Mamakos v. United Airlines, Inc.

Filing 128

ADOPTION ORDER ADOPTING REPORT AND RECOMMENDATIONS; For the foregoing reasons, Plaintiff's objections (ECF No. 126) are OVERRULED, the Report (ECF No. 124) is ADOPTED in its entirety, and Defendant's motion for summary judgment (ECF No. 110) is GRANTED. The Clerk of the Court is directed to enter judgment in favor of Defendant and to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 9/29/2021. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
JEAN PERRENOD MAMAKOS,
Plaintiff,
ADOPTION ORDER
14-CV-7294(JS)(AKT)

- againstUNITED AIRLINES, INC.,
Defendant.
------------------------------------X
APPEARANCES

For Plaintiff: Patricia A. Swicicki, Esq.
Law Office of Patricia Swiciciki
83 Third Avenue
Huntington Station, New York 11746
For Defendant: Dennis J. Brady Esq.
Alexi T. Poulianos, Esq.
Gerber Ciano Kelly Brady LLP
228 Park Avenue South, Suite 97572
New York, New York 10003
Eugene Massamillo, Esq.
Jennifer Huang, Esq.
KMA Zuckert LLC
1350 Broadway, Suite 2410
New York, New York 10018
SEYBERT, District Judge:
Pending before the Court are Plaintiff Jean Perrenod
Mamakos’s (“Mamakos” or “Plaintiff”) objections to the Report and
Recommendation of the Honorable A. Kathleen Tomlinson, United
States Magistrate Judge, dated September 22, 2020 (the “Report”)1

The Report has also been published in an electronic database,
albeit with the wrong decision date.
See Mamakos v. United
Airlines, Inc., No. 14-CV-7294, 2018 WL 4861392 (E.D.N.Y. Sept.
28, 2018). As the parties have cited to pages in the Report as
1

1

recommending, inter alia, that the Court grant defendant United
Airlines, Inc.’s (“United” or “Defendant”) motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56.

(Report,

ECF No. 124; Def. Summ. J. Mot., ECF No. 110; Pl. Obj., ECF No.
126.)

For the reasons set forth below, Plaintiff’s objections are

OVERRULED, Judge Tomlinson’s Report is ADOPTED in its entirety,
and Defendant’s motion for summary judgment is GRANTED.
DISCUSSION
I.

Standard Of Review
Any party may serve and file written objections to a

report and recommendation of a magistrate judge within fourteen
(14) days after being served with a copy thereof.
636(b)(1); FED. R. CIV. P. 72(b)(2).

28 U.S.C. §

Any portion of such a report

and recommendation to which a timely objection has been made is
reviewed de novo.

28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(3).

The Court is not required, however, to review the factual findings
or legal conclusions of the magistrate judge as to which no proper
objections are interposed.
(1985).

See Thomas v. Arn, 474 U.S. 140, 150

In addition, general objections or “objections that are

merely perfunctory responses argued in an attempt to engage the
district court in a rehashing of the same arguments set forth in
the original papers will not suffice to invoke de novo review.”

maintained on the Court’s docket, this Order cites to that document
as well.
2

Owusu v. New York State Ins., 655 F. Supp. 2d 308, 312-13 (S.D.N.Y.
2009)

(internal

quotation

marks,

alteration,

and

citation

omitted); see also Thomas v. City of New York, Nos. 14-CV-7513,
16-CV-4224, 2019 WL 3491486, at *4 (E.D.N.Y. July 31, 2019)
(“[o]bjections seeking to relitigate arguments rejected by the
magistrate judge do not constitute proper objections, and, as a
result, are subject to clear error review.”).

Any portion of a

report and recommendation to which no specific timely objection is
made,

or

to

which

only

general,

conclusory

or

perfunctory

objections are made, is reviewed only for clear error. Owusu, 655
F. Supp. 2d at 312-13.
II.

Objections
Defendant filed its motion on October 11, 2019, seeking

summary judgment on all seven (7) causes of action asserted in
Plaintiff’s Second Amended Complaint.

The Honorable Sandra J.

Feuerstein referred the motion to Judge Tomlinson on December 2,
2019.2

(See Dec. 2, 2019 Elec. Referral Order.)

On September 22,

2020, Judge Tomlinson filed her Report, recommending that this
Court grant Defendant’s motion as to the first six (6) claims,
which assert various claims of negligence, gross negligence and
negligent

infliction

of

emotional

distress,

as

preempted

by

This matter was originally assigned to then-District Judge Joseph
F. Bianco, reassigned to Judge Feuerstein on May 31, 2019, and
reassigned to the undersigned on April 20, 2021.
2

3

federal law.

The Report further recommends that the Court grant

the motion as to the remaining claim for breach of contract, which
seeks a refund of monies paid by Plaintiff for her plane fare,
concluding that she abandoned the claim by failing to oppose the
portion of Defendant’s motion seeking dismissal of this claim.
Plaintiff objects to the Report arguing, inter alia,
that Judge Tomlinson erred in: (1) finding there were no arbitrary
and capricious acts on the part of Defendant and failing to
consider the facts of the case (Pl. Obj. at 4-7); (2) determining
that

Plaintiff’s

Defendant’s

assertions

contemporaneous

were

speculative

incident

report

while
(id.

accepting
at

7-10);

(3) finding that Defendant was not barred from raising issues
regarding preemption under the Airline Deregulation Act (“ADA”)
and Federal Aviation Act (“FAA”) at the summary judgment stage
because those arguments had been addressed by then-District Judge
Bianco and were thus “law of the case” (id. at 10); (4) creating
“new law” not intended by Congress by “inferring airlines are
shielded and immune for its tortuous acts” (id. at 11); (5) finding
that the FAA intended exclusive preemption including the entire
field of air safety (id. at 12-14); (6) concluding that Plaintiff
failed to address Defendant’s FAA claims as a basis for summary
judgment (id. at 14-17); (7) failing to address Plaintiff’s ADA
argument

(id.

at

17-18);

(8) deeming

Plaintiff’s

breach

of

contract claims abandoned since those claims are “fully discussed
4

within the memorandum of law beginning on page 23” (id. at 18);
(9) determining that airlines need not provide passengers with a
copy of the contract of carriage (id. at 18-22); (10) finding that
Plaintiff failed to address whether a refund was issued in light
of Plaintiff’s Attorney Affirmation (id. at 22); (11) concluding
that there were no issues for which a reasonable jury could find
in

Plaintiff’s

favor

despite

discrepancies

between

the

contemporaneous incident report and defense witness testimonies
(id. at 22-23); and (12) stating that Plaintiff failed to depose
the flight attendants (id. at 23).
opposes Plaintiff’s objections.
III.

Defendant responded and

(See Def. Resp., ECF No. 127.)

Analysis
The Court presumes the parties’ familiarity with the

Report and the factual and procedural background of this case.
A.

The Court Reviews the Report for Clear Error
Plaintiff’s general objections and reiterations of the

arguments in her original papers that were fully considered, and
rejected, by Judge Tomlinson are insufficient to invoke de novo
review.

See, e.g., Colvin v. Berryhill, 734 F. App’x 756, 758 (2d

Cir. 2018) (summary order) (holding that a general objection to a
magistrate

judge’s

report

“does

not

constitute

an

adequate

objection under [] Fed. R. Civ. P. 72(b).”); Benitez v. Parmer,
654 F. App’x 502, 503 (2d Cir. 2016) (summary order) (holding that
the plaintiff’s general objection to the magistrate judge’s report
5

and recommendation was insufficient to obtain de novo review).
Accordingly,

the

Court

reviews

the

Report

for

clear

error.

Finding none, the Report is adopted in its entirety.
B.

Objections Regarding Overlooked Arguments
Several

raised

by

contends

of

Plaintiff

these

the
in

objections
opposition;

arguments

were

raise

the

same

nonetheless,

overlooked

by

as

arguments
Plaintiff

Magistrate

Judge

Tomlinson, the Court conducts a de novo review.
The Report concludes that Captain Jeffries’s decision
(the “Captain” or “Captain Jeffries”) to have Plaintiff removed
from the aircraft as a safety threat under the FAA was not
arbitrary and capricious.

Plaintiff objects to the finding that

Plaintiff failed to address the FAA standards and further objects
to the Report’s failure to address the ADA standards.

Throughout

her submissions, Plaintiff asserts arguments within the framework
applied under the ADA and, in urging application of the ADA, she
“respectfully submits that the ADA is superior to the FAA.”
Obj. at 15, 17-18.)
inferior

to,

unsupported.

or

has

The

(Pl.

Plaintiff’s suggestion that the FAA is
somehow

ADA

been

pertains

to

supplanted
“economic

by,

the

ADA

is

deregulation

to

promote competition is distinct and separate from the larger
overarching safety issue that originally motivated passage of the
FAA.”

See Curtin v. Port Auth. of New York & New Jersey, 183

F. Supp. 2d 664, 671 (S.D.N.Y. 2002).
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Passage of the ADA provides

no basis “for inferring that Congress intended to change the preexisting federal scheme of regulating air safety in the original
FAA.”

Id.

Having found in United’s favor on its argument that

the FAA provided a basis for preemption, the Court finds that Judge
Tomlinson did not err in declining to make any determinations
regarding the ADA.
The

Report

also

found

that

Plaintiff

did

not

specifically contest United’s arguments regarding her entitlement
to a refund and whether the refund was issued.

As a result, Judge

Tomlinson recommended that this Court deem Plaintiff’s breach of
contract claim to be abandoned “to the extent it seeks a refund.”
(Report at 32-33; id. at 32 (“[s]ignificantly, at no point in her
memorandum

of

law

does

Plaintiff

specifically

contest

United

Airlines’ argument with respect to the issuance of a refund.”).)
Plaintiff suggests that the finding of abandonment is erroneous,
asserting that the claim was “fully discussed” by pointing to her
memorandum of law starting on page 23.

(Pl. Obj. at 14.)

Upon

review of the cited pages in Plaintiff’s underlying opposition
papers, the Court finds no discussion of the refund issue therein.
Therefore, the Court overrules this objection.
Plaintiff also objects to Judge Tomlinson’s finding that
she abandoned her refund claim by referring to a single paragraph
in her attorney’s affirmation submitted in opposition to the
underlying motion.

(See Affirmation of Patricia A. Swicicki, ECF
7

No. 118.)

The cited paragraph, which does not include reference

to any supporting evidence, reads in its entirety as follows:
Plaintiff’s repeated attempts to obtain a
refund for the unused portion of her pre-paid
United Airlines airfare were unsuccessful and
her demands for a refund were denied:
The
Plaintiff has never been reimbursed and United
Airlines both ignored her requests for a
refund, then falsely taken the position that
a refund was made in spite of the fact that to
date Plaintiff has never received any refund
of her ticket whatsoever.
(Id. ¶ 59.)3

Rule 56 provides that “ [a]n affidavit or declaration

used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and
show that the affiant or declarant is competent to testify on the
matters

stated.”

FED. R. CIV. P.

56(c)(4).

Thus,

counsel’s

affirmation, which was not based on the personal knowledge and was
unsupported by any citation to evidence, has no probative value.
See, e.g., Merrill Lynch, Pierce Fenner & Smith Inc. v. Sohmer,
No. 16-CV-1856, 2019 WL 1441126, at *9 n.19 (E.D.N.Y. Mar. 29,
2019) (finding party inappropriately relied upon an attorney’s
declaration to create a disputed issue of fact and noting that
“[a]lthough an attorney’s affidavit can be used, in connection

Plaintiff testified that she did not pay United directly for the
trip, but rather paid the Danbury Ski Club, from which she never
received a refund.
(Pl. Dep., Def’s Ex. C, ECF No. 110-5, at
15:7-14, 24:8-17.) She further testified that she did not know
who paid for the airfare or whether the payer received a refund.
(Id. at 26:14-23.)
3

8

with a summary judgment motion, to place documents produced in
discovery before the [c]ourt, an attorney’s declaration containing
factual allegations not based on personal knowledge does not carry
any weight” (alteration in original; internal quotation marks and
citation

omitted)).

As

Plaintiff’s

objections

regarding

abandonment of the refund claim are without basis, they are
rejected and overruled.
C.

Objections Concerning the Sufficiency of Evidence
Plaintiff raises several objections regarding the weight

and sufficiency of the evidence as it pertains to whether United’s
actions were arbitrary and capricious.
are,

again,

largely

duplicative

of

Although these objections
arguments

presented

in

opposition, this Court will address them de novo.
The Report found that the Captain, who was the individual
charged with decision-making authority, had Plaintiff removed from
the flight based upon the information before him and upon which he
was entitled to rely.

(Report at 23-24.)

Plaintiff acknowledges

the relevant case law and agrees that the pilot’s opinion, based
on facts at the time of the removal decision, controls.
Obj. at 5.)

(See Pl.

Despite this recognition, she again points to evidence

that she claims disputes the flight attendants’ versions of what
occurred in the flight cabin; however, she does not cite to a shred
of evidence that the Captain was aware of any of these allegedly
disputed facts.

Thus, while Plaintiff continues to maintain that
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there are issues of fact, those facts, even if disputed, are
immaterial to whether the Captain’s decision was arbitrary and
capricious.

Accordingly, this objection is overruled.

Plaintiff also argued that Captain Jefferies did not
have her removed from the flight because of safety concerns, but
rather the “actual reason” was that the pilot “was tired, had flown
too many hours and was resisting being assigned to fly the aircraft
to Alaska.”

(Pl. Obj. at 8.)

The Report characterizes this

argument as an “attempt to create issues of fact.”
id. at 25-28.)

(Report at 25;

On this issue, Plaintiff objects and faults Judge

Tomlinson for relying on the deposition testimony of Captain
Jeffries

and

conclusion.

United

employee

Laura

Tolen

in

reaching

this

Specifically, Plaintiff argues that their testimony

-- that the Captain was not fatigued -- is disputed by statements
in the incident report authored by Tolen (the “Tolen Incident
Report,” ECF No. 118-6).
Plaintiff’s position regarding the reliability of the
Tolen Incident Report is inconsistent.

(Compare Pl. Summ. J.

Opp., ECF No. 115, at 10 (asserting that, as to statements made by
Captain Jeffries, Tolen “simply invented those statements out of
whole cloth, and falsely put them in her report without reason or
basis”), with Pl. Obj. at 8 (calling the Tolen Incident Report
“the best evidence of what actually happened”); see also Report at
27 (noting the “contradictory nature of Plaintiff’s piecemeal
10

reliance on the Tolen Incident Report”).)

Accepting Plaintiff’s

“best evidence” characterization of the Tolen Incident Report for
purposes of this analysis, the Court finds that there is no
inconsistency between the Tolen Incident Report and Tolen’s and
the Captain’s deposition testimonies.

The Tolen Incident Report

states that Captain Jeffries, after being told that Plaintiff had
twice changed seats and was twice asked to return to her original
seat, sought confirmation that Plaintiff “would cooperate with
crew member instruction.”

(Tolen Incident Report at 1.)

Captain

refusal

found

Plaintiff’s

to

reply

to

this

The

question

“unacceptable” and decided to have her removed from the flight.
(Id.)

While awaiting her removal, which took some time, it is

noted that Captain Jeffries “was fatigued as the scheduling of his
line was CLE-SEA-ANC and he never got any rest, he was extremely
upset at the line” and was “close to refusing the entire flight if
the matter did not resolve quickly.”

(Id.)

Thus, the Tolen

Incident Report indicates that any “fatigue” experienced by the
Captain was, at most, the result of having to wait for resolution
of the situation involving Plaintiff.

It does not provide support

for Plaintiff’s speculative argument that fatigue was the actual
basis for the Captain’s decision to have Plaintiff removed from
the flight, rather than her failure to comply with crew directives.
Accordingly, this objection is rejected and overruled.

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D.

Remaining Objections
Plaintiff further objects to the Report’s finding that

United “is not barred from re-raising at summary judgment the
arguments it advanced at the motion to amend stage.”
22.)

(Report at

Despite the Report’s clear advisement that “allegations of

fact which are accepted as true for purposes of a motion to amend
are not sufficient to carry her burden in opposing a motion for
summary judgment” (id. at 21-22), Plaintiff doggedly insists that
Judge Bianco’s rulings regarding a motion to amend constitute
binding “law of the case” that there is no preemption under the
FAA or ADA.

This contention is meritless.

Judge Bianco’s ruling

applied the motion to amend standard and was based on Plaintiff’s
allegations

and

the

presumptive

truth

of

those

allegations.

Indeed, in granting leave to amend, Judge Bianco clearly indicated
that Plaintiff had asserted a “plausible claim” and that her
allegations “if proven” would result in a determination that her
claims are not preempted.
16 (emphasis added).)

(See July 5, 2019 Tr., ECF No. 73, at

Thus, Plaintiff’s objection is overruled.

As to the remaining objections, this Court has conducted
a de novo review of the Report and considered the full record,
including
thereto.

Plaintiff’s

objections

and

Defendant’s

responses

Upon completion of that review, and to the extent not

explicitly stated herein, Plaintiff’s objections are overruled,
and the Report is adopted in its entirety.
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CONCLUSION
For the foregoing reasons, Plaintiff’s objections (ECF
No. 126) are OVERRULED, the Report (ECF No. 124) is ADOPTED in its
entirety, and Defendant’s motion for summary judgment (ECF No.
110) is GRANTED.

The Clerk of the Court is directed to enter

judgment in favor of Defendant and to mark this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: September 29, 2021
Central Islip, New York

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