Lechin v. United Airlines, Inc. et al
Filing
33
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
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CARMEN LECHIN,
Plaintiff,
v.
UNITED AIRLINES, INC., ROBERTO
TORRES, and LUIS CARDOSO,
Defendants.
§
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§
§
§
§
§
§
§
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
("United")
Motion
for
Summary
Judgment
( "MSJ")
(Docket
Entry
No. 15); Plaintiff's Memorandum in Support of Motion for Leave to
File Amended Pleading ("Motion for Leave to Amend")
(Docket Entry
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
Entry No.
29).
("United's Motion to Strike")
For the reasons explained below,
(Docket
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.
I.
Plaintiff,
Factual and Procedural Backqround 1
Carmen
Lechin,
boarded
a
United
departed from George Bush Intercontinental Airport
1
flight
that
("IAH") bound
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.
for
Bogota,
Colombia.
En
route,
altercation with her then-husband.
she
became
involved
in
an
Lechin's husband signaled for
assistance from a
flight
Oliver responded.
After attempting to resolve the situation by
reseating
Lechin
attendant
Sonya
and
attendant,
seeking
Rosadio,
and United employee Samuel
assistance
Oliver
eventually
passengers, Roberto Torres and Luis Cardoso,
Lechin from
the area.
Oliver,
Lechin with "zip ties"
from
Torres,
2
fellow
flight
recruited
two
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.
Lechin was
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.
§
46504.
Lechin was tried and acquitted.
She now brings this action against United for malicious prosecution
and defamation.
2
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.
-2-
The parties participated in an initial pretrial and scheduling
conference on September 23, 2016, during which the court entered a
scheduling order. 3
October 21,
2016.
The deadline for amending pleadings was set for
That date passed with no amendments.
filed its MSJ on April 25, 2017.
United
On May 10, 2017, Lechin retained
new counsel and moved for additional time to respond to United's
MSJ. 4
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
June
8,
2017,
complaint.
when
Because
she
moved
Lechin's
for
leave
Proposed
to
file
Amended
an
amended
Complaint,
if
permitted, would affect the court's summary judgment analysis, the
court will first consider Lechin's Motion for Leave to Amend.
3
Docket Control Order, Docket Entry No. 9.
4
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.
5
0rder, Docket Entry No. 19.
6
Plaintiff's Memorandum in Support
Scheduling Order, Docket Entry No. 20.
7
of
Motion
to
Modify
0rder, Docket Entry No. 22; see also Amended Docket Control
Order, Docket Entry No. 23.
-3-
II.
A.
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
filed
after
amendments.
expiration of
the
scheduling order's
See Fed. R. Civ. P. 16(b) (3) (A)
deadline
for
("Required Contents.
The scheduling order must limit the time to join other parties,
amend the pleadings, complete discovery, and file motions.").
See
also Marathon Financial Ins., Inc., RRG v. Ford Motor Co., 591 F. 3d
458, 470
(5th Cir.
2009)
("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)
entered,
it
provides that once a
scheduling order has been
'may be modified only for good cause and with the
judge's consent."'
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
the
diligence
of
the
party
needing
the
extension.'"
S&W
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
§
1522.1
(2d ed.
1990)).
"Only upon the
movant's demonstration of good cause to modify the scheduling order
will the more liberal standard of Rule 15(a) apply."
-4-
Id. at 536.
B.
Analysis
Lechin has failed to demonstrate good cause for the court to
grant leave to amend her pleadings over seven months after the
deadline
provided
in
the
court's
scheduling
order.
Lechin,
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.
Lechin's
only argument in favor of amendment is that "[t]he new causes of
action being added are well
case." 8
justified given the
facts
of
the
Be that as it may, the alleged facts of the case have been
known to Lechin all along.
the fact
Lechin cites no new facts.
that Lechin "recently retained counsel" 9 provide good
cause for a late amendment.
Properties,
12493289,
Nor does
L.C.,
at
*2
("Substitution
Civil
(W.D.
of
D&M Specialties, Inc. v. Apache Creek
Action
Tex.
counsel
No.
May 12,
is
not
SA-12-CA-588-FB,
2014
2014)
omitted)
the
(citations
type
of
WL
satisfactory
explanation for which relief may be granted under Rule 16.").
Even if Lechin had demonstrated good cause,
cutoff
is
now
reintroduced
investigate
less
than
defendants
at
least
three
weeks
would
four
new
be
away.
prejudiced
claims
in
that
the discovery
United
by
and
the
having
to
time.
continuance would not eliminate the potential prejudice.
8
Motion for Leave to Amend, Docket Entry No. 25, p. 2.
9
Id.
-5-
And
a
United
~has
conducted significant case and legal analysis,
reviewed
discovery,
deposition,
and
presented
participated in mediation,
summary judgment. " 10
a
prepared
substantial
filed
witness
a
for
motion for
United would likely have to revisit and redo
portion
Lechin's new claims.
and
a
served and
of
its
existing
discovery
in
light
of
For these reasons, the court will not permit
amendment.
III.
A.
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.
~The
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
issues."
Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992)
(citing Fed. R. Civ. P.
56 (c) ) .
~In
Topalian v.
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
~the
(5th Cir. 2009).
court must draw all reasonable
inferences in favor of the nonmoving party,
credibility determinations
10
CQ, Inc. v. TXU
or weigh
the
and it may not make
evidence."
Reeves
United's Motion to Strike, Docket Entry No. 29, p. 10.
-6-
v.
Sanderson Plumbing Products,
Inc., 120 S. Ct. 2097,
2110
(2000).
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."
Liquid
Air
Corp. ,
37
F.3d
"Unsubstantiated assertions
evidence."
468
2553
are
not
1075
(5th
competent
Cir.
summary
1994) .
judgment
Hugh Symons Group, plc v. Motorola, Inc., 292 F. 3d 466,
(5th Cir. 2002)
2548,
1069,
Little v.
(1986)).
(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)).
B.
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
claims.
As
the
("the Montreal Convention") applies to Lechin's
parties'
arguments
demonstrate,
there
is
no
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.
-7-
c.
Malicious Prosecution
To prevail on a malicious prosecution claim under Texas law,
"(1)
a plaintiff must establish:
the commencement of a criminal
prosecution against the plaintiff;
(2)
causation
(initiation or
procurement) of the action by the defendant; (3) termination of the
prosecution
innocence;
in
the
plaintiff's
favor;
(4)
the
plaintiff's
(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)
(citations omitted).
United argues that Lechin's claim should be
dismissed as a matter of law because United did not initiate or
procure prosecution.
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,
76
(Tex. 2003)
(quoting Browning-Ferris Industries, Inc. v. Lieck, 881 S.W.2d 288,
293
(Tex.
United
1994)).
cannot
be
Since Lechin was
liable
for
indicted by a
malicious
prosecution
grand jury,
unless
it
knowingly provided false information.
United argues that the record contains no evidence that it
reported false
information.
Lechin' s
Response 11 cites only two
sources containing statements attributable to United, but does not
11
Plaintiff's Memorandum in Response to Defendant's Motion for
Summary Judgment ("Plaintiff's Response"), Docket Entry No. 27.
-8-
specifically
identify any
Lechin refers
false
to Rosadio' s
information
statement
to
the
in
either
FBI,
source.
which Lechin
characterizes as showing that "Rosadio had told Sam Oliver that the
. but he chose to ignore her. " 12
situation was under control .
Even
accepting
Lechin's
characterization,
the
court
cannot
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
information.
Lechin' s arguments rely on unwarranted inferences and
conclusory allegations.
In light of a complete lack of record
evidence for an essential element of Lechin's claim,
the claim
cannot survive summary judgment.
D.
Defamation
"Texas law allows a cause of action for defamation where the
defendant:
(1) published a statement,
to the plaintiff,
the
plaintiff
negligence,
'while acting with either actual malice, if
(3)
was
(2) that was defamatory as
a
public
official
or
public
figure,
if the plaintiff was a private individual,
the truth of the statement.'"
12
regarding
Hill v. Anderson, 420 F. App'x 427,
Id. at 25-26.
13
or
Id. at 27.
-9-
434 (5th Cir. 2011)
568,
571
(Tex.
(quoting WFAA-TV, Inc. v. McLemore, 978 S.W.2d
1998)).
United argues
that there is no record
evidence of any specific statement published by United that could
serve as
agrees,
the
basis
and Lechin
Response.
for
Lechin' s
fails
to
defamation claim.
address
United's
The
argument
court
in her
United's Motion will therefore be granted as to this
claim.
IV.
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
amendment.
Plaintiff's Motion for Leave to Amend
No. 25) is therefore DENIED.
amend,
(Docket Entry
Because Plaintiff is not permitted to
Defendant's Motion to Strike Plaintiff's Corrected First
Amended Complaint
(Docket Entry No.
29)
is DENIED as moot.
The
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.
15)
Inc.'s
is therefore
GRANTED.
SIGNED at Houston, Texas, on this the 9th day of August, 2017.
JUDGE
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