Gennadiy Volodarskiy v. Delta Air Lines, Inc. , 784 F.3d 349 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3521
GENNADIY VOLODARSKIY, et al.,
Plaintiffs-Appellants,
v.
DELTA AIRLINES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 11 C 00782 — Edmond E. Chang, Judge.
ARGUED APRIL 17, 2014 — DECIDED APRIL 10, 2015
Before MANION, SYKES, and TINDER, Circuit Judges.
SYKES, Circuit Judge. Several air travelers sued Delta
Airlines, Inc., seeking compensation for themselves and a
nationwide class of persons who were inconvenienced when
their flights from airports located in the European Union were
delayed for more than three hours or cancelled on short notice.
The suit was filed in the Northern District of Illinois and
2 No. 13-3521
invokes the court’s diversity jurisdiction under the Class
Action Fairness Act, 29 U.S.C. § 1332(d) (“CAFA”). The claim
arises under a consumer-protection regulation promulgated by
the European Parliament setting standardized compensation
rates ranging from €250 to €600 (depending on flight distance)
for cancellations and long delays of flights departing from
airports located within EU Member States. See Regulation
261/2004, 2004 O.J. (L 46) 1 (EC). A threshold question is
whether this regulation (known as “EU 261”) may be judicially
enforced outside the EU. The district court held that it could
not and dismissed the case.
We affirm. First, EU 261 is not incorporated into Delta’s
contract of carriage, so the claim is not cognizable as a breach
of contract. The plaintiffs concede the point and press only a
“direct” claim under the regulation. But a direct claim for
compensation under EU 261 is actionable only as provided in
the regulation itself, which requires that each EU Member State
designate an appropriate administrative body to handle
enforcement responsibility and implicitly limits judicial redress
to courts in Member States under the procedures of their own
national law.
I. Background
On August 17, 2009, Illinois residents Gennadiy
Volodarskiy, his wife, Oxana Volodarskaya, and their two
minor children were passengers on a Delta flight departing
from London’s Heathrow Airport bound for Chicago’s O’Hare
International Airport. Their flight was delayed at Heathrow for
more than eight hours. Delta neither informed them of the
No. 13-3521 3
delay prior to their scheduled departure time nor compensated
them for it after the fact.
On November 29, 2010, New Jersey residents Richard
Cohen and his wife, Inna, were passengers on a Delta flight
departing from Paris bound for Philadelphia. They boarded the
plane as scheduled, but Delta deboarded the passengers and
canceled the flight nearly three hours after the appointed
departure time. The Cohens arrived in Philadelphia more than
24 hours after their scheduled arrival time. Delta did not give
notice of the cancellation prior to the scheduled departure or
compensate the Cohens for the inconvenience.
The Volodarskiy family and Richard Cohen are the plain-
tiffs in this proposed class-action lawsuit seeking compensation
from Delta under EU 261, which establishes common rules
governing airline assistance and compensation in the event of
boarding denials, cancellations, or long delays of flights
departing from airports located within the EU.
More specifically, EU 261 applies to passengers “departing
from an airport located in the territory of a Member State,”
EU 261 art. 3(1)(a), and establishes a fixed compensation
schedule entitling inconvenienced passengers to a minimum of
€250 and a maximum of €600 (depending on flight distance), id.art. 7(1), for cancellations that occur on short notice and
without an offer of a rerouted flight within a specified time
frame, id. art. 5(1).1 Compensation is not owed for flights that
1
EU 261 also applies to passengers “departing from an airport located in a
third country to an airport situated in the territory of a Member State to
(continued...)
4 No. 13-3521
are canceled due to “extraordinary circumstances which could
not have been avoided even if all reasonable measures had
been taken.” Id. art. 5(3).
So, for example, if an airline cancels a flight from Berlin to
Rome—a distance of less than 1,500 km by air—without
sufficient notice and in the absence of “extraordinary circum-
stances,” the passengers are entitled to payment of €250 under
the compensation structure set forth in Article 7 of EU 261. Id.art. 7(1)(a). The amount of compensation increases with the
distance of the flight, to the maximum payment of €600. Id.art. 7(1). The airline can reduce the amount of compensation
owed by 50% by offering rerouting that reduces the length of
the delay to within certain minimums specified in the regula-
tion. Id. art. 7(2).
The actual text of EU 261 requires airlines to pay compensa-
tion only for canceled flights, see id. art. 5, but the European
Court of Justice has extended the entitlement to flight delays of
more than three hours from the scheduled departure time, see
Joined Cases C-402/07 & C-432/07, Sturgeon v. Condor Flugdienst
GmbH, 2009 E.C.R. I-10923, I-10979–80.
EU 261 also requires air carriers to offer various forms of
assistance to their passengers in the event of cancellations and
1
(...continued)
which the Treaty applies,” but only if the flight is operated by a
“[c]ommunity carrier.” Regulation 261/2004, 2004 O.J. (L 46) 1 (EC)
art. 3(1)(b). The term “community carrier” is defined elsewhere in the
regulation, see id. art. 2(c), and the parties agree that it does not apply to
Delta.
No. 13-3521 5
certain long delays. Cancellations and delays of more than two
hours require specified forms of assistance depending on flight
distance and the length of the delay, see EU 261 art. 6, including
reimbursement of airfare, a return flight to the first point of
departure, rerouting to the traveler’s final destination at the
earliest opportunity, meals, and lodging, id. art. 8 & 9.
The regulation prescribes an enforcement regime for these
entitlements. Most notably, it requires each Member State to
designate a national administrative body to handle enforce-
ment responsibilities. See id. art. 16; id. preamble ¶ 22. We will
return to the regulation’s enforcement provisions later. For
now it’s enough to note that the plaintiffs did not use the
enforcement mechanisms available to them in the relevant
EU Member States (the United Kingdom and France, where
their departure airports are located). Instead, they sought relief
under EU 261 in an American forum, no doubt to access the
class-action device available under U.S. law.2
2
Most European nations have not embraced the U.S.-style class action. See
Rachael Mulheron, The Case for an Opt-Out Class Action for European Member
States: A Legal and Empirical Analysis, 15 COLUM. J. EUR. L. 409, 415 (2009)
(“Opt-out collective redress regimes are most definitely the exception, and
not the rule, across the twenty-seven European Member States. Only
three—Denmark, the Netherlands, and Portugal—have some version of an
opt-out collective redress regime … .”); S. I. Strong, Regulatory Litigation in
the European Union: Does the U.S. Class Action Have a New Analogue?,
88 NOTRE DAME L. REV. 899, 903 (2012) (noting “Europe’s traditional
antipathy toward … U.S. class actions”). Some nations do provide a form
of “collective redress,” although these aggregate litigation procedures vary.
See Strong, supra, at 903 (“As it turns out, sixteen of the twenty-seven
European Member States now provide for some form of large-scale
(continued...)
6 No. 13-3521
In February 2011 Volodarskiy and his family filed suit
against Delta in the Northern District of Illinois seeking to
represent a class of U.S. residents whose flights from airports
in EU Member States were canceled or delayed for more than
three hours. The sole cause of action in the original complaint
was a claim for breach of contract; the plaintiffs contended that
EU 261 was incorporated into Delta’s international contract of
carriage. That claim failed at the pleading stage. Ruling on
Delta’s motion to dismiss, the district court held that EU 261
was not explicitly incorporated into Delta’s contract of carriage
and any incorporation by implication would be barred by the
preemption clause of the Airline Deregulation Act, 49 U.S.C.
§ 41713(b) (“ADA”). The judge dismissed the complaint but
allowed the plaintiffs to replead.
The amended complaint dropped the contract claim, added
Richard Cohen as a plaintiff, and alleged only a “direct” claim
under EU 261. Delta again moved to dismiss, this time arguing
that a direct claim under EU 261 is actionable only in a desig-
nated administrative body or a court in an EU Member State.
Alternatively, Delta argued that even if a direct claim is
2
(...continued)
litigation as a matter of national law … .”). See generally Mulheron, supra, at
415–27 (describing collective-redress procedures in a variety of European
nations). Recently, the European Commission recommended the promulga-
tion of more unified collective-redress procedures across member states, but
these recommendations evince continued hostility toward the U.S.-style
opt-out class action. See Commission Recommendation 2013/396/EU, art. 5,
2013 O.J. (L 201) 60, 64; see also Samuel Issacharoff & Geoffrey P. Miller, Will
Aggregate Litigation Come to Europe?, 62 VAND. L. REV. 179, 192 (2009).
No. 13-3521 7
cognizable outside the legal systems of the EU, the ADA
preempts it. Finally, Delta argued that prudential principles of
international comity required the court to abstain and dismiss.
The judge agreed with the first of these arguments, holding
that “EU 261 does not provide a private right of action that can
be enforced in courts outside the EU.” For completeness,
however, the judge addressed—and rejected—Delta’s preemp-
tion and comity arguments.3 The judge then dismissed the
amended complaint and terminated the case.
II. Discussion
The plaintiffs do not challenge the dismissal of their breach-
of-contract claim. To the contrary, they now concede that
EU 261 is not incorporated into Delta’s contract of carriage and
abandon their breach-of-contract theory. What remains is a
direct claim under EU 261, so the threshold issue on appeal is
whether the regulation may be judicially enforced outside the
courts of EU Member States. The parties agree that EU 261
creates, in the parlance of U.S. law, a private right of action;
they disagree about where that action can be maintained.
3
Delta also argued, though only in a footnote, that the plaintiffs’ claim is
preempted under the Montreal Convention, a multilateral treaty governing
international air transportation. The district judge found this argument
underdeveloped but addressed it anyway and rejected it. Delta has not
raised the Montreal Convention on appeal. We have an amicus brief from
other international air carriers raising the Convention as an alternative basis
to affirm. Because we’re affirming on another ground and Delta does not
rely on the Convention, we do not address this argument.
8 No. 13-3521
It’s hard to classify this dispute doctrinally. It has shadings
of jurisdiction, venue, and choice-of-law, but it doesn’t fit
neatly into any of these doctrinal baskets. We note for starters
that there are no jurisdictional concerns; CAFA supplies
subject-matter jurisdiction. The parties haven’t framed the
issue as a conflicts-of-law question; they make no effort to
analyze the case under Illinois choice-of-law rules.4 See
McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 684 (7th Cir.
2014) (federal courts sitting in diversity apply the forum state’s
choice-of-law rules to determine the applicable substantive
law). Instead, they simply assume that EU law applies and
argue about the proper interpretation of the regulation.
Forum non conveniens might have had a role to play here.
That doctrine holds that a case may be dismissed if the court
“determines that there are ‘strong reasons for believing it
should be litigated in the courts of another, normally a foreign,
jurisdiction.’” Fischer v. Magyar Államvasutak Zrt., 777 F.3d 847,
866 (7th Cir. 2015) (quoting Abad v. Bayer Corp., 563 F.3d 663,
665 (7th Cir. 2009)). One good reason to dismiss a case based
on forum non conveniens is to avoid the administrative or legal
complications of interpreting and applying a foreign country’s
law. Id. at 866–68. Relatedly, the doctrine permits dismissal in
deference to a foreign sovereign’s superior competence and
public interest in adjudicating its own law. Id. at 870–71. These
4
The suit is obviously doomed if the forum state’s law controls. Without a
viable breach-of-contract theory, there is no cognizable basis in Illinois law
for the plaintiffs’ claim.
No. 13-3521 9
principles are implicated here, but Delta’s dismissal motion
was not premised on forum non conveniens.5
Taking the case as the parties have litigated it, Delta’s main
argument is that the enforcement provisions of EU 261—either
on their own or in conjunction with background principles of
EU treaty law—limit compensation claims to designated
administrative bodies or courts within EU Member States. The
district judge agreed and dismissed the case on that basis.6
On appeal the plaintiffs attack the judge’s interpretation of
the enforcement language in EU 261. Delta defends it of course.
Our review is de novo. Tamayo v. Blagojevich, 526 F.3d 1074,
1081 (7th Cir. 2008).
EU 261 does not have an explicit forum-limitation clause.
But it also doesn’t clearly empower tribunals in nonmember
countries to enforce the compensation system. And the text
and structure of the regulation indicate that passenger claims
5
In their appellate briefs, the plaintiffs cite a few cases involving interna-
tional choice-of-law questions and dismissal motions based on forum non
conveniens. See, e.g., Kalmich v. Bruno, 553 F.2d 549 (7th Cir. 1977) (choice
of law); Kalmich v. Bruno, 404 F. Supp. 57 (N.D. Ill. 1975) (same); see also
Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co., 145 F.3d 481 (2d
Cir. 1998) (forum non conveniens); Brooks v. Hess Oil V.I. Corp., 809 F.2d 206(3d Cir. 1987) (choice of law). Because Delta hasn’t raised forum non
conveniens or argued that Illinois law controls, these cases are unhelpful
here.
6
As we’ve explained, Delta also advanced arguments based on ADA
preemption and comity, but the judge said he would not dismiss on either
ground.
10 No. 13-3521
for compensation due from air carriers are limited to adminis-
trative bodies and courts in EU Member States.
The operative text of EU 261 prescribes two main avenues
of enforcement, which are summarized in this aspirational
language in the preamble:
Member States should ensure and supervise
general compliance by their air carriers with this
Regulation and designate an appropriate body to
carry out such enforcement tasks. The supervi-
sion should not affect the rights of passengers
and air carriers to seek legal redress from courts
under procedures of national law.
EU 261 preamble ¶ 22. The actual enforcement provisions are
found in Article 16, entitled “Infringements.” In relevant part,
that article provides:
1. Each Member State shall designate a body responsi-
ble for the enforcement of this Regulation as regards
flights from airports situated on its territory and
flights from a third country to such airports.
Where appropriate, this body shall take the
measures necessary to ensure that the rights of
passengers are respected. …
2. Without prejudice to Article 12, each passenger
may complain to any body designated under para-
graph 1, or to any other competent body designated by
a Member State, about an alleged infringement of this
Regulation at any airport situated on the territory of
a Member State or concerning any flight from a
No. 13-3521 11
third country to an airport situated on that
territory.
Id. art. 16(1)–(2) (emphases added).
The “body” referred to in both the preamble and in
Article 16 is an administrative entity designated by each
Member State, known as a “National Enforcement Body” or
“NEB.” According to a report prepared for the European
Commission, most NEBs focus on investigations and direct
enforcement against airlines rather than assisting individual
passengers in obtaining more formal legal redress. See Steer
Davies Gleave, Evaluation of Regulation 261/2004, THE EURO-
PEAN COMMISSION, 75–76, 81 (Feb. 2010), http://ec.europa.eu/
transport/themes/passengers/studies/doc/2010_02_ evaluation_
of_regulation_2612004.pdf. So passengers also seek relief for
infringements of their EU 261 rights in civil courts, often the
equivalent of our small-claims courts. See id. at 78–82. Many
provisions of EU law are immediately enforceable in the
judicial fora of Member States (subject to the procedural and
venue rules of each nation) regardless of whether the Member
State has independently implemented the provision. This
background principle of EU law is known as “direct effect.” See
The Direct Effect of European Law, EUROPA, http://eur-lex.europa.
eu/legal-content/EN/TXT/HTML/?uri=URISERV:114547&rid=1
(Sept. 22, 2010) (citing Case 26/62, Van Gend en Loos v.
Nederlandse Administratie der Belastingen, 1963 E.C.R. 1); see also
Case C-253/00, Antonio Muñoz y Cia SA & Superior Fruiticola
SA v. Frumar Ltd. & Redbridge Produce Mktg. Ltd., 2002 E.C.R.
I-7289, I-7320–21 (“[R]egulations have general application and
are directly applicable in all Member States. … [R]egulations
12 No. 13-3521
operate to confer rights on individuals which the national
courts have a duty to protect.” (citation omitted)).
Another provision of EU 261 specifies that an air carrier’s
obligations to passengers “may not be limited or waived.”
EU 261 art. 15(1). If a contract of carriage includes a purported
waiver or limitation of EU 261 rights, or if an airline fails to
properly inform a passenger of his rights “and for that reason
[the passenger] has accepted compensation which is inferior to
that provided for in this Regulation,” then the passenger “shall
still be entitled to take the necessary proceedings before the
competent courts or bodies in order to obtain additional
compensation.” Id. art. 15(2).
The district court held that when read together, these
provisions establish that direct actions to enforce EU 261 rights
are limited to courts in EU Member States. We agree. To begin,
the language we’ve quoted from Paragraph 22 of the preamble
summarizes the two important features of the regulation’s
enforcement regime. First, Paragraph 22 mentions the obliga-
tion of each EU Member State to designate an administrative
body to ensure compliance and enforcement of the regulation.
(These are the NEBs, though EU 261 doesn’t specifically refer
to them as such.) Second, Paragraph 22 clarifies that the
existence of the administrative-enforcement system “should
not affect the rights of passengers and air carriers to seek legal
redress from courts under procedures of national law.” Id.preamble ¶ 22.
The plaintiffs insist that this reference to “courts” and the
“procedures of national law” means that direct claims under
EU 261 can be brought in the courts of any country. That
No. 13-3521 13
reading ignores the broader context of this passage. As we’ve
noted, the first sentence of Paragraph 22 simply notes the duty
of Member States to designate an administrative body (an
NEB) to “supervise general compliance” and “carry out such
enforcement tasks” in order to ensure airlines are meeting their
obligations under EU 261. The second sentence makes it clear
that the enforcement authority of the NEBs doesn’t affect the
rights of passengers or carriers to seek redress in courts under
national law. In other words, the administrative enforcement
of EU 261 via a system of NEBs is not meant to displace the
authority of courts within Member Nations to adjudicate
infringement claims under the procedures of their own
national law.
But does this language also mean that judicial enforcement
of EU 261 lies exclusively in the courts of EU Member Nations?
Delta argues that it does, when read together with the enforce-
ment provisions of the regulation and in light of background
principles of EU treaty law.
As we’ve noted, Article 16 provides that passengers may
look to two different fora to resolve infringement claims under
EU 261: (1) an administrative entity in a Member State desig-
nated as the “body responsible for the enforcement of this
Regulation” (the NEBs); and (2) “any other competent body
designated by a Member State.” EU 261 art. 16 (emphasis added).
By implication, the phrase “any other competent body desig-
nated by a Member State” necessarily includes the courts of EU
Member States. Paragraph 22 of the preamble and the direct-
effect principle of EU law make that much clear. So the
enforcement language in EU 261 tells passengers to take their
14 No. 13-3521
infringement claims to an administrative or judicial forum
within or designated by the relevant EU Member State for that
purpose. No one argues that the United Kingdom, France, or
any other EU Member State has “designated” the U.S. courts
as a “competent body” for the enforcement of EU 261 claims.
The plaintiffs counter that Article 15 of the regulation refers
more generally to “proceedings before the competent courts or
bodies.” Id. art. 15(2). In their view this language suggests that
an enforcement action under EU 261 may be brought in a
competent court anywhere in the world. That’s an implausible
interpretation. Recall that Article 15 prohibits the waiver or
limitation of EU 261 rights by contract. Id. art. 15(1). It also
states that if an airline’s contract of carriage purports to waive
or limit the passenger’s EU 261 rights, or if an airline fails to
inform passengers of their rights and a passenger accepts
inferior compensation as a result, the passenger “shall still be
entitled to take the necessary proceedings before the competent
courts or bodies in order to obtain additional compensation.”
Id. art. 15(2).
The plaintiffs read this reference to “competent courts or
bodies” as authorizing private enforcement actions in any
competent court—either within or outside the EU. We think
that’s more weight than Article 15(2) can bear. When read
together and harmonized with the more limited enforcement
scheme set forth in Article 16(2), the phrase “competent courts
or bodies” as used in Article 15(2) is best understood as a
reference to competent courts or bodies within or designated
by an EU Member Nation, as authorized by Article 16.
No. 13-3521 15
This interpretation of EU 261 accords with several back-
ground principles of EU law. Take the principle of
“subsidiarity”:
Under the principle of subsidiarity, in areas
which do not fall within its exclusive compe-
tence, the Union shall act only if and in so far as
the objectives of the proposed action cannot be
sufficiently achieved by the Member States,
either at central level or at regional and local
level, but can rather, by reason of the scale or
effects of the proposed action, be better achieved
at Union level.
Consolidated Version of the Treaty on European Union art. 5,
Mar. 30, 2010, 2010 O.J. (C 83) 13, 18. Determining the proper
forum for court actions has traditionally been left to EU Mem-
ber States:
The [European Court of Justice] has consistently
held that, in the absence of Community rules
governing the matter, it is for the domestic legal
system of each Member State to designate the
courts and tribunals having jurisdiction and to
lay down the detailed procedural rules govern-
ing actions for safeguarding rights which indi-
viduals derive from Community law.
Case C-268/06, Impact v. Minister for Agriculture & Food &
Others, 2008 E.C.R. I-2483, I-2550–51 (collecting authority). The
authority to designate the proper fora for enforcement actions
under EU 261 resides with EU Member States in accordance
with their own national law.
16 No. 13-3521
Invoking the principle of EU law known as “legal cer-
tainty,” Delta also argues that divergent interpretations of
EU 261 by courts in nonmember countries would undermine
the EU’s attempt to harmonize the law within its jurisdiction.
Legal certainty is a “fundamental principle of Community law
which requires, in particular, that rules should be clear and
precise, so that individuals may ascertain unequivocally what
their rights and obligations are and may take steps accord-
ingly.” Case C-344/04, Int’l Air Transp. Ass’n v. Dep’t for Transp.,
2006 E.C.R. I-403, I-472.
The European Court of Justice (“ECJ”) plays an important
role in ensuring that EU laws are applied uniformly across
Member States. See id. at I-461 (“The main purpose of the
jurisdiction conferred on the [ECJ] … is to ensure that Commu-
nity law is applied uniformly by national courts.”); Court of
Justice of the European Union, EUROPEAN UNION, http://europa.
eu/about-eu/institutions-bodies/court-justice/index_en.htm
(last visited April 10, 2015) (“The Court of Justice interprets EU
law to make sure it is applied in the same way in all EU
countries.”). The ECJ is empowered to make preliminary
decisions on the validity and interpretation of EU laws. See
Consolidated Version of the Treaty Establishing the European
Community art. 234, Dec. 24, 2002, 2002 O.J. (C 325) 33, 127.
Any court or tribunal of a Member State can ask the ECJ for a
ruling, and the ECJ is required to entertain these requests
“[w]here any such question is raised in a case pending before
a court or tribunal of a Member State against whose decisions
there is no judicial remedy under national law.” Id. at 127–28.
No. 13-3521 17
Because U.S. courts cannot certify questions of EU law to
the ECJ, Delta argues that interpreting EU 261 to allow direct
claims in nonmember courts would undermine the consistent
application of the regulation in violation of the principle of
legal certainty. We think this argument proves too much—it
would foreclose any decision of a U.S. court applying EU law.
We’re not willing to go quite that far. Still, asking a U.S. court
to wade into an area of EU law that is fraught with uncertainty
risks offending principles of international comity. That is
particularly true when the claim created by foreign law is alien
to our own; our domestic law has no cause of action analogous
to EU 261. As we’ve noted, however, these concerns can be
more generally addressed under the auspices of the doctrine of
forum non conveniens. See Clerides v. Boeing Co., 534 F.3d 623,
628 (7th Cir. 2008) (recognizing that “the avoidance of unneces-
sary problems … in the application of foreign law” weighs in
favor of a dismissal under forum non conveniens).
Rather than dictating the result here, the principles of legal
certainty and subsidiarity serve to reinforce our interpretation
of the text of EU 261 and the limited scope of its enforcement
regime. Accordingly, for the foregoing reasons, we conclude
that EU 261 is not judicially enforceable outside the courts of
EU Member States.7 The suit was properly dismissed.
AFFIRMED.
7
Dismissal was appropriate on this ground alone, so we need not address
Delta’s alternative argument based on ADA preemption.