FILED
NOT FOR PUBLICATION JAN 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SPENCER R. MCMULLEN, No. 08-17435
Plaintiff - Appellant, D.C. No. 3:08-cv-01523-JSW
v.
MEMORANDUM *
DELTA AIR LINES, INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted May 5, 2009
Pasadena, California
Before: RYMER, KLEINFELD and SILVERMAN, Circuit Judges.
McMullen filed suit, on behalf of himself and a proposed class, against Delta
Air Lines alleging it unlawfully charged and collected a Mexican tax at the time he
purchased a ticket for a flight from California to Mexico. The district court
granted Delta’s motion to dismiss. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Assuming McMullen’s breach of contract claim survives preemption, either
because it is not “related to a price, route, or service of an air carrier,” 49 U.S.C.
§ 41713(b)(1), or it falls within the exception articulated by American Airlines, Inc.
v. Wolens, 513 U.S. 219 (1995), it fails because it does not refer to any contractual
language that obligates Delta not to collect the Mexican tax from all passengers to
Mexico, regardless of whether they are exempt from the tax.1 In any event,
McMullen never requested a refund from Delta for the Mexican tax, even though
Rule 90 of the Contract of Carriage provides a mechanism for passengers to
request refunds of this nature.
On appeal, McMullen did not pursue his claim for breach of the implied
covenant of good faith and fair dealing in his opening brief. Therefore, it is
waived. See Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036,
1
McMullen relies on two provisions in Delta’s International Contract of
Carriage. Rule 1, which states: “These Conditions of Carriage are applicable
except to the extent that they are contrary to applicable laws, government
regulation, or orders, in which even the contrary law, regulation or order shall
prevail. If any provision of these Conditions of Carriage is invalid under any
applicable law, the other provisions shall remain valid.” And Rule 55, which
states: “Insofar as any provision contained or referred to in the ticket or in the tariff
may be contrary to a law, government regulation, order or requirement which
severally cannot be waived by agreement of the parties, such provisions shall
remain applicable and be considered as part of the contract of carriage to the extent
only that such provision is not contrary thereto. The invalidity of any provision
shall not affect any other part.”
1046 n. 7 (9th Cir.1999) (issues not raised in an opening brief are deemed waived).
AFFIRMED.
FILED
McMullen v. Delta Airlines, 08-17435 JAN 05 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Kleinfeld, Circuit Judge, dissenting:
I respectfully dissent for the reasons stated in my dissenting opinion in
Sanchez v. Aerovias de Mexico, ___ F.3d ___ (9th Cir. ____) (No. 08-55588).