Lechin v. United Airlines, Inc. et al
MEMORANDUM OPINION AND ORDER granting 15 MOTION for Summary Judgment , denying 25 MOTION for Leave to File Amended Complaint, denying as moot 32 MOTION to Compel Production of Documents from Plaintiff (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
UNITED AIRLINES, INC., ROBERTO
TORRES, and LUIS CARDOSO,
August 09, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-2254
MEMORANDUM OPINION AND ORDER
Pending before the court are Defendant United Airlines, Inc.'s
No. 15); Plaintiff's Memorandum in Support of Motion for Leave to
File Amended Pleading ("Motion for Leave to Amend")
No. 25); and United Airlines, Inc.'s Response to Plaintiff's Motion
for Leave and Motion to Strike Plaintiff's Corrected First Amended
Complaint and Jury Demand
("United's Motion to Strike")
For the reasons explained below,
the Motion for
Leave to Amend will be denied, United's Motion to Strike will be
denied as moot, and the MSJ will be granted.
Factual and Procedural Backqround 1
departed from George Bush Intercontinental Airport
The factual background is drawn from Plaintiff's Original
Petition, Exhibit 4 to Notice of Removal, Docket Entry No. 1-4, as
well as uncontested allegations from the pending motions.
altercation with her then-husband.
Lechin's husband signaled for
assistance from a
After attempting to resolve the situation by
and United employee Samuel
passengers, Roberto Torres and Luis Cardoso,
Lechin with "zip ties"
to help him remove
and Cardoso restrained
and forcibly removed her from the first
class area of the cabin.
An off-duty Houston Police Department
police officer, Nicole Anzola, offered her assistance and stayed
with Lechin for the remainder of the flight.
The flight crew diverted the plane back to Houston and landed
at IAH, at which time Lechin was arrested.
Oliver and Rosadio gave
statements to the Federal Bureau of Investigation.
eventually indicted by a grand jury for interfering with a flight
attendant while in the performance of his duties by intimidation in
violation of 49 U.S.C.
Lechin was tried and acquitted.
She now brings this action against United for malicious prosecution
Lechin initially asserted an assault claim against Torres and
Cardoso, but they have since been voluntarily dismissed without
prejudice (Docket Entry No. 6). Lechin seeks to reintroduce those
individual defendants by reasserting her original claims and adding
new claims in her proposed Plaintiff's Corrected First Amended
Complaint and Jury Demand ("Proposed Amended Complaint"), Docket
Entry No. 26.
The parties participated in an initial pretrial and scheduling
conference on September 23, 2016, during which the court entered a
scheduling order. 3
The deadline for amending pleadings was set for
That date passed with no amendments.
filed its MSJ on April 25, 2017.
On May 10, 2017, Lechin retained
new counsel and moved for additional time to respond to United's
The court granted Lechin's motion. 5
On May 11, 2017, Lechin
moved to amend the scheduling order to extend the deadline for
expert designation. 6
The court again granted Lechin' s motion. 7
Lechin made no mention of a need to amend her pleadings until
permitted, would affect the court's summary judgment analysis, the
court will first consider Lechin's Motion for Leave to Amend.
Docket Control Order, Docket Entry No. 9.
Plaintiff Carmen Lechin's Motion to Substitute Counsel,
Notice of Appearance and Request for Expedited Consideration,
Docket Entry No. 16; Plaintiff's Memorandum in Support of Motion
for Continuance and Request for Expedited Consideration, Docket
Entry No. 17.
0rder, Docket Entry No. 19.
Plaintiff's Memorandum in Support
Scheduling Order, Docket Entry No. 20.
0rder, Docket Entry No. 22; see also Amended Docket Control
Order, Docket Entry No. 23.
Motion for Leave to Amend
Standard of Review
In cases for which the court has entered a scheduling order in
compliance with Federal Rule of Civil Procedure 16, Federal Rule of
Civil Procedure 16(b) provides the standard for motions to amend
See Fed. R. Civ. P. 16(b) (3) (A)
The scheduling order must limit the time to join other parties,
amend the pleadings, complete discovery, and file motions.").
also Marathon Financial Ins., Inc., RRG v. Ford Motor Co., 591 F. 3d
("Federal Rule of Civil Procedure 16(b)
governs amendment of pleadings after a scheduling order's deadline
to amend has expired.")
(citing Fahim v. Marriott Hotel Services,
Inc., 551 F.3d 344, 348 (5th Cir. 2008)).
"Rule 16 (b)
provides that once a
scheduling order has been
'may be modified only for good cause and with the
P. 16(b) (4)).
Marathon, 591 F. 3d at 4 70 (quoting Fed. R. Civ.
"The good cause standard requires the 'party seeking
relief to show that the deadlines cannot reasonably be met despite
Enterprises, L.L.C. v. SouthTrust Bank of Alabama, NA, 315 F.3d 533,
535 (5th Cir. 2003)
(quoting 6A Charles Alan Wright, et al., Federal
Practice and Procedure
"Only upon the
movant's demonstration of good cause to modify the scheduling order
will the more liberal standard of Rule 15(a) apply."
Id. at 536.
Lechin has failed to demonstrate good cause for the court to
grant leave to amend her pleadings over seven months after the
incorrectly citing the more liberal standard of Rule 15(a), argues
that she should be freely given leave to amend and that United will
not be prejudiced by amendment.
The court disagrees.
only argument in favor of amendment is that "[t]he new causes of
action being added are well
justified given the
Be that as it may, the alleged facts of the case have been
known to Lechin all along.
Lechin cites no new facts.
that Lechin "recently retained counsel" 9 provide good
cause for a late amendment.
D&M Specialties, Inc. v. Apache Creek
explanation for which relief may be granted under Rule 16.").
Even if Lechin had demonstrated good cause,
continuance would not eliminate the potential prejudice.
Motion for Leave to Amend, Docket Entry No. 25, p. 2.
conducted significant case and legal analysis,
participated in mediation,
summary judgment. " 10
United would likely have to revisit and redo
Lechin's new claims.
For these reasons, the court will not permit
Motion for Summary Judgment
Standard of Review
Summary judgment is appropriate if the movant establishes that
there is no genuine dispute about any material fact and the movant
is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
movant accomplishes this by informing the court of the basis
for its motion,
and by identifying portions of the record which
highlight the absence of genuine factual
Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992)
(citing Fed. R. Civ. P.
56 (c) ) .
order to avoid summary judgment, the nonmovant must
identify specific facts within the record that demonstrate the
existence of a genuine issue of material fact."
Mining Company, L.P., 565 F.3d 268, 273
In reviewing the evidence
(5th Cir. 2009).
court must draw all reasonable
inferences in favor of the nonmoving party,
CQ, Inc. v. TXU
and it may not make
United's Motion to Strike, Docket Entry No. 29, p. 10.
Sanderson Plumbing Products,
Inc., 120 S. Ct. 2097,
The court resolves factual controversies in favor of the nonmovant,
"but only when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts."
Hugh Symons Group, plc v. Motorola, Inc., 292 F. 3d 466,
(5th Cir. 2002)
(citing Celotex Corp. v. Catrett, 106 S. Ct.
And "[m]ere conclusory allegations are not
competent summary judgment evidence."
Id. (citing Eason v. Thaler,
73 F. 3d 1322, 1325 (5th Cir. 1996)).
Montreal Convention Preemption
The parties dispute whether and to what extent The Convention
for the Unification of Certain Rules for International Carriage by
Air, May 28, 1999, S. TREATY DOC. No. 106-45, 2242 U.N.T.S. 309,
1999 WL 33292734
("the Montreal Convention") applies to Lechin's
straightforward application of the Montreal Convention and related
case law to the unusual facts before the court.
a dearth of applicable precedent.
Moreover, there is
Because Lechin's claims cannot
survive summary judgment even assuming that the Montreal Convention
does not preempt the claims,
the court will forego a preemption
analysis that would likely be of little use to courts in future
actions and address whether Lechin has demonstrated the existence
of a genuine issue of material fact.
To prevail on a malicious prosecution claim under Texas law,
a plaintiff must establish:
the commencement of a criminal
prosecution against the plaintiff;
procurement) of the action by the defendant; (3) termination of the
(5) the absence of probable cause for the proceedings;
(6) malice in filing the charge; and (7) damage to the plaintiff."
Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997)
United argues that Lechin's claim should be
dismissed as a matter of law because United did not initiate or
Ordinarily "a person cannot be liable for
malicious prosecution if 'the decision whether to prosecute is left
to the discretion of another, including a law enforcement official
or the grand jury, unless the person provides information which he
knows is false.'"
King v. Graham, 126 S.W.3d 75,
(quoting Browning-Ferris Industries, Inc. v. Lieck, 881 S.W.2d 288,
Since Lechin was
indicted by a
knowingly provided false information.
United argues that the record contains no evidence that it
Response 11 cites only two
sources containing statements attributable to United, but does not
Plaintiff's Memorandum in Response to Defendant's Motion for
Summary Judgment ("Plaintiff's Response"), Docket Entry No. 27.
to Rosadio' s
characterizes as showing that "Rosadio had told Sam Oliver that the
. but he chose to ignore her. " 12
situation was under control .
reasonably infer from the statement that United provided false
information to law enforcement officials.
Lechin also refers to a
statement from Oliver's Deposition in which he acknowledges that
the information he gave to law enforcement "would be important." 13
That statement, like Rosadio's, does not establish a genuine issue
of material fact as to whether United knowingly provided false
Lechin' s arguments rely on unwarranted inferences and
In light of a complete lack of record
evidence for an essential element of Lechin's claim,
cannot survive summary judgment.
"Texas law allows a cause of action for defamation where the
(1) published a statement,
to the plaintiff,
'while acting with either actual malice, if
(2) that was defamatory as
if the plaintiff was a private individual,
the truth of the statement.'"
Hill v. Anderson, 420 F. App'x 427,
Id. at 25-26.
Id. at 27.
434 (5th Cir. 2011)
(quoting WFAA-TV, Inc. v. McLemore, 978 S.W.2d
that there is no record
evidence of any specific statement published by United that could
United's Motion will therefore be granted as to this
Conclusions and Order
For the reasons explained above,
the court concludes that
plaintiff has not shown good cause for permitting her to amend her
pleading more than seven months after the original deadline for
Plaintiff's Motion for Leave to Amend
No. 25) is therefore DENIED.
Because Plaintiff is not permitted to
Defendant's Motion to Strike Plaintiff's Corrected First
(Docket Entry No.
is DENIED as moot.
court also concludes that defendant is entitled to judgment as a
matter of law on all claims.
Motion for Summary Judgment
Defendant United Airlines,
(Docket Entry No.
SIGNED at Houston, Texas, on this the 9th day of August, 2017.
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