MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On August 21, 2007, the undersigned United States District Judge heard oral argument on Defendants U.S. Airways Group, Inc. and U.S. Airways, Inc.’s (collectively “U.S. Airways”) Motion to Dismiss [Docket No. 13] and Motion for Summary Judgment [Docket No. 9], Defendant Metropolitan Airport Commission’s
II. BACKGROUND 1
Plaintiffs are six Imams who traveled to Minneapolis, Minnesota, in November 2006 for the North American Conference of Imams. 1st Am. Compl. [Docket No. 5] ¶ 24. Shqeirat, Faja, Shahin, Sulaiman, and Sa-deddin are Arizona residents, and Ibrahim is a California resident. Id. ¶¶ 12-17. Shqeirat and Shahin are Muslims of Jordanian-Arab origin, Ibrahim and Sulaiman are Muslims of Egyptian-Arab origin, Faja is a Muslim of Albanian origin, and Sadeddin is a Muslim of Syrian-Arab origin. Id.
On October 29, 2006, Shahin purchased tickets for round-trip air travel on U.S. Airways from Phoenix International Airport to Minneapolis-St. Paul International Airport. Id. ¶ 25; U.S. Airways’s Exs. [Docket No. 11] 2-5. 2 Shahin purchased the tickets for himself, Sulaiman, Faja, Sadeddin, and Shqeirat. U.S. Airways’s Exs. 2-5. On November 9, 2006, Shahin purchased an additional ticket for Ibrahim for round trip air travel on- U.S. Airways from Phoenix to Minneapolis. 3 Id. Ex. 6. The tickets specified that Shahin would travel from Phoenix to Minneapolis on U.S. Airways Flight 353 on November 16, 2006, and the other Plaintiffs would travel from Phoenix to Minneapolis on U.S. Airways Flight 57 on November 18, 2006. Id. Exs. 2-6. Plaintiffs all were booked to return to Phoenix on U.S. Airways Flight 300 (“Flight 300”), scheduled to depart Minneapolis at 5:45 p.m. on November 20, 2006. 1st Am. Compl. ¶ 27. Plaintiffs’ tickets were all for coach class travel. U.S. Airways’s Exs. 2-6.
Shahin and the other Plaintiffs traveled to Minneapolis on November 16 and 18, 2006, respectively and attended the North American Conference of Imams. 1st Am. Compl. ¶ 24. On November 20, 2006, Plaintiffs arrived at the Minneapolis-St. Paul International Airport planning to return to Phoenix on U.S. Airways Flight 300.
Id.
¶ 27. After checking in, Plaintiffs passed through security without incident and arrived at gate C9 at approximately 3:45 p.m.
Id.
¶ 3 1. Plaintiffs conversed with each other in Arabic and English.
Id.
¶ 32. In the gate area at around 4:20 p.m.,
At approximately 4:55 p.m., gate attendants began boarding procedures for Flight 300. Id. ¶ 40. Shahin, who was automatically upgraded to first class based on his status as a Gold Member in U.S. Airways’s frequent flyer program, sat in row one. Id. ¶ 26; U.S. Airways’s Ex. 2. Subsequently, Sulaiman assisted Sadeddin, who is blind, in boarding Flight 300. 1st Am. Compl. ¶ 42. Initially, Sadeddin sat in his pre-assigned seat in row four and Sulai-man sat in his seat in row nine. Id. ¶ 43; U.S. Airways Exs. 3-4. However, Saded-din subsequently moved to an aisle seat in row nine near Sulaiman after another passenger agreed to switch seats so that Su-laiman could assist his blind friend. 1st Am. Compl. ¶¶ 44-45.
After the seat switch, Sadeddin requested a seatbelt extension because his seat-belt did not fit him. Id. ¶46. At about this point in the sequence of events, Shah-in left his -first class seat, walked towards Sadeddin, and asked Sadeddin whether he would like to sit in Shahin’s seat in first class. Id. ¶47. Sadeddin declined the offer. Id. Shahin returned to his seat in first class and requested a seatbelt extension because his seatbelt also did not fit him. Id. ¶ 48.
Meanwhile, Faja and Shqeirat sat together in their pre-assigned seats in row twenty-five, and Ibrahim sat in his preassigned seat in row twenty-one. Id. ¶ 50; U.S. Airways’s Exs. 4-6. Shqeirat fell asleep for approximately thirty minutes after boarding. 1st Am. Compl. ¶ 50. When Shqeirat awoke, he and Faja noticed a police vehicle next to the airplane. Id. ¶5 1. Two MAC police officers, and one undercover MAC officer, boarded the plane and spoke with a flight attendant in the kitchen at the rear of the aircraft. Id. ¶ 53. The officers then approached the six Plaintiffs and requested that they deplane. Id. ¶ 54. Plaintiffs obeyed the request and exited the aircraft to the jetway. Id. ¶ 58.
In the jetway, the MAC police officers ordered Plaintiffs to face the wall and place their hands above their heads to be searched and handcuffed. Id. ¶ 58. Faja alleges the police officers refused his request for a lawyer. Id. ¶ 72. In response to a police officer’s question, Shqeirat confirmed that Sadeddin is completely blind. Id. ¶ 59. Shqeirat asked the officer to explain the situation, but the officer responded, “I do not know. This is the airline’s call and not our call.” Id.. ¶ 60. The police officers ordered Plaintiffs to reboard the plane and identify their carry-on luggage. Id. ¶ 61. The police officers then removed Plaintiffs and their carry-on luggage to the jetway, and the officers thoroughly searched Plaintiffs and their belongings. Id. ¶ 62-63. While handcuffed, Plaintiffs were escorted through the airport and transported in police cars to the Minneapolis Airport Police Precinct. Id. ¶ 67.
Plaintiffs were detained at the police precinct until 11:30 p.m.
Id.
¶ 73. Shqeirat and Ibrahim were placed together in a small room. Id. ¶ 75. A police officer remained in the room so the two could not communicate with each other. Id. The four other Plaintiffs were held in separate cells. Id. ¶ 76. After several hours,
After being released, Plaintiffs went to the terminal and Faja called U.S. Airways to ask for rebooking on the next available flight to Phoenix. Id. ¶ 98-99. When Faja gave the ticketing agent the code on his ticket for Flight 300, the agent informed Faja that Plaintiffs were not permitted to fly with U.S. Airways. Id. ¶ 100. In response to questions from Faja and Shqeirat, the F.B.I. agent assured them they were not on a “no fly” list. Id. ¶ 101. However, the U.S. Airways ticketing agent refused to speak with the F.B.I. agent regarding Plaintiffs’ security status. Id. ¶ 102. Shahin called the ticketing agent, who again stated that Plaintiffs could not fly with U.S. Airways. Id. ¶ 103-104. At Plaintiffs’ request, the F.B.I. agent called U.S. Airways and spoke for twenty minutes with the same ticketing agent. Id. ¶ 105. However, despite the F.B.I. agent’s assurances that Plaintiffs did not pose a security threat, the ticketing agent reiterated that U.S. Airways would not board Plaintiffs. Id. ¶¶ 106-07. Unable to find another flight, Plaintiffs made arrangements to stay at a friend’s home on the night of November 20, 2006. Id. ¶ 108. That evening, Plaintiffs heard news reports, allegedly based on information provided by U.S. Airways, that Plaintiffs had used cash to purchase one way tickets and were disruptive and uncooperative when they were asked to deplane the aircraft. Id. ¶ 111.
Between 6:00 a.m. and 7:00 a.m. on November 21, 2006, Shahin again called U.S. Airways and asked that Plaintiffs be booked on a flight to Phoenix. Id. ¶ 112. Within two hours, U.S. Airways informed Shqeirat that Plaintiffs could not travel with U.S. Airways. Id. ¶ 113. Later that morning, Plaintiffs arrived at the Minneapolis-St. Paul International Airport and went to the U.S. Airways ticketing desk. Id. ¶ 115. Shahin presented his credit card and requested that Plaintiffs be re-booked on the next flight to Phoenix. Id. ¶ 116. After consulting with the U.S. Airways System Operations Control Manager on duty, the ticketing agent informed Plaintiffs they could not travel on U.S. Airways and she requested that Plaintiffs move away from the U.S. Airways ticket counter. Id. ¶ 118. Plaintiffs complied with the ticketing agent’s request and subsequently purchased tickets and returned to Phoenix on an 11:45 a.m. Northwest Airlines flight. Id. ¶ 119.
On March 12, 2007, Plaintiffs filed a Complaint [Docket No. 1] against U.S. Airways, MAC, and certain John Does. On March 23, 2007, Plaintiffs filed their
III. DISCUSSION
A. MAC’S Motion to Dismiss
1. Standard of Review
Rule 12 of the Federal Rules of Civil Procedure provides that a party may move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss, the pleadings are construed in the light most favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true.
Hamm v. Groose,
Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings “shall contain a short and plain statement of the claim showing that the pleader is entitled to relief.” A pleading must contain “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly,
— U.S. -, -,
2. Materials Submitted by MAC in Support of its Motion
In support of its Motion to Dismiss, MAC has submitted its official police report of the November 20, 2006, incident. Noel Aff. [Docket No. 25] Ex. 1. Rule 12(b) of the Federal Rules of Civil Procedure states that “if, on a [12(b)(6) ] motion ... matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment ... and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”
Relying on Rule 10(c), MAC argues that its official police report does not qualify as a “matter outside the pleading” because it is adopted by reference in Counts Ten and Seventeen of Plaintiffs’ Amended Complaint. See Fed.R.Civ.P. 10(c) (“Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”). Count Ten asserts that MAC violated the Minnesota Government Data Practices Act (“MGDPA”), Minn.Stat. §§ 13.08, subd. 1, and 13.355, subd. 1, when it failed to remove Shahin’s social security number from the police report, which was published on the internet. 1 st Am. Compl. ¶¶ 195-201. Count Seventeen asserts a claim of invasion of privacy based on the same conduct.
Id.
¶¶ 256-61. Significantly, Plaintiffs chose not to attach a copy of the police
The Eighth Circuit recognizes that on Rule 12(b)(6) motions, courts may consider matters that are “necessarily embraced by the pleadings.” See
Porous Media Corp. v. Pall Corp.,
Under Eighth Circuit precedent, this Court may consider MAC’s police report in deciding whether Counts Ten and Seventeen of the Amended Complaint survive MAC’s Motion to Dismiss, because those counts necessarily embrace MAC’s police report. However, MAC argues that factual statements in its police report regarding the November 20, 2006, incident support dismissal of the other counts against it. The difficulty with MAC’s position is that, unlike Counts Ten and Seventeen, the other counts bear no direct connection to MAC’s police report. Because MAC’s police report is not necessarily embraced by the other counts, the Court cannot consider the police report in addressing the merits of the other counts. See
Jacobs v. City
of Chicago,
Alternatively, MAC argues Eighth Circuit precedent allows its police report to be considered in deciding a motion to dismiss as “materials that are part of the public record or do not contradict the complaint.”
Missouri ex rel. Nixon v. Coeur D’Alene Tribe,
3. 42 U.S.C. § 1983 Claims
In Counts Three and Four of the Amended Complaint, Plaintiffs assert that U.S. Airways and MAC are liable under 42 U.S.C. § 1983, which provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured....
Under the Supreme Court’s decision in
Monell v. Department of Social Services,
a. Unreasonable Search and Seizure
Count Three of the Amended Complaint alleges that MAC “unlawfully searched and seized Plaintiffs in violation of their Fourth Amendment right to be free from unreasonable searches and seizures.” 1st Am. Compl. ¶ 146; see U.S. Const, amend. IV. The Fourth Amendment applies to the states through the Fourteenth Amendment.
United States v. Ameling,
“An arrest without probable cause is violative of rights secured by the Constitution and can be the basis of recovery pursuant to 42 U.S.C. § 1983.”
Sartin v. Comm’r of Pub. Safety,
MAC emphasizes that individuals consent to substantial intrusions on their Fourth Amendment interests at airports and onboard commercial aircraft. See
Cassidy v. Chertoff,
Based on the allegations in the First Amended Complaint, MAC police officers arrested Plaintiffs premised on information that: (1) three of the Plaintiffs observed the Muslim Maghreb prayer at the gate before boarding Flight 300; (2) Plaintiffs referred to Saddam Hussein and criticized U.S. involvement in Iraq; (3) Shahin and Sadeddin requested seatbelt extensions; and (4) Shahin left his seat to talk to Sadeddin. See 1 st Am. Compl. ¶¶ 32-50. Whether these facts would lead a reasonable person to conclude that Plaintiffs were committing or were about to commit a crime such as interfering with flight crew members and attendants is doubtful. See 49 U.S.C. § 46504 (setting forth elements of Interference with Flight Crew Members and Attendants). Plaintiffs have stated a claim that their Fourth Amendment rights were violated.
Moreover, this Court would reach the same result even if MAC’S police report were considered. MAC Police Officer Bradley Wingate’s report states that on November 20, 2006, at 5:38 p.m., he was dispatched to Gate C9 because “U.S. Airways was in the process of denying six passengers service and they wanted us to stand by as they have the six passengers de-board the aircraft.” Noel Aff. Ex. 1 at 10. At Gate C9, U.S. Airways Manager Robby Davis (“Davis”) informed Officer Wingate that a passenger on Flight 300 had reported that six passengers had engaged in “suspicious activity.” Id. Davis stated the six passengers “were all of Middle Eastern descent and three ... had one-way tickets and no checked luggage,” and that “most of the six passengers requested seatbelt extensions.” Id.
Officer Wingate and Federal Air Marshal Steven Grewenow boarded Flight 300 and spoke with the reporting passenger. Id. According to the passenger:
He witnessed six Middle Eastern males in the gate area praying and chanting in an Arabic dialect. They chanted the words Allah, Allah, Allah. He then eavesdropped into their conversation and overheard them mention Sad[d]am and heard them curse about the U.S. involvement. He watched them position themselves together facing a certain direction and pray again in a group. He watched them board the plane and they took a mysterious seating arrangement throughout the plane. He stated two were seated in the front of the plane, two were seated in the middle, and two were seated in the rear of the plane....
Id. Other MAC police officers arrived to assist Officer Wingate. Id. Federal Air Marshal Grewenow and MAC Police Officer Wingate “agreed the seating configuration, the request for seatbelt extensions, the prior praying and utterances about Allah and the U.S. in the gate area ... was suspicious.” Id. Officer Wingate contacted F.B.I. Agent Cannizzaro and informed him of the incident. Id. Agent Cannizzaro requested that MAC police detain Plaintiffs so he could interview them. Id. Plaintiffs and their luggage were subsequently removed from the plane, searched, and then transported to the MAC Airport Police Department Police Operations Center. Id. at 11. Plaintiffs were placed in holding cells and interview rooms until they were questioned and released. Id. at 11-12.
Probable cause is determined based on the objective facts available to the officers at the time of the arrest.
Smithson v. Aldrich,
Arguing against this result, MAC emphasizes that the F.B.I. requested that Plaintiffs be detained. MAC cites cases such as
Doran v. Eckold,
In the alternative, MAC argues that even if Plaintiffs’ arrests were unconstitutional, Plaintiffs have insufficiently alleged that a MAC policy, practice, or custom caused a Fourth Amendment violation. In the Amended Complaint, Plaintiffs allege that MAC “engaged in a course of action and behavior, rising to the level of a policy, custom and condoned practice, which deprived Plaintiffs of the rights, privileges and immunities secured by the United States Constitution and by federal statute in violation of 42 U.S.C. § 1983.” 1st Am. Compl. ¶ 141.
“When a complaint is filed, a plaintiff may not be privy to the facts necessary to accurately describe or identify any policies or customs which may have caused the deprivation of a constitutional right.” Doe v.
Sch. Dist. of City of Norfolk,
Count Three of the Amended Complaint also alleges MAC violated the Fourteenth Amendment’s Equal Protection Clause by arresting Plaintiffs “on the basis of their race, religion and[ ] national origin .... ” 1st Am. Compl. ¶ 145; see U.S. Const, amend. XIV. MAC argues Plaintiffs’ equal protection claim fails because Plaintiffs have not alleged facts supporting an inference that similarly situated persons of a different race, religion, color, or national origin would have been treated differently. In support of these arguments, MAC relies on the statement in
Yale Auto Parts, Inc. v. Johnson,
Alternatively, MAC again argues that Plaintiffs have failed to sufficiently allege the existence of an unconstitutional policy or custom. However, the facts alleged in the Amended Complaint support the existence of an unconstitutional custom of arresting individuals without probable cause based on their race. Therefore, Plaintiffs’ equal protection claim against MAC in Count Three of Amended Complaint survives MAC’s Motion to Dismiss.
c. Sixth Amendment
Plaintiffs did not respond to MAC’s argument that the Sixth Amendment right-to-counsel claim asserted in Count Three of the Amended Complaint must be dismissed because Plaintiffs were not charged with a crime. See MAC’s Mem. in Supp. of Mot. to Dismiss at 11-12; Pis.’ Mem. in Opp’n to MAC’s Mot. to Dismiss [Docket No. 59] at 12-20. Therefore, the claim is dismissed.
d. Failure to Train
Count Four of the Amended Complaint alleges that MAC failed to adequately train its employees regarding unlawful discrimination and that, as a result, Plaintiffs were detained without probable cause. 1st Am. Compl. ¶¶ 152-53; see
City of Canton v. Harris,
MAC argues the false arrest allegations in Count Five of the Amended Complaint focus on U.S. Airways and do not clearly state a false arrest claim against MAC. In response, Plaintiffs argue the previous 156 paragraphs of the Amended Complaint are incorporated by reference in Count Five, and that paragraphs 54, 58, 62, 64, 66-67, 73, and 153 support an allegation that MAC officers falsely arrested Plaintiffs. Pis.’ Mem. in Opp’n to MAC’s Mot. to Dismiss at 23. However, Count Five is ambiguous at best as to whether Plaintiffs are pursuing a false arrest claim against MAC. Neither MAC nor this Court is required to sift through 156 paragraphs of allegations to determine if Plaintiffs are asserting a false arrest claim against MAC. See
Byrne v. Nezhat,
However, in the event Judge Boylan grants Plaintiffs leave to amend their false arrest claim in a second amended complaint, it is helpful to briefly address MAC’s alternative arguments on the merits. Based on the information in its police report, MAC argues that even a properly stated false arrest claim against it must be dismissed because the decision to arrest Plaintiffs was supported by probable cause. See
Johnson v. Morris,
5. Claims Arising Out of the Disclosure of Shahin’s Social Security Number
a. Minnesota Government Data Practices Act
In Count Ten of the Amended Complaint, Plaintiff Shahin alleges MAC violated the MGDPA by posting on the internet the police report showing Shahin’s social security number. 1st Am. Compl. ¶ 196. Shahin also alleges that MAC “intentionally and/or recklessly failed to remove [Shahin’s] social security number from the internet.” 1st Am. Compl. ¶ 198. For the purposes of its Motion to Dismiss, MAC concedes that the publication of Shahin’s social security number constitutes a violation of the MGDPA. MAC’s Mem. in Supp. of Mot. to Dismiss at 17-18. However, MAC argues Count Ten must be dismissed because Shahin fails to allege an injury in fact.
The civil remedies provision of the MGDPA provides that “a responsible authority or government entity which violates [the MGDPA] is hable to a person ... who suffers any damage as a result of the violation.... ” Minn.Stat. § 13.08, subd. 1. The Minnesota Supreme Court in
Navarre v. South Washington County Schs.,
Here, Shahin alleges he “continues and •will continue to experience the fear that he may become the victim of identity theft and fraud and continues and will continue to suffer anguish, injury to his reputation and economic losses ... in an amount to be proven at time of trial.” 1st Am. Compl. ¶ 201. Given the evidentiary threshold for MGDPA emotional harm damages established in Navarre, Shahin’s allegations of emotional harm and his fear of possible identity theft are sufficient to state a claim for damages under the MGDPA.
b. Invasion of Privacy
In Count Seventeen of the Amended Complaint, Plaintiff Shahin asserts a claim for invasion of privacy based on MAC’s alleged disclosure of his social security number. 1st Am. Compl. ¶¶ 256-61. In
Lake v. Wal-Mart Stores, Inc.,
Thus, Counts Three, Four, Ten, and Seventeen of the Amended Complaint state claims upon which relief can be granted, and MAC’s Motion to Dismiss is denied as to those counts. Count Five is dismissed because it fails to clearly assert a claim against MAC.
B. U.S. Airways’s Motion to Dismiss
1. 42 U.S.C. § 1983 Claims
Count Three of the Amended Complaint names U.S. Airways as a co-defendant on the 42 U.S.C. § 1983 claims against MAC. U.S. Airways argues Plaintiffs’ § 1983 claims against it must be dismissed because the Amended Complaint fails to sufficiently allege that U.S. Airways acted under color of state law.
A private person is not liable under § 1983 merely for contacting the police and invoking a police officer’s authority.
Young v. Harrison,
[Murray] alleged that “each and all the acts” which she set forth in her complaint “were done by the Defendants under the color and pretense” of state law. Murray’s claim stated that she sustained numerous injuries and damages “as a direct and proximate result of the joint and several conduet[] of the Defendants, which constitute violation of Plaintiffs Constitutional rights.” Murray’s complaint also specifically invoked jurisdiction pursuant to section 1983.
Id. The court concluded that “[t]hese statements more than adequately allege facts sufficient to state a claim against Wal-Mart under § 1983.” Id.
Here, Plaintiffs allege U.S. Airways “was acting under the color of state law when [MAC], under the direction of U.S. Airways, deprived Plaintiffs of their [federal] rights .... ” 1st Am. Compl. ¶ 142. Plaintiffs also allege U.S. Airways and MAC “acted in concert” to violate Plaintiffs’ federal rights. Id. ¶ 145. Additionally, Plaintiffs have alleged that after they were handcuffed, “Shqeirat asked the [MAC] police officer what was going on to which the officer replied: T do not know. This is the airline’s call and not our call.’ ” Id. ¶ 60. Under Murray, the Amended Complaint sufficiently alleges that U.S. Airways and MAC jointly violated Plaintiffs’ constitutional rights in violation of § 1983.
U.S. Airways also briefly argues that Plaintiffs have insufficiently alleged that a U.S. Airways policy or custom was the moving force behind the alleged constitutional violations. U.S. Airways’s Reply Mem. in Supp. of Mot. to Dismiss [Docket No. 73] at 10. However, Monell does not apply to the conduct of U.S. Airways because U.S. Airways is not a governmental entity. U.S. Airways has provided no authority to support its argument that Plaintiffs must prove that a U.S. Airways policy or custom was the moving force behind the constitutional violations alleged in Plaintiffs’ § 1983 claims. Plaintiffs’ claims alleging joint violation of § 1983 rights is sufficient to deny U.S. Airways’s motion for dismissal of Count Three. 9
2. False Arrest
Count Five of the Amended Complaint asserts a false arrest claim against U.S. Airways. Plaintiffs allege that: (1) “U.S. Airways unlawfully had Plaintiffs handcuffed and arrested,” (2) the arrests were not based on probable cause, (3) U.S. Airways’s actions were discriminatory, and (4) MAC police officers performed the arrest based exclusively on the statements of U.S. Airways’s employees. 1st Am. Compl. ¶¶ 160,163-65.
The Minnesota Supreme Court has stated that the “essential elements” of a false arrest claim are: “(1) an arrest performed by defendant, and (2) the unlawfulness of such arrest.”
Lundeen v. Renteria,
U.S. Airways also argues it is entitled to immunity under 49 U.S.C. § 44941. That statute provides that:
Any air carrier ... who makes a voluntary disclosure of any suspicious transaction relevant to a possible violation of law or regulation, relating to air piracy, a threat to aircraft or passenger safety, or terrorism ... to ... any Federal, State, or local law enforcement officer, or any airport or airline security officer shall not be civilly liable to any person under any law or regulation of the United States, any constitution, law, or regulation of any State ... for such disclosure.
49 U.S.C. § 44941(a). The text of the statute protects U.S. Airways’s disclosure of information to MAC. Here, Plaintiffs allege that in addition to disclosing information to MAC, U.S. Airways acted in concert with MAC to arrest Plaintiffs. Plaintiffs specifically allege that immediately after they were handcuffed and placed under arrest, a MAC police officer stated: “This is the airline’s call and not our call.” 1st Am. Compl. ¶ 60. Plaintiffs’ false arrest claim alleges conduct by U.S. Airways that falls outside the protection of 49 U.S.C. § 44941(a).
Finally, U.S. Airways argues there was no false arrest because Plaintiffs’ arrest was supported by probable cause. However, for the reasons discussed above, this argument is rejected based on the record currently before the Court.
3. Air Carrier Access Act Claim
In Count Six of the Amended Complaint, Plaintiff Sadeddin asserts a claim under the Air Carrier Access Act (“ACAA”), 49 U.S.C. § 41705, which prohibits air carriers from discriminating against individuals on the basis of a disability. Sadeddin alleges that U.S. Airways discriminated against him “by claiming that Plaintiff Sadeddin appeared to be faking his blindness.” 1st Am. Compl. ¶ 170. Sadeddin states that as a result, he “was left struggling to descend the steps of the plane unassisted despite his request for aid.” Id. ¶ 171. U.S. Airways argues Sadeddin’s ACAA claim must be dismissed because individuals do not have a private cause of action for ACAA violations.
The ACAA does not expressly create a private cause of action. However, the Eighth Circuit held in
Tallarico v. Trans World Airlines, Inc.,
First, is the plaintiff “one of the class for whose especial benefit the statute was enacted”-that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law ... so that it would be inappropriate to infera cause of action based solely on federal law?
Cort,
The Eighth Circuit has not yet addressed whether the implied ACAA cause of action recognized in
Tallarico
survives after
Sandoval.
The Tenth and Eleventh Circuits, the only two Courts of Appeals to address the issue after
Sandoval,
have both held a private cause of action does not exist under the ACAA.
Boswell v. Skywest Airlines, Inc.,
Before discussing the ACAA, it is helpful to briefly discuss the facts and reasoning of
Sandoval.
There, a five-Justice majority concluded that individuals do not have a private cause of action to enforce agency regulations promulgated under § 602 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d-l. Section 602 stated that “[ejach Federal department and agency ... is authorized and directed to effectuate the [anti-discrimination] provisions of [§ 601].” 42 U.S.C. § 2000d-l. The
Sandoval
Court concluded that § 602 did not contain “rights-creating” language because it focuses on the agencies regulated rather than the individuals protected.
Sandoval,
The
Tallarico
court relied heavily on the ACAA’s legislative history in determining that Congress intended to create a private cause of action.
Tallarico,
Moreover, the elaborate administrative enforcement mechanisms provided by the ACAA contradict an intent to create a private cause of action. Briefly stated, the statute requires the Department of Transportation to investigate complaints that an air carrier has discriminated against a disabled individual. 49 U.S.C. § 46101(a)(1); 49 U.S.C. § 41705(c)(1). “After notice and an opportunity for a hearing ... the [DOT] shall issue an order to compel compliance....” 49 U.S.C. § 46101(a)(4). The DOT can impose civil penalties. 49 U.S.C. §§ 46301(a)(1)(A), (a)(5)(C). The DOT or the Department of Justice may file a civil action in a district court to enforce the ACAA. 49 U.S.C. §§ 46106-46107. Additionally, an individual with “a substantial interest” in a DOT enforcement action can seek review of a DOT
4. Intentional Infliction of Emotional Distress
Count Eleven of the Amended Complaint asserts a claim against U.S. Airways for intentional infliction of emotional distress. Under Minnesota law, a claim of intentional infliction of emotional distress has four elements: “(1) the conduct must be extreme and outrageous; (2) the conduct must be intentional or reckless; (3) it must cause emotional distress; and (4) the distress must be severe.”
Langeslag v. KYMN Inc.,
Both federal and Minnesota law prohibit transportation providers such as air carriers from discriminating on the basis of race and national origin.
See, e.g.,
49 U.S.C. § 40127(a) (“An air carrier ... may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex, or ancestry.”); Minn.Stat. § 363A.11, subd. 1 (prohibiting discrimination in places of public accommodation). U.S. Airways contends that Count Eleven fails to allege extreme and outrageous conduct. U.S. Airways relies heavily on the unpublished decision in
Alasady v. Northwest Airlines Corp.,
Civ. No. 02-3669,
The claims alleged in the Amended Complaint are more severe than the refusal to board a flight as in
Alasady.
Unlike the
Alasady
facts, the Amended Complaint alleges: (1) MAC officers, acting in concert with U.S. Airways, removed Plaintiffs from an airplane flight, arrested Plaintiffs, handcuffed them, and held them in the jetway for forty-five minutes; (2) Plaintiffs were forced to reboard the plane to identify their carry-on luggage in front of the other passengers; (3) Plaintiffs were escorted through the airport in handcuffs; and (4) Plaintiffs were detained for several hours before being questioned and released. 1st Am. Compl. ¶¶ 54-97. For the purposes of U.S. Airways’s Motion to Dis
5. Negligent Infliction of Emotional Distress
Count Twelve of the Amended Complaint asserts a claim against U.S. Airways for negligent infliction of emotional distress. “To establish a claim for negligent infliction of emotional distress, a plaintiff must show that she was within a zone of danger of physical impact, reasonably feared for her safety, and suffered severe emotional distress with accompanying physical manifestations.”
Wall v. Fairview Hosp. & Healthcare Servs.,
U.S. Airways argues Plaintiffs have failed to allege that they have suffered physical manifestations of emotional distress. The Amended Complaint alleges Plaintiffs “suffer humiliation, anxiety to fly, shame, despair, embarrassment, depression, mental pain, anguish, injury to their reputations, and economic losses.” 1st Am. Compl. ¶217. The Court finds that these allegations fail to plead the necessary element that Plaintiffs have suffered a physical manifestation of their emotional distress. See
Leaon v. Washington County,
Arguing against this result, Plaintiffs rely on affidavits that assert new factual allegations. See Pis.’ Exs. [Docket No. 63] 1-4. Plaintiffs claim they felt physical pain when they were handcuffed, and they allege they suffer from insomnia, nightmares, stress, and anxiety.
Id.
Faja alleges the ongoing stress he suffers caused him to be admitted to the emergency room in July 2007 for treatment of a panic attack. Pis.’ Ex. 2 ¶ 49. Shahin alleges he began seeing a psychologist, also in July 2007. Pis.’ Ex. 1 ¶ 50. However, these allegations were not made in the Amended Complaint and cannot be considered. Moreover, even if considered, these allegations do not sufficiently allege physical manifestations. Any physical injuries Plaintiffs suffered as a result of being handcuffed were not the result of emotional distress, and Plaintiffs’ other new allegations are insufficient. See
Elstrom v. Indep. Sch. Dist. No. 270,
Plaintiffs argue in the alternative that this Court should follow the Minnesota Court of Appeals’ decision in
Bohdan v. Alltool Manufacturing. Co.,
C. U.S. Airways’s Motion for Summary Judgment
1. U.S. Airways’s Arguments Under 49 U.S.C. § 44902; Plaintiffs’ Rule 56(f) Motion
U.S. Airways argues it is entitled to summary judgment because it acted within the discretion provided by the Federal Aviation Act, 49 U.S.C. § 44902, to airlines regarding security-related boarding decisions. The statute provides that “an air carrier ... may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.” 49 U.S.C. § 44902(b). Courts interpreting this provision have followed the Second Circuit’s 1975 decision in
Williams v. Trans World Airlines,
The test ... rests upon the facts and circumstances of the case as known to the airline at the time it formed its opinion and made its decision and whether or not the opinion and decision were rational and reasonable and not capricious or arbitrary in light of those facts and circumstances. They are not to be tested by other facts later disclosed by hindsight.
Williams,
Relying on the declarations of the crew of Flight 300 and other U.S. Airways employees involved in the November 20, 2006, incident, U.S. Airways argues that the captain’s decision to remove Plaintiffs from Flight 300 was not arbitrary and capricious. The captain relied on: (1) a passenger’s note alleging that Plaintiffs prayed loudly at the gate and made anti-U.S. comments, (2) Plaintiffs’ dispersed seating arrangement, (3) a flight attendant’s observations that two of the Plaintiffs had asked for seatbelt extensions but only one seemed to need one, (4) a flight attendant’s observation that Shahin moved from first class to coach to talk to Sadeddin during the delay, and (5) information from a U.S. Airways employee that Plaintiffs’ passenger name records (“PNRs”) indicated that three of the Plaintiffs were traveling on one-way tickets. U.S. Airways’s Mem. in Supp. of Mot. for Summ. J. at 9-10; U.S. Airways’s Exs. 7-15. U.S. Airways argues that its employees’ declarations conclusively show that the captain’s decision to remove Plaintiffs from Flight 300 was not arbitrary and capricious, and that the decision was not motivated by Plaintiffs’ race.
U.S. Airways has cited cases where courts have granted summary judgment dismissing claims that an airline’s refusal to board passenger was motivated by race.
See, e.g., Williams,
In response, Plaintiffs have filed a Rule 56(f) motion and affidavit explaining the need for discovery to oppose the evidentia-ry material submitted by U.S. Airways. See Goetz Aff. The Eighth Circuit has noted that Rule 56 “does not require trial courts to allow parties to conduct discovery before entering summary judgment.”
Humphreys v. Roche Biomed. Labs., Inc.,
Plaintiffs have submitted an affidavit asserting a need to depose the crew of Flight 300, the ticketing agent who refused to rebook Plaintiffs, and other U.S. Airways personnel involved in Plaintiffs’ removal from Flight 300, the subsequent arrest, and U.S. Airways’s refusal to rebook Plaintiffs. Plaintiffs also state they will seek discovery of any prior incidents of U.S. Airways denying air travel to a passenger for reasons such as the passenger praying at the gate or requesting a seatbelt extension. Plaintiffs argue such discovery would show that: (1) Plaintiffs were not engaged in activities that could be construed as a safety threat, (2) U.S. Airways and MAC acted in concert to detain and arrest Plaintiffs, and (3) U.S. Airways discriminated against Plaintiffs because of their race and religion.
The Court grants Plaintiffs’ Rule 56(f) Motion. Assuming arguendo that U.S. Airways’s decision to remove Plaintiffs from Flight 300 was not arbitrary and capricious, and thus shielded by 49 U.S.C. § 44902, U.S. Airways may still be liable under 42 U.S.C. § 1983 for claims arising out of Plaintiffs’ arrest and detention. Plaintiffs’ arrest related claims are not covered by 49 U.S.C. § 44902, which applies only to an airline’s refusal to board a passenger. As discussed above, Plaintiffs’ § 1983 claims survive U.S. Airways’s Motion to Dismiss. In pursuing their § 1983 claims, Plaintiffs are likely to depose the crew of Flight 300 and other U.S. Airways personnel identified in Plaintiffs’ Rule 56(f) affidavit. Thus, U.S. Airways is required to participate in discovery regardless of whether it acted within its discretion under 49 U.S.C. § 44902 when it removed Plaintiffs from Flight 300. Moreover, even if Plaintiffs had not named U.S. Airways as MAC’s co-defendant on the § 1983 claims, Plaintiffs would still likely depose the crew of Flight 300 and other U.S. Airways employees to determine the information that MAC relied on to detain and arrest Plaintiffs. Given that U.S. Airways’s employees will be deposed, the merits of U.S. Airways’s summary judgment motion, to the extent it relies on 49 U.S.C. § 44902, are
2. Preemption
U.S. Airways argues Plaintiffs’ state law claims are preempted by the Airline Deregulation Act of 1978 (“ADA”), which provides that “a State ... 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.” 49 U.S.C. § 41713(b)(1). The ADA’s preemption provision prevents state regulation from undermining federal deregulation of competition between the airlines.
Morales v. Trans World Airlines, Inc.,
The Supreme Court has interpreted the ADA’s preemption provision in two cases. In
Morales,
a majority of five Justices held that state consumer protection guidelines regarding airline fare advertising were preempted by the ADA.
The Supreme Court revisited the ADA’s preemption provision in
American Airlines, Inc. v. Wolens,
In the instant case, resolution of U.S. Airways’s preemption argument turns on the ADA’s definition of “service.” The Supreme Court has stated in dicta that “access to flights and class-of-service upgrades” qualify as an air carrier “service.”
Id.
at 226,
The Fourth, Fifth, Seventh, and Eleventh Circuits define an airline’s “services” more broadly to include boarding procedures. See
Branche v. Airtran Airways, Inc.,
The Eighth Circuit in
Botz v. Omni Air International,
In
Alasady,
Judge Kyle held that three Muslim plaintiffs’ state law claims arising out of Northwest’s refusal to board them were not preempted by the ADA.
[Rjesolving the preemption issue at this stage will not conclude the case because Plaintiffs [federal] claims will proceed at least to the summary judgment stage. Accordingly, because this issue presents an important and difficult question of first impression within this circuit and which involves an issue which may not be appropriate for resolution at the pleading stage, the court will deny Defendants’ motion to dismiss Plaintiffs’ claims based on state law. The court will reconsider this issue, if necessary at the summary judgment stage.
Id.
at 557;
see also Chowdhury v. Nw. Airlines Corp.,
D. Plaintiffs’ Motion to Strike
In a letter of October 17, 2007, U.S. Airways notified the Court of the Ninth Circuit’s decision in Montalvo v. Spirit Airlines, Inc., No. 05-15640, 2007 U.S.App. LEXIS 23252 (9th Cir. Oct. 4, 2007), dismissing claims against defendant airlines for negligent failure to warn passengers about the risk of deep vein thrombosis during flight. Id. at *20. The Ninth Circuit held these claims were impliedly preempted by the Federal Aviation Act because “federal law occupies the entire field of aviation safety. Congress’ intent to displace state law is implicit in the pervasiveness of the federal regulations, the dominance of the federal interest in this area, and the legislative goal of establishing a single, uniform system of control over air safety.” Id. at *19. In its October 17 letter, U.S. Airways asserted that the “ ‘implied preemption issue’ is distinct from, and in addition to, our argument that the Airline Deregulation Act specifically preempts Plaintiffs’ state law claims.” U.S. Airways’s Oct. 17, 2007 Letter.
By letter dated October 22, 2007 [Docket No. 92], Plaintiffs argued that Montalvo is distinguishable from the instant case. In a letter dated November 13, 2007, U.S. Airways responded that Montalvo supports “the argument that Plaintiffs’ state law claims are preempted based on a theory of implied field preemption of aviation safety issues.” U.S. Airways’s Nov. 13, 2007, Letter. In them Motion to Strike, Plaintiffs contend that U.S. Airways’s November 13 letter is an unsolicited memorandum of law prohibited by Local Rule 7.1(f).
The implied preemption argument was available to U.S. Airways when it filed its Motion for Summary Judgment.
See, e.g., Abdullah v. Am. Airlines,
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant U.S. Airways’s Motion to Dismiss [Docket No. 13] is DENIED IN PART and GRANTED IN PART;
2. Counts Six and Twelve of the Amended Complaint [Docket No. 5] are DISMISSED;
3. Defendant U.S. Airways’s Motion for Summary Judgment [Docket No. 9] is DENIED WITHOUT PREJUDICE;
4. Defendant Metropolitan Airport Commission’s Motion to Dismiss [Docket No. 6] is DENIED IN PART and GRANTED IN PART;
5. Count Five of the Amended Complaint is DISMISSED to the extent Plaintiffs are asserting a claim against MAC;
6. Plaintiffs’ Rule 56(f) Motion [Docket No. 54] is GRANTED; and
7. Plaintiffs’ Motion to Strike [Docket No. 96] is GRANTED regarding U.S. Airways’s November 13, 2007, Letter [Docket No. 94].
Notes
. In considering a motion to dismiss, the pleadings are construed in the light most favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true.
Hamm v. Groose,
. U.S. Airways has provided Plaintiffs’ passenger name records (PNRs), which show that Shahin purchased all of Plaintiffs' tickets. The Court considers the PNRs for the limited purpose of clarifying Plaintiffs' ticket purchase and their seating arrangement for the return flight to Phoenix.
.It appears that Ibrahim’s origination and ultimate return city was Bakersfield, California. See U.S. Airways's Mem. in Supp. of Mot. for Summ. J. [Docket No. 11] at 4; U.S. Airways’s Ex. 6.
. Plaintiffs have moved to file a Second Amended Complaint. Mot. to Amend 1 st Am. Compl. [Docket No. 41], That motion is currently before Magistrate Judge Arthur J. Boylan. U.S. Airways's and MAC's instant motions address the allegations in the Amended Complaint, and therefore the Court has limited its consideration to the allegations in the Amended Complaint.
. Federal Rule of Civil Procedure 56(1) provides that "[s]hould it appear from the affidavits of a party opposing the [summary judgment] motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance” to allow additional discovery.
. MAC is a public corporation under Minn. Stat. § 473.01. MAC’s Mem. in Supp. of Mot. to Dismiss [Docket No. 24] at 6.
. MAC concedes Plaintiffs were arrested but does not specify the precise moment when Plaintiffs were arrested, as opposed to being briefly detained.
See United States v. Sokolow,
. MAC also argues that U.S. Airways's decision to deny service supports a finding of probable cause. MAC’s Reply Mem. at 3-4. However, 49 U.S.C. § 44902(b) gives an airline discretion to deny service to anyone the airline decides "is, or might be, inimical to safety.” As discussed below, this standard is lenient and does not require probable cause. Therefore, U.S. Airways’s decision to deny service to Plaintiffs is not a component of probable cause. Only the underlying facts regarding Plaintiffs' conduct relied on by MAC can establish probable cause.
. Count Four of the Amended Complaint does not assert a failure-to-train claim against U.S. Airways See 1st Am. Compl. ¶¶ 151-56.