                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        February 21, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
FRANCINE MARTIN; JEFFREY A.
MARTIN, and all other similarly situated,

      Plaintiffs - Appellants,

v.                                                           No. 17-6112
                                                      (D.C. No. 5:16-CV-01042-F)
UNITED AIRLINES, INC.,                                       (W.D. Okla.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HARTZ, and HOLMES, Circuit Judges.
                 _________________________________

       Plaintiffs Francine and Jeffrey Martin brought a putative class action against

United Airlines for not fully refunding the price of nonrefundable airline tickets they had

purchased. The United States District Court for the Western District of Oklahoma

dismissed their complaint, ruling that some claims were preempted by the Airline

Deregulation Act of 1978 (ADA), 49 U.S.C. § 41713(b)(1), and that the remaining claims

failed to state a claim under Oklahoma law. Plaintiffs appeal. We have jurisdiction


*
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
under 28 U.S.C. § 1291 and affirm. We need not address preemption because the claims

pursued by Plaintiffs on appeal are not supported by Oklahoma law. United did nothing

more than enforce an enforceable contract.

        I.     BACKGROUND

        Plaintiffs’ First Amended Class Action Petition (the Complaint), the operative

complaint in this case, alleges the following: Plaintiffs are Oklahoma residents who

purchased several nonrefundable tickets from United. When they were not able to take

the trips and canceled their bookings, United did not refund the value of the tickets.

United did allow them to use what they had paid for the fare (but not the extra charges for

better seats) to book substitute flights, but only on condition that they book the new

flights within one year, pay an additional “change fee” for each new flight, and call

United to book their flights. Plaintiffs were able to book one substitute flight for Mr.

Martin on these terms. But an attempt to book other flights failed when Mr. Martin

became frustrated with the English proficiency of the airline’s customer-service

representatives and could not obtain an extension of the one-year deadline either online

or by email.

        United’s contract of carriage, which Plaintiffs admittedly entered into by

purchasing their tickets, governs United’s obligations towards its customers. It states that

United “will not refund any portion of a Ticket that is purchased with a non-refundable

fare,” Aplt. App., Vol. I at 198,1 and “[n]onrefundable fares have no value after ticketed


1
    The contract’s “Refunds” section states:


                                               2
departure time,” id. at 170.2 United does, however, recognize an “Exception,” which

permits a passenger to book a new flight, for a one-year period, with the value of the

cancelled ticket (subject to applicable change fees). Id.




         E) Non-refundable Tickets:
         1) General Rule - Except as provided in Rules 4 and 27 C), UA will not
            refund any portion of a Ticket that is purchased with a non-refundable
            fare, including the fare and any taxes, fees, or other charges included
            within the total price paid for the Ticket.

         2) Application of Unused Ticket toward Future Ticket Purchase - UA may
            allow a portion of the non-refundable fare paid for an unused and
            unexpired non-refundable UA Ticket to be applied towards the purchase
            of future travel on UA, provided it is done in accordance with the
            applicable fare rule in place at the time of such request. Change fees
            and other administrative charges may apply. Any portion not so applied
            will not be refunded in any form.

Aplt. App., Vol. I at 198 (emphasis added). Rule 4 concerns United’s reservations
policy, see id. at 167, and Rule 27 C) concerns refunds for baggage and booking service
charges and upgrade fees, see id. at 198. Plaintiffs’ appellate briefs do not mention either
rule, nor are they relevant to their claims on appeal.
2
    Part A of the contract’s “Ticket Validity Period” states:

         Period of Validity - Except as otherwise provided in this Rule or required
         by the applicable local law of a foreign jurisdiction, any eligible Ticket
         issued by UA or its authorized agent on UA Ticket Stock will be valid for
         transportation for one year from the date on which transportation
         commences at the point of origin as designated on the original Ticket or, if
         no portion of the Ticket is used, one year from the date of issuance of the
         original or reissued Ticket, whichever is later. When an unused published
         fare Ticket is completely reissued, the new Ticket validity on the reissued
         Ticket will be determined from the date the Ticket was reissued. When a
         Ticket includes an excursion or special fare having a shorter period of
         validity than one year, the shorter period of validity will apply only to the
         excursion or special fare transportation. When a fare limits the carriage to
         specific periods of the day, week, month, or year, the Ticket is valid for the
         specified periods only. When fares are combined to create

                                                3
       Plaintiffs filed a complaint in Oklahoma state court, alleging four claims under

Oklahoma law: (1) breach of contract by “failure of consideration”; (2) breach of

contract by failure to fulfill “reasonable expectations”; (3) “recovery of money

wrongfully kept by [United]”; and (4) tortious breach of the implied covenant of good

faith and fair dealing. Following removal to federal court under the Class Action

Fairness Act, 28 U.S.C. § 1332(d), United moved to dismiss the complaint with prejudice

on two grounds. First, it contended that the claims were preempted by the ADA, which

states that “a State . . . 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); see Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422,

1429 (2014) (“[S]tate common-law rules fall comfortably within the language of the

ADA pre-emption provision.”). Second, it contended that the complaint failed to state a

claim under Oklahoma law. The district court said that it was undisputed that Plaintiffs’

claims “relate[d] to [United’s] prices and services.” Aplt. App., Vol. II at 329. And it

held that insofar as Plaintiffs’ theories of relief attempted to impose state-law standards to


       Round/Circle/Open-Jaw Trips, the most restrictive provisions will apply to
       the entire transportation.

       NOTE: Nonrefundable fares have no value after ticketed departure time.

       EXCEPTION: When the Passenger cancels the ticketed flight reservations
       prior to the ticketed departure time, the ticket will be valid for
       transportation for one year from the date of issuance of the original ticket
       and will be subject to any and all applicable change fees. Otherwise, the
       ticket has no value after ticketed departure time.

Id. at 170 (emphasis added).

                                              4
which the parties had not agreed, they were preempted. See Ginsberg, 134 S. Ct. at 1426

(“[A] claim is pre-empted [by the ADA] if it seeks to enlarge the contractual obligations

that the parties voluntarily adopt.”); Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 222

(1995) (“[T]he ADA’s preemption prescription bars state-imposed regulation of air

carriers, but allows room for court enforcement of contract terms set by the parties

themselves.”). It then held that the remaining claims failed on the merits. It therefore

dismissed the complaint with prejudice.

       On appeal Plaintiffs concede that their fourth claim (a tort claim, rather than a

contract claim, based on an alleged breach of the covenant of good faith) is preempted by

the ADA. And although their reply brief contends that they have not conceded

preemption of their third claim (recovery of money wrongfully kept by United), they

have waived any challenge to the dismissal of that claim because their opening brief

presents no argument on the issue. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th

Cir. 2007) (“[W]e routinely have declined to consider arguments that are not raised, or

are inadequately presented, in an appellant’s opening brief.”). Thus, only their two

breach-of-contract claims remain. Although the parties’ briefs devote most of their

attention to the preemption issue, we need not address it. Plaintiffs acknowledge on

appeal that one of the issues before us is “whether their claims . . . fail on their merits.”

Aplt. Br. at 6. And we can readily hold, at least on the arguments made by Plaintiffs on

appeal, that the preserved claims fail under Oklahoma law.




                                               5
       II.    DISCUSSION

       “We review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure to

state a claim.” Gee v. Pacheco, 627 F.3d 1178, 1183 (10th Cir. 2010). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to

state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotation marks omitted). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id.

       Under Oklahoma law we construe a contract according to the plain meaning of its

language “unless some technical term is used in a manner intended to convey a specific

technical concept.” Pitco Prod. Co. v. Chaparral Energy, Inc., 63 P.3d 541, 546 (Okla.

2003) (following Okla. Stat. tit. 15, § 160 (1993)). If the contract is unambiguous, the

court interprets it as a matter of law, id. at 545, because the contract itself is then the

“only legitimate evidence of what the parties intended,” id. at 546.

       There can be no dispute that United acted in accordance with the express terms of

the contract of carriage. Although Plaintiffs’ opening brief contains a section headed

“Ambiguous Language to be Construed Against Drafter,” Aplt. Br. at 29, the brief wholly

fails to point to any language—any word, phrase, or sentence—in the contract of carriage

that “is reasonably susceptible to at least two different constructions,” id. (defining

ambiguous). The closest it comes is in the following passage:

              [I]mmediately at the time the contract is entered in to an ambiguity
       exists. On one hand, [United] will provide transportation to Plaintiffs in
       exchange for the money they paid. On the other hand, [United] will not


                                               6
       provide transportation to Plaintiffs in exchange for the money they paid for
       but gets to keep the money anyway. What then, is the parties’ agreement?

Aplt. Br. at 49. But, tellingly and fatally, this argument still does not point to, much less

quote, specific language in the contract. Thus, Plaintiffs have not preserved an ambiguity

argument on appeal. See Bronson, 500 F.3d at 1104.

       In any event, we see no ambiguity. The clear terms, which need not be requoted,

provide that when a passenger does not take a flight, he or she can use the price of the

ticket only toward a flight within one year, after paying the applicable change fee.

Plaintiffs concede that they were able to take advantage of this opportunity with respect

to one ticket, and they do not claim that United refused to provide the same opportunity

with respect to their other tickets.

       What Plaintiffs are in essence attempting to do is change the terms of the contract.

First, they invoke the reasonable-expectations doctrine to assert that they expected better

terms with a nonrefundable ticket. See Am. Econ. Ins. Co. v. Bogdahn, 89 P.3d 1051,

1054 (Okla. 2004) (the doctrine requires court to interpret insurance policy to mean what

a “reasonable person in the position of the insured would have understood it to mean”).

But the Oklahoma courts apply the doctrine only if the contract is ambiguous or if a term

is “masked by technical or obscure language or hidden in a policy’s provisions.”

Bogdahn, 89 P.3d at 1054 (internal quotation marks omitted). As we have already said,

United’s contract is not ambiguous. Nor is the nonrefundability of a “nonrefundable”

ticket masked by technical or obscure language. And if anything is hidden in the

contract’s provisions, it is the language providing some refundability. No one buying a



                                              7
nonrefundable ticket could have any illusions that he or she could miss the flight and get

a full refund.

       Plaintiffs also contend that the restrictions on refunding the cost of a

nonrefundable ticket violate the implied covenant of good faith and fair dealing. But that

covenant cannot impose terms that contravene the express terms of the contract. See

Mercury Inv. Co. v. F.W. Woolworth Co., 706 P.2d 523, 532 (Okla. 1985) (there was no

implied covenant in landlord-tenant contract that comprehensively set forth relationship

between landlord and tenant); United Assocs., Inc. v. Wal-Mart Stores, Inc., 133 F.3d

1296, 1298 (10th Cir. 1997) (“Oklahoma courts refuse to rewrite a lease by applying a

covenant that is contrary to the express terms for which the parties have bargained.”).

What Plaintiffs are complaining about are the express terms of United’s contract of

carriage. The implied covenant of good faith and fair dealing can afford them no relief

from those terms.

       Finally, Plaintiffs argue that the restrictions on nonrefundable tickets are

unconscionable. We are not persuaded. Under Oklahoma law, “[a]n unconscionable

contract is one which no person in his senses, not under delusion would make, on the one

hand, and which no fair and honest [person] would accept on the other.” Barnes v.

Helfennbein, 548 P.2d 1014, 1020 (Okla. 1976). “The basic test of unconscionability of a

contract is whether under the circumstances existing at the time of making of the

contract, and in light of the general commercial background and commercial needs of a

particular case, clauses are so one-sided as to oppress or unfairly surprise one of the

parties.” Id. Unconscionability requires an “absence of meaningful choice” and


                                              8
“contractual terms which are unreasonably favorable to the other party.” Id. Those

requirements are not satisfied here. Every day, thousands of travelers have a choice

between purchasing a refundable ticket or a significantly cheaper nonrefundable ticket

from a variety of airlines. Few are out of their senses or delusional. Contracts made on

competitive markets are seldom unconscionable. Although the market for air travel is not

a model of perfect competition, the commercial context here also argues against finding

unconscionability. Airlines can compete against each other, and an airline could certainly

obtain a competitive advantage in obtaining customers by making all tickets fully

refundable or, as some do, by reducing the burden of exchanging the ticket, but the cost

to an airline of doing so may constrain such an effort.3 Further, there is certainly no

procedural unfairness present here. Airlines are hardly oppressive or coercive in offering

travelers the choice of cheaper nonrefundable tickets. And we see nothing morally

3
    The Supreme Court has described the market conditions as follows:

        The expenses involved in operating an airline flight are almost entirely
        fixed costs; they increase very little with each additional passenger. The
        market for these flights is divided between consumers whose volume of
        purchases is relatively insensitive to price (primarily business travelers) and
        consumers whose demand is very price sensitive indeed (primarily pleasure
        travelers). Accordingly, airlines try to sell as many seats per flight as
        possible at higher prices to the first group, and then to fill up the flight by
        selling seats at much lower prices to the second group (since almost all the
        costs are fixed, even a passenger paying far below average cost is
        preferable to an empty seat). In order for this marketing process to work,
        and for it ultimately to redound to the benefit of price-conscious travelers,
        the airlines must be able to place substantial restrictions on the availability
        of the lower priced seats (so as to sell as many seats as possible at the
        higher rate), and must be able to advertise the lower fares.

Morales v. Trans World Airlines, Inc., 504 U.S. 374, 389 (1992). This is a description of
a properly functioning market, not unconscionable practices.

                                              9
reprehensible or exploitive in the ultimate contract—a contract that is pervasive in

modern society. In short, the terms of United’s nonrefundable tickets do not confront

travelers with an absence of choice or unfair surprise and are not oppressively one-sided

in light of commercial realities.

       Because Plaintiffs were bound by the conditions imposed by the contract of

carriage on nonrefundable tickets, their breach-of-contract claims must fail.

       III.    CONCLUSION

       We AFFIRM the district court’s judgment.

                                             Entered for the Court


                                             Harris L Hartz
                                             Circuit Judge




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