Adamore v. Southwest Airlines Corp.

• Decision Date: 15 December 2011
• Docket Number: CIVIL ACTION NO. H-11-0564
• Parties: LORRINE ADAMORE,1Plaintiff, v. SOUTHWEST AIRLINES CORP., CUSTOMER SERVICE, CHRISTINA DOE, THE CITY OF HOUSTON, ANISE PARKER, TRANSPORTATION SECURITY ADMINISTRATION, DEPARTMENT OF HOMELAND SECURITY, WM. P. HOBBY AIRPORT, FEDERAL AVIATION ADMINISTRATION, J. RANDOLPH BABBITT, CATHERINE EMERSON, DAVID WEINGART, DAVID GRIZZIE, SASHA JOHNSON, FANNY RIVERA, MARGARET GILLIGAN, CHRISTA FORNAROTTO, PAULA LEWIS, MARY CASE, JANE DOE, JOHN DOE, ANGEL MORENO, ERIC HOLDER, JR., RICK PERRY, GENE KELLY, DEPARTMENT OF TRANSPORTATION, JOHN DOE TSA, MARGO SCHLANGER, and MARILEE MCINNIS, Defendants.
• Court: U.S. District Court — Southern District of Texas

LORRINE ADAMORE,¹Plaintiff,

v. SOUTHWEST AIRLINES CORP., CUSTOMER SERVICE,CHRISTINA DOE, THE CITY OF HOUSTON, ANISE PARKER,TRANSPORTATION SECURITY ADMINISTRATION, DEPARTMENT OF HOMELAND SECURITY,WM. P. HOBBY AIRPORT, FEDERAL AVIATION ADMINISTRATION, J. RANDOLPH BABBITT,CATHERINE EMERSON, DAVID WEINGART, DAVID GRIZZIE, SASHA JOHNSON, FANNY RIVERA,MARGARET GILLIGAN, CHRISTA FORNAROTTO, PAULA LEWIS, MARY CASE, JANE DOE, JOHN DOE,ANGEL MORENO, ERIC HOLDER, JR., RICK PERRY, GENE KELLY,DEPARTMENT OF TRANSPORTATION, JOHN DOE TSA, MARGO SCHLANGER, and MARILEE MCINNIS, Defendants.

CIVIL ACTION NO. H-11-0564

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Dated: December 15, 2011

MEMORANDUM AND ORDER

Pending are: Defendants City of Houston's, Mayor Annise Parker's, and Mary Case's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6), and, in the Alternative, Motion for A More Definite Statement Pursuant to Federal Rule of Civil Procedure 12(e) (Document No. 20); Defendants Southwest Airlines, Co.'s, Gary Kelly's, and Marilee McInnis's Motion to Dismiss and, in the Alternative, Motion for A More Definite Statement (Document No. 21); Defendant Rick Perry's Motion to Dismiss and in the Alternative Motion for More Definite Statement (Document No. 39); and Motion to Dismiss by Defendants U.S. Department of Homeland Security ("DHS"), Transportation Security Administration ("TSA"), Federal Aviation Administration ("FAA"), U.S. Department of Transportation ("DOT"), Eric Holder, Jr., Jose Angel Moreno, Catherine Emerson, David Weingart, David Grizzle, Sasha Johnson, Fanny Rivera, Margaret Gilligan, Christa Fornarotto, and Paula R. Lewis (Document No. 40). Plaintiff has not filed responses to oppose any of these motions, nor has she moved to amend once again her Amended Complaint to overcome the defects argued byDefendants.² After considering the motions, the applicable law, and the pleadings on file, the Court concludes as follows.

I. Background

Pro se Plaintiff and first-time flyer Lorrine Adamore ("Plaintiff") had a frustrating and emotionally charged day at the William P. Hobby Airport in Houston on February 1, 2010, from where she planned to fly to Chicago to visit her dying mother, Bernice Adamore. Her first problem was at the security checkpoint when the Transportation Security Administration ("TSA") agent did not acceptPlaintiff's identification ("I.D."), which consisted of a State of Texas temporary I.D. and a State of Illinois notarized birth certificate from the Bureau of Vital Statistics.³ The TSA agent eventually allowed Plaintiff to pass after obtaining her fingerprints and conducting a search.⁴ By this time Plaintiff's Southwest Airlines flight to Chicago was already boarding.⁵ TSA officials summoned an airport transport cart to take Plaintiff directly to her gate, but the two airport personnel who operated the cart let her off at the wrong gate after arguing with each other about where the correct gate was located.⁶ Plaintiff did not realize this mistake until her brother called and informed her that her flight had already departed. Plaintiff then sought help from a customer service representative for Southwest Airlines, who allegedly showed no sympathy for Plaintiff and told her that she was unable to book another flight that day without paying an additional fare of $600 for an upgraded seat.⁷ Plaintiff explained that she had no more money, her mother was dying, and she needed to get to Chicago; the Southwest agent then allegedly re-booked Plaintiff on a flight for the next day and threatened to charge hera fee to upgrade her ticket.⁸ Plaintiff was so distraught by the agent's refusal to place Plaintiff on another flight that same night at no extra charge and her demand for Plaintiff to leave the airport premises that Plaintiff "fell face forward to floor and started crying out Momma, Momma, Momma."⁹ Plaintiff left the airport after Houston Police Officers acquired a cab for her and contributed the funds necessary to pay the $40.00 fare for her ride home.¹⁰ Plaintiff later called Southwest Airlines to complain about her treatment at the airport, and Southwest Airlines re-booked Plaintiff on a flight "with a revised discounted ticket" for February 2, 2010.¹¹ Plaintiff's mother died that day before Plaintiff was able to see her.¹²

Plaintiff filed this suit after hearing on the news that a Southwest Airlines pilot had held a flight at Los Angeles Airport (LAX) for twelve minutes to allow a grieving white grandfather to make his flight to see his dying grandson.¹³ According to theinternet news reports filed by Plaintiff as part of her pleadings, Mark Dickinson, who was delayed in security, "held back tears as he pleaded with TSA and Southwest Airlines staff to fast-track him through the lines that were moving like molasses. Even though missing his flight could mean missing a final chance to see his grandson, no one seemed to care."¹⁴ However, "in the meantime, wife Nancy Dickinson had decided to call the airline to see if there was any way Southwest could hold the flight."¹⁵ Mark Dickinson was able to make the flight because the Southwest pilot had decided to wait for him.¹⁶

Plaintiff, a black female over the age of forty, who asserts that she is disabled, alleges that she was treated differently from Mark Dickinson and that she is entitled to over $41 million per count in damages.¹⁷ Plaintiff asserts attempted extortion for higher airfares, retaliation, and intentional infliction of emotional distress against the Southwest Defendants for the actions of their gate agent, and further asserts race, sex, and agediscrimination under the Civil Rights Act of 1964, Discrimination in Public Accommodations (42 U.S.C. 2000a et seq.),¹⁸ 42 U.S.C. §§ 1983 and 1985, and violations of the Fourteenth Amendment of the United States Constitution, the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and 18 U.S.C. §§ 241 and 242¹⁹ against all Defendants. Four general groups of Defendants have filed four motions to dismiss, asserting that Plaintiff has not stated a claim for which relief can be granted.²⁰ Additionally, the Federal Defendants and Governor Perry challenge this Court's subject matter jurisdiction over Plaintiff's claims against them, asserting sovereign immunity.

II. Legal Standards

"Because sovereign immunity deprives the court of jurisdiction, the claims barred by sovereign immunity can be dismissed only under Rule 12(b)(1) and not with prejudice." Warnock v. Pecos Cnty., Tex., 88 F.3d 341, 343 (5th Cir. 1996). Under Rule 12(b)(1), a party can seek dismissal of an action for lack of subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). The burden of establishing subject matter jurisdiction is on the party seeking to invoke it. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Rule 12(b)(1) challenges to subject matter jurisdiction come in two forms: "facial" attacks and "factual" attacks. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981); Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). A facial attack, which consists of a Rule 12(b)(1) motion unaccompanied by supporting evidence, challenges the court's jurisdiction based solely on the pleadings. Paterson, 644 F.2d at 523. When presented with a facial challenge to subject matter jurisdiction, the court examines whether the allegations in the pleadings are sufficient to invoke the court's subject matter jurisdiction, assuming the allegations to be true. Id.; Simmang v. Tex. Bd. of Law Examiners, 346 F. Supp. 2d 874, 880 (W.D. Tex. 2004). When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the Court should consider the Rule 12(b)(1)jurisdictional attack before addressing the attack on the merits. Ramming, 281 F.3d at 161; see also Simmang, 346 F. Supp. 2d at 880.

Rule 12(b)(6) provides for dismissal of an action for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). When a district court reviews the sufficiency of a complaint before it receives any evidence either by affidavit or admission, its task is inevitably a limited one. See Scheuer v. Rhodes, 94 S. Ct. 1683, 1686 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 102 S. Ct. 2727 (1982). The issue is not whether the plaintiff ultimately will prevail, but whether the plaintiff is entitled to offer evidence to support the claims. Id.

In considering a motion to dismiss under Rule 12(b)(6), the district court must construe the allegations in the complaint favorably to the pleader and must accept as true all well-pleaded facts in the complaint. See Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). To survive dismissal, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). "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." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While a complaint "does not need detailed factual allegations . . . [the] allegations must be enough to raise a rightto relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 127 S. Ct. at 1964-65 (citations and internal footnote omitted).

"If a complaint is ambiguous or does not contain sufficient information to allow a responsive pleading to be framed, the proper remedy is a motion for a more definite statement under Rule 12(e)." Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999). "A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." FED. R. CIV. P. 12(e). The motion "must point...