Musekiwa v. American Airlines, Inc.

Filing 22

///ORDER denying 13 Motion to Dismiss Affidavit of Robert Fraga; and granting 10 defendant's Motion for Summary Judgment. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Joachim S. Musekiwa,
Plaintiff
v.

Case No. 12-cv-120-SM
Opinion No. 2013 DNH 099

American Airlines, Inc.,
Defendant
O R D E R
Pro se plaintiff, Joachim Musekiwa, brings this defamation
action against American Airlines, seeking $3 Million in
compensatory damages.

He says that when American denied his

claim for compensation arising out of an allegedly lost piece of
luggage, it wrongfully and maliciously suggested he was “a
criminal who is connected to an illegal criminal scheme to
falsify baggage [loss] claims.”
1.

Complaint (document no. 1-1) at

American denies any liability and moves for summary judgment.

For the reasons discussed, that motion is granted.

Standard of Review
When ruling on a motion for summary judgment, the court must
“view the entire record in the light most hospitable to the party
opposing summary judgment, indulging all reasonable inferences in
that party’s favor.”
(1st Cir. 1990).

Griggs-Ryan v. Smith, 904 F.2d 112, 115

Summary judgment is appropriate when the record

reveals “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

In this context, “a fact is ‘material’ if it

potentially affects the outcome of the suit and a dispute over it
is ‘genuine’ if the parties’ positions on the issue are supported
by conflicting evidence.”

Int’l Ass’n of Machinists & Aerospace

Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st
Cir. 1996) (citations omitted).

Nevertheless, if the non-moving

party’s “evidence is merely colorable, or is not significantly
probative,” no genuine dispute as to a material fact has been
proved, and “summary judgment may be granted.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations
omitted).

The key, then, to defeating a properly supported motion for
summary judgment is the non-movant’s ability to support his or
her claims concerning disputed material facts with evidence that
conflicts with that proffered by the moving party.
Fed. R. Civ. P. 56(c).

See generally

It naturally follows that while a

reviewing court must take into account all properly documented
facts, it may ignore a party’s bald assertions, unsupported
conclusions, and mere speculation.
F.3d 982, 987 (1st Cir. 1997).

See Serapion v. Martinez, 119

See also Scott v. Harris, 550

U.S. 372, 380 (2007) (“When opposing parties tell two different

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stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a
motion for summary judgment.”).

Background
On July 17, 2011, Musekiwa flew from London to Boston on a
flight operated by American.

When he arrived in Boston, he

reported to the airline that he was unable to locate a piece of
checked luggage.

On August 8, 2011, he completed and submitted

to American a “Property Questionnaire” (document no. 11-1),
seeking compensation for approximately $1,300 in lost personal
belongings.

Among other things, that form asked: “Have you, or

any member of your household, had a previous baggage claim with
AA or any other airline?”

Id. at 5 (emphasis supplied).

Musekiwa replied, “yes,” and reported that approximately 18
months earlier he made a claim with South African Airlines for
lost baggage.

He neglected, however, to disclose the fact that,

only three months earlier, his daughter made a lost-baggage claim
with Southwest Airlines for nearly $9,000.1

1

On the claim form she submitted to Southwest Airlines,
Musekiwa’s daughter reported that her home address was the same
as Musekiwa’s - that is to say, they lived in the same
“household.”
3

During the course of its investigation, American discovered
the daughter’s claim with Southwest and realized that Musekiwa
had not disclosed it.

Based on the fact that Musekiwa and

another member of his household had made three claims for lost
baggage within the prior 18 months, American decided to deny his
claim, explaining:
In our evaluation of this claim, it has been noted that
there have been multiple instances of reported baggage
problems with American and/or other airlines. Some of
these claims may have been reported by members of your
family or others who reside in the same household.
Since our experience has proved that multiple baggage
losses or other problems which occur repeatedly to one
individual or among members of the same household are
extremely rare, we must respectfully decline to honor
this current claim. Like all claims adjustment
agencies, we must carefully weigh all aspects of the
validity of every claim submitted.
Letter from T. Townsend to Mr. Musekiwa, dated December 8, 2011
(document no. 11-1) at 11 (the “Denial Letter”).

Musekiwa responded in a sternly-worded letter dated December
21, 2011.

In it, he took issue with American’s decision to deny

his claim, accused the airline of racial discrimination, and
threatened litigation.

Id. at 12-13.

He also sent copies of

that letter to the United States Department of Transportation,
the Federal Aviation Administration, the Texas Attorney General,
and the Better Business Bureau (“BBB”) (it is, however, unclear

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if he also provided those parties with copies of American’s
Denial Letter).

Shortly after receiving Musekiwa’s letter, a representative
of American contacted the BBB, explaining that its baggage policy
was not influenced by racial or discriminatory preferences of any
kind and noting that it would file a formal response to
Musekiwa’s allegations in due course.

That response came on

January 24, 2012, in a letter addressed to Musekiwa (a copy of
which was provided to the BBB).

In it, American said:

Our manager in the American Airlines Central Baggage
Service office has reviewed your suggestion that racism
was a motive in the decision to deny your baggage
claim. He has concluded that your claim was denied
because you failed to disclose previous baggage related
claims with American and other carriers on the Property
Questionnaire. As you may recall, you signed our form
specifically indicating that you had no prior baggage
claims with American, however we discovered otherwise.
As such, your failure to disclose previous claim
activity was the sole reason for our denial. We are
confident that discrimination played no part in our
decision and we must emphatically deny the presence of
any discriminatory intent in this matter.
Id. at 16.

Three days later, American sent Musekiwa a revised

letter, correcting a factual misstatement in the original.
relevant part, the revised letter provided:
[The manager in the American Airlines Central Baggage
Service office] has concluded however that your claim
was initially denied because there was a failure to
disclose a previous baggage related claim with a
5

In

particular carrier. The claim with another carrier
appears to have been reported by another member of your
family or someone who lives in your household.
Id. at 18.

Despite its initial decision to deny Musekiwa’s

claim, American says that in the interest of maintaining good
customer relations, it reversed course and decided to pay the
claim in full.
letter.

It notified him of that decision in the revised

He was issued a check for the full amount claimed

($1,297.94), which he acknowledges having cashed.2

Subsequently, it appears the BBB “closed” its file on this
matter and removed any related materials that had been published
to its website and available for public viewing - including
Musekiwa’s “complaint” in which he accused American of racial
discrimination, as well as American’s letters in response.
Neither Musekiwa nor American obtained copies of those documents
before the BBB removed them from public access.3

2

In his various filings Musekiwa claims that, despite
having received the full amount sought on his claim form, he is
still owed nearly $800. But, the record is devoid of any
evidence to support that claim. Musekiwa does, however, allude
to a separate state court action he filed against American to
recover the additional money he claims to be owed.
3

Musekiwa’s pro se filings are not entirely clear on
this point, but it is possible he is claiming that, in addition
to the letters it sent to him, American also authored some
additional materials that were published on the BBB website. If
such materials exist, he has failed to describe them, neglected
to state how they might be construed as defamatory, and failed to
provide copies of them. See Musekiwa deposition at 105, 109.
6

In February of 2012, Musekiwa filed a one-count writ in
state court, alleging that American defamed him.
removed the action to this forum.

American

Given Musekiwa’s pro se

status, it is not surprising that his complaint fails to
articulate the precise basis for his claim.

But, when asked at

his deposition to explain why he believed American had defamed
him, Musekiwa said:
The fact that American Airlines said that I did not
disclose [my daughter’s prior lost baggage claim] on
their property questionnaire. So the fact that I did
not disclose it means that I was hiding something so
that I could get some money from American Airlines. I
would defraud the airline. I was hiding something.
Deposition of Joachim Musekiwa (document no. 11-2) at 112.

Discussion
To prevail on his defamation claim, Musekiwa must
demonstrate that American “failed to exercise reasonable care in
publishing a false and defamatory statement of fact about the
plaintiff to a third party, assuming no valid privilege applies
to the communication.”

Pierson v. Hubbard, 147 N.H. 760, 763-64

(2002) (emphasis supplied).

See also Independent Mechanical

Contractors v. Gordon T. Burke & Sons, 138 N.H. 110, 118 (1993).
A statement of fact is “defamatory” if it tends “to lower the
plaintiff in the esteem of any substantial and respectable group,

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even though it may be quite a small minority.”

Touma v. St.

Mary’s Bank, 142 N.H. 762, 765 (1998).

Importantly, however, “[a] statement is not actionable if it
is substantially true.”
(1995).

Simpkins v. Snow, 139 N.H. 735, 740

Moreover, under New Hampshire law, a conditional

privilege exists “if the facts, although untrue, were published
on a lawful occasion, in good faith, for a justifiable purpose,
and with a belief, founded on reasonable grounds of its truth,
provided that the statements are not made with actual malice.”
Id. (citations and internal punctuation omitted).

Here, the record establishes that Musekiwa simply cannot
prevail on his defamation claim.

First, the allegedly offensive

statements made by American were all substantially true.

In

fact, Musekiwa concedes that he neglected to disclose the lostbaggage claim filed by his daughter.

See Deposition of Joachim

Musekiwa (document no. 11-2) at 29, 61, and 63.
that he should have disclosed that claim.

He also concedes

Id. at 31.

That

Musekiwa has an explanation or even an excuse for having failed
to share that information with American is immaterial to his
defamation claim.

The critical fact is this: American accurately

stated that he failed to disclose a lost baggage claim filed by a

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member of his household.

As a matter of law, then, that

statement of fact is not actionable.

Nor does the implication of American’s decision to deny
Musekiwa’s claim give rise to a viable defamation claim.
Reasonably construed, American’s statements to Musekiwa amount to
something like the following: “based upon the number of claims
made by you and members of your household in the recent past, and
based upon our experience suggesting that such repeated claims
are rare, we do not believe you.”

The facts forming the basis of

American’s credibility determination are fully disclosed (and
accurate).

Consequently, its view that Musekiwa’s claim was

invalid, even false, is an expression of opinion that is not
actionable.
The First Amendment does not inoculate all opinions
against the ravages of defamation suits. A statement
couched as an opinion that presents or implies the
existence of facts which are capable of being proven
true or false can be actionable. See Milkovich v.
Lorain Journal Co., 497 U.S. 1, 18-19 (1990); see also
Restatement (Second) of Torts § 566 (1977) (“A
defamatory communication may consist of a statement in
the form of an opinion, but a statement of this nature
is actionable only if it implies the allegation of
undisclosed defamatory facts as the basis for the
opinion.”). Thus, a statement normally is not
actionable unless it contains an objectively verifiable
assertion. Chief Judge Posner has captured the
distinction between statements that are actionable and
those that are not:
A statement of fact is not shielded from an
action for defamation by being prefaced with
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the words ‘in my opinion,’ but if it is plain
that the speaker is expressing a subjective
view, an interpretation, a theory,
conjecture, or surmise, rather than claiming
to be in possession of objectively verifiable
facts, the statement is not actionable.
Levinsky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 127-28
(1st Cir. 1997) (quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d
1222, 1227 (7th Cir. 1993)) (footnotes omitted).

See also

Southern Ins. Co. of VA v Advanced Coatings, Inc., 2009 WL
4730495 (W.D.N.C. Dec. 4, 2009) (holding that insurer’s claim
denial letter, in which it informed insured that it was
“investigating the possibility of misrepresentation on [its]
original policy application” was an accurate statement of fact
and, therefore, not defamatory); U.S.A. United Staffing Alliance
v. Workers’ Comp. Fund, 213 P.3d 20 (Utah App. 2009) (holding
that insurer’s statement that insured no longer had coverage
because it had failed to pay premiums was an accurate statement
of fact and, therefore, not defamatory).

Moreover, even if American’s statements about the
undisclosed claim filed by Musekiwa’s daughter had been false,
they likely would have been conditionally privileged, given the
circumstances under which those statements were made and the fact
that Musekiwa has pointed to nothing in the record which even
remotely suggests that American acted with malice toward him.

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See Simpkins, 139 N.H. at 740.

See generally Caouette v.

OfficeMax, Inc., 352 F. Supp. 2d 134, 143 (D.N.H. 2005).

See

also Guzhagin v. State Farm Mut. Auto. Ins. Co., 556 F. Supp. 2d
962 (D.Minn. 2008) (concluding, under governing state law, that
an insurer’s explanation for why it had denied insured’s claim
was subject to a qualified privilege and, therefore, not the
basis of a viable defamation action).

Conclusion
For the foregoing reasons, as well as those set forth in
American’s memoranda (documents no. 11 and 15), defendant’s
Motion for Summary Judgment (document no. 10) is granted.

To the

extent plaintiff’s pleading captioned “Motion to Dismiss
Affidavit of Robert Fraga” (document no. 13) may properly be
deemed a motion (rather than simply an objection to summary
judgment), it is denied.

The Clerk of Court shall enter judgment in accordance with
this order and close the case.

SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
July 18, 2013
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cc:

Joachim S. Musekiwa, pro se
Edward P. O’Leary, Esq.

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