Rojas v. Delta Airlines, Inc.
| Decision Date | 12 November 2019 |
| Docket Number | Case No.: GJH-19-665 |
| Citation | 425 F.Supp.3d 524 |
| Parties | Noel Moran ROJAS, et al., Plaintiffs, v. DELTA AIRLINES, INC., et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
Christopher Faucett, Pro Hac Vice, Matthew John Prebeg, Pro Hac Vice, Stephen W. Abbott, Pro Hac Vice, Prebeg Faucett and Abbott PLLC, Houston, TX, Garrett Webster Wotkyns, Pro Hac Vice, Schneider Wallace Cottrell Konecky Wotkyns LLP, Scottsdale, AZ, James Alton Bloom, Pro Hac Vice, Jason H. Kim, Pro Hac Vice, Schneider Wallace Cottrell Konecky Wotkyns LLP, Emeryville, CA, for Plaintiffs Noel Moran Rojas, Miguel Hilarion Jimenez, Olivia Isabel Gonzales, Mayra Luisa Castillo Casteneda, LuzMaria Armendaiz De Arroyo, Patricio Mercado, Alexandra Almanza.
Brent Taylor Caldwell, Prebeg Faucett and Abbott PLLC, Houston, TX, Tejinder Singh, Goldstein and Russell PC, Bethesda, MD, for Plaintiffs.
Alyse Lauren Prawde, Timothy Francis Maloney, Joseph Greenwald and Laake PA, Greenbelt, MD, Frank M. Lowrey, IV, Pro Hac Vice, Solesse L. Altman, Pro Hac Vice, Bondurant Mixson and Elmore LLP, Atlanta, GA, for Defendant Delta Airlines, Inc.
Eli Joseph Litoff, Pro Hac Vice, Patricia Brown Holmes, Pro Hac Vice, Sondra Ann Hemeryck, Pro Hac Vice, Riley Safer Holmes and Cancila LLP, Chicago, IL, Gregory K. Wells, Shadoan Michael and Wells LLP, Rockville, MD, for Defendant United Airlines, Inc.
Molly M. Barron, Anna M. Rathbun, Pro Hac Vice, Latham & Watkins LLP, Washington, DC, Daniel M. Wall, Pro Hac Vice, Sadik Huseny, Pro Hac Vice, Latham and Watkins LLP, San Francisco, CA, for Defendant American Airlines, Inc.
Raechel Keay Kummer, Morgan Lewis, Washington, DC, Humberto Padilla Gonzalez, Pro Hac Vice, Jared A. Wilkerson, Pro Hac Vice, Morgna Lewis and Bockius LLP, Houston, TX, J. Gordon Cooney, Jr., Pro Hac Vice, Morgan Lewis and Bockius LLP, Philadelphia, PA, for Defendant Aerovias De Mexico S.A. De C.V.
M. Roy Goldberg, Brandon R. Nagy, Stinson Leonard Street LLP, Washington, DC, for Defendants ABC Aerolineas, S.A. De C.V, Jetblue Airways Corporation.
Jaime M. Crowe, J. Mark Gidley, Pro Hac Vice, Jaclyn I. Phillips, Pro Hac Vice, Noah A. Brumfield, Pro Hac Vice, White and Case LLP, Washington, DC, for Defendant Aeroenlaces Nacionales, S.A. De C.V.
M. Roy Goldberg, Brandon R. Nagy, Tracey Michelle Ohm, Stinson Leonard Street LLP, Washington, DC, for Defendant Southwest Airlines, Co.
GEORGE J. HAZEL, United States District Judge Plaintiffs bring this action alleging violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 – 68, by certain Defendants, and violations of the Sherman Act, 15 U.S.C. § 1, and claims of fraud and fraudulent omission or concealment, unjust enrichment, and money had and received against all Defendants. ECF No. 89. The action stems from an unreimbursed "Mexican Tourism Tax" that Plaintiffs paid to Defendant airlines in connection with air travel from the United States to Mexico. ECF No. 89. Pending before the Court are Motions to Dismiss or Transfer filed by each of the eight Defendants: Delta Airlines, Inc. ("Delta"), United Airlines, Inc. ("United"), American Airlines, Inc. ("American"), Aerovias De Mexico S.A. De C.V. ("AeroMexico"), ABC Aerolíneas, S.A. De C.V. ("Interjet"), Aeroenlaces Nacionales, S.A. De C.V. ("Viva Aerobus"), Southwest Airlines, Co. ("Southwest"), and JetBlue Airways Corporation ("jetBlue"). ECF Nos. 92–99. As part of their response to Defendants' Motions, Plaintiffs have filed a Conditional Motion for Leave to Amend. ECF No. 105. No hearing is necessary to resolve the pending motions. See Loc. R. 105.6 (D. Md. 2016). For the following reasons, Defendants' Motions to Dismiss or Transfer are granted, in part, and denied, in part, and Plaintiffs' Conditional Motion for Leave to Amend is denied.
Plaintiffs represent a proposed class of Mexican nationals, guardians of children under the age of two, and foreigners with resident status in Mexico who purchased airfare from Defendants for flights from the United States to Mexico between June 30, 1999 and the present and whose purchase prices included a "Mexico Tourism Tax" ("Tax") that was not reimbursed by the time the instant lawsuit was filed. ECF No. 89 ¶ 111. Defendants are airlines that provide transportation from the United States to Mexico. Id. ¶ 4. Delta, United, American, Southwest, and jetBlue are incorporated and headquartered in the United States, id. ¶¶ 28–30, 34–35; AeroMexico, Interjet, and Viva Aerobus are Mexican corporations doing business and having registered agents for service of process in the United States, id. ¶¶ 31–33. Defendants are all members of Camera Nacional de Aerotransportes ("CANAERO"), an association of airlines that transport passengers to and from different countries, including Mexico and the United States. Id. ¶ 4.
The Mexican government requires all noncitizens entering the country to pay a Tax to the government. Id. ¶ 1. In 1999, the Mexican government entered into a contractual arrangement with CANAERO ("CANAERO Contract") through which the CANAERO airlines would collect the Tax on behalf of the Mexican government and then remit the collected fees to the government. Id. ¶¶ 4–5; see generally ECF Nos. 89-1, 89-2 (CANAERO Contract and Procedures).2 The CANAERO Contract provides that "[t]he collection of the [Tax] shall be included in the airline ticket," ECF No. 89-1 at 9, and "[t]he charge shall appear on the ticket, using the code ‘UK,’ " ECF No. 89-2 at 3.
The CANAERO Contract contains three requirements relevant to this lawsuit. First, the CANAERO airlines may not collect the Tax from certain individuals, including Mexican citizens, children under the age of two, and foreigners residing in Mexico ("Exempt Travelers"), because those individuals are exempt from the Tax under Mexican law. Id. at 2. Second, the CANAERO airlines are required "[t]o determine the cases in which the [Tax] is not applicable." ECF No. 89-1 at 7. And third, the airlines are required to "make the appropriate reimbursements" when the Tax is collected from an Exempt Passenger. Id. In particular, the CANAERO Procedures provide that:
ECF No. 89-2 at 3. Once the airlines collect the Tax, they must then remit the amounts collected to the Mexican government, along with a report of the total number of passengers on each flight and the total number of passengers from whom the Tax should have been collected. ECF No. 89 ¶ 8.
Until recently, Defendants never disclosed the existence of the CANAERO Contract or affirmatively notified Exempt Passengers that they were exempt from the Tax. Id. ¶ 72–73. Instead, Plaintiffs allege that, in carrying out their obligations under the CANAERO Contract, Defendants have not distinguished between Exempt Passengers and non-Exempt Passengers in charging the Tax, id. ¶ 7, and have collected the Tax from Exempt Passengers as follows:
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