United States District Court, D. Massachusetts
RONALD HEBERT and AIME DENAULT on behalf of themselves and others similarly situated, Plaintiffs,
VANTAGE TRAVEL SERVICE, INC. d/b/a VANTAGE DELUXE WORLD TRAVEL and VANTAGE ADVENTURES, Defendant.
MEMORANDUM AND ORDER
J. Casper United States District Judge.
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.
Standard of Review
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.
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.
Leave to Amend
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)).
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.
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
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.
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
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.
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.
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.