YOUNG

Recognized as Preempted
M.G.L.A. c. 149, § 152A Shannon E. Liss–Riordan, Hillary A. Schwab, Lichten & Liss–Riordan, P.C., Boston, MA, for Plaintiffs.
Marylou Fabbo, Skoler, Abbott & Presser, Springfield, MA, Justin Ford, Michael McGuinness, Robert Siegel, Jillian R. Weinstein, O'Melveny and Myers LLP, Los Angeles, CA, Ellen C. Kearns, Christopher M. Pardo, Jeffrey M. Rosin, Constangy, Brooks & Smith LLP, Michael J. Tuteur, Foley & Lardner, LLP, Boston, MA, T. Harold Pinkley, Kara E. Shea, C. Eric Stevens, Miller & Martin PLLC, Nashville, TN, for Defendant.

MEMORANDUM & ORDER

YOUNG, District Judge.

I. INTRODUCTION

Over the course of the last century, airlines have been subject to varying levels of oversight by different regulatory bodies. The first significant national legislation regarding commercial aviation was the Air Commerce Act of 1926, vesting regulatory authority in the Secretary of Commerce to ensure air safety, and granting the President, the Secretary of War, and the states the authority to reserve airspace for certain uses. Pub.L. No. 69–254, 44 Stat. 568 (1926) (codified as amended in scattered sections of 49 U.S.C.).

In 1938, recognizing that the division of responsibility and authority over air safety and navigation “plague[d]” both civil and military air operations, H.R.Rep. No. 85–2360, at 2 (1958), reprinted in 1958 U.S.C.C.A.N. 3741, 3743, Congress enacted the Civil Aeronautics Act, establishing a single administrative aviation agency, the Civil Aeronautics Authority. Pub.L. No. 75–706, 52 Stat. 973 (1938) (codified as amended in scattered sections of 49 U.S.C.). Congress included in the Act a general remedies saving clause, providing that the legislation did not alter common law or statutory remedies then in existence. Id. § 1106, 52 Stat. at 1027.

Authority over the airspace was again divided when, a few years later, the Civil Aeronautics Authority was divided into two segments, the Civil Aeronautics Board and the Civil Aeronautics Administration, the latter operating under the control of the Secretary of Commerce. H.R.Rep. No. 85–2360, at 3. The executive branch further diluted authority in 1946 by creating the Air Coordinating Committee to act on certain matters. Id.

In an effort to centralize authority, Congress enacted the Federal Aviation Act of 1958, establishing the Federal Aviation Agency to foster civil aviation, promulgate regulations for the safety and efficiency of civil and military air operations, and develop a common system of air traffic control and navigation. Pub.L. No. 85–726, § 103, 72 Stat. 731, 740 (1958) (codified as amended in scattered sections of 49 U.S.C.). Congress retained the Civil Aeronautics Board to oversee certain areas of the airline industry, including economic regulation. Id. §§ 204, 401–416, 72 Stat. at 743, 754–71. Congress also preserved the saving clause from earlier legislation. Id. § 1106.

Over the next two decades, the airlines were subject to extensive economic regulation which Congress eventually deemed “highly anticompetitive.” H.R.Rep. No. 95–1211, at 2 (1978), reprinted in 1978 U.S.C.C.A.N. 3737, 3738. Congress thus enacted the Airline Deregulation Act of 1978 in order to phase out the onerous economic restrictions constraining the airlines, encourage competition, and ultimately abolish the Civil Aeronautics Board. Pub.L. No. 95–504, 92 Stat. 1705 (1978) (codified as amended in scattered sections of 49 U.S.C.). To prevent the states from imposing their own regulations on the airlines, Congress included a preemption clause forbidding the states from regulating the airlines' rates, routes, or services. Id. § 4(a), 92 Stat. at 1707–08 (codified at 49 U.S.C.App. § 1305(a)(1)). When Congress later recodified Title 49, it relocated the preemptive language of the Airline Deregulation Act to 49 U.S.C. § 41713, and rephrased the provision slightly to reflect stylistic changes. Pub.L. No. 103–272, 108 Stat. 745 (1994).

In relevant part, the final preemptive language reads: “a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier....” 49 U.S.C. § 41713(b)(1). It is the interpretation of this preemptive language that lies at the heart of these two putative class actions: Mitchell v. U.S. Airways, Inc. and Brown v. United Air Lines, Inc.

A. Background

1. Mitchell v. U.S. Airways, Inc.

Mitchell v. U.S. Airways, Inc. is a putative class action brought on behalf of skycaps working at airports throughout the United States (“ Mitchell Skycaps”) for U.S. Airways, Inc. (“US Airways”). The Mitchell Skycaps assert seven counts: (1) violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ; (2) tortious interference with the implied contractual or advantageous relationship between the Mitchell Skycaps and U.S. Airways's customers; (3) unjust enrichment; (4) violation of Massachusetts General Law, chapter 149, section 152A (the “Massachusetts Tip Law”); (5) tortious interference with the contractual or advantageous relationship between the Mitchell Skycaps and the contractor companies who employed them; (6) termination in violation of public policy; and (7) retaliation in violation of Massachusetts General Law, chapter 149, section 148A. U.S. Airways has submitted three motions presently before the Court: (1) a motion to dismiss Counts Two through Seven of the Fourth Amended Complaint on the theory that all of the claims are preempted by Section 105 of the Airline Deregulation Act of 1978 (the “Airline Deregulation Act”), and on the additional theory that the Mitchell Skycaps lack standing as to Counts Five through Seven; (2) a motion for summary judgment on Count One of the Fourth Amended Complaint on the theory that no violation of the Fair Labor Standards Act occurred; and (3) a motion to dismiss Counts Five and Six of the Fourth Amended Complaint on the theory that the claims are preempted by the Railway Labor Act.

This memorandum addresses U.S. Airways's motion to dismiss on the ground of preemption by the Airline Deregulation Act only as to Counts Two, Three, Four, and Seven, and U.S. Airways's motion for summary judgment on Count One. The Court does not rule in this memorandum on U.S. Airways' remaining motions regarding Counts Five and Six.

a. Initial Proceedings

The Mitchell Skycaps commenced this action against U.S. Airways and Prime Flight Aviation Services, Inc. (“Prime Flight”) on April 11, 2008. Compl., ECF No. 1. On May 15, 2008, the Mitchell Skycaps amended their complaint as of right, dropping Prime Flight as a defendant and replacing the Fair Labor Standards Act minimum wage claim in Count One with a Massachusetts Tip Law claim. Am. Compl., ECF No. 4. On June 30, 2008, the Mitchell Skycaps filed the Second Amended Complaint, with U.S. Airways's assent, which again joined Prime Flight as a defendant and reasserted the Fair Labor Standards Act minimum wage claim. Second Am. Compl., ECF No. 11.

On August 18, 2008, U.S. Airways filed a motion to dismiss the Second Amended Complaint. Def. U.S. Airways's Mot. Dismiss, ECF No. 22. The Mitchell Skycaps filed a motion again to amend their complaint, proposing twelve additional plaintiffs, some of whom were employed by Prime Flight and others of whom were employed by G2 Secure Staff, LLC (“G2”). Pls.' Mot. Leave File Third Am. Compl., ECF No. 24. In September 2008, U.S. Airways withdrew its motion to dismiss, Def. U.S. Airways's Assented-to Mot. Withdraw Mot. Dismiss Second Am. Compl., ECF No. 38, and the Mitchell Skycaps filed their assented-to Third Amended Complaint on September 23, 2008, Third Am. Compl., ECF No. 33. Prime Flight filed its answer on October 14, 2008. Answer Prime Flight Aviation Services Pls.' Third Am. Compl., ECF No. 46. On October 30, 2009, the Mitchell Skycaps again filed a motion to amend their complaint, Pls.' Mot. Leave File Fourth Am. Compl., ECF No. 112, which motion was granted by the court on September 8, 2010, Electronic Order, Sept. 8, 2010. The Mitchell Skycaps filed their Fourth Amended Complaint (“ Mitchell Complaint”), the operative pleading, on June 24, 2011, making changes to reflect a settlement with Prime Flight and adding an additional claim for tortious interference. Fourth Am. Compl. (“ Mitchell Compl.”), ECF No. 137.

b. Partial Motion to Dismiss Based on Preemption by the Airline Deregulation Act

On October 10, 2008, U.S. Airways filed a partial motion to dismiss the Mitchell Skycaps' Third Amended Complaint, arguing that Counts Two, Three, Four, Seven and Eight are preempted by the Airline Deregulation Act, and that the Mitchell Skycaps' retaliation and wrongful termination claims, Counts Two and Three of the Third Amended Complaint, also fail as matter of law. Def. U.S. Airways's Partial Mot. Dismiss, ECF No. 41; Def. U.S. Airways's Mem. Law Supp. Partial Mot. Dismiss Pls.' Third Am. Compl. 4, ECF No. 42. The Mitchell Skycaps opposed the motion, Pls.' Opp'n Def. U.S. Airways's Mot. Dismiss, ECF No. 50, and U.S. Airways filed a reply, Def. U.S. Airways's Reply Mem. Further Supp. Partial Mot. Dismiss Pls.' Third Am. Compl., ECF No. 59. The court granted the motion on September 22, 2009, dismissing Counts Two, Three, Four, Seven and Eight. Electronic Order, Sept. 22, 2009. The Mitchell Skycaps filed a motion for reconsideration on October 30, 2009, Pls.' Mot. Recons. Court's Decision Granting Def. U.S. Airways's Mot. Dismiss, ECF No. 113, U.S. Airways opposed the motion, Opp'n Pls.' Mot. Recons. Court's Decision Granting U.S. Airways's Partial Mot. Dismiss, ECF No. 116, the Mitchell Skycaps filed a reply, Pls.' Reply Br. Supp. (1) Mot. Recons. Court's Decision Granting Def. U.S. Airways's Mot. Dismiss (2) Mot. Leave File Fourth Am. Compl., ECF No. 126, and U.S. Airways filed a surreply, U.S. Airways's Reply Pls.' Jan. 19, 2010 Submission Addressing (1) Pls.' Mot. Recons. Court's Ruling Granting U.S. Airways's Partial Mot. Dismiss (2) Pls.' Mot. File Fourth Am. Compl., ECF No. 130. On September 8, 2010, 2010 WL 3522440, the court granted the Mitchell Skycaps' motion to reconsider and vacated its previous order which had granted U.S. Airways's partial motion to dismiss. Mem. Order, ECF No. 131.

On October 12, 2010, the parties filed a joint motion to stay the proceedings pending the First Circuit's decision in the appeal of DiFiore v. American Airlines, Inc., 688 F.Supp.2d 15 (D.Mass.2009). Joint Mot. Stay Proceedings, ECF No. 136. The court granted the motion the following day. Electronic Order, Oct. 13, 2010.

The stay was lifted in June 2011, and U.S. Airways again moved to dismiss Counts Two through Seven of the Mitchell Complaint on the grounds of preemption under the Airline Deregulation Act, lack of standing to bring the retaliation claims, and statutory preclusion of the common law retaliation claims. Def. U.S. Airways's Partial Mot. Dismiss Pls.' Fourth Am. Compl., ECF No. 141; Mem. Points Authorities Supp. U.S. Airways Inc.'s Partial Mot. Dismiss Fourth Am. Compl. (“ Mitchell Def.'s Mem. Mot. Dismiss (ADA Preemption)”), ECF No. 142. The Mitchell Skycaps opposed the motion, Pls.' Opp'n Def. U.S. Airways Inc.'s Mot. Dismiss (“ Mitchell Pls.' Opp'n Mot. Dismiss (ADA Preemption)”), ECF No. 144, U.S. Airways filed a reply, Reply Supp. Def. U.S. Airways's Partial Mot. Dismiss Fourth Am. Compl., ECF No. 145, and the Mitchell Skycaps filed a surreply, Pls.' Surreply Opp'n Def. U.S. Airways, Inc.'s Mot. Dismiss (“ Mitchell Pls.' Surreply (ADA Preemption)”), ECF No. 146. This Court heard oral argument on the motion on November 16, 2011, and took the matter under advisement.

c. Motion for Summary Judgment of Count One Under the Fair Labor Standards Act

On October 29, 2009, U.S. Airways moved for summary judgment on Count One of the Third Amended Complaint.

Mot. Summ. J. U.S. Airways's Incorporated Mem. Law (“ Mitchell Def.'s Mot. Summ. J.”), ECF No. 110. The Mitchell Skycaps opposed the motion, Pls.' Opp'n Def. U.S. Airways's Mot. Summ. J. (“ Mitchell Pls.' Opp'n Mot. Summ. J.”), ECF No. 118, and U.S. Airways filed a reply, Reply Supp. U.S. Airways's Mot. Summ. J. (“ Mitchell Def.'s Reply Summ. J.”), ECF No. 123. The Mitchell Skycaps filed an assented-to motion to stay the filing of their surreply brief for four weeks, as the Mitchell Skycaps were in settlement discussions with G2. Pls.' Assented-to Mot. Stay Surreply Opp'n Def. U.S. Airways's Mot. Summ. J. Count I Compl., ECF No. 127. The settlement talks with G2 apparently failed, as there is no further mention of settlement with G2 in the record, and the Mitchell Skycaps never filed a surreply. The court denied U.S. Airways's motion without prejudice on September 8, 2010, in light of its reconsideration of U.S. Airways's partial motion to dismiss based on Airline Deregulation Act preemption, and its allowance of the Mitchell Skycaps' motion to file the Fourth Amended Complaint. Electronic Order, Sept. 8, 2010.

On June 29, 2011, U.S. Airways renewed its previously filed and fully briefed motion for summary judgment. Def. U.S. Airways's Renewed Mot. Summ. J., ECF No. 140. On July 7, 2011, the Mitchell Skycaps renewed their opposition to the motion, relying on their previously filed brief.

Pls.' Renewed Opp'n Def. U.S. Airways's Mot. Summ. J., ECF No. 143. This Court heard oral argument on the motion on November 16, 2011, and took the matter under advisement.

d. Partial Motion to Dismiss Based on Preemption Under the Railway Labor Act

On October 19, 2011, U.S. Airways moved to dismiss Counts Five and Six of the Mitchell Complaint on the theory that the claims are preempted under the Railway Labor Act. Def. U.S. Airways's Partial Mot. Dismiss Pls.' Fourth Am. Compl., ECF No. 154; Mem. Points Authorities Supp. U.S. Airways's Partial Mot. Dismiss Fourth Am. Compl., ECF No. 155. The Mitchell Skycaps opposed the motion on November 7, 2011. Pls.' Opp'n Def.'s Partial Mot. Dismiss, ECF No. 159. The Court heard oral argument on the motion on November 16, 2011, and took the matter under advisement.

e. Settlement Between Prime Flight and the Mitchell Skycaps Employed by Prime Flight

After reaching a proposed settlement with Prime Flight in the amount of $750,000.00, the Mitchell Skycaps filed a motion for preliminary approval of the settlement and permission to send notices to class members on June 17, 2009, Pls.' Mot. Prelim. Approval Class Action Settlement Permission Send Notices Class Members, ECF No. 73, which motion was granted by the court after hearing oral argument on the matter, Electronic Order, June 23, 2009. Some of the putative class members objected to the settlement, Objection Class Action Settlement Notice Intention Appear Corey Eaddy, Timothy Robinson, Marshal Glass, Clarence Glaster, Anthony Walter, ECF No. 91, and others moved to intervene and set aside the court's preliminary approval, Mot. Intervene Class Action Settlement Set Aside Court's Order Granting Prelim. Approval Class Action Settlement, ECF No. 77. The court denied the motion to intervene, Electronic Order, Sept. 22, 2009, and issued a final approval of the settlement, Electronic Order, Sept. 24, 2009.

The settlement resulted in the dismissal of the minimum wage violation claims and retaliatory discharge claims, specifically Counts One, Five, Six, Seven and Eight of the Third Amended Complaint, brought by the Mitchell Skycaps employed by Prime Flight (the “Prime Flight Mitchell Skycaps”). Mitchell Pls.' Mot. Approval Settlement 2. The settlement precluded any further claims by the Prime Flight Mitchell Skycaps against U.S. Airways that require U.S. Airways to be considered the Mitchell Skycaps' employer or joint employer. Id. The Prime Flight Mitchell Skycaps remain in the lawsuit against U.S. Airways as to Count Two (tortious interference with contractual or advantageous relations with U.S. Airways passengers), Count Three (unjust enrichment), and Count Five (tortious interference with contractual or advantageous relations with their contractor employer). Id. at 3. The settlement has no effect on the Mitchell Skycaps employed by G2. See id. at 2.

The parties filed a joint motion to direct entry of final judgment as to the settlement approval and the denial of the motion to intervene, Agreed Mot. Direct Entry Final J. Pursuant Rule 54(b), ECF No. 103, and the court entered a final judgment on November 10, 2009, Final Judgment, ECF No. 115. This order ended the litigation as to Prime Flight

and enabled the Prime Flight Mitchell Skycaps to receive payment under the settlement within forty-five days of the court's order becoming final and not subject to appeal. Electronic Order, Nov. 2, 2009.

f. Class Certification

On November 14, 2008, the Mitchell Skycaps filed a motion for class certification of the claims of tortious interference with contractual or advantageous relations with U.S. Airways customers (Count Two of the Mitchell Complaint) and unjust enrichment (Count Three of the Mitchell Complaint). Pls.' Mot. Class Certification Pursuant Fed.R.Civ.P. 23 Mem. Supp. Thereof, ECF No. 53. Prime Flight opposed the motion. Def. Prime Flight Aviation Services, Inc.'s Resp. Opp'n Pl.'s Mot. Class Certification, ECF No. 62. US Airways filed a cross-motion to deny without prejudice or stay the Mitchell Skycaps' motion for class certification pending the court's ruling on U.S. Airways's partial motion to dismiss those claims on the ground of preemption under the Airline Deregulation Act. U.S. Airways's Cross–Mot. Stay Pls.' Mot. Class Certification Pursuant Fed.R.Civ.P. 23, Alternatively Req. Deny Such Mot. Without Prejudice, ECF No. 63. On September 28, 2009, the court issued an order holding the motion for class certification moot, as the court had at that point dismissed the relevant claims pursuant to U.S. Airways's partial motion to dismiss. Electronic Order, Sept. 28, 2009. The court stated that the motion could be re-filed if the court granted the Mitchell Skycaps' motion for reconsideration. Id. No subsequent motions have been filed to certify a class.

g. Motion To Consolidate

On July 21, 2011, the Mitchell Skycaps filed a motion to consolidate their case with DiFiore v. American Airlines, Civil Action No. 07–10070 (D.Mass.), and Overka v. American Airlines, Civil Action No. 08–10686 (D.Mass.). Pls.' Mot. Consolidate Case With Similar Cases Filed Against American Airlines, ECF No. 147. US Airways opposed the motion, U.S. Airways's Opp'n Pls.' Mot. Consolidate, ECF No. 148, and the Mitchell Skycaps filed a reply, Pls.' Reply Supp. Mot. Consolidate, ECF No. 152. This Court entertained argument related to the motion on October 3, 2011, and denied the motion from the bench.

2. Brown v. United Air Lines, Inc.

Brown v. United Air Lines, Inc. is a putative class action brought on behalf of skycaps working at airports throughout the United States (“ Brown Skycaps”) for United Air Lines, Inc. (“United Air Lines”). The Brown Skycaps assert three counts: (1) violation of the Massachusetts Tip Law, Massachusetts General Law chapter 149, section 152A; (2) tortious interference with the implied contractual or advantageous relationship between the Brown Skycaps and United Air Lines customers; and (3) unjust enrichment. United Air Lines moved to dismiss the Amended Complaint on the ground that the claims are preempted by the Airline Deregulation Act.

a. Complaints

The Brown Skycaps commenced this action against United Air Lines on April 23, 2008. Class Action Compl., ECF No. 1. The Brown Skycaps filed an amended complaint (“ Brown Complaint”) as of right on August 11, 2008. Am. Class Action Compl. (“ Brown Compl.”), ECF No. 10.

b. Motion to Dismiss Based on Preemption Under the Airline Deregulation Act

On August 13, 2008, United Air Lines moved to dismiss the Brown Complaint on the ground that the claims were preempted by the Airline Deregulation Act. Def. United Air Lines Inc.'s Mot. Dismiss, ECF No. 12. The Brown Skycaps opposed the motion, Pls.' Opp'n Def.'s Mot. Dismiss, ECF No. 38, and United Air Lines filed a reply, Def.'s Reply Mem. Supp. Mot. Dismiss, ECF No. 41. On March 26, 2009, the court denied the motion to dismiss, citing the authority of DiFiore v. American Airlines, Inc., 483 F.Supp.2d 121 (D.Mass.2007). Electronic Order, Mar. 26, 2009.

On April 7, 2009, United Air Lines filed a motion for reconsideration of the court's order denying United Air Lines' motion to dismiss. Def.'s Mot. Recons., Alternative Interlocutory Appeal From, Order Denying Def.'s Mot. Dismiss, Stay Proceedings, ECF No. 44. The Brown Skycaps opposed the motion. Pls.' Opp'n Def.'s Mot. Recons., Alternative Interlocutory Appeal From, Order Denying Def.'s Mot. Dismiss, Stay Proceedings, ECF No. 47. On September 22, 2009, the court granted United Air Lines's motion for reconsideration and, in so doing, granted United Air Lines's motion to dismiss the Brown Complaint. Mem. Order Def.'s Mot. Recons., Alternative Interlocutory Appeal From, Order Denying Def.'s Mot. Dismiss, Stay Proceedings, ECF No. 60.

On October 6, 2009, the Brown Skycaps filed a motion for reconsideration of the court's order dismissing the case. Pls.' Mot. Recons. Court's Decision Granting Def.'s Mot. Dismiss, ECF No. 62. United Air Lines opposed the motion, Def.'s Opp'n Pls.' Mot. Recons. Order Granting Mot. Dismiss, ECF No. 63, the Brown Skycaps filed a reply, Pls.' Reply Br. Supp. Mot. Recons. Court's Decision Granting Def.'s Mot. Dismiss, ECF No. 65, and United Air Lines filed a surreply, Def.'s Surreply Opp'n Pls.' Mot. Recons., ECF No. 67. On September 8, 2010, the court granted the Brown Skycaps' motion to reconsider, and reopened the case. Mem. Order, ECF No. 69. The parties filed a joint motion to stay the proceedings pending the First Circuit's decision in the appeal of DiFiore, 688 F.Supp.2d 15. Joint Mot. Stay Proceedings Pending First Circuit's Decision DiFiore v. American Airlines, ECF No. 70. The court granted the motion and imposed a stay on September 21, 2010. Electronic Order, Sept. 21, 2010.

On June 3, 2011, following the First Circuit's decision in DiFiore v. American Airlines, Inc., 646 F.3d 81 (1st Cir.2011), United Air Lines renewed its previous motion to dismiss on the ground that the Brown Skycaps' claims are preempted by the Airline Deregulation Act. Renewed Mot. Dismiss, ECF No. 76; Mem. Law Supp. Renewed Mot. Dismiss (“ Brown Def.'s Mem. Mot. Dismiss”), ECF No. 77. The Brown Skycaps filed an opposition, Pls.' Opp'n Def.'s Renewed Mot. Dismiss (“ Brown Pls.' Opp'n Mot. Dismiss”), ECF No. 78, United Air Lines filed a reply, Reply Supp. Renewed Mot. Dismiss, ECF No. 80, and the Brown Skycaps filed a surreply, Pls.' Surreply Opp'n Def.'s Renewed Mot. Dismiss (“ Brown Pls.' Surreply”), ECF No. 82. This Court heard oral argument on the motion on November 16, 2011, and took the matter under advisement.

c. Class Certification

On August 11, 2008, the Brown Skycaps moved to certify a class for the claims of tortious interference with contractual or advantageous relations with United Air Lines customers (Count Two) and unjust enrichment (Count Three). Pls.' Mot. Class Certification Pursuant Fed.R.Civ.P. 23 Mem. Supp. Thereof, ECF No. 9. United Air Lines filed a motion to stay the Brown Skycaps' motion for class certification pending the court's ruling on United Air Lines's motion to dismiss. Def. United Air Line [sic] Inc.'s Mot. Stay Pls.' Mot. Class Certification Pursuant Fed.R.Civ.P. 23, ECF No. 15. The court denied the motion to stay, Electronic Order, Mar. 26, 2009, and United Air Lines filed an opposition to the motion for class certification on May 22, 2009, Def. United Air Lines, Inc.'s Opp'n Pls.' Mot. Class Certification Pursuant Fed.R.Civ.P. 23, ECF No. 48. The Brown Skycaps filed a reply, Pls.' Reply Br. Supp. Pls.' Mot. Class Certification, ECF No. 53, and United Air Lines filed a surreply, Def. United Air Lines, Inc.'s Surreply Further Supp. Opp'n Pls.' Mot. Class Certification, ECF No. 54.

After hearing oral argument and taking the matter under advisement on June 29, 2009, the court ordered the parties to brief the various states' common law provisions regarding tortious interference and unjust enrichment, including the essential elements of each claim, limiting doctrines, damages, and affirmative defenses. Order, ECF No. 52. The Brown Skycaps filed their brief on July 7, 2009, Pls.' Supplemental Mem. Concerning Similarities Between State Common Law Claims Proposed Jury Instructions, ECF No. 55, and United Air Lines filed its brief on July 14, 2009, Def. United Air Lines, Inc.'s Opp'n Pls.' Supplemental Mem. Concerning Similarities Between State Common Law Claims Proposed Jury Instructions, ECF No. 56. The court held the motion for class certification moot as of September 22, 2009, when the court granted United Air Lines's motion to dismiss. Order Granting Def.'s Mot. Dismiss 10. No further motion for class certification was filed after the case was reopened in September 2010.

d. Motion To Consolidate

On July 21, 2011, the Brown Skycaps filed a motion to consolidate with DiFiore v. American Airlines, Civil Action No. 07–10070 (D.Mass.), and Overka v. American Airlines, Civil Action No. 08–10686 (D.Mass.). Pls.' Mot. Consolidate Case With Similar Cases Filed Against American Airlines, ECF No. 83. United Air Lines opposed the motion on August 4, 2011, Opp'n Mot. Consolidate, ECF No. 84, the Brown Skycaps filed a reply, Pls.' Reply Supp. Mot. Consolidate Case With Similar Cases Filed Against American Airlines, ECF No. 90, and United Air Lines filed a surreply, Surreply Opp'n Mot. Consolidate, ECF No. 88. This Court entertained argument related to the motion on October 3, 2011, and denied the motion from the bench.

II. ANALYSIS

A. Standard of Review

1. Motions to Dismiss

Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A mere recital of the legal elements supported only by conclusory statements is not sufficient to state a cause of action. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009).

2. Motion for Summary Judgment

Summary judgment is proper where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue of fact is “genuine” if there exists a sufficient evidentiary basis on which the trier of fact could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it will affect the outcome of the case under the applicable law. Id. The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Save as to facts admitted by both parties, the court must disregard all evidence—even if unopposed—which the jury is free to reject, i.e., all evidence upon which a party bears the burden of proof. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Thus, summary judgment may be granted when a fair-minded jury could reach only one conclusion: in favor of the moving party.

B. Mitchell Partial Motion to Dismiss and Brown Motion to Dismiss Based on Airline Deregulation Act Preemption

1. Facts as Alleged

The Skycaps

traditionally received most of their compensation from tips given to them by airline passengers. Brown Compl. ¶¶ 1, 23; Mitchell Compl. ¶¶ 1, 25. In the last decade, airlines across the country, including United Air Lines in 2005 and U.S. Airways in 2007, began assessing a $2.00 per bag charge for curbside check-in, and this charge was retained by the airlines and their contractor companies. Brown Compl. ¶¶ 1, 24, 27; Mitchell Compl. ¶¶ 1, 27, 29. As a result, the Skycaps' compensation has decreased dramatically, as some passengers thought the $2.00 charge was a mandatory gratuity, and others declined voluntarily to tip in addition to paying the $2.00 charge. Brown Compl. ¶¶ 1, 28, 29; Mitchell Compl. ¶¶ 1, 30, 31. United Air Lines and U.S. Airways (collectively the “Airlines”) did not adequately notify passengers that this charge was not a gratuity. Brown Compl. ¶ 30; Mitchell Compl. ¶ 32.

The Mitchell Complaint further alleges that U.S. Airways intentionally and improperly misled the passengers to think the charge was a mandatory tip for the Mitchell Skycaps by establishing the fee in an amount typically given as a tip, and by requiring the fee to be paid in cash and collected by the Mitchell Skycaps. Mitchell Compl. ¶ 33.

2. Preemption Under the Airline Deregulation Act

The Airlines move to dismiss the claims in which the Skycaps allege (1) a violation of the Massachusetts Tip Law, Massachusetts General Laws chapter 149, section 152A;

(2) tortious interference with implied contractual or advantageous relations between the Skycaps and the Airlines's customers;

and (3) unjust enrichment.

Brown Def.'s Mem. Mot. Dismiss 1; Mitchell Def.'s Mem. Mot. Dismiss (ADA Preemption) 1. The Airlines argue that the preemptive clause of the Airline Deregulation Act, 49 U.S.C. § 41713(b)(1), precludes the Skycaps' statutory and common law claims for relief.

The Skycaps concede that the First Circuit's recent decision in DiFiore, 646 F.3d 81, controls their statutory claim under the Massachusetts Tip Law and holds it to be preempted by the Airline Deregulation Act. Brown Pls.' Opp'n Mot. Dismiss 1 (“[T]he First Circuit's ruling specifically found the plaintiffs' statutory Tips Law claims to be preempted.”); Mitchell Pls.' Opp'n Mot. Dismiss (ADA Preemption) 1 n. 1 (“Plaintiffs recognize that Count IV, the claim under the Massachusetts Tips Law, is preempted under the First Circuit's decision in DiFiore ....”).

The Skycaps argue, however, that their common law claims of tortious interference and unjust enrichment are outside the scope of DiFiore, and indeed outside the reach of Airline Deregulation Act preemption. Brown Pls.' Opp'n Mot. Dismiss 2–5; Mitchell Pls.' Opp'n Mot. Dismiss (ADA Preemption) 2–7. They assert that the preemption clause of the Airline Deregulation Act precludes only positive enactments by the states, not common law damages actions. Brown Pls.' Opp'n Mot. Dismiss 2; Mitchell Pls.' Opp'n Mot. Dismiss (ADA Premption) 2. The Skycaps further argue that implications embedded in the First Circuit's DiFiore opinion suggest that the Airline Deregulation Act does not preclude their common law claims. Brown Pls.' Opp'n Mot. Dismiss 2–3; Mitchell Pls.' Opp'n Mot. Dismiss (ADA Preemption) 3–7.

a. The Preemptive Scope of “Law, Regulation, or Other Provision Having the Force and Effect of Law”

The United States Constitution mandates that the laws of the United States “shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Federal preemption of state action generally occurs in one of three ways: (1) express preemption, as when Congress includes explicit preemption language in an enactment; (2) field preemption, as when Congress's legislative scheme is so pervasive and broad that it implicitly preempts state action; and (3) conflict preemption, as when state action directly conflicts with a congressional enactment, or “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Weaver's Cove Energy, LLC v. Rhode Island Coastal Res. Mgmt. Council, 589 F.3d 458, 472–73 (1st Cir.2009).

(1) Plain Language Analysis

Because Congress provided an express preemption provision in the Airline Deregulation Act, the Court's initial task is to “identify the domain expressly pre-empted.” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001). The Court ought give effect to the plain language of the preemption clause “unless there is good reason to believe Congress intended the language to have some more restrictive meaning.” Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 521–22, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)).

The plain language at issue in the Airline Deregulation Act is: “[A] State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law.” 49 U.S.C. § 41713(b)(1). In order to “give effect ... to every clause and word of [the] statute,” Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 27 L.Ed. 431 (1883), the Court will parse the language in two parts: first, “a State ... may not enact or enforce a law [or] regulation,” and second, “or other provision having the force and effect of law.”

As to the first part of the preemption clause, this Court is instructed by the Supreme Court's decision in Sprietsma v. Mercury Marine, 537 U.S. 51, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002). In Sprietsma, the Supreme Court unanimously

concluded that the preemptive language in the Federal Boat Safety Act, “a State may not establish, continue in effect, or enforce a law or regulation,” did not encompass common law claims, but contemplated only positive enactments. Id. at 58–59, 63, 123 S.Ct. 518. The Supreme Court noted that the article, “a,” preceding “law or regulation” implied a discreteness evinced in statutes and regulations that is absent in the common law. Id. at 63, 123 S.Ct. 518. The Supreme Court further explained that “a word is known by the company it keeps,” and that if “law” were read so broadly as to encompass common law, it would also encompass regulation, making the express reference to “regulation” superfluous. Id. (citations omitted).

The preemption clause from Sprietsma is substantively the same as that of the first part of the Airline Deregulation Act's preemption clause. As such, the clause, “a State ... may not enact or enforce a law [or] regulation,” preempts only positive state enactments, not common law actions. See Sprietsma, 537 U.S. at 58–59, 123 S.Ct. 518.

Unlike the preemption clause at issue in Sprietsma, however, the preemptive language of the Airline Deregulation Act is more expansive. The Airline Deregulation Act also precludes “other provision[s] having the force and effect of law.” 49 U.S.C. § 41713(b)(1). The Supreme Court addressed the clause, “having the force and effect of law,” in dicta in American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995), and concluded that it “is most naturally read to ‘refe[r] to binding standards of conduct that operate irrespective of any private agreement.’ ” Id. at 229 n. 5, 115 S.Ct. 817 (alteration in original) (quoting the United States Amicus Curiae brief filed in the case). Common law, defined in Black's Law Dictionary as “[t]he body of law derived from judicial decisions, rather than from statutes or constitutions,” Black's Law Dictionary 293 (8th ed.2004), is indeed an externally-imposed standard of conduct which is binding on the parties to the lawsuit. E.g., Harris v. Ford Motor Co., 110 F.3d 1410, 1414 (9th Cir.1997) (nothing that “common law claims can impose requirements equivalent to those written by a state legislature or regulatory agency”); Matthew J. Kelly, Comment, Federal Preemption By the Airline Deregulation Act of 1978: How Do State Tort Claims Fare?, 49 Cath. U.L.Rev. 873, 893–94 (2000) (“[T]he imposition of state-created duties upon airlines, through judicially fashioned damage awards, amounts to state enforcement of substantive standards of state law, having the effect of directing the airlines to conform affirmatively to those standards.” (footnotes and citations omitted)).

Courts must “give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.” Montclair, 107 U.S. at 152, 2 S.Ct. 391. In particular, courts ought “assume that Congress used two terms because it intended each term to have a particular, nonsuperfluous meaning.” Bailey v. United States, 516 U.S. 137, 146, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Under these principles of statutory construction, if “law [or] regulation” is interpreted to denote a positive enactment, “other provision having the force and effect of law” ought be read to have a separate meaning, i.e., a common law remedy.

(2) Legislative History Analysis

The legislative history of the Airline Deregulation Act further buttresses this Court's interpretation that common law remedies categorically fall within its preclusive scope. The clause originally read: “No State ... shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law....” 49 U.S.C.App. § 1305(a)(1) (emphasis added). It is difficult to imagine why Congress would include the words “rule” and “standard” if it intended to denote only positive state enactments. See Drake v. Laboratory Corp. of Am. Holdings, 458 F.3d 48, 59 (2d Cir.2006) (concluding in the context of a different statute that the words “rule,” “order,” and “standard,” in addition to the words “law” and “regulation,” “were included to indicate that the regulations may preempt judge-made rules, orders, and standards, as well as statutes and administrative rules and regulations”).

When Congress recodified Title 49 in 1994, it revised the language to read: “[A] State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law....” Id. § 41713(b)(1). The House Report explained that the changes were part of a larger effort toward uniform style and contemporary language usage in Title 49. SeeH.R.Rep. No. 103–180, at 1 (1994), reprinted in 1994 U.S.C.C.A.N. 818 (stating that Congress's purpose was “to revise, codify and enact without substantive change certain general and permanent laws related to transportation”); id. at 3 (“In making changes in the language, precautions have been taken against making substantive changes in the law.”); id. at 5 (“As in other codification bills enacting titles of the United States Code into positive law, this bill makes no substantive change in the law.”). Given these straightforward legislative statements, it appears Congress intended the preemptive language “law, regulation, or other provision having the force and effect of law” to have the same legal effect as it did when the clause included the words “rule” and “standard.”

(3) Saving Clause Analysis

In recent years, the Supreme Court has shown a disinclination to hold state common law claims expressly precluded by a federal preemption clause where Congress has also included a saving clause in the statute preserving common law liability. In Geier v. American Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000), the Supreme Court held that the language, “no State ... shall have any authority either to establish, or to continue in effect ... any safety standard,” id. at 867, 120 S.Ct. 1913, did not preempt common law actions—even though a broad reading of the clause suggested preemption—due to the existence of a saving clause stipulating that “[c]ompliance” with a federal safety standard “does not exempt any person from any liability under common law,” id. at 868, 120 S.Ct. 1913 (alteration in original).

The Supreme Court explained that the very presence of the saving clause “assumes that there are some significant number of common-law liability cases to save.” Id. The Supreme Court further determined that the preemptive language in the statute permitted a narrow reading that excluded common law, and that in light of the saving clause, the preemption clause “must be so read.” Id.;see also Williamson v. Mazda Motor of Am., Inc., –––U.S. ––––, 131 S.Ct. 1131, 1136, 179 L.Ed.2d 75 (2011) (applying the Geier framework in holding that the preemptive language did not expressly preclude common law claims); Sprietsma, 537 U.S. at 63, 123 S.Ct. 518 (stating that in light of Geier, the existence of a saving clause supported the Supreme Court's narrow reading of the preemption clause). The Geier Court went on to analyze the tort claim under ordinary conflict preemption principles to determine whether it “ ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Geier, 529 U.S. at 873, 120 S.Ct. 1913 (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). Under Geier and its progeny, the Supreme Court has thus demonstrated a preference in the presence of a saving clause to hold common law claims not expressly precluded as a whole, but rather impliedly precluded on an individual basis should they frustrate the accomplishment of the federal law.

On the other hand, the Supreme Court historically has given little weight to the saving clause of the Airline Deregulation Act. In Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384–85, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), the Supreme Court applied the canon of statutory construction that “the specific governs the general,” and rejected the petitioners' argument that the saving clause effected the scope of preemption under the Airline Deregulation Act. The Supreme Court noted that the saving clause was a “relic of the pre-ADA/no pre-emption regime”

and asserted, “we do not believe Congress intended to undermine this carefully drawn statute through a general saving clause.” Id. at 385, 112 S.Ct. 2031.

Three years later, the Supreme Court's treatment of the Airline Deregulation Act saving clause shifted slightly. While in Morales, id., the Supreme Court essentially disregarded the saving clause in light of the preemption clause, in Wolens, 513 U.S. at 232, 115 S.Ct. 817, the Supreme Court noted a way to reconcile the clauses. Yet it seemed to do so as more of an afterthought than an integral part of the preemption analysis. Id. In dicta, the Supreme Court stated that its holding that the Airline Deregulation Act permits parties to bring breach of contract claims against the airlines “also makes sense of Congress' retention of the [Federal Aviation Act's] saving clause.” Id. The Supreme Court explained that the preemption clause, read together with the saving clause, prohibited states from imposing their own substantive standards on the airlines, but preserved individuals' rights to enforce self-imposed obligations breached by the airlines.

Id. at 232–33, 115 S.Ct. 817. But in contrast to Geier, where reconciling the saving clause and preemption clause was central to determining the scope of express preemption, in Wolens, the saving clause analysis appeared peripheral.

A principled analysis of the saving clause of the Airline Deregulation Act therefore both ought adhere to the axiom that the existence of a saving clause assumes that there are some number of claims to save, and ought ensure that the preemption language at issue permits the narrow definition ascribed to it. See Geier, 529 U.S. at 868, 120 S.Ct. 1913. Yet the analysis must also consider the limited weight the Supreme Court historically has given to the saving clause of the Airline Deregulation Act, as those cases comprise the controlling precedent. See Morales, 504 U.S. at 385, 112 S.Ct. 2031;Wolens, 513 U.S. at 232, 115 S.Ct. 817.

The saving clause of the Airline Deregulation Act reads: “A remedy under this part is in addition to any other remedies provided by law.” 49 U.S.C. § 40120(c). While this language does not explicitly carve out common law remedies, its antecedent version did precisely that: “Nothing contained in this [Act] shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this [Act] are in addition to such remedies.” 49 U.S.C.App. § 1506 (1976). The House Report stated that the amendments to the language of the saving clause were stylistic only and not meant to have any substantive effect. 1994 U.S.C.C.A.N. 818, 820. Thus, the latter version of the saving clause ought be given the same effect as the earlier version, i.e. explicitly preserving common law remedies.

And the very presence of this saving clause in the Airline Deregulation Act “assumes that there are some significant number of common-law liability cases to save.” Geier, 529 U.S. at 868, 120 S.Ct. 1913.

Unlike the preemption clause at issue in Geier, however, the preemptive language of the Airline Deregulation Act does not permit a reading so narrow as to carve out all common law remedies from its scope. In Geier, the Supreme Court asserted that the language, “standard,” could be read narrowly to exclude common law actions. 529 U.S. at 868, 120 S.Ct. 1913. In contrast, the preemptive language of the Airline Deregulation Act reaches any “law, regulation, or other provision having the force and effect of law.” 49 U.S.C. § 41713(b)(1).

As discussed supra, commonplace statutory principles mandate that every clause and word be given effect so that nothing is deemed mere surplusage. See, e.g., Montclair, 107 U.S. at 152, 2 S.Ct. 391. If the phrase, “law [or] regulation,” is interpreted to denote positive state enactments, there is no other meaning that could be ascribed to “other provision having the force and effect of law” except for common law remedies. In order to hold that the saving clause carves out all common law remedies, this Court would have to disregard an entire statutory clause, or hold it to be redundant of the prior clause. Such a reading is not permitted by the preemptive language of the Airline Deregulation Act. See generally E. Travis Ramey, Note, Congress Hatches the Egg: Justice Thomas's Textual Mandate Test for Preemption, 62 Ala. L.Rev. 1119, 1132 (2011) (reviewing Justice Thomas's opinions and voting record in the context of reconciling preemption and saving clauses, and concluding that “conflicting preemption and savings clauses should be resolved through resort to the text of the statute itself, with the provisions being reconciled in the same manner as any other conflicting provisions: through application of the ordinary rules of statutory construction”).

That is not to say the saving clause therefore should be deemed meaningless. There appears to be a middle ground which would give effect to the saving clause while fairly construing the express preemptive language in the statute, and heed the limited weight historically given to the Airline Deregulation Act saving clause by the Supreme Court.

The memorandum has, until this point, sought to reconcile the saving clause only with regard to the first part of the preemption clause: “law, regulation, or other provision having the force and effect of law.” 49 U.S.C. § 41713(b). The Court has proceeded in this manner because the Skycaps argue that common law damages actions as a class are not preempted by the Airline Deregulation Act. Brown Pls.' Opp'n Mot. Dismiss 2; Mitchell Pls.' Opp'n Mot. Dismiss (ADA Preemption) 2. Yet, as this Court has now determined, the express preemption language does not permit a narrow reading that categorically excludes common law claims from its reach. It does not follow, however, that the saving clause is rendered completely ineffectual, because the express preemption clause of the Airline Deregulation Act contains its own narrowing language: “related to a price, route, or service of an air carrier.” 49 U.S.C. § 41713(b).

The saving clause, read together with the preemption clause, ought properly be read to carve out all common law or statutory claims not related to an airline's prices, routes or services. This result may not seem particularly significant, as it is well established that the Airline Deregulation Act does not preclude claims that are not related to an airline's prices, routes or services. Indeed, this is the primary mechanism by which plaintiffs defeat a defense of preemption under the Airline Deregulation Act.

But those cases rely solely on the express preemption clause in carving out particular claims. This Court now determines that the preservation of claims not related to an airline's prices, routes or services is supported not only by a careful reading of the preemption clause, but also by a synthesis of the preemption clause and the saving clause.

The conclusion is significant in light of the Supreme Court's recent movement in Geier and its progeny towards giving saving clauses substantial weight in determining the scope of federal preemption. At first glance, it appeared the analysis in Geier could ultimately overhaul the Airline Deregulation Act case law. But upon a more thorough analysis, it seems doubtful that Geier will upset the status quo of statutory analysis under the Airline Deregulation Act. Rather, Geier can be harmonized within the existing framework of the case law.

The statutory analysis in this case does not end here, however; as this Court has just stated, the claims are precluded only if they are “related to a price, route or service of an air carrier.” See, e.g., Bates v. Dow Agrosciences LLC, 544 U.S. 431, 443–44, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005) (observing that the fact that federal law “may pre-empt judge-made rules, as well as statutes and regulations, says nothing about the scope of that preemption”).

b. The Scope and Application of DiFiore v. American Airlines, Inc.

As to the issue of whether the common law claims of unjust enrichment and tortious interference are “related to a price, route, or service of an air carrier,” this Court turns to the First Circuit's decision in DiFiore, 646 F.3d 81, for guidance.

In DiFiore, skycaps sued American Airlines, Inc. (“American Airlines”) in a putative class action based on facts nearly identical to those alleged by the Mitchell and Brown Skycaps, claiming a violation of the Massachusetts Tip Law and seeking further relief under state common law. 646 F.3d at 84. The Massachusetts Tip Law provides that “[n]o employer or other person shall demand, request or accept from any ... service employee ... any payment or deduction from a tip or service charge given to such ... service employee ... by a patron.” Mass. Gen. Laws ch. 149, § 152A(b). The term “service charge” is defined in the statute as

a fee charged by an employer to a patron in lieu of a tip to any ... service employee ..., including any fee designated as a service charge, tip, gratuity, or a fee that a patron or other consumer would reasonably expect to be given to a ... service employee ... in lieu of, or in addition to, a tip.
Id. § 152A(a). The skycaps claimed that the $2.00 baggage fee was a “service charge” that they were entitled to retain because American Airlines passengers “reasonably expect[ed]” the fee to be given to the skycaps. 646 F.3d at 84 (alteration in original). The case went to trial on the statutory claim and a tortious interference claim, and the jury awarded each skycap $2.00 for every bag he or she checked from September 2005 to the start of trial, plus any fees collected during the trial in March and April 2008. See id.

American Airlines appealed the jury award, arguing, inter alia, that the Massachusetts Tip Law is preempted by the Airline Deregulation Act. The First Circuit held that the Massachusetts Tip Law impermissibly regulates American Airlines's “service,”—i.e., the checking-in and transportation of bags into the terminal—and “price”—i.e., charges for such services—and is therefore preempted by the Airline Deregulation Act. 646 F.3d at 87–88. The court explained that in order to ensure the baggage fee would not constitute a “service charge” owed to the skycaps under the Massachusetts Tip Law, American Airlines would be forced to change the way the skycap services were provided or advertised. See id. at 88.

The court rejected the skycaps' argument that compliance measures were only “tenuously related” to services or prices (and therefore not preempted by the Airline Deregulation Act) if American Airlines could institute the changes without incurring significant expense or substantially altering the manner in which the service was provided. Id. The First Circuit held that the application of the Massachusetts Tip Law would have the same effect as a statute explicitly regulating the manner in which skycap services could be provided or advertised, which effect is prohibited no matter how high or low the cost to the airline. Id.

Indeed, the First Circuit posited that the Massachusetts Tip Law may be even more burdensome than state restrictions explicitly regulating the same, as the Massachusetts Tip Law would be interpreted by individual juries, who would “effectively design their own detailed, ad hoc compliance schemes based on the size, location and wording of the signs posted by the airline.” Id. American Airlines thus would be subject to countless (potentially conflicting) jury determinations within a state. Id.

The First Circuit emphasized that this scenario is precisely what Congress sought to prevent in enacting the Airline Deregulation Act. Id. at 85, 88. Allowing states to re-regulate the airlines, albeit indirectly and perhaps unwittingly, through provisions such as the Massachusetts Tip Law would trammel Congress's regime of free competition. See id. at 85.

The First Circuit did not address whether common law claims based on the same underlying facts as the Massachusetts Tip Law claim are precluded under the Airline Deregulation Act. Instead, the First Circuit noted that the skycaps' tortious interference claim was premised on the jury's finding of a violation of the Massachusetts Tip Law. DiFiore, 646 F.3d at 89. The tortious interference claim therefore was reversed automatically when the court reversed the Massachusetts Tip Law claim. Id.

The Skycaps argue here that by expressly intertwining the failure of the common law claim with the court's reversal of the statutory claim, the First Circuit implicitly carved out common law claims from Airline Deregulation Act preemption:

[I]f common law claims were to be analyzed in the same fashion as statutory claims, there would have been no reason for the First Circuit to have based its analysis of the tortious interference claim on this ground; it could have instead more easily and readily stated that the claim was likewise a challenge to the $2 per bag charge and would therefore affect prices, routes, or services of the airline. The fact that it did not must be read as an acknowledgment that the First Circuit recognized that common law claims, standing alone, are not preempted by the ADA. Mitchell Pls.' Opp'n Mot. Dismiss (ADA Preemption) 5–6.

Such inferences are unsupported in the First Circuit's decision. Rather, the narrow focus of DiFiore, limiting the opinion to the statutory claim, ought be understood as the exercise of proper judicial restraint, given that the common law claim necessarily was dismissed with the statutory claim. See DiFiore, 646 F.3d at 89.

While DiFiore does not directly address the matter at hand, the First Circuit's reasoning foreshadows the same fate for the common law claims as befell the Massachusetts Tip Law claim. The First Circuit's concern for patchwork de facto regulation resulting from jury verdicts is just as applicable to a jury's assessment of common law liability as it is to statutory liability. Moreover, the claims are based on the same set of facts and alleged failures by the Airlines. To avoid liability for tortious interference or unjust enrichment in the future, the Airlines would be forced to comply with a jury's “ad hoc compliance scheme” (and potentially, multiple juries' conflicting compliance schemes) and effectively be regulated thereby.

Because the Mitchell and Brown Skycaps' tortious interference and unjust enrichment claims would have the same prohibitive effect in application as the Massachusetts Tip Law claim, it seems they ought be precluded to the same extent.

As the First Circuit has previously stated, Supreme Court jurisprudence “teach[es] that, under the Airline Deregulation Act, the focus should be on the effect that the state law has on airline operations.” New Hampshire Motor Transp. Ass'n v. Rowe, 448 F.3d 66, 78 (1st Cir.2006), aff'd, 552 U.S. 364, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008).

c. The Wolens Exception

In a final attempt to save their unjust enrichment claim, the Skycaps argue that the claim fits within the carved-out exception to preemption for breach of contract actions.

Brown Pls.' Surreply 3 & nn. 2–3; Mitchell Pls.' Surreply (ADA Preemption) 1 n. 1; Mitchell Pls.' Opp'n Mot. Dismiss (ADA Preemption) 6.

In Wolens, 513 U.S. at 232–33, 115 S.Ct. 817, the Supreme Court held that breach of contract claims against airlines are not preempted by the Airline Deregulation Act, provided that courts are only enforcing airlines's self-imposed obligations. The Supreme Court explained that the Airline Deregulation Act

stops States from imposing their own substantive standards with respect to rates, routes, or services, but not from affording relief to a party who claims and proves that an airline dishonored a term the airline itself stipulated. This distinction between what the State dictates and what the airline itself undertakes confines courts, in breach-of-contracts actions, to the parties' bargain, with no enlargement or enhancement based on state laws or policies external to the agreement.
Id. The Wolens Court thus made explicit that the exception is limited to the enforcement of contracts, creating the necessary implication that the exception does not provide an avenue for parties to sue on an unjust enrichment theory, since such an equitable remedy enforces external state law and policies.

Nevertheless, the Skycaps argue that their quasi-contract claim of unjust enrichment ought be allowed to go forward under the Wolens exception, because the Skycaps assert that “United [and U.S. Airways] promised customers that the bag charges would be paid to the skycaps as tips, and the skycaps were beneficiaries of that promise (and were harmed by the breach of that promise).” Brown Pls.' Surreply 3 n. 2; see Mitchell Pls.' Surreply (ADA Preemption) 1 n. 1.

A claim of unjust enrichment is by its very nature, however, not a breach of contract claim. Indeed, an unjust enrichment claim is permissible only where there is no express agreement between the parties, and no express undertaking stipulated by the defendant. See, e.g., Santagate v. Tower, 64 Mass.App.Ct. 324, 329, 833 N.E.2d 171 (2005) (explaining that unjust enrichment is defined as the “retention of money or property of another against the fundamental principles of justice or equity and good conscience”) (citations omitted). A claim for unjust enrichment is thus the antithesis of enforcing “a term the airline itself stipulated,” Wolens, 513 U.S. at 232–33, 115 S.Ct. 817, and rather an example of a state “imposing [its] own substantive standards,” id. at 232, 115 S.Ct. 817. As such, the Skycaps' unjust enrichment claims do not “navigate the straits of the Wolens exception.” Buck v. American Airlines, Inc., 476 F.3d 29, 35 (1st Cir.2007) (discussing the narrow scope of the Wolens exception).

C. Mitchell Motion for Summary Judgment Based on Fair Labor Standards Act

1. Facts in the Light Most Favorable to the Mitchell Skycaps

The plaintiffs Kevin Davis (“Davis”), Lee Hardin (“Hardin”) and Steven McCoy (“McCoy”) (collectively, the “ Mitchell G2 Skycaps”) were employed jointly by G2 and U.S. Airways. Pls.' Resp. Def. U.S. Airways's Local R. 56.1 Statement Material Facts (“ Mitchell Pls.' Resp. SOF”) § I, ¶ 1, ECF No. 119. The Mitchell G2 Skycaps worked for G2, servicing U.S. Airways in different locations across the country. Davis worked as a skycap at Los Angeles International Airport from 2006 to September 2008. Id.¶ 2. Hardin worked as a skycap at the Indianapolis Airport from 2004 to September 2009. Id. McCoy worked as a skycap at the Dallas/Fort Worth Airport from 2006 until at least November 2009.

Id.

Davis was paid a minimum base wage of $9.00 per hour, exclusive of tips. Id. ¶ 4. Davis's wage was at all times greater than both the federal minimum wage (increasing over the relevant time period, with the highest amount of $7.25 per hour) and the California minimum wage ($8.00 per hour). Id. ¶¶ 3–4.

Hardin was paid $2.13 per hour until August 16, 2007, id. § 2, ¶ 1, at which time his wage increased to $5.15 per hour (below the federal minimum wage of $5.85 per hour), id. ¶ 3. As of July 4, 2008, Hardin's wage was reduced again to $2.13 per hour (below the federal minimum wage of $6.55 per hour in effect until July 24, 2009, and the subsequent increased minimum wage of $7.25 per hour). Id. ¶ 5. Hardin's base hourly wage was less than the federal minimum wage, but equal to or greater than minimum wage when combined with the tips he received. See id. ¶ 10.

McCoy was paid $2.13 per hour until August 16, 2007, id.¶ 2, at which time his wage increased to $5.15 per hour (below the federal minimum wage of $5.85 per hour), id. ¶ 4. As of August 1, 2008, McCoy's hourly rate was increased to $6.55 (meeting the federal minimum wage of $6.55 per hour). Id. ¶ 6. Prior to August 1, 2008, McCoy's base hourly wage was less than minimum wage, but equal to or greater than minimum wage when combined with the tips he received. See id. ¶¶ 14–16.

Since the institution of the $2.00 per bag charge in 2007, the Mitchell G2 Skycaps have not retained all of their tips.

Mitchell Compl. ¶ 42. Rather, they had to pay

a portion of their tips to U.S. Airways for any “shortages” in the baggage fees. Id. ¶ 44. If a passenger failed to pay the $2.00 bag fee to U.S. Airways when checking a bag with a Mitchell G2 Skycap, the skycap routinely would have to pay U.S. Airways the fee out of his or her own tips. Id. Moreover, U.S. Airways did not provide the Mitchell G2 Skycaps notice that the company took a “tip credit” against the minimum wage. Id. ¶ 45.

2. Minimum Wage Provision of the Fair Labor Standards Act

The Fair Labor Standards Act (“FLSA”) requires an employer to pay to each of its employees a minimum wage, where that employee is engaged in commerce or employed in an enterprise engaged in commerce. 29 U.S.C. § 206(a). It is undisputed that the minimum wage provision applies to U.S. Airways and the Mitchell G2 Skycaps. The parties contest, however, U.S. Airways's entitlement to use a “tip credit” in calculating the hourly wage of the Mitchell G2 Skycaps.

Under the FLSA, an employer may be permitted to add the amount of tips actually received by an employee to the employee's base hourly wage to meet the federal minimum wage requirements. Id. § 203(m). Congress has placed limits on an employer's ability to apply this “tip credit,” however, and these limits are strictly construed. See Chung v. New Silver Palace Rest., Inc., 246 F.Supp.2d 220, 229 (S.D.N.Y.2002). The tip credit is wholly inapplicable (1) if the employer failed to inform the employee that the company intended to use the tip credit in calculating the employee's minimum wage; or (2) in the event that the employee does not retain all of the tips that he or she received, excluding participation in valid pooling arrangements. Id. Moreover, the employer bears the burden of proving its entitlement to the tip credit. Driver v. AppleIllinois, LLC, 265 F.R.D. 293, 298 (N.D.Ill.2010) ( “[Section 203(m) ] makes clear the intent of Congress to place on the employer the burden of proving ... the amount of tip credit, if any, which the employer may claim.... [T]he employer is responsible for ascertaining that the [minimum wage] provisions are complied with in compensating ‘tipped employees.’ ” (citing U.S. Dep't of Labor, Field Operations Handbook § 30d00(b) (Rev. 563) (Dec. 9, 1988))).

If U.S. Airways failed to comply with the FLSA's notice requirement, it would not be entitled to apply a tip credit towards the Mitchell G2 Skycaps' minimum wage, and would therefore be in violation of the FLSA's minimum wage provision as to both Hardin and McCoy. Similarly, if the Mitchell G2 Skycaps were forced to give U.S. Airways a portion of their tips, U.S. Airways would be unable to claim a tip credit, and would be in violation of the FLSA's minimum wage requirement. See Travers v. JetBlue Airways Corp., Civil Action No. 08–10730–GAO, 2010 WL 3835029, at *1 (D.Mass. Sept. 30, 2010) (O'Toole, J.) (“An employer is entitled to the tip credit only if ‘all tips received by [the] employee have been retained by the employee.’ ” (quoting 29 U.S.C. § 203(m))); see also Lujan v. Cabana Mgmt., Inc., No. 10–CV–755 (ILG), 2011 WL 317984, at *12 (E.D.N.Y. Feb. 1, 2011) (approving notice to putative class members where, inter alia, defendants allegedly appropriated servers' tips to cover losses, which would preclude defendants from taking a tip credit with respect to those employees).

The Mitchell G2 Skycaps allege that they were not properly informed of U.S. Airways's use of the tip credit. Mitchell Compl. ¶ 45; see also Mitchell Pls.' Resp. SOF, Ex. 2, Relevant Dep. Excerpts, Steven McCoy Dep. (“McCoy Dep.”) 27:11–18, 28:15, Oct. 26, 2009, ECF No. 119–3 (“Q. Okay. Are you aware of the fact that ... $2.13, plus the tips you made per hour, all is a credit toward making the minimum wage?” “A. I never understood that ... I never figured out how they were doing that.... No one ever explained that to me.”). They further allege that they did not retain all of the tips they received. Mitchell Compl. ¶¶ 42–44; Mitchell Pls.' Opp'n Mot. Summ. J. 6–7. The Mitchell G2 Skycaps specifically allege that when a passenger failed to pay the $2.00 bag charge, they “had to make up these ‘shortages' out of their own tips.” Mitchell Compl. ¶ 44.

US Airways claims that the Mitchell G2 Skycaps were in fact notified of the tip credit and retained all of their tips. US Airways argues that it is entitled to summary judgment because the Mitchell G2 Skycaps have offered no evidence to corroborate their claims, while U.S. Airways has submitted evidence in support of its argument.

Mitchell Def.'s Reply Mot. Summ. J. 4–5.

US Airways bears the burden to show that it fully complied with the Section 203(m) requirements. Driver, 265 F.R.D. at 298. Given this burden of proof, Reeves dictates that this Court must disregard any evidence submitted by U.S. Airways that a jury would be free to disbelieve. 530 U.S. at 151, 120 S.Ct. 2097. Therefore, the Court will not consider for the purposes of this motion U.S. Airways's submitted copies of the notice it allegedly provided to Hardin and McCoy, and the statement by McCoy that he did not have to share his tips with management. See supra at note 21. US Airways may not shift the burden onto the Mitchell G2 Skycaps to produce evidence that U.S. Airways failed to meet its qualifying obligations under the tip credit, when the burden rests with U.S. Airways to make an affirmative showing that it was entitled to the credit. Summary judgment is therefore denied as to Hardin and McCoy.

Unlike Hardin and McCoy, Davis received a wage which met the federal minimum wage requirement. Davis was paid a base hourly wage of $9.00 per hour, in addition to any tips he received. This wage exceeds the highest federal minimum wage amount of $7.25 during the relevant time period. Indeed, the Mitchell G2 Skycaps explicitly concede that Davis's wage did not violate the FLSA and oppose summary judgment only as to Hardin and McCoy. Summary judgment is therefore granted to U.S. Airways as to Davis.

III. CONCLUSION

For the foregoing reasons:

US Airways's partial motion to dismiss the Mitchell Complaint, ECF No. 141, is ALLOWED only as to Counts Two (Tortious Interference), Three (Unjust Enrichment), and Four (Massachusetts Tip Law).

US Airways's motion for summary judgment on Count One of the Mitchell Complaint (Fair Labor Standards Act), ECF No. 140, is DENIED as to Lee Hardin and Steven McCoy, and GRANTED as to Kevin Davis.

United Air Lines's motion to dismiss the Brown Complaint, ECF No. 76, is ALLOWED in its entirety.

The Court will schedule a prompt hearing on the dispositive motions remaining in Mitchell, ECF Nos. 141 & 154.

SO ORDERED.