Hekmat v. U.S. Transp. Sec. Admin.

Decision Date29 March 2017
Docket Number15 Civ. 8531 (NRB)
Citation247 F.Supp.3d 427
Parties Natalie A. HEKMAT and Michael Hekmat, Plaintiffs, v. U.S. TRANSPORTATION SECURITY ADMINISTRATION and JetBlue Airways Corporation, Defendants.
CourtU.S. District Court — Southern District of New York

Kyle Christian Van De Water, Corbally, Gartland and Rappleyea, LLP, Poughkeepsie, NY, for Plaintiffs.

Steven M. Raffaele, Judith Riccardi Nemsick, Stosh Michael Silivos, Holland & Knight LLP, Rebecca Sol Tinio, U.S. Attorney's Office, New York, NY, for Defendants.



Plaintiffs Natalie A. Hekmat and Michael Hekmat sued defendants JetBlue Airways Corporation ("JetBlue") and the United States Transportation Security Administration (the "TSA"), asserting bailment, negligence, failure to supervise, and breach of contract claims after approximately $95,000 in jewelry went missing from their checked luggage during a JetBlue flight. Defendants moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons set forth below, defendants' motions are granted.


Plaintiffs flew from New York to Los Angeles on a JetBlue flight. Am. Compl ¶¶ 37–42. Plaintiffs claim that they packed approximately $95,000 of jewelry in their luggage, which they checked-in and left with a JetBlue representative in New York. Id. ¶¶ 26–41. At some point prior to take-off, the luggage was transferred to the TSA for security screening and then transferred back to JetBlue. Id. ¶¶ 53–55. When plaintiffs picked up their luggage in Los Angeles, the jewelry was missing. Id. ¶¶ 43–45.

Plaintiffs brought suit in October 2015 seeking to hold defendants liable for the missing jewelry (ECF No. 1). Plaintiffs amended the complaint on March 2, 2016 (ECF No. 26), asserting six causes of action. Count I asserts a bailment claim against both defendants. Counts II–IV assert negligence claims against both defendants, alleging that defendants failed to "institute adequate security measures to deter their employees from" theft, "warn Plaintiffs that their property may be stolen or lost," "protect Plaintiffs against such theft by their agents and employees," and "protect Plaintiffs' property by not delivering it to Plaintiffs." Id. ¶¶ 71, 78, 86. Count V asserts a failure to supervise claim against both defendants. Count VI asserts a breach of contract claim against JetBlue for failing to deliver the jewelry.

Before us now are JetBlue's motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) (ECF No. 34) and the TSA's motion to dismiss for lack of subject matter jurisdiction and failure to state a claim pursuant to Rules 12(b)(1) and 12(b)(6) (ECF No. 37).

I. Motion to Dismiss Standards
A. Rule 12(b)(1)

"A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction." Fountain v. Karim , 838 F.3d 129, 134 (2d Cir. 2016) (citation omitted).

B. Rule 12(b)(6)

In ruling on a Rule 12(b)(6) motion to dismiss, the district court must accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiffs' favor. Harris v. Mills , 572 F.3d 66, 71 (2d Cir. 2009). To survive the motion, the complaint's well-pleaded factual allegations must "plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim has "facial plausibility" when plaintiffs plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937. A court, however, need not accept conclusory allegations as true. Harris , 572 F.3d at 72.

II. JetBlue

JetBlue argues that plaintiffs' tort claims asserted against it—bailment, negligence, and failure to supervise—are preempted by the Airline Deregulation Act of 1978, 49 U.S.C. § 41713(b)(1) (the "ADA"), and that the remaining contract claim fails because there was no breach. We agree.

A. ADA Preemption of Tort Claims

Under the ADA, states are prohibited from "enact[ing] or enforc[ing] a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier." 49 U.S.C. § 41713(b)(1) ; Morales v. Trans World Airlines, Inc. , 504 U.S. 374, 378–79, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). The Supreme Court has interpreted the ADA's preemption provision broadly, construing the phrase "related to" as referring to any state action "having a connection with, or reference to," an airline's rates, routes, or services. Morales , 504 U.S. at 384, 112 S.Ct. 2031. The Court has also found that the provision preempts state tort claims. Nw., Inc. v. Ginsberg , ––– U.S. ––––, 134 S.Ct. 1422, 1429, 188 L.Ed.2d 538 (2014).

District courts in this Circuit have applied a three part test to determine whether a state law claim is preempted by the ADA. Courts look to "(1) whether the activity is a service; (2) whether the claim affects the airline service directly or tenuously, remotely, or peripherally; and (3) whether the underlying tortious conduct was reasonably necessary to the provision of the service." Abdel–Karim v. EgyptAir Airlines , 116 F.Supp.3d 389, 404 (S.D.N.Y. 2015) (internal quotations marks omitted), aff'd sub nom. Abdel–Karim v. Egyptair Holding Co. , 649 Fed.Appx. 5 (2d Cir. 2016) ; see also Lozada v. Delta Airlines, Inc. , No. 13 CIV. 7388 JPO, 2014 WL 2738529, at *3 (S.D.N.Y. June 17, 2014) ; Farash v. Cont'l Airlines, Inc. , 574 F.Supp.2d 356, 363 (S.D.N.Y. 2008), aff'd , 337 Fed.Appx. 7 (2d Cir. 2009) ; Rombom v. United Air Lines, Inc. , 867 F.Supp. 214, 221–22 (S.D.N.Y. 1994).

Applying that test to the conduct at issue here—JetBlue's handling of plaintiffs' luggage—we find that the conduct constitutes a "service" for purposes of ADA preemption. In Air Transport Association of America, Inc. v. Cuomo , 520 F.3d 218 (2d Cir. 2008), the Second Circuit tacitly endorsed an interpretation of "service" that includes baggage handling. Specifically, the Court held that a regulation "requiring airlines to provide food, water, electricity, and restrooms to passengers during lengthy ground delays" was sufficiently related to a "service" for purposes of ADA preemption. Id. at 222. In reaching that holding, the Court noted that a majority of circuits had interpreted "service" as referring to "the provision or anticipated provision of labor from the airline to its passengers and encompasses matters such as boarding procedures, baggage handling , and food and drink—matters incidental to and distinct from the actual transportation of passengers." Id. at 223 (emphasis added). Although it did not expressly adopt this definition, the Court rejected the minority view, which excluded baggage handling from the definition of "service" for ADA preemption, on the grounds that it was inconsistent with Supreme Court precedent. Id.

In addition, other district courts in this Circuit have found that an airline's baggage handling constitutes a "service" for purposes of ADA preemption. In determining whether conduct is a "service," courts look to whether "the activity in question is ordinary and relates directly to air travel." Abdel–Karim , 116 F.Supp.3d at 405 (quoting Weiss v. El A. Isr. Airlines, Ltd. , 471 F.Supp.2d 356, 361 (S.D.N.Y. 2006) ). Applying this standard, courts have found that baggage handling "is clearly ‘ordinary and relates directly to air travel,’ as it is usual for passengers to bring luggage with them when traveling and it is a customary practice for airlines to check that luggage." Bary v. Delta Airlines, Inc. , No. CIV.A.CV025202 (DGT), 2009 WL 3260499, at *11 (E.D.N.Y. Oct. 9, 2009), aff'd , 553 Fed.Appx. 51 (2d Cir. 2014) ; see also Abdel–Karim , 116 F.Supp.3d at 405 (same). We agree with these courts and find that JetBlue's handling of plaintiffs' luggage is a "service" for purposes of ADA preemption.

Plaintiffs' tort claims also satisfy the second prong of the preemption test. Plaintiffs' bailment, negligence, and failure to supervise claims challenge the adequacy of JetBlue's baggage handling policies and procedures and therefore "affect[ ] the airline service directly," rather than "tenuously, remotely, or peripherally. See, e.g. , Bary , 2009 WL 3260499, at *12 ("[P]laintiff's claims, which allege the negligent handling of his checked luggage, directly, as opposed to remotely or tenuously, affect the airline's baggage handling service."); see also Malik v. Cont'l Airlines Inc. , 305 Fed.Appx. 165, 169 (5th Cir. 2008) ("[W]e fail to see how permitting airline passengers to bring state tort claims based on lost luggage (however it came to be lost) can be characterized as ‘remotely’ connected to baggage handling services. Such claims strike at the very heart of a ‘service’ that Congress intended to protect from state regulation.").

Finally, plaintiffs' claims satisfy the test's third prong because the tortious conduct underlying plaintiffs' claims—JetBlue's baggage handling procedures—is "reasonably necessary" to the provision of the service. See, e.g. , Abdel–Karim , 116 F.Supp.3d at 406 ; (finding prong satisfied where "the plaintiff has not demonstrated that the defendants did anything but follow their own baggage handling procedures").

Plaintiffs attempt to avoid this conclusion by arguing that the underlying tortious conduct is theft, which they argue is not reasonably related to the proper provision of baggage handling services. While plaintiffs are correct that a theft claim may not be preempted by the ADA (even if it would face other challenges), plaintiffs have not accused JetBlue of theft. Rather, they accuse JetBlue of negligence arising from its baggage...

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