Al-Tawan v. American Airlines, Inc.

• Decision Date: 28 July 2008
• Docket Number: No. 07-CV-14687.,07-CV-14687.
• Citation: 570 F.Supp.2d 925
• Parties: David AL-TAWAN, et al., Plaintiffs, v. AMERICAN AIRLINES, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

570 F.Supp.2d 925

David AL-TAWAN, et al., Plaintiffs, v. AMERICAN AIRLINES, INC., et al., Defendants.

No. 07-CV-14687.

United States District Court, E.D. Michigan, Southern Division.

July 28, 2008.

COPYRIGHT MATERIAL OMITTED

Lawrence T. Garcia, Allen Brothers, Detroit, MI, for Plaintiffs.

Jeffrey G. Collins, Joseph M. White, Randolph D. Phifer, Phifer & White, Detroit, MI, for Defendants.

OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS

PAUL D. BORMAN, District Judge.

Before the Court is Defendant American Airlines, Inc.'s ("Defendant") April 29, 2008 Motion to Dismiss pursuant to Fed. R.Civ.P. 12(c). (Doc. No. 23). Plaintiffs (David Al-Tawan, Talal Cholagh, Ali Alzerej, Hasan Al-Zerej, Mohammad Al-Saedy, and Hussein Alsalih) filed a Response on June 2, 2008. The Court held a motion hearing on July 16, 2008. Having considered the entire record, and for the reasons that follow, the Court DENIES Defendant's motion.

I. BACKGROUND

This case arises from Plaintiffs' allegations that in connection with a scheduled flight from San Diego, California to Chicago, Illinois, members of the Defendant's flight crew impermissibly discriminated against Plaintiffs by removing them from an airplane without reasonable security concerns. Plaintiffs further allege that Defendant caused them to be detained and interrogated at the airport by law enforcement officials in front of other the passengers on the flight.

David Al-Watan, Hasan Al-Zerej, Hussein Alsalih, and Mohammad Al-Saedy are residents of Dearborn, Michigan. (Compl. ¶ 2). Talal Cholagh resides in Sterling Heights, Michigan. (Id. at ¶ 3). Ali Al-Zerej is a resident of the Detroit, Michigan. (Id. at ¶ 4). Plaintiffs are all originally of Iraqi descent. (Id. at ¶ 22).

The following facts are taken from Plaintiffs' Complaint, as is required by a Rule 12 motion to dismiss. On or about August 28, 2007, Plaintiffs had purchased tickets for Defendant's flight 590 from San Diego to Chicago. (Id. at ¶ 8). Plaintiffs boarded the plane with the other passengers, and had separate seats onboard the aircraft. (Id. at ¶ 10). Before taking off, Plaintiffs allege that unnamed members of the flight crew falsely identified Plaintiffs as security risks. (Id. at ¶ 11). The pilot returned the airplane to the gate, then removed all of the roughly 120 passengers from the plane, including Plaintiffs (Id. at ¶¶ 19-20). Defendant and the San Diego Police then separated, interrogated, and searched Plaintiffs for one hour or more, in front of Defendant's staff and other passengers. (Id. at ¶¶ 25-27). As a result of the plane's return to the gate, the flight was cancelled, due to San Diego's curfew restrictions. Plaintiffs, and the other passengers, were not able to reach their destination until the following day. (Id. at ¶ 29).

On October 31, 2007, Plaintiffs filed the instant Complaint in this Court, alleging the following causes of action:

Count I: 49 U.S.C. § 40127, Discrimination in Air Transportation

Count II: 42 U.S.C. § 2000a, Discrimination in Places of Public Accommodation

Count III: 42 U.S.C. § 1983, Violation of Civil Rights under Color of State Law

Count IV 42 U.S.C. § 1981, Denial of Equal Rights under the Law

Count VI: False Imprisonment (state law)

Count VII: Intentional Infliction of Emotional Distress (state law)

Count VIII: Negligence (state law)¹

On April 29, 2008, Defendant filed a motion to dismiss all Counts on the following bases: (1) Plaintiffs failed to plead facts that would establish the inapplicability of 49 U.S.C. § 44902(b); (2) the Airline Deregulation Act ("ADA"), 49 U.S.C. § 41713(b)(1), and the Federal Aviation Act ("FAA"), 49 U.S.C. § 40101 et seq, preempt Plaintiffs' state law claims; (3) Plaintiffs' IIED claim fails to state a claim; and (4) Plaintiffs do not have a private right of action under 49 U.S.C. § 40127.²

II. ANALYSIS

A. Motion to Dismiss Standard under Rule 12(c)

The United States Court of Appeals for the Sixth Circuit has recognized that a "Rule 12(c) motion for judgment on the pleadings for failure to state a claim upon which relief can be granted is nearly identical to that employed under a Rule 12(b)(6) motion to dismiss." Kottmyer v. Maas, 436 F.3d 684, 689 (6th Cir.2006). The Sixth Circuit has further clarified the post-Twombly formulation of the standard of review:

"The Supreme Court has recently clarified the pleading standard necessary to survive a Rule 12(b)(6) motion." Factual allegations contained in a complaint must "raise a right to relief above the speculative level." Twombly does not "require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." "In reviewing a motion to dismiss, we construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." When a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.

Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir.2008) (internal citations omitted).

B. Federal Discrimination Claims

Section 40127(a) of Title 49 United States Code states that "[a]n air carrier or foreign air carrier may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex, or ancestry." At the same time, § 44902(b) of the same Title states that "[s]ubject to regulations of the Under Secretary [of Transportation], an air carrier, intrastate air carrier, or foreign air carrier may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety."³

Defendant essentially contends that Plaintiffs have failed to plead sufficient facts to overcome the discretion given to Defendant under § 44902(b) to refuse to transport a passenger that it decided to be "inimical to safety." Plaintiffs respond that: (1) their factual allegations are sufficient on their face to state a claim; and (2) § 44902(b) does not provide blanket immunity to Defendant's decisions.⁴

The Sixth Circuit has not yet addressed the substantive analysis to be applied when a passenger alleges that an airline, citing security concerns, impermissibly removes him or her from an airplane on the base of race or national origin. In the recent case Cerqueira v. American Airlines, Inc., 520 F.3d 1 (1st Cir.2008), the First Circuit utilized the following analysis when evaluating a claim of discrimination under § 1981 when the airline asserts its statutory authority under § 44902(b):

As a matter of federal policy, under the Federal Aviation Act, "assigning and maintaining safety [ranks] as the highest priority in air commerce." Thus, the highest priority is assigned to safety, even though the federal aviation statute also has a general prohibition on race and national origin discrimination. "An air carrier . . . . may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex or ancestry." Plaintiffs suit is brought under 42 U.S.C. § 1981 . . . .

In 49 U.S.C. § 44902(a), which became effective in 1961, Congress mandated air carriers to refuse to transport passengers and property where a passenger does not consent to a search of his person or property for dangerous weapons, explosives, or destructive substances. In addition to mandating that some passengers be refused transport, Congress also authorized, at subsection (b), air carriers to engage in "permissive refusal":

Subject to regulations of the Under Secretary, an air carrier, intrastate air carrier, or foreign air carrier may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.

Thus Congress supplemented the discretion airlines already had under common law to exclude certain passengers, in light of their duty of utmost care to all passengers. It is obvious that § 44902(b) was enacted in furtherance of the first priority of safety in air traffic.

The legislative history confirms this.

The permissive refusal authorization in § 44902(b) has several distinct components. The statute says the air carrier "may" refuse to transport, thus vesting discretion over the decision in the air carrier. That discretion is very broad.

The carrier need not decide that the passenger or property is inimical to safety; the authorization extends to situations in which the carrier decides the passenger or property "might be" inimical to safety. The congressional authorization is granted to the air carrier to make the decision. The only limit contained in the statute on that discretion is that it be subject to regulations of the Under Secretary of Transportation for Security.

In turn, the Under Secretary has not promulgated regulations limiting the airline's discretion directly under 49 U.S.C. § 44902(b). However, one other regulation is directly pertinent, as it states that:

The pilot in command of an aircraft is directly responsible for, and is the final authority as to the operation of that aircraft.

In other words, the pilot in command stands in the role of the air carrier for a decision to remove a passenger from a flight. The authorization in, § 44902(b) also applies to decisions by others than the pilot not to rebook a passenger based on safety concerns. In this case, that decision was made by another person, based on information from the pilot. While it is true, as amicus for plaintiff points out, that the statute refers to the air carrier's decision, the appropriate focus is on the actual decisionmaker: the pilot in command of the aircraft where the passenger is removed from the pilot's flight. That is so as a matter of law under 14 C.F.R. §...