Customer’s early boarding fee claim eludes airline’s ADA preemption defense

Klutho v. Southwest Airlines Co. (E.D. Mo. Nov. 13, 2020).  In his state court class action complaint, the plaintiff alleged that Southwest had canceled his flight and rebooked him on another flight but did not refund the fee he had paid for “EarlyBird Check-In” on the canceled flight, requiring him to pay an additional fee for early boarding on the alternate flight.  The plaintiff alleged causes of action for unjust enrichment and money had and received.

Southwest removed the case to federal court and filed a motion to dismiss, contending that 49 U.S.C. § 41713(b)(1), a provision of the Airline Deregulation Act, preempted the plaintiff’s unjust enrichment and money had and received causes of action because both were state law claims “related to a price, route, or service of an air carrier.”  Taking the hint, the plaintiff successfully moved for leave to file an amended complaint “to replace the money had and received and unjust enrichment claims with a single common law breach of contract claim which is expressly allowed by the United States Supreme Court in lawsuits against airlines.  See American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995).”  The plaintiff attached Southwest’s Contract of Carriage to his amended complaint and alleged that it “does not mention the early boarding fee at issue in this case.”

Southwest moved to dismiss the amended complaint, again on ADA preemption grounds.  Southwest argued that the ADA preempted the breach of contract claim because it “impermissibly seeks to impose binding standards of conduct on Southwest that operate outside the terms of the Contract of Carriage,” which did not refer to the early boarding fee.

The plaintiff kept his opposition simple.  He argued that (i) his payment of the early boarding fee resulted in a unilateral contract that Southwest breached by failing to provide the early boarding he had paid for, (ii) the Contract of Carriage was irrelevant to the unilateral contract, and (iii) the ADA did not preempt his contract claim because he “is not trying to expand the terms of the simple contract agreed to” by the parties.

The court agreed with the plaintiff.  It found that he had “alleged offer, acceptance, consideration, breach, and damages, which are sufficient facts for the claim to fit within the Wolens exception to ADA preemption.”  For the court, the key factor was that the Contract of Carriage did not address the early boarding fee.  This made the case distinguishable from a case that Southwest had cited, according to the court.  In the cited case, the plaintiff alleged that the airline had breached the parties’ contract by its delayed delivery of his baggage, thus entitling him to a baggage fee refund.  The contract of carriage contained terms addressing the airline’s liability for baggage delay, but the plaintiff had not sued to enforce those terms; rather, the plaintiff sought a refund based on state laws external to the contract of carriage.

Note:  According to Southwest, “Plaintiff is a ‘frequent flyer’ in the federal and state courts.  In St. Louis alone, Plaintiff has filed nearly 20 lawsuits since 2006.  Just this year, Plaintiff has filed seven lawsuits, six of which are class actions.  See Klutho v. OnStar, LLC, 4:20-cv-00885-RLW (E.D. Mo. 2020); Klutho v. Slumberland, Inc., 4:20-cv-00688-AGF (E.D. Mo. 2020); Klutho v. Keyser Flooring, 20SL-CC01442 (Mo. Cir. Ct. 2020); Klutho v. JK Powerhouse LLC, 20SL-CC04599 (Mo. Cir. Ct. 2020); Klutho v. Netflix, Inc., et al, 20SL-CC04186 (Mo. Cir. Ct. 2020); Klutho v. Pundmann Motor Co., 2011-CC00820 (Mo. Cir. Ct. 2020).  Plaintiff is represented by his present counsel in all seven lawsuits.”

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