MEMORANDUM OPINION AND ORDER
Plaintiffs are a group of individuals who purchased airline tickets from Defendant Polskie Linie Lotnicze LOT S.A. (“LOT”) and arrived at their destination later than scheduled due to delayed or cancelled flights. They filed the Complaint asserting individual claims as well as eleven claims as a class that seek relief for: delay or cancellation of international airfare in violation of Article 19 of the Convention for International Carriage by Air (“Montreal Convention”) (Count One); breach of con
BACKGROUND
LOT is an international airline that is licensed and domiciled in Poland, which is a member of the European Union. (Dkt. No. 24 at ¶¶7, 25, 27.) Plaintiffs purchased tickets for flights operated by LOT that contained the Conditions of Contract. Id. at ¶69.
Irina Dochak departed Chicago on June 13, 2014 on LOT flights from Chicago to Lvov, Ukraine with a layover in Warsaw, Poland. Id. at ¶96. On her return flight via the same route, Dochak’s LOT flight from Lvov to Warsaw was cancelled causing her to miss her connecting flight from Warsaw to Chicago. Id. at ¶100. Dochak was put on a later flight and arrived in Chicago two days later than scheduled. Id. .at ¶103.
Margarita Matusova traveled on September 19, 2013 on LOT flights from Chicago to Minsk, Belarus with a connection in Warsaw. Id. at ¶115. The flight from Minsk to Warsaw was cancelled and Matu-sova was put on a flight from Minsk to Frankfurt and then another from Frankfurt to Chicago. Id. at ¶120. She arrived in Chicago a day later than scheduled. Id. at ¶121.
Ludmila Konosova purchased airline tickets from LOT to fly from Chicago to St. Petersburg, Russia with a layover in Warsaw on October 4, 2013. Id. at ¶141. Her flight from Chicago to Warsaw was delayed causing her to miss her connecting flight to St. Petersburg. Id. at 1Í145. Kono-sova arrived in St. Petersburg ten hours later than scheduled. Id. at ¶147.
Marina and Anastasia Sendun departed Lvov on August 15, 2013 on a LOT flight that was scheduled to stop in Warsaw and then arrive in Chicago. Id. at ¶158. Their LOT flight from Warsaw to Chicago was cancelled, forcing the Senduns to, stay overnight in Warsaw at their own expense. Id. at H1Í159-160. The Senduns arrived in Chicago 24 hours later than scheduled. Id. at ¶162.
Tatyana Mospan and her three children traveled via LOT airplanes on August 19, 2014 from Chicago to Lvov with a layover in Warsaw. Id. at ¶169. Their LOT flight from Warsaw to Chicago was delayed causing them to arrive in Chicago four hours later than scheduled. Id. at ¶174.
Natalia Düduch and her two children were scheduled to fly on LOT airlines from Chicago to Lvov with a layover-in Warsaw on May 26, 2013. Id. at ¶201. Their LOT flight from Chicago to Warsaw was delayed and then cancelled. Id. .at ¶204. Consequently, Duduch and her.- children arrived in Lvov later than scheduled.
Ihor and Liliya Prokipchuck bought tickets from LOT to travel from Chicago to Lvov with a connection in Warsaw on June 16, 2014. Id. at ¶216. Their LOT flight from Chicago to Warsaw was can-celled and they were moved to an Austrian Airlines flight from Chicago to Lvov with a connection in Vienna, Austria. Id. at ¶222. As a result, the Prokipchucks arrived in Lvov days later than scheduled. Id. at ¶225.
Stanislav and Natalia Belik were supposed to fly on December 28, 2014 from Chicago to Lvov with a layover in Warsaw on LOT airlines. Id. at ¶235. Their LOT flight from Chicago to Warsaw was can-celled and they subsequently arrived in Warsaw 14 hours later than scheduled. Id. at ¶240. The Beliks were forced to stay in Warsaw overnight and arrived in Lvov later than scheduled. Id. at ¶¶241, 242.
Olga Kalmenson purchased airline tickets from LOT to fly from Chicago to Gdansk, Poland with a connection in Warsaw on September 18, 2013. Id. at ¶251. Her LOT flight from Chicago to Warsaw was cancelled and Kalmenson was placed on a later LOT flight causing her to arrive in Chicago several-hours later than scheduled. Id. at ¶257.-
Vasili Kutsko was scheduled to fly via LOT from Minsk to Chicago on July 28, 2015 with a layover in Warsaw. Id. at ¶¶266, 268. Similarly, Alexandra and Vasili Kulick bought tickets to travel on July 28, 2015 on LOT flights from Kiev, Ukraine to Chicago with a connection in Warsaw’. Id. at ¶281. The LOT flight from Warsaw to Chicago was cancelled causing Kutsko and the Kulicks to arrive in Chicago several hours later than scheduled. Id. at ¶¶269, 272, 288.
LEGAL STANDARD
A motion to dismiss pursuant to Rule 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted. To survive a 12(b)(6) motion, the complaint must provide- enough factual information- to state a claim for relief that is plausible on its face and “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
I. Breach of Contract Claims for Violations of EU 261
A. The Conditions of Carriage Did Not Incorporate EU 261
LOT’s first argument for dismissing Plaintiffs’ claims for violations of EU 261 is that they are prohibited under Volodarskiy v. Delta Airlines, Inc.,
Second, LOT contends that all claims seeking relief for breach of contract based on LOT’s alleged violations of EU 261 should be dismissed because the Conditions of Carriage did not incorporate EU 261. LOT claims that Paragraph 10.2 of the Conditions of Carriage, which the Complaint quotes and refers to EU 261, is insufficient evidence of intent to incorporate the entirety of EU 261 and rather was intended to provide Plaintiffs notice of their rights under EU 261 apart from the Conditions of Carriage. Plaintiffs, on the other hand, argue that the Complaint adequately pleads that the Conditions of Carriage incorporated EU 261 because Paragraph 10.2 demonstrates incorporation of EU 261. They further point to the availability of EU 261 on LOT’s website as demonstrative of incorporation.
“Under Illinois law, a document is incorporated by reference into the parties’ contract only if the parties intended its incorporation.” 188 LLC v. Trinity Indus., Inc.,
The Complaint alleges that “Articles 6 and 7 of EU 261 is [sic] incorporated into the Tariff and Paragraph C 2.2. and Paragraph 10.2. of defendant’s Condition of Carriage as published on its webpage[.]” (Dkt. No. 24 at ¶373.) It further claims that Article 16.3 incorporated EU 261 into the Conditions of Carriage. Id. at ¶437. The Complaint contains the following quote from Paragraph C 2.2:
The provisions of General Conditions of Carriage are applicable in way not infringing those provisions of Convention or other statutory requirements that are unconditionally binding. If in consequence any provision of General Conditions of Carriage may not apply, the other provisions shall become applicable.
Id. at ¶341. As quoted by the Complaint, Article 16.3 of the Conditions of Carriage reads:
In respect of carriage governed by the Convention, the carrier shall be liable for damage caused by delay of passenger’s carriage unless it proves that it or its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures. Depending on which Convention shall be applied to a given carriage, the liability of carrier for each passenger shall, be limited either to SDR 4 694 or 250,000 Francs Poincare (or their equivalents in other currency).
Id. at ¶351. It is reasonable to infer that the “Convention” in each of these, provisions refers to the Montreal Convention. The Complaint also includes Paragraph 10.2:
In the event of denied boarding and of cancellation or long delay of flights, passengers are entitled to rights provided for in the Regulation (EC) No 261/2004 of the European Parliament and of the Council, in accordance with the rules and to the extent set forth by this Regulation.
Id.
For starters, the Court does not accept as true Plaintiffs’ allegation that the Conditions or Carriage incorporate Articles 6 and 7 of EU 261 because it is a legal conclusion and not a fact. See McCauley,
B. Plaintiffs Are Not Required to Exhaust Remedies
According to LOT, in the alternative the Court should decline to exercise jurisdiction because of Plaintiffs’ failure to exhaust the remedies provided by European courts under EU 261.
The Seventh Circuit has recognized that requiring exhaustion of available remedies is “a basic principle of international law.” Enahoro v. Abubakar,
Second, in terms of whether Plaintiffs must exhaust under international law, the Seventh Circuit held' that the Court may require exhaustion domestic remedies before the American judiciary gets involved even if the statute does not explicitly require exhaustion because “[s]o long as plaintiffs might get a fair shake in a domestic forum, international law expects plaintiffs at least to attempt to seek a remedy [in the domestic forum] first.” See Fischer v. Magyar Allamvasutak Zrt.,
International law principles do not require Plaintiffs to exhaust their remedies in European courts under EU 261 before bringing their claims to American courts. The principle of exhaustion in international law has been invoked primarily in situations like Fischer where human rights violations are at issue. See id.; Flomo v. Firestone Nat’l Rubber Co., LLC,
C. Doctrine of Primary Jurisdiction Does Not Apply
LOT’s second jurisdictional argument claims that the Court should stay or dismiss the claims related to EU 261 under the theory of primary jurisdiction because European courts are the appropriate forum for these claims. Plaintiffs respond by reiterating that their claims are for contract liability and not brought pursuant to EU 261.
The doctrine of primary jurisdiction “applies only when, in a suit involving a regulated firm but not brought under the regulatory statute itself, an issue arises that is within the exclusive original jurisdiction of the regulatory agency to resolve, although the agency’s.resolution of it will usually be subject to judicial review.” Arsberry v. Illinois,
D. EU 261 Would Apply If Incorporated into Conditions of Carriage
LOT’s final argument for dismissal of the EU 261-related counts asserts that EU 261 does apply to these claims because all Plaintiffs traveled roundtrip from the United States and — except for Kalmen-son — had a destination outside the EU. Because typically the law of the place of departure and not law of an interim location governs aviation cases, LOT contends that EU 261 cannot apply. Plaintiffs argue that EU 261 governs because they had connecting flights in EU countries; namely, Poland.
As an initial matter, EU 261 is not incorporated into the Conditions of Carriage as explained above, and thus, it does not matter whether EU 261 applies to Plaintiffs’ allegations. But if the Conditions of Carriage incorporated EU 261 into its provisions, EU 261 would be applicable to Plaintiffs’ claims. Article 3 of 'EU 261 states that “[t]his Regulation shall apply.. .to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, unless they received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is a Community carrier.” (Dkt. No. 36 at Ex. B.) The regulation defines a “community carrier” as “an air carrier with a valid operating license granted by a Member State in accordance with the provisions of Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers!)]” Id. The Complaint alleges that LOT is an air carrier licensed by the European Union. (Dkt. No. 24 at ¶25.) As such, EU 261 considers LOT a “community carrier.” All of the Plaintiffs departed from a country outside the EU but had a connection in Poland, which is a member of the EU. The remaining question, therefore, is whether EU 261 does not apply because Plaintiffs “received benefits or compensations and were given assistance in that third country[.]” The Complaint does not allege that the Plaintiffs received benefits or compensation and were given assistance in their respective countries of departure all of which were outside the EU. In conclusion, EU 261 would apply to the Plaintiffs’ claims if the Conditions of Carriage incorporated EU 261; however, because the Conditions of Carriage did not incorporate EU 261 as described previously, the Court grants LOT’S motion to dismiss Counts Three, Four, Five, Seven, Eight, Ten, Eleven, and any individual claims without prejudice to the extent that they seek redress for breach of contract under EU 261.
II. Montreal Convention Claims
A. The Complaint Pleads Recoverable Damages under the Montreal Convention
LOT moves for dismissal of all claims alleging violations of the Montreal Convention on the basis that Plaintiffs have failed to allege damages that are recoverable under the Montreal Convention. LOT argues that the Montreal Convention does not permit Plaintiffs to recover damages for stress, mental anguish, or subjective injuries endured as a result of delay. In response, Plaintiffs assert that the Complaint states a claim for violations of the
Count One seeks relief under Article 19 of the Montreal Convention for “actual, out-of-pocket, Per Diem and general damages” and “general and special damages” for delayed or cancelled airfare, (Dkt. No. 24 at ¶¶328, 343.) Count Two seeks to recover “compensable actual, general, special, incidental and consequential damages” under Article 19 for failure to pay compensation for delayed flights.
The Montreal Convention was designed to reform the Warsaw Convention which created a scheme for limiting an air carrier’s liability. Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., Ltd.,
Although the Seventh Circuit has not considered the question, Courts in other circuits have held that Article 19 permits the payment of economic damages from a delayed flight but disallows compensation for emotional loss, physical injury, or inconvenience. Campbell v. Air Jamaica, Ltd.,
B. Article 19 Applies to Pre-Departure Cancellations
In one paragraph, LOT contends that the claims for violations of the Montreal Convention brought by Plaintiffs Dochak, Konosova, Bukowsky, Dudych, Prokip-chuek, and Belik should be dismissed because the Montreal Convention does not apply to pre-departure cancellations. LOT cites to Wolgel v. Mexicana Airlines,
III. Challenges to Class Certification are Premature
In its 12(b)(6) motion, LOT objects to the class certification for claims of violations of the Montreal Convention because Plaintiffs’ claims contain insufficient common questions of law and fact, LOT points out that determination of liability under Article 19 of the Montreal Convention depends on the individual facts of each Plaintiffs’ delay, which LOT claims causes Plaintiffs to fail the typicality requirement for a class action. Similarly, LOT argues that the Court should deny class certification for the EU 261-based claims because of the unique facts surrounding each Plaintiffs’ delay. Plaintiffs respond that LOT’s
Federal Rule of Civil Procedure 23 governs class action lawsuits. LOT essentially argues that under Rule 23(b)(3), the Complaint fails to allege that there are “questions of law or fact common, to class members[.]” Rule 23(c)(1) mandates class certification be resolved “[a]t an early practicable time after a person sues or is sued as a class representative,” And generally, the Court addresses a 12(b)(6) motion before certifying a putative class under Rule 23. See McReynolds v. Merrill Lynch & Co., Inc.,
CONCLUSION
For the reasons stated above, the Court grants LOT’s motion to dismiss Counts Three, Four,' Five, Seven, Eight, Ten, Eleven, and any individual claims without prejudice to the extent those claims seek redress for breach of contract due to violations of EU 261. The Court denies LOT’s motion to dismiss Counts One, Two, Six, Eleven, and individual claims with respect to their claims brought under the Montreal Convention. Finally, the Court rejects LOT’s proposal to deny class certification and defers consideration of class certification until after the pleadings stage.
Notes
. The Complaint states that they arrived “5 days hours late[.]” Id. at ¶206.
. In reference to this quote, the Complaint contains a footnote to the following hyperlink: http://www.lot.com/us/en/conditions-of-carriage. The associated webpage, which lists LOT’s Conditions of Carriage, does not include the provision quoted by the Complaint as Paragraph 10.2 or mention EU 261.
. LOT states that the Court should decline to exercise jurisdiction over the entire case because of the need to exhaust under EU 261 first. But LOT’s argument is based entirely on the availability of adjudicating the claims for breach of contract with respect to EU 261 in European • courts and does not mention the non-EU 261 based claims asserted by Plaintiffs. As a result, the Court addresses LOT’s argument in connection with the EU 261 breach of contract claims.
. Count Two alleges a violation of Article 22 of the Montreal Convention, however, Article 22 only establishes a limit on the amount- a passenger can recover under the Montreal Convention and does not serve as a cause of action for a delay. See
. Count Eleven also seeks damages under EU 261 but as explained previously the Court grants LOT’s motion to dismiss this claim to the extent it seeks relief for violations of EU 261.