Flores v. United Airlines
| Decision Date | 05 March 2021 |
| Docket Number | No. 18 C 6571,18 C 6571 |
| Parties | PATRICIA FLORES, Plaintiff, v. UNITED AIRLINES, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
The Court previously dismissed plaintiff Patricia Flores's first amended complaint asserting claims arising out of her decision to purchase travel insurance on defendant's website. The Court dismissed plaintiff's RICO claims with prejudice and her fraud and unjust enrichment claims without prejudice. Plaintiff has filed a second amended complaint, which defendant United Airlines ("United") moves to dismiss.1 For the reasons set forth below, the Court grants the motion to dismiss.
The facts plaintiff alleges in the second amended complaint are similar to the facts she alleged in the first amended complaint. The following facts are from plaintiff's second amended complaint, and the Court takes them as true.
On its website, United sells tickets for the air transportation it provides. After a customer such as plaintiff has chosen a flight but before she has purchased it, United offers the customer the option to purchase travel insurance.
United's customers are not required to purchase travel insurance in order to purchase a ticket to fly, but they are required either to accept or reject the option of travel insurance. Under the heading "United Travel Options," the website says, "Cover your trip with Travel Guard ® insurance[.]" (S. Am. Complt. ¶¶ 26-27). Below that, the website reads:
(S. Am. Complt. ¶ 30). A customer then has two options from which to choose: (1) "Yes, insure my trip for only $[price;]" or (2) "No, I will travel without insurance for my [ticket price] trip." (S. Am. Complt. ¶¶ 32-33). Below the two options, the website says, "Coverage is offered by Travel Guard Group, Inc." (S. Am. Complt. ¶ 34).
Plaintiff, for her part, purchased a travel insurance policy from United's website on February 23, 2018. She does not say how much she paid. She later "received an email from the insurance provider attaching her policy, which did not reference United." (S. Am. Complt. ¶ 56). Plaintiff also alleges that, when United sends a ticket receipt, the receipt "lists the specific amount charged for 'Trip insurance' and notes that the charge will be 'Billed separately by Travel Guard Group, Inc.'" (S. Am. Complt. ¶¶ 40-41). Plaintiff does not allege that she received such a receipt from United.
At no point during plaintiff's transaction to purchase travel insurance did United disclose to her that it had a financial interest in her purchase of travel insurance, but it did. Plaintiff alleges "[a]t no point does United disclose that it receives a commission every time a customerelects to purchase the travel insurance product, nor that the amount of that commission was 50% or more of the total premium paid by the customer for the travel insurance product." (S. Am. Complt. ¶ 43). According to plaintiff's second amended complaint, "United has also concealed and/or failed to disclose to state regulators the fact that it receives a commission every time a customer elects to purchase a travel insurance product through its website." (S. Am. Complt. ¶ 48).
Plaintiff alleges that the price of the travel insurance "is set by the insurer, not United" and is based "solely on overall ticket price." (S. Am. Complt. ¶¶ 52, 55). Plaintiff alleges that the premium is not affected by the dates of travel, the routes or the customer's individual circumstances. Plaintiff also alleges that "[b]ecause the price of travel insurance . . . incorporates an illegal and excessive commission . . . paid to United," customers pay an inflated price. (S. Am. Complt. ¶ 53).
The Court may dismiss a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure if the plaintiff fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Under the notice-pleading requirements of the Federal Rules of Civil Procedure, a complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint need not provide detailed factual allegations, but mere conclusions and a "formulaic recitation of the elements of a cause of action" will not suffice. Twombly, 550 U.S. at 555. To survive a motion to dismiss, a claim must be plausible. Ashcroft v. Iqbal, 556 U.S. 662 (2009). Allegations that are as consistent with lawful conduct asthey are with unlawful conduct are not sufficient; rather, plaintiffs must include allegations that "nudg[e] their claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570.
In considering a motion to dismiss, the Court accepts as true the factual allegations in the complaint and draws permissible inferences in favor of the plaintiff. Boucher v. Finance Syst. of Green Bay, Inc., 880 F.3d 362, 365 (7th Cir. 2018). Conclusory allegations "are not entitled to be assumed true," nor are legal conclusions. Iqbal, 556 U.S. at 680 & 681 (). The notice-pleading rule "does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 678-679.
Pursuant to Rule 9(b) of the Federal Rules of Civil Procedure, the "circumstances constituting fraud" must be alleged with particularity. Fed.R.Civ.P. 9(b).
In Count I, plaintiff asserts that defendant violated the Illinois Consumer Fraud and Deceptive Trade Practices Act ("ICFA"), 815 ILCS 505/1 et seq. To state a claim, plaintiff must allege: "(1) a deceptive act or practice by the defendant; (2) the defendant's intent that the plaintiff rely on the deception; (3) the occurrence of the deception in the course of conduct involving trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception." Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100, 180 (Ill. 2005).
"Recovery may be had for unfair as well as deceptive conduct." Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 417 (Ill. 2002). Plaintiff argues that she has alleged both: (1) a deceptive act or practice; and (2) an unfair practice. (Plf. Brief at 7/Docket 87 at 12).
The Court first considers whether plaintiff has stated an ICFA claim based on a deceptive act or practice. Plaintiff argues that "United's conduct was deceptive because the net impression of its statements led her to believe that the entire cost of her policy was being paid to Travel Guard, when in fact more than 50% of it was being paid to United." (Plf. Brief at 16/Docket 87 at 21). She points specifically to her allegations that "Coverage is offered by Travel Guard Group, Inc." and that the cost was "[b]illed separately by Travel Guard Group, Inc." (Plf. Brief at 16/Docket 87 at 21).
As defendant points out, allegations of fraud must be stated with particularity (Fed.R.Civ.P. 9(b)), which means "describing the who, what, when, where, and how of the fraud." Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 737 (7th Cir. 2014). With respect to the statement "Coverage is offered by Travel Guard Group, Inc.," plaintiff is correct that she has alleged the first paragraph of a newspaper article. She has alleged that on February 23, 2018, she used United's website to purchase travel insurance. She alleges the website said, "Coverage is offered by Travel Guard Group, Inc." (S. Am. Complt. ¶ 34). Plaintiff does not, however, include any allegations that suggest this statement is deceptive. She does not, for example, allege that the insurance was offered by an entity other than Travel Guard Group, Inc. Instead, plaintiff specifically alleges that she later "received an email from the insurance provider attaching her policy, which did not reference United." (S. Am. Complt. ¶ 56). The Court does not see deception in these allegations.
Her allegation that the cost would be billed separately fares no better. Plaintiff alleges that, after a purchase, United "sends a ticket receipt" that notes the charge for travel insurance will be "Billed separately by Travel Guard Group, Inc." (S. Am. Complt. ¶ 41). Plaintiff does not allege when or if she received such a receipt, so this allegation does not comply with Rule 9(b). .) In addition, plaintiff does not allege that this was a misstatement or was otherwise deceptive. She does not, for example, allege that, in fact, someone other than Travel Guard Group, Inc. billed her for the travel insurance.
Although the alleged statements say nothing about whether United would receive a commission from the sale of travel insurance on its website, plaintiff also argues that defendants violated the ICFA by giving the impression that the expense was being paid to a third party. The Court does not see how. The words "billed by" do not mean "all proceeds will be retained by," which is the meaning plaintiff would give those words. A statement that a charge will be "billed" by Travel Guard denotes that Travel Guard will issue the...
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