436 F.Supp.3d 550
E.D.N.Y2020Background
- On March 22, 2016, Moshe Berlin (then pro se) was a passenger on JetBlue Flight 1324 from Mexico City to Orlando; he alleges he asked flight attendants for “ICES” (Yiddish for ice), was misheard as saying “ISIS,” and was physically restrained, injured, and detained aboard the plane.
- Upon arrival, Berlin was turned over to federal and local authorities, prosecuted in the Middle District of Florida for interfering with a flight crew (49 U.S.C. § 46504), found not guilty by reason of insanity, and released in February 2017; he alleges psychological and family harms and spent ~11 months in custody.
- Berlin sued JetBlue and individual employees in the Eastern District of New York asserting claims under the Montreal/Warsaw Conventions, the Air Carrier Access Act (ACAA), 42 U.S.C. § 1983, and New York tort law; the court previously allowed only the Montreal/Warsaw bodily-injury claim to proceed and dismissed many other claims as preempted.
- Nearly a year after the scheduling-order deadline to amend, Berlin (now with counsel) moved to file a proposed amended complaint (PAC) to reassert § 1983 and several state tort claims (battery, IIED, false arrest) add false imprisonment, and add a negligent-training claim under the ACAA.
- Magistrate Judge Bloom recommended denying leave to amend for lack of good cause and because the proposed amendments were futile; Judge Brodie adopted the R&R and denied the amendment, holding the new claims were preempted by the Montreal/Warsaw Conventions, time-barred where applicable, and that the ACAA confers no private right of action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Leave to amend (timeliness/good cause and futility) | Berlin sought leave to amend post-deadline, arguing liberal treatment for pro se pleadings and that PAC is not futile | JetBlue argued delay, prejudice, and that proposed claims are preempted, time-barred, or legally deficient | Denied: amendment futile; district court did not reach Rule 16 good-cause in light of futility |
| Preemption by Montreal/Warsaw of § 1983 and state tort claims | Berlin contended his state tort and § 1983 claims should proceed (relied on other circuit decisions) | JetBlue argued Montreal/Warsaw preempt local causes of action for injuries on international carriage | Held: § 1983 and state tort claims are preempted because the incident occurred during international air carriage governed by Montreal/Warsaw |
| § 1983: state-action element | Berlin alleged airline employees’ statements led to prosecution and sought to replead § 1983 claims | JetBlue emphasized it is a private actor and court precedent disallows treating airlines as state actors | Held: Even if not preempted, PAC fails to allege state action under compulsion/joint-action/public-function tests — § 1983 claim fails |
| Negligent-training claim under ACAA | Berlin argued DOT/ACAA regulations support a negligent-training theory | JetBlue and authority argued ACAA does not create a private right of action | Held: ACAA provides no private cause of action; negligent-training claim would be futile |
Key Cases Cited
- El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (U.S. 1999) (Warsaw Convention preempts local-law remedies for injuries arising in international air carriage)
- King v. Am. Airlines, Inc., 284 F.3d 352 (2d Cir. 2002) (explaining Warsaw Convention’s uniformity and preemptive scope)
- Ehrlich v. Am. Airlines, Inc., 360 F.3d 366 (2d Cir. 2004) (Montreal Convention replaces and unifies Warsaw liability regime)
- Lopez v. JetBlue Airways, 662 F.3d 593 (2d Cir. 2011) (ACAA does not create an implied private right of action)
- Pyskaty v. Wide World of Cars, LLC, 856 F.3d 216 (2d Cir. 2017) (standard for futility in denying leave to amend parallels Rule 12(b)(6))
- Grullon v. City of New Haven, 720 F.3d 133 (2d Cir. 2013) (courts liberally allow pro se plaintiffs at least one opportunity to amend unless amendment is futile)
- Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (U.S. 1999) (constitutional protections in § 1983 apply only to state action, not private conduct)
- Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288 (U.S. 2001) (tests for attributing private conduct to the state)
- Panther Partners Inc. v. Ikanos Commc'ns, Inc., 681 F.3d 114 (2d Cir. 2012) (futility assessment and standard for denying leave to amend)