Segalman v. Southwest Airlines Co.

Filing 36

ORDER signed by Judge Morrison C. England, Jr. on 10/23/2012 defendant's 30 Motion to Dismiss is GRANTED. Because the Court believes that deficiencies of Complaint cannot be cured through amendment, no leave to amend will be accorded. Clerk directed to CLOSE this file. (Marciel, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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No. 2:11-cv-01800-MCE-CKD

ROBERT SEGALMAN,
Plaintiff,
v.

MEMORANDUM AND ORDER

SOUTHWEST AIRLINES; And DOES 1
THROUGH 10, Inclusive,

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Defendants.
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----oo0oo---17
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Robert Segalman (“Plaintiff”) brought this action on July 8,

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2011 against Southwest Airlines (“Defendant”) and Does 1 through

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10, asserting claims under the Air Carrier Access Act of 1986,

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49 U.S.C. § 41705 (“ACAA”) and general negligence.

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2012, Plaintiff filed a Second Amended Complaint (“SAC”)

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asserting claims under federal and state law for denial of full

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and equal access to ground airport services and negligence.

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Specifically, Plaintiff alleges that Defendant failed to follow

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written instructions on how to store and transport his mechanized

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wheelchair when placing it in the cargo area, resulting in both

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damage to the wheelchair and subsequent injury to Plaintiff.
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On June 22,

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Defendant filed a Motion to Dismiss (“Motion”) on July 9, 2012,

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alleging that the SAC fails to state a claim pursuant to Federal

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Rule of Civil Procedure 12(b)(6).1

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federal preemption bars Plaintiff’s claims.

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Opposition to Defendant’s Motion on August 23, 2012, and

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Defendant filed a Reply on August 30, 2012.

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the submitted papers by the parties, for the reasons stated

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below, Defendant’s Motion will be GRANTED.

Defendant further argues that
Plaintiff filed an

Having considered

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BACKGROUND

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Plaintiff is an individual with cerebral palsy and can

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neither walk nor talk aloud.

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his condition, Plaintiff relies on a mechanized wheelchair to

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ambulate.

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more than one occasion, he arrived at a Southwest Airlines

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terminal after a flight without power to his wheelchair.

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Plaintiff claims that when this has occurred, he had to use an

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uncomfortable and manual wheelchair (which he is unable to push

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himself) for up to twenty-four hours.

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that a wheelchair mechanic explained that power disruptions he

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experienced were due to failure on the part of Defendant’s

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employees to follow written instructions on how to handle the

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wheelchair when placing it in cargo.

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///

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///

(SAC at ¶ 8, ECF No. 27.)

Due to

Plaintiff alleges that during the past four years, on

Plaintiff further claims

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Because oral argument was not of material assistance, the Court
ordered this matter submitted on the briefing. E.D. Cal. Local Rule 230(g).

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In addition to these general allegations, Plaintiff alleges

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three specific instances where the conduct of Defendant and its

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employees amounted to discrimination, denying him full and equal

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access within a public accommodation.

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the first occasion in February 2009, on a round-trip flight from

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Sacramento to Albuquerque, Defendant broke the arm and neck rests

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of his wheelchair.

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that on March 29, 2010, Plaintiff’s wheelchair arrived in

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San Diego missing one seatbelt which had been present on

(Id. at ¶ 9.)

Plaintiff alleges that on

Second, Plaintiff also alleges

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departure from Sacramento.

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he arrived home on a Saturday, but was unable to make an

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appointment to replace the seatbelt until the following

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Wednesday.

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of his wheelchair outside of his apartment building and broke his

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shin in two places.

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spent four days in the hospital.

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occurred on August 15, 2010, on a round-trip from Sacramento to

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Portland, Oregon.

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wheelchair arrived in Portland, it was without power and that

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despite his calls to many wheelchair repair shops, he was unable

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to find anyone to come out to fix it that day.

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that a cable coming out of the joystick that charged the chair

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had been pulled out of place during the flight, which caused the

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loss of power.

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///

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///

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///

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///

(Id. at ¶ 10.)

Plaintiff states that

Plaintiff claims that on Tuesday night, he fell out

Due to his injuries, Plaintiff claims he
The third and last incident

(Id. at ¶ 11.)

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Plaintiff claims that when his

Plaintiff alleges

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Plaintiff did not file an administrative complaint with the

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Department of Transportation (“DOT”) against Defendant based on

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the experiences described above.

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instant action against Defendant on July 8, 2011, on the basis of

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original and supplemental jurisdiction.

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has since amended his complaint and the operative complaint is

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now the Second Amended Complaint filed on June 22, 2012.

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No. 27.)

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failure to provide full and equal access to Defendant’s facility,

Instead, Plaintiff filed the

(ECF No. 1.)

Plaintiff

(ECF

Plaintiff’s SAC asserts three causes of action: (1)

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in violation of the Americans with Disabilities Act of 1990

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(“ADA”), 42 U.S.C. §§ 12182(a)-(b); (2) failure to provide full

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and equal access to Defendant’s facility, in violation of the

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Unruh Act, California Civil Code section 51 and the Disabled

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Persons Act, California Civil Code section 54; and (3)

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negligence.

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Defendant argues that the first cause of action should be

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dismissed for failure to state a claim because the ADA does not

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apply to aircraft and its operations.

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because the ADA is inapplicable in this case and because the

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applicable statute, the ACAA, does not provide for a private

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right of action, Plaintiff’s first cause of action should be

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dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).

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Defendant also argues that the second and third claims are

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preempted by the ACAA and its governing regulations and

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therefore, dismissal is appropriate due to federal preemption.

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///

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///

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///
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Defendant contends that

STANDARD

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A motion to dismiss for failure to state a claim under Rule

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12(b)(6) tests the legal sufficiency of a complaint.

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Block, 250 F.3d 729, 732 (9th Cir. 2001).

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dismissal may be based on either a lack of a cognizable legal

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theory or the absence of sufficient facts alleged under a

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cognizable legal theory.

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LP, 534 F.3d 1116, 1121 (9th Cir. 2008).

Navarro v.

A Rule 12(b)(6)

Johnson v. Riverside Healthcare Sys.,
When considering

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whether a complaint is sufficient to state a claim, the court

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must accept as true all material factual allegations contained in

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the complaint and construe them in the light most favorable to

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the plaintiff.

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Corp., 380 F.3d 1226, 1229 (9th Cir. 2004).

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not apply to legal conclusions.

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678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555

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(2007)).

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Nursing Home Pension Fund, Local 144 v. Oracle
This principle does

Ashcroft v. Iqbal, 556 U.S. 662,

The requirements of a complaint are minimal as Rule 8(a)(2)

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requires only “a short and plain statement of the claim showing

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that the pleader is entitled to relief” to “give the defendant

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fair notice of what the...claim is and the grounds upon which it

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rests.”

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355 U.S. 41, 47 (1957)).

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allege detailed factual allegations, it does require more than

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“labels and conclusions” or “a formulaic recitation of the

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elements of a cause of action.”

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and quotations omitted).

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///

Twombly, 550 U.S. at 555 (quoting Conley v. Gibson,
While a complaint does not need to

Id. at 557 (internal citations

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A complaint “must contain sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its

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face.’”

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570).

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draw the reasonable inference that the defendant is liable for

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the misconduct alleged.”

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Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
A claim is facially plausible when it “allows the court to

Id.

After a court has decided to grant a 12(b)(6) motion, it

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must then decide whether to grant leave to amend.

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“freely give” leave to amend when there is no “undue delay, bad

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faith[,] dilatory motive on the part of the movant, . . . undue

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prejudice to the opposing party by virtue of . . . the amendment,

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[or] futility of the amendment....”

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Foman v. Davis, 371 U.S. 178, 182 (1962).

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amend should be granted unless the pleading could not possibly be

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cured by the allegation of other facts.

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1122, 1130 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d

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494, 497 (9th Cir. 1995)).

A court should

Fed. R. Civ. P. 15(a);
Generally, leave to

Lopez v. Smith, 203 F.3d

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ANALYSIS

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A.

Applicability of the ADA to Plaintiff’s Claims

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Title III of the Americans with Disabilities Act prohibits

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discrimination against individuals with disabilities in places of

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public accommodation.

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argues that Plaintiff’s Title III claim fails to state a claim

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upon which relief may be granted because the applicable statute

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is not the ADA.

42 U.S.C. § 12182(a) (2006).

Defendant

(Def.’s Mot. to Dismiss 4:15-17, ECF No. 30-1.)
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In response, Plaintiff contends that because the ADA only

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expressly excludes aircraft and the injury occurred at the

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airport terminal, the ADA does apply.

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No. 31.)

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an airport terminal or an airplane is irrelevant as the ACAA is

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clearly the applicable statute.

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(Pl.’s Opp’n 3, ECF

Defendant maintains that whether the injury occurred at

(Def.’s Reply 3, ECF No. 33.)

The ADA prohibits discrimination on the basis of disability

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with respect to full and equal enjoyment in places of public

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accommodation.

42 U.S.C. § 12182 (2006).

Private entities that

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affect commerce are also considered public accommodations.

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42 U.S.C. § 12181(7) (2006).

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considered public accommodations include “a terminal, depot, or

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other station used for specified public transportation.”

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U.S.C. § 12181(7)(G) (2006).

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is defined as “transportation by bus, rail or any other

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conveyance (other than aircraft) that provides the general public

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with general or special service (including charter service) on a

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regular and continuing basis.”

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(emphasis added).

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See

Private entities that are

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“Specified public transportation”

42 U.S.C. § 12181(10) (2006)

Plaintiff argues that this Court has jurisdiction because

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there is a meaningful difference between discrimination occurring

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at an airport terminal instead of on an aircraft itself.

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distinction Plaintiff advances in that regard, however, is

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unpersuasive.

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///

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///
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The

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The statutory definition under the ADA of “public

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accommodation,” along with the explicit exclusion of aircraft,

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leads to the inescapable conclusion that the ADA’s protections do

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not encompass terminals, depots, or stations used for air

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transportation.2

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ADA claim is also unpersuasive.

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Northwest Airlines, No. 08-11580, 2008 WL 4104505 (E.D. Mich.

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Sept. 2, 2008), in support of his ADA claim.

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4:17, ECF No. 31.)

The case law Plaintiff cites in support of his
Plaintiff cites to Thomas v.

(Pl.’s Opp’n 3:22-

However, as another district court in

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California recently found, the Thomas court misconstrued the

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scope of the ACAA.

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2:10-cv-06131-JHN-JCx, 2011 WL 8318395, at *5 (C.D. Cal. Jan. 21,

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2011).

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the ACAA applies only to aircraft “is contrary to the clear scope

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of the ACAA, which applies to air carriers rather than to

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airplanes, and to the scope of its regulations, which encompass

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airport facilities as well as airplanes themselves.”

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(emphasis in original).

See Gilstrap v. United Air Lines, Inc., No.

The Gilstrap court found the Thomas court’s holding that

Id.

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Plaintiff cites to Bynum v. Am. Airlines, Inc., 166 Fed. App’x. 730,
733 (5th Cir. 2006) citing Access, Now, Inc. v. Southwest Airlines, Co.,
385 F.3d 1324, 1332 (11th Cir. 2004) for the proposition that it is not clear
precedent that Title III of the ADA does not apply to airplanes. (Pl.’s Opp’n
3:19-20), ECF No. 31.) This is not an accurate reading of the case. First,
the Eleventh Circuit in Access Now did not address the merits of whether
accessibility to Southwest’s website for visually impaired individuals
violated the ADA. Second, the distinction which Plaintiff draws between an
injury occurring at an airplane terminal and on an aircraft itself is
addressed by the court which explicitly states that “airplanes and their
accompanying terminals and depots are covered by ... the pre-ADA Air Carrier
Access Act.” Id. (emphasis added). If anything, Access Now undermines
Plaintiff’s argument because the Eleventh Circuit clearly states that an
airline’s accompanying terminals and depots are covered by the ACAA and not
the ADA. Therefore, whether the discrimination occurred on the physical
aircraft itself or the terminal is irrelevant because the ACAA would apply in
either case.

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Additionally, the DOT regulations providing guidance for the

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implementation of the ACAA demonstrate that the ACAA’s purview is

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not limited solely to aircraft.

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regulation states that the ACAA “prohibits both U.S. and foreign

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carriers from discriminating against passengers on the basis of

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disability; requires carriers to make aircraft, other facilities,

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and services accessible; and requires carriers to take steps to

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accommodate passengers with a disability.”

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(emphasis added).

Specifically, the federal

14 C.F.R. § 382.1

“Facility” encompasses more than just aircraft

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as it includes “any portion of an airport that a carrier owns,

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leases, or controls (e.g., structures, roads, walks, parking

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lots, ticketing areas, baggage drop-off and retrieval sites,

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gates, other boarding locations, loading bridges) normally used

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by passengers or other members of the public.”

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§ 382.3.

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the ACAA indicate that Congress intended the ACAA to apply not

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only to aircraft but also to its related facilities and services.

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Therefore, because aircraft is not “specific public

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transportation” as defined under the ADA, and the airport

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terminal is not a place of public accommodation for ADA purposes,

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Plaintiff’s ADA claim must be dismissed for failure to state a

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claim upon which relief may be granted.

14 C.F.R.

The federal regulations interpreting and implementing

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B.

Applicability of the ACAA to Plaintiff’s Claims

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While Plaintiff does not assert a cause of action under the

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ACAA in his SAC, given that the original complaint stated a claim

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under the ACAA, it will be discussed briefly.
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The ACAA prohibits discrimination against physically or mentally

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disabled individuals in air transportation by domestic and

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foreign air carriers, stating “[i]n providing air transportation,

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an air carrier, including (subject to section 40105(b)) any

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foreign air carrier, may not discriminate against an otherwise

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qualified individual.”

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express private right of action in the ACAA.

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49 U.S.C. § 41705 (2006).

There is no

Circuit courts are currently split as to whether there is an
implied private right of action under the ACAA.

See Shinault v.

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Am. Airlines, Inc., 936 F.2d 796, 800 (5th Cir. 1991) (holding

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that that ACAA allows damage remedies); Tallarico v. Trans World

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Airlines, Inc., 881 F.2d 566, 570 (8th Cir. 1989) (holding that

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allowing a private cause of action is consistent with the

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underlying purposes of the ACAA); cf. Lopez, 662 F.3d 593

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(2d Cir. 2011) (holding that there is no implied private right of

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action in the ACAA); Boswell v. Skywest Airlines, Inc., 361 F.3d

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1263 (10th Cir. 2004) (same); Love v. Delta Air Lines, 310 F.3d

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1347 (11th Cir. 2002) (same).

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address whether there is an implied private right of action under

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the ACAA.3

The Ninth Circuit has yet to

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In Adiutori v. Sky Harbor Int’l Airport, 103 F.3d 137 (9th Cir. 1996),
the Ninth Circuit held that there was an implied private right of action under
the ACAA. However, in reaching this result, the court was interpreting the
ACAA as enacted in 1986. This version was repealed in 1994 and was materially
different from the ACAA as it reads today. The ACAA was amended in 2000 to
add a specific provision providing administrative procedures for the
investigation of complaints of discrimination against individuals with
disabilities by the Secretary of Transportation, which did not exist under the
original version of the statute. Additionally, in concluding that there was
an implied private right of action under the ACAA, the court applied the
Supreme Court’s four-part test developed in Cort v. Ash, 422 U.S. 66, 78
(1975), which discussed relevant factors in determining whether a private

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(continued...)
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Following the Supreme Court’s decision in Alexander v. Sandoval,

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532 U.S. 275 (2001), which narrowed the authority of courts to

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find implied rights of action in statutes that do not expressly

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create a private cause of action, some circuit courts have been

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reluctant to find an implied private right of action in the ACAA.

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See Lopez, 662 F.3d 593 (2d Cir. 2011); Boswell, 361 F.3d 1263

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(10th Cir. 2004); Love, 310 F.3d 1347 (11th Cir. 2002).

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While the ACAA does not contain an express private right of
action, it provides for an administrative investigation by the

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Secretary of Transportation.

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is also a detailed statutory mechanism describing the proper

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procedure for complaints and investigations and the enforcement

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mechanisms employed by the Department of Transportation or the

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Attorney General when a complainant alleges a violation of the

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ACAA.

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express private right of action under the ACAA, this Court must

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find an implied private right of action to retain jurisdiction

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over this case.

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49 U.S.C. § 41705(c) (2006).

See 49 U.S.C. §§ 46101-46111 (2006).

There

Because there is no

However, after Sandoval, absent a showing of congressional

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intent, “a cause of action does not exist and courts may not

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create one, no matter how desirable that might be as a policy

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matter, or how compatible with the statute.”

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The ACAA provides a very limited right of access to the federal

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courts.

532 U.S. at 286-87.

See 49 U.S.C. § 46110(a).

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(...continued)

remedy is implicit in a statute. However, in 2001, the Supreme Court narrowed
the circumstances where an implied private right of action may be found in a
statute which does not expressly provide for a private cause of action. See
Alexander v. Sandoval, 532 U.S. 275 (2001).

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Under the ACAA, only an individual with “substantial interest” in

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an administrative order issued by the DOT may file a petition for

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review in a United States Court of Appeals.

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provision in the statute that provides for a violation to be

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enforced through an action in federal district court.

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statutory provisions detailing the administrative enforcement

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mechanisms for violations of the ACAA, it appears that Congress

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did not intend for the courts to find an implied private right of

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action; therefore, this Court declines to find a private right of

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Id.

There is no

Given the

action in the ACAA.

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This Court is also precluded from presiding over the present

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action because Plaintiff has failed to exhaust his administrative

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remedies.

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enforcement scheme that is designed to protect the rights of

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disabled passengers on aircraft.

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Plaintiff has not pled any facts showing that he has filed a

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written complaint alleging a violation of the ACAA to the DOT.

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Therefore, even if the ACAA were to infer an implied private

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right of action, this Court would still lack jurisdiction because

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Plaintiff has failed to exhaust the available administrative

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remedies pertaining to an ACAA claim.

The ACAA provides a detailed administrative

See 49 U.S.C. §§ 40101-46111.

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C.

General Principles Governing Preemption

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Defendant also argues that Plaintiff’s second and third

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causes of action, which allege violations of state disability

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laws and common law negligence are preempted by the ACAA.

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No. 30-1 at 8.)
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(ECF

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According to Defendant, because there is no private right of

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action under the ACAA, dismissal is appropriate pursuant to Rule

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12(b)(6).

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state law claims are not preempted by the ACAA because the claims

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do not depend on duties previously regulated by the ACAA.

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Opp’n 7:1-2, ECF No. 31.)

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(Id.)

Plaintiff, on the other hand, contends that the

(Pl.’s

It is well established that Congress has the power to

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preempt state law.

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Foreign Trade Council, 530 U.S. 363, 373 (2000).

U.S. Const. art. VI, cl. 2; Crosby v. Nat’l
State law may

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be preempted either expressly or impliedly.

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373.

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federal statute that reveals an explicit congressional intent to

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pre-empt state law.”

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Nelson, 517 U.S. 25, 31 (1996).

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preemption, preemption is implied either by conflict preemption

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or field preemption.

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505 U.S. 88, 98 (1992).

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“compliance with both federal and state regulations is a physical

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impossibility” or where state law “stands as an obstacle to the

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accomplishment and execution of the full purposes and objectives

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of Congress.”

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preemption is found when the regulatory scheme is “so pervasive

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as to make reasonable the inference that Congress left no room

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for the States to supplement it.”

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omitted).

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arguing that because the federal regulations and guidelines

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regarding wheelchair transportation and stowage are so pervasive,

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the state law claims are preempted.

Crosby, 530 U.S. at

Express preemption occurs when courts “find language in the

Barnett Bank of Marion Cnty., N.A., v.
In the absence of express

Gade v. Nat’l Solid Wastes Mgmt. Ass’n,
Conflict preemption is implied where

Id. (internal citations omitted).

Field

Id. (internal citations

In this case, Defendant focuses on field preemption,

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(ECF No. 30-1 at 6.)

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Plaintiff maintains that field preemption does not apply because

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there are no regulations that provide for the procedures for the

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transportation of a wheelchair.

(ECF No. 31 at 8.)

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1.

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Ninth Circuit Precedent

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The Ninth Circuit has not addressed the preemptive effect of

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the ACAA on state law claims.

9

805 F. Supp. 2d 874, 878 (N.D. Cal. 2011).

Summers v. Delta Airlines, Inc.,
However, the Ninth

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Circuit’s analysis for the preemptive effect of the Federal

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Aviation Act (“FAA”) may be helpful in determining the preemptive

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effect of the ACAA.

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generally looked at the “pervasiveness of federal regulations in

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the specific area covered by the tort claim or state law at

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issue.”

16

Inc., 555 F.3d 806, 809 (9th Cir. 2009); Ventress v. Japan

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Airlines, 828 F. Supp. 2d 1166, 1173 (D. Haw. 2011).

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the preemptive effect of the FAA, the Ninth Circuit has held that

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when a federal “agency issues ‘pervasive regulations’ in an area

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... the FAA preempts all state law claims in that area.

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without pervasive regulations or other grounds for preemption,

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the state standard of care remains applicable.”

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at 811.

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In analyzing FAA preemption, courts have

Martin ex rel. Heckman v. Midwest Express Holdings,

Regarding

In areas

Martin, 555 F.3d

In the Ninth Circuit, a few district court cases have

25

addressed whether the ACAA preempts state law claims.

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these courts have found that the ACAA does preempt state law

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claims when claims depend on duties pervasively regulated by the

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ACAA.
14

Some of

1

Edick v. Allegiant Air, LLC, No. 2:11-CV-259 JCM (GWF), 2012 WL

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1463580, at *3 (D. Nev. Apr. 27, 2012) (finding that state law

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negligence claims were preempted by ACAA which extensively

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regulates the provision of wheelchair services); Russell v.

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Skywest Airlines, Inc., No. C 10-0450 MEJ, 2010 WL 2867123, at *5

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(N.D. Cal. July 20, 2010) (same); Johnson v. Northwest Airlines,

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Inc., No. C 08-02272 VRW, 2010 WL 5564629 (N.D. Cal. May 5, 2010)

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(same).

9

all claims relating to interactions between air carriers and

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disabled passengers, finding that to the extent that a claim

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depends on duties pervasively regulated by the ACAA, there is

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preemption, but to the extent that a claim is based on a duty

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that is not specifically regulated by the ACAA, there is no

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preemption.

One court recently held that the ACAA does not preempt

Summers, 805 F. Supp. 2d at 882, 885.

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D.

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Application of ACAA Preemption to Plaintiff’s Claims

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18

The DOT has issued pervasive regulations regarding the

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provision of wheelchair-related services for disabled passengers.

20

See 14 C.F.R. §§ 382.121-.129 (2008).

21

provision which governs the stowage and transportation of

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wheelchairs for disabled passengers.

23

Subsection (a) specifically requires aircraft carriers to “permit

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passengers with a disability to provide written directions

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concerning the disassembly and reassembly of their wheelchairs”

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and that these instructions must be carried out “to the greatest

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extent feasible.”

28

///

Id.

15

There is an express

14 C.F.R. § 382.129 (2008).

1

The regulation also instructs air carriers that when

2

disassembling wheelchairs for storage, carriers “must reassemble

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them and ensure their prompt return to the passenger . . . in the

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condition in which you received them.”

5

Id.

The three specific instances which Plaintiff argues

6

constitute violations of state law discrimination laws are

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related to the stowage and transportation of Plaintiff’s

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wheelchair.

9

Plaintiff’s claims are premised on a violation of Defendant’s

(ECF No. 27 at ¶¶ 9-11.)

To the extent that

10

duty to properly stow and transport Plaintiff’s wheelchair, this

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Court agrees with Defendant that Plaintiff’s claims are subject

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to field preemption by the ACAA.

13

claims are not field preempted because his claims are based on

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the standards of care regarding the transportation of wheelchairs

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(unlike cases where claims depended on the provision of

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wheelchair services), 14 C.F.R. § 382.129 expressly provides

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explicit instructions on the duties an air carrier has with

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respect to the stowage and transportation of wheelchairs.

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Because Plaintiff’s state law claims are preempted by the ACAA,

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they cannot be amended to cure the deficiency.

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with the Gilstrap court’s rejection of Thomas’ holding that the

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ADA does apply to airport terminals.

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While Plaintiff argues that his

This Court agrees

Id. at *5 n.5.

CONCLUSION

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For all the foregoing reasons, Defendant’s Motion to Dismiss

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(ECF No. 30) is GRANTED.

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deficiencies of Plaintiff’s complaint cannot be cured through

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amendment, no leave to amend will be accorded.

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this Court is accordingly directed to close this file.

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Because the Court believes that the

The Clerk of

IT IS SO ORDERED.
Dated: October 23, 2012

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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