Spencer McMullen v. Delta Air Lines, Inc.

MEMORANDUM *

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.

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 , 115 S.Ct. 817 , 130 L.Ed.2d 715 (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,…

dissenting:

I respectfully dissent for the reasons stated in my dissenting opinion in Sanchez v. Aerovias De Mexico, 590 F.3d 1027 (9th Cir.2010).

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NOT FOR PUBLICATION JAN 05 2010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…