Conservation Force v. Delta Air Lines, Inc., 3:15-CV-3348-M

• Citation: 190 F.Supp.3d 606
• Decision Date: 06 June 2016
• Docket Number: No. 3:15-CV-3348-M,3:15-CV-3348-M
• Parties: Conservation Force, Dallas Safari Club, Houston Safari Club, Corey Knowlton, the Campfire Association, and the Tanzania Hunting Operators Association, Plaintiffs, v. Delta Air Lines, Inc., Defendant.
• Court: U.S. District Court — Northern District of Texas

190 F.Supp.3d 606

Conservation Force, Dallas Safari Club, Houston Safari Club, Corey Knowlton, the Campfire Association, and the Tanzania Hunting Operators Association, Plaintiffs,

v.Delta Air Lines, Inc., Defendant.

No. 3:15-CV-3348-M

United States District Court, N.D. Texas, Dallas Division.

Signed June 6, 2016

James Chris Hudson, Chris C. Hudson PC, Dallas, TX, John J. Jackson, III, Conservation Force, Metairie, LA, for Plaintiffs.

Russell H. Falconer, Gibson, Dunn & Crutcher LLP, Dallas, TX, for Defendant.

MEMORANDUM OPINION & ORDER OF DISMISSAL

BARBARA M. G. LYNN, CHIEF JUDGE

The Court has before it the Motion to Dismiss for Failure to State a Claim of Defendant Delta Air Lines, Inc. ("Delta").

After reviewing the parties' briefing and the applicable law, the Court GRANTS Delta's Motion.

I. BACKGROUND¹

This dispute arises out of Delta's decision to stop transporting trophies of lions, leopards, elephants, rhinoceroses, and buffalo that have been legally hunted. These animals are commonly known as the "Big Five." Pls.' Compl. [Docket Entry #1] at ¶ 1. Plaintiffs include Corey Knowlton, described in the Complaint as a hunter-conservationist, as well as domestic and international groups allegedly involved in hunting, conservation and tourism. Id. at ¶¶ 13-18.

In July 2015, after a hunt in Zimbabwe resulted in the death of a lion named Cecil, prompting social media outrage, vandalism, and threats to the hunter and his family, Delta announced it was changing its policy and would no longer transport Big Five trophies. Id. at ¶ 38-41. Plaintiffs condemn Delta's decision because, in their view, tourist safari hunting is a successful conservation strategy. Id. at ¶ 1-2. According to Plaintiffs, such hunts protect at-risk wildlife, by providing revenue to local conservation and anti-poaching efforts. Id. at ¶ 3. Plaintiffs further claim such hunts "incentivize [ ] locals to protect their wildlife as an asset—not to kill it as a nuisance, danger, or black-market commodity." Id. at ¶ 4. Plaintiffs claim that Delta's decision constitutes bad policy and violates the law. Id. The Court is concerned only with the legality of Delta's decision.

II. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must have pled "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In analyzing a motion to dismiss for failure to state a claim under Rule 12(b)(6), this Court accepts all well-pleaded facts as true and views them in the light most favorable to the plaintiff. Thompson v. City of Waco , 764 F.3d 500, 502 (5th Cir.2014) ; In re Katrina Canal Breaches Litig. , 495 F.3d 191, 205 (5th Cir.2007). The Court will not, however, "accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions."

Great Lakes Dredge & Dock Co. LLC v. La. State, 624 F.3d 201, 210 (5th Cir.2010).

A "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Howe v. Yellowbook, USA , 840 F.Supp.2d 970, 975 (N.D.Tex.2011) (Lynn, J.) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Lone Star Nat'l. Bank, N.A. v. Heartland Payment Sys., Inc. , 729 F.3d 421, 423 (5th Cir.2013) (quoting Highland Capital Mgmt., L.P. v. Bank of Am., Nat'l Ass'n , 698 F.3d 202, 205 (5th Cir.2012) ). "Plausible" does not mean "probable," but it asks for "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).

III. ANALYSIS

Plaintiffs seek monetary and injunctive relief. First, they claim that Delta's embargo on the transport of Big Five trophies violates federal common law. Pls.' Compl. [Docket Entry #1] at ¶¶ 62-67. Second, Plaintiffs assert, under state law, that the policy is a tortious interference with business relations. Id. at ¶¶ 68-72. Third, Plaintiffs claim that Delta's policy violates certain federal statutes and regulations. Id. at ¶¶ 73-76.

Delta moves to dismiss each claim, arguing that Plaintiffs' Complaint fails to state a claim for breach of federal common law duties, that Plaintiffs' tortious interference claim is preempted by the Airline Deregulation Act of 1978, and that no private right of action exists to enforce the federal statutes and regulations cited by Plaintiffs. Def's. Mot. to Dismiss [Docket Entry #11] at 1.

A. Federal Common Law Duties

Plaintiffs claim that, as a common carrier, Delta is prohibited by federal common law from discriminating against Plaintiffs by refusing to transport Big Five trophies. Pls.' Compl. [Docket Entry #1] at ¶¶ 62-64. Delta responds that it is free to choose the kind of cargo it accepts for shipment. See Def.'s Mot. to Dismiss [Docket Entry #11] at 4.

More than one hundred and fifty years ago, the Supreme Court held that common carriers are obligated to treat shippers equally. York Co. v. Cent. R.R. , 70 U.S. 3 Wall. 107, 112, 18 L.Ed. 170 (1865). This equal treatment principle forbids a common carrier from refusing "to do for one [shipper] that which it was doing for others." Mo. Pac. R. Co. v. Larabee Flour Mills Co. , 211 U.S. 612, 619, 29 S.Ct. 214, 53 L.Ed. 352 (1909). However, the Supreme Court also acknowledged that common carriers may refuse to carry particular kinds of cargo. York Co. , 70 U.S. at 112 ("[H]e may limit his services to the carriage of particular kinds of goods..."); see also B.J. Alan Co. v. I.C.C. , 897 F.2d 561, 563 (D.C.Cir.1990) ("a common carrier is free to carve out as large or as small a niche as it feels appropriate.") (citations omitted)); Riffin v. Surface Transp. Bd. , 733 F.3d 340, 345 (D.C.Cir.2013) ( "at common law[,] carriers could pick and choose the goods which they would transport in common carriage..." (quoting Akron, Canton & Youngstown R.R. Co. v. ICC, 611 F.2d 1162, 1166 (6th Cir.1979) ); 13 Am. Jur. 2d Carriers § 289 (a "common carrier of goods is not obliged to receive and transport all kinds of goods that may be offered for carriage"). Common carriers are merely barred from "discrimination between persons."

York Co. , 70 U.S. at 112. In other words, a common carrier may discriminate in what it chooses to carry, but it may not discriminate as to the persons for whom it carries.

Missouri Pacific Railroad Co. v. Larabee Flour Mills Co. , 211 U.S. 612, 619–20, 29 S.Ct. 214, 53 L.Ed. 352 (1909) provides a good analysis of the issue. The Missouri Pacific Railroad engaged in the business of transporting railroad cars. Id. at 619, 29 S.Ct. 214. It provided this service to "all parties except the mill company." Id. The Court held that the railroad violated the law by discriminating against the mill company. Id. at 619–20, 29 S.Ct. 214. In so holding, the Court rearticulated the equal treatment principle first announced in York Co. : "a party engaging in the business of a common carrier is bound to treat all shippers alike and can be compelled to do so." Id. at 620, 29 S.Ct. 214.²

Plaintiffs agree that a common carrier "is permitted to define its own market," but suggest that this right does not give Delta free reign to refuse shipment of any type of cargo. Pls.' Resp. [Docket Entry #13] at 7-9. For instance, citing Sierra Club v. BNSF Railyard Co. , No. 1:13–CV–00272–LRS, 2014 WL 53309, at *1 (E.D.Wash. Jan. 2, 2014), Plaintiffs argue that a common carrier "may not show favoritism among shippers or shipments based on the type of cargo" they ship. Id. at 8. Accord, Ocean S.S. Co. v. Savannah Locomotive Works & Supply Co. , 131 Ga. 831, 63 S.E. 577, 578–79 (1909). Id. at 9.

These cases, as well as others cited by Plaintiffs, do little to cast doubt on the equal treatment principle articulated over a century ago in York . In Sierra Club , an environmental group brought claims for violations of the Clean Water Act. 2014 WL 53309, at *1. In the background section of the opinion, the district court stated, in dictum, that the defendant railroad could not refuse to transport coal. Id. at *2. However, in making that statement, the court was quoting 49 U.S.C. § 11101(a), a federal statute expressly relating only to "rail carriers." Furthermore, the opinion turned on whether plaintiffs had sufficiently pleaded that the railroad's coal leakage could be considered "point source" pollution under the Clean Water Act. Id. at *3. Sierra Club does not analyze a common carrier's common law duties, making it irrelevant to the issue at hand.

In Ocean S.S. Co. v. Savannah , 63 S.E. at 580, the Georgia Supreme Court held that a steamship's preferential treatment of cotton-shipping customers over lumber-shipping customers was a violation of the steamship's state common law duties. Thus, the opinion is neither persuasive nor binding to the issue presented here.

None of the cases cited by Plaintiffs contradict the conclusion that a common carrier is free, without violating federal common law, to carry only items of its choosing, provided that it does not discriminate among customers. Indeed, Plaintiffs' contention that they have stated a claim because Delta "violates its duty of equal treatment by refusing to ship one type of trophy ... by one type of shipper" misapplies the equal treatment principle. Pls.' Resp. [Docket Entry #13] at 11. Delta's policy bans its shipment of Big Five trophies. Obviously, it does not ban the hunting of Big Five game. Such hunters are free to ship allowed cargo with Delta, including trophies of other game. Although, because Plaintiffs are hunters or other parties who benefit from the hunting of the Big Five, Delta's ban negatively affects them, that impact does not mean Delta's decision is unlawful or actionable.

Plaintiffs also contend that...