The opinion
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6 UNITED STATES DISTRICT COURT
7 EASTERN DISTRICT OF CALIFORNIA
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9 ALAA HUSSEIN, No. 2:22-CV-00412-JAM-JDP
10 Plaintiff,
11 v. ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS
12 JETSUITEX, INC., ET AL.,
13 Defendants.
14
15 The matter before the Court is JetSuiteX, Inc. and Delux
16 Public Charter, LLC’s (“Defendants”) motion to dismiss counts
17 three and four of the first amended complaint (“FAC”) filed by
18 Alaa Hussein (“Plaintiff”). See Mot. to Dismiss (“Mot.”), ECF
19 No. 11; FAC, ECF No. 5. Plaintiff opposed the motion. See
20 Opp’n, ECF No. 12. Defendants replied. See Reply, ECF No. 13.
21 For the reasons set forth below, this Court GRANTS
22 Defendants’ motion to dismiss.1
23 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
24 Defendants own and operate JSX, a private airline that
25 offers flights between its private air terminals for sale to the
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27 1 This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
28 for August 23, 2022.
1 general public. FAC ¶¶ 4-5, 10. On or about June 4, 2021,
2 Plaintiff purchased two roundtrip ticks from Reno, Nevada to Las
3 Vegas, Nevada through JSX’s website. Id. ¶ 12. A couple of days
4 later, Plaintiff and her partner arrived at JSX’s terminal in
5 Reno to check in for their flight. Id. at 13. When Plaintiff
6 attempted to check in, a JSX representative scanned her boarding
7 pass but, encountering an obstacle to the check-in, told
8 Plaintiff to stand aside and wait while the other passengers
9 boarded. Id. ¶¶ 14-15. Plaintiff alleges that all the other
10 passengers were white. Id. ¶ 14. Moments later, a JSX
11 supervisor, Steven Jenkins, examined the check-in computer and
12 allegedly told Plaintiff that she would not be permitted to board
13 the plane because TSA had not cleared her to fly. Id. ¶ 16.
14 Plaintiff alleges that other passengers overheard this statement
15 and that she felt humiliated. Id. Plaintiff alleges that
16 Jenkins was dismissive of her requests to call TSA to resolve the
17 issue before Plaintiff’s flight departed; when Jenkins finally
18 called TSA after the flight had departed, TSA informed Jenkins
19 that there were no restrictions on Plaintiff’s ability to fly.
20 Id. ¶¶ 17-18. Plaintiff alleges that Jenkins then spoke to his
21 supervisor and then informed Plaintiff that she was denied
22 boarding by someone at JSX because her last name was “high risk.”
23 Id. ¶ 19. Plaintiff claims that Jenkins repeated that Plaintiff
24 was denied boarding because of her last name at least four more
25 times during their discussion of the incident in the presence of
26 other people in the terminal and that Plaintiff again felt
27 humiliated. Id. After this incident, Plaintiff opted to drive
28 to Las Vegas. Id. ¶ 20. In the weeks following the incident,
1 Plaintiff received contradictory explanations from Jenkins and
2 other JSX representatives about the reason for her being refused
3 entry onto her flight. Id. ¶¶ 21-26. Plaintiff alleges that
4 Defendants’ conduct constituted racial discrimination and caused
5 her to suffer emotional distress, mental anguish, and
6 embarrassment. Id. ¶ 29.
7 On April 22, 2022, Plaintiff filed the operative FAC against
8 Defendants, alleging: (1) discrimination under federal and
9 California law; (2) intentional infliction of emotional distress
10 (IIED); (3) negligent infliction of emotional distress (NIED);
11 (4) breach of contract; and (5) breach of the implied covenant of
12 good faith and fair dealing. Id. ¶ 30-49. Defendants move to
13 dismiss the state claims for intentional infliction of emotional
14 distress and negligent infliction of emotional distress under
15 FRCP 12(b)(6) for failure to state a claim upon which relief can
16 be granted. Mot. at 1-2.
17 II. OPINION
18 A. Legal Standard
19 In considering a motion to dismiss for failure to state a
20 claim upon which relief can be granted under FRCP 12(b)(6), the
21 Court must accept the allegations in the FAC as true and draw
22 all reasonable inferences in favor of Plaintiff. Moss v. U.S.
23 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing Ashcroft
24 v. Iqbal, 556 U.S. 662, 678 (2009)). The FAC must possess more
25 than “a formulaic recitation of the elements of a cause of
26 action;” it must contain non-conclusory, factual allegations
27 sufficient “to raise a right to relief above the speculative
28 level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554
1 (2007).
2 B. Analysis
3 1. Claim One: Intentional Infliction of Emotional
4 Distress
5 Defendants argue that Plaintiff’s state IIED claim must be
6 dismissed because Plaintiff’s pleading is insufficient to
7 establish that (1) Defendants engaged in extreme and outrageous
8 conduct and (2) Plaintiff suffered severe emotional distress.
9 Mot. at 6-8. Defendants contend that Plaintiff being wrongfully
10 denied boarding does not rise to the level of extremity required
11 by California courts, nor does her transitory moment of
12 embarrassment rise to the requisite level of severity. Id.
13 Plaintiff claims that because she has a viable racial
14 discrimination claim, it would be incongruous for the Court to
15 dismiss her IIED on sufficiency grounds. Opp’n at 5. Plaintiff
16 then compares Defendants’ alleged conduct to sexual harassment in
17 the workplace, which courts have found can constitute outrageous
18 conduct. Id. With respect to emotional distress, Plaintiff
19 reemphasizes the humiliation that Plaintiff allegedly felt when
20 told in front of others that she was denied entry because of her
21 last name as sufficient to constitute severe emotional distress.
22 Id.
23 The Court finds that Plaintiff has failed to allege facts
24 sufficient to maintain this claim against Defendants. The FAC
25 must contain non-conclusory, factual allegations sufficient “to
26 raise a right to relief above the speculative level.” Twombly,
27 550 U.S. at 554. A cause of action for IIED requires a showing
28 of: (1) extreme and outrageous conduct by the defendant with the
1 intention or reckless disregard of causing emotional distress;
2 (2) the plaintiff suffering severe or extreme emotional distress;
3 and (3) proximate cause. Hughes v. Pair, 46 Cal. 4th 1035, 1050
4 (2009). Extreme and outrageous conduct under this claim is
5 conduct so “extreme as to exceed all bounds of that usually
6 tolerated in a civilized community.” Id. It is not enough for a
7 plaintiff to suffer “mere insults, indignities, threats,
8 annoyances, petty oppressions, or other trivialities” or for a
9 defendant to have discriminatory intent. Light v. Dep't of Parks
10 & Recreation, 14 Cal. App. 5th 75, 101–02 (2017). While it is
11 undisputed that Plaintiff faced indignity and annoyance at being
12 denied boarding and having her travel plans delayed, Plaintiff’s
13 allegations are insufficient to constitute conduct that “exceeds
14 all bounds of that usually tolerated in a civilized society” as
15 required by the California courts. Hughes, 46 Cal. at 1050.
16 Plaintiff also fails to support this first element with any
17 relevant or persuasive legal authority and Plaintiff’s reference
18 to her discrimination claim is a bare assertion with no factual
19 support to address the requisite pleading standard.
20 As for the second element, the “severe or extreme emotional
21 distress” alleged must be substantial or enduring to a degree
22 that “no reasonable person in civilized society should be
23 expected to endure it.” Id. at 1051. “Trivial or transitory”
24 injury, including “discomfort, worry, anxiety, upset stomach,
25 concern and agitation,” is insufficient to meet this high bar.
26 Girard v. Ball, 125 Cal. App. 3d 772, 787 (Ct. App. 1981),
27 Hughes, 46 Cal. at 1051. While it is undisputed that Plaintiff
28 felt humiliated both when she attempted to check in and during
1 her conversation with JSX representative Jenkins, those feelings
2 were brief and only spanned the course of the two interactions
3 she had with JSX staff at the terminal that morning. Thus,
4 Plaintiff’s alleged injuries were transitory and do not meet the
5 high bar of substantial or enduring injury as required by the
6 California courts. Plaintiff also fails to support this second
7 element with any legal authority. In the absence of the non-
8 conclusory, factual allegations necessary to sustain this claim,
9 the Court dismisses this claim with prejudice.
10 2. Claim Two: Negligent Infliction of Emotional
11 Distress
12 Defendants argue that Plaintiff’s NIED claim must be
13 dismissed because (1) Plaintiff has failed to identify an
14 applicable duty of care that Defendants breached and
15 (2) Plaintiff has failed to allege serious emotional distress.
16 Mot. at 8-9. Defendants contend that Plaintiff’s failure to
17 sufficiently allege severe emotional distress in their IIED
18 claim requires the Court to find for Defendants on this claim.
19 Id. at 9.
20 Plaintiff argues that Defendants’ alleged actions
21 constituted a breach of their duty as common carriers to
22 Plaintiff as a passenger. Opp’n at 6. Plaintiff contends that
23 this high duty of care applies to passengers in transit as well
24 as those within the “sphere of activity” completely under a
25 defendant’s control, so it is applicable in this case because
26 Plaintiff was a passenger in JSX’s private terminal. Id. at 6-7
27 (citing Orr v. Pacific Southwest Airlines, 208 Cal.App.3d 1467,
28 1474). As with her injury argument for her IIED claim,
1 Plaintiff reemphasizes the humiliation and mental anguish she
2 felt from Defendants’ alleged racial discrimination without
3 adding any new factual allegations or supporting legal
4 authority. Id. at 7.
5 Once again, the Court finds Defendants’ argument
6 persuasive. The FAC must contain non-conclusory, factual
7 allegations sufficient “to raise a right to relief above the
8 speculative level.” Twombly, 550 U.S. at 554. An NIED claim is
9 not an independent tort but a negligence tort which requires a
10 plaintiff to sufficiently allege the traditional elements of
11 (1) duty, (2) breach of duty, (3) causation, and (4) damages.
12 Wong v. Jing, 189 Cal. App. 4th 1354, 1377 (2010). Plaintiff
13 contends that the applicable duty here is that of a common
14 carrier to a passenger, which is created when a plaintiff (1)
15 offers to become a passenger and (2) is accepted as a passenger
16 after placing themselves under the control of the common
17 carrier. Grier v. Ferrant, 62 Cal. App. 2d 306, 310–11 (1944).
18 This duty extends beyond the contract of carriage to include
19 anywhere the passenger is in the “sphere of any activity of the
20 carrier which might reasonably constitute a mobile or animated
21 hazard to the passenger.” Orr, 208 Cal. App. at 1472. An NIED
22 claim for emotional distress also requires a showing of
23 “serious” emotional distress such that a reasonable person
24 “would be unable to adequately cope with the mental stress
25 engendered by the circumstances of the case;” the Wong court
26 found this standard to be functionally equivalent to the “severe
27 emotional distress” standard required for IIED claims. Wong,
28 198 Cal. App. at 1377–78.
nee □□□ ene ee NE OS ON IED
1 The Court agrees with Defendants that Plaintiff has failed
2 to identify an applicable duty of care for her NIED claim. The
3 common carrier duty is inapplicable because, by Plaintiff’s own
4 admission, she offered herself as a passenger to JSX and was not
5 accepted. Plaintiff’s reliance on Orr in arguing that she was
6 | within JSX’s “sphere of activity” is misplaced because Plaintiff
7 has failed to show that (1) the common carrier-passenger duty
8 applied and (2) the check-in area of the terminal would have
9 “reasonably constitute[d] a mobile or animated hazard” to her.
10 | Orr, 208 Cal. App. at 1472. Therefore, there is no applicable
11 duty of care for this claim. Plaintiff has further failed to
12 distinguish her injury claims under this claim from those in her
13 IIED claim, which the Court found to be insufficient to meet the
14 requisite IIED pleading standard; in light of the standard set
15 forth in Wong, the Court finds the same for Plaintiff’s NIED
16 claim. See Wong, 198 Cal. App. at 1377-78. In the absence of
17 the non-conclusory, factual allegations necessary to sustain
18 Plaintiff’s NIED claim, the Court dismisses this claim with
19 | prejudice.
20 Til. ORDER
21 For the reasons set forth above, the Court GRANTS Defendants’
22 motion to dismiss WITH PREJUDICE.
23 IT IS SO ORDERED.
24 Dated: November 7, 2022
25
cp,
JOHN A. MENDEZ
27 SENIOR UNITED*STATES DISTRICT JUDGE
28