UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ LYNN ROBINSON; JUDITH ROBINSON, and all others similarly situated, Plaintiffs - Appellants,

v. AMERICAN AIRLINES, INC., d/b/a American Airlines, Defendant - Appellee.

––––––––––––––––––– –––––––––––––––– PAUL STEWART; MICHEL HICKS, and all others similarly situated, Plaintiffs - Appellants,

v. SOUTHWEST AIRLINES CO., d/b/a Southwest Airlines, Defendant - Appellee. No. 17-6166 (D.C. No. 5:17- CV-00426-F) (W.D. Okla.)

No. 17-6167 (D.C. No. 5:17- CV-00429-F) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________

* After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties ’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir . R. 34.1(G). The case is ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 2, 2018
Elisabeth A. Shumaker Clerk of Court2 Before BRISCOE , PHILLIPS , and EID , Circuit Judges.

________________ _________________ In these related appeals, the res pective plaintiffs (collective ly, Plaintiffs) filed putative class actions against A merican Airlines and Southwest Airlines (collectively, Airlines) for not fully refunding the price of nonrefundable ai rline tickets they had purchased but did not use. In a consolidated ruling, the distr ict court held that Plaintiffs’ claims wer e preempted by the Airline Deregulation A ct of 1978 (ADA). We have jurisdiction under 28 U.S. C. § 1291 and affirm, althoug h for different reasons than those stated by the district court, see Acosta v. Paragon Contractors Corp. , 884 F.3d 1225, 1235 n. 7 (10th Cir. 2018) ( “[W]e may affirm th e district court’s ruling on any ground su pported by the record.”). Adopt ing the reasoning in a closely related case, we declin e to address preemption and hold that the Airlines “did nothing more than enforce . . . enforceable contract[s].” Martin v. United Airlines,
Inc. , 727 F. App’x 459, 460 (10th Cir. 2018) (unpublished). 1
I. Background Plaintiffs Lynn Robinson and J udith Robinson su ed American Air lines, and plaintiffs Paul Stewart and Mich ael Hicks sued Southwest Airlin es. In both cases, the plaintiffs purchased nonrefu ndable airline tickets but were not able to take the trips and canceled their reser vations. The Robinsons purchased tickets in February

1 “Although [ Martin ] is not binding, we may cons ider it for its persuasive value.” Anderson v. Spirit AeroSystems Holdings, Inc. , 827 F.3d 1229, 1240 n.7 (10th Cir. 2016).3 2016 for roundtrip travel from Ne w York to Paris. Mr. Stewart and Mr. Hicks bought tickets in August 2013 to fly fro m Tulsa, Oklahoma to Phoenix, Arizona. Each Airline had a contract or conditions of carriage that gov erned its obligations toward its customers, which Plaintiffs admittedly e ntered into by purchasing their tick ets. American Airlines’ Conditions of Car riage provided that nonrefundable tickets expired if not used within one year of th e date of purchase. Aplt. App. No. 17-6166, at A100-01; see also id. at A100 (“Travel must commence within one year from the origin al ticket issue date. For examp le, if a ticket is issued on June 1, 2012, the new ticket tr avel must commence no later t han June 1, 2013.”). Southwest Airlines’ Contract o f Carriage provided that the type of ticket Mr. Stewart and Mr. Hicks purchas ed (“Wanna Get Away Fares”) we re nonrefundable but reusable. Ap lt. App. No. 17-1667, Vol. 2 at A188. Nonrefundable tickets were subject to a trave l credit if unused, so long as t he travel credit was used within the eligibility period. Id. at A190-91. The eligibility period was stated in a Fare Comparison Chart, which als o stated that unused tickets we re reusable for up to twelve months. Id. at A174. This requirement was c onfirmed in an email to the customer providing the ti cket’s expiration date. See id. at A172, A175-76. Plaintiffs filed suit in Oklahom a state court, alleging the fo llowing causes of action: (1) breach of contract by failure of consideration, (2 ) breach of contract by failure to fulfill intentions/rea sonable expectations of the pa rties, (3) fraud, and (4) breach of the covenant of good faith. The Robinsons’ compl aint also included a claim for recovery of money wro ngfully taken and kept by Americ an Airlines. The4 Airlines removed the cases to fe deral court under the Class Act ion Fairness Act, 28 U.S.C. § 1332(d), and filed mo tions to dismiss. The Airline s argued that Plaintiffs’ claims wer e preempted by the ADA or, in the alterna tive, failed to state a claim. The district court held that Pl aintiffs’ claims were preempted by the ADA, which states, in relevant part , that “a State . . . may not ena ct or enforce a law, regulation, or other provision ha ving the force and effect of l aw related to a price, route, or service of an air ca rrier . . . .” 49 U.S.C. § 41713 (b)(1). Therefore, the district court dismissed the complaints with prejudice. Plaintiffs appeal, pursuing thei r claims for breach of contrac t. “[T]he ADA’s preemption prescription bars state -imposed regulation of air ca rriers, but allows room for court enforcement of contract terms set by the parties them selves.” Am. Airlines, Inc. v. Wolens , 513 U.S. 219, 222 (1995). There fore, we address the contract claims. But Plaintiffs did not present a ny argument in their opening br ief on the claims for fraud, money wrongfully taken, or t he tort of violating the imp lied covenant of good faith and fair dealing, so they h ave waived any challenge to th e dismissal of those claims. See Bronson v. Swensen , 500 F.3d 1099, 1104 ( 10th Cir. 2007) (“[W]e routinely have declined to consid er arguments that are not rais ed, or are inadequately presented, in an appellant ’s opening brief.”). II. Standards of Review “We engage in de novo review o f the district court’s rulings o n a motion to dismiss under Federal Rule of Ci vil Procedure 12(b)(6), and we accept the facts5 alleged in the complaint as true and view them in the light mos t favorable to the plaintiffs.” Lincoln v. Maketa , 880 F.3d 533, 537 (10th Ci r. 2018) (brackets and internal quotation marks omitte d). To withstand dismissal, “a complaint must contain sufficient factual matter , accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when th e plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citation and internal quotati on marks omitted). Moreover, “[t ]hreadbare recitals of the elements of a cause of ac tion, supported by mere conclusory statements,” are not sufficient to state a claim for relief. Id. In Martin we applied Oklahoma contract law to a contract of carriage sim ilar to those in these cases. See Martin , 727 F. App’x at 462-63. We determine that Oklahoma law applies to the cla ims brought by Mr. Stewart and M r. Hicks, No. 17-6167. Texas law, however , applies to the Robinsons’ cla ims, because the Conditions of Carriage applicable to the Robinsons includes a c hoice-of-law provision stating that Texas law applies. See Aplt. App. No. 17- 6166, at A105-06. Nevertheless, we reach the same result under Oklahoma and Texas law. III. Ambiguous Contracts As in Martin , Plaintiffs assert the contract s at issue here are ambiguous. Mr. Stewart and Mr. Hicks fail to identify any ambiguous contra ct language. The Robinsons contend that American Airlines’ Conditions of Carriag e is ambiguous6 because, although it states that an applicable change fee will be charged when a nonrefundable ticket is rebooked , the amount of the change fee is not specified. Under Texas contract law, “[a] contract is not ambiguous simpl y because the parties to a lawsuit offer conf licting interpretations of the c ontract’s provisions.” Nassar v. Liberty Mut. Fire Ins. Co. , 508 S.W.3d 254, 258 (Te x. 2017). Rather, “[a] [contract] is ambiguous if it is genuinely subject to more than one meaning after applying the pertinent rules of contract interpretation.” Id. The Robinsons have proffered no conflicting interpre tation of the provision for ch arging an applicable change fee and we see none. We conclude that neither cont ract is ambiguous. Both contract s provided that the tickets were nonrefundable a nd that the airline travel had to be taken within one year of purchase. Plaintiffs con cede that they did not book ai rline flights within one year. We turn to Plaintiffs’ re maining arguments, which are “i n essence” an attempt to “change the terms of the contracts.” Martin , 727 F. App’x at 462. IV. Rule Against Forfeitures and Quasi-Estoppel Plaintiffs contend that the rul e against forfeitures and the d octrine of quasi-estoppel prevent the enforc ement of the Airlines’ contrac ts. We reject these arguments. Both Oklahoma and Texas disfavor forfeitures, but neither state ’s laws apply the doctrine to invalidate an unambiguous contract. Guthrie v. Indep. Sch. Dist. No. I-30 , 1998 OK CIV APP 47, 9 58 P.2d 802, 805 (recognizing “the rule discouraging construction of a contract in a way that works a forfeiture unl ess the plain,7 unambiguous language of the contract so requires”); Fischer v. CTMI, LLC , 479 S.W.3d 231, 239 (Tex. 2016) (stati ng “[f]orfeitures are not fav ored in Texas,” but “if the parties clearly intended to agree and a reasonably certain basis for granting a remedy exists, we will find the contract terms definite enough to provide that remedy” (internal quotation mark s omitted)). Thus, our conclus ion that the Airlines’ contracts are not ambiguo us dooms this claim. The quasi-estoppel doctrine also does not apply. “Quasi-estopp el precludes a party from asserting, to anothe r’s disadvantage, a right incons istent with a position previously taken.” Samson Expl., LLC v. T.S. Reed Props., Inc. , 521 S.W.3d 766, 778 (Tex. 2017) (internal quotation marks omitted); accord Willard v. Ward , 875 P.2d 441, 443 (Okla. Civ. A pp. 1994) (“If it is unconsciona ble for a party to assume an inconsistent position in a subsequent proceeding, the party may be barred from doing so under the doctrine of quasi-estoppel.”). Neither Airline has taken a position inconsistent with an earlier position. V. Doctrine of Reasonable Expectations Invoking the doctrine of reasona ble expectations, Plaintiffs co ntend that in purchasing nonrefundable tickets, they expected their airline t ickets never to expire or to receive refunds if they did not use their nonrefundable t ickets. “But the Oklahoma courts apply the doctrin e only if the contract is ambi guous or if a term is ‘masked by technical or obscure l anguage or hidden in a policy’ s provisions.’”
Martin , 727 F. App’x at 462-63 (quoting Am. Econ. Ins. Co. v. Bogdahn , 2004 OK 9, ¶ 9, 89 P.3d 1051, 1054 (interna l quotation marks omitted)). “ Texas law does not8 recognize the ‘Doctrine of Reasona ble Expectations’ . . . as a basis to disregard unambiguous policy provisions.” Vandeventer v. All Am. Life & Cas. Co. , 101 S.W.3d 703, 719 n.8 ( Tex. App. 2003) (citing Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 145 n.8 (Tex. 1 994)). As discussed above, the applicable contracts are not ambiguous, nor is the nonrefundability of the tickets m asked by technical or obscure language. VI. Covenant of Good Fai th and Fair Dealing Plaintiffs also invoke the cove nant of good faith and fair dea ling in the context of contract construction, in cont rast to their claim noted abov e asserting a tort of violating the implie d covenant. “But that covenant cannot impo se terms that contravene the express te rms of the contract.” Martin , 727 F. App’x at 463 (citing Mercury Inv. Co. v. F.W. Woolworth Co. , 706 P.2d 523, 532 (Okla. 1985); United Assocs., Inc. v. Wal-Mart Stores, Inc. , 133 F.3d 1296, 1298 (10th Cir. 1997)). Texas law similarly provides that “[t]h e agreement made by the partie s and embodied in the contract itself cannot be varied by an implied good-faith-and-f air-dealing covenant.” Exxon Corp. v. Atl. Richfield Co. , 678 S.W.2d 944, 947 ( Tex. 1984). Thus, the implied covenant cannot be app lied to change the contract provi sions stating that the tickets were nonrefundable. VII. Unconscionable Contracts Plaintiffs further contend that the restrictions on nonrefunda ble tickets are unconscionable. Under Oklahoma l aw, “[a]n unconscionable contr act is one which no person in his senses, not unde r delusion would make, on the one hand, and which9 no fair and honest [person] w ould accept on the other.” Barnes v. Helfenbein , 548 P.2d 1014, 1020 (O kla. 1976). “The basi c test of unconscio nability of a contract is whether under the circumstanc es existing at the time of maki ng of the contract, and in light of the general commerci al background and commercial ne eds of a particular case, clauses are so one-sided a s to oppress or unfairly surpri se one of the parties.” Id. An unconscionable contract gener ally “include[s ] an absence o f meaningful choice on the part of one of the parties, together with contrac tual terms which are unreasonably favorable to the other party.” Id. “Texas . . . recognizes both substa ntive and procedural unconsc ionability. Substantive unconscionability refer s to the fairness of the [co ntractual] provision itself . . . .” In re Olshan Found. Repair Co. , 328 S.W.3d 883, 892 (Tex. 2010) (internal quotation ma rks omitted). In general, “a contract is [substantively] unconscionable if, given the par ties’ general commercial backgr ound and the commercial needs of the particul ar trade or case, the clause in volved is so one-sided that it is unconscionable under th e circumstances existing when the parties made the contract.” Id. (internal quotation marks omi tted). Procedural unconscionabil ity “refers to the circumstances sur rounding adoption of the [contr actual] provision.” Id. (internal quotation marks omitted). The contracts at issue here do not satisfy the criteria for un conscionability under either Oklahoma or T exas law. As explained in Martin , Every day, thousands of travelers have a choice between purchas ing a refundable ticket or a significa ntly cheaper nonrefundable tick et from a variety of airlines. Few are out of their senses or delusional . Contracts10 made on competitive markets are seldom unconscionable. Althoug h the market for air travel is not a m odel of perfect competition, th e commercial context here also argues aga inst finding unc onscionability. Ai rlines can compete against each other, and an airline could certainly obta in a competitive advantage in obtaini ng customers by making all tick ets fully refundable or, as some do, by reducing the b urden of exchanging the ticket, but the cost to an airline of doi ng so may constrain such an ef fort. Further, there is certainly no procedural unfairness present here. Airl ines are hardly oppressive or coercive in offeri ng travelers the choice of chea per nonrefundable tickets. Martin , 727 F. App’x at 463-64 (footnote omitted); see also id. at 463 n.3 (quoting Morales v. Trans World Airlines, Inc. , 504 U.S. 374, 389 (1992) (describing airlinetravel market conditions)). VIII. Conclusion Because Plaintiffs were bound by the contract conditions on no nrefundable tickets, their breach-of-contract claims must fail. Accordingl y, we affirm the district court’s judgments of dismissal.

Entered for the Court
Mary Beck Briscoe Circuit Judge