NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 10 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEAN SHREM; MARNI FISCHER, No. 17-15896
Plaintiffs-Appellants, D.C. No. 4:15-cv-04567-HSG
v.
MEMORANDUM*
SOUTHWEST AIRLINES COMPANY, a
Texas corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted October 11, 2018
San Francisco, California
Before: TASHIMA and MURGUIA, Circuit Judges, and CHATIGNY,** District
Judge.
Plaintiffs-appellants Jean Shrem and Marni Fischer (collectively,
“Plaintiffs”) appeal the district court’s dismissal of their putative class action
alleging that defendant-appellee Southwest Airlines Company (“Southwest”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert N. Chatigny, United States District Judge for
the District of Connecticut, sitting by designation.
breached its ticketing contract with Plaintiffs. Plaintiffs challenge Southwest’s
travel-credit policy, which generally allows customers to use the full price of a
cancelled flight towards the purchase of another Southwest flight for up to one year
from the original purchase date. However, if a customer uses the travel credit to
purchase a new flight and then cancels that new flight, the expiration date of the
entire credit from the new flight is one year from the purchase date of the original
ticket. Plaintiffs call this the “hidden exception” to the “Reusable Funds
Agreement,” and they seek to represent a class of individuals who have forfeited
travel credits because of this exception.
We review a district court’s dismissal under Federal Rule of Civil
Procedure 12(b)(6) de novo. See Manzarek v. St. Paul Fire & Marine Ins. Co., 519
F.3d 1025, 1030 (9th Cir. 2008). “When ruling on a motion to dismiss, we may
generally consider only allegations contained in the pleadings, exhibits attached to
the complaint, and matters properly subject to judicial notice.” Id. at 1030–31
(internal quotation marks and citation omitted). We “can affirm on any grounds
supported by the record.” Franklin v. Terr, 201 F.3d 1098, 1100 n.2 (9th Cir.
2000). We affirm.
Plaintiffs allege that regulations enacted under the federal Airline
Deregulation Act, 49 U.S.C. § 41701, et seq. (the “ADA”), provide the “rules of
contract construction” for interpreting airline contracts and, therefore, if their
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contract with Southwest does not comply with ADA regulations, Southwest has
breached the contract. In addition to arguing that the ADA regulations apply to all
airline contracts, Plaintiffs also argue that a provision in Southwest’s 40-page
contract of carriage (the “COC”), which Southwest contends is incorporated into
the ticketing contract, incorporates ADA regulations into the COC. The provision
states that the COC is “subject to applicable laws, regulations, and rules imposed
by U.S. or foreign governmental agencies.” Even if we assume that the ADA
regulations apply and the ADA does not preempt this suit, Plaintiffs’ claim still
fails because Plaintiffs have not plausibly alleged that Southwest violated ADA
regulations. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (Plaintiffs
must plead “enough facts to state a claim to relief that is plausible on its face.”).
Plaintiffs point to 14 C.F.R. § 253.7, which explains that a “carrier may not
impose any terms restricting refunds of the ticket price [or] imposing monetary
penalties on passengers . . . , unless the passenger receives conspicuous written
notice of the salient features of those terms on or with the ticket.” 14 C.F.R.
§ 253.7. Plaintiffs also rely on § 253.4 and § 253.5, which establish notice
requirements when an airline carrier wishes to incorporate extraneous terms into an
airline-passenger contract by reference. See 14 C.F.R. §§ 253.4, 253.5. Plaintiffs
argue that their Southwest tickets do not provide “conspicuous written notice” of
the travel-credit policy as required by § 253.7. Plaintiffs further assert that
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Southwest cannot rely on the fact that the COC explains the travel-credit policy in
detail, because Southwest did not properly incorporate the COC by reference under
§§ 253.4, 253.5.
Even assuming that Southwest cannot rely on the full COC terms because
Southwest did not properly incorporate the COC, Plaintiffs have not alleged a
violation of § 253.7. Plaintiffs’ tickets themselves, which are attached to the
complaint, show that the expiration date of the travel credits was clearly indicated
in a prominent position on the first page of the tickets. And the following statement
appears on the second and third pages of the tickets: “All travel involving funds
from this Confirmation Number must be completed by the expiration date.” Thus,
it is clear from the complaint and documents attached to the complaint that
Plaintiffs received conspicuous notice of the salient features of the travel-credit
policy. Plaintiffs have not plausibly alleged that Southwest breached ADA
regulations. See Manzarek, 519 F.3d at 1031 (“We need not accept as true
conclusory allegations that are contradicted by documents referred to in the
complaint.”); Twombly, 550 U.S. at 570.
The district court therefore properly dismissed Plaintiffs’ breach of contract
claim. See Oasis W. Realty, LLC v. Goldman, 250 P.3d 1115, 1121 (Cal. 2011)
(listing the elements of a claim for breach of contract, including breach by the
defendant).
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AFFIRMED.
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