ORDER ON MOTION TO DISMISS
Ester Sanches-Naek, her husband Rashid Hamid, and their minor son Abdul Naek Hamid (“Plaintiffs”), bring this action against TAP Portugal, Inc. (“TAP”) (“Defendant”), alleging various claims under the laws of Connecticut and under 28 U.S.C. .§§ 1981 and 1983. EOF No. 1. Plaintiffs’ claims arise from an alleged incident that occurred after they boarded an international TAP flight at John F. Kennedy International Airport. Compl. ¶ 4, ECF No. 1.
Defendant now moves to dismiss Plaintiffs’ Complaint in its entirety, arguing that the Complaint is precluded by the Montreal Convention and by the Airline Deregulation Act (“ADA”), 29 U.S.C. § 41714(b). ECF No. 20. Oral argument on this motion was held on April 27, 2017. ECF No. 32. For the reasons that follow, the Court GRANTS Defendant’s motion to dismiss with prejudice.
I. FACTUAL ALLEGATIONS
On or around July 28, 2016, Plaintiffs booked three round trip tickets with TAP. Compl. ¶4. Plaintiffs’ first flight, TAP Flight 208, was scheduled to depart from John F. Kennedy International Airport (“JFK”) to Lisbon, Portugal on August 3, 2016 at 11:30 PM. Id. Plaintiffs’ itinerary allegedly included a connecting flight from Lisbon to Casablanca, Morocco and then a returning flight from Porto, Portugal to Lisbon and one from Lisbon to JFK. Id. Plaintiffs allege that they had also prepaid for multiple liotel reservations and for ground transportation to and from each airport, each hotel, and each destination they planned to visit. Id. Mr. Hamid and Mr. Naek Hamid were flying first class. Id. ¶ 6. Ms. Sanches-Naek was flying in economy class. Id. ¶ 8.
Before boarding, Plaintiffs were allegedly granted access to TAP’s VIP Lounge in the airport terminal and Ms. Sanches-Naek and Mr. Hamid each allegedly received one complimentary wine beverage in the VIP Lounge. Id. ¶¶6-7, Plaintiffs allege that they did not consume any other alcoholic beverages before boarding their flight and that none of them were intoxicated. Id. ¶ 7.
Plaintiffs allege that they boarded TAP Flight 208 together. Id. ¶ 8. Ms. Sanches-Naek allegedly proceeded to her assigned seat in economy class, seat 8D, which was in the first row of the economy class section of the plane, only one row away from the first class section of the plane. Id. ¶ 9. Mr. Hamid, her husband, and Mr. Naek Hámid, their minor son, proceeded to their seats in the business class or first class section, seats 2A and 2D. Id. ¶ 8.
After Ms. Sanches-Naek placed her carry-on item in the overhead compartment, she alleges that she realized that she was carrying her husband and son’s boarding passes' and passports. Id. ¶ 9. She allegedly realized that they might need these documents immediately. Id. She allegedly proceeded towards the front of the plane and the first class section in order to return her husband and son’s travel documents and to assist them with placing their carry-on baggage in the overhead compartments. Id.
Plaintiffs allege that, as. Ms. Sanches-Naek - approached, her ¡husband and son’s seats, she observed a male TAP .flight attendant “rudely and loudly berating and screaming” at| them. Id. ¶ 10. When .Ms.
After Plaintiffs left TAP Flight 208, and while they waited in the airport terminal to retrieve their luggage, TAP allegedly also summoned the Port Authority Police Department (“PAPD”) and five PAPD officers allegedly arrived at the terminal. Id. ¶ 11. The PAPD officers allegedly, determined that TAP had misinformed them of the nature of the incident and “that there was no legitimate reason for [TAP] to have summoned the police.” Id.
Plaintiffs allege that this incident resulted in them missing TAP Flight 208, their flight to Lisbon. Id. ¶ 12, This allegedly resulted in Plaintiffs missing all of their subsequent flights and therefore “completely ruined” their vacation. Id.
II. STANDARD OF REVIEW
A motion to dismiss for failure to state a claim under Rule 12(b)(6) is designed “merely to assess the legal feasibility of a complaint, not to assay the weight of evidence which might be offered in support thereof.” Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP,
A plaintiffs “[factual allegations must be enough to raise a right to relief above the speculative level,” and assert a cause of action with enough heft to show entitlement to relief and “enough facts to state a claim to relief that, is plausible on its face.” Twombly,
III. DISCUSSION
Plaintiffs bring various claims under Connecticut state law, including for “intentional misrepresentation”, “negligence”, “libel” and “defamation of character”, “slander”, “malicious prosecution,” “elder abuse”, “breach of contract”, “violation of the implied covenant of good faith and fair dealing”, “intentional infliction of emotional distress”, and “negligent infliction of emotional distress.” Compl. ¶¶ 13-63. Plaintiffs also bring claims under 28 U.S.C.
A. The Warsaw Convention and the Montreal Convention
The Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929 (“Warsaw Convention”) was “crafted during the Second International Conference on Private Aeronautical Law of 1929 in order to foster the growth of the nascent commercial airline industry.” King v. Am. Airlines, Inc.,
The Warsaw Convention “precludes a passenger from maintaining an action for personal injury damages under local law when her claim does not satisfy the conditions for liability under the [Warsaw] Convention.” Tseng,
“[T]he need to modernize and consolidate the Warsaw Convention and related instruments,” Montreal Convention, Preamble, Gosain Aff. Ex. A, ECF No. 20-3, led to the drafting of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, May 28, 1999 (“Montreal Convention”). “[T]he Montreal Convention is an entirely new treaty that unifies and replaces the system of liability that derives from the Warsaw Convention.” Ehrlich v. Am. Airlines, Inc.,
The Montreal Convention “still retains many of [the] original provisions and terms” of the Warsaw Convention, “and thus courts have continued to rely on cases interpreting equivalent provisions in the
At oral argument, Plaintiffs maintained that the Supreme Court’s holding in Tseng, which precludes passengers on international flights from maintaining actions for “personal injury damages” if such actions may not be brought under the Conventions, does not apply to their claims. Tseng,
This interpretation of Tseng, however, is not supported by that decision’s language. See Tseng,
These cases and related decisions make clear that “all state law claims allegedly arising from a damaging event covered by the [Warsaw Convention], as well as all subsequent tortious conduct which cannot be artificially separated from the precipitating cause, are preempted by the [Warsaw Convention].” Yanovskiy v. Air France,
As for Plaintiffs’ discrimination claims under 28 U.S.C. § 1981 (“Section 1981”) and 28 U.S.C. § 1983 (“Section
B. The Substantive Scope of the • Montreal Convention
The ' Montreal ■ Convention’s “preemptive effect on local law” extends as far -as “the Convention’s own substantive scope.” Tseng,
Plaintiffs’ claims clearly fall within the former, the substantive scope of the Montreal Convention, because they arise from an event taking place during the embarking of an. airplane, but Plaintiffs’ claims also cannot be brought under the latter, the terms of the Montreal Convention because they do not involve “death, physical injury or physical manifestation of injury.”
1. Plaintiffs’ Claim Arise from An Event During the Embarking of An Airplane
“Article 17 directs [courts] to consider when and where an event takes place in evaluating whether- a claim for an injury to a passenger is preempted” because it occurred on the aircraft or in the course of operations:of embarking or disembarking. King,
Contrary to Plaintiffs’ position, whether claims fall under the substantive scope of the Conventions does not depend on the nature of the claims, see PL’s Br. at 9-12, ECF.No. 29 (arguing that “Montreal Convention does not preempt intentional tort claims under state law for non-bodily injuries”), .but is dependent on “when and where an event takes place,” King,
In King, plaintiffs alleged that the defendant airline had discriminated against them on the basis of race when they were involuntarily bumped from their international flight after they “had already-checked in for their flight, received their boarding passes, and boarded the vehicle that was to transport them from the terminal to the aircraft,” and the Second Circuit found that the case fell under the substantive scope of Article 17 because it involved, “events that took place duMng embarkation.” King,
Courts in this Circuit have also found that malicious prosecution and negligent and intentional infliction of emotional distress claims, similar to those in this case, were precluded by the Montreal Convention where the plaintiff was in the process of embarkation because she was arrested at the gate for a connecting flight while she was in line to board and the flight had already begun boarding. See Kruger v. Virgin Atl. Airways, Ltd.,
■ All of Plaintiffs’ claims arise .from a series of events that occurred while Plaintiffs were boarding TAP Flight 208. The parties do not dispute -that TAP Flight 208,
In light of “when and where” the events alleged in the Complaint took place, Plaintiffs’ claims are clearly in the substantive scope of the Montreal Convention. King,
Plaintiffs argue that Tseng found that the Conventions did not preempt local law in cases alleging “willful misconduct,” see Pl.’s Br. at 10, but the only such reasoning in Tseng is in Justice Stevens’s dissent. See Tseng,
Furthermore, Justice Stevens’s dissent referred to a provision of the Warsaw Convention discussing willful misconduct that was not included in the Montreal Convention. See Carey v. United Airlines,
Plaintiffs, further argue that they are alleging “complete nonperformance” by TAP and that nonperformance claims are “clearly not covered under the Montreal Convention,” Pl.’s Br. at 13, and maintain that “the majority of courts both nationally and in the [Second Circuit]” conclude that “[w]hether as a result of bumping or removal the complete nonperformance” is found to be “outside the realm of the Montreal Convention.” Id, at 14. The cases relied upon by Plaintiffs are, however, in-apposite.
Other courts have found nonperformance and the resulting inapplicability-of the Conventions where passenger plaintiffs were involuntarily bumped and denied boarding at check-in. See Wolgel v. Mexicana Airlines,
Courts in this Circuit have found that, where defendant airlines “ceased operations between Nigeria and the United States, éffectively terminating the flight program” and leaving “hundreds of passengers who had purchased tickets for flights in” the following year “unable to travel” as well as stranding some passengers who had “flown the outbound legs of their round trips already,” the plaintiff passengers’ claims were not preempted by the Montreal Convention because the case involved nonperformance. In re Nigeria Charter Flights Contract Litig.,
A case holding that passengers who had gotten past check in and security, but were then denied boarding and involuntarily bumped, brought a nonperformance claim not precluded by the Montreal Convention, rather than a claim for “delay” under Article 19 of the Montreal Convention, is also inapplicable. See Weiss v. El Al Israel Airlines, Ltd.,
2. Plaintiffs’ Claim Does Not Involve a Physical Injury
Because the Warsaw Convention and Montreal Convention create a “comprehensive liability system” that is the “exclusive mechanism for remedying injuries” that are covered by the substantive scope of the two Conventions, they preclude any claims that arise from events covered by the Conventions’ substantive scope but that ai-e not brought under the Conventions, including suits alleging racial discrimination. King,
Article 17 of the Montreal Convention allows airlines to be held “liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury” took place within the substantive scope of Article 17 described above. Montreal Convention, Art. 17.1. “[A]n air carrier cannot be held liable under Article 17 when an accident has not caused' a passenger to suffer death, physical injury, or physical manifestation of injury.” Floyd,
Plaintiffs do not allege that Defendant’s actions caused them to experience any kind of physical or bodily injuries. Instead, they allege only that a TAP flight attendant berated and yelled at them and that TAP called Global Security and the PAPD. See Compl. ¶¶ 8,10-11. No TAP employee, Global Security officer, or PAPD officer is alleged to have physically harmed any of the Plaintiffs in any way, much less made physical contact with any of the Plaintiffs. Any injury that Plaintiffs allegedly suffered is therefore purely psychological, rather than ■ related to physical injuries.
Plaintiffs, in fact, conceded in their brief and at oraL argument that their claims cannot be broúght under Article 17. See also Pl.’s Br. at 6 (“All of Plaintiffs’ claims in this case are outside the scope of Article 17 in that they do not include claims for bodily injury arising from an- accident.-”). Thus, Plaintiffs will- not be able to bring any of their claims against TAP under the Montreal conyention. See Ehrlich,
C. Airline Deregulation Act
TAP also argues that Plaintiffs’ claims are precluded by the Airline Deregulation Act, or ADA. See Def.’s Br, at 13-14. Because, as explained above, the Court finds that Plaintiffs’ claims are governed by and precluded by Article 17 of the Montreal Convention, the Court need not reach the issue of whether Plaintiffs’ claims are. also precluded by the ADA.
IY. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss with prejudice because Plaintiffs' claims are precluded by the Montreal Convention.
Consistent with the analysis above, the Court finds that, even if given the opportunity to amend the complaint, Plaintiffs will not be able to allege facts showing that they can state a claim that is not precluded by the Montreal Convention. Thus, dismissal with prejudice is appropriate. See Coulter v. Morgan Stanley & Co. Inc.,
The Clerk of the Court is directed to enter judgment in favor of the Defendants and to close this case.
SO ORDERED at Bridgeport, Connecticut, this 2nd day of May, 2017.
Notes
. Even if the Montreal Convention did not preclude such claims, Section 1983 claims also cannot be brought against TAP because, as an airline, TAP is not a state actor. Section 1983 does not provide a remedy with respect to "merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50,