Opinion
CIVIL ACTION NO. 3:01-CV-1179-P
September 30, 2002
MEMORANDUM OPINION AND ORDER
Now before the Court for its consideration is Plaintiff Darren M. Lee's ("Plaintiff") Motion for Class Certification ("Motion"), filed January 15, 2002. After careful consideration of the facts of the case, the Parties' briefing, and the applicable law, the Court hereby DENIES Plaintiffs Motion.
Defendant American Airlines, Inc. filed its response brief on February 11, 2002, and Plaintiff filed his reply brief on March 4, 2002.
FACTS
This case arises out of an alleged class action brought by Plaintiff Darren M. Lee, on behalf of himself and all other similarly-situated ticketed passengers on American Airlines ("American" or "Defendant") Flight 100, claiming damages as a result of delay caused when his flight did not depart New York's JFK International Airport for London's Heathrow International Airport at its scheduled departure time of 6:35 p.m. on Friday, May 18, 2001. (See Pls.' Class Action Compl. ("Compl.") at 1-15.)
Plaintiff now moves for class certification of those individuals for whom he seeks to recover damages caused by delay and ultimately, the cancellation of Flight 100.
DISCUSSION
I. APPLICABLE LEGAL PRINCIPLES.
A. RULE 23 MOTION STANDARD.
At the certification stage, a plaintiff must do more than simply allege that the Rule 23 requirements have been met, although he is not required to prove a prima facie case. See Aiken v. Neiman-Marcus, 77 F.R.D. 704, 704 (N.D. Tex. 1977) (Higginbotham, J.). While an extensive evidentiary showing is not required, a plaintiff must adduce enough evidence to enable a court to form a "reasonable judgment" as to each element. See Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir. 1975). A plaintiff is not required to prove the merits of the class claim or even to establish a probability that the action will be successful. See Eisen v. Carlisle Jacquelin, 417 U.S. 156, 177-78 (1974). It is necessary, however, that a plaintiff make a preliminary exploration of some of the elements contained in his causes of action so that the court can determine if the prerequisites of class certification are present. See. e.g., Alabama v. Blue Bird Body Co., 573 F.2d 309, 316 (5th Cir. 1978).
The court may look past the pleadings to the record and any completed discovery to make the certification decision. See Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996) ("A district court may look past the pleadings to determine whether the requirements of rule 23 have been met."). "Going beyond the pleadings is necessary, as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues." Id.
B. REQUIREMENTS FOR CLASS CERTIFICATION.
Although the question whether to certify a class falls within a court's broad discretion, the court must vigorously analyze the requirements of Rule 23 of the Federal Rules of Civil Procedure. See Castano, 84 F.3d at 740. Rule 23 requires that a plaintiff meet all the requirements of Rule 23(a) and at least one subsection of Rule 23(b). See Fed.R.Civ.P. 23(b). Plaintiff, as the party seeking certification, bears the burden of establishing these elements. See Castano, 84 F.3d at 740.
Rule 23(a) provides as follows:
a) Prerequisites to a Class Action.
One or more members of a class may sue or be sued as representative parties on behalf of all only if:
(1) the class is so numerous that joinder of all members is impracticable ["numerosity"],
(2) there are questions of law or fact common to the class ["commonality"],
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class ["typicality"], and
(4) the representative parties will fairly and adequately protect the interests of the class ["adequacy"].
Rule 23(b) provides:
(b) Class Actions Maintainable.
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members ["predominance"], and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy ["superiority"]. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Fed.R.Civ.P. 23(b)(3). Rule 23(b)(3) requires Plaintiff to prove "predominance" — a demonstration that questions of law and fact common to members of the class predominate over individual questions and (2) "superiority" — a showing that a class action is superior to individual actions with respect to promoting a fair and efficient adjudication of the controversy. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997).
C. THE WARSAW CONVENTION.
The Warsaw Convention is an international treaty covering "all international transportation of persons, baggage, or goods performed by aircraft for hire." El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 162 (1999). The Warsaw Convention was crafted in 1929 "to foster the growth of the nascent commercial airline industry." King v. American Airlines, Inc., 284 F.3d 352, 356 (2d Cir. 2002). The primary function of the Warsaw Convention is to achieve uniformity in the laws governing international air carrier liability. See Rogers v. American Airlines, 192 F. Supp.2d 661, 665 (N.D. Tex. 2001) (Lynn, J.). To this end, the Warsaw Convention creates a comprehensive liability system to serve as the exclusive mechanism for remedying injuries suffered in the course of the transport. King, 284 F.3d at 356. This is accomplished by protecting air carriers against devastating liability through the use of monetary damage caps and restrictions on the types of claims that may be brought against carriers, while accommodating injured passengers by creating a presumption of liability against the carrier when a claim satisfies the substantive requirements of the Warsaw Convention. Id. at 357.
Because uniformity requires that passengers be denied access to the multitude of remedies that may exist under the laws of a particular country, passengers are required to bring their claims under the terms of the Warsaw Convention or not at all. Id. at 356. The Warsaw Convention provides the exclusive remedy and an independent cause of action for injuries incurred during international transportation. See Tseng, 525 U.S. 155; Rogers, 192 F. Supp.2d at 665.
There are three types of claims a passenger may assert against a carrier under the Warsaw Convention: (1) claims based on personal injuries (Article 17); (2) claims based on lost or damaged luggage (Article 18); and (3) claims based on damages due to delays in transportation (Article 19). According to Tseng, the Warsaw Convention preempts all state law claims falling under these articles.
Tseng held that when a passenger's claim fails to satisfy the conditions for personal injury liability under Article 17, that passenger is still precluded from maintaining a separate action for personal injuries under local law. In Rogers, the court held that "although Tseng expressly dealt with exclusive remedies under Article 17 relating to personal injuries, it leaves little doubt that Articles 18 and 19 of the Warsaw Convention provide the exclusive causes of action for claims falling within the `substantive scope' of those provisions." See Rogers, 192 P. Supp.2d at 667 n. 6. (applying Tseng to Article 19 case).
In this case, Plaintiff has pled his case under Article 19 of the Warsaw Convention, which establishes the carrier's liability "for damage occasioned by delay in the transportation by air of passengers, baggage, or goods." 49 U.S.C. § 40105, art. 19. Thus, to state a claim under Article 19, the class plaintiffs must establish a delay of an international flight that caused each of them damages.
With respect to the calculation of each plaintiffs damages, the Warsaw Convention does not specify what types of damages are recoverable thereunder. The Warsaw Convention permits only compensatory damages, but leaves to domestic law the determination of what harm is legally cognizable. See Zicherman v. Korean Air Lines Co., Ltd., 516 U.S. 217, 227 (1996).
II. ANALYSIS.
A. DOES A CLASS EXIST?
Plaintiff seeks to certify a class of individuals that he defines as
all persons ticketed on American Airlines Flight 100, scheduled to depart JFK airport for London Heathrow at 6:35 p.m. on Friday, May 18, 2001, who presented themselves at the gate for the scheduled departure of Flight 100 and who did not depart for London Heathrow, or an alternative European destination, until Saturday, May 19, 2001.
(Pl.'s Mot. for Class Certification at 1.) Excluded from this definition are those ticketed passengers who (1) were accommodated on May 18 (19 passengers), (2) were accommodated on May 20 (1 passenger) or thereafter, or (3) cancelled their scheduled trips altogether (6 passengers). (Def.'s App. at 2.) There are four passengers whose alternate travel plans are unknown to the Parties. (Id.)
Defendant argues that Plaintiffs proposed class definition contains ambiguities that preclude the Court from certifying the class. (Def.'s Resp. at 8.) Specifically, Defendant contends that there exists an ambiguity as to "what constitutes a European destination [-] [d]oes this require that the European destination be the final stop for the passenger, or does it include a passenger who traveled through a European country on his or her way to a non-European country?" (Def.'s Resp. at 8.) Defendant argues that this ambiguity creates difficulties in identifying the putative class members, and therefore denial of Plaintiffs Motion is appropriate. (Def.'s Resp. at 8.)
A class does not have to be so ascertainable that every potential member can be identified at the commencement of the action. See Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir. 1975). "If the general outlines of the membership of the class are determinable at the outset of the litigation, a class will be deemed to exist." Charles A. Wright Arthur R. Miller, 7A Federal Practice Procedure § 1760 (2d ed. 1986). In other words, the requirement that there be a class will not be deemed satisfied unless the description of it is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member. See Ladd v. Dairyland County Mut. Ins. Co. of Texas, 96 F.R.D. 335, 338 (N.D. Tex. 1982). This means that the class must not be defined so broadly that it encompasses individuals who have little connection with the claim being litigated; rather, it must be restricted to individuals who are raising the same claims or defenses as the representative. See Wright Miller, supra, § 1760. Further, the class definition cannot be too amorphous. See id.
If the court decides that the class described in the complaint does not meet a minimum standard of definiteness, it need not dismiss the action. See id. It has the discretion to limit or redefine the class in an appropriate manner to bring the action within Rule 23. See Godbolt v. Hughes Tool Co., 63 F.R.D. 370, 371 (S.D. Tex. 1972) ("The law provides that redefinition may be undertaken . . . on the Court's initiative or upon the motion of a party.")
In this case, Plaintiff has met the minimum standard of definiteness. The identities of the individuals who were ticketed on American Airlines Flight 100, scheduled to depart JFK airport for London Heathrow at 6:35 p.m. on Friday, May 18, 2001, and who presented themselves at the gate for the scheduled departure of Flight 100, yet actually departed for London Heathrow or an alternative European destination on Saturday, May 19, 2001, are readily ascertainable from the list provided in American's own appendix. (Def.'s App. at 1, 7-14.) To the extent "an alternative European destination" is ambiguous, the Court hereby defines the term to include passengers for whom Europe was their final destination and passengers who traveled through Europe en route to a non-European final destination. The Court believes this definition encompasses those individuals Plaintiff seeks to represent.
B. ANALYSIS OF RULE 23(a).
1. Numerosity.
The particular requirement at issue here is stated in Rule 23(a)(1): the purported class must be "so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). In order to satisfy his burden with respect to this prerequisite, a plaintiff must ordinarily demonstrate some evidence or a reasonable estimate of the number of purported class members. Zeidman v. J. Ray McDermott Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981). However, this does not mean that the actual number of class members is the determinative question. Id. Instead, "(t)he proper focus [under Rule 23(a)( 1)] is not on numbers alone, but on whether joinder of all members is practicable in view of the numerosity of the class and all other relevant factors." Id. (citing Philips v. Joint Legislative Committee, 637 F.2d 1014, 1022 (5th Cir. 1981)). Thus, other considerations relevant to the numerosity include (1) the geographical dispersion of the class, (2) the ease with which class members may be identified, (3) the nature of the action, and (4) the size of each plaintiffs claim. See id.; Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624-25 (5th Cir. 1999).
According to the evidence before the Court, the class contains approximately 218 individuals. These 200-plus individuals are dispersed among 10 different states, I territory, and 17 different countries. It is also reasonable to presume that these potential class members might be unwilling to sue individually or join in a lawsuit because of the inconvenience associated with prosecuting this case from a distance. Finally, the small size of each plaintiffs claim would make it impracticable for each of them to bring his own individual action. Based upon those considerations, the Court concludes that joinder of all 200-plus class members would be impracticable and that the numerosity requirement of Rule 23(a)(1) has been met.
This number was calculated by subtracting those 26 passengers not included in the class definition from the original 244 passengers, and includes those four passengers whose alternate transportation remains unknown. (See Def.'s App. at 2.)
2. Commonality.
Rule 23(a)(2) requires that "questions of law or fact common to the class" be present in order to maintain a class action. Fed.R.Civ.P. 23(a)(2). This provision does not require complete identity of the legal interests and claims of the class members. See Forbush v. J. C. Penney Co., 994 F.2d 1101, 1106 (5th Cir. 1993); Johnson v. American Credit Co., 581 F.2d 526, 532 (5th Cir. 1978). The commonality test is met when there is at least one issue whose resolution will affect all or a significant number of the putative class members. See Lightbourne v. County of El Paso, 118 F.3d 421, 426 (5th Cir. 1997); Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir. 1993); Stewart v. Winter, 669 F.2d 328, 335 (5th Cir. 1982). "[T]he threshold of commonality is not high." Forbush, 994 F.2d at 1106.
The Parties have very different notions of the legal and factual issues Lee must establish to prevail in this action. Defendant attempts to characterize Lee's action as a misrepresentation case and argues that because each individual plaintiff will have to demonstrate his own reliance, causation, and damages for the particular misrepresentation made to him, this action lacks commonality. (Def.'s Resp. at 12-14.) Defendant also argues that because the class members' claims must be analyzed under the laws of different states, commonality is lacking. (Id. at 14.)
First, this is not a common-law misrepresentation case. Plaintiff has properly pled this case as one arising under the terms of the Warsaw Convention, and the Court will analyze it as such. In fact, even if Plaintiff wanted to assert a misrepresentation cause of action, he would not be permitted to because the Warsaw Convention preempts such a claim and provides the exclusive cause of action for claims governed by its damages articles. See Tseng, 525 U.S. 155; Rogers, 192 F. Supp.2d at 666-667.
Second, the Court need only engage in a choice-of-law analysis in this case on the issue of damages. Again, this case is governed by the terms of the Warsaw Convention, which provides its own cause of action with its own substantive liability requirements that all individual plaintiffs must satisfy. Specifically, in an Article 19 case, a plaintiff may recover "for damage occasioned by delay in the transportation by air of passengers, baggage, or goods." 49 U.S.C. § 40105, art. 19. Thus, to state a claim under Article 19, the class plaintiffs must establish the existence of a delay of an international flight that caused each of them damages. Id. To avoid liability under Article 19, Defendant must establish that it took "all necessary measures to avoid the damage or that it was impossible to take such measures." 49 U.S.C. § 40105, art. 20 ("The carrier shall not be liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.")
In this case, there are questions of law and fact common to the class. For instance, whether Flight 100 was an international flight, whether Flight 100 was delayed, and whether Defendant took all necessary measures to avoid the plaintiffs' damages or whether it was impossible for Defendant to take such measures.
Likewise, the issue of whether inconvenience damages were available in a Warsaw Convention case (which was addressed in the Court's prior order) was also an issue of law common to the class. (See Court's Order of July 2, 2002.)
3. Typicality.
Rule 23(a) also requires that a plaintiff demonstrate that his claims are typical of those of the class. See Fed.R.Civ.P. 23(a)(3).
Defendant argues that Lee's claims are not typical of the claims of the class because (1) each plaintiff has suffered different damage amounts; (2) each plaintiff must establish the misrepresentation upon which he relied; (3) Lee ultimately departed on a different flight from other class members; (4) Lee's claims rely on particular decisions or actions of particular individuals; and (5) Lee suffered only minimal economic damages because his company paid for his trip. (Def.'s Resp. at 15-18.) Apparently, Defendant misunderstands the nature of the claim against it and the requirements for establishing typicality.
The test for typicality is not demanding. See Stirman v. Exxon Corp., 280 F.3d 554, 562 (5th Cir. 2002). "It focuses on the similarity between the named plaintiffs legal and remedial theories and the theories of those whom they purport to represent." Id.; James v. City of Dallas, 254 F.3d 551, 571 (5th Cir. 2001). Typicality does not require that the plaintiffs' claims all be identical. See Stirman, 280 F.3d at 562. "Rather, the critical inquiry is whether the class representative's claims have the same essential characteristics of those of the putative class." Stirman, 280 F.3d at 562; see James, 254 F.3d at 571. If the claims arise from a similar course of conduct and share the same legal theory, factual differences will not defeat typicality. See
In this case, plaintiffs are those Flight 100 passengers who, due to delay, did not depart for their destination until the day following their scheduled departure date. Therefore, all plaintiffs' claims, including Lee's, arise from a similar course of conduct. Also, the class plaintiffs' claims, including Lee's claim, are based on the same legal theory — a violation of Article 19 of the Warsaw Convention (not a multitude of common-law misrepresentation claims). The focus of the Article 19 inquiry — for all plaintiffs — is simply whether a delay occurred and whether the defendant took all necessary measures (or whether it was impossible to take such measures) to avoid the delay. Thus, it is immaterial whether misrepresentations were made, and to whom. Moreover, "[d]ifferences in the amount of damages sought do not destroy typicality." Gibb v. Delta Drilling Co., 104 F.R.D. 59, 74 (N.D. Tex. 1984) (Fish, J.) For these reasons, typicality has been established.
4. Adequacy.
Rule 23 also imposes the requirement that the class representative "fairly and adequately protect the interest of the class." Fed.R.Civ.P. 23(a)(4). "`Rule 23(a)'s adequacy requirement encompasses class representatives, their counsel, and the relationship between the two.'" Stirman, 280 F.3d at 562 (quoting Berger v. Compaq Computer Corp., 257 F.3d 475, 479 (5th Cir. 2001)). When evaluating whether the interests of the class will be adequately represented by the class representative and class counsel, a court must consider (1) the zeal and competence of the representative's counsel and (2) the willingness and ability of the representative to take an active role in and control the litigation and to protect the interests of absentees. See Stirman, 280 F.3d at 563. The adequacy inquiry also "serves to uncover conflicts of interest between the named plaintiffs and the class they seek to represent." Berger, 257 F.3d at 479-80. As long as "all class members are united in asserting a common right, such as achieving the maximum possible recovery for the class, the class interests are not antagonistic for representation purposes." San Antonio Hispanic Police Officers' Organization, Inc. v. City of San Antonio, 188 F.R.D. 433, 444 (W.D. Tex. 1999). Moreover, to qualify as an "adequate representative" for the class, the class representative must possess a sufficient level of knowledge and understanding to be capable of controlling or prosecuting the litigation. Finally, the size of the representative's personal claim should not be dispositive of the question whether the class is adequately represented. See Wright Miller, supra, § 1767 (citing Eisen v. Carlisle Jacquelin, 391 F.2d 555 (2d Cir. 1968)). The burden of establishing that the class representative is an adequate representative is on the plaintiff. See Berger, 257 F.3d at 481-82.
a. Adequacy of Class Representative.
Defendant argues that Lee, as the class representative, cannot adequately represent the class members because "there are serious conflicts between him and the class." (Def.'s Resp. at 18.) The conflict to which Defendant refers is that Lee will not "vigorously prosecute this action" because he has "suffered little or none of the damages enumerated in his Complaint." (Def.'s Resp. at 20.) According to Lee's deposition, Lee's employer reimbursed Lee all of Lee's travel expenses related to the delay of Flight 100, and therefore, Lee's only out-of-pocket delay damages are $10 to $15 for lunch and the cost of a gum and a magazine or two. (See Def.'s App. at 53-56.) Therefore, Defendant concludes, Lee has very little incentive to prosecute this action and will not adequately represent the class members in this litigation. (Def.'s Resp. at 20.)
Because this is a case arising under the Warsaw Convention for damages caused by delay of an aircraft, the damages incurred by most, if not all, potential plaintiffs in this action will be minimal. One of the primary functions of a class action lawsuit is to provide a "`device for vindicating claims which, taken individually, are too small to justify legal action, but which are of significant size if taken as a group.'" See Wright Miller, supra, § 1767 (citing Eisen, 391 F.2d at 563). Thus, in keeping with this philosophy, the extent of the representative's interest should not be determinative for purposes of satisfying Rule 23(a)(4), though it should be considered as a factor. See id.
Although Lee has suffered only minimal financial injury as a result of Defendant's alleged misconduct, this issue is not dispositive as to whether Lee is an adequate representative. According to Lee's deposition, Lee has knowledge and an understanding of the nature of this lawsuit. Lee appears to understand the lawsuit and evinces a willingness and ability to take an active role in and control the litigation. For these reasons, the Court finds that Lee is an adequate representative.
b. Adequacy of Class Counsel.
Defendant also argues that Plaintiff will not be able to fairly and adequately represent the interests of the class because Lee's counsel ("Spector") has a close professional relationship with another Flight 100 passenger, Mr. Mark Agee ("Agee"). Agee is the general counsel of a company called Lion Health Centers, of which Lee is the president. Agee sometimes refers cases to Spector, and, in fact, referred this case to him. Spector also has "covered for" Agee when Agee is on vacation. Agee, as the referring attorney, is entitled to a referral fee from Spector of twenty percent of Spector's law firm's recovery. Thus, Agee has a financial stake in this litigation. (Def.'s Resp. at 20-21.)
From this, Defendant concludes that there exists an appearance of impropriety on the part of Lee and speculates that there may be a potential conflict between Lee and the putative class members. (Def.'s Resp. at 21.) Specifically, Defendant suggests that Lee might resist a fair class action settlement in an effort to reap bigger rewards for Spector, and thus for Agee, Lion's general counsel. Defendant also concludes that since Spector and Agee have personal and business relationships with Lee, they might provide Lee with preferential treatment as to class representation on settlement, to the detriment of the putative class members. (Def.'s Resp. at 21.)
At this time, any allegations of potential conflict are very speculative and hypothetical. There is no evidence that Spector and Lee have any relationship outside this litigation and no evidence to suggest that Lee would act outside the best interest of the class, in favor of Spector and Agee. "`Many courts have held that speculative conflict should be disregarded at the class certification stage. Potential conflicts relating to relief issues which would arise only if the plaintiffs succeed on common claims of liability on behalf of the class will not bar a finding of adequacy.'" Hanrahan v. Britt, 174 F.R.D. 356, 363 (E.D. Pa. 1997) (quoting 1 Herbert B. Newberg et al., Newberg on Class Actions § 3.25 at 3-136-38 n. 358); see In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 145 (2d Cir. 2001). Due to the speculative nature of these allegations, the Court concludes that Plaintiffs counsel is not inadequate.
C. ANALYSIS OF RULE 23(b)(3).
In addition to satisfying the required elements of Rule 23(a), Lee must also satisfy the requirements of Rule 23(b)(3). Class certification under Rule 23(b)(3) is proper where the Court finds that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3). Thus, the two main inquiries the Court must make under Rule 23(b)(3) are: (1) whether common issues predominate over individual issues and (2) whether the class action is a superior adjudicatory scheme. In determining whether Rule 23(b)(3) is satisfied, the Rule provides a non-exhaustive list of factors for the court to consider: (1) the interest of members of the class in individually controlling the prosecution of separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by members of the class; (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (4) the difficulties likely to be encountered in the management of a class action. See Fed.R.Civ.P. 23(b)(3). Whether common issues predominate and the class action is superior requires an understanding of the relevant claims, defenses, facts, and substantive law presented in the case. See Castano, 84 F.3d at 744.
1. Predominancy.
The Rule 23(b)(3) predominance inquiry requires the plaintiff to establish that the questions of law or fact common to the members of the class predominate over any questions affecting the individual members. See Fed.R.Civ.P. 23(b)(3). "`In order to predominate, common issues must constitute a significant part of the individual cases.'" Mullen, 186 F.3d at 626 (citation omitted). Subdivision (b)(3) parallels subdivision (a)(2) — commonality — in that both require that common questions exist, but subdivision (b)(3) contains the more stringent requirement that common issues "predominate" over individual issues. Thus, the predominance criterion is far more demanding than the commonality requirement under Rule 23(a). See Amchem, 521 U.S. at 624.
As stated above, there are common issues of law and fact. For example, the Court must determine — for all plaintiffs — whether, under the Warsaw Convention, there was a delay of an international flight and whether Defendant took "all necessary measures to avoid the damage or that it was impossible to take such measures." 49 U.S.C. § 40105, art. 20.
Defendant argues that because the United States Supreme Court has mandated that courts apply state damages law in Article 17 Warsaw Convention cases, which requires courts to conduct a choice-of-law analysis for each passenger's damage claim, these individual issues predominate over the common issues. (Def.'s Resp. at 22-29.)
The Fifth Circuit has made clear that the trial court must determine "which law will apply before making a predominance determination" and that determining the applicable law "is especially important when there may be differences in state law." Castano, 84 F.3d at 741. The Fifth Circuit reaffirmed this rule in Spence v. Glock, when it held that "[t]he district court's predominance finding depends on its choice of law analysis." 227 F.3d 308, 311 (5th Cir. 2000). A court's failure to conduct a proper choice-of-law analysis by itself is an abuse of discretion and precludes certification. See Neely v. Ethicon, Inc., NO. 1:00-CV-00569, 1:01-CV-37, 1:01-CV-38, 2001 WL 1090204, at *6 (E.D. Tex. 2001).
a. Must the Court Engage in a Choice-of-Law Analysis When Determining Damages in an Article 19 Case?
In 1996, the Supreme Court in Zicherman v. Korean Air Lines Co. held that Articles 17 and 24(2) of the Warsaw Convention, which make the air carrier liable for "damage sustained" in the event of personal injury, do not dictate what types of damages are recoverable. 516 U.S. 217 (1996). Instead, held the Court held that Article 17, in combination with Article 24, was a mere "pass-through" to domestic damages law selected under the forum's choice-of-law rules. Id. at 229. In making this determination, the Court relied on the language of Article 24, which expressly limits Article 17. Article 24 stated as follows:
(1) In the cases covered by article 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.
(2) In the cases covered by article 17 the provision of the preceding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.49 U.S.C. § 40105, art. 24.
Because Zicherman involved a personal injury action brought under Article 17, the Court focused on Article 24(2) and, due to the "without prejudice" language emphasized above, found that "[t]he most natural reading of this Article is that, in an action brought under Article 17, the law of the Convention does not affect the substantive questions of who may bring suit and what they may be compensated for. Those questions are to be answered by the domestic law selected by the courts of the contracting states." Id. at 225.
In Commercial Union Ins. Co. v. Alitalia Airlines, the Eastern District of New York found that because the Article 17 analysis of Zicherman did not apply to Article 18, state law did not govern the type of damage recoverable under Article 18 (damage to baggage). Commercial Union Ins. Co. V. Alitalia Airlines, No. 00 CV 1383 (ILG), 2002 WL 398808 (E.D.N.Y. 2002). There the court held that Zicherman "clearly distinguished actions under Article 17 (for death or personal injury) from actions under Articles 18 and 19 . . ." Id. at *3. The court examined the language of Article 24 and found that because the limiting language "without prejudice" was expressly omitted from Article 24(1), which governs Articles 18 and 19, Zicherman is inapplicable. Thus, the court concluded that the Zicherman analysis did not extend to Article 18 cases and thus recovery under Article 18 is "is subject to the conditions and limits set out in the convention.'" Id. at *4
Interestingly, in March 1999, Article 24 was amended by the Montreal Protocol No. 4, which provides:
(1) In the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits 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.
(2) In the carriage of 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 limits of liability 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. Such limits of liability constitute maximum limits and may not be exceeded whatever the circumstances which gave rise to the liability.
The Montreal Protocol No. 4 amended Article 24 by (1) eliminating the distinction between Articles 17, 18, and 19, and instead distinguishing between passenger/baggage aircraft claims and cargo aircraft claims and (2) by incorporating the "without prejudice" language to both types of claims. Thus, now an Article 19 claim for delay will be analyzed under either Article 24(1) or 24(2), depending on whether the delay caused damage to passengers and baggage or to cargo. Because the Alitalia court did not take into consideration the language contained in the amended Article 24, its reasoning will not be adopted by this Court.
Instead, the Court finds that the reasoning and holding in Zicherman, an Article 17 case, is applicable to this Article 19 case due to the limiting language found in Article 24, which states that "the Convention does not affect the substantive questions of who may bring suit and what they may be compensated for." Zicherman, 516 U.S. at 224. Thus, the issue of what types of damages are recoverable is determined according to state law and the forum's choice-of-law rules.
b. Conducting the Choice-of-Law Analysis.
When conducting a Rule 23(b)(3) inquiry, a "district court must consider how variations in state law affect predominance and superiority . . . A requirement that a court know which law will apply before making a predominance determination is especially important when there may be differences in state law." Stirman, 280 F.3d at 564 (quoting Castano, 84 F.3d at 741).
The choice-of-law analysis the Court must conduct in this case is significant. The potential class members are domiciled in Texas, Missouri, California, New York, Colorado, Connecticut, Oklahoma, Florida, Pennsylvania, Missouri, and Puerto Rico as well as England, Scotland, the Carribean, Spain, Ireland, Pakistan, Israel, Australia, Japan, Qatar, South Africa, Germany, France, India, Bangladesh, and Bombay. (Def.'s App. at 7-14.) And the Court must apply an individualized choice-of-law analysis to each plaintiffs claims. See Georgine v. Amchem Prods., 83 F.3d 610, 627 (3d Cir. 1996) ("because we must apply an individualized choice of law analysis to each plaintiffs claims . . . the proliferation of disparate factual and legal issues is compounded exponentially."), aff'd 521 U.S. 591 (1997); Spence, 227 F.3d at 311 U.S (citing same). "Texas law also requires that a choice of law determination be done on an issue by issue basis." Spence, 227 F.3d at 311 n. 6.
As a threshold matter, the Court must determine the nature of Plaintiffs claim. Specifically, whether this a tort-based claim or a contract-based claim. Because the Warsaw Convention is premised upon a contract between the passenger and the airline, most courts apply the general contract rule that recoverable damages include all "contemplated and foreseeable damages for the failure to timely transport the passenger." See 49 U.S.C. § 40105, Art. 1(2); Daniel v. Virgin Atlantic Airways Ltd., 59 F. Supp.2d 986, 993 (N.D. Cal. 1998); Pakistan Arts Entertainment Corp. v. Pakistan Int'l Airlines Corp., 660 N.Y.S.2d 741, 744 (N.Y.App.Div. 1997); Tory A. Weigand, The Modernization of the Warsaw Convention and the New Liability Scheme for Claims Arising Out of International Flight, 84 Mass. L. Rev. 175, 188 (2000). Consequently, this Court will analyze the potential plaintiffs' claims under a contractual choice-of-law analysis.
Next the Court must determine whether conflicts exist between the relevant states' laws. Plaintiff has failed to survey whether and/or under what circumstances the relevant states and countries permit recovery for the items for which he seeks to recover (i.e. loss of foreseeable business opportunities, delay, loss of prepaid and/or nonrefundable vacation expenses). (See Compl. ¶ 7.2.) If conflicts do exist, the Court must next analyze each plaintiffs claims under Texas law's "most significant relationship' test, as set forth in section 188(2) of the Restatement (Second) of Conflicts of Laws. See Minnesota Min. and Mfg. Co. v. Nishika Ltd., 953 S.W.2d 733, 735-36 (Tex. 1997). This section requires Texas courts to consider the facts of each plaintiffs claim in light of the following contacts when determining which law governs the controversy: (a) the place of contracting; (b) the place of negotiation; (c) the place of performance; (d) the location of the contract's subject matter; and (e) the parties' domicile, residence, nationality, place of incorporation, and place of business. Rest. (Second) Contracts § 188(2). Plaintiff may also have to consider the General choice-of-law principles set forth in Section 6 of the Restatement (Second) of Conflicts of Laws. See, e.g., Spence, 227 F.3d at 312-12.
Generally, a federal court sitting in diversity must look to the forum state's choice-of-law rules to determine the controlling substantive law. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487(1941). Although federal jurisdiction in this case is premised on a federal question, not on diversity, the Court adheres to the Klaxon rule because this Court must look to state law in determining the type of damages that are recoverable.
Lee has done very little to aid the Court in this effort. Because the plaintiff bears the burden of satisfying all Rule 23 requirements, he must present a sufficient choice-of-law analysis and demonstrate that common issues of law predominate. See Spence, 227 F.3d at 313 ("class action plaintiffs must provide an `extensive analysis' of state law variations to reveal whether these pose "insuperable obstacles' to certification."); Castano, 84 F.3d at 742; Walsh v. Ford Motor Co., 807 F.2d 1000, 1017 (D.C. Cir. 1986) ("`nationwide class action movants must credibly demonstrate, through an `extensive analysis' of state law variances, that class certification does not present insuperable obstacles.'")). Thus, Lee must provide the Court with an analysis of the variances in pertinent damages laws among the jurisdictions at issue. Lee must also perform a choice-of-law analysis for each of the potential class plaintiffs so the Court can determine which law will apply to each plaintiffs claim and thus, whether the individual or common issues predominate.
Lee has failed to examine the laws of the differing states and countries for each plaintiffs claims to determine whether any conflicts exist. Also, assuming conflicts do exist for at least some of the plaintiffs claims, Lee has failed to conduct an individualized analysis of each plaintiffs place of contracting — which is the first element of section 188(2). The Court agrees with Plaintiff that section (b) is probably inapplicable (because presumably no negotiations took place over these tickets) and that the place of performance and the location of the contract's subject matter for all plaintiffs are probably New York. Yet Plaintiff completely disregards subsection(e), which requires the Court to conduct an individualized analysis of the parties' domicile, residence, nationality, place of incorporation, and place of business. Because Plaintiff has not provided the Court with the factual information necessary to conduct a proper choice-of-law analysis, the Court can only speculate as to whether common issues might predominate over what appear to be these individual issues. Thus, the Court finds that Plaintiff has not sustained its burden of establishing the element of predominance and that certification is proper. See Spence, 227 F.3d at 313.
The difficult task of resolving these choice-of-law issues also affect the Court's analysis of "superiority." As the Castano court pointed out, manageability problems arise when the Court must engage in these difficult choice-of-law determinations. See Castano, 84 F.3d at 747.
The Court notes that both courts and commentators have recognized the difficulty in certifying a multistate class action due to these conflict-of-law problems. See Castano, 84 F.3d at 741 ("In a multi-state class action, variations in state law may swamp any common issues and defeat predominance."); Neely, 2001 WL 190204, at *8 ("[t]here is no case in the Fifth Circuit certifying a national class action."); Arthur R. Miller David Crump, Jurisdiction and Choice of Law in Multistate Class Actions after Phillips Petroleum Co. v. Shutts, 96 YALE L.J. 1, 64 (1986) ("Beyond the difficult task of correctly determining foreign law, the nationwide class action may present an even greater problem because of the sheer burden of organizing and following fifty or more different bodies of complex substantive principles. Although the comparison obviously is inexact, one can appreciate the magnitude of the trial judge's task by imagining a first-year law student who, instead of a course in contracts, is required simultaneously to enroll in fifty courses, each covering the contract law of a single state, and to apply each body of law correctly on the final examination. Another way to appreciate the dimension of the task is to consider that fifty opinions are more than most appellate judges write in a year."); Rory Ryan, Uncertifiable?: The Current Status of Nationwide State-Law Class Actions, 54 Baylor L. Rev. 467 (2002) ("the overwhelming precedent suggests that a nationwide state-law class action, governed by multiple states' laws, is uncertifiable.")
CONCLUSION
Therefore, for the reasons stated herein, the Court hereby DENIES Plaintiffs Motion for Class Certification.