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Volodarskiy v. Delta Airlines, Inc.

United States Court of Appeals, Seventh Circuit

April 10, 2015

GENNADIY VOLODARSKIY, et al., Plaintiffs-Appellants,
DELTA AIRLINES, INC., Defendant-Appellee

Argued April 17, 2014

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 C 00782 -- Edmond E. Chang, Judge.

For Gennadiy Volodarskiy, Oxana Volodarskaya, Plaintiff - Appellant: Joseph Henry Bates III, Attorney, Carney Bates & Pulliam, Pllc, Little Rock, AR; Jennifer W. Sprengel, Attorney, Cafferty Clobes Meriwether & Sprengel Llp, Chicago, IL.

For Delta Air Lines, Inc., Defendant - Appellee: Gabor Balassa, Attorney, Kirkland & Ellis Llp, Chicago, IL.

For Iberia, Lineas Aereas DE Espana, Sociedad Unipersonal, S.A. Operadora, Deutsche Lufthansa AG, Continental Airlines, Inc., United Airlines, Inc., Amici Curiae: Christopher R. Christensen, Attorney, Anthony U. Battista, Attorney, Condon & Forsyth Llp, New York, NY; Brent Robert Austin, Attorney, Eimer Stahl Llp, Chicago, IL; Kevin P. Shea, Attorney, Nixon Peabody Llp, Chicago, IL.

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

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were delayed for more than three hours or cancelled on short notice. The suit was filed in the Northern District of Illinois and invokes the court's diversity jurisdiction under the Class Action Fairness Act, 28 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 tat 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 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 plaintiffs 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 are canceled due to " extraordinary circumstances

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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 circumstances," 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 regulation. Id. art. 7(2).

The actual text of EU 261 requires airlines to pay compensation 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 & ...

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