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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 No. 2:11-cv-01800-MCE-CKD ROBERT SEGALMAN, Plaintiff, v. MEMORANDUM AND ORDER SOUTHWEST AIRLINES; And DOES 1 THROUGH 10, Inclusive, 15 Defendants. 16 ----oo0oo---17 18 Robert Segalman (“Plaintiff”) brought this action on July 8, 19 2011 against Southwest Airlines (“Defendant”) and Does 1 through 20 10, asserting claims under the Air Carrier Access Act of 1986, 21 49 U.S.C. § 41705 (“ACAA”) and general negligence. 22 2012, Plaintiff filed a Second Amended Complaint (“SAC”) 23 asserting claims under federal and state law for denial of full 24 and equal access to ground airport services and negligence. 25 Specifically, Plaintiff alleges that Defendant failed to follow 26 written instructions on how to store and transport his mechanized 27 wheelchair when placing it in the cargo area, resulting in both 28 damage to the wheelchair and subsequent injury to Plaintiff. 1 On June 22, 1 Defendant filed a Motion to Dismiss (“Motion”) on July 9, 2012, 2 alleging that the SAC fails to state a claim pursuant to Federal 3 Rule of Civil Procedure 12(b)(6).1 4 federal preemption bars Plaintiff’s claims. 5 Opposition to Defendant’s Motion on August 23, 2012, and 6 Defendant filed a Reply on August 30, 2012. 7 the submitted papers by the parties, for the reasons stated 8 below, Defendant’s Motion will be GRANTED. Defendant further argues that Plaintiff filed an Having considered 9 BACKGROUND 10 11 12 Plaintiff is an individual with cerebral palsy and can 13 neither walk nor talk aloud. 14 his condition, Plaintiff relies on a mechanized wheelchair to 15 ambulate. 16 more than one occasion, he arrived at a Southwest Airlines 17 terminal after a flight without power to his wheelchair. 18 Plaintiff claims that when this has occurred, he had to use an 19 uncomfortable and manual wheelchair (which he is unable to push 20 himself) for up to twenty-four hours. 21 that a wheelchair mechanic explained that power disruptions he 22 experienced were due to failure on the part of Defendant’s 23 employees to follow written instructions on how to handle the 24 wheelchair when placing it in cargo. 25 /// 26 /// (SAC at ¶ 8, ECF No. 27.) Due to Plaintiff alleges that during the past four years, on Plaintiff further claims 27 1 28 Because oral argument was not of material assistance, the Court ordered this matter submitted on the briefing. E.D. Cal. Local Rule 230(g). 2 1 In addition to these general allegations, Plaintiff alleges 2 three specific instances where the conduct of Defendant and its 3 employees amounted to discrimination, denying him full and equal 4 access within a public accommodation. 5 the first occasion in February 2009, on a round-trip flight from 6 Sacramento to Albuquerque, Defendant broke the arm and neck rests 7 of his wheelchair. 8 that on March 29, 2010, Plaintiff’s wheelchair arrived in 9 San Diego missing one seatbelt which had been present on (Id. at ¶ 9.) Plaintiff alleges that on Second, Plaintiff also alleges 10 departure from Sacramento. 11 he arrived home on a Saturday, but was unable to make an 12 appointment to replace the seatbelt until the following 13 Wednesday. 14 of his wheelchair outside of his apartment building and broke his 15 shin in two places. 16 spent four days in the hospital. 17 occurred on August 15, 2010, on a round-trip from Sacramento to 18 Portland, Oregon. 19 wheelchair arrived in Portland, it was without power and that 20 despite his calls to many wheelchair repair shops, he was unable 21 to find anyone to come out to fix it that day. 22 that a cable coming out of the joystick that charged the chair 23 had been pulled out of place during the flight, which caused the 24 loss of power. 25 /// 26 /// 27 /// 28 /// (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.) 3 Plaintiff claims that when his Plaintiff alleges 1 Plaintiff did not file an administrative complaint with the 2 Department of Transportation (“DOT”) against Defendant based on 3 the experiences described above. 4 instant action against Defendant on July 8, 2011, on the basis of 5 original and supplemental jurisdiction. 6 has since amended his complaint and the operative complaint is 7 now the Second Amended Complaint filed on June 22, 2012. 8 No. 27.) 9 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) 10 in violation of the Americans with Disabilities Act of 1990 11 (“ADA”), 42 U.S.C. §§ 12182(a)-(b); (2) failure to provide full 12 and equal access to Defendant’s facility, in violation of the 13 Unruh Act, California Civil Code section 51 and the Disabled 14 Persons Act, California Civil Code section 54; and (3) 15 negligence. 16 Defendant argues that the first cause of action should be 17 dismissed for failure to state a claim because the ADA does not 18 apply to aircraft and its operations. 19 because the ADA is inapplicable in this case and because the 20 applicable statute, the ACAA, does not provide for a private 21 right of action, Plaintiff’s first cause of action should be 22 dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). 23 Defendant also argues that the second and third claims are 24 preempted by the ACAA and its governing regulations and 25 therefore, dismissal is appropriate due to federal preemption. 26 /// 27 /// 28 /// 4 Defendant contends that STANDARD 1 2 3 A motion to dismiss for failure to state a claim under Rule 4 12(b)(6) tests the legal sufficiency of a complaint. 5 Block, 250 F.3d 729, 732 (9th Cir. 2001). 6 dismissal may be based on either a lack of a cognizable legal 7 theory or the absence of sufficient facts alleged under a 8 cognizable legal theory. 9 LP, 534 F.3d 1116, 1121 (9th Cir. 2008). Navarro v. A Rule 12(b)(6) Johnson v. Riverside Healthcare Sys., When considering 10 whether a complaint is sufficient to state a claim, the court 11 must accept as true all material factual allegations contained in 12 the complaint and construe them in the light most favorable to 13 the plaintiff. 14 Corp., 380 F.3d 1226, 1229 (9th Cir. 2004). 15 not apply to legal conclusions. 16 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 17 (2007)). 18 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) 19 requires only “a short and plain statement of the claim showing 20 that the pleader is entitled to relief” to “give the defendant 21 fair notice of what the...claim is and the grounds upon which it 22 rests.” 23 355 U.S. 41, 47 (1957)). 24 allege detailed factual allegations, it does require more than 25 “labels and conclusions” or “a formulaic recitation of the 26 elements of a cause of action.” 27 and quotations omitted). 28 /// Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, While a complaint does not need to Id. at 557 (internal citations 5 1 A complaint “must contain sufficient factual matter, accepted as 2 true, to ‘state a claim to relief that is plausible on its 3 face.’” 4 570). 5 draw the reasonable inference that the defendant is liable for 6 the misconduct alleged.” 7 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 8 must then decide whether to grant leave to amend. 9 “freely give” leave to amend when there is no “undue delay, bad 10 faith[,] dilatory motive on the part of the movant, . . . undue 11 prejudice to the opposing party by virtue of . . . the amendment, 12 [or] futility of the amendment....” 13 Foman v. Davis, 371 U.S. 178, 182 (1962). 14 amend should be granted unless the pleading could not possibly be 15 cured by the allegation of other facts. 16 1122, 1130 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 17 494, 497 (9th Cir. 1995)). A court should Fed. R. Civ. P. 15(a); Generally, leave to Lopez v. Smith, 203 F.3d 18 ANALYSIS 19 20 21 A. Applicability of the ADA to Plaintiff’s Claims 22 23 Title III of the Americans with Disabilities Act prohibits 24 discrimination against individuals with disabilities in places of 25 public accommodation. 26 argues that Plaintiff’s Title III claim fails to state a claim 27 upon which relief may be granted because the applicable statute 28 is not the ADA. 42 U.S.C. § 12182(a) (2006). Defendant (Def.’s Mot. to Dismiss 4:15-17, ECF No. 30-1.) 6 1 In response, Plaintiff contends that because the ADA only 2 expressly excludes aircraft and the injury occurred at the 3 airport terminal, the ADA does apply. 4 No. 31.) 5 an airport terminal or an airplane is irrelevant as the ACAA is 6 clearly the applicable statute. 7 (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 8 with respect to full and equal enjoyment in places of public 9 accommodation. 42 U.S.C. § 12182 (2006). Private entities that 10 affect commerce are also considered public accommodations. 11 42 U.S.C. § 12181(7) (2006). 12 considered public accommodations include “a terminal, depot, or 13 other station used for specified public transportation.” 14 U.S.C. § 12181(7)(G) (2006). 15 is defined as “transportation by bus, rail or any other 16 conveyance (other than aircraft) that provides the general public 17 with general or special service (including charter service) on a 18 regular and continuing basis.” 19 (emphasis added). 20 See Private entities that are 42 “Specified public transportation” 42 U.S.C. § 12181(10) (2006) Plaintiff argues that this Court has jurisdiction because 21 there is a meaningful difference between discrimination occurring 22 at an airport terminal instead of on an aircraft itself. 23 distinction Plaintiff advances in that regard, however, is 24 unpersuasive. 25 /// 26 /// 27 /// 28 /// 7 The 1 The statutory definition under the ADA of “public 2 accommodation,” along with the explicit exclusion of aircraft, 3 leads to the inescapable conclusion that the ADA’s protections do 4 not encompass terminals, depots, or stations used for air 5 transportation.2 6 ADA claim is also unpersuasive. 7 Northwest Airlines, No. 08-11580, 2008 WL 4104505 (E.D. Mich. 8 Sept. 2, 2008), in support of his ADA claim. 9 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 10 California recently found, the Thomas court misconstrued the 11 scope of the ACAA. 12 2:10-cv-06131-JHN-JCx, 2011 WL 8318395, at *5 (C.D. Cal. Jan. 21, 13 2011). 14 the ACAA applies only to aircraft “is contrary to the clear scope 15 of the ACAA, which applies to air carriers rather than to 16 airplanes, and to the scope of its regulations, which encompass 17 airport facilities as well as airplanes themselves.” 18 (emphasis in original). See Gilstrap v. United Air Lines, Inc., No. The Gilstrap court found the Thomas court’s holding that Id. 19 20 21 22 23 24 25 26 27 28 2 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. 8 1 Additionally, the DOT regulations providing guidance for the 2 implementation of the ACAA demonstrate that the ACAA’s purview is 3 not limited solely to aircraft. 4 regulation states that the ACAA “prohibits both U.S. and foreign 5 carriers from discriminating against passengers on the basis of 6 disability; requires carriers to make aircraft, other facilities, 7 and services accessible; and requires carriers to take steps to 8 accommodate passengers with a disability.” 9 (emphasis added). Specifically, the federal 14 C.F.R. § 382.1 “Facility” encompasses more than just aircraft 10 as it includes “any portion of an airport that a carrier owns, 11 leases, or controls (e.g., structures, roads, walks, parking 12 lots, ticketing areas, baggage drop-off and retrieval sites, 13 gates, other boarding locations, loading bridges) normally used 14 by passengers or other members of the public.” 15 § 382.3. 16 the ACAA indicate that Congress intended the ACAA to apply not 17 only to aircraft but also to its related facilities and services. 18 Therefore, because aircraft is not “specific public 19 transportation” as defined under the ADA, and the airport 20 terminal is not a place of public accommodation for ADA purposes, 21 Plaintiff’s ADA claim must be dismissed for failure to state a 22 claim upon which relief may be granted. 14 C.F.R. The federal regulations interpreting and implementing 23 24 B. Applicability of the ACAA to Plaintiff’s Claims 25 26 While Plaintiff does not assert a cause of action under the 27 ACAA in his SAC, given that the original complaint stated a claim 28 under the ACAA, it will be discussed briefly. 9 1 The ACAA prohibits discrimination against physically or mentally 2 disabled individuals in air transportation by domestic and 3 foreign air carriers, stating “[i]n providing air transportation, 4 an air carrier, including (subject to section 40105(b)) any 5 foreign air carrier, may not discriminate against an otherwise 6 qualified individual.” 7 express private right of action in the ACAA. 8 9 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. 10 Am. Airlines, Inc., 936 F.2d 796, 800 (5th Cir. 1991) (holding 11 that that ACAA allows damage remedies); Tallarico v. Trans World 12 Airlines, Inc., 881 F.2d 566, 570 (8th Cir. 1989) (holding that 13 allowing a private cause of action is consistent with the 14 underlying purposes of the ACAA); cf. Lopez, 662 F.3d 593 15 (2d Cir. 2011) (holding that there is no implied private right of 16 action in the ACAA); Boswell v. Skywest Airlines, Inc., 361 F.3d 17 1263 (10th Cir. 2004) (same); Love v. Delta Air Lines, 310 F.3d 18 1347 (11th Cir. 2002) (same). 19 address whether there is an implied private right of action under 20 the ACAA.3 The Ninth Circuit has yet to 21 22 23 24 25 26 27 3 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 28 (continued...) 10 1 Following the Supreme Court’s decision in Alexander v. Sandoval, 2 532 U.S. 275 (2001), which narrowed the authority of courts to 3 find implied rights of action in statutes that do not expressly 4 create a private cause of action, some circuit courts have been 5 reluctant to find an implied private right of action in the ACAA. 6 See Lopez, 662 F.3d 593 (2d Cir. 2011); Boswell, 361 F.3d 1263 7 (10th Cir. 2004); Love, 310 F.3d 1347 (11th Cir. 2002). 8 9 While the ACAA does not contain an express private right of action, it provides for an administrative investigation by the 10 Secretary of Transportation. 11 is also a detailed statutory mechanism describing the proper 12 procedure for complaints and investigations and the enforcement 13 mechanisms employed by the Department of Transportation or the 14 Attorney General when a complainant alleges a violation of the 15 ACAA. 16 express private right of action under the ACAA, this Court must 17 find an implied private right of action to retain jurisdiction 18 over this case. 19 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 20 intent, “a cause of action does not exist and courts may not 21 create one, no matter how desirable that might be as a policy 22 matter, or how compatible with the statute.” 23 The ACAA provides a very limited right of access to the federal 24 courts. 532 U.S. at 286-87. See 49 U.S.C. § 46110(a). 25 26 27 28 3 (...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). 11 1 Under the ACAA, only an individual with “substantial interest” in 2 an administrative order issued by the DOT may file a petition for 3 review in a United States Court of Appeals. 4 provision in the statute that provides for a violation to be 5 enforced through an action in federal district court. 6 statutory provisions detailing the administrative enforcement 7 mechanisms for violations of the ACAA, it appears that Congress 8 did not intend for the courts to find an implied private right of 9 action; therefore, this Court declines to find a private right of 10 Id. There is no Given the action in the ACAA. 11 This Court is also precluded from presiding over the present 12 action because Plaintiff has failed to exhaust his administrative 13 remedies. 14 enforcement scheme that is designed to protect the rights of 15 disabled passengers on aircraft. 16 Plaintiff has not pled any facts showing that he has filed a 17 written complaint alleging a violation of the ACAA to the DOT. 18 Therefore, even if the ACAA were to infer an implied private 19 right of action, this Court would still lack jurisdiction because 20 Plaintiff has failed to exhaust the available administrative 21 remedies pertaining to an ACAA claim. The ACAA provides a detailed administrative See 49 U.S.C. §§ 40101-46111. 22 23 C. General Principles Governing Preemption 24 25 Defendant also argues that Plaintiff’s second and third 26 causes of action, which allege violations of state disability 27 laws and common law negligence are preempted by the ACAA. 28 No. 30-1 at 8.) 12 (ECF 1 According to Defendant, because there is no private right of 2 action under the ACAA, dismissal is appropriate pursuant to Rule 3 12(b)(6). 4 state law claims are not preempted by the ACAA because the claims 5 do not depend on duties previously regulated by the ACAA. 6 Opp’n 7:1-2, ECF No. 31.) 7 (Id.) Plaintiff, on the other hand, contends that the (Pl.’s It is well established that Congress has the power to 8 preempt state law. 9 Foreign Trade Council, 530 U.S. 363, 373 (2000). U.S. Const. art. VI, cl. 2; Crosby v. Nat’l State law may 10 be preempted either expressly or impliedly. 11 373. 12 federal statute that reveals an explicit congressional intent to 13 pre-empt state law.” 14 Nelson, 517 U.S. 25, 31 (1996). 15 preemption, preemption is implied either by conflict preemption 16 or field preemption. 17 505 U.S. 88, 98 (1992). 18 “compliance with both federal and state regulations is a physical 19 impossibility” or where state law “stands as an obstacle to the 20 accomplishment and execution of the full purposes and objectives 21 of Congress.” 22 preemption is found when the regulatory scheme is “so pervasive 23 as to make reasonable the inference that Congress left no room 24 for the States to supplement it.” 25 omitted). 26 arguing that because the federal regulations and guidelines 27 regarding wheelchair transportation and stowage are so pervasive, 28 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, 13 (ECF No. 30-1 at 6.) 1 Plaintiff maintains that field preemption does not apply because 2 there are no regulations that provide for the procedures for the 3 transportation of a wheelchair. (ECF No. 31 at 8.) 4 1. 5 Ninth Circuit Precedent 6 7 The Ninth Circuit has not addressed the preemptive effect of 8 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 10 Circuit’s analysis for the preemptive effect of the Federal 11 Aviation Act (“FAA”) may be helpful in determining the preemptive 12 effect of the ACAA. 13 generally looked at the “pervasiveness of federal regulations in 14 the specific area covered by the tort claim or state law at 15 issue.” 16 Inc., 555 F.3d 806, 809 (9th Cir. 2009); Ventress v. Japan 17 Airlines, 828 F. Supp. 2d 1166, 1173 (D. Haw. 2011). 18 the preemptive effect of the FAA, the Ninth Circuit has held that 19 when a federal “agency issues ‘pervasive regulations’ in an area 20 ... the FAA preempts all state law claims in that area. 21 without pervasive regulations or other grounds for preemption, 22 the state standard of care remains applicable.” 23 at 811. 24 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. 26 these courts have found that the ACAA does preempt state law 27 claims when claims depend on duties pervasively regulated by the 28 ACAA. 14 Some of 1 Edick v. Allegiant Air, LLC, No. 2:11-CV-259 JCM (GWF), 2012 WL 2 1463580, at *3 (D. Nev. Apr. 27, 2012) (finding that state law 3 negligence claims were preempted by ACAA which extensively 4 regulates the provision of wheelchair services); Russell v. 5 Skywest Airlines, Inc., No. C 10-0450 MEJ, 2010 WL 2867123, at *5 6 (N.D. Cal. July 20, 2010) (same); Johnson v. Northwest Airlines, 7 Inc., No. C 08-02272 VRW, 2010 WL 5564629 (N.D. Cal. May 5, 2010) 8 (same). 9 all claims relating to interactions between air carriers and 10 disabled passengers, finding that to the extent that a claim 11 depends on duties pervasively regulated by the ACAA, there is 12 preemption, but to the extent that a claim is based on a duty 13 that is not specifically regulated by the ACAA, there is no 14 preemption. One court recently held that the ACAA does not preempt Summers, 805 F. Supp. 2d at 882, 885. 15 D. 16 Application of ACAA Preemption to Plaintiff’s Claims 17 18 The DOT has issued pervasive regulations regarding the 19 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 22 wheelchairs for disabled passengers. 23 Subsection (a) specifically requires aircraft carriers to “permit 24 passengers with a disability to provide written directions 25 concerning the disassembly and reassembly of their wheelchairs” 26 and that these instructions must be carried out “to the greatest 27 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 3 them and ensure their prompt return to the passenger . . . in the 4 condition in which you received them.” 5 Id. The three specific instances which Plaintiff argues 6 constitute violations of state law discrimination laws are 7 related to the stowage and transportation of Plaintiff’s 8 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 11 Court agrees with Defendant that Plaintiff’s claims are subject 12 to field preemption by the ACAA. 13 claims are not field preempted because his claims are based on 14 the standards of care regarding the transportation of wheelchairs 15 (unlike cases where claims depended on the provision of 16 wheelchair services), 14 C.F.R. § 382.129 expressly provides 17 explicit instructions on the duties an air carrier has with 18 respect to the stowage and transportation of wheelchairs. 19 Because Plaintiff’s state law claims are preempted by the ACAA, 20 they cannot be amended to cure the deficiency. 21 with the Gilstrap court’s rejection of Thomas’ holding that the 22 ADA does apply to airport terminals. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 16 While Plaintiff argues that his This Court agrees Id. at *5 n.5. CONCLUSION 1 2 3 For all the foregoing reasons, Defendant’s Motion to Dismiss 4 (ECF No. 30) is GRANTED. 5 deficiencies of Plaintiff’s complaint cannot be cured through 6 amendment, no leave to amend will be accorded. 7 this Court is accordingly directed to close this file. 8 9 Because the Court believes that the The Clerk of IT IS SO ORDERED. Dated: October 23, 2012 10 11 12 _____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17

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