Nazmi v. Alaska Airlines Inc.

• Decision Date: 30 July 2010
• Docket Number: No. 06-16457.,06-16457.
• Citation: 621 F.3d 858
• Parties: Azza EID; Amre R. Ginena; Nahid I. Ginena; Reda A. Ginena; Sabrina Kobert; M. Samir Mansour; Nazmi M. Nazmi; M. Magdy H. Rasikh; Heba Nazmi, Plaintiffs-Appellants, v. ALASKA AIRLINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

621 F.3d 858

Azza EID; Amre R. Ginena; Nahid I. Ginena; Reda A. Ginena; Sabrina Kobert; M. Samir Mansour; Nazmi M. Nazmi; M. Magdy H. Rasikh; Heba Nazmi, Plaintiffs-Appellants,

v.ALASKA AIRLINES, INC., Defendant-Appellee.

No. 06-16457.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted April 18, 2008.

Submission Vacated April 23, 2008.

Resubmitted July 30, 2010.

Filed July 30, 2010.

COPYRIGHT MATERIAL OMITTED.

Gilbert Gaynor (argued), Santa Barbara, CA, John F. McHugh, New York, NY, and Allen Lichtenstein, Las Vegas, NV, for the plaintiffs-appellants.

Beth S. Brinkman (argued) and Seth M. Galanter, Morrison & Foerster, LLP, Washington, D.C., Carrie McCrea Hanlon, Pyatt Silverstri & Hanlon, Las Vegas, NV, and Don G. Rushing, William V. O'Connor and Ellen Nudelman, Morrison & Foerster LLP, San Diego, CA, for the defendant-appellee.

Stephen B. Mashney, Mashney Law Offices, Anaheim, CA, for amicus curiae American-Arab Anti-Discrimination Committee.

Jonathan A. Cohen and James W. Johnson, Air Line Pilots Association, International, Herndon, VA, for amicus curiae Air Line Pilots Association, International.

Robert McGeorge and Poolust N Udai Fulena, International Air Transport Association, Washington, D.C., and Andrew J. Harakas, Diane W. Wilson and Barry S. Alexander, Clyde & Co. US LLP, New York, NY, for amicus curiae International Air Transport Association.

David A. Berg and Katherine Andrus, Air Transport Association of America, Inc., Washington, D.C., and Constance O'Keefe, Squire, Sanders & Dempsey LLP, Washington, D.C., for amicus curiae Air Transport Association of America, Inc.

Gregory G. Katsas, Michael S. Raab and Sarang Vijay Damle, U.S. Department of Justice, Washington, D.C., for amicus curiae United States of America.

Tarik S. Adlai, Law Offices of Tarik S. Adlai, Pasadena, CA, for amicus curiae Arab Republic of Egypt.

Appeal from the United States District Court for the District of Nevada, Robert Clive Jones, District Judge, Presiding. D.C. No. CV-04-01304-RCJ.

Before: ALEX KOZINSKI, Chief Judge, N. RANDY SMITH, Circuit Judge and S. JAMES OTERO, District Judge. ^*

Opinion by Chief Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge OTERO.

OPINION

KOZINSKI, Chief Judge:

We consider when airlines may be held liable to passengers on international flights whom they force to disembark before the voyage is completed.

Facts

These are the facts as plaintiffs allege them: On September 29, 2003, a group of Egyptian businessmen, their wives and a Brazilian fiancée, boarded Alaska Airlines Flight 694 in Vancouver, British Columbia. Their journey had started a few days earlier in Cairo and they were headed for a convention on energy-related products and services in Las Vegas. The Egyptians were interested in becoming distributors of natural gas equipment manufactured by a Texas company and, to that end, had scheduled a meeting with officials of that company who were attending the convention.

The nine plaintiffs took up all but three of the first class seats on Flight 694. A tenth passenger was Kimberlie Shealy, an American; she sat next to plaintiff Magdy Rasikh, whom she described as “[a]n Egyptian gentleman” with whom she “was having a pleasant conversation.” Shealy Declaration at ¶¶ 2, 5. According to Shealy, who provides the only independent account of the incident, the flight attendants treated the Egyptians badly. It started “[e]arly in the flight” when Shealy “heard some comment by the young man in row one [plaintiff Amre Ginena] about coach passengers using the first class bathroom to a young blonde flight attendant [apparently Dalee Callaway]. She said something in response but I could see by her face that she did not like the question. I was surprised by her obvious reaction....” Id. at ¶ 4.

About an hour into the flight, Reda Ginena, who was in the front row with his wife and son, stood up to stretch. Shortly thereafter, a second flight attendant, Lee Anne Maykuth, asked him to sit because standing was not permitted right outside the cockpit. Ginena, who was in his 60s, explained that he needed to stretch periodically because back and circulation problems made protracted sitting extremely painful. Maykuth said he could stand at the rear of the first class cabin, near the partition between first class and coach.

Ginena moved to that location, but soon after the third flight attendant, Robin Duus, came up from coach and ordered Ginena to sit down, using what Shealy described as “an unpleasant loud voice.” ¹ Shealy Declaration at ¶ 6. According to Shealy, “[i]t was obvious from body language that [Duus] ... was not in a good mood from the beginning of the flight.” Id. at ¶ 5. “[S]he had been glaring at [the Egyptian] group every time she passed through the first class cabin. She wasn't looking at me like that.” Id. at ¶ 6. Duus claims that at the beginning of the flight Reda Ginena made “a put down to [my] intelligence and my roll [sic] as an authority figure” by asking a scientific question. Duus refused to answer Ginena's question because it “wasn't really pertinent to anything. It was just an interruption.” Duus might also have been upset because, immediately before the flight, the airline had given her a Notice of Discipline or Discharge.

After Duus asked him to sit, Ginena immediately took his seat but Duus continued to hector him: “She wanted to reiterate the fact that he was not supposed to be in the aisle.” ² Shealy Declaration at ¶ 7. Ginena responded, “I am sitting down,” and Duus “then gave them a piece of paper and insisted that they fill it out. The older gentleman [Ginena] looked shocked.” Id. The form in question was a Customer Inflight Disturbance Report; it was designed to be filled out by flight crew, not passengers. ³ Ginena's son asked what the form was. According to Ginena, “[Duus] yelled at [my son] to ‘zip it up, end of discussion’....” Ginena Declaration at ¶ 13.

Ginena the elder eventually figured out that the form was actually supposed to be filled out by Duus, and tried to tell her so. ⁴ In response, Duus “went ballistic and began pacing between the first row and the galley and yelling. She was completely irrational, [Ginena] and his son could not get a word in.” Shealy Declaration at ¶ 7. Shealy also reports that, “[e]ven at the height of the argument the people in row one were respectful to the flight attendant to the extent that they could be under the circumstances.” ⁵ Id. at ¶ 15. She “saw no sign that any person in the first class section was drunk, nor did [she] observe any misconduct of any kind” on the part of the passengers. Id. at ¶ 3. According to Shealy, the Egyptian passengers “were being accused of something that they clearly did not understand and were being humiliated before the entire aircraft as the flight attendant [Duus] was yelling at the top of her lungs.” Id. at ¶ 8.

Mrs. Ginena then told Duus that she couldn't treat passengers this way, to which Duus responded “I will show you what I can do to you” and thrust another form into her hands. Ginena Declaration at ¶ 14. Soon afterwards, according to Shealy, “the flight attendant [Duus] said ‘that's it I'm taking this plane down[.’] All discussion and loud voices stopped. She went and got a phone and was standing for a second in the middle of the aisle by the galley,” and soon thereafter the plane started “a quick descent.” Shealy Declaration at ¶¶ 9-10.

When Duus called the cockpit, she announced that she had “lost control of the first-class cabin.” Swanigan Deposition at 96. ⁶ Captain Michel Swanigan and First Officer James Roberts asked no questions; neither looked through the cockpit window to see what was going on in the cabin. Instead, Swanigan immediately diverted the plane to Reno, where local police and TSA officials were waiting at the gate. The Reno-Tahoe Airport police then came onto the aircraft and the passengers were disembarked.

Plaintiffs, Swanigan and the flight attendants gave written statements to the police. Plaintiffs protested their innocence but the crew wanted to have plaintiffs arrested. Captain Swanigan was adamant that plaintiffs be taken to jail: “I said [to Flight Attendant Callaway], I want them off the airplane. I want them arrested.... One of [the police officers] said, If you want to press charges, you are going to have to file a report. I said, No problem; I'll do it.” Swanigan Deposition at 116-20. ⁷

Nevertheless, the police and TSA quickly cleared plaintiffs to continue flying. They then asked Swanigan to let them reboard Flight 694 to its destination but Swanigan declined, giving as the reason that “his flight attendant would not allow it.” Rasikh Declaration at ¶ 15. So, with the help of TSA and local police, plaintiffs booked seats on America West. They were allowed to board this flight even though Alaska contacted America West and urged that plaintiffs be denied passage.

After Flight 694 took off, leaving plaintiffs behind, a flight attendant announced to the remaining passengers that plaintiffs had interfered with the flight crew and were responsible for the diversion. Following the incident, Alaska issued this statement: “I know many of us feel that we were let down because these people were not arrested and also puzzled and dismayed by the ability these same passengers had as they proceeded to another airline, bought tickets and flew to their original destination. Just in case you are wondering, we did inform the other airline of these people and the incident. One has to question if the system really works.” Alaska Airlines Chief Pilot's Newsletter, Oct. 2, 2003. Alaska also reported all nine plaintiffs to the Joint Terrorism Task Force.

Plaintiffs suffered serious consequences. Because they had to take a later flight, they missed their scheduled meeting with the manufacturer of natural gas equipment that they had hoped to distribute in Egypt. The meeting was rescheduled but, on the afternoon of the meeting, plaintif...