Barber v. Am. Airlines Inc.

• Decision Date: 24 March 2011
• Docket Number: No. 110092.,110092.
• Citation: 948 N.E.2d 1042,350 Ill.Dec. 535,241 Ill.2d 450
• Parties: Andrea BARBER, Appellee,v.AMERICAN AIRLINES, INC., Appellant.
• Court: Illinois Supreme Court

241 Ill.2d 450

948 N.E.2d 1042

350 Ill.Dec. 535

Andrea BARBER, Appellee,

v.AMERICAN AIRLINES, INC., Appellant.

No. 110092.

Supreme Court of Illinois.

March 24, 2011.

Michael G. McQuillen, Mark S. Susina, Austin W. Bartlett and Steven L. Boldt of Adler Murphy & McQuillen LLP, of Chicago, for appellant.Howard C. Goode, of Northbrook, and Warren Lupel and Jonathan L. Loew, of Lupel Weininger LLP, of Chicago, for appellee.

[350 Ill.Dec. 536 , 241 Ill.2d 452] OPINION

Justice FREEMAN delivered the judgment of the court, with opinion.

Plaintiff Andrea Barber filed a class action complaint against defendant American Airlines for breach of contract. The circuit court granted defendant's motion to dismiss, and plaintiff appealed. A divided panel of the appellate court reversed and remanded. 398 Ill.App.3d 868, 339 Ill.Dec. 119, 925 N.E.2d 1240. For the reasons set forth below, we reverse the judgment of the appellate court.

I. BACKGROUND

Plaintiff purchased a ticket to travel on defendant's flight 4414 from Chicago to White Plains, New York, on August 11, 2008. Prior to boarding, plaintiff checked two suitcases for transport to White Plains and was charged a $40 checked baggage fee. Defendant subsequently canceled the flight. Plaintiff elected not to take another flight and instead requested cancellation of her ticket and a refund of the ticket price and the $40 baggage fee. Defendant refunded the price of the airline ticket, but allegedly refused to refund the $40 baggage fee. According to plaintiff's complaint, defendant's counter agent advised her it was not defendant's policy “to refund fees paid by ticket holders for transportation of luggage in conjunction with a passenger flight when that flight is canceled by Defendant and the passenger does not accept another flight.”

On August 15, 2008, four days after her flight was cancelled, plaintiff filed her class action complaint against defendant in the circuit court of Cook County. There is no indication in the record that, prior to filing this complaint, plaintiff made any additional effort to contact defendant seeking a refund or to investigate whether the information allegedly provided by defendant's counter agent was accurate. Count I of plaintiff's complaint, which is for breach of contract, alleges defendant's “failure to transport her two suitcases was a breach of contract and Plaintiff was entitled to a refund.” Count II, the class action count, seeks recovery on behalf of similarly situated persons. Plaintiff served defendant with the complaint on August 21, 2008.

Defendant subsequently determined that plaintiff was entitled to a refund of the $40 baggage fee. On September 4, two weeks after being served with the complaint, defendant contacted plaintiff's counsel and offered to refund the $40 fee. Defendant also stated it would consider paying the court costs plaintiff had incurred to date. Plaintiff's counsel declined the offer, and advised that the case would proceed as a class action. On September 25, defendant refunded the $40 fee to plaintiff's credit card, the original form of payment. By letter dated September 29, defendant's

[350 Ill.Dec. 537 , 948 N.E.2d 1044]

counsel informed plaintiff's counsel of the refund. On the same day, September 29, plaintiff sent defendant an interrogatory seeking the identity of other potential class members.

On October 30, 2008, defendant filed an objection to plaintiff's interrogatory. Defendant also moved to dismiss plaintiff's complaint pursuant to section 2–619 of the Code of Civil Procedure (735 ILCS 5/2–619(a)(9) (West 2006)), on the grounds that plaintiff's contract claim was meritless and her complaint was moot because defendant had refunded the $40 fee to her. In an agreed order, the circuit court set a briefing schedule for defendant's motion to dismiss and entered and continued defendant's objection to plaintiff's interrogatory. On January 28, 2009, nearly three months after defendant's objection to the interrogatory, plaintiff moved to compel defendant to answer, requesting defendant be ordered to answer prior to the hearing on defendant's motion to dismiss. About one month later, on February 26, the circuit court denied the motion to compel and ordered the motion to dismiss to be heard on March 10 as scheduled.

On March 10, 2009, after reviewing the parties' briefs and hearing oral argument, the circuit court granted defendant's motion and dismissed the complaint on mootness grounds. Plaintiff never filed a motion for class certification.

On appeal, the appellate court majority reversed and remanded, concluding plaintiff's claim was not moot. 398 Ill.App.3d 868, 339 Ill.Dec. 119, 925 N.E.2d 1240. The dissent disagreed, relying on this court's decision in Wheatley v. Board of Education of Township High School District 205, 99 Ill.2d 481, 77 Ill.Dec. 115, 459 N.E.2d 1364 (1984). 398 Ill.App.3d at 888, 339 Ill.Dec. 119, 925 N.E.2d 1240 (Cahill, P.J., dissenting). We allowed defendant's petition for leave to appeal (Ill. S.Ct. R. 315 (eff.Feb.26, 2010)) and allowed the Pacific Legal Foundation to file a brief amicus curiae in support of defendant (Ill. S.Ct. R. 345 (eff.Sept.20, 2010)).

II. ANALYSIS

Defendant argues the appellate court erred in reversing the dismissal of plaintiff's complaint. Defendant contends that under Wheatley, if a defendant tenders the named plaintiff the relief requested before a motion for class certification is filed, the underlying cause of action must be dismissed as moot. Here, defendant tendered the $40 baggage fee to plaintiff and refunded that amount to her credit card, and plaintiff never filed a motion for class certification. According to defendant, the circuit court correctly granted its section 2–619 motion to dismiss plaintiff's complaint as moot, and the appellate court's reversal was directly contrary to Wheatley.

Plaintiff counters that defendant's tender was an unfair attempt to “pick off” her claim in order to avoid a class action, and the appellate court correctly rejected the attempt. In reaching its conclusion, the appellate court applied what it termed a “pick off” exception. Under this exception, a plaintiff who fails to move for class certification prior to a defendant's tender may nevertheless pursue class certification if the plaintiff has exercised reasonable diligence in that regard. Plaintiff argues she met the requirements of this exception, and the appellate court's judgment should be affirmed.

A motion to dismiss pursuant to section 2–619 admits the legal sufficiency of the plaintiff's complaint, but asserts an affirmative defense or other matter that avoids or defeats the plaintiff's claim. DeLuna v. Burciaga, 223 Ill.2d 49, 59, 306 Ill.Dec. 136, 857 N.E.2d 229 (2006). A section 2–619 dismissal is reviewed de

[350 Ill.Dec. 538 , 948 N.E.2d 1045]

novo. Parks v. Kownacki, 193 Ill.2d 164, 175, 249 Ill.Dec. 897, 737 N.E.2d 287 (2000).

A. Wheatley

In Wheatley, this court applied mootness principles in the context of a class action. We note that the appellate court majority did not discuss Wheatley's application to this case, although the dissenting justice did. In our view, Wheatley controls the resolution of this case, and therefore merits thorough discussion.

The plaintiffs in Wheatley were two teachers who had been dismissed by the defendant board of education at the end of the school year. The plaintiffs filed a class action complaint on behalf of themselves and 57 other teachers who had also been dismissed. Nearly one month after the complaint was filed, the two named plaintiffs accepted the board's offer of re-employment. The board moved to dismiss the complaint on mootness grounds, and the circuit court granted the motion.

This court affirmed, holding that the claims of the named plaintiffs became moot when the board granted the relief requested—reinstatement. Wheatley, 99 Ill.2d at 485, 487, 77 Ill.Dec. 115, 459 N.E.2d 1364. There was no longer a controversy between the named plaintiffs and the board. They could not meet the class action requirement that the named representative of a putative class have a valid claim against the defendant. The court stated:

“Because the claims of the named representatives here have been resolved, they are not proper parties who would fairly and adequately protect the interest of the class they purport to represent. Once a representative plaintiff is granted the desired relief, he is no longer a member of the class because his interests are not consistent with the interests of the other class members.” Wheatley, 99 Ill.2d at 486–87, 77 Ill.Dec. 115, 459 N.E.2d 1364.

This court rejected any notion that the action should be allowed to continue because relief could still be granted for teachers who were not offered re-employment. The court explained that the plaintiffs “never moved for or received class certification prior to the trial court's granting of the Board's motion to dismiss.” Wheatley, 99 Ill.2d at 485–86, 77 Ill.Dec. 115, 459 N.E.2d 1364. The court added that no remaining member of the class sought to substitute himself as a named representative. Wheatley, 99 Ill.2d at 487, 77 Ill.Dec. 115, 459 N.E.2d 1364.

Wheatley teaches that the important consideration in determining whether a named representative's claim is moot is whether that representative filed a motion for class certification prior to the time when the defendant made its tender. Wheatley, 99 Ill.2d at 485–86, 77 Ill.Dec. 115, 459 N.E.2d 1364; see, e.g., Cohen v. Compact Power Systems, LLC, 382 Ill.App.3d 104, 109–10, 320 Ill.Dec. 524, 887 N.E.2d 668 (2008). Where the named representative has done so, and the motion is thus pending at the time the tender is made, the case is not moot, and the circuit court should hear and decide the motion for class certification before deciding whether the case is mooted by the tender. Hillenbrand v. Meyer Medical Group, S.C., 308 Ill.App.3d 381, 392, 241 Ill.Dec. 832, 720 N.E.2d 287 (1999) ...