Chanze v. Air Evac EMS, Inc.
Filing
27
MEMORANDUM OPINION AND ORDER GRANTING 5 DEFENDANT'S MOTION TO DISMISS. It is ORDERED that this case be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 11/1/2018. (copy to counsel via CM/ECF) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TROY CHANZE, SR., on his own
behalf and on behalf of all
others similarly situated,
Plaintiff,
v.
Civil Action No. 5:18CV89
(STAMP)
AIR EVAC EMS, INC.,
a Missouri corporation,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
I.
Background
This case arises out of alleged breach of implied contract
between the plaintiff, Troy Chanze, Sr. (“Chanze”), and defendant
Air Evac EMS, Inc. (hereinafter, “Air Evac”).
On April 26, 2016,
the plaintiff, Troy Chanze, Sr., was injured in an all-terrain
vehicle accident in Wetzel County, West Virginia.
Due to the
nature of his injuries and at the request of emergency service
providers, the plaintiff was transported to the nearest trauma
center, which was West Virginia University Hospital in Morgantown,
West Virginia.
The distance from the site of the wreck to the
hospital was 39 air miles.
transport for the plaintiff.
The defendant, Air Evac, provided air
After the transport, Chanze signed a
written authorization, accepting financial responsibility for the
services provided and acknowledging that he was responsible for any
amount that was not covered by his insurance policy.
In May 2017,
after the transport was complete, Air Evac provided a bill to the
plaintiff in the amount of $34,976.56, which included a “base rate”
of $23,505.00 plus a $9,789.00 “loaded mile” charge. The plaintiff
was insured by The Health Plan.
The Health Plan paid Air Evac the
amount of $13,100.00 for the transport, and Air Evac continued to
bill the plaintiff for the amount his insurance company did not
cover and remained unpaid from the May 2017 billing statement.
The plaintiff originally filed his putative class action
complaint, on his own behalf and on behalf of all others similarly
situated, in the Circuit Court of Wetzel County, West Virginia
against the defendant Air Evac.
The plaintiff’s putative class
action complaint seeks money damages, restitution and disgorgement,
declaratory and injunctive relief, and attorneys’ fees on behalf of
the plaintiff Chanze individually and on behalf of a purported
class of individuals who received Air Evac’s medical transport
services from a location in West Virginia to a healthcare facility
over the past five years.
II.
Procedural History
Defendant Air Evac removed the civil action to this Court on
May 17, 2018 on the basis of original jurisdiction under the Class
Action Fairness Act, 28 U.S.C. § 1332(d).
ECF No. 1.
In the first
cause of action of the complaint, Chanze brings a breach of implied
contract claim, asserting that the rate he was charged for Air
Evac’s air ambulance services is unreasonable as a matter of West
2
Virginia law.
In the second cause of action of the complaint,
Chanze seeks declaratory and injunctive relief to bar Air Evac from
charging its usual billed rates for air ambulance transportation
services.
Defendant Air Evac filed a motion to dismiss (ECF No. 5) on
May 24, 2018, asserting that the putative class action complaint is
preempted in its entirety by the Airline Deregulation Act of 1978
(“ADA”), which preempts state-law claims “having the force and
effect of law related to a price, route, or service of an air
carrier.”
49 U.S.C. § 41713(b)(1).
On June 1, 2018, plaintiff filed a motion to remand this case
to the Circuit Court of Wetzel County, West Virginia.
ECF No. 13.
On the same date, plaintiff also filed a motion to stay briefing of
Air Evac’s motion to dismiss until the Court first addresses the
jurisdictional issues raised in plaintiff’s motion to remand.
ECF
No. 14. On June 6, 2018, this Court granted the plaintiff’s motion
to stay briefing on the motion to dismiss.
ECF No. 16.
This Court then considered plaintiff’s fully briefed motion to
remand and entered a memorandum opinion and order denying the
plaintiff’s motion to remand.
ECF No. 21.
As to defendant’s
motion to dismiss (ECF No. 5), the contentions of the parties are
now
fully
briefed
and
Air
Evac’s
pending
plaintiff’s complaint is ripe for decision.
3
motion
to
dismiss
This Court, having reviewed the defendant’s fully briefed
motion to dismiss and memorandum in support (ECF Nos. 5, 6), the
plaintiff’s response in opposition (ECF No. 22) and defendant’s
reply
thereto
(ECF
No.
23),
and
the
memoranda
and
exhibits
submitted by the parties, and for the reasons set forth below,
finds that the plaintiff’s putative class action complaint is
preempted in its entirety by the ADA.
Accordingly, defendant Air
Evac’s motion to dismiss (ECF No. 5) must be granted.
III.
Applicable Law
In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept all well-pled facts
contained in the complaint as true.
Nemet Chevrolet, Ltd v.
Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009).
However, “legal conclusions, elements of a cause of action, and
bare assertions devoid of further factual enhancement fail to
constitute well-pled facts for Rule 12(b)(6) purposes.”
Id.
(citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
This
Court
also
declines
to
consider
“unwarranted
unreasonable conclusions, or arguments.”
inferences,
Wahi v. Charleston Area
Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).
The purpose of a motion under Rule 12(b)(6) is to test the
formal sufficiency of the statement of the claim for relief; it is
not a procedure for resolving a contest about the facts or the
merits of the case.
5B Charles Alan Wright & Arthur R. Miller,
4
Federal Practice and Procedure § 1356 (3d ed. 1998).
The Rule
12(b)(6) motion also must be distinguished from a motion for
summary judgment under Federal Rule of Civil Procedure 56, which
goes to the merits of the claim and is designed to test whether
there is a genuine issue of material fact.
Id.
For purposes of
the motion to dismiss, the complaint is construed in the light most
favorable to the party making the claim and essentially the court’s
inquiry
is
directed
to
whether
the
allegations
constitute
a
statement of a claim under Federal Rule of Civil Procedure 8(a).
Id. § 1357.
A complaint should be dismissed “if it does not allege ‘enough
facts to state a claim to relief that is plausible on is face.’”
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Facial
plausibility is established once the factual content of a complaint
‘allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Nemet Chevrolet,
591 F.3d at 256 (quoting Iqbal, 129 S. Ct. at 1949).
Detailed
factual allegations are not required, but the facts alleged must be
sufficient “to raise a right to relief above the speculative
level.”
Twombly, 550 U.S. at 555.
An action will be dismissed for failing to state a claim if it
appears that the plaintiff can prove no set of facts that would
entitle him to relief.
See Conley v. Gibson, 355 U.S. 41, 45-46,
5
78 S. Ct. 99, 2 L.Ed.2d 80 (1957).
Dismissal under Rule 12(b)(6)
is proper if a dispositive issue of law bars a plaintiff’s claims.
See Neitzke v. Williams, 490 U.S. 319, 326 (1989).
“Such is the
case when the face of the complaint clearly reveals the existence
of a meritorious affirmative defense, such as federal preemption.”
Peal v. N. Carolina Farm Bureau Mut. Ins. Co., 212 F. Supp. 2d 508,
512 (E.D.N.C. 2002) (citing Brooks v. City of Winston-Salem, 85
F.3d 178, 181 (4th Cir. 1996)).
The affirmative defense of
preemption may be resolved on a motion to dismiss, provided the
facts necessary to determine the issue clearly appear on the face
of the complaint. Franklin Livestock, Inc. v. Boehringer Ingelheim
Vetmedica, Inc., 113 F. Supp. 3d 834, 837 (E.D.N.C. 2015) (citing
Goodman v. Praxair, Inc., 494 F.3d 458 (4th Cir. 2007) (en banc);
Great–W. Life & Annuity Ins. Co. v. Info. Sys. & Networks Corp.,
523 F.3d 266, 272 (4th Cir. 2008)); Seagram v. David’s Towing &
Recovery, Inc., 62 F. Supp. 3d 467, 477 (E.D. Va. 2014) (“A Rule
12(b)(6) motion to dismiss is a proper vehicle by which a court may
consider a preemption claim.”); O’Boyle v. Superior Moving &
Storage, Inc., No. 5:09-CV-166, 2009 WL 2496933, at *3 (S.D. W. Va.
Aug. 13, 2009) (“A claim arising from state law that is preempted
by federal law is
not a cognizable legal claim.
No set of facts
will establish a plausible right to relief if the legal basis for
the claim is preempted.”).
6
IV.
Contentions of the Parties
Defendant Air Evac filed a motion to dismiss (ECF No. 5)
asserting that the plaintiff’s putative class action complaint is
preempted in its entirety by the Airline Deregulation Act of 1978
(“ADA”), which preempts state-law claims “having the force and
effect of law related to a price, route, or service of an air
carrier.”
49 U.S.C. § 41713(b)(1).
ECF No. 5 at 1-2.
In support,
defendant asserts that the ADA contains a broad, express preemption
provision and that the ADA preemption clause encompasses state
common law claims that impose a state standard on an air carrier’s
price or service.
ECF No. 6 at 12, 14.
Defendant contends that
Air Evac is an “air carrier” under the ADA, and thus, plaintiff’s
breach of implied contract claim (first cause of action) is
preempted.
ECF No. 6 at 16, 17.
Further, defendant contends that
Chanze’s claim for declaratory and injunctive relief (second cause
of action) is also preempted by the ADA.
ECF No. 6 at 24.
Lastly,
defendant
claims
by
asserts
that
any
equitable
plaintiff are also preempted.
ECF No. 6 at 26.
asserted
the
Defendant states
that “[b]ecause Chanze’s claims are preempted by the ADA, this
Court should dismiss the Class Action Complaint in its entirety.”
ECF No. 6 at 29.
The
plaintiff
filed
a
response
in
opposition
to
the
defendant’s motion. ECF No. 22. In response, the plaintiff argues
that the scope of preemption under the ADA is restrained and
7
limited.
Id. at 3.
First, the plaintiff contends that the claim
falls under the Wolens exception, which is an exception for claims
seeking recovery “solely for the airline’s alleged breach of its
own, self-imposed undertakings.”
Id. at 3-4 (citing Am. Airlines,
Inc. v. Wolens, 513 U.S. 219, 228-29 (1995)).
The plaintiff
asserts that under Wolens, the ADA does not preempt state law
claims alleging breach of contract.
Id. at 4.
Second, the
plaintiff argues that Air Evac is not a “common carrier” within the
meaning
of
the
ADA
because:
(1)
it
does
not
have
regular
transportation routes and does not have approved (or public) rates
for its services; and (2) it only transports a certain category of
customers
(those
persons
whose
injuries
sufficiently serious by medical personnel).
are
deemed
Id. at 6-8.
to
be
Lastly,
the plaintiff argues that if the ADA applies, it results in an “as
applied”
due
process
violation
because
it
is
arbitrary
and
irrational to require the plaintiff, who had no choice about
whether to be transported by Air Evac, to pay whatever charge Air
Evac sees fit to impose.
Id. at 8.
Specifically, the plaintiff
contends that the application of the ADA would be arbitrary and
irrational if Air Evac was permitted by statute to charge an
unregulated fee following a transport and plaintiff is prevented
from challenging that amount.
Id. at 9.
The defendant filed a reply to the plaintiff’s response in
opposition to defendant’s motion to dismiss.
8
ECF No. 23.
First,
the defendant argues that Air Evac is a “common carrier” and an
“air carrier” under the ADA, because Air Evac transports all
injured people who need air ambulance services, and states that a
“common carrier” does not need to make its services available to
the public at large, but rather the crucial factor “is whether the
carrier has held itself out to the public or to a definable segment
of
the
public
as
indiscriminately.”
being
willing
Id. at 6, 8.
to
transport
for
hire,
The defendant asserts that
because Air Evac transports air services without regard to the
patient’s insured status, it is a “common carrier.”
Id.
Second,
the defendant argues that plaintiff’s breach of contract claim does
not fit within the Wolens exception to ADA preemption, because his
claim is not a routine breach of contract claim.
Id. at 9-10.
The
defendant analogizes the case at hand to Schneberger v. Air Evac
EMS, Inc., No. CIV-16-843-R, 2017 WL 1026012, at *4 (W.D. Okla.
Mar. 15, 2017), where the court refused, based on ADA preemption,
plaintiff’s request for the court to impose a “fair and reasonable”
price for air ambulance services on Air Evac under state contract
law.
Id. at 11.
Moreover, the defendant argues that obtaining an
express agreement on price prior to transport or submitting Air
Evac to a court-determined rate is a state policy-based standard
that would be applied across the board, which is inconsistent with
Congress’s intent to leave such decisions to the competitive
marketplace.
Id. at 14.
Similarly, the defendant argues that
9
equitable relief is preempted. Id. at 15-16. Third, the defendant
argues that the ADA is not arbitrary or irrational since it is
“rationally related to Congress’s goal of deregulating the air
transportation industry to ensure transportation rates, routes, and
services reflect maximum reliance on competitive market forces.”
Id. at 18-19 (citing Stout v. Med-Trans Corp., No. 1:17-CV-115,
2018 WL 3090391 (N.D. Fla. May 2, 2018)). Lastly, defendant argues
that, far from acting in an arbitrary or irrational manner,
Congress was aware of who was included in the ADA’s definition of
“air carrier” and made a “deliberate, considered choice” to enact
language
that
includes
air
ambulances
within
the
preemption
provision’s scope. Id. at 19 (citing Schweiker v. Wilson, 450 U.S.
221, 235-238 (1981).
Defendant further filed a “notice of supplemental authority”
(ECF No. 24) regarding Ferrell v. Air Evac EMS, Inc., No. 17-2554,
2018 WL 3886688 (8th Cir. Aug. 16, 2018), which was recently
decided by the United States Court of Appeals for the Eighth
Circuit.
Defendant
also
filed
an
additional
“notice
of
supplemental authority” (ECF No. 25) regarding Schneberger v. Air
Evac EMS, Inc., No. 17-6154, 2018 WL 4183460 (10th Cir. Aug. 31,
2018) (unpublished), which was recently decided by the United
States Court of Appeals for the Tenth Circuit.
10
V.
Discussion
This Court finds that Chanze’s claims for breach of implied
contract, declaratory and injunctive relief, and equitable theories
of recovery all fail as a matter of law and are subject to
dismissal because they are preempted by the Airline Deregulation
Act of 1978.
In pertinent part, 49 U.S.C. § 41713(b)(1), “[p]reemption of
authority over prices, routes, and service,” states:
[A] State, political subdivision of a State, or political
authority of at least 2 States may not enact or enforce
a law, regulation, or other provision having the force
and effect of law related to a price, route, or service
of an air carrier that may provide air transportation
under this subpart.
49 U.S.C. § 41713(b)(1).
This language expressly preempts the States from enacting or
enforcing any law, rule, regulation, standard, or other provision
having the force and effect of law relating to rates, routes, or
services of any air carrier.
Morales v. Trans World Airlines,
Inc., 504 U.S. 374, 383, 112 S. Ct. 2031 (1992) (citation omitted);
49 U.S.C. § 41713(b)(1).
This express and sweeping preemption
clause “stops States from imposing their own substantive standards
with respect to rates, routes, or services” of an air carrier.
Wolens, 513 U.S. at 232.
Under the ADA, the Supreme Court
explained, a state law has the “force and effect of law” when it
represents the State’s effort to impose its “own substantive
standards with respect to rates, routes, or services.” Wolens, 513
11
U.S. at 232. By contrast, state laws that enforce an air carrier’s
“own, self-imposed undertakings” do not have the requisite legal
force or effect.
Id. at 228.
The ADA therefore preempts a state law or state-law claim
where three criteria are met: (1) the entity affected by the
challenged provision must be an “air carrier”; (2) the provision
must have “the force and effect of law”; and (3) the provision must
“relate[] to a price, route or service of” an air carrier.
49
U.S.C. § 41713(b)(1).
First, as an initial matter, this Court finds that Air Evac is
an “air carrier” for purposes of the ADA and thus may invoke the
federal-preemption defense.
The ADA defines “air carrier” as “a
citizen of the United States undertaking by any means, directly or
indirectly,
to
§ 40102(a)(2).
provide
air
transportation.”
49
U.S.C.
Air Evac provides air ambulance services when
dispatched by a third party such as a first responder or medical
professional and, under West Virginia law, it must transport all
patients regardless of insurance status or ability to pay. ECF No.
6 at 16.
Further, Air Evac is authorized by the Federal Aviation
Administration to operate as an “air carrier” under 49 C.F.R. Part
119 and to provide on-demand air ambulance services in “the 48
contiguous United States and the District of Columbia” under 49
C.F.R. Part 135.
Schneberger, 2017 WL 1026012 at *2.
The
Department of Transportation has also authorized Air Evac to
12
operate as an “air taxi” (i.e., transport persons by air) under 14
C.F.R. Part 298.
Because of these federal authorizations, courts
have all but uniformly held that air ambulance providers are “air
carriers” under the ADA.
See, e.g., Schneberger, 2017 WL 1026012
at *2; Cheatham, 2017 WL 4765966 at *5 (noting that no other courts
have ruled that air ambulances were not air carriers under ADA,
observing that Department of Transportation licensed Air Evac as an
air carrier, and holding “that Air Evac’s practice of providing
emergency air ambulance services indiscriminately when called upon
by third party professionals, together with its certification as an
air carrier by the Department of Transportation and court cases
affirming this status, qualify Air Evac as an air carrier under the
ADA”).
Plaintiff’s argument to the contrary is an outlier, and
this Court is not persuaded.
Second, this Court finds that plaintiff’s breach of implied
contract claim (first cause of action) also has “the force and
effect of law” because it asks this Court to impose a lower rate
for Air Evac’s services than its billed charges.
§ 41713(b)(1).
49 U.S.C.
This Court is tasked with determining whether
Chanze’s claims allege a violation of state-imposed obligations or
seek recovery solely for the Air Evac’s alleged breach of its own,
self-imposed undertakings.
in
Cheatham
noted,
“[t]he
Wolens, 513 U.S. at 228.
Supreme
Court
has
As the Court
held
that
the
determination of whether a statute has the ‘force and effect of
13
law’ hinges on whether the State acts as a market participant
rather than a market regulator.”
2017 WL 4765966 at *6 (citing
American Trucking Ass’ns v. City of Los Angeles, 133 S. Ct. 2096
(2013)
(interpreting
Authorization Act)).
the
Federal
Aviation
Administration
In Wolens, the Court further held that the
ADA’s preemption provision “stops States from imposing their own
substantive standards with respect to rates, routes, or services.”
513 U.S. at 232.
The ADA does not, however, prevent States from
enforcing an air carrier’s “own, self-imposed undertakings.”
at 228.
Id.
“[A]n air carrier may bring a state action to enforce the
terms of a contract, whether express or implied, or the person with
whom an air carrier has contracted may bring a breach-of-contract
action against the air carrier — so long as the action concerns
voluntary commitments and not state-imposed obligations. Bailey v.
Rocky Mountain Holdings, LLC, 889 F.3d 1259, 1268 (11th Cir. 2018)
(citing Wolens, 513 U.S. at 232–33, 237).
The plaintiff contends that the ADA does not preempt state law
claims alleging breach of contract, and thus, the plaintiff’s claim
fits within the Wolens exception.
This Court disagrees, and finds
that Chanze’s breach of implied contract claim asserted in the
first cause of action does not fit within the narrow exception set
forth in Wolens for routine breach of contract claims as it is not
based on Air Evac’s “voluntary undertakings.” See Wolens at 232–33
(finding the ADA’s preemption clause stops States from imposing
14
their own substantive standards with respect to rates, routes, or
services, but not from affording relief to a party who claims and
proves that an airline dishonored a term the airline itself
stipulated).
As another federal court stated in rejecting an
identical contract claim, “this Court would not be the first to
dismiss a claim for excessive air carrier rates when the claim was
merely masquerading as one for breach of contract.”
2017
WL
1026012,
exception,
as
at
argued
*4.
by
This
the
Court
finds
plaintiff,
does
that
not
Schneberger,
the
Wolens
apply,
and
plaintiff’s claim does not escape preemption.
Third, this Court finds that the final requirement for ADA
preemption is met in that Chanze’s claim relates to Air Evac’s
prices and services.
49 U.S.C. § 41713(b); Morales at 383.
The
Supreme Court has identified ‘relating to’ as the key phrase in the
ADA’s preemption provision, holding that “[t]he ordinary meaning of
these words is a broad one — ‘to stand in some relation; to have
bearing or concern; to pertain; refer, to bring into association
with or connection with’ — and the words thus express a broad
pre-emptive purpose.”
Cheatham, 2017 WL 4765966 at *6 (citing
Morales, 504 U.S. at 383).
As the Supreme Court explained in
Morales, the ADA expressly preempts all state laws and claims that
either (1) “bear[] a reference to” an air carrier’s rates, routes,
or services or (2) “have a . . . significant effect upon” them.
504 U.S. at 388.
Chanze’s breach of implied contract claim does
15
both. As Air Evac correctly states, “[u]nder the statute, multiple
federal district courts in the same purported class action context
have refused to deploy state contract law to set air ambulance
rates based on a court’s policy-based conception of a ‘reasonable’
price for air ambulance services, because doing so would violate
the ADA.”
ECF No. 6 at 12.
This Court agrees, and will follow
suit.
Further, Chanze’s claim for declaratory and injunctive relief
(second cause of action), as well as his requested equitable
relief, is also preempted by the ADA.
The second cause of action
seeks a disgorgement of all illegal profits retained by Air Evac
and an injunction preventing it from charging and/or collecting
illegal profits in the future. These claims fail for substantially
the same reasons set forth in the analysis of the first cause of
action above.
forbidding
Air
Plaintiff’s requested injunctive relief, an order
Evac
from
charging
an
“unreasonable
rate
for
transport services in West Virginia,” amounts to a remedy which
falls
outside
the
Wolens
exception
to
ADA
preemption.
Additionally, plaintiff’s request that this Court impose a lower
rate is the type of action the ADA’s preemption provision seeks to
prevent.
Schneberger, 2017 WL 1026012, at *5.
For the same
reasons previously stated, Chanze’s allusions to claims sounding in
equity also fail.
16
Lastly, plaintiff argues in the alternative that “[e]ven if
the court finds that the plaintiff’s claims are ADA-preempted,
applying the ADA to air ambulances, particularly under the facts
presented here, would violate due process.”
argument is without merit.
ECF No. 22 at 3.
This
“To comport with the limited scope of
substantive due process protection, economic legislation need only
be rationally related to a legitimate government interest.”
Scientific Inc. v. Beales, 278 F.3d 339, 348 (4th Cir. 2002).
Star
The
Due Process Clause is satisfied so long as a law is rationally
related to “some conceivable purpose that is not prohibited by the
Constitution.”
Beales, 278 F.3d at 350.
If a piece of economic
legislation “is supported by a legitimate legislative purpose
furthered by a rational means, judgments about the wisdom of such
legislation remain within the exclusive province of the legislative
and executive branches.”
Holland v. Keenan Trucking Co., 102 F.3d
736, 740 (4th Cir. 1996) (citing Pension Benefit Guaranty Corp. v.
R.A. Gray & Co., 467 U.S. 717, 729, 104 S. Ct. 2709, 2717-18
(1984)). Moreover, economic legislation “come[s] to the Court with
a presumption of constitutionality, and . . . the burden is on one
complaining of a due process violation to establish that the
legislature has acted in an arbitrary and irrational way.” Beales,
278 F.3d at 348–49 (citing Usery v. Turner Elkhorn Mining Co., 428
U.S. 1, 15, 96 S. Ct. 2882, 2892 (1976)).
Thus, “[i]t is difficult
to exaggerate the burden” that a party must overcome to demonstrate
17
that economic legislation fails rational basis review. Beales, 278
F.3d at 348–49 (citing Holland, 102 F.3d at 740).
This Court finds that the ADA is rationally related to
Congress’s goal of deregulating the air transportation industry to
ensure transportation rates, routes, and services reflect maximum
reliance on competitive market forces.
1299.
Stout, 313 F. Supp. 3d at
Put simply, the plaintiff fails to overcome the difficult
burden of demonstrating that applying the ADA to air ambulances
would violate due process. Moreover, this Court notes that the ADA
provides Chanze with the opportunity to challenge air ambulances’
pricing practices “by filing complaints of unfair or deceptive
practices through the Department of Transportation.” Stout, 313 F.
Supp. 3d at 1299 (citing 49 U.S.C. § 41712(a)).
VI.
Conclusion
For the reasons set forth above, this Court finds that the
plaintiff’s putative class action complaint is preempted in its
entirety by the Airline Deregulation Act of 1978. Accordingly, the
defendant’s motion to dismiss (ECF No. 5) is GRANTED.
Therefore,
it is ORDERED that this case be DISMISSED and STRICKEN from the
active docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
18
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:
November 1, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
19
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