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Hebert v. Vantage Travel Service, Inc.

United States District Court, D. Massachusetts

April 1, 2019

RONALD HEBERT and AIME DENAULT on behalf of themselves and others similarly situated, Plaintiffs,


          Denise J. Casper United States District Judge.

         I. Introduction

         Named Plaintiffs Ronald Hebert and Aime Denault (“Named Plaintiffs”) have filed this putative class action against Defendant Vantage Travel Service, Inc. d/b/a Vantage Deluxe World Travel and Vantage Adventures (“Vantage”) alleging breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, breach of common law warranties, negligent misrepresentation and a violation of the Massachusetts Consumer Protection Act, Mass. Gen. L. c. 93A, §§ 2 and 9. D. 1-1. Named Plaintiffs have moved for class certification, D. 39, and moved to strike portions of Vantage's answer or, in the alternative, for partial summary judgment as to the same, D. 46. Named Plaintiffs have now also filed a motion for leave to amend the complaint, D. 55. For the reasons stated below, the Court ALLOWS Named Plaintiffs' motion for class certification, D. 39, as to Class 1 and DENIES the motion as to Class 2. The Court DENIES Named Plaintiffs' motion to amend the complaint, D. 55, and DENIES the motion to strike or, in the alternative, for summary judgment without prejudice. D. 46.

         II. Standard of Review

         A. Class Certification

         A class action may be certified only if “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed R. Civ. P. 23(a); see In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d 6, 18 (1st Cir. 2008). Where, as here, Named Plaintiffs have moved to certify a class under Fed.R.Civ.P. 23(b)(3), the Court must also determine whether “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed R. Civ. P. 23(b)(3); see New Motor Vehicles, 522 F.3d at 18.

         “[T]he district court must undertake a ‘rigorous analysis' to determine whether plaintiffs me[e]t the four threshold requirements of Rule 23(a) (numerosity, commonality, typicality, and adequacy of representation) and Rule 23(b)(3)'s two additional prerequisites.” In re Nexium Antitrust Litig., 777 F.3d 9, 17 (1st Cir. 2015) (quoting Comcast Corp. v. Behrand, 569 U.S. 27, 33 (2013)); see Smilow v. Sw. Bell Mobile Sys., 323 F.3d 32, 38 (1st Cir. 2003). Named Plaintiffs bear the burden of proving that class certification is justified. Makuc v. Am. Honda Motor Co., Inc., 835 F.2d 389, 394 (1st Cir. 1987). When “plaintiffs have made their initial showing, defendants have the burden of producing sufficient evidence to rebut the plaintiff's showing.” Nexium, 777 F.3d at 27.

         B. Leave to Amend

         Fed. R. Civ. P. 15(a) “mandates that leave to amend is to be ‘freely given when justice so requires' . . . unless the amendment ‘would be futile, or reward, inter alia, undue or intended delay.'” Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004) (quoting Fed.R.Civ.P. 15(a)(2) and Resolution Trust Corp. v. Gold, 30 F.3d 251, 253 (1st Cir. 1994)). Rule 15(a)'s “liberal amendment policy . . . does not mean that leave will be granted in all cases.” Acosta-Mestre v. Hilton Int'l of P.R., 156 F.3d 49, 51 (1st Cir. 1998) (quoting 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1487, at 611 (2d ed. 1990)).

         C. Summary Judgment

         The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A disputed fact is material if it has the potential to “affect the outcome of the suit under the applicable law.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)) (internal quotation marks omitted). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000). The Court “constru[es] the record in the light most favorable to the non-movant and resolv[es] all reasonable inferences in that party's favor.” Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2009).

         III. Factual Background

         The Court will not recite all facts previously considered in dismissing Vantage's motion to dismiss. See D. 25. The facts that follow are relevant to the currently pending motions and, unless otherwise noted, are drawn from the operative complaint, D. 1-1, Vantage's previously filed statements of material facts and Named Plaintiffs' response, D. 10; D. 18, and supporting documents.[1]

         Vantage is a Massachusetts corporation that operates and sells international travel tours. D. 10 ¶¶ 1-3; D. 9 ¶¶ 3-4. In 2015, Named Plaintiffs purchased Vantage's “5 Star Luxury” river cruise to Austria, Germany and Hungary on MS River Voyager that was set to begin in July 2016. D. 1-1 ¶¶ 5-6; see D. 10 ¶ 9; D. 9 ¶ 9. The claims here concerns two Vantage river tour packages: (1) the “Majestic Rivers of Europe” tour, which promised a seventeen-day tour on the MS River Voyager commencing in Bonn, Germany on July 8, 2016; and (2) the “Highlights of the Danube” tour, an eleven-day river tour aboard MS River Voyager that was to begin in Nuremburg, Germany on July 15, 2016. D. 10 ¶ 9; D. 9 ¶ 9. Named Plaintiffs were among 168 passengers who booked one of the two Vantage cruises at issue. D. 40 at 2; D. 45-1 ¶ 6. According to Vantage's records, passengers paid a total of $1, 136, 310 for the tours. D. 45-1 ¶ 7. Upon booking the tours, Named Plaintiffs and putative class members received a Tour Participation Agreement that states, in relevant part, that “Vantage is not responsible for any losses or expenses due to delays or changes in schedules, overbooking or downgrading of accommodations, defaults by any third parties, including Suppliers, mechanical or other failure of airplanes or other means of transportation, or the failure of any transportation mechanism to arrive or depart on time.” D. 45-2 at 4. The Tour Participation Agreement also includes the option to purchase the Vantage Travel Protection Plan, which covers, among other things, “cancellation or interruption of your trip due to . . . mechanical breakdown that causes complete cessation of services of your common carrier for at least 12 consecutive hours . . . .” D. 45-2 at 5. The maximum benefit amount for trip interruption or cancellation under the plan is listed as “Trip Cost.” Id. The Vantage Travel Protection Plan is underwritten by United States Fire Insurance Company and the Plan administrator is Trip Mate, Inc. Id.

         On or about July 14, 2016, MS River Voyager was rendered unfit for navigation. D. 10 ¶ 13; D. 9 ¶ 11. Vantage alleges that MS River Voyager experienced a mechanical failure related to the ship's bow thruster. D. 10 ¶ 14; D. 9 ¶ 11. Named Plaintiffs (and other tour customers who purchased the Majestic Rivers of Europe or Highlights of the Danube tour packages) were transported by bus for the next eight days. D. 1-1 ¶ 7; D. 10 ¶ 15; D. 9 ¶ 11. Several trip highlights were cancelled or changed, including visits to specific cities and landmarks, excursions, accommodations and meals on the ship. D. 42 ¶¶ 5-23 (explaining that customers did not receive sightseeing opportunities or guided tours to various cities, were not provided meals as promised and instead received stipends or had dinners at hotels and the quality of the hotel accommodations were not comparable to the MS River Voyager); D. 43 ¶¶ 5-23 (same). On July 22, 2016, the final night of both cruises at issue, tour participants were permitted to board the MS River Voyager in Budapest, Hungary. D. 10 ¶ 16; D. 9 ¶ 11.

         Following the tours, Vantage refused to provide full cash refunds to Named Plaintiffs and other tour customers. D. 1-1 ¶ 8. Vantage instead offered credit toward future travel and free cruises in November or December 2016, which were accepted by some tour customers. D. 40 at 10; D. 45-4 at 2-3.

         IV. Procedural History

         Named Plaintiffs instituted this action in Suffolk Superior Court on or about March 7, 2017. D. 1-3 at 2. Vantage removed the action to this Court on May 19, 2017. D. 1. Vantage initially moved to dismiss or, in the alternative, for summary judgment. D. 7. Named Plaintiffs filed a cross-motion to strike portions of the declaration attached to Vantage's motion. D. 14 at 6-7. The Court denied both motions. D. 25.

         Named Plaintiffs have now moved for class certification, D. 39, moved to strike portions of Vantage's answer or, in the alternative, for partial summary judgment, D. 46, and moved to amend the complaint, D. 55. The Court heard the parties on the pending motions and took these matters under advisement. D. 65.

         V. ...

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