Plaintiff appeals from a Law Division order dismissing with prejudice the counts in his complaint alleging that defendant violated the New Jersey Consumer Fraud Act (CFA), N.J.S.A 56:8-1 to -20 (count two); that defendant’s refusal to accept cash during a flight constituted unlawful “discrimination against low income individuals” (count three); and that defеndant, by refusing to accept cash during the flight, prevented plaintiff from enjoying in-flight amenities, and caused plaintiff to suffer “severe mental anguish and emotional distress” (count four). The order denied defendant’s motion to dismiss plaintiffs breach of contract claim (count one), but plaintiff later voluntarily dismissed this count making the order appealable as of right.
The motion judge determined that plaintiffs claims under the CFA, and other state tort claims, were preempted by a specific clause of the federal Airline Deregulation Act (ADA), 49 U.S.C.A. § 41713(b)(1), and that plaintiffs claim for class certification was baseless. We affirm.
We derive the following facts from the record. On December 1, 2009, defendant instituted a cashless cabin policy for accounting and security purposes. Defendant informed the public of this change in policy by issuing a nationwide press release, and through pre-boarding announcements and announcements after completion of the boarding process. The motion judge recited other pertinent facts, which are undisputed:
[In] 2009 plaintiff Michael Rosen purchased a round trip flight ticket from Newark, New Jersey to Los Angeles, California with the defendant Continental Airlines. While on boаrd the flight from Newark to Los Angeles plaintiffpurchased a headset by credit card from defendant for in-flight movies.
Prior to purchasing the headset the passengers on the flight were advised that headsets could be used on future Continental flights. On January 6th, 2011, plaintiff boarded the return flight from Honolulu, Hawaii to Newark. On thаt flight the plaintiff attempted to use the headset purchased on the prior flight and discovered the headset was not compatible with “jacks” and he would have to purchase a new headset which would be compatible with the available jacks.
Plaintiff tried to purchase a new headset with cash. But defendant’s representative indicated that the defendant was only capable of accepting payments by credit card or debit card. Plaintiff later tiled to purchase a cocktail and was told that Continental had a no cash policy on its airplane and that he could not make any purchases unless he possessed a debit or credit card.
Since plaintiff did not have in his possession either debit or credit card he was unable to make any purchases on the flight.
Plaintiff filed suit on October 4, 2010, in the Law Division, asserting the causes of action noted abоve. On defendant’s motion, the case was initially removed to the federal district court, but was later remanded to the Law Division, where defendant then moved to dismiss plaintiffs complaint for failure to state a claim on which relief could be granted pursuant to Rule 4:6-2(e). Plaintiff opposed the motion, аnd filed a cross-motion for leave to file an amended complaint asserting a class action. After hearing argument, Judge Denise A. Cobham issued an order dismissing, with prejudice, the second, third and fourth counts of plaintiffs complaint, and denying plaintiffs cross-motion for leave to amend the comрlaint to assert a class action. This appeal followed.
I.
In considering a motion to dismiss under Rule 4:6-2(e), courts search the allegations of the pleading in depth and with liberality to determine “whether a cause of action is ‘suggested’ by the facts.” Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746,
Guided by these principles, we turn to plaintiffs complaint.
II.
Plaintiff argues that defendant’s cashless policy violates the CFA “by falsely and/or incorrectly advertising that the
Under the Supremacy Clause, U.S. Const. art. VI, cl. 2, state laws that “ ‘interfere with, or are contrary to the laws of congress, made in pursuance of the constitution’ are invalid.” Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 604, 111 S.Ct. 2476, 2481,
In 1978, Congress enacted the ADA, based on the determination that “ ‘maximum reliance on competitive market forces’ would best further ‘efficiency, innovation, and low prices’ as well as ‘variety [and] quality ... of air transportation services[.]’ ” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 2034,
(b) Preemption.-(l) Exсept as provided in this subsection, 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 servicе of an air carrier that may provide air transportation under this subpart.
[49 U.S.C.A. § 41713(b)(1) (amending 49 U.S.C.A. § 1305(a)).]
The broad preemption principles set forth in 49 U.S.C.A. § 41713(b)(1) preclude any state cause of action relating to a service provided by an air carrier. Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir.1995) (“state enforcement actions having a connection with or reference to airline ‘rates, routes or services’ are preempted”). The United States Supreme Court has determined that the ADA preempts state law claims. See, e.g., American Airlines v. Wolens, 513 U.S. 219, 221, 115 S.Ct. 817, 820,
In Wolens, supra, the Supreme Court held that the purpose of the clause is “to leаve largely to the airlines themselves, and not at all to States, the selection and design of marketing mechanisms appropriate to the furnishing of air transportation services____” 513 U.S. at 228, 115 S.Ct. at 824,
The ADA’s preemption clause, § 1305(a)(1), read together with the FAA’s saving clause, stops States from imposing them own substantive standardswith respect to rates, routes, or services, but not from affording relief to а party who claims and proves that an airline dishonored a term the airline itself stipulated.
[7d. at 232-33,115 S.Ct. at 826,130 L.Ed.2d at 728.]3
Here, resolution of the preemption issue hinges on whether the sale of a headset and an alcoholic beverage “relat[es] to price, routes, or service[J” We hold that it does. In Morales, supra, thе Supreme Court gave broad meaning to the phrase “relating to rates, routes, or services” contained in the ADA’s preemption clause, and indicated that it prohibits states from taking any “enforcement actions having a connection with, or reference to, airline ‘rates, routes, or services[,]’ ” whether through laws specifically addressed to the airline industry or through more general statutes. 504 U.S. at 384, 112 S.Ct. at 2037, 119 L.Ed.2d at 167-68. Therefore,
the Court determined: (1) that “state enforcement actions having connection with, or reference to” carrier “rates, routes, or sendees are pre-empted,” (2) that such pre-еmption may occur even if a state law’s effect on rates, routes or sendees “is only indirect,” (3) that, in respect to pre-emption, it makes no difference whether a state law is “consistent” or “inconsistent” with federal regulation, and (4) that preemption occurs at least where state laws have a “significant impact” related to Congress’ de-regulatory and pre-emption related objectives.
[Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364, 370-71, 128 S.Ct. 989, 995, 169 L.Ed.2d 933, 939 (2008) (citing Morales, supra, 504 U.S. at 384, 386-87, 390, 112 S.Ct at 2037-38, 2040, 119 L.Ed.2A at 167-69,171).]
Citing Morales, we have held that CFA claims based on ticket prices reflecting surcharges concern airline “rates, routes or services” and are therefore preempted. Vail v. Pan Am Corp., 260 N.J.Super. 292, 297-98,
Plaintiff argues that Morales cautions against finding preemption “in eases where the states’ laws impact on an air carrier’s services is ‘tenuous, remote or peripheral.’ Morales, supra, 504 U.S. at 890, 112 S.Ct. at 2040,
Although thе Supreme Court broadly interprets the scope of the ADA’s preemption provision, the Court has yet to define what constitutes a “service.” Northwest Airlines, Inc. v. Duncan, 531 U.S. 1058, 1058, 121 S.Ct. 650, 650,
In contrast, the majority view defines “service” much more broadly, and includes “ ‘contractual features of air transportation,’ including ‘ticketing, boarding procedures, provision of food and drink, and baggage handling.’ ” Ibid, (quoting Hodges, supra,
Employing the definition accepted by the majority of the circuit courts, then, we detеrmine that plaintiffs claims, under the CFA, are preempted because the claims relate to a “service.” As explained above, the term “service” includes “[elements of the air carrier service bargain[,]” which “include[s] provision of food and drink.” Hodges, supra,
Based on our analysis of the statutory language and case law, we are also satisfied plaintiffs common law fraud and tort claims are preempted by Section 41713(b)(1), as they “relate to a price, route, or service of any airline carrier” involved in the sale of airline goods. Any contrary interpretation would be unsupported by the language of the statute, longstanding principles of statutory construction, and the expressed reasoning of the United States Supreme Court. See Morales, supra, 504 U.S. at 384-85,112 S.Ct. at 2037,
III.
Plaintiff argues that the motion court improperly denied his сross-motion to certify a class action consisting of claims of all low income individuals and unaccompanied minors that have traveled on Continental flights since the institution of the cashless cabin policy and have been deprived of the opportunity to purchase amenities on those flights. We need not address this issue because we have already held that plaintiffs claims are preempted by the ADA. We add only the following.
As a threshold issue, plaintiffs putative class action is improper, because plaintiff himself lacks standing as a member of the putative class. Rule 4:32-1 prоvides that “one or more members of a class may sue or be sued as representative parties[J” It is well established that, in order to bring a class action lawsuit, the named representative must individually have standing to bring their claims. See R. 4:32—1(a)(3); Holmes v. Pension Plan of Bethlehem Steel Corp.,
Plaintiffs putativе class would consist of unaccompanied minors, low income individuals and others who are not in possession of credit cards. Plaintiff does not have standing as the class representative, however, because plaintiff is neither an unaccompanied minor nor a person without a сredit card. It is undisputed that plaintiff has a credit card and used it to pay defendant’s baggage fee and the fee for the headset on his previous flight. Consequently, plaintiff does not have standing to bring these claims on behalf of the other members of the class.
The remainder of plaintiffs arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
Notes
As a matter of fairness and judicial economy, plaintiff cannot now appeal from his own voluntary dismissal of his breach of contract claim. See Winberry v. Salisbury, 5 N.J. 240, 255,
We are mindful of the fact that defendant, seeking dismissal of plaintiff's complaint on grounds of federal preemption, see infra, might have made its motion to dismiss pursuant to Rule 4:6-2(a) for lack of subject matter jurisdiction. Cf. Wigginton v. Servidio, 324 N.J.Super. 114, 124-25,
The Court in Wolens, supra, concluded that, notwithstanding its preemption clause, "the ADA permits state-law-based court adjudication of routine breach-of-contract claims . . . ." 513 U.S. at 232, 115 S.Ct. at 826, 130 L.Ed.2d at 728. Here, of course, plaintiff voluntarily dismissed that claim and, consequently, cannot appeal from that decision. See infra.