ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant’s Motion to Dismiss Plaintiffs’ Complaint [DE 15] (“Motion”). The Court has considered the Motion, Plaintiffs’ Opposition [DE 21], and Defendant’s Reply [DE 22], and is otherwise advised in the premises.
I. BACKGROUND
This action arises from harms that Plaintiffs Barry (“Barry”) and Melissa (“Melissa”) Adler allegedly suffered at the hands of WestJet Airlines, Ltd. (‘We-stJet”), when a WestJet flight crew ejected the Adlers from a Fort Lauderdale-Toron-to flight before take-off. In September 2012, the Adlers made plans to travel from Fort Lauderdale, Florida, to Toronto, Canada. DE 1 ¶ 7.
On the day of their flight, the Adlers arrived at Fort Lauderdale International Airport well ahead of time. DE 1 ¶ 9. The Adlers checked in and took their boarding passes to the gate. Id. At the gate, however, the Adlers were told that WesUet’s senior flight attendant felt that Melissa’s dog would disturb the other passengers. Id. ¶ 10. WestJet thus moved the Adlers
The Adlers boarded the airplane and took their newly assigned seats. Id. ¶ 11. While waiting for take-off, Melissa took various medications, including some meant to induce sleep. Id. Melissa soon fell asleep with her dog on her lap. Id. While Melissa slept, Barry remarked to the flight attendant who had required them to change their seats that Melissa’s dog was not causing any disturbance. Id. The flight attendant responded that she was uncomfortable with the Adlers and their dog being on the airplane. Id. The flight attendant informed Barry that the aircraft would return to the gate, and that the Adlers would have to deplane. Id.
Upon reaching the gate, WestJet’s personnel required the Adlers to get up and leave the airplane. Id. ¶ 12. Unfortunately, Melissa, who had taken sleep-inducing medication, had difficulty standing up and walking off of the aircraft. Id. ¶¶ 12-13. The Adlers told the crew that Melissa would have trouble walking to the gate without assistance. Id. ¶ 13. The crew, however, did not provide any assistance, such as a wheelchair, and the Adlers left the airplane under their own power. Id. At the gate, Barry demanded an explanation for their removal from the airplane, but received none. Id. ¶ 14. The Adlers returned to their home in Broward County that evening. Id. ¶ 15. The same night, a WestJet employee telephoned the Adlers, apologized for their removal from the airplane, and arranged for the Adlers to fly from Miami to Toronto the next day. Id.
The Adlers commenced this suit against WestJet on December 31, 2013, contending that their unreasonable removal from We-stJet’s airplane on September 18, 2012, caused them numerous injuries. Melissa, who suffers from a progressive disease of the nervous system (id. ¶ 29), contends that being forced to walk from the aircraft after taking sleep-inducing medication exacerbated her condition and caused her a great deal of pain. The Adlers also allege that they were humiliated when they were ejected from the airplane. The Adlers assert three causes of action on this basis: (1) negligence; (2) fraudulent misrepresentation; and (3) negligent training and supervision. Id. ¶¶ 25-46. In the instant Motion, WestJet has moved to dismiss each of these claims against it.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a court shall grant a motion to dismiss where the factual allegations of the complaint cannot support the asserted cause of action. Glover v. Liggett Group, Inc.,
. A complaint must be liberally construed, assuming the facts alleged therein as true and drawing all reasonable inferences from those facts in the plaintiffs favor. Twombly,
III. DISCUSSION
A. The ACAA Does Not Preempt the Adlers’ Negligence Claim
WestJet first argues that the Adlers’ negligence claim should be dismissed because it is preempted by the Air Carrier Access Act (“ACAA”), 49 U.S.C. § 41705. DE 15 at 3-4. The ACAA prohibits discrimination by air carriers based on disabilities. Shotz v. Am. Airlines, Inc.,
In its Motion, WestJet relies principally upon Love v. Delta Air Lines,
The Adlers do not contest that a plaintiff cannot bring suit to enforce the ACAA. DE 21 at 4. Instead, the Adlers argue that they do not seek to enforce the ACAA, and that their claim is one for simple negligence under state law. Id. at 4-6. The Adlers argue that the ACAA therefore does not preempt their state-law claims, and is relevant only to the extent it impacts the applicable standard of care in this action. Id. at 5.
The Court agrees with the Adlers’ position. The Eleventh Circuit has not directly addressed whether the ACAA preempts state-law negligence claims involving duties of care impacted by the ACAA. Still, numerous other courts conducting thorough preemption analyses have concluded that the ACAA, though it may not create a stand-alone cause of action for disability discrimination, does not preempt state-law negligence claims for injuries related to a failure to provide appropriate accommodations on airplanes. See, e.g., Gilstrap v. United Air Lines, Inc.,
Moreover, in its Reply, WestJet does not directly respond to the Adlers’ preemption arguments or the holdings of these various precedents regarding the viability of state-law claims premised on injuries apart from discrimination. Instead, WestJet merely reiterates that the ACAA did not create a private cause of action for disability discrimination. See DE 22 at 6-7. The Court thus determines that because the Adlers’ state-law negligence claim is not a claim for disability discrimination, and instead rests upon personal injuries allegedly suffered as a result of WestJet’s failures of care, WestJet has not demonstrated that the claim is preempted by the ACAA. See Gilstrap,
B. The Adlers Have Failed to Plead Fraudulent Misrepresentation
WestJet next argues that the Adlers have failed to plead the necessary elements of their fraudulent misrepresentation claim. WestJet contends that the Adlers premise their fraudulent misrepresentation claim only on a non-actionable promise to allow Melissa to fly with her dog. WestJet also suggests that the Adlers have failed to plead the claim with the specificity required by Rule 9(b). Because the Court agrees with WestJet that the Adlers have failed to allege the necessary material misrepresentation or actionable promise, the Court will dismiss the fraudulent misrepresentation claim with leave to re-plead.
Under Florida law, a plaintiff asserting a claim for fraudulent misrepresentation must allege a misrepresentation concerning a past or existing fact; promises of future action are usually insufficient. Weaver v. State,
In addressing WestJet’s state of mind at the time of its promise, the Adlers conclu-sorily allege that “WestJet knew or should have known that its representation was false.” Id. ¶ 35. In support, the Adlers allege that WestJet was unaware of the applicable federal regulations pertaining to service animals on aircraft. Id. The
However, that WestJet and its personnel were unfamiliar with the applicable laws does not speak to whether WestJet intended to allow Melissa and her dog on the flight, having promised to do so. Given the absence of other supporting facts, the Adlers’ assertion that “WestJet knew or should have known that its representation [that Melissa could travel with the dog] was false” is too conclusory to supply the necessary allegations of intent. See Twombly,
C. The Adlers Have Failed to Plead a Claim for Negligent Supervision
WestJet contends that the Adlers have failed to plead a claim under Count III of their Complaint, for negligent training and supervision, because they do not allege that WestJet had notice that any of its employees were unfit for their jobs. Though plaintiffs often bring claims for negligent training and negligent supervision together, the two causes of action are distinct, and only a negligent supervision claim requires the plaintiff to allege that an employer knew or should have known that its employee was unfit. Accordingly, the Court will dismiss Count III only insofar as it alleges negligent supervision, and will allow the Adlers to proceed on a theory of negligent training.
To state a claim for negligent supervision, a plaintiff must allege that an employer had notice that its employee was unfit, but unreasonably failed to investigate the employee and take corrective action. Inman v. Am. Paramount Fin.,
The Adlers allege that they were harmed when WestJet’s flight staff wrongfully ejected them from a WestJet airplane. DE 1 ¶ 46. The Adlers contend that this ejectment resulted from 'We-stJet’s negligent failure to train its personnel regarding their legal obligations to accommodate service dogs. Id. ¶¶ 22, 40-43, 45-46. Drawing all permissible inferences in the Adlers’ favor, the Compláint also pleads sufficient facts to show that the Adlers, as passengers on a WestJet flight, were in a reasonably foreseeable zone of risk from the actions of WestJet’s flight crew, such that a legal duty of care in training the flight crew ran from WestJet directly to the Adlers. Accordingly, the Court finds that the Adlers have pled sufficient facts to sustain Count III on a theory - of negligent training. See Lewis,
D. The Montreal Convention Does Not Preempt the Adlers’ Claims
Finally, WestJet argues that the Court should dismiss this action in its entirety because all of the Adlers’ claims are preempted by the Montreal Convention. The Montreal Convention, formally titled the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106A5, 2242 U.N.T.S. 309, is a treaty of the United States and thus the “supreme law of the land.” Siddiq v. Saudi Arabian Airlines Corp., No. 11-69,
The Montreal Convention provides that an air carrier may be liable on claims for bodily injury to a passenger of an international flight if “the accident which caused the ... injury took place on board the aircraft or in the course of any of -the operations of embarking or disembarking.” Montreal Convention art. 17. The term “accident” as used in relation to the Montreal Convention has a broad meaning. An “accident” is “ ‘an unexpected or unusual event or happening that is external to the passenger,’ and not ‘the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.’ ” Olympic Airways v. Husain,
The Court also finds that the Adlers’ injuries, as alleged, took place on board WestJet’s aircraft or in the process of disembarking. In response to WestJet’s preemption argument, Adlers attempt to remove their claims from the scope of the Montreal Convention’s limitations by characterizing their injuries as not occurring “on board the aircraft or in the course of any of the operations of embarking or disembarking.” See DE 21 at 7-8. The Adlers argue that this lawsuit is premised on WestJet’s failure to perform its contractual obligation to transport them to Toronto, as opposed to the trauma of their removal from WestJet’s airplane on September 18,.2012. DE 21 at 7.
The Adlers’ Complaint, however, belies the assertions of their motion papers. The Complaint recites a litany of harms directly relating to their forced removal from the airplane. These harms include physical suffering and emotional humiliation that the Adlers suffered on the airplane and as they were escorted from the airplane back to the airport terminal. E.g., DE 1 ¶¶ 28-30, 37-38. The Court views these injuries as taking place both on .board the aircraft and during the Adlers’ disembarkation, and thus within the scope of the Montreal Convention. See generally Marotte v. Am. Airlines, Inc.,
Because the Adlers have alleged harms arising from an accident on an international commercial flight which occurred on board the aircraft or while disembarking, their claims come within the scope of the Montreal Convention. See Montreal Convention arts. 1 & 17. WestJet would have the Court conclude its inquiry here by determining that the Adlers’ claims are automatically “preempted” by the Convention and dismissing the ease. See DE 15 at 9-14. A finding that claims are within the scope of the Convention, however, does not compel automatic dismissal. The Montreal Convention expressly provides for recovery upon certain personal injury claims. Montreal Convention art. 17. The Convention contemplates with respect to claims within its scope that “any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise,” can be maintained subject to
E. The Complaint Is Not a Shotgun Pleading
On the second page of its Motion, WestJet has inserted a footnote containing almost a full page of single-spaced text. DE 15 at 2 n. 1. In the footnote, WestJet argues that the Complaint should be dismissed in its entirety as a shotgun pleading. A shotgun pleading is one in which each count incorporates the allegations of each preceding count. Paylor v. Hartford Fire Ins. Co.,
IV. CONCLUSION
In sum, the Court finds that the ACAA does not preempt the Adlers’ claims. Nor does the Montreal Convention foreclose their state-law claims based upon injuries they allegedly suffered when they were removed from their WestJet flight. The Adlers have failed to plead claims for fraudulent misrepresentation and negligent supervision, however their failures of pleading may be remedied through the inclusion of additional facts, and the Court will dismiss those claims with leave to re-plead. It is thereupon
ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion to Dismiss Plaintiffs’' Complaint [DE 15] is GRANTED in part as follows:
a. Count II of the Complaint, alleging fraudulent misrepresentation, is DISMISSED without prejudice;
b. Count III of the Complaint is DISMISSED without prejudice insofar as it alleges a cause of action for negligent supervision; and
c. Plaintiffs may file an Amended Complaint no later than July 21, 2014, re-pleading these claims to address the deficiencies noted in this Order.’
2. Defendant’s Motion to Dismiss Plaintiffs’ Complaint is DENIED in all other respects.
Notes
. For the purpose of resolving WesUet's Motion, the Court adopts as true the facts alleged in the Adlers' Complaint. See Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents,
. The Court notes that although the ACAA does not entirely foreclose claims by disabled individuals asserting injuries other than discrimination against air carriers, it does abrogate conflicting state-law standards of care. See Gill,
. WesUet incorporates its ACAA preemption argument by reference into its arguments for dismissal of the Adlers’ fraudulent misrepresentation and negligent training and supervision claims. DE 15 at 8-9. The Court similarly finds that WestJet has failed to show that the ACAA preempts the Adlers' remaining state common-law claims, which allege harms distinct from discrimination.
. In their Opposition, the Adlers propose a pleading standard for negligent supervision that does not require a plaintiff to allege an employer’s knowledge of prior facts alerting it to an employee’s unfitness. DE 21 at 12 (citing Flynn v. Polk Cnty., No. 11-2054,
. The Warsaw Convention is the Montreal Convention’s predecessor. Because many terms of the Montreal Convention and the Warsaw Convention are substantively similar, the Court may rely on precedent interpreting the Warsaw Convention’s parallel provisions when addressing claims under the Montreal Convention. Ugaz v. Am. Airlines, Inc.,