Jarrett-Cooper et al v. United Air Lines, Inc.

Filing 146

ORDER denying 110 Motion ; denying 113 Motion for Summary Judgment; granting 116 Motion for Summary Judgment; denying 120 Motion to Amend/Correct; granting 124 Motion for Leave to File; denying 141 Motion to Amend/Correct. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RUTH JARRETT-COOPER and EXCLUSIVE
EVENTS & ACCOMODATIONS, L.L.C.,
Plaintiffs,
Case No. 11-13674
Hon. Lawrence P. Zatkoff

v.
UNITED AIR LINES, INC.,
Defendant.
/

OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on November 20, 2013
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on the following motions:
(1)
(2)
(3)
(4)

Defendant’s motion for summary judgment [dkt 116];
Plaintiffs’ motion for partial summary judgment [dkt 113];
Plaintiffs’ motions seeking to file an amended complaint [dkt 120, 141];
Plaintiffs’ motion seeking leave to file a reply brief after the allotted time [dkt 124];
and
(5) Plaintiffs’ motion for relief of order concerning remand of the case [dkt 110].
All motions except Plaintiffs’ motion to file a reply brief after the allotted time have been
fully briefed. The Court finds that the facts and legal arguments are adequately presented in the
parties’ papers such that the decision process would not be significantly aided by oral argument.
Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby ORDERED that the motions be
resolved on the briefs submitted. For the following reasons, Defendant’s motion for summary
judgment and Plaintiffs’ motion seeking leave to file a reply brief after the allotted time are
GRANTED and Plaintiffs’ remaining motions are DENIED.

II. BACKGROUND
A. FACTUAL BACKGROUND
The facts of this case are well-established in the Court’s prior Orders. Plaintiff Exclusive
Events & Accommodations, LLC (“Exclusive”) is an entertainment tour support service that
arranges travel accommodations for its various clients. Exclusive is owned and operated by
Plaintiff Ruth Jarrett-Cooper (“Jarrett-Cooper”).
Plaintiffs claim that, in June of 2011, Plaintiffs purchased airline tickets—using JarrettCooper’s credit card—from Defendant United Air Lines (“Defendant”) on behalf of a client (the
“June Transaction”). Plaintiffs assert that, although they received e-mail confirmation of the
purchase from Defendant, the tickets were later cancelled by Defendant—without notifying
Plaintiffs or their clients—for suspected credit card fraud. Plaintiffs claim this caused their
clients to miss flights and caused Plaintiffs significant economical and reputational harm.
Plaintiffs assert a similar incident occurred in August of 2011 (the “August
Transaction”). Plaintiffs claim tickets purchased for a different client—this time using the
client’s credit card—were once again cancelled at a later date by Defendant due to suspected
credit card fraud. Plaintiffs advance they once again were not notified of this cancellation, and
but for a last-minute change in their client’s travel arrangements, Plaintiffs’ clients would have
been forced to miss flights.
Plaintiffs claim these cancellations were the result of Defendant improperly flagging
Plaintiffs’ e-mail address—“[e-mail]”—as fraudulent in connection with
Plaintiffs’ purchasing activity in May of 2010 (the “May Transaction”). Plaintiffs allege that
Defendant’s computerized fraud detection system improperly flagged Plaintiffs’ May
Transaction as containing a suspicious e-mail address. This resulted in an investigation where
Defendant found “confirmed fraud” related to Plaintiffs’ e-mail address, a finding which
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Plaintiffs contend served as the basis for Defendant’s improper cancellations in the June and
August Transactions.
The instant matter concerns these two transactions and the alleged fallout.
B. PROCEDURAL BACKGROUND
Plaintiffs1 filed suit in Oakland County Circuit Court claiming damages as a result of
Defendant’s alleged improper, unilateral, and undisclosed cancellation of the tickets booked in
the June and August Transactions. Defendant timely removed the case to this Court.
Plaintiffs vigorously disputed the removal and the Court’s jurisdiction over this case. On
September 1, 2011, Plaintiffs’ filed a motion to remand, which the Court denied. Plaintiffs’ then
filed contemporaneous motions for reconsideration and for relief from judgment on February 9,
2012, both of which regarded Plaintiffs’ denied motion to remand. The Court denied Plaintiffs’
motions for reconsideration and relief from judgment.
Plaintiffs then filed a motion on March 15, 2012, seeking to voluntarily dismiss this case
so as to pursue separate actions in state court. The Court denied the motion. On April 25, 2012,
Plaintiffs filed a motion seeking the Court’s reconsideration of its order denying voluntary
dismissal. The Court denied the motion. Finally, Plaintiffs appealed to the Sixth Circuit Court
of Appeals, requesting that the Court of Appeals issue a writ of mandamus requiring this Court
to remand this case to state court, or grant Plaintiffs’ motion for voluntary dismissal under Fed.
R. Civ. P. 41. The Sixth Circuit denied Plaintiffs’ request.2
Plaintiffs filed their complaint on August 18, 2011, alleging that Defendant is liable for

1

The original complaint included three other plaintiffs that have since been removed from the case due to their failure
to prosecute [dkt 81].
2
Plaintiffs’ pending motion regarding this Court’s jurisdiction [dkt 110] once again challenges the Court’s February
1, 2012, Order [dkt 25] denying Plaintiff’s motion to remand [dkt 18]. The Court finds that the arguments in
Plaintiffs’ current motion are materially indistinguishable from Plaintiffs’ previous motion for reconsideration. As
such, the Court finds it has already ruled on this matter and thus denies Plaintiffs’ motion.

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breach of express and implied contracts (Count I); breach of express and implied warranties
(Count II); conversion (Count III); arbitrary, capricious and unlawfully discriminatory practices
(Count IV); intentional infliction of emotional distress (Count V); interference with contractual
relationships (Count VI); interference with contractual opportunities (Count VII); interference
with business relationships or opportunities (Count VIII); and negligent infliction of emotional
distress (Count IX). Plaintiffs also requested permanent injunctive relief.
Plaintiffs have since filed two motions with the Court seeking amendment of their initial
complaint.

Filed on July 22, 2013—nearly two years after the commencement of this

case—Plaintiffs seek to levy five additional claims against Defendant: defamation; wrongful
disparagement of Plaintiffs’ business integrity and honesty; false light; false imputations of
criminal conduct; and false imputation of conduct bearing on Plaintiffs’ integrity.
In their response to Defendant’s motion for summary judgment, Plaintiffs voluntarily
dismiss Counts II, III, IV and IX of their complaint. The parties have filed the instant cross
motions for summary judgment on Counts VI-VIII. Defendant also seeks summary judgment
against Plaintiffs for Counts I, V, and Plaintiffs’ request for permanent injunctive relief.
III. LEGAL STANDARD
A. SUMMARY JUDGMENT
Summary judgment is proper where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c); Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir. 2001). The moving
party bears the initial burden of demonstrating the absence of any genuine issue of material fact,
and all inferences should be made in favor of the nonmoving party. Celotex Corp. v. Catrett,

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477 U.S. 317, 323 (1986). The moving party discharges its burden by “‘showing’—that is,
pointing out to the district court—that there is an absence of evidence to support the nonmoving
party’s case.” Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004) (citing Celotex, 477 U.S. at
325).
Once the moving party has met its burden of production, the burden then shifts to the
nonmoving party, who “must do more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). The nonmoving party must “go beyond the pleadings and by . . . affidavits, or by the
‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts
showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (citing Fed. R. Civ. P.
56(e)). “[T]he mere existence of a scintilla of evidence in support of the [nonmoving party’s]
position will be insufficient [to defeat a motion for summary judgment]; there must be evidence
on which the jury could reasonably find for the [nonmoving party].” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986).
B. LEAVE TO AMEND
Pursuant to Fed. R. Civ. P. 15(a)(2), leave to amend shall be “freely give[n] . . . when
justice so requires,” but “that window of opportunity does not remain open forever.” Shane v.
Bunzl Distribution USA, Inc., 275 F. App’x 535, 536 (6th Cir. 2008). “A motion to amend a
complaint should be denied if the amendment is brought in bad faith, for dilatory purposes,
results in undue delay or prejudice to the opposing party, or would be futile.” Crawford v.
Roane, 53 F.3d 750, 753 (6th Cir. 1995) (citing Ford v. Ford, 371 U.S. 187 (1962)). When a
party seeks to amend its complaint at a late stage of the litigation, “there is an increased burden
to show justification for failing to move earlier.” Wade v. Knoxville Utilities Bd., 259 F.3d 452,

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459 (6th Cir. 2001) (citing Duggins v. Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999)).
IV. ANALYSIS
Defendant asserts Plaintiffs’ claims for breach of contract, tortious interference,
intentional infliction of emotional distress and permanent injunctive relief lack the requisite
evidence needed to raise a genuine issue of material fact, and thus must be dismissed. Plaintiffs
argue that there is no genuine issue of material fact as to their tortious interference claims,
insisting they should be granted. Plaintiffs further assert they have presented enough evidence as
to their remaining claims to warrant denying Defendant’s motion. Finally, Plaintiffs seek to
amend their original complaint to include five additional claims against Defendant.
For the following reasons, the Court finds Plaintiffs have failed to raise genuine issues of
material fact as to all counts of their complaint. Further, the Court denies Plaintiffs’ request to
amend its complaint and Plaintiffs’ request for permanent injunctive relief.
A. PLAINTIFFS’ AMENDED COMPLAINT
Plaintiffs seek to amend their complaint—nearly two years after the original complaint
was filed—to include five additional claims against Defendants: defamation; wrongful
disparagement of Plaintiffs’ business integrity and honesty; false light; false imputations of
criminal conduct; and false imputation of conduct bearing on Plaintiffs’ integrity. Plaintiffs’
argue the underlying facts to these claims were only recently unearthed through “persistence in
discovery,” and that Plaintiffs would be substantially prejudiced if they were not allowed to
amend their complaint to reflect these facts. The Court is not convinced.
The Court finds that the addition of Plaintiffs’ proposed claims would not only unduly
prejudice Defendant, but would also be futile. Plaintiffs have failed to adequately explain why it
has taken nearly two years to file these additional claims. Although Plaintiffs assert new

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evidence was uncovered, it appears to the Court that Plaintiffs’ additional claims rely on
facts—Defendant’s alleged statement to Plaintiffs’ clients in cancelling the June and August
Transactions—that have always been available. Additionally, Plaintiffs have previously failed to
abide by the Court’s discovery timelines, resulting in more action from Defendant and forcing
the Court to issue sanctions. The Court thus finds that allowing for additional discovery with
regards to these new claims would extremely prejudice the Defendant.
Finally, the Court finds that all five counts are barred by the applicable statute of
limitations. All five of Plaintiffs’ additional charges are reiterations of the same defamation
claim.3 In Michigan, a claim for defamation has a one-year statute of limitations. See Mich.
Comp. Laws § 600.5805(9). As Plaintiffs attempt to raise these additional claims well outside
the one-year limit imposed by Michigan law, their inclusion would be futile.
As such, the Court denies Plaintiffs’ motions to amend their complaint.
B. BREACH OF CONTRACT CLAIMS (COUNT I)
Defendant asserts Plaintiffs’ claims of breach of express and implied contract fail to raise
a genuine issue of material fact, and thus should be dismissed. Although Plaintiffs’ complaint
does not specify upon what grounds these claims rest, the Court garners from Plaintiffs’ assorted
filings that they believe Defendant has breached either an express or implied contract it had with
Plaintiffs. The Court will address each count in turn.
I. Breach of Express Contract
Defendant claims that: 1) no express contract between it and Plaintiffs exist arising from
the June and August Transactions; 2) if an express contract does exist, the Plaintiffs are not
parties to it; and 3) even if Plaintiffs are found to be parties to an alleged express contract arising

3

If Plaintiffs were relying upon some unspecified facts that differentiate their five additional charges, it was lost on
the Court. The Court will not speculate as to what facts Plaintiffs believe warrant recognition of each claim.

7

from the June or August transaction, their failure to abide by the terms of the contract makes
their breach of express contract claim fail. In response, Plaintiffs assert that express contracts
between them and Defendant indeed exist, that they are parties to these contracts, and that
Defendant breached these contracts by improperly cancelling each transaction.
While the Court finds that the disputed transactions do constitute express contracts, the
Court finds that Plaintiffs claim for breach of express contract fails. Plaintiffs’ argument that
they have standing to sue with regards to the August Transaction—a purchase of airline tickets
from Defendant made with a client’s credit card—is unconvincing. Plaintiffs’ provide no legal
support for such an agency theory of contract liability and the Court refuses to recognize such
liability now.
As for the June Transaction, the Court finds that Plaintiffs did enter into an express
contract with Defendant. Although Defendant claims Plaintiffs merely accessed Defendant’s
website as third-party commercial service providers, it appears undisputed that Plaintiff JarrettCooper purchased the tickets in the June Transaction with her own credit card. Thus, the Court
finds the June Transaction represents an express contract entered into between Plaintiffs and
Defendant.
Defendant argues that the terms of any express contract between Plaintiffs and itself are
governed by Defendant’s Contract of Carriage.4 This Contract of Carriage, Defendant’s assert,
demonstrates that Plaintiffs cannot possibly be parties to any contract arising out of the June
Transaction, and thus have no standing to bring suit. Defendant contends this is because the
Contract of Carriage deals only with contracts between Defendant and passengers. As Plaintiffs
only purchased the tickets in the June Transaction—and were thus not passengers—Defendant
4

Defendant’s Contract of Carriage sets out the basic terms and conditions that apply to the transportation of
passengers and baggage on Defendant’s flights. Defendant asserts that passengers agree to be bound by this
Contract of Carriage by purchasing tickets or by accepting transportation.

8

argues Plaintiffs have no standing to sue.
The Court disagrees.

Defendant’s argument does not prove that Plaintiffs have no

standing to sue. Defendant’s argument illustrates to the Court simply that the Contract of
Carriage does not apply to the express contract arising from the June Transaction. As such, the
Court finds that Plaintiffs are parties to the contract that arose as a result of the June Transaction.
Finally, the Court is not swayed by Defendant’s argument that the terms of the Contract
of Carriage bars Plaintiff from now filing suit. Notwithstanding the Court’s previous finding
that the Contract of Carriage does not apply to the June Transaction, the portion of the Contract
of Carriage upon which Defendant relies—titled “Personal Injury And Death”—clearly does not
apply to the sort of contract dispute currently before the Court. Second, this section of the
Contract of Carriage states that a passenger must provide Defendant with notice of any claim
within 90 days. As Plaintiffs are not passengers, this is further evidence that this provision does
not apply. Lastly, even if this provision were to apply, the Court cannot see how Plaintiffs’
filing of the instant action—which occurred within 90 days of the disputed contracts—does not
satisfy the “notice of the alleged occurrence of events resulting in the claim” requirement in the
Contract of Carriage that Defendant’s assert bars Plaintiffs from now filing suit.
Despite finding the existence of an express contract arising from the June Transaction
that is not governed by the Contract of Carriage, the Court nonetheless finds that Plaintiffs have
failed to prove that Defendant’s alleged breach resulted in any injury. Defendant asserts—and
Plaintiffs agree—that the money Plaintiffs spent on the tickets in the June Transaction has been
completely refunded. Furthermore, Plaintiffs’ complaint is void of any damages resulting from
this alleged contractual breach. Indeed, it is completely unclear to the Court as to whether the
general damages Plaintiffs assert they suffered were in any way related to Defendant’s alleged

9

breach of contract. As Plaintiffs have had ample time to supply the Court with any specific
damages that may have resulted from Defendant’s alleged breach, the Court refuses to speculate
as to what damages—if any—such a breach caused Plaintiffs.
As such, the Court finds that Defendant must be granted summary judgment with respect
to Plaintiffs’ breach of express contract claim.
II. Breach of Implied Contract
Having already determined that the June Transaction and the August Transaction created
express contracts, the Court finds Plaintiffs’ breach of an implied contract claim must fail.
As such, the Court finds that Defendant must be granted summary judgment with respect
to Plaintiffs’ breach of implied contract claim.
B. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM (COUNT V)
Defendant contends that Plaintiff Jarrett-Cooper’s claim5 for intentional infliction of
emotional distress (“IIED”) fails to provide evidence of the sort of extreme and outrageous acts
required to sustain such a cause of action. Plaintiff Jarrett-Cooper asserts that Defendant’s
actions do rise to the level of intentional infliction of emotional distress, claiming Plaintiff
Jarrett-Cooper suffered extreme embarrassment, frustration, and severe distress from
Defendant’s actions.
Michigan does not recognize a claim for IIED where the conduct complained of relates to
duties imposed under an existing contract. See Rinaldo’s Constr. Corp. v. Mich. Bell Tel. Co.,
454 Mich. 65, 83 (1997) (citing Hart v. Ludwig, 347 Mich. 559, 563 (1956)) (“As a general rule,
there must be some active negligence or misfeasance to support a tort. There must be some
breach of duty distinct from breach of contract.”). As established by the Michigan Supreme

5

The Court recognizes that this claim is by necessity brought only by Plaintiff Jarrett-Cooper, as limited liability
companies do not have standing to bring a claim of this nature.

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Court: “If a relation exists which would give rise to a legal duty without enforcing the contract
promise itself, the action will lie, otherwise not.” Hart, 347 Mich. at 565 (citations omitted).
All of Plaintiff’s alleged harms—embarrassment, frustration, and severe distress—arise
as a direct result of Defendant’s purported breach of the contracts arising from the June and
August Transactions. Plaintiff Jarrett-Cooper fails to offer any factual content evidencing that
these alleged harms are the result of Defendant violating a duty separate from those within the
underlying transactions. Plaintiff Jarrett-Cooper, therefore, has shown no legal duty separate
from the contract itself, and thus her IIED claim cannot survive.6
As such, the Court finds that Defendant must be granted summary judgment with respect
to Plaintiff’s IIED claim.
C. INTENTIONAL INTERFERENCE CLAIMS (COUNT VI-VIII)
Defendant argues that Plaintiffs’ claims involving intentional interference with
contractual and business relations should be dismissed. Defendant asserts it had no knowledge
of the business relationships, expectancy of business, or business contracts or contractual
relations that Plaintiffs claim were impacted by the cancellation of Plaintiffs’ tickets. Defendant
also claims Plaintiffs have failed to prove Defendant did anything to intentionally interfere with
Plaintiffs’ business or contracts. Lacking evidence of any knowledge or intent, Defendant
advances Plaintiffs’ intentional interference claims must fail.
Plaintiffs assert the requirements for maintaining claims of tortious interference with a
business expectancy and relationship have been met, alleging there is no genuine issue of
material fact that their claims should be granted. Plaintiffs’ argue7 that Defendant did have the

6

Even if Michigan law did recognize such a claim, the Court finds that Plaintiff has not presented any evidence that
Defendant’s actions qualify as the sort of extreme and outrageous conduct required to support an IIED claim.
7
The Court notes that none of these arguments are contained in Plaintiffs’ complaint. Rather, the arguments
addressed by the Court are a summary of the disorganized contentions advanced by Plaintiffs in various filings.

11

requisite knowledge, and that the intent element of these intentional interference claims is
satisfied by Defendant’s wrongful per se imputations.
Under Michigan law, tortious interference with a contract or contractual relations is a
distinct cause of action from tortious interference with a business relationship or expectancy.
See Health Call of Detroit v. Atrium Home & Health Care Servs., Inc., 268 Mich. App. 83, 89
(2005) (citations omitted). As such, the Court will address Plaintiffs’ three claims separately as
two distinct causes of action.
I. Tortious Interference with a Contract or Contractual Relations
Under Michigan law, “[t]he elements of the tort of interference with an existing
contractual relation are: (1) the existence of a contract; (2) a breach of the contract; and (3)
instigation of the breach by the alleged tortfeasor without justification.” Woody v. Tamer, 158
Mich. App. 764, 773–74 (1987). In order to sustain a claim of tortious interference with a
contract or contractual relations, Michigan law requires plaintiff prove that a defendant had
knowledge of the underlying contract. See Peter Vill & Assoc., Inc. v. Michigan Dep’t of
Natural Res., 93 Mich. App. 724, 732 (1979).
Defendant’s argument in favor of dismissing Plaintiffs’ claim of tortious interference
with a contract or contractual relationship is completely ignored by Plaintiffs. Plaintiffs make no
reference to this claim in either their own motion for summary judgment or their response to
Defendant’s motion. As Defendant has met its burden of production, Plaintiffs are under a duty
to prove that their claim raises at least some doubts concerning a material fact. See Matsushita
Elec. Indus. Co., 475 U.S. at 586. Further, this duty cannot be met simply by relying on
Plaintiffs’ complaint. See Celotex Corp, 477 U.S. at 324 (“Rule 56(e) therefore requires the
nonmoving party to go beyond the pleadings and . . . designate ‘specific facts showing that there

12

is a genuine issue for trial.’”).
The Court finds that Plaintiffs have failed to meet their burden with regards to their claim
of tortious interference with a contract or contractual relationship. As such, the Court finds that
Defendant must be granted summary judgment with respect to this claim.
II. Tortious Interference with a Business Relationship or Expectancy
In order to succeed on a claim of tortious interference with a business relationship or
expectancy, a plaintiff must show: “(1) existence of a valid business relation (not necessarily
evidenced by an enforceable contract) or expectancy; (2) knowledge of the relationship or
expectancy on the part of the interferer;8 (3) an intentional interference inducing or causing a
breach or termination of the relationship or expectancy; and (4) resultant damage to the party
whose relationship or expectancy has been disrupted.”

N. Plumbing & Heating, Inc. v.

Henderson Bros., Inc.. 83 Mich. App. 84 (1978). “One is liable for commission of this tort who
interferes with business relations of another, both existing and prospective, by inducing a third
person not to enter into or continue a business relation with another or by preventing a third
person from continuing a business relation with another.” Id. (quotations and citation omitted).
Relying on standards completely different than those established by Michigan case law,
Plaintiffs argue that a viable tortious interference with business relationships or expectancy
claim only requires proof that a defendant’s conduct interfered with the plaintiff’s business
expectancy and that this interference was improper or unjustified. As Defendant points out, this
analysis is void of several critical factors a plaintiff in Michigan must prove.
First, while Plaintiffs allege Defendant’s actions resulted in the loss or limitation of
8

The Court is aware of Michigan case law that indicates knowledge is not required for a claim of tortious
interference with a business relationship. See Peter Vill & Assoc., Inc., 93 Mich. App. at 732. Neither party has
addressed this potential conflict, however, with both operating as if knowledge is required. Although no case speaks
of this potential conflict, the majority of Michigan case law seems to indicate knowledge is required for such a
claim. As such, the Court will follow the majority position and require knowledge as an element of the claim.

13

business with “established clients,” Plaintiffs have not indicated that Defendant had any
knowledge of Plaintiffs’ relationship with these clients. Plaintiffs assert that Defendant knew
“the nature of the Plaintiffs’ business and the services it provided.” This standard, however,
would impermissibly broaden the knowledge required for maintaining such a claim. Michigan
case law clearly indicates that a plaintiff must prove specific knowledge of the business
relationship allegedly disrupted—not just general knowledge of any potential business
relationship—to succeed in a tortious interference of business relationships or expectancy claim.
Additionally, the Court finds that Plaintiffs have offered no evidence that Defendant
“induced” or “prevented” any third parties from continuing or starting a business relationship
with Plaintiffs.9 Plaintiffs attempt to avoid this intent requirement by arguing that Defendant’s
alleged statements concerning the “suspected credit card fraud” in the June and August
Transactions are defamatory, are thus wrongful per se, and should consequently satisfy the intent
requirement of a tortious interference with business relationships or expectancy claim. Even if
the Court were to accept Plaintiffs’ misguided attempt to impute Defendant’s actions as
intentional, the Court nevertheless finds that Plaintiffs fail to satisfy the very test they seek to
employ. Plaintiffs assert false and malicious statements are actionable per se, yet fail to provide
any evidence that Defendant’s alleged statements were malicious in any way. The often misscited Michigan case law Plaintiffs rely upon in advancing such a contention fails to provide any
support for Plaintiffs’ argument.
As such, the Court finds that Defendant must be granted summary judgment with respect
to Plaintiffs’ tortious interference with business relationships or expectancy claim.
D. PERMANENT INJUNCTIVE RELIEF

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Indeed, it appears to the Court it would be in Defendant’s best interest not to interfere with Plaintiffs’ business
expectations, as such an interference would seemingly result in lost business for Defendant as well.

14

Plaintiffs seek permanent injunctive relief against Defendant. Although the confines of
Plaintiffs’ request for injunctive relief were not previously specified,10 Plaintiffs’ response to
Defendant’s instant motion clarifies the three actions Plaintiffs seek:
(1) removal of the “confirmed” fraud designation Defendant flagged Plaintiffs’ May
2010 Transaction with;
(2) removal of Plaintiffs’ “[e-mail]” e-mail address from Defendant’s
“negative” fraud database; and
(3) notifying Plaintiff of any future suspected credit card fraud at the time of Defendant’s
determination to cancel tickets.
Defendant contends granting such injunctive relief is preempted by the federal Airline
Deregulation Act of 1978, 49 U.S.C. § 41713. Additionally, Defendant contends that Plaintiffs’
request for permanent injunctive relief should fail because Plaintiffs have not produced enough
evidence showing they are entitled to such relief.
The Supreme Court has recognized four “well-established principles of equity” that
plaintiffs seeking a permanent injunction must satisfy:
(1) that plaintiffs have suffered an irreparable injury;
(2) that remedies available at law, such as monetary damages, are inadequate to
compensate for that injury;
(3) that, considering the hardships between the plaintiffs and defendants, a remedy in
equity is warranted; and
(4) the public interest would not be disserved by a permanent injunction.
See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006). The standard for granting a
permanent injunction is “essentially the same” as that for granting a preliminary injunction,
except that the party requesting permanent injunctive relief must demonstrate actual success on
the merits, rather than a mere likelihood of success. Amoco Prod. Co. v. Village of Gambell, 480
U.S. 531, 546 n. 12 (1987).
Finally, although a court must consider all four factors when making its determination, it

10

The Court did previously indicate that Plaintiffs’ requests to prevent Defendant from cancelling any tickets
without notifying all parties involved were broad and significant [dkt 18].

15

is within the discretion of the court to deny injunctive relief based on a plaintiff’s failure to
satisfy any one of these factors. See Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249
(6th Cir. 1997); Hacker v. Federal BOP, No. 06-12425-BC, 2006 WL 2559792, at *8 (E.D.
Mich. Sept. 1, 2006) (finding that the plaintiff’s inability to show irreparable harm, by itself,
justified denial of a preliminary injunction).
The Court finds that Plaintiffs have failed to satisfy the four-factor test required for
granting permanent injunctive relief. Although Plaintiffs argue they have “suffered considerable
harm” through Defendant’s allegedly improper flagging of Plaintiffs’ e-mail address, the Court
is not convinced. Indeed, Plaintiffs have indicated they have successfully dealt with Defendant
simply by using a different e-mail address.

The Court finds Plaintiffs’ inability to use

“[e-mail]” as their preferred e-mail address does not rise to the level of
irreparable harm required for a grant of permanent injunctive relief.
Further, the Court finds that Plaintiffs have failed to show that their request for
notification from Defendant prior to any future cancellations is warranted. As the Court has
already established, Plaintiffs’ complaint fails to raise a genuine issue of material fact with
regards to any of their claims. Thus, Plaintiffs have not submitted any evidence to support an
order from this Court compelling Defendant to make substantial changes to their ticketing
policies. See Chapman v. Bouchard, No. 09-15039 WL 2163805, at *1 (E.D. Mich, May 26,
2010) (citing Dresser-Rand Co. v. Virtual Automation Inc., 361 F.3d 831, 847 (5th Cir. 2004)
(“[F]or a permanent injunction to issue the plaintiff must prevail on the merits of his claim and
establish that equitable relief is appropriate in all other aspects.”)).
As the Court finds Plaintiffs’ requests for permanent injunctive relief lacks merit, it will
not address Defendant’s preemption argument.

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V. CONCLUSION
Accordingly, for the reasons set forth above, IT IS HEREBY ORDERED that
Defendant’s motion for summary judgment [dkt 116] and Plaintiff’s motion for leave to file a
reply brief after the allotted time [dkt 124] are GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ partial motion for summary judgment [dkt
113], motions to amend their complaint [dkt 120, 141], and motion for relief from order [dkt
110] are DENIED.
IT IS SO ORDERED.
S/Lawrence P. Zatkoff
HON. LAWRENCE P. ZATKOFF
U.S. DISTRICT COURT
Dated: November 20, 2013

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