99364

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SAMANTHA LEVEY, individually and on 

behalf of all others similarly situated,

Plaintiff,

v.

CONCESIONARIA VUELA COMPAÑÍA 

DE AVIACIÓN, S.A.P.I. DE C.V., and 

CONTROLADORA VUELA COMPAÑÍA 

DE AVIACIÓN, S.A.B. DE C.V., foreign 

corporations d/b/a/ "VOLARIS,"

Defendants.

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Case No.: 1:20-cv-2215

Assigned Judge:

John Robert Blakey

Designated Magistrate Judge:

Jeffrey Cummings

INITIAL JOINT STATUS REPORT

1. Type of Initial Status Report

This is the parties’ joint initial status report.

2. Service of Process

Defendant Concesionaria Vuela Compañía de Aviación, S.A.P.I. de C.V. agreed to waive 

service of summons. Defendant Controladora Vuela Compañía de Aviación, S.A.B. de C.V. was 

served through a registered agent who subsequently rejected service because it had previously 

resigned. Plaintiff, however, intends to dismiss Controladora Vuela Compañía de Aviación, S.A.B. 

de C.V. without prejudice.

3. The Nature of the Case

a. Identification of Attorneys of Record

William M. Sweetnam – Lead Trial Attorney

KEOGH LAW, LTD.

55 West Monroe Street, Suite 3390

Chicago, Illinois 60603

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312-374-3401

wsweetnam@keoghlaw.com

Attorneys for Plaintiff

Robert E. Tonn – Lead Trial Attorney

HOLLAND & KNIGHT, LLP

150 N. Riverside Plaza, 27th Floor

Chicago, IL 60606

(312) 578-6687

robert.tonn@hklaw.com

Christopher Kelly (pro hac vice pending)

Judith Nemsick (pro hac vice pending)

HOLLAND & KNIGHT LLP

Holland & Knight LLP

31 West 52nd Street

New York, NY 10019

Phone 212.513.3264

christopher.kelly@hklaw.com

judith.nemsick@hklaw.com

Attorneys for Defendant Concesionaria Vuela Compañía de Aviación, S.A.P.I. de C.V. 

b. Basis for Federal Jurisdiction

Plaintiff plead her claims individually and on behalf of the class defined in her Complaint, 

which she alleges numbers in excess of 100, who are citizens of states different from Defendant,

and that the amount in controversy exceeds the sum or value of $5,000,000, exclusive of interest 

and costs. Plaintiff alleges, therefore, that this Court has original jurisdiction under 28 U.S.C. §

1332(d)(2).

Defendant does not agree that this matter is appropriate for class action treatment. 

Defendant contends that if the class is not certified plaintiff’s individual breach of contract claim 

does not meet the threshold for diversity jurisdiction.

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c. Nature of Plaintiff’s Claims

Plaintiff allleges she and others who booked flights on Volaris for travel from the United 

States to Mexico had their flights canceled by Volaris during the COVID-19 (novel coronavirus) 

pandemic without refunding the amounts these passengers paid for airfare and/or requiring them 

to pay a penalty to rebook their travel. As alleged in the Complaint, Volaris canceled many of its 

flights to Mexico from the United States in the wake of the COVID-19 (Novel Coronavirus) 

pandemic. Although the United States temporarily closed its border with Mexico due to the 

pandemic, Plaintiff allges this restriction did not apply to air travel. When Volaris decided to cancel 

its flights to Mexico, Plaintiff alleges that it did so without notice to its booked passengers, and it 

offered no refunds and that it continues to deny the refunds to passengers who seek them, despite 

its contract of carriage and DOT rules requiring refunds and/or required these passenger to pay a 

penalty to rebook their travel. Based on the above allegations, Plaintiff asserts claims for breach 

of contract, unjust enrichment, unconscionability and violation of the Illinois Consumer Fraud and 

Deceptive Trade Practices Act, 815 ILCS 505/1 et seq.

d. Principal Legal and Factual Issues

Plaintiff alleges there are questions of law or fact common to the Class including, inter 

alia, the following: 

a. whether Volaris’ cancellation of the flights of Plaintiff and the Class without 

refund constitutes a breach of its contract of carriage;

b. whether Plaintiff and members of the Class conferred a benefit on 

Defendant in the form of airfare paid and whether it would be unjust for Defendant to retain such 

benefits under the circumstances alleged herein;

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c. whether Volaris’ contract of carriage permits cancellation of the flights of 

Plaintiff and the Class without refund and, if so, whether such terms are unconscionable;

d. whether Defendant misrepresented and/or omitted material facts regarding 

its obligation to provide refunds to Plaintiff and the Illinois Subclass when it canceled their flights;

e. whether Defendant intended that Plaintiff and the Illinois Subclass rely on 

the foregoing misrepresentations and omissions;

f. whether Defendant’s cancellation of Plaintiff’s and the Class’ flights was 

for reasons outside Defendant’s control or through no fault of Plaintiff and the Class;

g. whether the current COVID-19 (novel coronavirus) pandemic is an act of 

God entitling Plaintiff and the Class to a refund of their airfare and/or penalties paid;

h. whether Plaintiff and the members of the Class are entitled to their damages, 

including treble damages, and the appropriate measure thereof; and

i. whether equitable or injunctive relief is appropriate.

Defendant alleges the principal legal issues are (1) whether Plaintiff’s claims are preempted 

by the Airline Deregulation Act; (2) whether Plaintiff has failed to state a claim for breach of 

contract as Plaintiff was provided alternate transportation as per her Contract of Carriage because 

her flight was operated out of O’Hare and Volaris also offered Plaintiff travel vouchers, even 

though she did not check-in or appear for her flight; (3) whether the Court lacks subject matter 

jurisdiction because Plaintiff lacks standing as she has no viable claim; and (4) whether the 

unnamed class members’ claims are moot because Volaris offered ticket refunds to passengers 

whose flights were canceled by Volaris. 

Defendant states, additional factual and legal class issues, in the event the case is not

dismissed, are (1) whether Plaintiff is an appropriate class representative; (2) whether the 

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Complaint properly alleges a cognizable class, (3) whether there is sufficient commonality among 

the alleged class members, (4) whether the claims of Plaintiff as the named class representative 

are typical of all putative class members, (5) whether the individualized claims of the Plaintiff, as 

the named class representative, are unique to her such that her claims would not lend themselves 

to a determination of all of the claims of the purported putative class members, and (6) whether 

the Montreal Convention may govern certain passengers’ claims where a flight was delayed.

e. The Relief Sought by Plaintiff

Plaintiff’s Complaint seeks the following relief: (1) certification of this action as a class 

action under Fed. R. Civ. P. 23, and designation of Plaintiff as representative of the Class and her

undersigned counsel as Class counsel; (2) damages in the amount of Plaintiff’s and the Class’

damages, costs and attorneys’ fees; (3) allowable pre- and post-judgment interest on the foregoing 

awarded damages; (4) equitable relief including, inter alia, disgorgement of Defendant’s ill-gotten 

gains; and (5) injunctive and declaratory relief.

4. Case Plan

a. Pending Motions

1. Defendant has filed a Rule 12(b) motion to dismiss Plaintiff’s Class Action 

Complaint based on theories of preemption, standing, mootness and failure to state a claim.

2. Seperately, an MDL Motion to Transfer this matter has been filed with the United 

States Judicial Panel on Multidistrict Litigation (MDL 2957, In Re COVID-19 Airfare Refund 

Litigation).

b. Proposed Discovery Plan

Defendant requests that the Court extend the time for the parties to provide initial 

disclosures pursuant to the Mandatory Initial Discovery Pilot Program (“MIDP”) Standing Order 

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until such time as the Court rules on Defendant’s motion to dismiss and such time as the JPML 

rules on MDL transfer. Defendant asserts that its motion to dismiss presents legal rather than 

factual issues that may be resolved without discovery. Moreover, if transfer is granted Defendant 

contends that the MDL Court will establish procedures for discovery that may be inconsistent with 

this Court’s procedures. Defendant plans to file a motion to stay discovery prior to the Court’s 

next mandatory case management conference.

Defendant proposes that the parties provide a discovery schedule once the pending motion 

to dismiss and the MDL transfer motion are decided, or if the court orders otherwise.

If discovery does eventually proceed, Defendant believes that a protective order may be 

necessary to protect confidential information.

Plaintiff opposes a stay of discovery. The party seeking a stay of discovery bears the burden 

of showing that “good cause” exists for such an order. New England Carpenters Health & Welfare 

Fund. V. Abbott Labs., No. 12 C 1662, 2013 WL 690613, at **1, 3 (N.D. Ill. Feb. 20, 2013). Before 

a stay may be imposed, the moving party must make a “clear showing of [their] burden or cost 

with any anticipated discovery.” Id., 2013 WL at *3. The mere filing of a motion to dismiss is 

ordinarily not sufficient to justify a stay of discovery. See, e.g., SK Hand Tool Corp. v. Dresser 

Indust., Inc., 852 F.2d 936, 945 n.11 (7th Cir. 1988) (“Discovery need not cease during the 

pendency of a motion to dismiss.”); Tomburo v. Dworkin, No. 04 C 3317, 2010 WL 4867346, at 

*2 (N.D. Ill. Nov. 7, 2010). As the Court explained in New England Carpenters, “[h]ad the Federal 

Rules contemplated that a motion to dismiss under Fed. R. Civ. P. 12(b)(6) would stay discovery, 

the Rules would contain a provision to that effect.” 2013 WL 690613 at *1.

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c. Trial

Plaintiff has made a jury demand. The length of trial will depend in large part on whether 

the Court certifies this as a class action. The trial on plaintiff’s individual claims will take 

approximately 3-5 days. Defendant believes a trial on the purported class claims will take 

approximately 4-6 weeks, depending on the size of the class. Plaintiff disagrees, maintaining that 

the claims of the Class can and should be tried together with Plaintiff’s claims.

5. Consent to Proceed Before a Magistrate Judge

The Parties do not agree to proceed before the magistrate judge.

6. Settlement

The parties have not discussed settlement and at this point have not requested a settlement 

conference.

Dated: July 6, 2020 Respectfully submitted,

SAMANTHA LEVEY

s/ William M. Sweetnam

One of Its Attorneys

KEOGH LAW, LTD.

William M. Sweetnam 

55 West Monroe Street, Suite 3390

Chicago, IL 60603

(312) 374-3401 (Telephone)

WSweetnam@Keoghlaw.com

CONCESIONARIA VUELA COMPAÑÍA DE 

AVIACIÓN, S.A.P.I. DE C.V.

s/ Robert E. Tonn

One of Its Attorneys

HOLLAND & KNIGHT, LLP

Robert E. Tonn

150 N. Riverside Plaza, 27th Floor

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Chicago, IL 60606

(312) 578-6687 (Telephone)

robert.tonn@hklaw.com

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