Covino v. Spirit Airlines, Inc.

United States District Court

District of Massachusetts

)

Robyn Covino )

)

Plaintiff, )

)

v. ) Civil Action No.

) 19-10126-NMG

Spirit Airlines, Inc. )

)

Defendant. )

)

MEMORANDUM & ORDER

GORTON, J.

Robyn Covino (“plaintiff” or “Covino”), proceeding pro se,

brings claims for intentional and negligent infliction of

emotional distress against Spirit Airlines, Inc. (“defendant” or

“Spirit”).

Pending before this Court is the motion of Spirit to

dismiss plaintiff’s complaint on all counts.

I. Background

Robyn Covino avers that she was a passenger on a Spirit

flight from Las Vegas to Boston in April, 2017. During the

flight, Covino attempted to use the lavatory. She claims that a

Spirit flight attendant stopped her from doing so by yelling,

cursing and blocking her passage. Covino does not allege why

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she believes she was denied access but Spirit asserts that the

lavatory was temporarily unavailable because it was occupied by

another passenger or crew member.

Following the altercation, the flight attendant reported

plaintiff and the incident to Boston International Logan Airport

(“Logan”). Upon arrival at Logan, Covino was escorted off the

plane and questioned by Massachusetts State Police Officer

Gendreau (“Officer Gendreau”) before other passengers could

disembark. Plaintiff alleges that Officer Gendreau questioned

her about the incident and then provided her with his contact

information.

Covino purchased her ticket to Boston through Spirit’s

“ticketless” online booking system. In doing so, she checked a

box acknowledging her agreement with the terms and conditions

set forth in Spirit’s Contract of Carriage (“COC”). The full

text of the COC was made available to Covino via a hyperlink on

Spirit’s booking system. The COC is also published and publicly

available on Spirit’s website.

Covino filed the instant suit against Spirit in

Massachusetts Superior Court in December, 2018. In January,

2019, Spirit removed the case to this Court. Covino seeks

damages for intentional and negligent infliction of emotional

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distress arising out of the flight attendant’s conduct in

denying her access to the lavatory.

II. Motion to Dismiss

Spirit moves to dismiss plaintiff’s complaint as preempted

by the Airline Deregulation Act of 1978 and as time-barred by

Spirit’s COC.

A. Standard of Review

To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to “state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). In considering the merits of

a motion to dismiss, the Court may only look to the facts

alleged in the pleadings, documents attached as exhibits or

incorporated by reference in the complaint and matters of which

judicial notice can be taken. Nollet v. Justices of Trial Court

of Mass., 83 F. Supp. 2d 204, 208 (D. Mass. 2000), aff’d, 228

F.3d 1127 (1st Cir. 2000).

Furthermore, the Court must accept all factual allegations

in the complaint as true and draw all reasonable inferences in

the plaintiff’s favor. Langadinos v. Am. Airlines, Inc., 199

F.3d 68, 69 (1st Cir. 2000). If the facts in the complaint are

sufficient to state a cause of action, a motion to dismiss the

complaint must be denied. See Nollet, 83 F. Supp. 2d at 208.

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Although a court must accept as true all the factual

allegations in a complaint, that doctrine is not applicable to

legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Threadbare recitals of legal elements which are supported by

mere conclusory statements do not suffice to state a cause of

action. Id. Accordingly, a complaint does not state a claim of

relief where the well-pled facts fail to warrant an inference of

any more than the mere possibility of misconduct. Id. at 1950.

B. Preemption Under the Airline Deregulation Act of 1978

Spirit moves to dismiss plaintiff’s complaint as preempted

by the Airline Deregulation Act of 1978.

The Airline Deregulation Act of 1978 (“the ADA”) preempts

state law with respect to pricing, routes and services of

carriers that provide interstate air transportation. 49 U.S.C. §

41713(b)(1). Congress enacted the ADA, in part, “[t]o ensure

that the States would not undo federal deregulation” of the

airline industry. Morales v. Trans World Airlines, Inc., 504

U.S. 374, 378 (1992). To that effect, Congress expressly

preempted the states from

enact[ing] or enforc[ing] 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).

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The “key phrase” in understanding the scope of the ADA’s

preemption provision is “relating to.” Morales, 504 U.S. at

383. “Relating to,” in the context of the ADA expresses a

“broad preemptive purpose,” encompassing all state laws “having

a connection with, or reference to, airline rates, routes, or

services.” Id. at 384; see also Altria Grp., Inc. v. Good, 555

U.S. 70, 85 (2008) (commenting on the “unusual breadth” of the

ADA’s preemption provision). ADA preemption is not limited to

statutes or regulations; the Supreme Court has interpreted the

phrase “other provision having the force and effect of law” to

include state common-law claims. Northwest, Inc. v. Ginsberg,

572 U.S. 273, 284 (2014).

Here, Spirit argues that the ADA preempts state-law tort

claims arising out of its flight attendant’s allegedly abrasive

denial of plaintiff’s request to use the lavatory. To determine

whether plaintiff’s claims are preempted, the Court must

determine (1) whether access to the in-flight lavatory is a

“service” within the meaning of the ADA and (2) whether the

emotional distress allegedly suffered by plaintiff is

sufficiently “related to” that service.

With respect to the first consideration, a “service,”

although never defined by the Supreme Court, has been defined

broadly in this Circuit as an “anticipated provision of labor

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from one party to another,” including matters “appurtenant and

necessarily included with the contract of carriage between the

passenger and the airline,” such as ticketing, boarding,

providing food and drink and handling baggage. Tobin v. Federal

Express Corp., 775 F.3d 448, 453-56 (1st Cir. 2014).

This Court readily concludes that providing access to an

in-flight lavatory is a necessary service appurtenant to

passenger air transportation. See Air Transp. Ass’n of Am. v.

Cuomo, 520 F.3d 218, 222 (2d Cir. 2008)(“[W]e have little

difficulty concluding that requiring airlines to provide food,

water, electricity, and restrooms to passengers during lengthy

ground delays relates to the service of an air carrier.”).

As to the second consideration, plaintiff maintains that

state tort law governing her claims of emotional distress is not

sufficiently related to the provision of lavatory services.

Plaintiff relies on Gill v. Jetblue Airways Corp. to

maintain that her tort claims are peripheral to an airline

service and, thus, not preempted by the ADA. 836 F. Supp. 2d 33

(D. Mass 2011). In Gill, a quadriplegic passenger sued an

airline for negligence after he fell while airline employees

assisted him into his seat. Id. at 36-37. The incident occurred

during the boarding process, which is a service under the ADA.

See Tobin, 775 F.3d at 456. The Court held that the ADA did

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not, however, preempt the passenger’s claim of negligence

because the related “service” of general passenger boarding was

only tangentially related to the failure of airline employees

properly to exercise their duty of care in helping a disabled

passenger into his seat. Gill, 836 F. Supp. 2d at 43. Put

differently, the enforcement of the duty of care owed by airline

employees to the disabled passenger would have only incidental

effect on the boarding process and would not likely restrain the

ability of airlines to compete in providing that service. Id.

Gill is distinguishable because Ms. Covino’s alleged

injury, unlike the injury in Gill, is inextricably related to

Spirit’s provision of passenger services. The denial of access

to the in-flight restroom is at the heart of Covino’s claim.

Her attempt to sever the manner in which she was denied access

to the lavatory from the denial itself is unpersuasive. See

Cannava v. USAir, Inc., No. 91-30003, 1993 WL 565341, *6 (D.

Mass. Jan. 7, 1993) (allowing motion to dismiss because

plaintiff’s claims were based on the core allegation that

airline agents acted in a rude, insulting, and discourteous

manner toward him in the provision of services). Allowing

Covino’s claim for emotional distress arising from the manner in

which she was denied access to a service would upend the ADA’s

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preemption of all claims “related to” the provision of airline

services.

To the extent Covino complains that the flight attendant

reported her to the authorities at Logan to be removed prior to

passenger de-boarding, her claim is also preempted. See Dogbe v.

Delta Airlines, Inc., 969 F. Supp. 2d 261, 276 (E.D.N.Y. 2013)

(“There can be no question that plaintiff's challenge to Delta's

. . . boarding procedures . . . is preempted by the ADA.”).

In short, Covino’s claims of emotional distress based on

the flight attendant’s behavior toward her are inextricably

related to the flight attendant’s denial of an airline service.

Accordingly, Covino’s claims are preempted by the ADA and

Spirit’s motion to dismiss will be allowed.

C. COC Time Limitation

Spirit moves to dismiss plaintiff’s complaint for the

separate reason that it was untimely. Plaintiff responds that

she filed her complaint within the statute of limitations period

provided by state law and the shortened limitations period

included in Spirit’s COC is unenforceable because 1) Spirit

provided insufficient notice and 2) state law precludes parties

from shortening the applicable statute of limitations by

contract.

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1. Notice

The United States Department of Transportation (“DOT”) is

charged with promulgating comprehensive regulations interpreting

the ADA. 49 U.S.C. § 40113. Pursuant to that regulatory

authority, DOT has promulgated regulations aimed at

standardizing contracts of carriage. 14 C.F.R. § 253.1 (“The

purpose of this part is to set uniform disclosure requirements,

which preempt any State requirements on the same subject, for

terms incorporated by reference into contracts of carriage for

scheduled service in interstate and overseas passenger air

transportation.”).

DOT regulations provide that an airline carrier may

incorporate by reference in a ticket “any term of the contract

for providing interstate air transportation,” if proper notice

is provided. 14 C.F.R. §§ 253.4(a), 253.5(a). Terms that may be

incorporated by reference include limitations on liability such

as “time periods within which passengers must file a claim or

bring an action against the carrier to its acts or omissions.”

14 C.F.R. § 253.5(b)(2).

The adequacy of notice turns on whether the incorporation

by reference of important legal rights was “reasonably

communicate[d]” to the passenger. Shankles v. Costa Armatori,

S.P.A., 722 F.2d 861, 864 (1st Cir. 1983). The reasonable

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communicativeness test is a two-pronged analysis that requires

the Court to consider 1) the facial clarity of the contract and

whether it “make[s] the relevant provisions sufficiently obvious

and understandable” and 2) whether the “circumstances of the

passenger’s possession of and familiarity with the ticket,”

indicate the passenger had the ability to become “meaningfully

informed of the contractual terms at stake.” Lousararian v.

Royal Caribbean Corp., 951 F.2d 7, 8-9 (1st Cir. 1991).

With respect to the first prong, Section 13.3 of Spirit’s

COC is plainly labeled “Time Limit” and explains in clear

language that any claims against Spirit must be brought within

six months of the alleged incident. Such a straightforward and

conspicuously labelled provision is sufficiently clear to meet

the “reasonableness” standard. Id. at 10 (“[T]he standard is

one of reasonableness, not perfection.”).

With respect to the second prong, Spirit’s online booking

page explains in plain language that by assenting to Spirit’s

terms and conditions by checking the relevant box, the passenger

is agreeing to Spirit’s COC. Spirit then provides on the same

page a link to the complete text of the COC to which the

passenger is agreeing. Courts have referred to this online

process as creating a “clickwrap” contract. See, e.g., Cullinane

v. Uber Technologies, Inc., 893 F.3d 53, 63 n.10 (1st Cir. 2018)

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(explaining that a “clickwrap” contract requires a user to

indicate affirmative assent to a contract but does not require

the user to view the contract to which she is assenting).

Although this Court is unaware of any federal court that

has considered whether a “clickwrap” contract provides

sufficient notice of contractual provisions incorporated by

reference under 14 C.F.R. § 253.5, courts in this Circuit are in

near universal agreement that clickwrap contracts are

enforceable in other contexts. See, e.g., Wickberg v. Lyft,

Inc., 356 F. Supp. 3d 179, 183 (D. Mass. 2018) (“[C]lickwrap

agreements . . . are generally held enforceable.”); Small

Justice LLC v. Xcentric Ventures LLC, 99 F. Supp. 3d 190, 196

(D. Mass. 2015) (“Clickwrap agreements are generally upheld

because they require affirmative action on the part of the

user.”); see also Mark A. Lemley, Terms of Use, 91 Minn. L. Rev.

459, 466 (2006)(“Because the user has ‘signed’ the contract by

clicking ‘I agree,’ every court to consider the issue has held

clickwrap licenses enforceable.”).

Here, Spirit unambiguously stated on its online booking

page that by checking the box indicating her agreement to

Spirit’s terms and conditions, Covino was agreeing to Spirit’s

COC. The full text of the COC was available to Covino via

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hyperlink on that same booking page and Spirit further provided

access to the COC on its publicly accessible website.

Through each of these technological mechanisms, Spirit

provided Covino an opportunity to become fully informed of the

contractual provisions to which she was agreeing by booking her

air travel with Spirit. That Spirit failed to provide Covino

with a paper copy of its COC or a paper ticket which included

the COC provisions is immaterial. See Ticketless Traveler:

Passenger Notices, 62 Fed. Reg. 19,473-477 (April 22, 1997)

(recognizing the emergence of “ticketless travel” and rejecting

the notion that airline companies are required to provide paper

notices to ticketless passengers).

Equally important is whether Spirit has complied with the

notice requirements of incorporated terms provided by DOT

regulations. 14 C.F.R. § 253.4. Specifically, DOT requires that

an airline make the full text of its COC available for public

inspection at each of its airport and city ticket offices and

provide a copy of the full text of the COC to passengers free of

charge. 14 C.F.R. §§ 253.4(b), (c). In this case, Spirit

provided to Covino even more substantial notice of the terms

incorporated in its COC than required by the regulations. As

opposed to simply providing Covino with information as to how

she could obtain a copy of the COC at the airport, Spirit

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provided Covino with immediate and direct access to the full

terms of the COC free of charge via hyperlink on the booking

page.

In sum, Spirit’s online ticketless booking system

reasonably provided Covino notice of the existence of important

legal rights incorporated by reference in Sprit’s contract of

carriage, including its limitation of liability requiring all

claims against Spirit to be brought within six months.

2. State Law

Plaintiff next contends that even if she was provided

proper notice of the incorporated COC terms, the claim

limitations period is unenforceable under applicable state

contract law. Plaintiff claims that under either Florida law,

which may govern pursuant to the COC’s choice of law provision,

or Massachusetts law, contractually shortened limitations

periods are invalid.

Ms. Covino is correct that in both Florida and

Massachusetts parties may not limit the applicable statute of

limitations by contract. See Fla. Stat. § 95.03 (“Any provision

in a contract fixing the period of time within which an action

arising out of the contract may be begun at a time less than

that provided by the applicable statute of limitations is

void.”); Creative Playthings Franchising, Corp. v. Reiser, Jr.,

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978 N.E.2d 765, 770 (Mass. 2012) (“Any contractual reduction in

a limitations period that is unreasonable or not subject to

negotiation by the parties, such as in a contract of adhesion,

will be unenforceable.”).

A limitation on the period during which a passenger must

bring a claim against an airline carrier is, however, preempted

by the ADA with respect to airline services as discussed above

and expressly authorized by DOT regulations. 14 C.F.R. §

253.5(b)(2). Consequently, such limitations cannot be displaced

by state law. See, e.g., Miller v. Delta Air Lines, Inc.,

No. 4:11-cv-10099, 2012 WL 1155138, *4 (S.D. Fla. Apr. 5, 2012)

(“Plaintiff cannot use Florida law to expand Delta's undertaking

in the Contract of Carriage by exposing it to claims made within

five years, rather than the one-year expressly provided in the

Contract of Carriage.”); O’Connell v. Paquet Cruises, Inc.,

No. 88-1481-MC, 1989 WL 83205, *2 (D. Mass. July 7, 1989)

(enforcing a cruise ship’s contractually shortened claim

limitations period incorporated by reference in its contract of

carriage).

Consequently, the six-month limitations period in Spirit’s

COC, which was properly incorporated by reference through

Spirit’s online “ticketless” booking system, applies to

plaintiff’s claims. The incident giving rise to plaintiff’s

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complaint occurred on a Spirit Airlines flight in April, 2017

but plaintiff did not file the instant lawsuit until December,

2018. Plaintiff’s complaint is, therefore, time barred.

Accordingly, Spirit’s motion to dismiss plaintiff’s complaint

will be allowed on time limitation grounds as well as

preemption.

ORDER

For the forgoing reasons, the motion of Spirit Airlines,

Inc. to dismiss Ms. Covino’s complaint (Docket Entry No. 7) is

ALLOWED.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated September 25, 2019

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