BROWN v. AMERICAN AIRLINES, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

AMANDA BROWN & TIFFANY NIXON : CIVIL ACTION

:

v. :

:

AMERICAN AIRLINES, INC. :

:

: NO. 23-2001

MEMORANDUM

Padova, J. March 15, 2024

Plaintiffs Amanda Brown and Tiffany Nixon initiated this action in the Court of Common

Pleas of Philadelphia County, asserting contract and tort claims under Pennsylvania law arising

out of their removal from a flight operated by Defendant American Airlines, Inc. Defendant

removed the case to this Court on the basis of diversity jurisdiction. Defendant now moves to

dismiss the Complaint for failure to state a claim upon which relief can be granted, and to strike

paragraphs 36 and 72 of the Complaint. For the reasons that follow, we grant the Motion to

Dismiss in part and deny it in part, and we deny Defendant’s request that we strike paragraphs 36

and 72.

I. FACTUAL BACKGROUND

The Complaint alleges the following facts. On March 30, 2021, Plaintiffs boarded a flight

from New Orleans to Philadelphia operated by Defendant. (Compl. ¶ 7.) As others were still

boarding, a flight attendant told Plaintiff Brown that she needed to place her purse on the floor.

(Id. ¶ 12.) Plaintiff Brown attempted to comply immediately but was delayed by the strap of her

purse becoming tangled with her seatbelt. (Id. ¶ 13.) The flight attendant, mistakenly believing

that Plaintiff Nixon had said something, asked her to repeat what she had said. (Id. ¶ 14.) Plaintiff

Nixon replied that she had not spoken, and the flight attendant left to speak with another flight

attendant, who returned and told Plaintiff Nixon to “be nice.” (Id. ¶¶ 15-16.)

Shortly thereafter, a large man approached Plaintiffs and insisted on escorting them from

the plane. (Id. ¶ 17.) Plaintiffs, who had been cooperative, polite, and nondisruptive, were

bewildered, but complied. (Id. ¶¶ 18, 21.) The entire incident was witnessed and video recorded

by a friend of the Plaintiffs, who was seated elsewhere on the plane. (Id. ¶ 22.) A large group of

Defendant’s employees, including the two flight attendants and eight pilots, stood in the jetway

and watched as Plaintiffs were removed from the plane. (Id. ¶ 23.) The crew then made several

announcements to the remaining passengers stating that everything was fine and there had been no

incident. (Id. ¶ 25.)

After they returned to the terminal, Plaintiffs requested the names of the flight attendants

and pilot, as well as an explanation for their removal from the flight, but received no answers. (Id.

¶¶ 19-20, 26-27.) Plaintiffs were rebooked onto the first flight to Philadelphia the next morning,

but that flight was less direct, and they received no assistance with securing overnight

accommodations. (Id. ¶¶ 28-29.) Plaintiffs had no means of transportation, and so were forced to

stay at a nearby motel, which was distressingly filthy and dilapidated. (Id. ¶¶ 30-32.) Plaintiff

Brown sought therapy following this hotel stay, due to symptoms of post-traumatic stress disorder,

which included poor sleep and nightmares. (Id. ¶ 33.) To date, the only explanation Defendant

gave Plaintiffs for this incident is that Plaintiffs refused to wear facemasks on the plane, which the

video shows was not the case. (Id. ¶¶ 34-35.) Plaintiffs are African American and all of

Defendants’ employees with whom they interacted are Caucasian, suggesting that racial animus

was a motive for their unwarranted treatment of Plaintiffs. (Id. ¶¶ 36, 72.)

The Complaint asserts seven claims for relief under Pennsylvania law. Count I is a breach

of contract claim. Count II is a claim for breach of the implied warranty of fitness for a particular

purpose. Count III is a claim for false imprisonment. Count IV is a claim for false light invasion

of privacy. Count V is a claim for assault. Count VI is a claim for intentional infliction of

emotional distress. Count VII is a claim for negligent infliction of emotional distress. Plaintiffs

seek damages in excess of $50,000 each, as well as attorney’s fees and costs. Plaintiffs do not

specifically demand punitive damages in the Complaint but assert in their response to the Motion

to Dismiss that their allegations support such damages.1

In the instant Motion, Defendant asks us to dismiss the Complaint in its entirety pursuant

to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be

granted. Defendant also asks, if we do not dismiss the Complaint in its entirety, that we strike

paragraphs 36 and 72 of the Complaint, which contain allegations of racial discrimination, as

irrelevant and scandalous pursuant to Federal Rule of Civil Procedure 12(f).

II. RULE 12(b)(6)

A. Legal Standard

When deciding a motion to dismiss pursuant to Rule 12(b)(6), we “consider only the

complaint, exhibits attached to the complaint, [and] matters of public record, as well as

undisputedly authentic documents if the complainant’s claims are based upon these documents.”

Alpizar-Fallas v. Favero, 908 F.3d 910, 914 (3d Cir. 2018) (quoting Mayer v. Belichick, 605 F.3d

223, 230 (3d Cir. 2010)). “We accept the factual allegations in the complaint as true and construe

them in the light most favorable to the plaintiff.” Shorter v. United States, 12 F.4th 366, 371 (3d

1 The Complaint does include a request for “[s]uch other relief as this Court may deem just

and proper,” which may be read to encompass punitive damages. (See Compl. at 13.)

Cir. 2021) (citing Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011)). However,

we “need not ‘accept as true a legal conclusion couched as a factual allegation.’” Host Int’l, Inc.

v. Marketplace PHL, LLC, 32 F.4th 242, 248 (3d Cir. 2022) (quoting Papasan v. Allain, 478 U.S.

265, 286 (1986)) (citation omitted).

A plaintiff’s pleading obligation is to set forth “a short and plain statement of the claim,”

which “give[s] the defendant fair notice of what the . . . claim is and the grounds upon which it

rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (first quoting Fed. R. Civ. P. 8(a)(2);

then quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) (second alteration in original)). The

complaint must allege “‘sufficient factual matter to show that the claim is facially plausible,’ thus

enabling ‘the court to draw the reasonable inference that the defendant is liable for [the]

misconduct alleged.’” Warren Gen. Hosp., 643 F.3d at 84 (quoting Fowler v. UPMC Shadyside,

578 F.3d 203, 210 (3d Cir. 2009)). “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). In the end, we

will grant a motion to dismiss pursuant to Rule 12(b)(6) if the factual allegations in the complaint

are not sufficient “to raise a right to relief above the speculative level.” Geness v. Admin. Off. of

Pa. Cts., 974 F.3d 263, 269 (3d Cir. 2020) (quoting Twombly, 550 U.S. at 555).

B. Discussion

1. Breach of Contract (Count I)

To state a claim for breach of contract, a complaint must plausibly allege: “(1) the existence

of a contract, including its essential terms, (2) a breach of the contract; and, (3) resultant damages.”

Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., 137

A.3d 1247, 1258 (Pa. 2016) (citing J.F. Walker Co., Inc. v. Excalibur Oil Grp., Inc., 792 A.2d

1269, 1272 (Pa. Super. Ct. 2002); see also Philidor RX Servs. LLC v. Polsinelli PC, No. 22-2836,

2023 WL 6290746, at *4 (3d Cir. Sep. 27, 2023) (same) (quoting Sullivan v. Chartwell Inv.

Partners, LP, 873 A.2d 710, 716 (Pa. Super. Ct. 2005)).

Defendant argues that we should grant the Motion to Dismiss as to Plaintiff’s breach of

contract claim because the Complaint does not allege the essential terms of the putative contract

or the manner in which it was breached. The Complaint alleges that “[t]he essential terms of the

contract between Plaintiffs and Defendant are found on Defendant’s official website . . . [at the]

Conditions of Carriage ‘The contract between you, the passenger, and us, American Airlines.’”

(Compl. ¶ 39; see also Pls’ Resp. Ex. A.) We may consider the Conditions of Carriage because

Plaintiffs’ breach of contract claim relies on this document and Defendant does not dispute its

authenticity. See Alpizar-Fallas, 908 F.3d at 914. Defendant allegedly breached the Conditions

of Carriage when its flight attendant told Plaintiff Nixon to “be nice” without cause, shortly before

a “large, Caucasian male” suddenly demanded Plaintiffs follow him off the plane. (Compl. ¶¶ 15-

17.) As a result of this breach, the Complaint alleges that Plaintiffs suffered “[s]ignificant

monetary and emotional damages.” (Id. ¶ 41; see also id. ¶¶ 28-33.)2

While the Conditions of Carriage may well constitute the contract at issue in this case, the

Complaint fails to allege the manner in which the conduct of Defendant’s employees breached

those Conditions or point to a specific provision which Defendant breached. Accordingly, we

conclude that the Complaint fails to allege facts which would permit us to draw a reasonable

2 Plaintiffs also rely on the demand letter they sent to Defendant on February 1, 2022 as

further describing the manner in which Defendant breached the contract. (See Compl. ¶ 42; see

also Pls’ Resp. Ex. B.) While the Complaint refers to this letter, it is not attached to the Complaint.

(See id.) However, we need not determine whether we can consider the February 1, 2022 letter in

the context of the instant Motion because the description in the letter of Defendant’s breach of

contract does not add any facts which are not already alleged in the Complaint.

inference that Defendants breached a duty imposed by the Conditions of Carriage, and therefore

fails to state a claim for breach of contract upon which relief can be granted. See Hua v. Wells

Fargo Bank, N.A., Civ. A. No. 17-2365, 2017 WL 5624878, at *6 (E.D. Pa. Nov. 22, 2017)

(dismissing breach of contract claim for failure to “plead the breach of a specific duty imposed by

a contract” (citing Guerra v. Redevelopment Auth. of City of Phila., 27 A.3d 1284, 1289 (Pa.

Super. Ct. 2011)); Philidor RX Servs. LLC v. Polsinelli PC, 552 F. Supp. 3d 506, 513-14 (E.D.

Pa. 2021) (“To properly allege a breach of contract, a party needs to point at a specific provision

of the document the counterparty breached.” (citations omitted)), aff’d, 2023 WL 6290746. We

therefore grant the Motion to Dismiss with respect to Plaintiffs’ breach of contract claim in Count

I of the Complaint.

Plaintiffs ask for leave to amend any claims we dismiss. “[I]f a complaint is vulnerable to

12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would

be inequitable or futile.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (citing

Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)). Because we cannot conclude

that amendment would be inequitable or futile with respect to Plaintiffs’ breach of contract claim,

we dismiss this Count without prejudice to permit Plaintiffs to more specifically allege how

Defendant’s conduct constituted a breach of the Conditions of Carriage. See Harris v. Saint

Joseph’s Univ., Civ. A. No. 13-3937, 2014 WL 1910242, at *3 (E.D. Pa. May 13, 2014)

(dismissing breach of contract claim without prejudice to permit plaintiff to specify which

provisions of the contract at issue were breached).

2. Breach of Implied Warranty of Fitness for a Particular Purpose (Count II)

To state a claim for breach of the implied warranty of fitness for a particular purpose, a

complaint must plausibly allege that “the seller at the time of contracting ha[d] reason to know:

(1) any particular purpose for which the goods [were] required; and (2) that the buyer [was] relying

on the skill or judgment of the seller to select or furnish suitable goods.” Petka v. Samsung Elecs.

Am., Inc., --- F. Supp. 3d ---, Civ. A. No. 22-2284, 2023 WL 8527563, at *5 (E.D. Pa. Dec. 8,

2023) (quoting 13 Pa. Cons. Stat. Ann. § 2315); see also Gall ex rel Gall v. Allegheny Cnty. Health

Dep’t, 555 A.2d 786, 790 (Pa. 1989) (quoting 13 Pa. Cons. Stat. Ann. § 2315). The warranty

applies only in situations involving “transactions in goods” defined as “things . . . which are

movable at the time of identification to the contract for sale.” Whitmer v. Bell Tel. Co. of

Pennsylvania, 522 A.2d 584, 587 (Pa. Super. Ct. 1987) (alteration in original) (quoting 13 Pa.

Cons. Stat. Ann. §§ 2102, 2105). In other words, the “putative good . . . must be tangible and

movable.” Id. (citations omitted); see also Rossetti v. Busch Ent. Corp., 87 F. Supp. 2d 415, 417-

18 (E.D. Pa. 2000) (“To constitute a transaction of goods, however, ‘the subject matter of the

transaction—the putative good—must be tangible and movable.’” (quoting Dantzler v. S.P. Parks,

Inc., Civ. A. No. 87-4434, 1988 WL 131428, at *5 (E.D. Pa. Dec. 6, 1988))). If a contract involves

both goods and services, we must consider the “purpose or essence of the contract” to determine

whether goods or services are predominant, and thus whether provisions like the implied warranty

of fitness for a particular purpose apply. See Power Restoration Int’l, Inc. v. PepsiCo, Inc., Civ.

A. No. 12-1922, 2015 WL 1208128, at *10 (E.D. Pa. Mar. 17, 2015) (quoting Advent Sys. Ltd. v.

Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991)).

Defendant argues that Plaintiffs’ claim of breach of the implied warranty of fitness for a

particular purpose must be dismissed because the instant matter does not involve a transaction in

goods, but rather a transaction for a service, namely air transportation. Plaintiffs do not dispute

that the implied warranty of fitness for a particular purpose applies only to tangible goods, but

assert that the Contract of Carriage itself is the good for which Plaintiffs transacted. The

Complaint, however, does not support this contention.

The Complaint alleges that Plaintiffs purchased tickets from Defendant for American

Airlines flight 5089 from New Orleans, LA to Philadelphia, PA. (Compl. ¶ 7.) The Compliant

does not allege that the object purchased by Plaintiffs from Defendant was the Contract of

Carriage, but only that the Contract of Carriage contains the essential terms of the contract between

Plaintiffs and Defendant. (Id. ¶ 39.) We can only conclude that the “purpose or essence” of

Plaintiffs’ transaction with Defendant was to purchase tickets for air transportation, not to obtain

the Contract of Carriage. Because transportation is not a tangible thing that is movable, it is not a

good. Cf. Whitmer, 522 A.2d at 587 (holding that transmission of communication by telephone

company constituted a service, not a good); Rossetti, 87 F. Supp. 2d at 418 (“[T]he purchase of an

admission ticket to an amusement park that enables a patron to ride attractions does not constitute

a ‘good’ pursuant to the UCC.”) (citation omitted).; Huzinec v. Six Flags Great Adventure, LLC,

Civ. A. No. 16-2754, 2017 WL 44850, at *5 (D.N.J. Jan. 3, 2017) (applying New Jersey’s version

of the UCC and Rossetti to conclude that “the admissions ticket [purchased by the plaintiff] simply

memorialized, in writing, Plaintiff’s right to enter the amusement park . . . and partake in other

activities; those rights are what Plaintiff purchased”). We conclude, based on this authority, that

neither the tickets purchased by Plaintiffs nor the Contract of Carriage constitute a “good” pursuant

to Pennsylvania’s UCC and, therefore, that the implied warranty of fitness for a particular purpose

does not apply. Accordingly, we grant the Motion to Dismiss with respect to Plaintiffs’ claim for

breach of the implied warranty of fitness for a particular purpose in Count II of the Complaint. As

this case does not involve a transaction in goods, we conclude that any attempt to amend this claim

would be futile, and we therefore dismiss this claim with prejudice. See Phillips, 515 F.3d at 236

(citation omitted); Smiley v. Daimler Chrysler, 538 F. Supp. 2d 711, 715 (D. Del. 2008) (“The

court has discretion to deny leave to amend when . . . amendment would be futile.”) (citing Foman

v. Davis, 371 U.S. 178, 182 (1962); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434

(3d Cir.1997)).

3. False Imprisonment (Count III)

To state a facially plausible claim for false imprisonment under Pennsylvania law, a

Complaint must allege facts that would establish that Plaintiffs: “(1) had been detained; and (2)

the detention was unlawful.” Gwynn v. City of Philadelphia, 719 F.3d 295, 304 n.4 (3d Cir. 2013)

(citing Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994)). “In addition to unlawful activity,

Pennsylvania law requires (1) acts intending to confine another within boundaries fixed by another

which (2) directly or indirectly result in such confinement (3) of which the plaintiff is conscious

or by which the plaintiff is harmed.” Regan v. Upper Darby Twp., 363 F. App’x 917, 922 (3d Cir.

2010) (quoting Chicarelli v. Plymouth Garden Apartments, 551 F. Supp. 532, 540-41 (E.D. Pa.

1982)). Where confinement is not accomplished by “physical force or physical barriers,” the

“mere belief that one is confined” is not enough, and “plaintiff must make some attempt to

determine whether s/he is actually confined.” Pope v. Rostraver Shop ‘N Save, 389 F. App’x 151,

153 (3d Cir. 2010) (citing Caswell v. BJ’s Wholesale Co., 5 F. Supp. 2d 312, 319 (E.D. Pa. 1998).

Defendant argues that the Complaint alleges no facts that would establish that Defendant

intended to or actually did confine or detain Plaintiffs in any way. While the Complaint makes the

conclusory allegation that Defendant confined Plaintiffs “to a state, airport, and local city,”

(Compl. ¶ 52), it alleges no facts in support of this assertion. The Complaint does not allege that

Defendant employed physical force, barriers, or threats, or indeed took any action to prevent

Plaintiffs from leaving the airport, the city, or the state. Moreover, the Complaint does not allege

that Plaintiffs asked to leave or even that they believed they could not leave. To the contrary, the

Complaint alleges that Plaintiffs were able to freely travel to a nearby motel to stay overnight. The

allegation that Defendant prevented Plaintiffs from departing on their original flight does not

establish that it detained or confined them. Cf. Vargas v. City of Philadelphia, Civ. A. No. 11-

2639, 2013 WL 6077160, at *15 (E.D. Pa. Nov. 18, 2013) (concluding that a Plaintiff who was

prevented from accessing a certain area, but who was free to go anywhere else, was not subjected

to false imprisonment), aff’d, 783 F.3d 962 (3d Cir. 2015). Because the Complaint fails to

plausibly allege facts that would establish that Plaintiffs were falsely imprisoned, we grant the

Motion to Dismiss with respect to Count III of the Complaint. As there is no basis to conclude

that a curative amendment would be “inequitable or futile,” Phillips, 515 F.3d at 236 (citation

omitted), we dismiss this claim without prejudice.

4. False Light Invasion of Privacy (Count IV)

To state a claim for false light invasion of privacy (“false light”) under Pennsylvania law,

a complaint must plausibly allege that the defendant publicized information concerning the

plaintiff which “is not true, is highly offensive to a reasonable person, and is publicized with

knowledge or in reckless disregard of its falsity.” Graboff v. Colleran Firm, 744 F.3d 128, 136

(3d Cir. 2014) (quoting Larsen v. Phila. Newspapers, Inc., 543 A.2d 1181, 1188 (Pa. Super. Ct.

1988)) (citation omitted). To be “publicized,” the information must be communicated “to the

public at large, or to so many persons that the matter must be regarded as substantially certain to

become one of public knowledge.” Doe v. Hosp. of Univ. of Pennsylvania, 546 F. Supp. 3d 336,

353 (E.D. Pa. 2021) (quoting Harris by Harris v. Easton Pub. Co., 483 A.2d 1377, 1384 (Pa. Super.

Ct. 1984)). Moreover, the communication must involve “a major misrepresentation of [plaintiff’s]

character, history, activities, or beliefs” which would cause a reasonable person to take “serious

offense.” Krajewski v. Gusoff, 53 A.3d 793, 807 (Pa. Super. Ct. 2012) (quoting Restatement

(Second) of Torts § 652E cmt. c).

Defendant argues that we should dismiss Plaintiffs’ false light claim because the Complaint

does not plausibly allege that Defendant communicated any highly offensive misrepresentations

concerning Plaintiffs. The Complaint does allege that Defendant “falsely and deliberately made

derogatory claims that Plaintiffs were removed from the aircraft for failure to wear face masks.”

(Compl. ¶ 58.) But it does not allege facts in support of its conclusory statement that such claims

were “published” to the other passengers after Plaintiffs’ removal. (Id. ¶ 60.) Indeed, the

Complaint does not allege that Defendant’s employees made any communication about mask

wearing or any other reason for Plaintiffs’ removal to the other passengers on the plane. Rather,

the only statements Defendant’s employees are alleged to have made after Plaintiffs disembarked

are the announcements that “everything was ‘fine’ and there was ‘nothing to worry about’” and

that “there had been [no] ‘incident’ on the plane.” (Id. ¶ 25.) We cannot conclude that these

generic statements constituted highly offensive misrepresentations about Plaintiffs or implied

anything about Plaintiffs’ mask wearing. Moreover, the Complaint does not otherwise allege that

Defendant publicized a misrepresentation about Plaintiffs by communicating it “to the public at

large, or to so many persons that the matter must be regarded as substantially certain to become

one of public knowledge.” Doe, 546 F. Supp. 3d at 353. Instead, it repeatedly alleges that

Defendant offered no explanation for Plaintiffs’ removal at the time of the incident, (Compl. ¶¶ 18,

20, 26-27), only later providing the improper masking explanation, and only “to Plaintiffs,” (id.

¶ 34.) Accordingly, we conclude that the Complaint fails to allege sufficient facts to state a facially

plausible false light claim. As there is no basis to conclude that a curative amendment would be

“inequitable or futile,” Phillips, 515 F.3d at 236 (citation omitted), we dismiss this claim without

prejudice.

5. Assault (Count V)

To state a claim for civil assault under Pennsylvania law, a complaint must plausibly allege

that the defendant (1) committed “an act intended to put [the plaintiff] in reasonable apprehension

of an immediate [harmful or offensive contact]” and (2) “succeed[ed] in causing an apprehension

of such [contact].” Martin-McFarlane v. City of Philadelphia, 299 F. Supp. 3d 658, 670 (E.D. Pa.

2017) (quoting Regan, 363 F. App’x at 921); see also Cucinotti v. Ortmann, 159 A.2d 216, 217

(Pa. 1960). Assault requires affirmative action— “[w]ords in themselves, no matter how

threatening, do not constitute an assault.” Regan, 363 F. App’x at 921 (quoting Cucinotti, 159

A.2d at 217); see also Bohnenkamp v. Whisterbarth, Civ. A. No. 19-115, 2021 WL 1600477, at

*9 (W.D. Pa. Apr. 23, 2021) (quoting Napier v. City of New Castle, Civ. A. No. 06-1368, 2007

WL 1965296, at *8 (W.D. Pa. July 3, 2007), aff’d, 407 Fed. App’x. 578 (3d Cir. 2010)) (citation

omitted).

Defendant argues that Plaintiffs’ assault claim must be dismissed because the Complaint

does not allege that Defendant’s employees threatened or touched Plaintiffs. The Complaint

alleges that Plaintiffs “were deliberately placed in fear of imminent serious bodily harm by the

sheer number and size of Defendant’s employees present to request [that they] disembark from the

aircraft.” (Compl. ¶ 65.) It alleges that during the events in question Plaintiffs “followed all flight

crew directives, remained quiet and respectful, wore double facial masks throughout their brief

time on the aircraft, and were never disruptive or loud.” (Compl. ¶ 21). Despite this, Defendant’s

employees allegedly addressed them “coarsely” and told them to “be nice” without cause, and

immediately thereafter a “large, Caucasian male” approached them and “demanded” that they

follow him off of the plane.3 (Id. ¶¶ 12, 16-17.) As they complied, they were led past “a large

group” of ten of Defendant’s employees in the jet bridge, including the two flight attendants

involved in the onboard incident. (Id. ¶ 23.) The Complaint also alleges that all of the employees

involved were Caucasian, while Plaintiffs are African American, and suggests that the employees’

conduct was motivated by racial animus. (Id. ¶ 36.) Finally, the Complaint alleges that Plaintiffs

were traumatized by this incident and that Plaintiff Brown has suffered from Post Traumatic Stress

Disorder as a result of this incident and her subsequent motel stay and has required therapy. (Id.

¶¶ 33-34.) Construing them “in the light most favorable to [Plaintiffs],” Shorter, 12 F.4th at 371

(citation omitted), these allegations of sudden and unwarranted behavior by Defendant’s

employees support Plaintiffs’ claim that Defendant intended to place Plaintiffs “in reasonable

apprehension of an immediate [harmful or offensive contact],” Martin-McFarlane, 299 F. Supp. 3d

at 670 (quotations omitted) (emphasis added). Similarly, we conclude that Plaintiffs have alleged

facts showing that they were in fact placed in apprehension of such contact based on the alleged

racial dynamic and resultant trauma. We therefore conclude that the Complaint states a facially

plausible claim for assault and we deny Defendant’s Motion to Dismiss with respect to Count V.

6. Intentional Infliction of Emotional Distress (Count VI)

To state a claim for intentional infliction of emotional distress (“IIED”) under Pennsylvania

law, a complaint must plausibly allege that: (1) Defendant engaged in “extreme and outrageous”

conduct, (2) the conduct was “intentional or reckless,” (3) the conduct caused emotional distress,

and (4) the distress was “severe.” Jordan v. Pennsylvania State Univ., 276 A.3d 751, 775 (Pa.

3 Defendant correctly notes that the Complaint never specifies who the individual who

removed Plaintiffs was or that he was an employee of Defendant’s. Nevertheless, construing it in

the light most favorable to Plaintiffs, we conclude that the Complaint plausibly alleges that this

individual was an agent of Defendant based on the alleged circumstances and behavior of the crew

and passengers.

Super. Ct. 2022) (citing Madreperla v. Williard Co., 606 F. Supp. 874, 879-80 (E.D. Pa. 1985)).

“The conduct must be ‘so outrageous in character and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community.’” Id. (quoting Rinehimer v. Luzerne Cty. Cmty. Coll., 539 A.2d 1298, 1305 (Pa.

Super. Ct. 1988); Restatement (Second) of Torts § 46 cmt. d). A complaint must also allege that

the plaintiff suffered physical harm as a result of the conduct. N’Jai v. Pittsburgh Bd. of Pub.

Educ., 487 F. App’x 735, 737 (3d Cir. 2012) (quoting Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa.

Super. Ct. 2005)) (citing Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir. 2010)). Physical harm can

include “physical manifestations of emotional suffering” such as “depression, nightmares, stress

and anxiety” which are ongoing and require psychological treatment. Love v. Cramer, 606 A.2d

1175, 1179 (Pa. Super. Ct. 1992).

Defendant argues that Plaintiffs’ IIED claim must be dismissed because the alleged

conduct is not sufficiently extreme or outrageous. We agree that the allegations in the Complaint

fall short of the outrageousness required to state a claim for IIED, which in Pennsylvania has been

“reserved by the courts for only the most clearly desperate and ultra extreme conduct.” Hoy v.

Angelone, 720 A.2d 745, 754 (Pa. 1998). Even though the Complaint alleges that racial animus

was an element of Defendant’s treatment of Plaintiffs, “‘[c]ourts in this District have repeatedly

found that racial discrimination alone does not meet the “extreme and outrageous conduct”

standard necessary to state a claim for intentional infliction of emotional distress.’” Stokley v.

Bristol Borough Sch. Dist., Civ. A. No. 13-3277, 2013 WL 4787297, at *3 (E.D. Pa. Sept. 9, 2013)

(quoting Hargraves v. City of Philadelphia, Civ. A. No. 05-4759, 2007 WL 1276937, at *3 (E.D.

Pa. Apr. 26, 2007)); see also Lane v. Cole, 88 F. Supp. 2d 402, 406 (E.D. Pa. 2000) (“Invidious

discrimination is not alone sufficient to support an intentional infliction of emotional distress

claim.” (collecting cases)); Cortese v. W. Jefferson Hills Sch. Dist., No. 53 C.D. 2008, 2008 WL

9404638, at *7 (Pa. Commw. Ct. Dec. 9, 2008) (“[I]t has been held that even ‘highly provocative

racial slurs and other discriminatory incidents do not amount to actionable outrageous conduct.”

(quoting EEOC v. Chestnut Hill Hospital, 874 F. Supp. 92, 96 (E.D. Pa. 1995))). This is because

the character of the conduct, not merely the motive, must be sufficiently outrageous. See Stokley,

2013 WL 4787297, at *3 (citing Forbes v. Rhode Island Bhd. of Corr. Officers, 923 F. Supp. 315,

330 (D.R.I. 1996)). Setting aside the alleged discriminatory motive, we cannot conclude that

Defendant’s conduct in removing Plaintiffs from their flight and rebooking them the next day

without offering them overnight accommodations is sufficiently “desperate or ultra extreme” to

sustain Plaintiffs’ IIED claim. Hoy, 720 A.2d at 754; cf. Jeanjacques v. AMC Ent. Holdings, Inc.,

Civ. A. No. 21-3670, 2021 WL 4478665, at *5-6 (E.D. Pa. Sept. 30, 2021) (dismissing IIED claim

based on allegations of employee making racially charged comments and accusations while having

African American customers removed from theater). Accordingly, we grant the Motion to Dismiss

with respect to Plaintiffs’ IIED claim in Count VI of the Complaint. As there is no basis to

conclude that a curative amendment would be “inequitable or futile,” Phillips, 515 F.3d at 236

(citation omitted), we dismiss this claim without prejudice.

7. Federal Preemption

Defendant also argues that we should dismiss all of Plaintiffs’ claims because they are

preempted by federal law. As we denied the Motion to Dismiss with respect to Plaintiffs’ assault

claim, and as Defendant does not argue for dismissal of the negligent infliction of emotional

distress claim except on preemption grounds, we now address preemption as to those two claims.

“It is a familiar and well-established principle that the Supremacy Clause, U.S. Const., Art.

VI, cl. 2, invalidates state laws that ‘interfere with, or are contrary to,’ federal law.” Hillsborough

Cnty., Fla. v. Automated Med. Lab’ys, Inc., 471 U.S. 707, 712 (1985) (quoting Gibbons v. Ogden,

6 L. Ed. 23 (1824)). “‘[T]he purpose of Congress is the ultimate touchstone’ of pre-emption

analysis” and courts apply a “presumption that Congress does not intend to supplant state law.”

Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 366-67 (3d Cir. 1999) (first quoting Cipollone v.

Liggett Group, Inc., 505 U.S. 504, 516 (1992); and then quoting New York State Conf. of Blue

Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 (1995)). In Abdullah, the

Court of Appeals for the Third Circuit considered whether the Federal Aviation Act, 49 U.S.C.

§ 40101 et seq., preempted state law in the field of aviation safety. 181 F.3d at 364. The court

first held that “the FAA and relevant federal regulations establish complete and thorough safety

standards for interstate and international air transportation that are not subject to supplementation

by, or variation among, jurisdictions.” Id. at 367. Accordingly, “the standard applied in

determining if there has been careless or reckless operation of an aircraft, should be federal[.]” Id.

at 372. Nonetheless, the court concluded that “we cannot infer from Congress’s intent to federally

preempt the standards of care, that Congress also intended to bar state and territorial tort remedies.”

Id. at 376 (citation omitted). Thus, state tort remedies “continue to exist for violation of [federal

aviation safety] standards.” Id. at 375.

“Preemption is an affirmative defense on which [the defendant] bears the burden of

production and persuasion.” Sikkelee v. Precision Airmotive Corp., 907 F.3d 701, 708 (3d Cir.

2018) (citing In re Vehicle Carrier Servs. Antitrust Litig., 846 F.3d 71, 84 (3d Cir. 2017); El v. Se.

Pa. Transp. Auth., 479 F.3d 232, 237 & n.6 (3d Cir. 2007)). Here, Defendant makes no argument

as to the preemption of specific claims, but simply argues generally that all of Plaintiffs’ claims

are preempted because they “directly deal with, arise from, and relate to noncompliance with

onboard mask and luggage mandates, which incontrovertibly implicate the field of aviation

safety.” (Def. Mot. Br. at 28 (citation omitted).) Defendant particularly relies on the allegations

that Plaintiff Brown was instructed to place her purse onto the floor but struggled to do so, as well

as the allegation that, at some point after the incident occurred, Defendant attributed it to Plaintiffs’

failure to wear face masks. (See Compl. ¶¶ 12-13, 34.)

Contrary to Defendant’s assertion, the Complaint contains no allegations of noncompliance

with mask or luggage mandates, nor any allegations that the crew members involved believed there

had been any such noncompliance. Rather, the Complaint affirmatively alleges that Plaintiffs

“followed all flight crew directives, remained quiet and respectful, wore double facial

masks throughout their brief time on the aircraft, and were never disruptive or loud.” (Id. ¶ 21).

Regarding luggage mandates, the Complaint alleges only that Plaintiff Brown struggled to

“immediately comply” with the flight attendant’s instruction to place her purse on the floor. (Id.

¶ 13 (emphasis added).) It also alleges that Plaintiffs were generally fully compliant, that the flight

attendant immediately shifted her attention to Plaintiff Nixon following that single instruction, and

that none of Defendant’s employees made any further mention of the purse. Particularly viewed

in the light most favorable to Plaintiffs, we cannot agree that these allegations suggest

noncompliance. Similarly, the allegation that, at some point after Plaintiffs were removed from

the aircraft, rebooked onto a flight leaving the next day, and spent the night in a dilapidated motel,

Defendant blamed the incident on Plaintiffs’ failure to wear face masks does not contravene the

Complaint’s express allegation that they wore face masks throughout the incident. (See id. ¶ 21.)

Moreover, as explained above, the Third Circuit in Abdullah held “only that the standard

of care used in adjudicating [common law negligence] claims was preempted.” Elassaad v. Indep.

Air, Inc., 613 F.3d 119, 125 (3d Cir. 2010). Thus, Abdullah does not support Defendant’s

preemption argument as to Plaintiffs’ intentional tort claim of assault. See Press v. United Airlines,

Inc., Civ. A. No. 11-2265, 2012 WL 1569786, at *5 (M.D. Pa. May 3, 2012) (“The FAA does not

establish uniform standards for intentional torts . . . and there is no indication that Congress

intended as much.”). Furthermore, even negligence claims, such as Plaintiffs’ negligent infliction

of emotional distress claim, are not automatically preempted under Abdullah. Only the standard

of care is preempted—supplanted by federal safety standards—while state law “still govern[s] the

other negligence elements (breach, causation, and damages), as well as the choice and availability

of remedies.” Elassaad, 613 F.3d at 125; see also Abdullah, 181 F.3d at 376 (“[W]e find that state

and territorial tort remedies can coexist with federal standards of care for air safety[.]”). As

Defendant makes no argument that the Complaint fails to state a claim for negligent infliction of

emotional distress under any standard of care, we cannot conclude that Plaintiffs’ negligent

infliction of emotional distress claim is preempted under Abdullah. Accordingly, we hold that

Defendant has not met its burden to prove that Plaintiffs’ claims for assault and negligent infliction

of emotional distress are preempted by the Federal Aviation Act, and we deny the Motion to

Dismiss those claims on preemption grounds.

8. Punitive Damages

Under Pennsylvania law, “[p]unitive damages may be awarded for conduct that is

outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of

others.” Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 770 (Pa. 2005) (quotation and

citation omitted). Only conduct that is “intentional, willful, wanton or reckless” will justify an

award of punitive damages. Phillips v. Cricket Lighters, 883 A.2d 439, 445 (Pa. 2005) (quoting

SHV Coal, Inc. v. Continental Grain Co., 587 A.2d 702, 704 (Pa. 1991)). “[P]unitive damages are

an ‘extreme remedy’ available in only the most exceptional matters.” Id. (quotations omitted).

While the Complaint does not assert a specific request for punitive damages, Defendant

argues that we should dismiss any possible claim to punitive damages because the Complaint fails

to allege that Defendant had an evil motive or committed outrageous conduct.4

As we have previously recounted, the Complaint alleges that although Plaintiffs were

respectful and compliant, Defendant’s employees addressed them “coarsely” and told them to “be

nice” without cause, and that immediately thereafter a “large, Caucasian male” approached

Plaintiffs and abruptly “demanded” that they follow him off of the plane. (Compl. ¶¶ 12, 16-17.)

After being led past a large group of Defendant’s employees standing on the jetway, Plaintiffs

were rebooked on a less-direct flight the next day and offered no assistance with overnight

accommodations or other compensation. The Complaint alleges that this mistreatment was

motivated by racial animus. These allegations of outrageous conduct and “evil motive,” if proven,

could support an award of punitive damages. Hutchison, 870 A.2d at 770 (quotations and citations

omitted).5 Accordingly, we hold that the Complaint plausibly alleges conduct which could support

an award of punitive damages and we deny the Motion to Dismiss to the extent Plaintiffs seek such

damages.

4 Notwithstanding their failure to specifically request punitive damages in the Complaint,

Plaintiffs maintain in their response to the instant Motion that the Complaint’s allegations that they

endured unjustified and racially motivated mistreatment support an award of punitive damages.

5 This is not inconsistent with our earlier conclusion that Plaintiffs’ allegations are not

sufficiently outrageous to state a claim for IIED. Under Pennsylvania law, the outrageousness

standard for IIED is higher than that required for punitive damages. See Hoy, 720 A.2d at 754

(explaining that “a degree of aggravation that would entitle the plaintiff to punitive damages” can

be insufficient to support a claim for IIED (quoting Restatement (Second) of Torts § 46 cmt. d;

Daughen v. Fox, 539 A.2d 858, 861 (Pa. Super. Ct. 1988))).

III. RULE 12(f)

As we have not dismissed the Complaint in its entirety, we now address Defendant’s

request that we strike paragraphs 36 and 72 of the Complaint, which contain allegations of racial

discrimination, as irrelevant and scandalous pursuant to Federal Rule of Civil Procedure 12(f).

Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or

any redundant, immaterial, impertinent, or scandalous matter.” “‘The standard for striking under

Rule 12(f) is strict and . . . only allegations that are so unrelated to plaintiffs’ claims as to be

unworthy of any consideration should be stricken.’” Zucal v. Cnty. of Lehigh, Civ. A. No. 21-

4598, 2023 WL 3997963, at *13 (E.D. Pa. June 14, 2023) (alteration in original) (quoting Johnson

v. Anhorn, 334 F. Supp. 2d 802, 809 (E.D. Pa. 2004)); see also Ford-Greene v. NHS, Inc., 106 F.

Supp. 3d 590, 615 (E.D. Pa. 2015) (same) (quoting Steak Umm Co., LLC v. Steak ‘Em Up, Inc.,

Civ. A. No. 09-2857, 2009 WL 3540786, at *2 (E.D. Pa. Oct. 29, 2009)). Consequently,

“[m]otions to strike are generally disfavored by courts and will be denied unless the allegations

‘have no possible relation to the controversy and may cause prejudice to one of the parties, or if

the allegations confuse the issues in the case.’” Mitchell v. Cmty. Educ. Centers, Inc., Civ. A. No.

14-5026, 2015 WL 4770652, at *11 (E.D. Pa. Aug. 11, 2015) (quoting Natale v. Winthrop Res.

Corp., Civ. A. No. 07-4686, 2008 WL 2758238, at *14 (E.D. Pa. July 9, 2008)).

Paragraph 36 of the Complaint alleges that:

Given the lack of any plausible explanation for American Airlines’ employees’

behavior, the fact that Mses. Brown and Nixon are African-American while all

other individuals who interacted with Plaintiffs during this incident were

Caucasian, the likelihood of American Airlines’ employees engaging in racial

profiling and racial animus, which violates state and federal anti-discrimination

law, is extremely likely.

(Compl. ¶ 36.) Paragraph 72 similarly alleges that: “[g]iven the lack of any reasonable explanation

for Defendant’s outrageous and harmful conduct, racial animus remains a significant element in

Defendant’s actions.” (Id. ¶ 72.) Defendant argues that these allegations should be stricken

because Plaintiffs have not asserted a claim for discrimination and do not allege that Defendant

referenced or considered their ethnicity during the events in question. They further argue that

these allegations are highly prejudicial and would confuse jurors, given the lack of a discrimination

claim.

Defendant’s argument that the Complaint does not allege that its employees considered

Plaintiffs’ ethnicity during the events in question is simply wrong. The Complaint makes such

allegations in the very paragraphs that Defendant seeks to strike. Moreover, these allegations of

racial animus are relevant to the reasonable apprehension element of Plaintiffs’ assault claim and

essential to their claim for punitive damages. These allegations are also material to our analysis

of Defendant’s preemption defense, which turns on whether Plaintiffs’ claims are sufficiently

related to aviation safety to be preempted by the FAA. For these reasons, we cannot conclude that

the challenged allegations “have no possible relation to the controversy.” Mitchell, 2015 WL

4770652, at *11 (quotation omitted). Accordingly, we deny the instant Motion with respect to

Defendant’s request that we strike paragraphs 36 and 72 of the Complaint.

IV. CONCLUSION

For the foregoing reasons, we grant Defendant’s Motion to Dismiss in part and deny it in

part. We grant the Motion with respect to Plaintiffs’ claim for breach of the implied warranty of

fitness for a particular purpose in Count II and we dismiss Count II with prejudice. We also grant

the Motion without prejudice with respect to Plaintiffs’ claims for breach of contract (Count I),

false imprisonment (Count III), false light invasion of privacy (Count IV), and intentional infliction

of emotional distress (Count VI) and grant Plaintiffs leave to file an amended complaint that

corrects the deficiencies noted above with respect to those Counts. We deny the Motion to Dismiss

with respect to Plaintiffs’ claims for assault (Count V) and negligent infliction of emotional

distress (Count VII) and with respect to Plaintiffs’ implied request for punitive damages. We also

deny Defendant’s request that we strike paragraphs 36 and 72 of the Complaint. An appropriate

Order follows.

BY THE COURT:

/s/ John R. Padova, J.

______________________

John R. Padova, J.