Ahmed v. Air France-KLM

• Decision Date: 25 February 2016
• Docket Number: 1:13-cv-1984-WSD
• Citation: 165 F.Supp.3d 1302
• Parties: Filsan Ahmed, individually and on behalf of her minor children A.F. and S.F., Awil Falag, Mohamed Ismael, and Abdikadir Ali, Plaintiffs, v. Air France-KLM, John Does 1 through 12, and Koninklijke Luchtvaart Maatschappij, N.V., d/b/a KLM Royal Dutch Airlines, Defendants.
• Court: U.S. District Court — Northern District of Georgia

165 F.Supp.3d 1302

Filsan Ahmed, individually and on behalf of her minor children A.F. and S.F., Awil Falag, Mohamed Ismael, and Abdikadir Ali, Plaintiffs,

v.Air France-KLM, John Does 1 through 12, and Koninklijke Luchtvaart Maatschappij, N.V., d/b/a KLM Royal Dutch Airlines, Defendants.

1:13-cv-1984-WSD

United States District Court, N.D. Georgia, Atlanta Division.

Signed February 25, 2016

Jamie Blaxton Carroll, Michael Weiss, Carroll & Weiss, LLP, Atlanta, GA, for Plaintiffs.

Teddy Lee Sutherland, Matthew P. Lazarus, David Cole Rhodes, Scrudder, Bass, Quillian, Horlock, Taylor & Lazarus LLP, Atlanta, GA, Bartholomew J. Banino, Condon & Forsyth, New York, NY, for Defendants.

OPINION AND ORDER

WILLIAM S. DUFFEY, JR.

, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Koninklijke Luchtvaart Maatschappij, N.V. d/b/a KLM Royal Dutch Airlines' (“KLM”) Motion for Summary Judgment [108] (“Motion”).

I. BACKGROUND¹

A. Introduction

Plaintiffs Filsan Ahmed, individually and on behalf of her minor children A.F. and S.F., Awil Falag, Mohamed Ismael, and Abdikadir Ali (“Plaintiffs”) are ethnic Somalis and naturalized American citizens. (Plaintiff's Statement of Material Facts [125.1] (“PSOMF”) ¶ 3). Plaintiffs contend that KLM employees in Nairobi, Kenya, discriminated against Plaintiffs on the basis of their Somali ethnicity, demanded bribes, and prevented Plaintiffs from boarding their flights to the United States. In their First Amended Complaint [5] (“Complaint”), Plaintiffs allege claims of false imprisonment, fraud, conversion, intentional infliction of emotional distress, violation of the Georgia RICO Act, violation of 42 U.S.C. § 1981

, breach of contract of carriage, breach of covenant of good faith and fair dealing, negligence, and loss of consortium.

On April 8, 2015, Plaintiffs voluntarily dismissed [106] Defendants John Thumi and Jurriaan Stelder, and, as a result, Plaintiffs' claims against these individual defendants for false imprisonment, fraud, conversion, and intentional infliction of emotional distress (the “Tort Claims”) against Mr. Thumi and Mr. Stelder are not pending claims in this action. The claims that remain against the corporate Defendants Air France-KLM and KLM are claims under the Georgia RICO Act, claims under Section 1981

, claims for breach of contract of carriage based on an alleged failure to travel on a KLM flight, breach of good faith and fair dealing for denying Plaintiffs carriage on a KLM flight, loss of consortium resulting from failure to allow Plaintiffs to travel on a KLM flight, negligent hiring and retention, and the Tort Claims for which Plaintiffs allege Air France-KLM and KLM are vicariously liable.

B. Facts Pertinent to Plaintiff Mohamed Ismael

After spending time in Kenya, Plaintiff Mohamed Ismael purchased a ticket to travel to the United States via Amsterdam on a KLM flight departing on June 3, 2011. (Id. ¶ 6). After Mr. Ismael passed through airport security prior to his June 3, 2011, flight, he entered the KLM ticket and check-in line, where he was asked to provide his travel documents, including his ticket, re-entry permit, and green card. (Id. ¶¶ 8-9). At the ticket and check-in counter, he spoke to a supervisor named “Thumi.” (Id. ¶ 10). KLM personnel instructed Mr. Ismael to enter Mr. Thumi's office. (Id. ¶ 11).²

In his office, Mr. Thumi solicited a bribe from Mr. Ismael, which Mr. Ismael refused to pay. (Id. ¶ 13). Mr. Thumi told Mr. Ismael that there were issues with his travel documentation, and that Mr. Ismael needed to pay him $400 to get on the flight. (Id. ¶ 16).³

As a result of this incident, Mr. Ismael was not able to board his June 3, 2011, flight. He was forced to travel the next day, June 4, 2011, after obtaining a new ticket through Delta Airlines, a KLM partner. (Id. ¶¶ 7, 21). Mr. Ismael testified his economic damages consist of approximately $100 for a hotel on the night of June 3, 2011; $200 for the purchase of a cellular phone and SIM card; $40 for a cab from his hotel to the KLM office in Nairobi; and unspecified amounts for cabs to and from the airport. (Id. ¶ 20).⁴

C. Facts Pertinent to Plaintiff Filsan Ahmed

On or about August 31, 2010, Filsan Ahmed travelled on a KLM flight from Atlanta, Georgia to Amsterdam, on her way to her ultimate destination, Nairobi, Kenya. (Defendant's Responses to Plaintiff's Statement of Additional Material Facts (“RPSOMF”) ¶ 105). On August 29, 2011, Ms. Ahmed and her two daughters planned to return to the United States via Amsterdam on a KLM flight. (PSOMF ¶ 23). On her arrival at Jomo Kenyatta International Airport (“JKIA”) in Nairobi to return to Atlanta, she passed through security, and made her way to the ticket counter. (Id. ¶ 24). All of the KLM employees with whom she interacted at the ticket counter were ethnic Kenyans. (Id. ¶ 25). Ms. Ahmed presented her green card, ticket, and Somali passport to a ticket agent. (Id. ¶ 26). The ticket agent told her that her Somali passport was not a valid travel document. (Id. ¶ 27). After Ms. Ahmed questioned the ticket agent's assertion, the ticket agent called John Thumi. (Id. ¶ 28).

Mr. Thumi told Ms. Ahmed the American government does not recognize Somali passports. (Id. ¶ 29). Ms. Ahmed followed Mr. Thumi to his office. As they talked, she stood at his office door. (Id. ¶ 30). Ms. Ahmed tried to convince Mr. Thumi her documents were valid. (Id. ¶¶ 31, 35).⁵

Ms. Ahmed missed her planned flight. (Id. ¶ 34). After Mr. Thumi told her she could not travel on her documents, she followed him for 30-45 minutes trying to convince him otherwise. (Id. ¶ 36). The following day, Ms. Ahmed went to KLM's office in downtown Nairobi. (Id. ¶ 37). On or about September 1, 2011, she met with KLM employee Jurrian Stedler. (Id. ¶ 38).⁶

A day or two after Ms. Ahmed spoke with Mr. Stedler, Mr. Thumi called her on the phone. (Id. ¶ 42). Ms. Ahmed testified that, during this call, Mr. Thumi solicited a bribe, and told her she would need to sign a waiver of her right to sue KLM. (Id. ¶ 43). Ms. Ahmed refused to sign a waiver. (Id. ¶ 44). She testified that she was afraid she would be stuck at JKIA “with no home, nobody with me.” (RPSOMF ¶ 104).⁷

Ms. Ahmed subsequently traveled to the United States on Qatar Airways on September 18, 2011. (Id. ¶ 46).

D. Facts Pertinent to Plaintiff Abdikadir Ali

On December 4, 2011, Mr. Ali planned to travel on a KLM flight from Nairobi, Kenya to the United States, with a stopover in Amsterdam. (Id. ¶ 48). After showing his passport and itinerary to security personnel, he made his way to the KLM ticket counter. (Id. ¶ 49). As he approached the counter, he was escorted to a nearby room where John Thumi was present. (Id. ¶ 50). Mr. Ali testified that Mr. Thumi informed him his travel documents were invalid. (Id. ¶ 51).⁸ Mr. Ali did not lodge any complaints with KLM regarding his treatment. (Id. ¶ 55).

E. Facts Pertinent to Plaintiffs A.F. and S.F., Minor Children

Neither Mr. Thumi nor any KLM employees ever touched or yelled at A.F. and S.F., Plaintiff Ahmed's children. (Id. ¶¶ 56-57). KLM employees did not yell at Ms. Ahmed in front of her children. (Id. ¶ 58). Neither Mr. Thumi nor Mr. Stedler ever directly spoke with the children, and they were not with Ms. Ahmed when she interacted with Mr. Stedler. (Id. ¶¶ 60-61). Ms. Ahmed has not sought counseling for her children as a result of the incident in Kenya, though she stated that she “wanted to go for counseling for the kids but could not afford it.” (Id. ¶ 62). A.F. and S.F.'s tickets were refunded. (Id. ¶ 63).

F. Facts Pertinent to Plaintiff Awil Falag

Mr. Falag, Ms. Ahmed's husband, is the only plaintiff who has asserted a loss of consortium claim. (Id. ¶ 64). The incident in Kenya did not and has not affected Mr. Falag's physical relationship with his wife. (Id. ¶ 66). Both Mr. Falag and Ms. Ahmed testified that the alleged incidents have not and did not impact their marriage. (Id. ¶ 67). Delta Airlines, as a partner of KLM, refunded A.F. and S.F.'s airline tickets, and provided the family with travel vouchers. (Id. ¶ 68).

G. Facts Pertinent to KLM

1. Customer Complaint System

KLM customer complaints are typically handled by various customer care centers, each of which has an individual manager. (RPSOMF ¶ 72). When a customer makes a remark, KLM personnel ask if the customer wants to file a complaint. If the customer says yes, the complaint is entered into a complaint system. (Id. ¶ 74).

Karen Plug, a KLM employee who manages lawsuits in which KLM is involved, is not responsible for customer complaints, but testified she investigates certain “strong allegations.” (RPSOMF ¶ 71). Ms. Plug does not know if any investigations were performed regarding the rate of complaints for fraud and extortion involving Mr. Thumi. (Id. ¶ 73). She also testified that bribery is contrary to KLM's Code of Conduct and is also grounds for termination. (PSOMF ¶ 69). Ms. Plug testified that KLM's complaint system does not contain a specific code for bribes, and that there is only one database for customer complaints. (RPSOMF ¶¶ 79, 80). She testified that no one at KLM's Amsterdam office would be able to determine, by looking at the complaint system, if an employee was soliciting bribes at JKIA. Any complaint of bribery would have to be would have to be reported to the local KLM office in order for it to be investigated. (Id. ¶ 81).

Prior to this case, Ms. Plug never had a reason to examine the conduct of John Thumi. (RPSOMF ¶ 75). After the lawsuit was filed, Ms. Plug investigated the alleged incidents by: (1) searching for complaints at JKIA, (2) searching for other lawsuits at JKIA, (3) searching for other complaints of “discrimination,” (4) searching for similar claims at the customer care center, and (5) asking KLM's insurance company whether there were similar claims against KLM. (Id. ¶ 76). KLM personnel searched Facebook and Twitter for similar complaints. (Id. ¶ 77). Ms. Plug searched for discrimination complaints...