Cintron v. JetBlue Airways Corporation
Filing
26
Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER. Defendant's motion to dismiss 13 is GRANTED. Plaintiff's motion to appoint counsel 12 is DENIED as moot. (FDS, law2)
Case 1:18-cv-10356-FDS Document 26 Filed 08/15/18 Page 1 of 12
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
JENNY CINTRON,
)
)
Plaintiff,
)
)
v.
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JETBLUE AIRWAYS CORPORATION,
)
)
Defendant.
)
_______________________________________)
Civil Action No.
18-10356-FDS
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION TO DISMISS
SAYLOR, J.
This is a lawsuit arising out of the removal of a passenger from an airplane before
takeoff. Plaintiff Jenny Cintron, who is proceeding pro se, filed this suit against defendant
JetBlue Airways Corporation. Cintron has hearing and vision impairments due a brain tumor
and subsequent surgery. She was removed from a JetBlue flight after she did not hear the flight
attendant’s safety instructions and then touched his back to get his attention. According to
Cintron, without listening to her explanation, the flight attendant complained to the captain, and
she was removed from the aircraft. She was rebooked on a JetBlue flight at no extra cost the
next day, but she alleges that she was humiliated and suffered emotional distress.
The amended complaint does not identify specific legal claims, but appears to assert a
claim of intentional infliction of emotional distress.
JetBlue has moved to dismiss the complaint for failure to state a claim upon which relief
can be granted. For the following reasons, the motion to dismiss will be granted.
Case 1:18-cv-10356-FDS Document 26 Filed 08/15/18 Page 2 of 12
I.
Background
Because Cintron is proceeding pro se, the Court will construe her pleadings liberally.
The following facts are taken from her complaint, her amended complaint, and her memorandum
in opposition to the motion to dismiss.
A.
Factual Background
Jenny Cintron is a 57-year-old woman who lives in Lynn, Massachusetts. She is
originally from Puerto Rico and is a native Spanish speaker.
In 2014, she developed a brain tumor that was surgically removed. The tumor and the
surgery caused her to become partially disabled. (Am. Compl. at 1). She suffers from a total
loss of hearing in her right ear and a 40% loss in her left ear. (Id.). She also suffers a vision
impairment. (Id.).
Following her illness, Cintron went into early retirement and left her position as a
Director of Action for Boston Community Development, Inc., where she had been working for
almost 29 years. (Pl. Opp. to Mot. to Dismiss at 5). In the aftermath of her illness and recovery,
she “had to learn[] how to do everything all over again as [she] was a baby,” and depended on
her family for help. (Id. at 4, 6). She suffered from depression due to her sudden disability. (Id.
at 6). She alleges that she had difficulty recovering from the loss of her career and struggled to
find her identity and purpose again after her illness. (Id.). She underwent months of
psychotherapy sessions and medical treatment. (Id.).
JetBlue Airways Corporation is a commercial air carrier. On December 28, 2016,
Cintron boarded a JetBlue flight from Boston to San Juan, Puerto Rico, where she was going to
visit some relatives for the first time following her illness. (Am. Compl. at 1). Cintron and her
family were seated in the aircraft emergency exit row. (Pl. Opp. to Mot. to Dismiss Ex. 1).
After boarding, she sat down in the middle seat, settled in for the flight, fastened her seatbelt, and
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started looking at her phone. (Am. Compl. at 1-2).
Because of her hearing impairment and the noise on the aircraft, Cintron did not notice
when the flight attendant started talking to her and her family about safety regulations for sitting
in an exit row. (Id.). Her uncle, who was sitting next to her on the aisle side, touched her to get
her attention, and realizing that the flight attendant was talking to her, she stood up and turned
her head to listen with her left ear. (Compl. at 1; Am. Compl. at 2). At that moment, the flight
attendant told her, allegedly in a rude voice, “Pay attention, I am talking with you, are you deaf?”
He walked away before she could answer. (Am. Compl. at 2).
Cintron immediately got up to explain the situation to the flight attendant. (Id.). As he
was walking away, she touched his back to get his attention because she did not know his name,
and asked him why he had spoken to her in that manner. (Compl. at 1-2; Am. Compl. at 2).
However, the flight attendant kept walking without giving her a chance to say more, so she went
back to her seat and started crying. (Am. Compl. at 2).
Cintron’s family helped her calm down, and she had composed herself when a second
flight attendant came over and asked her to come to the front of the aircraft. (Id.). Two police
officers were waiting with the captain to escort her off the plane. (Id. at 2, 4). She tried to
explain that there was a misunderstanding due to her disability, and offered to apologize to the
flight attendant, but the captain said that the flight attendant did not like that she had touched
him. (Id. at 4). After the two police officers escorted her off the aircraft with her husband, she
spoke with an airline supervisor, who appeared more sympathetic to her situation, but explained
that she did not have the authority to go against the captain’s decision. (Id.). Cintron was
rebooked at no extra cost for a flight the next day, and was offered a taxi voucher. (Id.).
That night, according to Cintron, she had a nervous breakdown caused by the humiliation
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of being escorted off the plane combined with the distress that she had been experiencing during
her recovery from the brain tumor. (Am. Compl. at 4; Pl.’s Opp. to Mot. to Dismiss at 7). She
overmedicated herself with sleeping pills, and was sick and bedridden for the following three
days after landing in Puerto Rico. (Am. Compl. at 4-5; Pl.’s Opp. to Mot. to Dismiss at 7).
On January 4, 2017, Cintron received an e-mail from JetBlue apologizing for what they
called a lapse in customer service. (Pl. Opp. to Mot. to Dismiss Ex. 1).
After the incident, Cintron had to increase her therapy sessions and her medications again
due to the emotional distress she experienced, and she still has nightmares about the event. (Pl.’s
Opp. to Mot. to Dismiss at 7-8).
B.
Procedural Background
On January 26, 2017, Cintron filed a complaint against JetBlue in the Superior Court of
Suffolk County, Massachusetts, claiming egregious conduct, physical and mental harm,
intentional infliction of emotional distress, and emotional trauma. (Compl. at 3).1 She initially
served JetBlue at the wrong address, and on January 24, 2018, she filed a request to extend the
deadline to complete service. (See State Ct. Rec. Dkt. No. 6). The same day, she filed an
amended complaint. (Am. Compl. 1-5).
On February 24, 2018, JetBlue removed the proceeding to federal court, pursuant to 28
U.S.C. § 1441. This Court has diversity jurisdiction under 28 U.S.C. § 1332 because plaintiff is
a citizen and resident of Massachusetts, defendant is a Delaware corporation with a principal
place of business in New York, and the amount in controversy is $300,000, according to
1
The civil cover sheet categorized the complaint as a violation of the Massachusetts Civil Rights Act,
Mass. Gen. Laws ch. 12, §§ 11H, 11I, but the complaint otherwise does not appear to identify a claim under that
statute. (Compl. at 3).
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plaintiff’s statement of damages.2
JetBlue has moved to dismiss the complaint for failure to state a claim on which relief
can be granted.
II.
Standard of Review
On a motion to dismiss, the court “must assume the truth of all well-plead[ed] facts and
give . . . plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness
Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.
1999)). To survive a defendant’s motion to dismiss, a plaintiff must state a claim that is
plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual
allegations must be enough to raise a right to relief above the speculative level . . . on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555
(citations omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the
complaint fails to set forth “factual allegations, either direct or inferential, respecting each
material element necessary to sustain recovery under some actionable legal theory.” Gagliardi v.
Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Medico del Turabo, Inc. v. Feliciano
de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).
2
Defendant contended in its notice of removal that there was federal-question jurisdiction under 28 U.S.C.
§ 1331 because the complaint could be read to assert claims under the Air Carrier Access Act of 1986, 49 U.S.C.
§ 41705, and the Airline Deregulation Act of 1978, 49 U.S.C. §§ 41713, 44902(b). However, there appears to be no
private right of action under the Air Carrier Access Act. See 49 U.S.C. § 41705(c) (providing that the Secretary of
the Department of Transportation should investigate complaints). And the provisions of the Airline Deregulation
Act that JetBlue cites appear to be defenses, not causes of action. See Wright & Miller, 13D FEDERAL PRACTICE &
PROCEDURE § 3566 (2018 update) (explaining that the well-pleaded complaint rule “bars invoking jurisdiction on
the basis of a federal defense raised by the defendant’s answer”).
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III.
Analysis
A.
Airline Deregulation Act Preemption
JetBlue contends that any Massachusetts common-law claim for intentional infliction of
emotional distress is explicitly preempted by the Airline Deregulation Act (“ADA”), 49 U.S.C.
§ 41713. That statute provides in part as follows: “[A] State . . . may not enact or enforce a law,
regulation, or other provision having the force and effect of law related to a price, route, or
service of an air carrier that may provide air transportation under this subpart.” 49 U.S.C.
§ 41713(b)(1). Congress included the preemption provision “[t]o ensure that the States would
not undo federal deregulation with regulation of their own.” Morales v. Trans World Airlines,
Inc., 504 U.S. 374, 378 (1992). However, state laws are not pre-empted if the connection to
“price, route, or service” is “too tenuous, remote, or peripheral . . . to have pre-emptive effect.”
Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 224 (1995) (alteration in original) (quoting Morales,
504 U.S. at 390) (internal quotation marks omitted).
In the present case, JetBlue contends that the ADA preempts state-law claims arising
from (1) its employees’ alleged mistreatment of Cintron and (2) her removal from the aircraft.
The “ADA preemption analysis breaks down into two sub-questions: whether the claim is based
on a state ‘law, regulation, or other provision having the force and effect of law,’ (the
‘mechanism’ question), and whether the claim is sufficiently ‘related to a price, route, or service
of an air carrier’ (the ‘linkage’ question).” Bower v. EgyptAir Airlines Co., 731 F.3d 85, 93 (1st
Cir. 2013) (quoting Brown v. United Airlines, Inc., 720 F.3d 60, 63 (1st Cir. 2013)). Cintron’s
common-law claim of intentional infliction of emotional distress is encompassed by the Supreme
Court’s definition of “law” and “regulation.” See Brown, 720 F.3d at 64-66. The claims
obviously do not involve a “price” or a “route.” Thus, the question is whether those claims are
sufficiently “related to” a “service” within the meaning of the ADA.
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The ADA does not provide a definition of “service,” and neither the Supreme Court nor
the First Circuit has explicitly defined the scope of activities covered by the term. Furthermore,
various Courts of Appeals have disagreed on the meaning of “service” under the statute, and to
what extent the preemption provision covers common-law tort claims. The Ninth Circuit
adopted a narrow construction in Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (1998) (en
banc), holding that the term “service” encompasses “the prices, schedules, origins and
destinations of the point-to-point transportation of passengers, cargo, or mail,” but not the
“provision of in-flight beverages, personal assistance to passengers, the handling of luggage, and
similar amenities.” Id. at 1261; see also Duncan v. Northwest Airlines, Inc., 208 F.3d 1112,
1114-15 (9th Cir. 2000) (quoting Charas, 160 F.3d at 1265-66). The Third Circuit has followed
the Ninth Circuit, and further explained that “the continued existence of statutorily mandated
liability insurance coverage is strong evidence that Congress did not intend to preempt state tort
claims.” Taj Mahal Travel, Inc. v. Delta Airlines Inc., 164 F.3d 186, 194 (3d Cir. 1998).
By contrast, the Fifth Circuit in Hodges v. Delta Airlines, Inc., 44 F.3d 334 (5th Cir.
1995) (en banc), defined “service” as the “[contractual] features of air transportation,”
comprising “items such as ticketing, boarding procedures, provision of food and drink, and
baggage handling, in addition to the transportation itself.” 44 F.3d at 336 (alteration in original)
(quoting the panel’s opinion in Hodges v. Delta Airlines, Inc., 4 F.3d 350, 354 (5th Cir. 1993)).
But it made a distinction between contract and tort claims, explaining that “federal preemption of
state laws, even certain common law actions, ‘related to services’ of an air carrier, does not
displace state tort actions for personal physical injuries or property damage caused by the
operation and maintenance of an aircraft.” Id. at 337. The Seventh and Eleventh Circuits follow
that approach. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433
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(7th Cir. 1996); Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1256-57 (11th Cir. 2003). The
Second Circuit’s definition, while narrower than the Hodges rule, rejected the narrow definition
from Charas. Air Transport Ass’n of Am., Inc. v. Cuomo, 520 F.3d 218, 223 (2d Cir. 2008)
(holding that the provision of amenities during a lengthy ground stay was a “service” under
§ 41713(b)(1)). The Fourth Circuit has taken a similar middle-ground approach in Smith v.
Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998) (holding that “boarding procedures are a service
rendered by an airline”). And it acknowledged that, to the extent a plaintiff’s tort claims are
based on conduct separate from the refusal to transport, they are not preempted. Id. at 259.
In Bower, the First Circuit declined to follow the Charas approach, and instead adopted
the Hodges definition of “service.” Bower, 731 F.3d at 94. In that case, the plaintiff sued an
airline for intentional interference with his custodial rights, negligence, negligent infliction of
emotional distress, and loss of filial consortium when the airline allowed his children to board a
flight to Egypt with suspicious paperwork in the care of their mother, who was not their legal
guardian. Id. at 88-89. The First Circuit stated that “[w]hether the airline is allowing a
passenger onto the plane or preventing a passenger from boarding, that determination takes place
during the company’s ticketing, check-in and boarding procedures” and “conclude[d] that the
ticketing, check-in and boarding procedures at issue [in that case] constitute a ‘service’ for the
purposes of the ADA in accordance with our broader view of the term ‘service.’” Id. at 95. The
Bower court noted that the district court had viewed the plaintiff’s state-law claims as being
“similar to personal injury tort claims, which nearly all courts agree are not preempted by the
ADA.” Id. Although the First Circuit acknowledged that “personal injury claims are generally
not preempted by the ADA,” it held that the negligence claims the plaintiff was trying to assert in
that case were preempted because (1) no bodily injury was alleged, and (2) allowing liability
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would “impos[e] a fundamentally new set of obligations on airlines under the rubric of ‘duty of
care.’” Id. at 96. The court worried that recognizing such a duty “would be exactly what Rowe
and Morales warn against: a ‘patchwork’ of state regulations that effectively frustrate
Congress’s purpose in deregulating the airlines.” Id. at 97 (citing Rowe v. N.H. Motor Transp.t
Ass’n, 552 U.S. 364, 373 (2008); Morales, 504 U.S. at 378-79)).
In this case, Cintron was already on board the aircraft. However, the incident took place
during the explanation of safety requirements for passengers seated in an exit row, prior to
leaving the gate, and her removal was directly related to a flight attendant’s attempt to explain
those requirements. The incident therefore appears to arise out of a “boarding procedure,” which
falls under the broad definition of “service” as expressed in Bower. Although her claim for
intentional infliction of emotional distress is similar to a personal-injury claim, which generally
would not be preempted, her distress arises from the determination of the flight attendant, and
then of the captain, that she was a safety risk. See Smith, 134 F.3d at 259 (holding that claims for
false imprisonment and intentional infliction of emotional distress were only preempted to the
extent they were premised on defendant’s refusal to permit him to board his flight, but that if “an
airline held a passenger without a safety or security justification, a claim based on such actions
would not related to any legitimate service and would not be preempted”); Gill v. JetBlue
Airways Corp., 836 F. Supp. 2d 33, 42 (D. Mass. 2011) (citing cases holding that IIED claims
are “related to” airline “services” and are therefore preempted). Furthermore, and as noted
below, airlines are expressly entitled to refuse boarding to a passenger it determines to be
“inimical to safety.” 49 U.S.C. § 44902(b). To allow a state-law claim based on the flight
attendant’s behavior to go forward under the circumstances would create the type of situation
that Congress was attempting to prevent by deregulating airlines—a patchwork of additional
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state restrictions on boarding decisions that are governed by federal law. See Bower, 731 F.3d at
97-98. Accordingly, Cintron’s state-law claim is preempted by the ADA.
B.
49 U.S.C. § 44902(b) “Permissive Refusal”
Even if her claim were not preempted, JetBlue may be immunized from liability under 49
U.S.C. § 44902(b). Cerqueira v. Am. Airlines, Inc., 520 F.3d 1, 14 (1st Cir. 2008). That
subsection, titled “Permissive Refusal,” provides as follows: “Subject to regulations of the
Under Secretary, an air carrier, interstate air carrier, or foreign air carrier may refuse to transport
a passenger or property the carrier decides is, or might be, inimical to safety.” 49 U.S.C.
§ 44902(b). What constitutes behavior “inimical to safety” is not defined by the statute;
however, courts have generally granted broad discretion to the airline when making that
determination. Cerqueira, 520 F.3d at 12. The authorization extends to situations in which a
passenger or property “might be” inimical to safety, and the airline is not required to make a
complete or accurate factual investigation before making a decision. Id. at 12, 15.
The determination of whether a passenger or property is inimical to safety is made by the
captain, who is the final authority as to the operation of the aircraft and stands in the role of the
air carrier for a decision to remove a passenger from a flight. Cerqueira, 520 F.3d at 12-14.
Moreover, “there is no obligation on the part of the Captain . . . to make a thorough inquiry into
the information received, the sources of that information, or to engage in an investigation. The
Captain . . . is entitled to accept at face value the representations made to him by other air carrier
employees.” Id. at 15 (citation omitted); see Xiaoyun Lucy Lu v. AirTran Airways, Inc., 631 F.
App’x 657, 661 (11th Cir. 2015) (citing Cordero v. Cia Mexicana De Aviacion, S.A., 681 F.2d
669, 672 (9th Cir. 1982); Christel v. AMR Corp., 222 F. Supp. 2d 335 (E.D.N.Y. 2002)).
In the First Circuit, the standard of liability for permissive refusal is that articulated by
the Second Circuit in Williams v. Trans World Airlines, 509 F.2d 942 (2nd Cir. 1975). That
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standard aims to balance the primary interest of aircraft safety with other concerns, such as
prohibitions against discrimination. Cerqueira, 520 F.3d at 14. Airlines may not be subject to
liability for removing a passenger from an aircraft unless the decision was arbitrary or
capricious. Id. The review of the decision to refuse transport is limited to what was actually
known by the captain at the time of the decision, and not what the captain reasonably should
have known. Id. at 14-15. “The biases of a non-decisionmaker may not be attributed to the
decisionmakers,” and “the pilot ‘is entitled to rely on the information provided to him by his
crew despite any exaggerations or false representations.’” Id. at 15 (quoting Al–Qudhai’een v.
Am. W. Airlines, Inc., 267 F. Supp. 2d 841, 848 (S.D. Ohio 2003)). Therefore, even mistaken
decisions are protected, as long as they are not arbitrary or capricious. Id.
Furthermore, because 49 U.S.C. § 44902(b) confers an affirmative privilege to the airline,
Cintron bears the burden to show that the statute does not apply. Xiaoyun, 631 F. App’x at 661;
Cerqueira, 520 F.3d at 13-14. Here, she alleges that she never presented a safety concern, that
there had been a misunderstanding, and that the flight attendant abused his authority to
embarrass and humiliate her, without reporting the true story to the captain. (Am. Compl. 2, 4).
But she also alleges that she tapped the flight attendant on the back, and that the captain told her
that the reason he decided to remove her was that the flight attendant had not liked that. (Am.
Compl. at 2, 4).
Even viewing the facts in the light most favorable to Cintron, she cannot establish that the
airline’s decision to remove her was arbitrary and capricious. Even though the flight attendant’s
conduct may have been callous and unprofessional, and even though he may have exaggerated or
misrepresented facts to the captain, the captain was allowed under the statute to take the flight
attendant’s words at face value. Although perhaps some basic decency and patience might have
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cleared up the misunderstanding, the extreme deference given to the captain by law effectively
ties the Court’s hands. In short, the Court cannot conclude that the captain’s decision to remove
her, even if it was unwise or unfair, was so arbitrary or capricious as to subject the airline to
liability.
Accordingly, the complaint must be dismissed for failure to state a claim.
IV.
Conclusion
For the foregoing reasons, defendant’s motion to dismiss is GRANTED. Plaintiff’s
motion to appoint counsel is DENIED as moot.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor, IV
United States District Judge
Dated: August 15, 2018
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