# Berezkina v. Finnair

> District Court, N.D. Illinois · January 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10142006

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** January 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10142006

## How later opinions describe it (automated extraction)

- noting that CAFA “creat[es] federal subject matter jurisdiction”
- finding Article 19 applied where airline canceled plaintiff’s initial flight and rebooked him on a flight leaving four hours later
- noting the “general consensus among the courts that have had to apply RJR Nabisco” that the location of the injury is not the location of the conduct

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DMITRY BANDURIN, et al.,

Plaintiffs,
No. 19 CV 255
v.
Judge Manish S. Shah
AEROFLOT RUSSIAN AIRLINES, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs booked international airline tickets for different flights with
defendants Aeroflot, a Russian airline, and Finnair, a Finnish airline. Plaintiffs
allege that the airlines subjected them to a series of inconveniences that largely
occurred in Moscow, including preventing them from boarding, forcing them to buy
new tickets for missed flights, and delivering their checked bags late, damaged, or to
the wrong city. Plaintiffs bring claims for delay and injury on behalf of themselves
and a proposed nationwide class under the Montreal Convention, a treaty that
governs international air transportation. They also bring a breach-of-contract claim
against both defendants, and a RICO claim against Aeroflot. The airlines move to
dismiss under Rule 12(b)(2) for lack of personal jurisdiction and Rule 12(b)(6) for
failure to state a claim. For the reasons discussed below, Aeroflot’s motion to dismiss
is granted, and Finnair’s motion is denied in part, granted in part.
I. Legal Standards
Federal Rule of Civil Procedure 12(b)(2) governs dismissals based on lack of
personal jurisdiction. A federal court may exercise personal jurisdiction over a foreign

defendant “only to the extent permitted by the forum state’s long-arm statute and by
the Due Process Clause.” Lexington Ins. Co. v. Hotai Ins. Co., Ltd., 938 F.3d 874, 878
(7th Cir. 2019). Illinois courts exercise jurisdiction to the limit set by the federal Due
Process Clause. Noboa v. Barcelo Corporacion Empresarial, 812 F.3d 571, 572 (7th
Cir. 2016). When a defendant moves to dismiss based on personal jurisdiction, the
plaintiff bears the burden of establishing a prima facie case of jurisdiction. John
Crane, Inc. v. Shein Law Ctr., Ltd., 891 F.3d 692, 695 (7th Cir. 2018); Brook v.

McCormley, 873 F.3d 549, 551–52. (7th Cir. 2017).
To survive a motion to dismiss under Rule 12(b)(6), a complaint must state a
claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). The complaint must
contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In reviewing a motion to dismiss, a court

must construe all factual allegations as true and draw all reasonable inferences in
the plaintiff’s favor. Sloan v. Am. Brain Tumor Ass’n, 901 F.3d 891, 893 (7th Cir.
2018).
II. Background
A. The Bandurins
Dmitry Bandurin, Svetlana Bandurina, and Alexander Bandurin, residents of

Aurora, Illinois, bought tickets from Moscow’s Sheremetyevo International Airport to
Chicago on a Finnair/Aeroflot flight, with a layover in Helsinki. [7] ¶¶ 39, 54, 56, 200–
03.1 The group arrived at their gate in Moscow 19 minutes before boarding ended, but
were not allowed on the flight. [7] ¶¶ 56–57, 65, 200, 204. An Aeroflot representative
told them to go to Finnair’s office in Terminal D for rebooking, but Finnair did not
have an office in Terminal D. [7] ¶¶ 59–60. Aeroflot directed the group to buy new
tickets at a later departure time. [7] ¶¶ 61, 66, 200, 205. The new tickets cost $2,600

each. [7] ¶¶ 4, 9.
Aeroflot also refused to provide a wheelchair to Bandurina, who was disabled.
[7] ¶ 66. As a result, she had to walk a long distance from one terminal to another,
and she sustained a physical injury. [7] ¶¶ 345, 347. When she arrived back in
Chicago, she required medical treatment, and she had to miss several days of work
because of her injury. [7] ¶¶ 349–50.

The Bandurins landed in Chicago more than 24 hours after they were
scheduled to arrive; they all missed at least one day of work, and incurred lost wages
as a result. [7] ¶¶ 67, 209, 212.

1 Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings
B. Yesdaulet Izenov
Yesdaulet Izenov, a California resident, was scheduled to fly on Aeroflot from
Kazakhstan to Chicago, with connections in Moscow and New York. [7] ¶¶ 44, 132–

33, 142, 222–23. Izenov left the Moscow airport during his first layover, and arrived
at the gate 19 minutes before takeoff. [7] ¶¶ 133–35. The crew shut the boarding door
in front of him and several other people standing in line. [7] ¶¶ 136, 221, 225. Izenov
missed his connecting flight from New York to Chicago, and had to buy new tickets
from Moscow to Los Angeles, and Los Angeles to Chicago. [7] ¶¶ 142–43, 221. He
stayed in the Moscow airport overnight to make his new flight. [7] ¶ 144.
Aeroflot representatives told Izenov that his checked bags would be held for

him in Los Angeles. [7] ¶ 148. When Izenov arrived in Los Angeles, he learned that
his bags were in Sacramento; he then had to go to Sacramento to retrieve his luggage,
which was damaged. [7] ¶¶ 149–50, 319, 321. All told, Izenov spent $3,795.78 on
rebooking flights and the costs of being delayed. [7] ¶ 152. As a result of missing his
original flight, Aeroflot told Izenov that he also lost his return flight to Kazakhstan a
few months later. [7] ¶¶ 145–46.

C. Brent Hanson
Brent Hanson, a Washington state resident, paid $729 for a ticket on a Finnair
flight, operated by Aeroflot, from Moscow to Seattle, with a layover in Helsinki. [7]
¶¶ 41, 79–80, 242–43. Hanson arrived at Sheremetyevo Airport at 8:50 a.m. for a
10:35 a.m. flight, and tried to check two suitcases. [7] ¶¶ 81, 245. He spoke to an
Aeroflot employee, who told him that he needed to pay an excess baggage fee, and
sent him to a different Aeroflot desk to submit his payment. [7] ¶ 82. The second
Aeroflot employee directed him to another Aeroflot representative, who also sent him
to someone else. [7] ¶¶ 83–84. That person, the fourth he had spoken to, sent him to

the airport’s general information desk; a representative there directed him back to
the fourth Aeroflot representative, who said she could take his payment and
apologized for the mistake. [7] ¶¶ 85–88. The Aeroflot employee did not know how to
process Hanson’s fee, and had to consult another employee. [7] ¶¶ 89–90. After about
30 minutes, Hanson began expressing concern that he was going to miss his flight,
and the Aeroflot employee assured him that he would make it. [7] ¶¶ 90–92. She
finished processing his payment at 9:50 a.m., and directed Hanson back to the first

Aeroflot employee who had initially taken his suitcases. [7] ¶ 93. Hanson received
receipts for his baggage around 10 a.m. and proceeded through security. [7] ¶¶ 93–
94. He arrived at his gate 15 minutes before takeoff and was not allowed to board the
flight. [7] ¶¶ 95, 246.
Hanson returned to the Aeroflot ticket desk and paid $2,600 for a new flight,
to New York. [7] ¶¶ 4, 9, 99, 101–02, 247. An Aeroflot representative said that

Hanson’s checked bags would be transferred to the new flight. [7] ¶ 101. When
Hanson arrived in New York, he discovered his suitcases were missing. [7] ¶¶ 102,
310. A local Aeroflot representative told him that his bags were still in Moscow and
would arrive in several days. [7] ¶¶ 103–04.
Hanson took a JetBlue flight to Seattle, and a JetBlue representative created
a lost baggage report for him. [7] ¶ 105. Several days later, an American Airlines
representative called Hanson and said the airline had Hanson’s bags; American
transferred the suitcases to JetBlue, and JetBlue delivered them to Hanson’s home.
[7] ¶¶ 106–07, 311.

D. Madina Dzugkoeva, Albina Tolparova, and Lana Zangieva
Illinois residents Madina Dzugkoeva, Albina Tolparova, and their baby, Lana
Zangieva, were scheduled to fly from Moscow to New York, then New York to Chicago.
[7] ¶¶ 42, 114–16, 263–64. The group waited in line at the Moscow airport to check
their bags for about 40 minutes, causing them to miss their flight to New York. [7]
¶¶ 118, 120, 263. They each paid $2,600 for a new ticket. [7] ¶¶ 4, 9, 121, 268. They
arrived back in Chicago 24 hours later than originally scheduled. [7] ¶ 272.

E. Nina Berezkina
Nina Berezkina, a Kentucky resident, paid $1,980 for a roundtrip ticket on
Finnair from Louisville, Kentucky, to Moscow. [7] ¶¶ 45, 154. Her departing flight
had layovers in Chicago and Helsinki. [7] ¶ 154. Berezkina made it to Chicago, but
Finnair canceled her flight from Chicago to Helsinki due to mechanical
malfunctioning. [7] ¶ 158. Finnair rebooked her on a flight from Chicago to Helsinki,

leaving the next day. [7] ¶ 158. Berezkina had prepaid for a train ticket from Moscow
to Orenburg, but lost her ticket because she landed in Moscow late. [7] ¶ 159–60. She
arrived in Orenburg more than 48 hours later than originally planned and missed
the family gathering that had been the reason for her trip. [7] ¶ 163.
Plaintiffs bring putative class actions against Aeroflot and Finnair. Each group
of plaintiffs brings one count on behalf of itself and others under Article 19 of the
Montreal Convention for flight delays. [7] ¶¶ 199–291. Hanson and Izenov each bring
an individual and class claim against Aeroflot under Article 17(2) of the Montreal
Convention for delay in transporting baggage. [7] ¶¶ 307–22. Svetlana Bandurina

brings an individual and class claim against Aeroflot under Article 17(1) of the
Montreal Convention for an injury suffered while boarding. [7] ¶¶ 342–60. Finally,
all named plaintiffs bring individual and class claims for breach of contract against
both airlines and a RICO claim against Aeroflot. [7] ¶¶ 292–306, 323–341.
III. Analysis
Both airlines move to dismiss all claims. In the alternative, they move to strike
the class definitions because, defendants say, they are overly broad and include

unnamed plaintiffs whose claims do not arise out of the airlines’ contacts with Illinois.
The airlines argue that the court lacks personal jurisdiction with regard to the
majority of plaintiffs’ claims.2 The airlines also argue that plaintiffs have failed to
state a claim because they do not plead the necessary elements for their claims under
Articles 17 or 19 of the Montreal Convention. They argue that plaintiffs’ breach-of-
contract claims must be dismissed because plaintiffs fail to identify what contract

term was breached. Finally, they argue that plaintiffs have failed to plead the
necessary elements of a RICO case.

2 Aeroflot asserts lack of personal jurisdiction as to all plaintiffs except the Bandurin
plaintiffs. Finnair only addresses the plaintiffs who assert claims against it—the Bandurins,
Hanson, and Berezkina—and moves under 12(b)(2) with regard only to Hanson. Both airlines
thus waive any objection based on lack of personal jurisdiction as to the Bandurins, and
Finnair waives any personal-jurisdiction argument as to Berezkina. Fed. R. Civ. P. 12(h)(1).
A. Personal Jurisdiction
The Due Process Clause allows personal jurisdiction over an out-of-state
defendant if the defendant has “certain minimum contacts” with the state “such that

the maintenance of the suit does not offend ‘traditional notions of fair play and
substantial justice.’” Kipp v. Ski Enter. Corp. of Wis., 783 F.3d 695, 697 (7th Cir. 2015)
(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). There are two types
of personal jurisdiction: general and specific. Id. at 697–98. General jurisdiction
exists when the party’s contacts with the state where the suit is brought “are so
constant and pervasive as to render it essentially at home” in that state. Id. (quoting
Daimler AG v. Bauman, 571 U.S. 117, 122 (2014)). A corporation is at home in the

corporation’s principal place of business and the state of its incorporation. Daimler
AG v. Bauman, 571 U.S. 117, 137 (2014); Kipp, 783 F.3d at 698. It is “rare” for a
corporation to be at home in a state other than its principal place of business or state
of incorporation. Kipp, 783 F.3d at 699. A plaintiff must show more than a defendant’s
“substantial, continuous, and systematic course of business” in a state to establish
general jurisdiction. Id. at 698 (quoting Daimler, 571 U.S. at 134).

Specific jurisdiction is case specific. Id. It depends on an “affiliation between
the forum and the underlying controversy,” such as an activity or occurrence that
“takes place in the forum State.” Walden v. Fiore, 571 U.S. 277, 284 n.6 (2014)
(quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).
To establish specific personal jurisdiction, the plaintiff must show the defendant’s
contacts with Illinois “related to the challenged conduct.” John Crane, Inc., 891 F.3d
at 695; Kipp, 783 F.3d at 698 (claim must be linked to “the activities or contacts with
the forum”); N. Grain Mktg., LLC v. Greving, 743 F.3d 487, 492 (7th Cir. 2014)
(“[D]efendant’s contacts with the forum state must ‘directly relate to the challenged

conduct or transaction.’” (quoting Tamburo v. Dworkin, 601 F.3d 693, 702 (7th Cir.
2010)). In other words, a court has specific personal jurisdiction where the defendant
has “purposefully availed himself of the privilege of conducting business” in the forum
state, and “the alleged injury arises out of the defendant’s forum-related activities.”
Tamburo v. Dworkin, 601 F.3d 693, 702 (7th Cir. 2010).
1. General Jurisdiction
Aeroflot is headquartered in Russia, and Russia is its principal place of

business. Finnair’s headquarters are in Finland, which is also its principal place of
business. Thus, for an Illinois court to exercise general personal jurisdiction,
plaintiffs would have to show that this is an “exceptional case.” Daimler, 571 U.S. at
139 n.19. Plaintiffs have failed to meet their burden. They assert that the airlines
maintain “minimum contacts” with Illinois through their “air transportation
business,” which includes “air travel operations, offices, logistical services, sales, and

marketing efforts.” [7] ¶ 36. But plaintiffs offer no information at all about the extent
or frequency of the airlines’ contacts with Illinois. While it can be inferred that the
airlines operate flights in and out of Chicago with at least some regularity, even
continuous and systematic contacts with a state do not establish that the company is
essentially at home here. If Aeroflot and Finnair were essentially at home in Illinois
just by virtue of operating flights to and from Chicago, they’d be essentially at home
in every state where they fly. General personal jurisdiction does not sweep that
broadly. See Daimler, 571 U.S. at 139 n.20 (“A corporation that operates in many
places can scarcely be deemed at home in all of them.”). Plaintiffs have failed to

establish general personal jurisdiction over Aeroflot and Finnair.
2. Specific Jurisdiction
The court also lacks specific personal jurisdiction over the airlines with regard
to the claims brought by Izenov, Hanson, Dzugkoeva, Tolparova, and Zangieva. The
airlines had little or no contact with Illinois in the circumstances underlying all of
those plaintiffs’ claims.
For example, Aeroflot employees would not allow Izenov to board his flight

from Moscow to New York. He had to buy a new ticket, in Moscow, which was to Los
Angeles. Once in Los Angeles, he went to Sacramento to retrieve his baggage. All of
Aeroflot’s claim-related conduct for any of Izenov’s claims occurred either in Moscow,
where Aeroflot denied him access to his flight and made him buy a new ticket, or
California, where he had to track down his misplaced luggage. Aeroflot had no
interaction with Illinois that was related to Izenov’s claims, so there is no specific

personal jurisdiction over Aeroflot with regard to any of Izenov’s claims.
Likewise, Hanson’s claims implicate Aeroflot employees’ conduct in Moscow,
New York, and Seattle, but not Illinois. Hanson’s claims arise out of Aeroflot’s
onerous process to check and pay for his bags in Moscow, and Aeroflot’s refusal to
allow him to board his flight when he arrived at the gate. He then flew to New York,
where an Aeroflot employee told him his bags were still in Moscow. JetBlue
eventually delivered Hanson’s luggage to his home in Seattle. Hanson himself had no
connection to Illinois, and the airlines likewise had no contact with the state in
connection with any of Hanson’s claims.

Finally, Aeroflot’s conduct regarding Dzugkoeva, Tolparova, and Zangieva’s
claim occurred in Moscow: denying the group access to their plane from Moscow to
New York. Plaintiffs fail to identify any Illinois contacts regarding this claim either.
And, although this group of plaintiffs lives in Illinois (unlike Hanson and Izenov), the
“defendant’s relationship with the plaintiff is not sufficient” to establish minimum
contacts for specific jurisdiction. Brook, 873 F.3d at 552–53. Rather, “the relationship
must arise out of contacts that the defendant himself creates with the forum State.”

Id. (quoting Walden, 571 U.S. at 284). So that the plaintiffs live in Illinois does not
establish any connection to the state on the part of the airlines. Plaintiffs have not
established personal jurisdiction over the airlines, absent any claim-related contact
with Illinois.
Plaintiffs respond to the airlines’ arguments about both specific and general
jurisdiction by arguing that the court has personal jurisdiction under the Montreal

Convention’s jurisdictional provision. See Convention for the Unification of Certain
Rules for International Carriage by Air art. 33(1), May 28, 1999, S. Treaty Doc. No.
106–45, 2242 U.N.T.S. 350.3 But that provision confers subject-matter jurisdiction,

3 That provision provides:
An action for damages must be brought, at the option of the plaintiff, in the
territory of one of the States Parties, either before the court of the domicile of
the carrier or of its principal place of business, or where it has a place of
not personal jurisdiction. See Royal & Sun All. Ins. PLC v. UPS Supply Chain Sols.,
Inc., No. 16 CIV. 9791, 2018 WL 1888483, at *3 (S.D.N.Y. Apr. 5, 2018) (“[C]ourts
have consistently concluded that the Montreal Convention affords subject matter

jurisdiction, not personal jurisdiction.” (collecting cases)). Plaintiffs also argue that
they have established diversity jurisdiction under the Class Action Fairness Act. But
diversity jurisdiction is not at issue here, and again, CAFA provides a court with
subject-matter, not personal, jurisdiction. See Roppo v. Travelers Comm’l Ins. Co., 869
F.3d 568, 578 (7th Cir. 2017) (noting that CAFA “creat[es] federal subject matter
jurisdiction”). The airlines’ motion to dismiss is a motion under Rule 12(b)(2) for lack
of personal jurisdiction, not Rule 12(b)(1) for lack of subject-matter jurisdiction. That

a court has subject-matter jurisdiction does not mean it also has personal jurisdiction.
There must be a basis for each.
The airlines’ motions to dismiss all claims asserted by Izenov, Hanson,
Dzugkoeva, Tolparova, and Zangieva are granted for lack of personal jurisdiction.
Aeroflot also moves to dismiss all of Berezkina’s claims against it because Berezkina
booked a Finnair flight and only asserts a claim against Finnair. That motion is

granted.
B. Failure to State a Claim
The following claims survive the airlines’ motions to dismiss for lack of
personal jurisdiction: Svetlana Bandurina’s Article 17 claim against Aeroflot; the

business through which the contract has been made or before the court at the
place of destination.
Montreal Convention, 2242 U.N.T.S. at 361.
Bandurin group’s Article 19 claim against Aeroflot and Finnair; Berezkina’s Article
19 claim against Finnair; the Bandurin group’s RICO claim against Aeroflot; the
Bandurin group’s breach-of-contract claim against both airlines; and Berezkina’s

breach-of-contract claim against Finnair.
1. The Article 17 Claim
Article 17(1) of the Montreal Convention makes airline carriers liable for
“death or bodily injury of a passenger” only if the accident that caused the injury “took
place on board” or “in the course of any of the operations of embarking or
disembarking.” Montreal Convention, 2242 U.N.T.S. at 355. To state a claim under
Article 17, a plaintiff must establish (1) an accident, (2) that caused death or bodily

injury, (3) while on board the plane or while embarking or disembarking. Campbell
v. Air Jamaica Ltd., 760 F.3d 1165, 1172 (11th Cir. 2014). A plaintiff cannot recover
under Article 17 if she alleges only mental injuries, unaccompanied by physical
injury. Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 552 (1991).
Aeroflot moves to dismiss because Bandurina has not adequately alleged that
she suffered a physical injury (rather than a mental one), or that her accident took

place while embarking. Bandurina argues she has stated a claim because she suffered
an injury while embarking on her original flight from Moscow to Chicago. [26] at 41.
She contends that she had to walk between terminals at the Moscow airport, causing
her to experience severe pain, suffering, and bodily injury.
Bandurina has plausibly pleaded that she suffered a physical injury. She
alleges that she was disabled, that she needed a wheelchair and was denied access to
one, and that she had to walk a relatively long distance without any assistance. She
also pleads that she needed medical treatment when she returned home as a result
of having to walk through the airport, and that she had to miss several days of work.

Given those allegations, it is plausible that Bandurina suffered a physical injury from
having to walk without the aid that she needed.
But Bandurina has not adequately pleaded that she was embarking when she
suffered an injury. The treaty does not define embarkation or disembarkation.
Campbell, 760 F.3d at 1173. Thus, to determine whether a plaintiff was “embarking,”
courts generally look to the totality of the circumstances, with a particular emphasis
on the plaintiff’s location when the injury occurred, whether her activity was related

to the process of embarking, and how much control the airline exercised at the time
of the accident. Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 617–18 (7th
Cir. 1989); see also Campbell, 760 F.3d at 1173–74.4 Some courts look to whether the
plaintiff was close in time to boarding the plane; this emphasis on imminence requires
“a close connection between the accident and the physical act of boarding the aircraft.”
Campbell, 760 F.3d at 1173 (quoting Marotte v. Am. Airlines, Inc., 296 F.3d 1255,

1260 (11th Cir. 2002)).

4 Schroeder considered Article 17 of the Warsaw Convention, the predecessor to the Montreal
Convention. The provisions are largely identical. Compare Montreal Convention, 2242
U.N.T.S. at 355 with Convention for the Unification of Certain Rules Relating to
International Transportation by Air art. 17(1), Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876
(1934). Courts “routinely” rely on Warsaw Convention precedent “where the equivalent
provision in the Montreal Convention is substantively the same.” Shabotinsky v. Deutsche
Lufthansa AG, 245 F.Supp.3d 1018, 1023 n.3 (N.D. Ill. 2017) (quoting Narayanan v. British
Airways, 747 F.3d 1125, 1127 n.2 (9th Cir. 2014)).
Here, Bandurina claims she sustained an injury while embarking on Finnair
Flight 6840/Aeroflot 2206, the original flight that she was not allowed to board. But
as I read the complaint, her alleged injury occurred after she was denied access to

that flight, when she was walking away from the departure gate to buy a new ticket
in a different terminal. Thus, neither location, control, activity, nor imminence
suggest that Bandurina’s injury occurred either in the lead up to or during the
boarding process. Walking between terminals is not related to embarking on an
airplane. To the contrary, Bandurina was walking away to find a new ticket. Leaving
the departure gate is the opposite of embarking on the airplane parked there. And
Bandurina does not allege that Aeroflot had any control over the area in which her

injury occurred, the passageways between terminals. Nor was Aeroflot exercising any
control over Bandurina herself at that point. Since Aeroflot was not arranging for
substitute transportation, but rather forcing the Bandurins to buy new tickets, the
group had no association with Aeroflot and could have purchased new return tickets
from any airline. After leaving the gate for her original flight, Bandurina was a “free
agent[] roaming at will through the terminal.” Campbell, 760 F.3d at 1174 (quoting

Day v. Trans World Airlines, Inc., 528 F.3d 31, 33 (2d Cir. 1975)). Finally, imminence
weighs against Bandurina. Her injury presumably occurred after her original flight
took off—the flight that she alleges she was injured while embarking on. Given the
totality of the circumstances, Bandurina was not embarking when her injury
occurred. See id. at 1173 (finding plaintiff was not embarking because he “was not
engaged in an activity characteristic of boarding”); Schroeder, 875 F.2d at 618 (same,
where the injury occurred “in the terminal building, away from the airplane”); see
also McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 317–18 (1st Cir. 1995) (same, where
the injury “happened at a considerable distance from the departure gate”).

Because Bandurina has failed to plead that her injury occurred while she was
embarking, she has failed to state an Article 17 claim.
2. The Article 19 Claims
Article 19 provides that airline carriers shall be liable for “delay” of
“passengers, baggage or cargo.” Montreal Convention, 2242 U.N.T.S. at 356. Article
19 applies only to claims asserting delay, not “total nonperformance of a contract.”
Wolgel v. Mexicana Airlines, 821 F.2d 442, 445 (7th Cir. 1987). The analysis turns on

whether the airline “failed completely to perform under the contract,” or “merely
caused a delay in the passenger’s arrival.” Shabotinsky v. Deutsche Lufthansa AG,
245 F.Supp.3d 1018, 1022–23 (N.D. Ill. 2017).
a. The Bandurins
The airlines argue that the Bandurins have failed to state a claim under Article
19 because they were denied boarding, constituting nonperformance, not delay. I

agree.
The Bandurins’ original flight was not delayed. The Bandurins arrived at the
departure gate before takeoff, but Aeroflot employees would not allow them to board
the flight. Aeroflot did not honor the Bandurins’ tickets; that is nonperformance of a
contract. That the Bandurins eventually landed in Chicago on a different flight does
not mean they were delayed within the meaning of Article 19.5 Article 19 typically
applies when an airline transfers a missed reservation to a new flight at no additional
cost and the plaintiff reaches her destination late. But that’s not what happened here.

Aeroflot did not arrange substitute transportation for the Bandurins or transfer their
reservations to a new flight. It directed them to find the Finnair desk and buy entirely
new tickets. The Bandurins entered into new, distinct contracts for a separate flight.
They could have done so with any airline. See also Irabor v. Lufthansa Airlines, No.
CV 19-12087, 2019 WL 6619197, at *6 (D. Mass. Dec. 5, 2019) (“Several courts have
held that where an airline prevents a plaintiff from boarding a flight and does not
offer alternate travel arrangements, then the plaintiff’s claim arises out of

nonperformance.” (collecting cases)).
Plaintiffs argue that they have stated a claim for delay because they were not
“bumped” from their flight, the situation that the Court of Appeals held constituted
nonperformance, rather than delay, in Wolgel, 821 F.2d at 445. In that case, the
plaintiffs’ original flight was overbooked, and they were denied boarding. The court
held that the plaintiffs were not attempting to “recover for injuries caused by their

delay”; their complaint was based on the fact that “they never left the airport.” Id.
Wolgel does not stand for the proposition that “bumping” is the only situation in which
an airline’s failure to allow boarding could conceivably constitute a breach of contract

5 The complaint does not specify whether the Bandurins’ substitute flight was an Aeroflot or
Finnair flight, but says that Aeroflot directed the group to the Finnair desk to buy new
tickets. Since I must draw all inferences in plaintiffs’ favor, I assume the substitute flight
was operated by Finnair or Aeroflot.
rather than a delay. Wolgel merely drew a distinction between “nonperformance” and
“delay,” and categorized the situation at issue there as nonperformance. So too here.
The Bandurins’ claim sounds in nonperformance, not delay, and Wolgel does not

change that outcome.
b. Berezkina
Finnair appears to move to dismiss Berezkina’s claim under Rule 12(b)(6), but
does not say why Berezkina has failed to state a claim for delay. [21] at 13–15.
Berezkina alleges that her original flight was canceled due to a mechanical
malfunction, and Finnair rebooked her on a flight leaving for Moscow the next day.

That is sufficient to state an Article 19 claim. See Shabotinsky, 245 F.Supp.3d at 1023
(finding Article 19 applied where airline canceled plaintiff’s initial flight and
rebooked him on a flight leaving four hours later).
Finnair argues that Berezkina’s damages should be limited, and I agree.
Recovery under Article 19 is limited to economic damages. Campbell, 760 F.3d at
1170 (“Article 19 permits the payment of economic damages but does not contemplate
compensation for emotional loss or physical injury.”). Finnair concedes that

Berezkina has adequately alleged economic damages in the form of her prepaid train
tickets to Orenburg, [17] at 21. But Berezkina also pleads that she suffered a litany
of other damages, such as: “various actual, general, special, incidental and
consequential damages,” [7] ¶¶ 285, 291; “compensable economic actual and general
damages and financial injuries,” [7] ¶ 287; and damages for “physical inconvenience,
physical discomfort, pain, exhaustion, loss of time, frustration of purpose to travel,
anxiety, frustration, uncertainty, loss of use of money and other cognizable legal
damages, losses and injuries.” [7] ¶ 288.6 Most of those damages are not compensable
under Article 19. That Berezkina’s damages would be limited to economic damages,

however, does not mean (and Finnair does not argue) that the chance of a relatively
small recovery is a basis to dismiss the claim. “The Convention does not mention, and
we know of no court that has imposed, a de minimis requirement for an otherwise
validly pled Article 19 claim.” Campbell, 760 F.3d at 1170 (allowing Article 19 claim
for $150 in economic damages to proceed).
Because Berezkina has adequately pleaded that she suffered a flight delay and
at least some measure of economic damages, Finnair’s motion to dismiss Berezkina’s

claim is denied.
3. The RICO Claim
The RICO statute makes it unlawful for “any person employed by or associated
with any enterprise” to conduct that enterprise’s affairs “through a pattern of
racketeering activity.” 18 U.S.C. § 1962(c). So to state a RICO claim, plaintiffs must
plausibly allege (1) the conduct (2) of an enterprise (3) through a pattern (4) of

racketeering activity. Menzies v. Seyfarth Shaw LLP, 943 F.3d 328, 336 (7th Cir.
2019).

6 Damages are also capped in the treaty at 4,150 Special Drawing Rights. Montreal
Convention, 2242 U.N.T.S. at 357. A Special Drawing Right is an artificial currency; its value
is determined at the date of the judgment. Sompo Japan Ins., Inc. v. Nippon Cargo Airlines
Co., 522 F.3d 776, 779 (7th Cir. 2008). The parties agree that 4,150 Special Drawing Rights
amounts to about $6,400. [7] at 55; [21] at 7.
The RICO claim is asserted against Aeroflot, and as discussed, personal
jurisdiction exists only over the Bandurins’ claim. They argue that Aeroflot devised a
scheme to force passengers to wait in long lines to check their luggage and then pay

the fee for checked bags. As part of this scheme, plaintiffs say, Aeroflot regularly
refused to let passengers board if they arrived less than 20 minutes before departure,
forcing those passengers to buy new tickets. Aeroflot argues that plaintiffs have failed
to plead the existence of an enterprise, any predicate acts, or a pattern of
racketeering. It also urges dismissal because RICO applies only to domestic injuries,
and defendants say the Bandurin group has alleged only foreign injuries. Plaintiffs
have plausibly pleaded that they suffered a domestic injury. But they have failed to

identify either a distinct enterprise or predicate acts of racketeering, so their claim is
dismissed.
a. Enterprise
RICO defines an enterprise as “any individual, partnership, corporation,
association, or other legal entity, and any union or group of individuals associated in
fact although not a legal entity.” 18 U.S.C. § 1961(4). An association-in-fact requires

only a “purpose, relationships among those associated with the enterprise, and
longevity sufficient to permit these associates to pursue the enterprise’s purpose.”
Boyle v. United States, 556 U.S. 938, 946 (2009).
To adequately plead enterprise, a plaintiff must identify a “person” that is
“distinct from the RICO enterprise.” Roppo, 869 F.3d at 588 (quoting United Food &
Commercial Workers Unions & Employers Midwest Health Benefits Fund v. Walgreen
Co., 719 F.3d 849, 853 (7th Cir. 2013)); Baker v. IBP, Inc., 357 F.3d 685, 692 (7th Cir.
2004) (“Without a difference between the defendant and the ‘enterprise’ there can be
no violation of RICO.”). That is because RICO liability “depends on showing that the

defendants conducted or participated in the conduct of the enterprise’s affairs, not just
their own affairs.” Crichton v. Golden Rule Ins. Co., 576 F.3d 392, 398–99 (7th Cir.
2009) (quoting Reves v. Ernst & Young, 507 U.S. 170, 185 (1993)). And the defendant
“person” must have participated “in the operation or management of the distinct
enterprise.” Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 655 (7th Cir.
2015).
The Bandurins fail to identify any distinct entity that engaged in alleged

misconduct other than Aeroflot itself. They argue that Aeroflot devised a scheme to
boost its profits by prohibiting customers from boarding their flights and forcing them
to buy a second ticket. They attribute these actions only to Aeroflot, but Aeroflot
cannot be both the person and the enterprise. Plaintiffs have alleged only that
Aeroflot participated in its own affairs, not the affairs of a separate, distinct entity.
They thus fail to plead a RICO claim. See Sheikh v. Wheeler, No. 19-1851, 2019 WL

5296368, at *2 (7th Cir. Oct. 18, 2019) (upholding dismissal of RICO complaint where
plaintiff failed to “plausibly plead the existence of even an informal enterprise”);
United Food & Commercial Workers Unions & Employers Midwest Health Benefits
Fund v. Walgreen Co., 719 F.3d 849, 853 (7th Cir. 2013) (same).
b. Pattern of Racketeering Activity
To plead a pattern of racketeering activity, a plaintiff must allege two predicate
acts. Lachmund v. ADM Inv’r Servs., Inc., 191 F.3d 777, 784 (7th Cir. 1999). Those

acts must be listed in 18 U.S.C. § 1961(1), and the defendant must have committed
at least two of those acts within a ten-year period. 18 U.S.C. § 1961(5); Bible, 799 F.3d
at 659. If the predicate acts sound in fraud, as plaintiffs’ claim does here, they “must
state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ.
P. 9(b). Plaintiffs must describe the “who, what, when, where, and how” of the fraud.
Menzies, 943 F.3d at 338 (quoting Vanzant v. Hill’s Pet Nutrition, Inc., 934 F.3d 730,
738 (7th Cir. 2019)).

Here, the Bandurin plaintiffs have not adequately identified underlying
predicate acts of racketeering. They assert that Aeroflot defrauded, overcharged,
coerced, and extorted them. [26] at 31–32; [7] ¶ 331. Of those four acts, only fraud
and extortion are predicates under RICO. And plaintiffs’ allegations do not support
their claim that Aeroflot extorted them. Generally, extortion occurs when someone
“uses physical violence or the threat of violence to obtain property.” Rennell v. Rowe,

635 F.3d 1008, 1012 (7th Cir. 2011); see also 18 U.S.C. § 1951(b)(2) (defining extortion
as “the obtaining of property from another, with his consent, induced by the wrongful
use of actual or threatened force, violence or fear, or under color of official right”).
Plaintiffs do not remotely allege that Aeroflot or Finnair threatened them with
violence or acted violently toward them to obtain their airline payments.
That just leaves fraud. Fraud can serve as a predicate act for a civil RICO
claim. But it must be pleaded with particularity, and plaintiffs do not meet that
standard. At the outset, plaintiffs do not identify what theory of fraud they are

alleging. The RICO statute lists several varieties of fraud: mail, wire, securities, etc.
Beyond that defect, plaintiffs do not describe any particular fraudulent acts with the
required specificity. They do not identify any person who committed an act of fraud,
when or where any such act occurred, what the underlying act of fraud actually was,
or the use of U.S. mail or interstate wires. Without providing the necessary
description of fraudulent acts, plaintiffs have failed to adequately allege any
racketeering activity. See Chambers v. Habitat Co., 68 Fed. App’x 711, 716 (7th Cir.

2003) (affirming dismissal of RICO claim where plaintiff did not allege “any predicate
acts” constituting mail fraud); Lachmund, 191 F.3d at 784 (same, where complaint
did not identify the “specific content” of any fraudulent misrepresentations, the
identities of the parties to the misrepresentations, or the “specific times or places” of
fraud); Goren v. New Vision Int’l, Inc., 156 F.3d 721, 730 (7th Cir. 1998) (same).
Plaintiffs argue that they established the “pattern” element of a RICO claim

because they alleged repeated racketeering activity that extended over a substantial
period of time, amounting to a threat of continued activity. [26] at 33. But that
argument is not responsive to Aeroflot’s motion to dismiss. And plaintiffs cannot
establish a pattern of racketeering activity without identifying acts that qualify as
racketeering activity, and pleading fraud with particularity.
c. Injury
Aeroflot also argues that plaintiffs cannot state a civil RICO claim because
they have not alleged that they suffered a domestic injury. Plaintiffs do not respond

to this argument, so any argument they might assert in response is forfeited.
Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 825 (7th Cir. 2015) (“[A] party generally
forfeits an argument or issue not raised in response to a motion to dismiss.”).
The RICO statute requires a plaintiff to have suffered an injury to “his
business or property” because of the racketeering activity. 18 U.S.C. § 1964(c);
Armada (Singapore) PTE Ltd. v. Amcol Int’l Corp., 885 F.3d 1090, 1093 (7th Cir.
2018). That injury must be “domestic.” RJR Nabisco, Inc. v. European Cmty., 136

S.Ct. 2090, 2111 (2016). The focus is on “where the injury is suffered.” Armada, 885
F.3d at 1094.
Here, it is plausible that the Bandurin plaintiffs suffered a domestic injury.
They say they were injured because they had to buy new plane tickets at their own
expense. Their injury was the loss of their money—tangible property—as a result of
Aeroflot’s allegedly fraudulent actions. The Bandurins live in Illinois, which supports

an inference that their bank accounts are located in the United States. The
Bandurins’ money was located in the United States when Aeroflot forced them to buy
new plane tickets, the alleged harm. So, they suffered a domestic injury. True, they
paid for their new airfare at the Moscow airport. But plaintiffs presumably felt the
effects of unexpectedly paying thousands of dollars for new airfare long after the exact
moment they made the purchase. They arrived in Chicago only one day after paying
for new tickets and would have had to cope, for at least some amount of time, with
the loss of money they hadn’t expected to spend.
Aeroflot argues that any injury occurred abroad, because plaintiffs were denied

boarding in Moscow and paid for new tickets in Moscow. But the correct inquiry is
not “where the injurious conduct took place,” but where the plaintiff “suffered the
injury.” Humphrey v. GlaxoSmithKline PLC, 905 F.3d 694, 706 (3d Cir. 2018) (noting
the “general consensus among the courts that have had to apply RJR Nabisco” that
the location of the injury is not the location of the conduct); Martin Hilti Family Tr.
v. Knoedler Gallery, LLC, 386 F.Supp.3d 319, 347 (S.D.N.Y. 2019) (“The ‘domestic
injury’ analysis turns on the location of the plaintiff’s property when it was harmed,

not on the location where the defendant’s misconduct took place.”). Aeroflot focuses
on where the injurious conduct took place, rather than where plaintiffs suffered the
injury. At a minimum, the Bandurins have plausibly pleaded that they suffered a
domestic injury.
But because the Bandurins have failed to plead the existence of an enterprise
or pleaded predicate acts of fraud with particularity, their RICO claim is dismissed.

4. The Breach-of-Contract Claims
To state a claim for breach of contract, a party must allege (1) the existence of
a valid and enforceable contract; (2) substantial performance by the plaintiff; (3) a
breach by the defendant; and (4) damages. Doe v. Columbia Coll. Chi., 933 F.3d 849,
858 (7th Cir. 2019). A breach-of-contract claim “requires an identifiable breach of a
contract term.” Sevugan v. Direct Energy Servs., LLC, 931 F.3d 610, 614–615 (7th
Cir. 2019).
The airlines argue that plaintiffs have failed to state a claim for breach of

contract because plaintiffs do not identify what contractual term the airlines
breached. Plaintiffs allege that the airlines were under a “voluntary assumed
contractual duty” and a “binding legal contract for international airfare
transportation.” [7] ¶¶ 294–95. So, plaintiffs say, the airlines were under a
contractual duty to compensate passengers “for damages caused by delay” under
Article 19 of the Montreal Convention. [7] ¶¶ 294–306. Plaintiffs also contend that
their breach-of-contract claim does not arise under the contract of carriage for each

passenger, but under Article 125 of the Russian Air Code. That provision provides
that a passenger may make a claim against an airline carrier “in case of cessation of
the contract of carriage of passengers on the carrier’s initiative.” Vozdushnyi Kodeks
Rossiiskoi Federatsii [VOK RF] [Air Code] art. 125 (Russ.).
I agree with defendants. At a minimum, plaintiffs must identify what contract
existed between themselves and the airlines, and identify the term that the airlines

allegedly breached. Plaintiffs do not explain what contractual duties the airlines
assumed when the passengers purchased their tickets, other than vaguely
referencing a voluntary contractual duty. They do not point, for example, to any terms
or conditions attached to their tickets. Their reference to Article 19 provides no
guidance, as Article 19 governs delay, not nonperformance of a contract. And the
Russian Aviation Code is not a contract, and does not impose any contractual
obligation on the airlines. The provision of the code plaintiffs point to creates a right
of action for a passenger to sue an airline if the airline fails to honor its contract of
carriage for that passenger—but plaintiffs do not identify any contract of carriage

that the airlines breached. Without identifying the existence of any contract, or
specifying what term was allegedly breached, plaintiffs have failed to state a claim
for breach of contract. See Pugh v. Chi. Teachers Union, No. 10 C 7176, 2012 WL
1623222, at *4 (N.D. Ill. May 8, 2012) (dismissing breach-of-contract complaint where
plaintiff “d[id] not identify what contract she had” with the defendants or “what
actions in particular by defendants breached a contract”); Grabianski v. Bally Total
Fitness Holding Corp., 891 F.Supp.2d 1036, 1046 (N.D. Ill. 2012) (same, where

plaintiff did not “specify what contract terms” the defendant breached).
C. Motion to Strike
The airlines move to strike plaintiffs’ class definitions on the basis that they
are overly broad and the court lacks personal jurisdiction over some unnamed
plaintiffs. That motion is denied. The only remaining plaintiff in this case is
Berezkina. While Berezkina may not ultimately be able to represent a class as broad

as the one alleged in the complaint, that is not an issue I need to address at the
motion-to-dismiss stage of the case. Finnair has preserved its personal-jurisdiction
argument. See Bristol-Myers Squibb Co. v. Superior Ct. of Cal., San Francisco Cty.,
137 S. Ct. 1773, 1784 (2017) (leaving open the scope of the Fifth Amendment
restrictions on the exercise of personal jurisdiction by a federal court). If Berezkina
seeks to certify a class at a later point, I will consider personal jurisdiction and the
scope of the class then.
D. Leave to Amend

Ordinarily, an initial dismissal for failure to state a claim should be without
prejudice, and leave to amend should be freely given. See Runnion ex rel. Runnion v.
Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 518 (7th Cir. 2015). But it need
not be granted when amendment would be futile. Hongbo Han v. United Cont'l
Holdings, Inc., 762 F.3d 598, 603 (7th Cir. 2014). Here, there is no reason to permit
plaintiffs to amend their complaint. Plaintiffs cannot plead any additional facts to
establish personal jurisdiction over the airlines with regard to the claims asserted by

Hanson, Dzugkoeva, Tolparova, Zangieva, or Izenov. In responding to the motion to
dismiss, plaintiffs do not suggest what additional facts they could allege to salvage
their RICO, breach-of-contract, or Montreal Convention claims. Plaintiffs have filed
a complaint, a first amended complaint, and a second amended complaint. There is
no reason to think that they have left something out on the issues resolved here. The
dismissals for failure to state a claim are with prejudice.

IV. Conclusion
The airlines’ motions to dismiss, [15], [20], are granted in part, denied in part.
Claims Two, Three, Four, Seven, and Eight are dismissed for lack of personal
jurisdiction. Claims One, Six, Nine, and Ten are dismissed with prejudice for failure
to state a claim. All claims against Aeroflot are dismissed. Claim Five, Berezkina’s
Article 19 claim against Finnair, is not dismissed. The clerk shall correct the docket
to reflect that Berezkina and Finnair are the only remaining parties. A status hearing
is set for February 6, 2020 at 9:30 a.m.

ENTER:

Manish 8. Shah
United States District Judge
Date: January 22, 2020

29

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10142006. Public record. Not legal advice.