Berlin v. Jetblue Airways Corp., 18-CV-1545 (MKB) (LB)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtMARGO K. BRODIE, United States District Judge
Citation436 F.Supp.3d 550
Decision Date30 January 2020
Docket Number18-CV-1545 (MKB) (LB)
Parties Moshe BERLIN, Plaintiff, v. JETBLUE AIRWAYS CORPORATION, Mary Daly, Kevin Flanagan, Philemon Eubanks and John/Jane Does, Defendants.

436 F.Supp.3d 550

Moshe BERLIN, Plaintiff,
v.
JETBLUE AIRWAYS CORPORATION, Mary Daly, Kevin Flanagan, Philemon Eubanks and John/Jane Does, Defendants.

18-CV-1545 (MKB) (LB)

United States District Court, E.D. New York.

Signed January 30, 2020


MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge

436 F.Supp.3d 555

Plaintiff Moshe Berlin, proceeding pro se , commenced the above-captioned action on March 13, 2018, against Defendants JetBlue Airways Corporation ("JetBlue"), Mary Daly, Kevin Flanagan, Philemon Eubanks, and John and Jane Does employees of JetBlue, alleging violations of his rights under state and federal law based on events occurring during a flight from Mexico to Florida. (Compl., Docket Entry No. 1.) Plaintiff alleges claims under the Air Carrier Access Act of 1986, Articles 17 and 19 of the Warsaw and Montreal Conventions, 42 U.S.C. § 1983, New York state law, and the New York City Administrative Code § 8-101 et. seq. (Id. )

Currently before the Court is a report and recommendation from Magistrate Judge Lois Bloom recommending that the Court deny Plaintiff's application to amend the Complaint (the "R&R"). ( R&R 1, Docket Entry No. 65.) Plaintiff objects to the R&R, (Pl. Obj. to R&R ("Pl. Obj."), Docket Entry No. 66), and Defendants oppose Plaintiff's objections (Defs. Reply to Pl. Obj. to R&R ("Defs. Reply"), Docket Entry No. 67). For the reasons discussed below, the Court adopts the R&R and denies Plaintiff's application to amend the Complaint.

I. Background

The Court assumes familiarity with the underlying facts as detailed in the R&R and provides only a summary of the pertinent facts.

a. Factual background

Plaintiff is a 47-year-old resident of Kings County, New York. (Compl. ¶¶ 2–3.) Originally from Israel, Plaintiff is "a member of the Jewish cultural community" and his first language is Yiddish. (Id. ¶ 3.) JetBlue is a corporation organized under the laws of New York with its principal place of business in Queens County. (Id. ¶¶ 11, 13.) Daly, Flanagan, and Eubanks are "agent[s], servant[s] and/or employee[s]" of JetBlue. (Id. ¶¶ 17–20.)

Plaintiff's claims arise out of an incident that occurred on March 22, 2016, aboard JetBlue flight number 1324 from Mexico City to Orlando, Florida (the "Flight"). (Id. ¶¶ 26–27.) Twenty minutes into the Flight, Plaintiff became "dehydrated and felt discomfort in his throat." (Id. ¶ 32.) To alleviate the discomfort, Plaintiff sought assistance from a flight attendant asking for "ICES."1 (Id. ¶¶ 33–34.) An employee provided Plaintiff with a small cup of ice in response. (Id. ¶ 36.) Plaintiff's discomfort persisted and he sought further assistance. (Id. ¶ 37.) Unable to locate a flight attendant nearby, Plaintiff left his seat and began looking for assistance. (Id. ¶ 38.) After locating another flight attendant, Plaintiff made a second request for "ICES," while pointing to his throat. (Id. ¶ 39.) Without seeking clarification, the flight attendant alerted other staff that Plaintiff was saying "ISIS." (Id. ¶¶ 40–41.)

Plaintiff contends that after being alerted that Plaintiff was saying "ISIS", the other flight attendants began beating him, resulting in injuries to his left eye and teeth, (id. ¶ 42), and that during the incident, Flanagan used derogatory language against Jewish people, (id. ¶¶ 43, 45), and told Plaintiff that he had the authority to kill him, (id. ¶ 43). Plaintiff continued to

436 F.Supp.3d 556

request "ICES" during the alleged beating, which concluded when the flight attendants realized Plaintiff was asking for ice. (Id. ¶¶ 48–49, 51.) The employees then threw ice on the ground for Plaintiff to pick up with his mouth. (Id. ) Plaintiff was detained by the flight attendants for the remainder of the flight, (id. ¶ 52), and was handed over to Customs and Border Protection, Transportation Security Administration ("TSA"), and the Orlando police department upon arrival in Florida, (id. ¶¶ 53–54).

Plaintiff alleges that he was interrogated for eight hours regarding the in-flight incident, (id. ¶ 55), and was subsequently prosecuted for interfering with flight crewmembers and attendants, (id. ¶ 56). Plaintiff was indicted in the Middle District of Florida for interfering with a flight crew member pursuant to 49 U.S.C. § 46504, (see Compl. ¶¶ 157, 177 (citing "Criminal Case 6:16-cr-67-Orl-18GJK")), and was ultimately found not guilty by reason of insanity and released from custody in February of 2017. (See Proposed Am. Compl. ("PAC") ¶ 98, annexed to Pl. Renewed Mot. for Pre-Mot. Conference as Ex. 1, Docket Entry No. 63-1; see also USA v. Berlin , No. 6:16-CR-00067 (M.D. Fla. terminated Apr. 4, 2018) (the "Criminal Prosecution").) Plaintiff alleges that he spent eleven months in prison. (Id. ¶ 57.) In addition, Plaintiff alleges that because of his arrest and detention, he missed his daughter's wedding, (id. ¶ 58), "lost his marriage" (id. ¶¶ 58, 61), and continues to suffer from psychological injuries, (id. ¶ 64), including nightmares and flashbacks, (id. ¶ 65).

b. Procedural background

In the Complaint, Plaintiff asserted twelve separate claims under the Air Carrier Access Act of 1986, 14 C.F.R. § 382.141(a) (the "ACAA"), Articles 17 and 19 of the Warsaw and Montreal Conventions, 42 U.S.C. § 1983, and common law. (Id. ¶¶ 67–188). At a pre-motion conference on April 27, 2018, the Court dismissed Plaintiff's section 1983 claims and his claims for negligent training, assault and battery, excessive force, disability discrimination, intentional infliction of emotional distress, abuse of process, malicious prosecution, and false arrest. (Min. Order dated Apr. 27, 2018). The Court allowed Plaintiff's claim for bodily injury under the Warsaw Convention and Montreal Convention (collectively, the "Montreal/Warsaw Conventions"), to proceed.2 (Id. ) Three days after the pre-motion conference, on May 1, 2018, Plaintiff retained counsel. (Notice of Appearance for Chauncey D. Henry, Docket Entry No. 18.)

On June 12, 2018, Judge Bloom held an initial conference and issued a scheduling order, setting deadlines for any amendment of the pleadings and the completion of fact discovery, including a June 26, 2018 deadline to amend the pleadings or join other parties. (See Order dated June 12, 2018 (citing Fed. R. Civ. P. 16(b)(3)(A).) Plaintiff did not seek to amend the Complaint on or before the June 26, 2018 deadline.

On May 7, 2019, almost a year after the deadline to amend the pleadings, Plaintiff filed a request for a pre-motion conference in anticipation of his motion to amend the Complaint and a renewed request with a proposed amended complaint ("PAC") on May 3, 2019. (Pl. Mot. for Pre-Mot. Conference, Docket Entry No. 56; Pl. Renewed Mot.) Defendants opposed Plaintiff's requests, (Defs. Opp'n to Pl. Mot. for Pre-Mot. Conference, Docket Entry No. 58; Defs. Opp'n to Pl. Renewed Mot.

436 F.Supp.3d 557

("Defs. Opp'n"), Docket Entry No. 64.) The Court referred Plaintiff's motion to Judge Bloom for a report and recommendation. (Order dated May 14, 2019.)

c. Proposed amended complaint

In the PAC, Plaintiff seeks to replead five claims — a section 1983 claim, a claim for negligent training under the ACAA, and state law claims for battery, intentional infliction of emotional distress, and false arrest. (See PAC ¶¶ 106–20 ( section 1983 ), 125–34 (negligent training), 135–40 (battery), 141–45 (intentional infliction of emotional distress), 150–155 (false arrest).) Plaintiff also seeks to add a new claim for false imprisonment.3 (See id. ¶¶ 146–49.)

The PAC also includes additional factual allegations as to the chronology of events that occurred during the Flight and about JetBlue's policies regarding in-flight security and inflight medical events or emergencies. (Id. ¶¶ 12–105.) Plaintiff alleges that, at the time of his request for "ICES," he experienced "severe chest pains" that he "believed were the result of an oncoming heart attack or other severe previously undiagnosed cardiac condition." (Id. ¶¶ 44–45.) In addition to requesting "ICES" from a flight attendant, Plaintiff made "requests for medical attention," (id. ¶ 47), and Defendants "made no meaningful effort to ... properly handle an inflight medical event or emergency," (id. ¶¶ 48–52). Plaintiff collapsed in the aisle of the aircraft and was transported to the rear of the plane by the flight attendants where he awoke and made a renewed request for "ICES" before the flight attendants handcuffed him, tied his legs together, and beat him about his face, mouth, and body. (Id. ¶¶ 53–72.) When the plane landed in Florida, Flanagan made false reports to law enforcement that Plaintiff was carrying a "razor" and made bomb threats during the flight. (Id. ¶¶ 85–95.)

In support of his section 1983 claim, Plaintiff alleges that Flanagan's statement "led to Plaintiff being criminally charged and prosecuted" because Flanagan falsely told law enforcement that Plaintiff "stood up and charged at him," "threatened the use of a bomb," was "in possession of a ‘razor’ type disk or object aboard [the Flight]" and that "Plaintiff shouted profanities, threats of [d]eath to America and expressed violent religious ideologies associated with an Islamic...

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8 practice notes
  • Wright-Phillips v. United Airlines, Inc., Civ. No. 20-14609 (KM) (ESK)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • April 1, 2021
    ...aid the police to arrest passengers do not thereby transform themselves into state actors. See, e.g., Berlin v. JetBlue Airways Corp., 436 F. Supp. 3d 550, 562-63 (E.D.N.Y. 2020); Parver v. Jet Blue Airlines Corp., 649 F. App'x 539, 543 (9th Cir. 2016); Al-Watan v. Am. Airlines, Inc., 658 F......
  • De Abreu v. Johnson Controls Fire Prot. LP, 18-CV-2686 (JMA)(ARL)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 27, 2021
    ...for claims of intentional infliction of emotional distress is one year. See N.Y. CPLR §215(3); Berlin v. Jetblue Airways Corp., 436 F.Supp.3d 550, 565 (E.D.N.Y. 2020). Thus, since any conduct occurring prior to May 7, 2017 is time-barred, the only conduct for which a date has been provided ......
  • Shields v. United States, No. 3:18-cv-01655 (JAM)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 31, 2020
    ...and diversity contexts, but these rulings did not have occasion to address in detail the arguments and issues raised in this ruling.7 436 F.Supp.3d 550 The Government also relies on several federal appeals court decisions outside of the Second Circuit. But I agree with the Sixth Circuit tha......
  • City Nat'l Specialty Co. v. Ashley Furniture Indus., 21-CV-05521 (EK) (LGD)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 21, 2022
    ...the futility of the proposed amendment. See, e.g., Chunn v. Amtrak, 916 F.3d 204, 208 (2d Cir. 2019); Berlin v. JetBlue Airways Corp., 436 F.Supp.3d 550, 571 (E.D.N.Y. 2019). “The opposing party likewise bears the burden of establishing that an amendment would be futile.” Seemann v. Coastal......
  • Request a trial to view additional results
8 cases
  • Wright-Phillips v. United Airlines, Inc., Civ. No. 20-14609 (KM) (ESK)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • April 1, 2021
    ...aid the police to arrest passengers do not thereby transform themselves into state actors. See, e.g., Berlin v. JetBlue Airways Corp., 436 F. Supp. 3d 550, 562-63 (E.D.N.Y. 2020); Parver v. Jet Blue Airlines Corp., 649 F. App'x 539, 543 (9th Cir. 2016); Al-Watan v. Am. Airlines, Inc., 658 F......
  • De Abreu v. Johnson Controls Fire Prot. LP, 18-CV-2686 (JMA)(ARL)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 27, 2021
    ...for claims of intentional infliction of emotional distress is one year. See N.Y. CPLR §215(3); Berlin v. Jetblue Airways Corp., 436 F.Supp.3d 550, 565 (E.D.N.Y. 2020). Thus, since any conduct occurring prior to May 7, 2017 is time-barred, the only conduct for which a date has been provided ......
  • Shields v. United States, No. 3:18-cv-01655 (JAM)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 31, 2020
    ...and diversity contexts, but these rulings did not have occasion to address in detail the arguments and issues raised in this ruling.7 436 F.Supp.3d 550 The Government also relies on several federal appeals court decisions outside of the Second Circuit. But I agree with the Sixth Circuit tha......
  • City Nat'l Specialty Co. v. Ashley Furniture Indus., 21-CV-05521 (EK) (LGD)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 21, 2022
    ...the futility of the proposed amendment. See, e.g., Chunn v. Amtrak, 916 F.3d 204, 208 (2d Cir. 2019); Berlin v. JetBlue Airways Corp., 436 F.Supp.3d 550, 571 (E.D.N.Y. 2019). “The opposing party likewise bears the burden of establishing that an amendment would be futile.” Seemann v. Coastal......
  • Request a trial to view additional results

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