Nodleman v. Aero Mexico

Decision Date10 December 1981
Docket NumberNo. CV 79-3909-WMB.,CV 79-3909-WMB.
Citation528 F. Supp. 475
PartiesAlvin NODLEMAN, Matty Nodleman, and Nathan Stockhammer, Plaintiffs, v. AERO MEXICO, a corporation; Anthony Garcia, Station Manager for Aero Mexico; Manuel Vasquez d/b/a Reforma Mex; and the City of Los Angeles, Defendants.
CourtU.S. District Court — Central District of California



Barry A. Fisher, Marilyn Holle, Los Angeles, Cal., for plaintiffs.

Emily Stevens, Deputy City Atty., Los Angeles, Cal., for defendants.


WM. MATTHEW BYRNE, Jr., District Judge.

This action arises out of the refusal by a foreign airline to carry handicapped persons from Los Angeles International Airport ("LAX") to Mexico. Plaintiffs Alvin Nodleman, Matty Nodleman and Nathan Stockhammer allege five causes of action: first, that the airline, defendant Aero Mexico, a Mexican corporation, has deprived plaintiffs of rights guaranteed them by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("the Act"), and Section 404(b) of the Federal Aviation Act, 49 U.S.C. § 1374(b); second, that defendants City of Los Angeles ("City"), which owns and operates LAX, and the Board of Airport Commissioners for the City ("Board") have violated plaintiffs' rights under Section 504, as well as under 42 U.S.C. § 1983 and the Fourteenth Amendment of the United States Constitution; third, that Aero Mexico and Anthony Garcia, station manager of Aero Mexico, deprived plaintiffs of rights guaranteed them under Cal. Civ.Code § 54.1; fourth, that Garcia intentionally and maliciously conducted himself in an "outrageous manner," causing plaintiffs emotional distress, and that such conduct was ratified by Aero Mexico; and fifth, that Aero Mexico and Reforma Mex, an incorporated travel agency located in Los Angeles, breached their respective contracts with plaintiffs.1

Plaintiffs seek a declaration that defendants have violated their rights as alleged in the first, second, and third causes of action; injunctive relief requiring defendants to adopt internal policies and procedures and to provide for the availability of personnel and equipment, in order to ensure that the services and facilities provided by defendants will be made available to plaintiffs to the same extent as to members of the public generally; and for compensatory and punitive damages, costs, and attorney fees.

Defendant City moves to dismiss this action as to it, under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, on a variety of jurisdictional and substantive grounds.2


In considering a motion to dismiss, the Court must assume the truth of the facts as set forth in the complaint. See Ernest W. Hahn, Inc. v. Codding, 615 F.2d 830, 834 (9th Cir. 1980); Dodd v. Spokane County, Washington, 393 F.2d 330, 334 (9th Cir. 1968). The allegations of the complaint must be viewed in the light most favorable to the pleaders and the complaint will not be dismissed unless it appears that no facts have been alleged that would entitle plaintiffs to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 21 L.Ed.2d 80 (1957); see Hahn, 615 F.2d at 834; AMFAC Mortgage Corp. v. Arizona Mall of Tempe, Inc., 583 F.2d 426 (9th Cir. 1978).

The original and amended complaints aver that Matty Nodleman read an advertisement for a package vacation in La Paz, Mexico, which included air travel between LAX and La Paz, provided by Aero Mexico. She called the phone number listed in the advertisement, which was that of either Aero Mexico or its agent, Reforma Mex, and made reservations for herself, her husband Alvin, and Nathan Stockhammer, for such a package vacation. Mrs. Nodleman paid for and was issued three round-trip tickets for Aero Mexico flights between LAX and La Paz.

Alvin Nodleman is confined to a wheelchair. Stockhammer has multiple sclerosis and must use a wheelchair for extended trips. At the time she made the reservations, Mrs. Nodleman explained that her husband and Stockhammer would be traveling by wheelchair and was assured that they would be accommodated. On the day of their scheduled flight, plaintiffs checked in at the Aero Mexico Counter at LAX. The attendant informed them that they were not included on the flight list for the La Paz flight. When Mrs. Nodleman insisted that her reservation had been confirmed, she was told by the attendant that Aero Mexico would not take passengers in wheelchairs. She explained that the only assistance needed would be in helping her companions on and off the airplane. Later, defendant Garcia told Mrs. Nodleman that it was the airline's policy not to carry wheelchair users because the airline was unable to get them on and off the airplanes. After several hours of effort, plaintiffs were unsuccessful in obtaining boarding passes for La Paz or immediate refunds from Aero Mexico.

Plaintiffs allege that it is a standard practice of airlines to provide assistance to enplane and deplane wheelchair passengers and that Aero Mexico, on a previous occasion, had provided such assistance to a handicapped passenger on a comparable flight to La Paz. Plaintiffs do not allege that they sought any assistance from LAX personnel.


Section 504 of the Act, as amended, provides in pertinent part:

No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or the United States Postal Service.

28 U.S.C. § 794 (1979).

The Ninth Circuit has held that there is a private right of action under Section 504. Kling v. County of Los Angeles, 633 F.2d 876, 878 (9th Cir. 1980); see Larry P. v. Riles, 495 F.Supp. 926 (N.D.Cal. 1979); Boxall v. Sequoia Unified School District, 464 F.Supp. 1104 (N.D.Cal.1979); see also Upshur v. Love, 474 F.Supp. 332 (N.D.Cal.1979).3 However, only plaintiffs who are "of the class for whose especial benefit the statute was enacted" have standing to bring an action where a private remedy is implicit in a statute that does not expressly provide for one. See Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975).


Clearly, handicapped individuals are of the especially benefited class of Section 504. See Kling, 633 F.2d at 878; see e.g., Kampmeier v. Nyquist, 553 F.2d 296, 299 (2d Cir. 1977) ("it is probable that the plaintiffs handicapped individuals do have standing to sue; they are the people in the best position to enforce § 504, which is designed specifically for their protection" footnotes and citations omitted); cf. Wood v. Diamond State Telephone Co., 440 F.Supp. 1003, 1008 (D.Del.1977) (handicapped plaintiffs are of the especially benefitted class of the Vocational Rehabilitation Act of 1973, 29 U.S.C. § 793, but no private action recognized thereunder). For purposes of this motion, the Court accepts as true the allegations of Alvin Nodleman and Stockhammer that they both must use wheelchairs and are "handicapped individuals" within the meaning of 29 U.S.C. § 706(7)(B),4 (8). Thus, they are of the "class for whose especial benefit" Section 504 was enacted, and have standing to bring a private action thereunder.5

Under traditional standing analysis, Alvin Nodleman and Stockhammer have met the judicially imposed limitation that the alleged injuries were to an interest "arguably within the zone of interests to be protected or regulated by the statute that it is claimed defendants have violated." Sierra Club v. Morton, 405 U.S. 727, 733, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); see generally L. Tribe, American Constitutional Law § 3-22, at 98 n.6 (1978) (standing doctrine linked with analysis federal courts apply in implying causes of action).6 It is apparent that the injuries alleged by Alvin Nodleman and Stockhammer are within the "zone of interests" that Section 504 expressly was intended to protect, namely, ensuring that handicapped individuals do not experience discrimination by recipients of federal financial assistance in the provision of services and facilities related to such assistance.

Where a statute entitles plaintiffs to bring a private cause of action, such plaintiffs must still meet the standing requirements of Article III of the Constitution. See Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). Article III requires that the plaintiff have a "personal stake in the outcome of the controversy to insure concrete adverseness," Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978), and a "distinct and palpable injury to himself," Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), that is likely to be redressed if the requested relief is granted, Simon, 426 U.S. at 38, 96 S.Ct. at 1924, 48 L.Ed.2d 450. The grounds that establish standing will not be presumed. Plaintiffs must proffer specific facts that establish their actual or threatened "injury in fact." Id., 426 U.S. at 38-39, 44, 96 S.Ct. at 1924-25, 1927, 48 L.Ed.2d 450 (1976); Fisher v. Tucson School District No. One, 625 F.2d 834, 837 (9th Cir. 1980).

Plaintiffs Alvin Nodleman and Stockhammer have alleged "injuries in fact," insofar as they have alleged that they were denied use of services and facilities provided by recipients of federal financial assistance, solely on the basis of their handicaps. These injuries would likely be...

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