Hebert et al v. Comair Inc et al

Filing 54

JUDGMENT ADOPTING 50 Report and Recommendations granting 9 Motion to Dismiss. The claims of the plaintiffs against Delta Airlines, Inc and Comair, Inc are DISMISSED with prejudice. Granting 15 Motion to Dismiss for Lack of Jurisdiction. The claims of the plaintiffs against the United States are DISMISSED without prejudice. Signed by Judge Tucker L Melancon on 7/5/2012. (crt,Davenport, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Hebert, et al

Civil Action No. 11-cv-1574

versus

Judge Tucker L. Melançon

Comair Inc., et al

Magistrate Judge Patrick J. Hanna
JUDGMENT

This matter was referred to United States Magistrate Judge Patrick J. Hanna for
report and recommendation. The Report and Recommendation filed on June 5, 2012,
recommended that the Motion to Dismiss by defendants Delta Air Lines, Inc. and Comair,
Inc. pursuant to Rule 12(b)(6), R. 9, and the Motion to Dismiss for Lack of Jurisdiction
filed by the United States pursuant to Rule 12(b)(1), R. 15, be granted and that the claims
of plaintiffs be dismissed. R. 50.
On June 19, 2012, plaintiffs filed an objection to the Report and Recommendation
arguing that: (1) plaintiffs’ federal question clams have not prescribed and a private cause
of action exists under the Aviation Disaster Family Assistance Act of 1996 (“ADFAA”),
49 U.S.C. §41113; (2) plaintiffs’ state law claims are not prescribed; (3) Gerald Hebert,
Deborah Waters, Lauren and Mattie Kay Hebert have asserted “viable” causes of action;
and, (5) res judicata does not bar the claims of Jamie, Lauren and Mattie Kay Hebert. R.
51. Comair, Inc. and Delta Air Lines, Inc. as well as the United States filed responses to
plaintiffs’ objection on June 29, 2012 asserting that the Magistrate Judge correctly applied
the law in this case and properly recommended dismissal of all claims. R. 52; R. 53.

While objecting to the entirety of the Report and Recommendation, plaintiffs’ offer
merely conclusory objections to all issues with the exception of their contention that the
federal question claims have not prescribed because they have viable claims under the
ADFAA. In the Report and Recommendation, the Magistrate Judge concluded that
plaintiffs have no cause of action under the ADFAA as the statute does not allow for a
private cause of action by plaintiffs. In their objection, plaintiffs direct the Court’s
attention to the Supreme Court’s decision in which they state provides a four-part test for
determining whether an implied private cause of action is available. See 422 U.S. 66,
78–79 (1975). Plaintiffs assert that an evaluation of the four Cort factors compels the
conclusion that plaintiffs are entitled to bring a private cause of action to enforce the
provisions of the ADFAA. Plaintiffs fail, however, to inform the Court that the analysis
in Cort v. Ash, upon which plaintiffs base their objection was subsequently overruled or
modified by the High Court.
In Thompson v. Thompson, 484 U.S. 174 (1988), Justice Scalia noted in his
concurring opinion that the Supreme Court effectively overruled the Cort v. Ash analysis
in Touche Ross & Co. v. Redington, 442 U.S. 560 (1979), and Transamerica Mortgage
Advisors, Inc. v. Lewis, 444 U.S. 11, 15–16) (1979) (Scalia, J., concurring) (“[W]e
effectively overruled the Cort v. Ash analysis in Touche Ross ... and Transamerica ...
converting one of its four factors (congressional intent) into the determinative factor, with
the other three merely indicative of its presence or absence.”)). In Thompson, the Supreme
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Court held that unless the legislative intent can be inferred from the language of the
statute, or some other source, a private remedy will not be implied.
The United States Supreme Court later explained in Alexander v. Sandoval,
Like substantive federal law itself, private rights of action to enforce federal
law must be created by Congress. The judicial task is to interpret the statute
Congress has passed to determine whether it displays an intent to create not
just a private right but also a private remedy. Statutory intent on this latter
point is determinative. Without it, a cause of action does not exist and courts
may not create one, no matter how desirable that might be as a policy matter,
or how compatible with the statute.
532 U.S. 275, 286–87 (2001). Not only have plaintiffs failed to inform the Court of the
foregoing, they have failed to point to a direct expression by Congress of any intent to
provide a private cause of action or a private remedy to persons in plaintiffs’ situation.
After an independent review of the record, and consideration of the objection filed
as well as the responses thereto, this Court concludes that the Magistrate Judge’s Report
and Recommendation is correct and adopts the findings and conclusions therein as its
own.
Accordingly, it is
ORDERED that the Motion to Dismiss by Defendants Delta Air Lines, Inc. And
Comair, Inc. pursuant to Rule 12(b)(6)[Rec. Doc. 9] is GRANTED, and the claims of the
plaintiffs against Delta Air Lines, Inc. and Comair, Inc are DISMISSED, with prejudice.
IT IS FURTHER ORDERED that the Motion to Dismiss for Lack of
Jurisdiction filed by the United States pursuant to Rule 12(b)(1) [Rec. Doc. 15] is
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GRANTED and the claims of the plaintiffs against the United States are DISMISSED,
without prejudice.
THUS DONE AND SIGNED at Lafayette, Louisiana this 5th day of July, 2012.

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