                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        DEC 13 2019
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

IGOR A. ALATORTEV, individually, and            No.    18-16225
on behalf of a class of others similarly
situated,                                       D.C. No. 3:17-cv-04859-WHO

                Plaintiff-Appellant,
                                                MEMORANDUM*
 v.

JETBLUE AIRWAYS CORP., a Delaware
corporation,

                Defendant-Appellee.

                  Appeal from the United States District Court
                       for the Northern District of California
                 William Horsley Orrick, District Judge, Presiding

                     Argued and Submitted December 4, 2019
                            San Francisco, California

Before: SILER,** BYBEE, and R. NELSON, Circuit Judges.

      Plaintiff Igor Alatortev, individually and on behalf of a putative class,

appeals the district court’s order granting Defendant JetBlue’s motion to dismiss



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
his amended complaint. Alatortev filed suit against JetBlue because it refused to

refund his $25 baggage-service fee after his checked bag was delayed in delivery

to his flight destination. In his initial complaint, Alatortev alleged JetBlue

breached its obligation under the Contract of Carriage (COC) to timely deliver his

bag upon his arrival at his destination. The district court dismissed the complaint,

finding that the COC does not provide “an express commitment to deliver baggage

on-time.” Alatortev then filed an amended complaint asserting that JetBlue

breached a separate contractual obligation to transport passengers’ baggage on

their respective flights, subject to automatic fee reimbursement if the baggage

travels on a different aircraft. The district court likewise dismissed the amended

complaint, holding that Alatortev’s construction of the COC was unreasonable.

      We review the district court’s order of dismissal de novo. Serv. Eng’g Co. v.

Emery, 100 F.3d 659, 661 (9th Cir. 1996). We affirm.

      Alatortev argues that the first sentence of Section 11 of JetBlue’s COC—

which provides that “[s]ubject to the restrictions set forth below, Carrier will check

the baggage of a fare-paying Passenger for the flight on which the Passenger is

traveling,”—required that the baggage ultimately fly on the same aircraft as its

owner in every instance. But the plain language of this provision does not mandate

this construction. To the contrary, the provision states that JetBlue must check the

baggage “for” the flight—not “on” the flight.


                                           2
      Further, the “cardinal rule of construction that a contract is to be construed

as a whole, effecting harmony among and giving meaning to all the parts thereof,”

People ex rel. Dep’t of Parks & Recreation v. West-A-Rama, Inc., 111 Cal. Rptr.

197, 201 (Cal. Ct. App. 1973), requires that we look beyond this isolated provision

to its surrounding context within the COC as a whole. Here, looking to the entirety

of the contract defeats Alatortev’s proposed construction.

      First, the provision Alatortev relies on begins with the following limiting

language: “Subject to the restrictions set forth below, . . .” Thus, the provision

itself calls attention to outside provisions for limiting context and meaning. The

district court correctly determined that Section 11 as a whole was written primarily

for the purpose of describing JetBlue’s agreement to exclusively transport checked

baggage to a passenger’s final destination, rather than allow passengers to

unilaterally transform JetBlue into a parcel carrier. Section 11 limits customers’

ability to check bags to other destinations where they are not flying; JetBlue did

not assume an independent obligation of ensuring that checked bags always

physically travel on the same aircraft as the passengers do.

      Second, the COC’s comprehensive scheme governing JetBlue’s obligations

and its customers’ remedies demonstrates that Alatortev’s construction is

unreasonable. The COC carefully tracks the United States Department of

Transportation’s regulatory requirements for checked baggage, e.g., 14 C.F.R.


                                          3
§ 259.5, by outlining a comprehensive remedial scheme for passengers’ potential

1) loss, 2) damage, or 3) delay of their checked bags. The COC also includes the

possibility of recovering reasonable expenses or a baggage fee refund in some

instances, along with a mechanism and timeline for filing claims and/or lawsuits to

obtain those remedies. The COC never provides a separate remedy (or notice of

claim mechanism) for failure to transport passengers’ baggage on their respective

flights, demonstrating that JetBlue never undertook the obligation Alatortev

proposes.

      Hickcox-Huffman v. US Airways, Inc. is not to the contrary. 855 F.3d 1057

(9th Cir. 2017). In that case, the contract outlined a binding commitment by the

airline to “on-time baggage delivery,” which was clearly defined under the

airline’s terms of transportation, and which was breached when the airline failed to

return the passenger’s bag to her until the next day. Id. at 1059, 1062–64. Here,

by contrast, JetBlue’s commitment to “check” a passenger’s bag for the

passenger’s “flight” includes relevant undefined terms that do not create the clear

commitment Alatortev asserts. Considering the provision in juxtaposition with

“the restrictions set forth” in the terms following it, and in context of the COC’s

language as a whole, the provision is not reasonably susceptible to the meaning

Alatortev seeks to give it.




                                          4
      Third, the canon that written agreements must be interpreted, if possible, to

avoid absurd results, Gen. Cas. Co. of Am. v. Azteca Films, Inc., 278 F.2d 161, 168

(9th Cir. 1960), requires that we reject Alatortev’s proposed construction.

Alatortev maintains that JetBlue’s contractual duty to transport baggage on

passengers’ respective flights is separate from its aspiration of timely delivery. But

imposing such a duty would yield absurd outcomes, such as an automatic baggage

fee refund whenever a bag precedes a passenger to his or her destination. JetBlue’s

construction avoids these types of absurdities.

      For these reasons, the district court correctly held Alatortev’s contract-based

claims are not facially plausible, warranting dismissal.

      AFFIRMED.




                                          5
