On July 10, 2013, Judge O’Connor issued an order in Lopez v. Southwest and Cusick v. Southwest (order available here) granting Southwest’s motion to dismiss. Plaintiffs had asserted breach-of-express-warranty claims relating to various “airworthiness directive” safety measures mandated by the federal government. Specifically, Plaintiffs’ Consolidated Amended Class Action Complaint alleges that paragraph 125 of Southwest’s Contract of Carriage contains the following express warranty that Southwest breached:
All transportation is sold and all carriage is performed subject to compliance with all applicable laws and governmental regulations, including those of the U.S. Department of Transportation, the Federal Aviation Administration, and the Transportation Security Administration, many of which are not specified herein but are nonetheless binding on Carrier and all passengers.
Although plaintiffs had asserted a number of different theories of breach, “they have winnowed down their claims for purposes of seeking class certification to only those arising out of the alleged violations of one particular airworthiness directive, the Chem-Mill Airworthiness Directive (‘Chem-Mill AD’), which was one of the many claims included in the original complaint.”
But, “[a]fter several years of discovery, it was revealed that none of the original named Plaintiffs had flown on an aircraft that violated Chem-Mill AD.” To pursue these claims, plaintiffs moved to add a group of intervenors, and the Court granted the unopposed motions to intervene.
Ultimately, Judge O’Connor found that “none of the original Texas named Plaintiffs had standing to bring their claims . . . therefore, they could not suffer an injury. This defect defeated the Court’s jurisdiction from the outset.” Further,
Since this Court never had jurisdiction over these claims, no tolling standards—whether cross-jurisdictional or otherwise— would apply, and the four-year Texas statute of limitations continued to run. Therefore, although Intervenor-Plaintiffs did fly on Chem-Mill AD flights, they intervened after the statute of limitations in Texas had expired. Furthermore, Intervenors’ claims could not relate back to the original filing date because there was no case over which the Court had jurisdiction. Finally, Intervenors’ Chem-Mill AD claims in Lopez cannot survive independently, because the statute of limitations has expired in Texas, extinguishing the ability to sue absent the ability to use relation back.
Because the original plaintiffs in both cases lacked standing, Judge O’Connor granted Southwest’s motion to dismiss.