergency—or who were elderly, disabled, or traveling with small children. If Dynamic had a
limited number of hotel vouchers, it may have been reasonable to prioritize passengers who were not
local to the area. If some passengers chose to rebook with a different airline, it may have been
reasonable to provide them with flight vouchers and reserve other accommodations for other
passengers.
8
22
If not, did Dynamic act with “intent to cause damage or recklessly and with
knowledge that damage would probably result,” Convention art. 22?
What expenses, if any, did each passenger incur as a result of any
unreasonable behavior on Dynamic’s part?
Based on the Persaud Declaration, these questions must be answered as to
each passenger in order to determine: (1) whether the passenger was injured by the
delays, (2) whether Dynamic is liable for any such injury, and (3) the amount of
damages that each passenger suffered and, in particular, whether the “willful
misconduct” exception to the Article 22 damages cap applies. Nothing in the record
before the Court contradicts this. Accordingly, the Court finds that individualized
issues predominate over any common ones.
Superiority. To certify a class under Rule 23(b)(3), a plaintiff must establish
that “a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The factors pertinent to the
superiority analysis include:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions; (B) the extent and nature of
any litigation concerning the controversy already begun by or against
class members; (C) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum; and (D) the likely
difficulties in managing a class action.
Id.
Plaintiffs’ central argument on superiority is that passengers are unlikely to
bring individual lawsuits against Dynamic given the difficulty and expense of
pursuing a Montreal Convention case in federal court. This argument is not
23
without merit but it is insufficient to establish superiority here. The Second Circuit
has emphasized that “the issue of manageability of a proposed class action is always
a matter of justifiable and serious concern for the trial court and peculiarly within
its discretion.” In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 141
(2d Cir. 2001) (citation and internal quotation marks omitted). Here, the issue of
manageability is of paramount concern: plaintiffs have not presented any evidence
indicating that this class action, if certified, would not disintegrate into a series of
mini-trials regarding the reasonableness of Dynamic’s accommodations vis-à-vis
each passenger and each passenger’s individual damages. On the record before it,
the Court finds that the superiority requirement is not satisfied.
F.
Rule 23(b)(1)(A)
In addition to Rule 23(b)(3), plaintiffs cite Rule 23(b)(1)(A)—plainly
incorrectly.
Rule 23(b)(1)(A) ‘takes in cases where the party is obliged by law to treat the
members of the class alike (a utility acting toward customers; a government
imposing a tax), or where the party must treat all alike as a matter of practical
necessity (a riparian owner using water as against downriver owners).’” Amchem
Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997) (citation omitted).
Courts in this Circuit have repeatedly recognized that certification under
Rule 23(b)(1)(A) is limited to claims for equitable relief. Toney-Dick v. Doar, No. 12
CIV. 9162 KBF, 2013 WL 5295221, at *4 (S.D.N.Y. Sept. 16, 2013). Here, plaintiffs
are seeking monetary damages—for conduct which occurred wholly in the past.
24
Certification under Rule 23(b)(1)(A) is thus unavailable. See Reade-Alvarez v.
Eltman, Eltman & Cooper, P.C., No. CV-04-2195 (CPS), 2006 WL 941765, at *6
(E.D.N.Y. Apr. 12, 2006) (observing that many courts have held that Rule
23(b)(1)(A) does not apply to actions seeking compensatory damages out of “the
concern that if compensatory damage actions can be certified under Rule
23(b)(1)(A), then all actions could be certified under the section, thereby making the
other sub-sections of Rule 23 meaningless, particularly Rule 23(b)(3)” (citation and
internal quotation mark omitted)).
Moreover, even if (b)(1)(A) certification were available, there is no statutory
or practical obligation to treat putative class members alike. The very basis for
recovery here—Article 19—anticipates variability by relieving an air carrier from
liability if it proves that it took “all measures that could reasonably be required to
avoid the damage” or that it was impossible to take such measures. Convention art.
19. This reasonableness standard forecloses a requirement that all passengers be
treated alike and eliminates any risk that allowing putative class members to
pursue their own separate damages actions against Dynamic would establish
“incompatible standards of conduct.” There is thus no basis for certification under
Rule 23(b)(1)(A).
25
IV.
CONCLUSION
For the reasons set forth above, plaintiffs’ motion for class certification is
DENIED. The Clerk of Court is directed to terminate the motion at ECF No. 27.
SO ORDERED.
Dated:
New York, New York
July 27, 2015
KATHERINE B. FORREST
United States District Judge
26
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