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Rojas v. Delta Airlines, Inc.

United States District Court, D. Maryland, Southern Division

November 12, 2019

NOEL MORAN ROJAS, et al., Plaintiffs,
v.
DELTA AIRLINES, INC., et al., Defendants.

          MEMORANDUM OPINION

          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.

         I. BACKGROUND[1]

         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.

         A. The Tax and CANAERO

         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:

If the [Tax] is mistakenly collected from an Exempt [Passenger], upon issuing that ticket, and this is asserted by the passenger, he may be reimbursed through the sales conduit or channel, provided that the following is complied with:
A) The passenger proves, by the presentation of the ticket, that he was charged the [Tax], and it is noted on such, with the applicable code and amount.
B) The passenger proves that he is exempt from payment by a suitable official document issued by Mexican authorities.

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.

         B. Plaintiffs' Airline Ticket Purchases

         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:

• On January 14, 2015, Plaintiff LuzMaria Armendaiz De Arroyo, a Mexican citizen residing in Austin, Texas, purchased an airline ticket from United to travel from Houston, Texas to Monterrey, Mexico. Id. ¶ 23. United charged her a Tax in the amount of $22.97. Id.
• On February 27, 2015, Plaintiff Patricio Mercado, a Mexican citizen residing in Austin, purchased an airline ticket from Viva Aerobus to travel from Houston to Monterrey. Id. ¶ 24. Viva Aerobus charged him a Tax in the amount of $342.12 Pesos. Id.[3]
• On March 28, 2015, Plaintiff Ruben Alfonso Arroyo, a Mexican citizen residing in Sparta, New Jersey, purchased an airline ticket from Delta to travel from St. Louis, Missouri to Monterrey. Id. ¶ 27. Delta charged him a Tax in the amount of $22.28. Id.
• On September 21, 2015, Plaintiff Mayra Luisa Castillo Casteneda, a Mexican citizen residing in Chicago, Illinois, purchased an airline ticket from Southwest to travel from Chicago to Mexico City, Mexico. Id. ¶ 22. Southwest charged her a Tax in the amount of $20.11. Id
• On April 11, 2016, Plaintiff De Arroyo purchased another airline ticket from United to travel from Houston to Mexico City. Id. ¶ 23. United charged her a Tax in the amount of $22.07. Id.
• On February 3, 2017, Plaintiff Teresa Estrada-Jimenez, a Mexican citizen residing in Houston, purchased an airline ticket from United to travel from Houston to Mexico City. Id. ¶ 26. United charged her a Tax in the amount of $23.37. Id.
• On March 13, 2017, Plaintiff Estrada-Jimenez purchased a second ticket from United to travel from Houston to Guadalajara, Mexico. Id. United charged her a Tax in the amount of approximately $20.00 to $25.00. Id.
• On January 14, 2018, Plaintiff Olivia Isabel Gonzales, a Mexican citizen residing in Austin, purchased an airline ticket from United to travel from Houston to Monterrey. Id. ¶ 21. United charged her a Tax in the amount of $22.97. Id.
• On May 25, 2018, Plaintiff Noel Moran Rojas, a Mexican citizen residing in Riverdale, Maryland, purchased an airline ticket from Delta to travel from Baltimore, Maryland to Mexico City. Id. ¶ 19. Delta charged him a Tax in the amount of $29.05. Id.
• On June 20, 2018, Plaintiff Alexandra Almanza, a Mexican citizen residing in Chicago, purchased an airline ticket from jetBlue to travel from Washington, D.C. to Mexico City. Id. ¶ 25. jetBlue charged her a Tax in the amount of $27.40. Id.
• On June 20, 2018, Plaintiff Almanza also purchased an airline ticket from American to travel from Dallas, Texas to Mexico City. Id. American charged her a Tax in the amount of $27.69. Id.
• On October 4, 2018, Plaintiff Miguel Hilarion Jimenez, a Mexican citizen residing in Houston, purchased an airline ticket from AeroMexico to travel from Houston to Mexico City. Id. ¶ 20. AeroMexico charged him a Tax in the amount of $28.00. Id.
• On October 4, 2018, Plaintiff Jimenez purchased another airline ticket from Interjet to travel from Houston to Mexico City. Id. Interjet charged him a ...

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