UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

Transcription

1 Case :-cv-0-rsm Document Filed 0/0/ Page of TONY SCHULTZ, individually, and on behalf of a class of others similarly situated, UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE v. Plaintiffs, UNITED AIR LINES, INC., a Delaware corporation d/b/a UNITED AIRLINES; NORTHWEST AIRLINES, INC., a Delaware corporation; and DELTA AIR LINES, INC., a Delaware corporation, Defendants. Case No. COMPLAINT RULE CLASS ACTION JURY TRIAL REQUESTED Plaintiff, individually and on behalf of all others similarly situated ( Plaintiffs ), by and through his counsel, for his Complaint against United Air Lines, Inc., Northwest Airlines, Inc., and Delta Air Lines, Inc. (hereinafter Defendants ), hereby states and alleges as follows: I. INTRODUCTION. Following American Airlines lead in 0, Defendants, in pursuit of increased revenue, began charging all domestic travelers a fee for the handling and transportation of passengers bags to their destinations.. When Defendant Delta Air Lines, Inc. ( Delta ) completed its merger with CLASS ACTION COMPLAINT -

2 Case :-cv-0-rsm Document Filed 0/0/ Page of Defendant Northwest Airlines, Inc. ( NWA ) in October 0, it became the largest airline carrier in the world. Before the close of that year, Delta implemented a baggage charge on all domestic flights in the United States. For example, on domestic flights in the United States (including flights to, from, and between Puerto Rico and the U.S. Virgin Islands), Defendants Delta/NWA charged passengers a fee of $ for the first bag checked and $ for the second bag checked.. United Air Lines, Inc. ( United ) began charging baggage fees on June, 0.. Along with each Defendant s imposition of these new baggage fees came their clear and unambiguous obligation to handle passenger baggage with care and deliver it to the passenger s ultimate destination with the passenger.. Defendants breach their agreements with passengers each time they damage, delay, or lose baggage and fail to refund the baggage fee to the affected passenger.. Although loss or delay of some baggage may be unavoidable, Defendants are not entitled to retain the baggage fee collected from passengers whose baggage they have lost, damaged, or delayed. II. JURISDICTION AND VENUE. This Court has subject matter jurisdiction based on the Class Action Fairness Act, U.S.C. (d)().. Defendants routinely conduct business in Washington State and with the residents of this jurisdiction. Representative Plaintiff is a resident and citizen of King County, Washington.. Upon information and belief, each Defendant is a Delaware corporation and conducts business in the State of Washington and nationwide.. The amount in controversy exceeds $,000,000 when the claims of the class members are aggregated. CLASS ACTION COMPLAINT -

3 Case :-cv-0-rsm Document Filed 0/0/ Page of. According to the Department of Transportation ( DOT ), Delta/NWA mishandled,00 bags in October 0. According to the DOT, United lost more than,000 bags in October 0.. A refund of all baggage fees charged to affected class members during the statute of limitations would far exceed the jurisdictional requirements of CAFA.. Venue is proper in this action under U.S.C. (c). III. GENERAL ALLEGATIONS. Defendants are each United States airline carriers in the business of providing commercial passenger service throughout the United States and the world.. In 0, American Airlines took what it described as the extraordinary measure of charging passengers a fee for the handling and delivery to a set destination of all baggage passengers checked with the airline.. Certain other airlines rebuffed the trend of implementing baggage charges.. Within months, however, Delta, United, and NWA followed American s lead and established nearly identical fee schedules for passengers checked bags.. Defendants charge their baggage service fee in addition to the amount already charged for the passenger s airline ticket.. At airports across the country, Defendants personnel began representing to passengers that a fee was now required to ensure the timely delivery of their checked baggage.. In a transaction separate and apart from the customer s purchase of the airline ticket, Defendants began charging passengers a baggage fee based on the baggage s weight and size.. Upon acceptance of the passengers bags along with their baggage fee, Defendants incurred the obligation to not lose or damage the baggage or delay its delivery such CLASS ACTION COMPLAINT -

4 Case :-cv-0-rsm Document Filed 0/0/ Page of that it arrived with the passenger, at the agreed-upon destination, free of damage.. Notwithstanding these representations and obligations, Defendants lose, damage, destroy, and/ or delay the delivery of a large percentage of bags each day on flights within, and originating from, the United States.. On June, 0, Delta/NWA charged Plaintiff a $ fee for the handling and delivery of his bag from Hawaii to Seattle, Washington.. Delta/NWA failed to timely deliver Plaintiff s bag as promised, and was unable to locate Plaintiff s bag for more than twenty-four hours. service.. Delta/NWA never refunded Plaintiff the fee for its failure to deliver the promised. On October, 0, United charged Plaintiff a $ fee for the handling and delivery of his bag from Seattle, Washington to Sydney, Australia. flight.. Upon arrival in Sydney, Plaintiff learned that United failed to load his bag on the. Although United failed to timely deliver Plaintiff s bag to the agreed-upon destination, United never refunded Plaintiff the $ baggage fee.. Plaintiff now brings this suit on behalf of himself and others similarly situated, for a refund of the baggage fees charged by Defendants for failing to timely deliver his baggage and for otherwise losing, damaging, or destroying baggage during travel in the United States as well as on flights originating from the United States to foreign destinations. IV. CLASS ACTION ALLEGATIONS 0. Plaintiff brings a class action pursuant to Federal Rule of Civil Procedure, on behalf of himself and as representative of the following persons: () All passengers who flew on a flight originating in the United States, were charged a baggage fee, and had their bag(s) lost, delayed, damaged, and/or destroyed while they were in United s CLASS ACTION COMPLAINT -

5 Case :-cv-0-rsm Document Filed 0/0/ Page of custody and control. () All passengers who flew on a flight originating in the United States, were charged a baggage fee, and had their bag(s) lost, delayed, damaged, and/or destroyed while they were in Delta/NWA s custody and control.. Plaintiff s claims satisfy the numerosity, commonality, typicality, adequacy of representation, and superiority requirements for class action certification pursuant to Federal Rule of Civil Procedure (a) and (b)(), (b)(), and (b)().. The class satisfies the numerosity standards. The class is believed to number in the thousands of individuals. As a result, joinder of all class members in a single action is impracticable.. Defendants are in exclusive possession of the exact number of class members and should provide such discovery in their Initial Disclosures. Class members may be informed of the pendency of this class action through direct mail.. There are questions of fact and law common to the class which predominate over any questions affecting only individual members. The questions of law and fact common to the class arising from Defendants actions include, without limitation: () Whether Defendants, and each of them, breach their agreements with passengers from whom they have collected a baggage fee each time they fail to deliver the baggage to passengers, free from damage, at the time they arrive at the agreed-upon destination. () Whether Defendants, and each of them, breach their agreements with passengers from whom they have collected a baggage fee each time they damage or destroy the baggage. () Whether Defendants, and each of them, are obligated to refund the baggage fee charged to class members each time they fail to deliver the baggage to passengers, free from damage, at the time they arrive at the agreed-upon destination. () Whether Defendants, and each of them, are obligated to refund the baggage fee charged to class members each time they damage or destroy the baggage.. The questions set forth above predominate over any questions affecting only individual persons, and a class action is superior to other CLASS ACTION COMPLAINT -

6 Case :-cv-0-rsm Document Filed 0/0/ Page of available methods with respect to considerations of consistency, economy, efficiency, fairness, and equity for the fair and efficient adjudication of Plaintiff s claims.. Plaintiff s claims are typical of those of the class in that Defendants charged him a baggage fee that they did not refund although delivery of his bags was delayed for more than twenty-four hours.. A class action is the appropriate method for the fair and efficient adjudication of this controversy. Defendants have acted or refused to act on grounds generally applicable to the class. The presentation of separate actions by individual class members could create a risk of inconsistent and varying adjudications, establish incompatible standards of conduct for Defendants, and/or substantially impair or impede the ability of class members to protect their interests. Moreover, it would be impractical and undesirable for each member of the class who suffered harm to bring a separate action. The maintenance of separate actions would also place a substantial and unnecessary burden on the courts.. Further, Defendants have failed to take action as required under common law, on grounds applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole necessary and appropriate.. Plaintiff is an adequate representative of the class because he is a member of the class and his interests do not conflict with the interests of the members of the class he seeks to represent. The interests of the members of the class will be fairly and adequately protected by Plaintiff and his undersigned counsel, who have extensive experience prosecuting and defending complex class-action litigation. CLASS ACTION COMPLAINT - COUNT I Breach of Contract 0. Plaintiff reasserts and re-alleges the allegations set forth in the above paragraphs.. Each time Defendants charge a passenger an extra fee for the delivery of his or her baggage, Defendants enter into a valid and binding

7 Case :-cv-0-rsm Document Filed 0/0/ Page of agreement to deliver the baggage to the agreed-upon destination along with the passenger and not to otherwise damage or destroy the baggage.. Plaintiff and class members fulfilled all of their obligations under these contracts and paid the required fee in exchange for Defendants agreement to timely transport passengers bags free of damage to the destination designated at the time of booking their ticket.. Defendants breached their agreements with Plaintiff by failing to timely deliver his bags, and further breached their agreements with all others similarly situated when they failed to timely deliver or fail to deliver the their bags free of damage.. Plaintiff has, and all others similarly situated have, suffered damages in an amount to be determined at trial, including, but not limited to, the amount of baggage fees retained by Defendants for baggage they damaged or destroyed or otherwise failed to timely deliver, along with the passenger, to the agreed-upon destination. COUNT II Breach of the Covenant of Good Faith and Fair Dealing. Plaintiff reasserts and re-alleges the allegations set forth in the above paragraphs.. Implicit in every agreement is the covenant of good faith and fair dealing.. When Defendants collect a baggage fee for checked baggage, acceptance of that fee from the passenger obligates the airline to timely transport the passenger s baggage to its agreed upon destination free of damage.. In failing to refund the baggage fee to Plaintiff, and all others whose baggage they failed to timely deliver free of damage, Defendants breached the covenant of good faith and fair dealing.. Plaintiff was, and all others similarly situated were, thereby damaged in an amount to be determined at trial. Unjust Enrichment COUNT III CLASS ACTION COMPLAINT -

8 Case :-cv-0-rsm Document Filed 0/0/ Page of 0. Plaintiff reasserts and re-alleges the allegations set forth in the above paragraphs.. Defendants could have raised revenue by simply increasing their fares, but instead chose to impose mandatory baggage fees on their customers.. Plaintiff conferred a benefit upon Defendants when he paid the baggage fee, and upon acceptance of the baggage fee Defendants had knowledge of the benefit.. Imposition of these baggage fees enriched Defendants and increased their revenue, as was their intention. Defendants acceptance of these fees imposed upon them an obligation to deliver the baggage, along with the passenger, to the agreed-upon destination, and to refrain from damaging or destroying the baggage.. Defendants retention of such baggage fees becomes unjust, however, when Defendants fail to timely deliver a customer s bag to the required destination without damage. enriched.. By retaining the baggage fee in such instances, Defendants have been unjustly. Plaintiff was, and all others similarly situated were, thereby damaged in an amount to be determined at trial. COUNT IV Negligent Misrepresentation. Plaintiff reasserts and re-alleges the allegations set forth in the above paragraphs.. Commensurate with their charging a new fee for the delivery of checked baggage, Defendants represented to the public that payment of the baggage fee would ensure bags were handled with care and delivered to their destination in a timely fashion.. Defendants intended that their representation would induce passengers to pay a baggage fee in exchange for the secure and timely delivery of their checked baggage. 0. Based on their historical knowledge regarding the frequency with which they CLASS ACTION COMPLAINT -

9 Case :-cv-0-rsm Document Filed 0/0/ Page of damage, destroy, lose, and/or delay baggage, Defendants lacked a reasonable basis to believe that their representations regarding the timely delivery of checked baggage in exchange for a fee were true.. Plaintiff, in fact, reasonably relied upon these representations in paying the baggage fee.. Plaintiff has, and all others similarly situated have, suffered damages as a direct result of these representations when Defendants charged them the service fee but failed to fulfill the service by losing, damaging, or delaying their baggage.. Plaintiff was, and all others similarly situated were, thereby damaged in an amount to be determined at trial. V. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and all others similarly situated, demands judgment against Defendants and prays that the Court: A. Grant a permanent injunction enjoining Defendants, their officers, successors, agents, assigns, and all persons in active concert or participation with it, from retaining any baggage fee charged to passengers on flights that departed within the jurisdiction of the United States (including flights to, from, and between Puerto Rico and the U.S. Virgin Islands), when Defendants lost, delayed, or damaged the bag. B. Order Defendants to make Plaintiff and the other class members whole by immediately refunding all baggage fees charged and retained for bags that Defendants lost, damaged, or delayed. CLASS ACTION COMPLAINT -

10 Case :-cv-0-rsm Document Filed 0/0/ Page of C. Order Defendants to make an account for profits earned and/or expenses saved by their unlawful practices and provide full restitution to Plaintiff and other class members. D. Order Defendants to make Plaintiff and the other class members whole by providing compensation for past and future pecuniary losses resulting from the unlawful practices described in the above paragraphs, including out-of-pocket expenses, in amounts to be determined at trial. E. Order Defendants to make Plaintiff and the other class members whole by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices described in the above paragraphs, in amounts to be determined at trial. F. Order Defendants to make Plaintiff and the other class members whole by providing appropriate prejudgment interest, in an amount to be determined at trial, and other affirmative relief necessary to eradicate the effects of their unlawful practices. G. Award Plaintiff and the other class members the costs of this action, including attorneys fees. H. Grant any additional or further relief as provided by law, which this Court finds appropriate, equitable, or just. VI. DEMAND FOR JURY TRIAL Plaintiff hereby requests trial by jury of all issues triable by jury. VII. DESIGNATION OF PLACE OF TRIAL Plaintiff designates Seattle, Washington as the place of trial. CLASS ACTION COMPLAINT -

11 Case :-cv-0-rsm Document Filed 0/0/ Page of Dated this th day of August,. By: and /s/ Garrett R. Ferencz, WSBA No. David R. Ongaro Pro Hac Vice Pending Market Street, Suite San Francisco, CA Phone: () -0 Facsimile: () -0 Attorneys for Plaintiff CLASS ACTION COMPLAINT -