WRIGHT-PHILLIPS v. UNITED AIRLINES, INC.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

LEANNE WRIGHT-PHILLIPS,

Plaintiff,

Civ. No. 20-14609 (KM) (ESK)

v.

OPINION

UNITED AIRLINES, INC., MADISON

ROE #1, and JOHN DOE #1,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Leanne Wright-Phillips suffered an anxiety attack while aboard a United

Airlines flight, but the flight attendant refused to supply her with requested

oxygen. Then, when the plane landed in Newark, United employees had the

New Jersey Port Authority Police detain and question Wright-Phillips for

causing a disruption. Wright-Phillips alleges that this was all motivated by her

race (she identifies herself as Black), so she brings civil-rights and tort claims

against United, the unidentified flight attendant (“Madison Roe”), and the

unidentified pilot (“John Doe”). United moves to dismiss the complaint for

failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). (DE 20.)1 For the

following reasons, the motion is GRANTED IN PART and DENIED IN PART.

1 Certain citations to the record are abbreviated as follows:

DE = docket entry

Am. Compl. = Amended Complaint (DE 19)

Mot. = United’s Brief in Support of its Motion to Dismiss (DE 21)

Opp. = Wright-Phillips’ Opposition to United’s Motion to Dismiss (DE 23)

Reply = United’s Reply Brief (DE 24)

I. BACKGROUND

A. Facts

Wright-Phillips frequently flies with United. (Am. Compl. ¶ 18.) Like other

flyers, she occasionally suffers from anxiety during air travel. (Id. ¶ 19.)

Medication usually keeps her anxiety at bay, but sometimes she has trouble

breathing and asks for supplemental oxygen. (Id. ¶ 22.) Flight crews keep

supplemental oxygen on board, and she had never had any problem requesting

and receiving it. (Id. ¶¶ 22–27.)

Wright-Phillips flew on a United flight from Los Angeles to Newark. (Id.

¶ 28.) Turbulence triggered her anxiety, and she began to struggle to breathe,

although she had taken medication. (Id. ¶ 32.) She rang for a flight attendant,

and Roe, a flight attendant who appeared racially white, came to her seat. (Id.

¶¶ 33–35.) She told Roe, “I suffer with anxiety on flights at times and I know

how it starts, I am struggling to breathe.” She asked Roe for supplemental

oxygen. (Id. ¶ 37.)

Roe became irritated, questioned Wright-Phillips about her anxiety, and

then told her that “medical clearance” was necessary to give her oxygen. (Id.

¶¶ 38–39.) Wright-Phillips had never heard of this requirement, and had

receiving oxygen on previous flights without incident. (Id. ¶ 39.) Roe left Wright-

Phillips’s seat location, and when she did not return for six minutes, Wright-

Phillips rang for her again. (Id. ¶¶ 41–43.)

When Roe returned, Wright-Phillips asked if medical clearance had been

obtained and said that her anxiety was building, so that she needed oxygen

right away. (Id. ¶ 46.) Roe responded, “I told you I needed to get medical

clearance,” in a raised voice. (Id. ¶ 47.) Wright-Phillips asked Roe if she had

tried getting medical clearance, but Roe would not answer. (Id. ¶¶ 49–50.)

Roe left again but returned a few minutes later with other attendants.

(Id. ¶¶ 51–52.) Wright-Phillips told the attendants that she had asked for

oxygen. (Id. ¶ 55.) Roe loudly stated, “I can’t just give you oxygen, I need

medical clearance, I told you this.” (Id. ¶ 57.) Wright-Phillips responded, “but

you are not getting medical clearance, it has been over 15 minutes. Please I

just need some air.” (Id. ¶ 58.) Roe and the other attendants left. (Id. ¶ 59.)

Given the time that had elapsed, Wright-Phillips thought she was having

a panic attack. (Id. ¶ 60.) Then Roe asked, over the announcement system,

whether there was a doctor on board. (Id. ¶ 61.) This confirmed to Wright-

Phillips that Roe had not yet previously attempted to get medical clearance, so

Wright-Phillips took additional medication. (Id. ¶¶ 62–63.)

Crew members then approached Wright-Phillips with a passenger who

was a doctor; Roe was holding an oxygen tank. (Id. ¶ 64.) Wright-Phillips told

the doctor about her anxiety and that she had just taken more medication. (Id.

¶ 65.) The doctor “responded appropriately” and asked her questions. (Id.

¶¶ 66–67.) The doctor said “excuse me” to stop Roe from speaking over him. He

told Wright-Phillips that she should be fine, but not to drive home. (Id. ¶ 68.)

Wright-Phillips then asked Roe to leave her alone for the rest of the flight

because Roe had upset her. Roe responded in a raised voice, “Don’t you dare

speak to me like that, and if you don’t stop I will de-board the plane.” (Id. ¶ 71.)

Roe then approached a white passenger, knelt down, put her hand on the

passenger’s forearm, and asked, “Are you okay after that?” (Id. ¶ 74.) Later,

during beverage service, Roe only served a white passenger in Wright-Phillips’

row; Wright-Phillips was served by a Black attendant. (Id. ¶¶ 82–84.)

When the flight landed at Newark Airport, passengers were asked to

remain seated. (Id. ¶ 86.) The New Jersey Port Authority Police (“PA Police”)

came aboard and escorted Wright-Phillips off the plane. (Id. ¶ 87.) An officer

told her that the flight crew had reported her as a “disturbance.” (Id. ¶ 91.)

Near the gate, in public view, the PA Police detained and questioned

Wright-Phillips. (Id. ¶ 100.) At one point, a white passenger came up and told

the officers that there was no reason for Wright-Phillips to be detained. (Id.

¶ 101.) She was released without charge. (Id. ¶ 102.) Nonetheless, this ordeal

has led to exacerbated anxiety, a diagnosis of panic disorder, panic attacks,

and difficulties in her day-to-day ability to function. (Id. ¶¶ 207–12.)

B. Procedural History

Wright-Phillips sued United, Roe, and Doe (the pilot), alleging the

following claims: (1) discrimination in air transportation, in violation of 49

U.S.C. § 40127; (2) discrimination in places of public accommodation, in

violation of 42 U.S.C. § 2000a; (3) deprivation of civil rights, in violation of 42

U.S.C. § 1983, (4) denial of equal treatment under the law, in violation of 42

U.S.C. § 1981; (5) conspiracy to interfere with civil rights, in violation of 42

U.S.C. § 1985; (6) discrimination in places of public accommodation, in

violation of the New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat.

Ann. § 10:5-12(f)(1); (7) false imprisonment; (8) negligent infliction of emotional

distress (“NIED”); (9) intentional infliction of emotional distress (“IIED”);

(10) negligent training; (11) defamation; and (12) respondeat superior. (Am.

Compl. ¶¶ 104–272.) United moves to dismiss all claims for failure to state a

claim. (Mot.)

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 8(a) does not require that a pleading

contain detailed factual allegations but “more than labels and conclusions.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations must raise

a claimant’s right to relief above a speculative level, so that a claim is “plausible

on its face.” Id. at 570. That standard is met when “factual content [] allows the

court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 12(b)(6)

provides for the dismissal of a complaint if it fails to state a claim. The

defendant bears the burden to show that no claim has been stated. Davis v.

Wells Fargo, 824 F.3d 333, 349 (3d Cir. 2016). I accept facts in the complaint

as true and draw reasonable inferences in the plaintiff’s favor. Morrow v.

Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (en banc).

III. DISCUSSION

I discuss each claim individually and hold as follows:

• Count 1 will be dismissed because I hold that there is no implied private

right of action to enforce 49 U.S.C. § 40127(a).

• Count 2 will be dismissed because 42 U.S.C. § 2000a(a) can only be

enforced by an action for injunctive relief, while Wright-Phillips seeks

damages and otherwise lacks standing to seek injunctive relief.

• Count 3 will be dismissed because United is not a state actor.

• Count 5 will be dismissed because there are insufficient allegations of

conspiracy.

• Count 7 will be dismissed because Wright-Phillips fails to adequately

allege that Roe and Doe instigated her arrest.

• Count 12 will be dismissed because respondeat superior is not in itself a

claim for relief.

The remaining claims (Counts 4, 6, 8, 9, 10, and 11) survive.

C. Count 1: 49 U.S.C. § 40127(a)

Wright-Phillips brings a claim under 49 U.S.C. § 40127(a), which

provides that “[a]n air carrier . . . may not subject a person in air

transportation to discrimination on the basis of race, color, national origin,

religion, sex, or ancestry.” Section 40127(a) thus sets forth a legal obligation

but is “silent about whether an individual may bring suit to enforce” that

obligation. Wisniewski v. Rodale, Inc., 510 F.3d 294, 297 (3d Cir. 2007). In this

scenario, I must decide whether Congress impliedly expressed an intent that

victims could sue violators of this statute for damages. Id. Making that showing

is difficult because the Supreme Court stresses that courts should rarely imply

private rights of action. Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1402

(2018). Still, the task is not impossible, and I apply a two-part test, derived

from Alexander v. Sandoval, 532 U.S. 275 (2001), asking whether Congress

intended to create (1) a “personal right” and (2) a “private remedy.” Wisniewski,

510 F.3d at 301.

Personal Right

“Personal rights inhere in the individual; they are individually focused;

they create individual entitlements.” Three Rivers Ctr. for Indep. Living v. Hous.

Auth. of the City of Pittsburgh, 382 F.3d 412, 419 (3d Cir. 2004) (quotation

marks and citation omitted). To determine whether the statute creates a

personal right, I review its text and context. McGovern v. City of Philadelphia,

554 F.3d 114, 119 (3d Cir. 2009).

a. Text

I first review the text for “rights-creating language.” Id. at 301–02

(citation omitted). To be “rights-creating,” language must be worded as an

“entitlement[] for the person protected” rather than a “prohibition[] on the

person regulated.” Wisniewski, 510 F.3d at 302 (citation omitted). For example,

the phrase “[n]o person shall be subjected to discrimination” is rights-creating

because it focuses on the individual—the “person”—who is protected. Gonzaga

Univ. v. Doe, 536 U.S. 273, 287 (2002) (alterations and citation omitted). As a

counterexample, the phrase “No funds shall be made available to any

educational agency or institution which has a prohibited policy” is not rights-

creating, because it focuses on the regulated entities (educational agencies and

institutions). Id.

Section 40127(a) is not worded as a right belonging to passengers. It is

worded as prohibition on or regulation of air carriers; it forbids air carriers

from discriminating. As a result, it does not create a personal right under the

strictest reading of the linguistic “rights-creating” test. Indeed, for this very

reason, courts in other circuits have held that § 40127(a) does not create a

private right of action. E.g., Shebley v. United Cont’l Holdings, Inc., 357 F. Supp.

3d 684, 691 (N.D. Ill. 2019); James v. Am. Airlines, 247 F. Supp. 3d 297, 307

(E.D.N.Y. 2017).

There is, however, a Third Circuit wrinkle. This Circuit does not treat the

“rights creating language” test as the be-all-and-end-all. Wisniewski, 510 F.3d

at 302 n.19. Rather, the Court will look beyond the phrasing, because the

facially apparent “‘focus’ of a statute might have more to do with Congress’s

writing style than its intent.” Id. Accordingly, our Court of Appeals has held

that statutes created personal rights even if “phrased in terms of

responsibilities imposed on [regulated entities],” when “[t]he plain purpose of

these provisions [was] to protect rights afforded to individuals.” Grammar v.

John J. Kane Reg’l Ctrs.-Glen Hazel, 570 F.3d 520, 530 (3d Cir. 2009).

Wright-Phillips has a fair argument that § 40127(a) falls into this

broadened category, for two reasons. First, dictum from Wisniewski provides

some suggestive support for her position. When explaining why phrasing

should not be dispositive, the Wisniewski court queried, rhetorically: “Does the

appropriateness of a private right of action depend on whether a statute says

‘no person shall be subjected to discrimination in a federally funded program’

rather than ‘no federally funded program shall discriminate’?” Wisniewski, 510

F.3d at 302 n.19 (citation omitted). The question here is parallel: Does “an air

carrier may not subject a person to discrimination” really mean anything

different from “no person shall be subjected to discrimination by an air

carrier?” Here, as in Wisniewski, the implied answer is no. Congress’s use, or

not, of the “passive voice” is not in itself “a reliable guide” to whether it created

personal rights. Id.

Indeed, the second reason § 40127(a) may create a personal right is the

commonsense proposition that antidiscrimination laws are often and

conventionally phrased in terms of the entity being regulated. Start with the

idea that “[t]he right to be free from discrimination is a personal right.” Bryan

v. Pittsburgh Plate Glass Co., 494 F.2d 799, 803 (3d Cir. 1974). Next, consider

two legal texts enshrining that right: Title VII of the Civil Rights Act and the

Equal Protection Clause of the Fourteenth Amendment. The former provides

that “[i]t shall be an unlawful employment practice for an employer” to

discriminate, 42 U.S.C. § 2000e-2(a)(1), and the latter provides that “[n]o state

shall . . . deny to any person . . . the equal protection of the laws,” U.S. Const.

amend. XIV § 1. Both focus on the entity regulated (the employer or the state),

yet they protect a personal right. See, e.g., Bowers v. NCAA, 346 F.3d 402, 420

(3d Cir. 2003) (in “discrimination cases,” “the right at issue” is “the right to be

free from discrimination”); Johnson v. California, 543 U.S. 499, 510 (2005)

(Equal Protection Clause enshrines “[t]he right not to be discriminated”).2 The

same could be true of § 40127(a); although it is “phrased in terms of

responsibilities imposed on” airlines, its “plain purpose . . . is to protect rights

afforded to individuals.” Grammar, 570 F.3d at 530.

The text, then, provides no clear answer as to whether it creates a

personal right. I look farther afield.

b. Context

I next consult the statute’s context, including its legislative history.

McGovern, 554 F.3d at 119. Congress enacted § 40127(a) as part of the Wendell

H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR Act”),

Pub. L. No. 106-181, § 706, 114 Stat. 61, 157–58 (2000). The AIR Act was an

omnibus act, reauthorizing Federal Aviation Administration (“FAA”) programs

and “address[ing] many of the problems plaguing our aviation system.” H.R.

Rep. No. 106-167, pt. 1, at 101 (2000). At a high level, then, the AIR Act, which

includes § 40127(a), deals more with airline regulation than with civil rights.

Nothing in the legislative history suggests that Congress intended to

create a private right of action with § 40127(a), and that silence weighs against

an implied cause of action. Wisniewski, 510 F.3d at 307–08 (although not

dispositive, congressional silence suggests no private right of action was

intended). In fact, the legislative history only reveals statements recognizing

2 These examples are linguistic—i.e., I use them as illustrations of language that

confers a personal right. There are, of course, explicit statutory provisions for private

rights of action pursuant to Title VII and the Equal Protection Clause, and I do not

mean to imply that these examples bear directly on the implication of a private right of

action from a silent statute. See 42 U.S.C.§§ 2000e-5 (Title VII); 42 U.S.C. § 1983

(providing a private remedy for constitutional violations). The Title VII and Equal

Protection Clause examples are merely offered to show that, at a high level, language

like that of § 40127(a) is thought sufficient to create personal rights. At least, that

interpretation is not ruled out, as it might be by the strict “rights creating language”

approach.

that § 40127(a) created a prohibition. See H.R. Rep. No. 106-167, pt. 1, at 102

(explaining that with the AIR Act, federal law “[f]or the first time, explicitly

prohibits racial discrimination in air travel”); 146 Cong. Rec. H1009 (daily ed.

Mar. 15, 2000) (Statement of Rep. Jones) (“I am very happy that this will be the

first time that explicitly racial discrimination in air travel will be prohibited. It

is a long time coming . . . .”). There are no statements about an enforcement

mechanism.

Wright-Phillips says we need to go back further to understand the intent

of Congress. (Opp. at 14–16.) Congress first adopted an airline

antidiscrimination provision in 1938:

No air carrier or foreign air carrier shall . . . subject any particular

person . . . in air transportation to any unjust discrimination or

undue or unreasonable prejudice or disadvantage in any respect

whatsoever.

Civil Aeronautics Act of 1938, Pub. L. No. 75-706, § 404(b), 52 Stat. 973, 993.

This provision, which I will call § 404, continued with Congress’s revamp of

aviation regulation two decades later. Federal Aviation Act of 1958, Pub. L. No.

85-726, § 404(b), 72 Stat. 731, 760. While § 404 was in place, the Courts of

Appeals assumed or held that it created a private right of action. Hingson v.

Pac. Sw. Airlines, 743 F.2d 1408, 1412 (9th Cir. 1984); Smith v. Piedmont

Aviation, Inc., 567 F.2d 290, 292 (5th Cir. 1978); Karp v. N. Cent. Air Lines, Inc.,

583 F.2d 364, 365–66 (7th Cir. 1978); Nadler v. Allegheny Airlines, 512 F.2d

527, 537 (D.C. Cir. 1975), rev’d on other grounds, 426 U.S. 290 (1976);

Fitzgerald v. Pan Am. World Airways, Inc., 229 F.2d 499, 501–02 (2d Cir. 1956).

But Congress repealed § 404 in 1978. Airline Deregulation Act of 1978, Pub. L.

No. 95-504, § 1601, 92 Stat. 1705, 1745; see also Hingson, 743 F.2d at 1411

n.1 (noting repeal). That repeal left federal aviation law without an

antidiscrimination provision for 22 years, until the AIR Act was enacted in

2000.

Wright-Phillips argues that, by reintroducing an antidiscrimination

provision with the AIR Act, Congress reinstated the private right of action

recognized by judicial consensus under old § 404. (Opp. at 15–18.) There are,

however, two flaws in this argument.

First, there is no indication that Congress thought of § 40127(a) as the

heir to § 404. For starters, the two provisions are worded quite differently, so it

cannot be said that Congress, in any straightforward way, was “reintroducing”

§ 404 when it enacted § 40127(a). The legislative history contains nothing

suggesting that Congress thought it was resurrecting § 404, or even had that

earlier statute in mind. Indeed, the only relevant statements in the legislative

history signify that Congress thought it was explicitly prohibiting such racial

discrimination for the “first time.” H.R. Rep. No. 106-167, pt. 1, at 102; 146

Cong. Rec. H1009 (emphasis added). While § 404 and § 40127(a) both generally

deal with discrimination, I cannot say that Congress even thought about § 404,

let alone reenacted it, when it enacted § 40127(a).

Second, the Supreme Court has cast doubt on the presumption that,

when Congress reenacts a statute, it incorporates prior judicial interpretations

implying a private cause of action. Sandoval, 532 U.S. at 287–88. Rather, that

presumption is appropriate only when (1) Congress enacted or reenacted “the

verbatim statutory text that courts had previously interpreted to create a

private right of action,” or (2) the presumption “simply buttressed a conclusion

independently supported by the text.” Id. (quotation marks and citations

omitted). Neither circumstance is present here: (1) § 404 and § 40127(a) differ

textually, and (2) the text of § 40127(a) is at best open to interpretation as to a

private right of action. Moreover, the cases interpreting § 404 relied on a more

lenient—but now defunct—test for implying a private right of action. See

Wisniewski, 510 F.3d at 299 (Sandoval “altered” the previous test “virtually

beyond recognition”). Because these cases come from a bygone era, they have

little force here.

* * *

To bring this tour through text and history to an end, I hold that

§ 40127(a) does not confer a personal right. It is worded in a way that,

according to the Supreme Court, strongly suggests that it does not. I recognize

that the grammar is not dispositive, and that even a passive construction, or

one targeting the discriminating entity, may connote a personal right. Still, all

indications are that § 40127(a) was an airline regulation, not the conferral of a

personal right. I move to the second, “private remedy” factor.

Private Remedy

In addition, and in the alternative, I find that Congress, in passing

§ 40127(a), did not intend a private remedy. In this inquiry, the Supreme Court

has considered varying factors. Wisniewski, 510 F.3d at 303–04. The most

salient has often been whether Congress provided other enforcement

mechanisms; “[t]he express provision of one method of enforcing a substantive

rule,” for example, “suggests that Congress intended to preclude others.”

Sandoval, 532 U.S. at 290; see also Wisniewski, 510 F.3d at 304–05.

There are substantive enforcement mechanisms here, and those

mechanisms do not include a private right of action. Specifically, the

Department of Transportation (“DOT”) and its constituent agencies possess

statutory authority to accept complaints filed by persons alleging § 40127(a)

violations; to investigate, compel compliance, and assess civil penalties; and to

bring actions in federal court.3 The Secretary of Transportation has delegated

enforcement authority for § 40127(a) to one office in particular: the Office of

Aviation Enforcement and Proceedings (“OAEP”). See U.S. Dep’t of Transp.,

3 See 49 U.S.C. §§ 46101(a)(1)–(4) (allowing persons to file complaints with DOT

for violations of “this part or a requirement prescribed under this part,” of which

§ 40127(a) is included, and for DOT to investigate and “issue an order to compel

compliance”), 46301(a)(1)(A) (“A person is liable to the United States Government for a

civil penalty of not more than $25,000 . . . for violating . . . chapter 401,” of which

§ 40127(a) is included), 46301(a)(5)(B)(v) (limiting penalties to $10,000 for “a violation

of section 40127” by an “individual or small business”), 46301(d)(2) (“The

Administrator of the [FAA] may impose a civil penalty for a violation of chapter

401 . . . .”), 46106 (“The Secretary of Transportation . . . may bring a civil action

against a person in a district court of the United States to enforce this part or a

requirement or regulation prescribed . . . .”); see also, e.g., United Air Lines, Inc.

Compliance with 49 U.S.C. §§40127, 41310, 41702 and 41712, No. OST-2003-14194,

2003 WL 25428162 (DOT Nov. 19, 2003) (consent order issued after investigation of

alleged § 40127(a) violation).

Passengers Right to Fly Free From Discrimination at 1,

https://www.transportation.gov/sites/dot.gov/files/docs/resources/individual

s/aviation-consumer-protection/295211/passengers-right-fly-free-

discrimination.pdf (“OAEP is responsible for enforcing the statutes that prohibit

unlawful discrimination by airlines . . . . OAEP works with the Department’s

Aviation Consumer Protection Division (ACPD), which processes and

investigates . . . civil rights complaints.”); see also U.S. Dep’t of Transp.,

Guidance for Airline Personnel on Non-discrimination in Air Travel at 1,

https://www.transportation.gov/sites/dot.gov/files/docs/resources/individual

s/aviation-consumer-protection/295216/guidance-airline-personnel-non-

discrimination-air-travel.pdf (guidance issued by OAEP to airlines for

compliance with § 40127(a)).

I would perhaps find more persuasive a case in which Congress simply

announced an entitlement but seemingly neglected to consider how it would be

enforced. This is not that case. Congress thought about how this

antidiscrimination provision would be enforced, but did not opt for a private

right of action. This detailed agency enforcement scheme “creates a strong

presumption against implied private rights of action that must be overcome.”

Wisniewski, 510 F.3d at 305. Wright-Phillips has not pointed to anything to

overcome this presumption. I conclude that Congress did not intend to provide

a private remedy with § 40127(a). James, 247 F. Supp. 3d at 307 (concluding

that provisions for government enforcement foreclosed implying a private right

of action for § 40127(a)).

* * *

To sum up, I cannot discern an intent by Congress to confer a personal

right or a private remedy with § 40127(a), and the lack of either would be

dispositive. Count 1 will therefore be dismissed.

D. Count 2

Wright-Phillips brings a claim under 42 U.S.C. § 2000a(a), which

provides that “[a]ll persons shall be entitled to the full and equal enjoyment of

the goods, services, facilities, privileges, advantages, and accommodations of

any place of public accommodation . . . without discrimination . . . on the

ground of race.” Those aggrieved by violations may only bring “a civil action for

preventive relief,” i.e., injunctive relief. § 2000a-3(a); see also Newman v. Piggie

Park Enters. Inc., 390 U.S. 400, 402 (1968). Here, Wright-Phillips only seeks

damages (Am. Compl. at 17), and her claim may be dismissed for that reason

alone. Roy v. U-Haul, Civ. No. 14-2846, 2015 WL 375664, at *3 (D.N.J. Jan. 28,

2015).

She responds that the Court should construe the claim as one seeking

injunctive relief. (Opp. at 18–19.) Even construing that argument as a motion

to amend, which I do not, I would deny it on grounds of futility, because she

lacks standing. To seek injunctive relief, Ms. Wright-Phillips must show that

she is either currently suffering an injury or will likely suffer an injury in the

future. Pa. Prison Soc’y v. Cortes, 508 F.3d 156, 166 (3d Cir. 2007). “[P]ast

exposure to illegal conduct” is not enough. McNair v. Synapse Grp. Inc., 672

F.3d 213, 233 (3d Cir. 2012) (citation omitted). When it comes to

discrimination in public accommodations, a plaintiff must show that she will

likely visit the venue again and encounter discrimination, or that she is

deterred from visiting the venue due to fear of discrimination. See Mielo v.

Steak ’n Shake Operations, Inc., 897 F.3d 467, 480 n.15 (3d Cir. 2018);

Disability Support All. v. Heartwood Enters., Inc., 885 F.3d 543, 546 (8th Cir.

2018); Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1336–37 (11th Cir.

2013).

Wright-Phillips alleges affirmatively that this incident was anomalous

(she experienced no difficulty obtaining administration of oxygen on past

United flights). She has not alleged that she plans to fly United again, but even

if she had, it seems implausible that she would encounter the same flight

attendant under the same circumstances. Nor has she alleged plausibly that

she has been deterred from flying United, or that the Court could or should

fashion relief which would remove the impediment. As a result, she does not

have standing to seek an injunction compelling United to comply with § 2000a-

3(a).

Count 2 will be dismissed.

E. Count 3: 42 U.S.C. § 1983

Wright-Phillips brings a claim under 42 U.S.C. § 1983, which provides a

remedy when a person “acting under color of state law” deprives another of her

constitutional rights. Her theory is that the PA Police, acting pursuant to Roe

and Doe’s orders, unconstitutionally detained her. (Am. Compl. ¶¶ 138–40.)4

Section § 1983 applies only to persons acting under color of state law,

i.e., state actors. Crissman v. Dover Downs Ent. Inc., 289 F.3d 231, 238–39 (3d

Cir. 2002) (en banc). Nonetheless, a private party can be liable if that party

worked with a state actor to deprive the plaintiff of her constitutional rights.

Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970). But a private person

who calls the police, even one who supposedly “orders” an arrest, is not

generally considered a joint actor with the police. See Cruz v. Donnelly, 727

F.2d 79, 80 (3d Cir. 1984) (per curiam).

For example, in Cruz, a store manager called the police about a

suspected shoplifter and ordered the officer to strip-search the accused. Id. The

Third Circuit held that the manager did not act jointly with the police because

(1) there was no concerted plan between the officer and the manager, and

(2) “police normally do not take orders from private citizens,” so the court could

assume that the officer’s actions, although “suggested” by the manager, were

attributable only to the officer. Id. at 81; see also Harvey v. Plains Twp. Police

Dep’t, 421 F.3d 185, 196 (3d Cir. 2005) (“The Supreme Court’s language

requiring joint action or action in concert suggests that some sort of common

purpose or intent must be shown.”).

4 The Amended Complaint is not clear which constitutional rights were deprived,

but I assume Wright-Phillips alleges violations of the Fourth Amendment and Equal

Protection Clause because she alleges that the detention was unreasonable and based

on her race. (Am. Compl. ¶¶ 140–44.)

This case has the same deficiencies as Cruz. There is no alleged common

plan between United and the PA Police. Roe and Doe only “reported [Wright-

Phillips] as a ‘disturbance.’” (Am. Compl. ¶ 91.) There is even less joint action

than in Cruz, because there, the manager and officer jointly interrogated the

suspect, while Roe and Doe’s involvement ceased once the PA Police arrived.

(See id. ¶ 100.) Although Wright-Phillips alleges that Roe and Doe “ordered” the

arrest (id. ¶ 94), there are no factual allegations that they possessed the power

to do so, and the same proposition was rejected in Cruz. Applying similar

principles, multiple courts have held that airline employees who call and aid

the police to arrest passengers do not thereby transform themselves into state

actors. See, e.g., Berlin v. JetBlue Airways Corp., 436 F. Supp. 3d 550, 562–63

(E.D.N.Y. 2020); Parver v. Jet Blue Airlines Corp., 649 F. App’x 539, 543 (9th

Cir. 2016); Al-Watan v. Am. Airlines, Inc., 658 F. Supp. 2d 816, 829 (E.D. Mich.

2009); Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250, 1257–58 (9th Cir.

2008); cf. Carey v. Cont’l Airlines, Inc., 823 F.2d 1402, 1404 (10th Cir. 1987)

(airline employee, who complained of striking airline pilot’s presence in

terminal and refusal to leave, was not a state actor where police who were

summoned to the terminal arrested the pilot). Accordingly, there is no state

action here by United employees.

Count 3 will be dismissed.

F. Count 4: 42 U.S.C. § 1981

Wright-Phillips brings a claim under 42 U.S.C. § 1981(a), which provides

that “[a]ll persons . . . shall have the same right . . . to make and enforce

contracts, . . . and to the full and equal benefit of all laws . . . as is enjoyed by

white citizens.” A § 1981 claim requires Wright-Phillips to plead “(1) that [she]

belongs to a racial minority; (2) an intent to discriminate on the basis of race by

[United]; and (3) discrimination concerning one or more of the activities

enumerated.” Pryor v. NCAA, 288 F.3d 548, 568 (3d Cir. 2002). More recently,

the Supreme Court clarified that the plaintiff also must plead that “but for

race, [she] would not have suffered the loss of a legally protected right.”

Comcast Corp. v. Nat’l Ass’n of African-Am.-Owned Media, 140 S. Ct. 1009,

1019 (2020).5 Wright-Phillips adequately alleges these elements. There is no

dispute on the first element, so I discuss the second and third.

Discriminatory Intent

On the second element, a plaintiff “is not required to prove

discriminatory intent at the motion to dismiss stage, rather she ‘need only put

forth allegations that raise a reasonable expectation that discovery will reveal

evidence of [it].’” Bagic v. Univ. of Pittsburgh, 773 F. App’x 84, 87 (3d Cir. 2019)

(quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009)). Racial

discrimination is far from a necessary inference here. There are a few

allegations, however, which, taken together, push Wright-Phillips’s allegations

over the plausibility line.

To start, Roe treated Wright-Phillips dismissively, showed an indifference

to her safety, and said “don’t you dare speak to me like that.” (Am. Compl.

¶¶ 51, 71.) This treatment shows disdain and that Roe saw herself as above

Wright-Phillips. The facts—as alleged by Wright-Phillips, of course—reveal

nothing that would have warranted this treatment. It is possible to infer, then,

that something else was motivating Roe, and that something might have been

race. Furthering that inference is the allegation that the doctor called to assist

Wright-Phillips “responded appropriately” and had to stop Roe from speaking

over him as he ministered to Wright-Phillips. (Id. ¶¶ 66–68.) One can infer that

Roe’s animus towards Wright-Phillips was not shared by others and thus not

simply how anyone would respond to the situation. Indeed, another passenger

expressed to PA Police that “there was no reason” for Roe’s conduct. (Id. ¶ 101.)

Moreover, Roe approached a white passenger after the interaction and

asked, “are you okay after that?” (Id. ¶ 74.) This allegation raises an inference

of differential treatment because it shows a contrast in concern for a white

passenger (who had not shown any need for such concern) and refusal to serve

5 There is an implied private right of action to enforce § 1981, Comcast, 140 S.

Ct. at 1015, and § 1981 reaches private conduct, § 1981(c).

a Black passenger who had a demonstrable need for help. This is a stark

contrast with race as the differentiating factor. In the same vein, Roe provided

beverage service to a white passenger in Wright-Phillips’s row, but not her. (Id.

¶¶ 82–84.)

Courts have found similar allegations sufficient to state a § 1981 claim.

In Shebley, a Black passenger asked for a special seatbelt or booster seat for

his child, and the flight attendant claimed that United did not provide them,

even though the passenger showed the attendant that the website indicated

otherwise. 357 F. Supp. 3d at 688. After a back-and-forth, attendants and the

pilot had the Black family leave the plane, claiming that they refused to follow

instructions, when the family had so complied and remained polite. Id. at 688–

89. The court held that, given the family’s alleged compliance, there was no

basis to remove them, so the court could infer that they instead were “unfairly

targeted” due to their race. Id. at 692.

Next, in Mercer v. Southwest Airlines Co., a flight attendant told a Black

passenger he was over the carry-on limit, even though he was not, and white

passengers had larger carry-on items. No. 13-cv-05057, 2014 WL 7206881, at

*1 (N.D. Cal. Dec. 18, 2014). The attendant spoke to the passenger in a “rude

and dismissive tone,” looked at him “with distaste and disdain,” and said to

him “I’ll take care of YOU.” Id. He was removed from the flight. Id. The court

held that these allegations stated a claim because they showed that the

passenger was unfairly singled out and treated as lesser-than. Id. at *6.

Finally, in James, a Black passenger notified a flight attendant that a

white passenger was banging on her seat. 247 F. Supp. 3d at 304. Flight

attendants publicly admonished the Black passenger and threatened to remove

her, while saying nothing to the white passenger. Id. The court held that this

“one-sided handling of the situation” created an inference of bias. Id.

From these cases, we can glean a principle that flight attendants’

treatment of Black passengers that is unsupported by flight rules, coupled with

a dismissive and disdainful attitude, can give rise to an inference of

discriminatory intent. When no reasonable basis for such treatment is

apparent, the inference of discrimination is correspondingly stronger. So too

here. Based on the allegations, Roe did not have a reasonable basis either to

refuse to serve Wright-Phillips or treat her in the manner she did. Moreover,

the markedly different interaction with the white passenger indicates that race

may be at play. For these reasons, Wright-Phillips has sufficiently alleged

discriminatory intent.

Loss of Rights and Causation

Wright-Phillips must allege that the discrimination occurred with regard

to “one or more” of the rights which § 1981 explicitly protects. Pryor, 288 F.3d

at 568. Further, she must allege that she “suffered the loss of a legally

protected right” because of her race. Comcast, 140 S. Ct. at 1019. Of § 1981’s

enumerated rights, two are relevant here.

First, Wright-Phillips’s pleading and brief focus on the right to “the full

and equal benefit of all laws and proceedings for the security of persons and

property.” (Am. Compl. ¶¶ 149–51; Opp. 23–24.) Like with her § 1983 claim,

her theory is that Roe and Doe acted jointly with the PA Police to detain her for

discriminatory reasons. (Id.) But the Third Circuit has twice explained in dicta

that “only state actors can be sued under the ‘full and equal benefit’ clause,”

Brown v. Philip Morris Inc., 250 F.3d 789, 799 (3d Cir. 2001), because “[t]he

state, not the individual, is the sole source of law, and it is only the state acting

through its agents, not the private individual, which is capable of denying to

blacks the full and equal benefit of the law,” Mahone v. Waddle, 564 F.2d 1018,

1029 (3d Cir. 1977).6 Although not bound by dicta, I cannot lightly discard it,

6 The statement in Mahone is certainly dictum, but it is a closer call with Brown.

In Mahone, the defendants were all state actors and argued against a broad

interpretation of § 1981 or else “section 1981 will give rise to a federal cause of action

for every racially motivated private tort.” 564 F.2d at 1029. One of the reasons the

court rejected their arguments was that the equal benefit clause “implicit[ly]” only

applied to state actors, so § 1981 did not cast such a wide net of liability. Id. at 1029–

30. Because a discussion of private liability was not necessary to rendering judgment

on state actors, the statement was dictum. See Coleman v. Greene, 845 F.3d 73, 76

especially when, as here, the dicta reflects some consideration by the court.

See Singh v. Uber Techs. Inc., 939 F.3d 210, 223 (3d Cir. 2019) (“[W]e pay due

homage to the Supreme Court’s well-considered dicta . . . .”); Galli v. N.J.

Meadowlands Comm’n, 490 F.3d 265, 274 (3d Cir. 2007) (statements in dicta

demand “respect consistent with their persuasive value”). Indeed, courts in this

Circuit continue to apply this principle from Brown and Mahone. Wright v.

Reed, No. 20-cv-02664, 2021 WL 912521, at *3 (E.D. Pa. Mar. 10, 2021); Moore

v. Solanco Sch. Dist., 471 F. Supp. 3d 640, 665 (E.D. Pa. 2020). But see, e.g.,

Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir. 2003) (en banc)

(disagreeing with Mahone and holding that state action is not required); Phillip

v. Univ. of Rochester, 316 F.3d 291, 295 (2d Cir. 2003) (same). Accordingly,

because Wright-Phillips has not alleged state action, see Section III.C, she

cannot state a § 1981 claim based on the equal benefit clause.

But there is a second enumerated right relevant here. Section 1981

allows plaintiffs to sue private parties who deprive them of their right “to make

and enforce contracts.” Brown, 250 F.3d at 797.7 The phrase “make and

enforce contracts” encompasses “performance” and “the enjoyment of all

benefits, privileges, terms, and conditions of the contractual relationship.”

(3d Cir. 2017) (dictum is a statement that can be removed without impairing the

holding).

Brown is a little tougher. Brown involved private defendants, and the plaintiffs

raised various theories, including one under the equal benefit clause. 250 F.3d at 799.

The court primarily rejected that argument because it was forfeited, but the court also

explained that “even if we were to consider them, such ‘full and equal benefit’ claims

would fail in light of a substantial line of authority holding that only state actors can

be sued.” Id. (citing, among other cases, Mahone). To that extent, there is reason to

regard this analysis of the merits as less than a fully developed holding.

7 To be sure, the Amended Complaint does not include a specific allegation

regarding this right, nor does Wright-Phillips’s brief rely on it. But a plaintiff,

particularly one who cites the relevant statute, need not necessarily pinpoint the

precise legal theory thereunder, if there are adequate factual allegations and the court

can readily discern a claim. See Johnson v. City of Shelby, 574 U.S. 10, 12 (2014) (per

curiam). Wright-Phillips alleges a § 1981 claim explicitly, and her factual allegations

support one theory, albeit not the one she explicitly relies on. That suffices to go

forward, without the need for a formal amendment, which would get us to much the

same place. See id.

§ 1981(b). An airline ticket represents a contract of carriage, in which an airline

undertakes to transport the passenger safely and serve the passenger while

aboard. See Shebley, 357 F. Supp. 3d at 692; James, 247 F. Supp. 3d at 305;

Sawyer v. Sw. Airlines Co., 243 F. Supp. 2d 1257, 1273 (D. Kan. 2003). When

flight attendants refuse to offer a passenger a service that is part of the flight,

and do so because of the passenger’s race, they impair the performance of the

contract and deprive the passenger of its benefits. See id. Further, this contract

includes the benefit “to be flown in relative comfort,” so “subject[ing] [a

passenger] to racially motivated hostility” alters that benefit. James, 247 F.

Supp. 3d at 305.

That is what allegedly happened here. Passengers, as part of their

contractual relationship with the airline, expect that airline employees will

attend to any health emergencies that arise in-flight. Yet Roe refused to honor

that obligation by unreasonably delaying Wright-Phillips’s requested oxygen.

The Amended Complaint alleges that the refusal was motivated by race, i.e.,

that a person of another race with a similar complaint would have been treated

differently. This means that, crediting her allegations, as I must on a motion to

dismiss, Wright-Phillips was deprived of a service provided by her contract with

United because of her race. She thus satisfies the third element of a § 1981

claim, as well as the requirement of but-for causation.

* * *

Wright-Phillips has adequately alleged the three elements of a § 1981

claim required by the Third Circuit, as well as the Supreme Court’s more

recent requirement of but-for causation. United’s motion to dismiss Count 4

will be denied.

G. Count 5: 42 U.S.C. § 1985(3)

Wright-Phillips alleges a claim under 42 U.S.C. § 1985(3), which confers

a cause of action when “two or more persons . . . conspire . . . for the purpose

of depriving . . . any person . . . of the equal protection of the laws.” She alleges

two conspiracies: (1) between Roe and Doe to deprive her of the right secured

by 49 U.S.C. § 40217(a), and (2) between Roe, Doe, and the PA Police to detain

her. (Am. Compl. ¶¶ 158–60.)

A § 1985(3) claim requires “a conspiracy to deprive [a plaintiff] of his

rights,” motivated by racial animus. Estate of Olivia ex rel. McHugh v. New

Jersey, 604 F.3d 788, 802 (3d Cir. 2010). For conspiracies between private

actors, a § 1981 claim has only been recognized when the private actors

intended to deprive the victim of “the right to be free from involuntary servitude

and the right to interstate travel.” Brown, 250 F.3d at 805. Nonetheless,

conspiracies involving a public actor can implicate the deprivation of other

constitutional rights. Davis v. Samuels, 962 F.3d 105, 113–14 (3d Cir. 2020).

More importantly, the conspiracy must be “aimed at” the right; “its

impairment must be a conscious objective of the enterprise.” Bray v. Alexandria

Women’s Health Clinic, 506 U.S. 263, 275 (1993) (cleaned up). That is, “the

defendant [must] do more than merely be aware of a deprivation of right that

he causes, and more than merely accept it; he must act at least in part for the

very purpose of producing it.” Id. at 276.

Starting with the conspiracy between Roe and Doe, this claim fails for

two reasons. First, 49 U.S.C. § 40127 is not one of the rights recognized as a

basis for a private conspiracy claim, and, anyway, the subject matter of

§ 1985(3) is constitutional rights. Brown, 250 F.3d at 805. Second, even

assuming that the Amended Complaint could be construed to invoke the

constitutional right to interstate travel, the allegations of conspiracy would be

insufficient. The allegations do not show Roe and Doe consciously agreed to

deprive Wright-Phillips of her right; there are no factual allegations of Roe and

Doe speaking to one another, conferring, or acting in concert. I can perhaps

infer that Roe informed Doe of her interaction with Wright-Phillips, and that

Doe (as the person with radio contact) acted as a conduit to the PA Police, but

those actions still fall short of a conspiratorial unity of purpose to deprive

Wright-Phillips of her constitutional rights.

Likewise, Wright-Phillips has not alleged facts to show a conspiracy

between Roe and Doe, on the one hand, and the PA Police, on the other. All

that I can discern from the Amended Complaint is that “the [United] flight crew

reported her as a ‘disturbance.’” (Am. Compl. ¶ 91.) But simply reporting

someone to the police does not evince the type of conscious and purposeful

agreement with the police that would be required for a § 1985(3) conspiracy;

nor does the officers’ response to a complaint, even if the complaint were to

turn out to be false, implicate them in a conspiracy.

For these reasons, Count 5 will be dismissed.

H. Count 6: NJLAD

Wright-Phillips alleges a claim under the NJLAD, which prohibits

discrimination in places of public accommodation. N.J. Stat. Ann. § 10:5-

12(f)(1). Specifically, the NJLAD makes it unlawful

[f]or any owner, lessee, proprietor, manager, superintendent,

agent, or employee of any place of public accommodation directly

or indirectly to refuse, withhold from or deny to any person any of

the accommodations, advantages, facilities or privileges thereof, or

to discriminate against any person in the furnishing thereof . . . on

account of the . . . race . . . of such person.

Id. A plaintiff must plead that (1) she is a member of a class protected by the

NJLAD, (2) the defendant owns or operates a place of public accommodation,

and (3) she was denied equal treatment based on her membership in the

protected class. Islam v. City of Bridgeton, 804 F. Supp. 2d 190, 200 (D.N.J.

2011). There is no dispute on the first element, so I discuss the second and

third.

Public Accommodation

Wright-Phillips satisfies the second element. “Place of public

accommodation” is defined by a non-exhaustive list of examples. N.J. Stat.

Ann. § 10:5-5(l). That list includes “any public conveyance operated . . . in the

air or any stations and terminals thereof.” Id. “Public conveyance” is not further

defined. But, at least in other contexts, New Jersey courts have defined “public

conveyance” to mean “the holding out of the vehicle to the general public for

carrying passengers for hire.” CSC Ins. Servs. v. Graves, 679 A.2d 1244, 1248

(N.J. Super. Ct. L. Div. 1996) (citation omitted); see also State v. Griffin, 223

A.2d 633, 635 (N.J. Super. Ct. App. Div. 1966). One court has held that a

commercial plane meets this definition. Schneider v. New Amsterdam Cas. Co.,

92 A.2d 66, 69 (N.J. Super. Ct. App. Div. 1952) (citing Ziser v. Colonial W.

Airways, Inc., 162 A. 591 (N.J. 1932) (per curiam)). Likewise, while applying

analogous Pennsylvania law, the Third Circuit has held that a plane-for-hire is

a public conveyance. J.C. Penney Life Ins. Co. v. Pilosi, 393 F.3d 356, 361–62

(3d Cir. 2004). Indeed, the NJLAD says “public conveyance operated . . . in the

air,” which indicates that the public conveyance term encompasses air

transportation. Cf. Nat’l Org. for Women, Essex Cnty. Chapter v. Little League

Baseball, Inc., 318 A.2d 33, 37 (N.J. Super. Ct. App. Div. 1974) (“public

conveyance” in NJLAD includes a “moving situs”).

Thus, the United flight represented a place of public accommodation.8

Further, because the statute extends to “terminals thereof,” the United gate at

Newark Airport was a place of public accommodation, too. Liability under the

NJLAD, however, applies to people, not places. Ptaszynski v. Uwaneme, 853

A.2d 288, 296 (N.J. Super. Ct. App. Div. 2004). United owns and operates the

plane and leases the space in Newark Airport (Am. Compl. ¶ 172), so United is

the “owner” or “lessee” that can be sued. N.J. Stat. Ann. § 10:5-12(f)(1).9 Roe

and Doe are “employee[s]” of United, so they, too, are suable persons under the

statute. Id. Accordingly, the Amended Complaint pleads the second element of

an NJLAD claim.

8 Again, Wright-Phillips’s pleading and brief focus on a different theory, that the

terminus of the flight, Newark Airport, is a place of public accommodation. (Opp. at

27–28; Am. Compl. ¶ 169.) But the facts alleged also show that the flight itself is a

place of public accommodation, so I may consider that claim. See n.7, supra.

9 United does not argue that there are geographic limits to where the NJLAD, or

any of the state-law claims for that matter, can be applied. Nor does United raise a

preemption defense. Thus, I do not address those possible limitations.

Denial of Equal Treatment

Next, Wright-Phillips must plead that, to paraphrase the statute, United

directly or indirectly refused, withheld from, or denied to her any of the

accommodations, advantages, facilities or privileges of her flight or Newark

Airport, or otherwise discriminated against her in the furnishing thereof based

on her race. N.J. Stat. Ann. § 10:5-12(f)(1). In fewer words, she must plead that

“she was denied equal treatment.” Islam, 804 F. Supp. 3d at 200.

A claim arising from the in-flight incident, as it is alleged in the Amended

Complaint, fits within the terms of the statute. As explained with respect to

§ 1981, the contract of carriage includes an expectation that flight attendants

will respond to health emergencies and avoid creating a hostile environment for

passengers. See Turner v. Wong, 832 A.2d 340, 358–59 (N.J. Super. Ct. App.

Div. 2003) (construing the NJLAD and § 1981 similarly). Yet, Roe refused for

some time to provide Wright-Phillips with supplemental oxygen, thus refusing

or withholding from her an accommodation or facility that allegedly should

have been, and indeed was, routinely provided. The reader of the Amended

Complaint could plausibly infer that this refusal was racially motivated.

Further, Roe allegedly created a hostile environment on-board, and a NJLAD

cause of action can be based on “discriminatory behavior . . . if it is outrageous

enough to imply a design to discourage an individual’s use of that public

accommodation on account of her protected status.” Jones v. Pi Kappa Alpha

Int’l Fraternity, Inc., 431 F. Supp. 3d 518, 531 (D.N.J. 2019) (citing Turner, 832

A.2d at 355–56; Franek v. Tomahawk Lake Resort, 754 A.2d 1237, 1244 (N.J.

Super. Ct. App. Div. 2000)). At least on the facts alleged and construed in

Wright-Phillips’s favor, Roe created a hostile environment, and her animus

lends an inference that she had an invidious reason for not wishing to serve

Wright-Phillips. Cf. James, 247 F. Supp. 3d at 305 (concluding that flight

attendants created a racially hostile environment on-board).

In sum, Wright-Phillips has stated an NJLAD claim, at least based on her

in-flight experience.10 United’s motion to dismiss Count 6 will be denied.

I. Count 7: False Imprisonment

Wright-Phillips brings a claim for false imprisonment, alleging that

United “acted in concert” with the PA Police. (Am. Compl. ¶ 184.) The tort of

false imprisonment requires (1) a “detention of the person against his or her

will” and (2) “lack of proper legal authority or legal justification.” Leang v.

Jersey City Bd. of Educ., 969 A.2d 1097, 1117 (N.J. 2009) (quotation marks

and citation omitted). Before I can reach those elements, however, I must

decide if the defendants here can be liable.

There is little in the way of New Jersey law regarding when a party

besides the one who actually detained the plaintiff can be liable. Wright-Phillips

points to Di Giovanni v. Pessel, where the Appellate Division adopted the

Second Restatement’s position that “[o]ne who instigates or participates in the

unlawful confinement of another is subject to liability to the other for false

imprisonment.” 250 A.2d 756, 770 (N.J. Super. Ct. App. Div. 1969) (quoting

Restatement (Second) of Torts § 45A cmt. b (Am. Law. Inst. 1965)). But the New

Jersey Supreme Court affirmed in part and reversed in part, while only

addressing unrelated issues. 260 A.2d 510 (N.J. 1970). So the precedential

value of the Appellate Division’s adoption is unclear.

10 It is a closer question with respect to the events at Newark Airport. Wright-

Phillips’s theory is that United ordered her detention and arrest by PA Police once the

plane landed, and that the experience of being arrested denied her “the

advantages . . . to be free from racial discrimination” in a public place. (Opp. at 28; see

also Am. Compl. ¶ 175.) Because the PA Police, not United, were the ones allegedly

denying her those advantages, I presume she seeks to hold United liable under some

joint action or aiding and abetting theory. I am denying the motion to dismiss Count 6

in any event, so the scope of the theory can be fleshed out further in discovery.

Moreover, because both United and its employees are named as defendants,

and because United has not attempted to draw distinctions as to who can be liable for

what, I will not undertake to address whether vicarious liability principles would

defeat any sub-theories of the NJLAD claim. See Yucis v. Sears Outlet Stores, LLC, 813

F. App’x 780, 787 (3d Cir. 2020) (concluding that the New Jersey Supreme Court

would apply its multi-prong vicarious liability test for NJLAD cases involving

harassment in a place of public accommodations).

Still, in the absence of on-point case law, federal courts can predict with

some confidence that the New Jersey Supreme Court would follow the

Restatement. See Failla v. City of Passaic, 146 F.3d 149, 157–58 (3d Cir. 1999).

The Second Restatement provides as follows:

Instigation consists of words or acts which direct, request, invite or

encourage the false imprisonment itself . . . . It is not enough for

instigation that the actor has given information to the police about

the commission of a crime, or has accused the other of committing

it, so long as he leaves to the police the decision as to what shall be

done about any arrest, without persuading or influencing them.

Restatement (Second) of Torts § 45A cmt. c. The more recent draft of the Third

Restatement clarifies that “[i]nstigation occurs when a secondary actor

knowingly and substantially directs, requests, invites, or incites” the

imprisonment. Restatement (Third) of Torts: Intentional Torts to Persons § 10

cmt. h TD (2018).

As explained, the Amended Complaint falls short of this standard, which

echoes the standard for joint action under § 1983. Roe and Doe only gave

information to the PA Police about Wright-Phillips and accused of her being a

disturbance. That is not enough under either Restatement to implicate them in

false imprisonment as such, and indeed they had no authority to direct an

arrest, which remained within the discretion and authority of the police.

Nor is it adequately alleged that the police had any knowledge of the

allegedly false basis for Roe’s accusation of creating a disturbance on the

plane. Such a complaint, even if it turns out to be false or misleading, may

furnish a probable-cause basis for an arrest, and an arrest on probable cause

is not actionable as “false imprisonment.” Mesgleski v. Oraboni, 748 A.2d 1130,

1139 (N.J. Super. Ct. App. Div. 2000) (probable cause defeats false-

imprisonment claim).

Count 7 will be dismissed.

J. Count 8: Negligent Infliction of Emotional Distress

Wright-Phillips brings an NIED claim based on both (1) the denial of

supplemental oxygen while on-board and (2) Roe and Doe’s alleged instigation

of her arrest by the PA Police. (Am. Compl. ¶ 225.) An NIED claim requires that

“(1) a duty of reasonable care was owed by the defendant to the plaintiff,

(2) that duty was breached, (3) the plaintiff suffered severe emotional distress,

and (4) the breach was a proximate cause of injury.” G.D. v. Kenny, 984 A.2d

921, 933 (N.J. Super. Ct. App. Div. 2009) (quotation marks and citation

omitted), aff’d, 15 A.3d 300 (N.J. 2011).

Duty

The Amended Complaint adequately alleges a duty of care. Airlines, as

common carriers, owe passengers a duty, namely “the highest possible care

consistent with the nature of the undertaking,” including a “high degree of care

for [a] passenger’s safety.” Ricci v. Am. Airlines, 544 A.2d 428, 430 (N.J. Super.

Ct. App. Div. 1988) (quotation marks and citation omitted). New Jersey has

imposed an additional duty on airline employees “to treat their passengers

courteously and respectfully”—to maintain the friendly skies, as United’s old

advertisement would have it. Ricci, 544 A.2d at 432. In the NIED context, the

duty element has an additional requirement: That the defendant could foresee

that his actions would cause “fright or shock severe enough to cause

substantial injury in a person normally constituted.” Gupta v. Asha Enters.,

L.L.C., 27 A.3d 953, 961 (N.J. Super. Ct. App. Div. 2011) (citation omitted).

For plaintiff’s first theory, Wright-Phillips informed Roe that she suffered

from anxiety attacks and required supplemental oxygen. (Am. Compl. ¶ 37.)

That information gave rise to a duty to help her because carriers are liable with

respect to known dangers to passengers. Maison v. N.J. Transit Corp., --- A.3d -

--, ---, No. 083484, 2021 WL 608269, at *16 (N.J. Feb. 17, 2021). Moreover, it

is readily foreseeable that a person who suffers from anxiety attacks and

requires supplemental oxygen would undergo a state of fright or shock if

deprived of supplemental oxygen. Roe thus had a duty to Wright-Phillips, not

to act as a medical professional, but to reasonably accommodate Wright-

Phillips’s anxiety problem.

Wright-Phillips’ second theory appears to be a novel one under New

Jersey law, yet the parties have hardly addressed it. Treading new ground

myself, I start with the proposition that a carrier’s duty can include the duty to

protect passengers from injuries caused by others and, in some circumstances,

to reasonably exercise control over third persons. Id. at *12; Ricci, 544 A.2d at

431–32. Airline employees exercise some influence over airport police, in the

limited sense that they can call upon them to handle passengers. It is

reasonably foreseeable that detention by police can create emotional stress,

particularly in a person already known to suffer from anxiety.11

Suffice it to say that it is reasonably foreseeable to flight attendants that

calling the police on a passenger can lead to emotional stress, so they must

exercise that power with care. Thus, Wright-Phillips has alleged a duty in

connection with her second theory.

Breach

Next, a breach occurs if the defendant’s actions fall below the applicable

standard of care. See Fortugno Realty Co. v. Schiavone-Bonomo Corp., 189 A.2d

7, 13 (1963); Buchner v. Erie R. Co., 111 A.2d 257, 260 (N.J. 1955).

As to the first theory, Roe repeatedly refused to provide Wright-Phillips

with supplemental oxygen, even though, according to the Amended Complaint,

her proffered reason (the prerequisite of “medical clearance”) was incorrect.

Such a delay in providing oxygen, on the facts as alleged in the Amended

Complaint, could be found to be a breach of Roe’s duty to care for Wright-

Phillips’s safety.

As to the second theory, Wright-Phillips alleges that she was not causing

a disturbance, so it was unreasonable for Roe and Doe to call the PA Police. On

this point, an instructive case is Ricci, which dates from the old days when

11 An arrest or encounter with the police may not, in the ordinary case, give rise to

extraordinary emotional distress. That “ordinary case,” however, presumes that the

citizen is not being subjected to racial discrimination and is not peculiarly susceptible

to emotional damage. That said, the facts as alleged do not suggest that the police

acted excessively improperly, even assuming that they acted mistakenly, based on

allegedly incorrect information reported to them by Roe.

planes had smoking sections for passengers. There, the plaintiff smoked,

prompting a physical attack from a fellow passenger. 544 A.2d at 433.

Nonetheless, the flight attendant admonished not the attacker but only the

smoking plaintiff (who was within his rights as then understood), and

threatened to call the FBI to meet the smoker upon landing. Id. After

concluding that the attendant had a duty to treat passengers courteously and

respectfully, the Appellate Division held that it was a jury issue whether the

attendant breached that duty because she did not have a proper basis for her

threatened call to the FBI. Id.

Wright-Phillips similarly alleges that Roe and Doe did not have a

reasonable basis for calling the PA Police. Accepting that allegation as true,

that means that Roe and Doe could be found to have fallen below the proper

standard of care, negligently or intentionally. Of course, discovery may reveal a

different story, or a juror could find that calling the PA Police was an

appropriate response, but that is an issue for later. At this juncture, Wright-

Phillips has adequately alleged the element of breach.

Severe Emotional Distress

Wright-Phillips must “demonstrate that the defendant’s negligent

conduct placed [her] in reasonable fear of immediate personal injury, which

gave rise to emotional distress that resulted in a substantial bodily injury or

sickness.” Jablonowska v. Suther, 948 A.2d 610, 618 (N.J. 2008). The Appellate

Division has construed “sickness” to mean “a mental condition of a type which

may be generally recognized and diagnosed by clinicians.” See Aly v. Garcia,

754 A.2d 1232, 1237 (N.J. Super. Ct. App. Div. 2000); see also Clark v. Nenna,

244 A.3d 291, 295 (N.J. Super. Ct. App. Div. 2020).

Wright-Phillips’s first theory satisfies this element. Roe’s refusal of

supplemental oxygen put Wright-Phillips in fear of immediate bodily injury; she

felt that she was unable to breathe without it and was having an anxiety

attack. (Am. Compl. ¶ 37.) That ordeal has allegedly led to exacerbated anxiety,

a diagnosis of panic disorder, panic attacks, and difficulties in her day-to-day

ability to function. (Id. ¶¶ 207–12.) These are mental conditions substantial

enough to be clinically diagnosed and require treatment, and hence may satisfy

the severity requirement. See Aly, 754 A.2d at 1237.

Her second theory, however, stumbles on this element. Wright-Phillips

has not alleged that Roe and Doe’s negligent conduct in calling the PA Police

put her in fear of immediate personal injury. It is possible that one could

experience such a fear during a police encounter, see United States v. Knights, -

-- F.3d ---, ---, No. 19-10083, 2021 WL 908278, at *13–14 (11th Cir. Mar. 10,

2021) (Rosenbaum, J., concurring in the judgment) (collecting research);

Jamison v. McClendon, 476 F. Supp. 3d 386, 415 (S.D. Miss. 2020) (collecting

examples), but she has not alleged that. Nor can I make such an inference

because, although I do not discount the potentially traumatizing nature of her

alleged detention, the facts do not suggest any excessive conduct by the PA

Police. As a result, Wright-Phillips’s second NIED theory fails.

Proximate Cause

Finally, proximate cause involves “the question of whether the specific

act or omission of the defendant was such that the ultimate injury to the

plaintiff reasonably flowed from the defendant’s breach of duty.” Clohesy v.

Food Circus Supermarkets, 694 A.2d 1017, 1021 (N.J. 1997) (citation omitted).

Proximate cause is usually a factual issue for the jury. Scafidi v. Seiler, 574

A.2d 398, 402 (N.J. 1990). There is nothing in the Amended Complaint to

suggest that her panic disorder and related symptoms were caused by anything

but her ordeal, so Wright-Phillips has sufficiently alleged proximate cause.

* * *

In sum, Wright-Phillips has adequately alleged an NIED claim, at least on

her theory relating to her in-flight experience. United’s motion to dismiss Count

8 will be denied.

K. Intentional Infliction of Emotional Distress

Wright-Phillips brings an IIED claim, raising the same two theories as

with her NIED claim. (Am. Compl. ¶ 227). An IIED plaintiff must show

“(1) intentional conduct; (2) the conduct was extreme and outrageous; (3) the

conduct proximately caused plaintiff’s emotional distress; and (4) the emotional

distress was severe.” DeAngelis v. Hill, 847 A.2d 1261, 1272 (N.J. 2004). The

third and fourth elements are essentially the same as with an NIED claim, see

Innes v. Marzano-Lesnevich, 87 A.3d 775, 797 (N.J. Super. Ct. App. Div. 2014),

so I focus on the first and second elements.

Intentional

On the first element, the “[d]efendant must intend both to do the act and

to produce emotional distress” or the defendant must “act[] recklessly in

deliberate disregard of a high degree of probability that emotional distress will

follow.” Ingraham v. Ortho-McNeil Pharm., 25 A.3d 1191, 1195 (N.J. Super. Ct.

App. Div. 2011) (quotation marks and citation omitted).

Wright-Phillips’s first theory satisfies this element. Roe acted volitionally

in denying supplemental oxygen. Moreover, she knew it was requested for the

purpose of ameliorating an anxiety attack, and it is alleged that the Wright-

Phillip’s fragile emotional state was readily apparent. Emotional distress was

the natural and probable outcome, so intent “can be inferred.” Taylor, 706 A.2d

at 696. Here, Wright-Phillips has adequately alleged the intent element.12

Extreme Conduct

Wright-Phillips must plead not only that Roe’s actions were

intentional/reckless, but that those actions were “so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds of decency, and

12 As in the case of NIED, Wright Phillips’s second theory, i.e., that Roe and Doe

intentionally inflicted emotional distress by calling the police, is more problematic. It is

less clearly inferable that Roe or Doe intended that the actions of the PA police,

whatever they turned out to be, would inflict emotional distress. Cf. Baez v. JetBlue

Airways, 745 F. Supp. 2d 214, 224 (E.D.N.Y. 2010) (airline employee’s false reporting

of passenger for making a bomb threat sufficed because, although “[g]enerally

allegations of providing false information to the police do not suffice,” “as an airline

employee in post–9/11 America, [defendant] knew or should have known that her false

accusations would, at the very least, likely subject [plaintiff] to extensive police

interrogation and potentially serious criminal charges” (cleaned up)).

Here, too, however, I am sustaining the count based on the first theory, so its

additional scope, if any, can be explored in discovery.

to be regarded as atrocious, and utterly intolerable in a civilized community.”

Taylor, 706 A.2d at 694 (citation omitted). Sometimes, the test has been

articulated, dramatically if not very precisely, as whether an average person

would hear the facts and “exclaim, ‘Outrageous!’” 49 Prospect St. Tenants Ass’n

v. Sheva Gardens, Inc., 547 A.2d 1134, 1145 (N.J. Super. Ct. App. Div. 1988)

(citation omitted).

In deciding whether conduct rises to this level, the New Jersey Supreme

Court has considered two factors that are relevant here.

First, the court has considered whether the “[d]efendant occupied a

position of authority and power over [the] plaintiff,” as the “[d]efendant’s abuse

of this relationship” will support a finding that the defendant’s conduct was

extreme. Taylor, 706 A.2d at 696 (citation omitted); accord Restatement

(Second) of Torts § 46 cmt. e (“The extreme and outrageous character of the

conduct may arise from an abuse by the actor of a position, or a relation with

the other, which gives him actual or apparent authority over the other, or

power to affect his interests.”).

Second, the court has suggested that discriminatory conduct is more

likely to be considered outrageous. See Taylor, 706 A.2d at 695. In Taylor, the

court held that a single racial slur uttered by an employee’s supervisor could

be extreme conduct. Id. The court cited the State’s interest in eradicating

discrimination and the idea that “[r]acial insults are different qualitatively

because they conjure up the entire history of racial discrimination.” Id. (citation

omitted). To be sure, the court was careful to couch its holding with the

additional factors that the slur used was extreme and came from someone in a

position of power. Id. So, while discriminatory conduct alone will not be

sufficient, it is a plus factor, especially on a motion to dismiss. See Gibbs v.

Massey, Civ. No. 07-3604, 2009 WL 838138, at *9 (D.N.J. Mar. 26, 2009)

(courts skeptical of a plaintiff’s pleading regarding extreme conduct still often

permit the claim to go forward and be developed); Ingraham, 25 A.3d at 1197

(noting that extreme conduct has been found when “characterized by

outrageous acts otherwise prohibited by the LAD and other anti-discrimination

laws”); Flizack v. Good News Home for Women, Inc., 787 A.2d 228, 235 (N.J.

Super. Ct. App. Div. 2001) (“The racial and sexual character of [defendant’s]

comment, coupled with her highly inappropriate sexual misbehavior, might

reasonably be found by a jury to be so egregious as to be actionable.”).

Wright-Phillips’s first theory sufficiently pleads extreme conduct. Three

factors, taken together, support this conclusion. First, the conduct here was

the denial of supplemental oxygen to someone pleading that she could not

breathe. A juror could conclude that refusing someone medical help, and

thereby risking her safety, is “intolerable in a civilized community.” Taylor, 706

A.2d at 694 (citation omitted). Next, compounding this is the fact that Roe was

in position of power over Wright-Phillips. An airline passenger is in some sense

a prisoner; she cannot provide for her own needs. Roe was the main person

Wright-Phillips could turn to for help—yet Roe refused. That was an abuse of

Roe’s position. Finally, Wright-Phillips alleges that Roe was motivated by racial

animus. That allegation makes Roe’s conduct more egregious, as a juror could

conclude that this incident occurred for a reason our society has deemed

repugnant. Thus, Wright-Phillips may proceed on her first theory.

* * *

Wright-Phillips adequately alleges an IIED claim, at least based on her

first theory. United’s motion to dismiss Count 9 will be denied.

L. Count 10: Negligent Training

Wright-Phillips brings a negligent training claim, alleging that United

negligently trained (1) Roe on procedures for supplying passengers with

supplemental oxygen and (2) Roe and Doe on applicable laws governing the

equal treatment of passengers. (Am. Compl. ¶¶ 237, 240.) United only devotes

one sentence of argument to this claim, asserting that it is too conclusory (Mot.

at 34; Reply at 14), so I likewise will be short.

For a negligent training claim, “the plaintiff must prove that (1) an

employer knew or had reason to know that the failure to . . . train an employee

in a certain way would create a risk of harm and (2) that risk of harm

materializes and causes the plaintiff’s damages.” G.A.-H. v. K.G.G., 210 A.3d

907, 916 (N.J. 2019). An airline surely knows that sometimes supplemental

oxygen is needed on flights. (See Am. Compl. ¶ 25 (“[S]upplemental oxygen is

required to be carried on-board aircraft during air travel for first aid

purposes.”).) It follows that an airline knows it needs to train flight crews on

how to provide supplemental oxygen to avoid medical emergencies.

Roe failed to promptly provide oxygen, which by itself might not suggest

negligent training. Her basis for doing so, however, was an alleged policy

prohibiting the administration of oxygen without prior “medical clearance.”

Wright-Phillips has not had the benefit of discovery but reasonably pleads that

this was not in fact the airline’s policy, because she had received oxygen when

request on prior flights. Thus, there is a plausible (though surely not

inescapable) inference that Roe was not properly trained on supplemental

oxygen procedures. This suffices to state a negligent training claim. See Estate

of Kekona v. Alaska Airlines, Inc., No. C18-0116, 2018 WL 1317826, at *3 (W.D.

Wash. Mar. 14, 2018) (negligent training of flight crew can be inferred by their

actions); Adler v. WestJet Airlines, Ltd., 31 F. Supp. 3d 1381, 1388 (S.D. Fla.

2014) (negligent training claim stated when plaintiffs alleged that flight staff

wrongfully ejected them for having a service dog and this resulted from the

airline’s failure to train its personnel regarding their legal obligations to

accommodate service dogs).

Because this theory suffices and United does not discuss the second

specifically, I do not reach it. United’s motion to dismiss Count 10 will be

denied.

M. Count 11: Defamation

Wright-Phillips brings a defamation claim, alleging that Roe and Doe’s

accusations to the PA Police about her conduct were false. (Am. Compl. ¶ 248.)

United—again—devotes little argument to this claim, instead retreating to the

high ground of Twombly. (Mot. at 35; Reply at 14.)

A defamation claim requires “(1) the assertion of a false and defamatory

statement concerning another; (2) the unprivileged publication of that

statement to a third party; [] (3) fault amounting at least to negligence by the

publisher,” and (4) damages. DeAngelis, 847 A.2d at 1267–68 (citation omitted).

On the first element, “[a] statement falsely attributing criminality to an

individual is defamatory as a matter of law.” G.D. v. Kenny, 15 A.3d 300, 310

(N.J. 2011). Although Wright-Phillips does not allege the precise statements

made by Roe and Doe to the PA Police, I can infer that Roe and Doe must have

made some accusation of criminal behavior because that is why someone calls

the police. See Mangan v. Corp. Synergies Grp., Inc., 834 F. Supp. 2d 199, 204

(D.N.J. 2011) (“[A] defamation pleading does not need to cite precise defamatory

statements, it must only provide sufficient notice to the other party of the

allegations made against him.”). Indeed, as Wright-Phillips points out,

informing law enforcement that a passenger is a disturbance raises the risk

that a person could be detained on suspicion of violating 49 U.S.C. § 46504,

which makes it a crime to “interfere[] with the performance of the duties” of a

flight attendant by “assaulting or intimidating” an attendant. Further, Wright-

Phillips alleges that she was not disruptive, so any suggestion to the PA Police

that she was acting criminally or in a way that violated FAA regulations was

false. (Am. Compl. ¶¶ 249–50.) These allegations are sufficient to show a

defamatory statement. See Mangan, 834 F. Supp. 2d at 205 (alleged statements

that plaintiff engaged in “financial improprieties” or “cooked the books” when

he contended he had not done so).

Next, Wright-Phillips must allege “the unprivileged publication of that

statement to a third party.” DeAngelis, 847 A.2d at 1267–68. This simply

means that the statement was “communicated to a person or persons other

than the plaintiff.” Feggans v. Billington, 677 A.2d 771, 775 (N.J. Super. Ct.

App. Div. 1996). A communication from Roe and Doe to the PA Police is such a

statement.

United has not raised any privilege defense. True, in New Jersey,

“citizens have a qualified privilege to make statements to authorities for the

prevention and detection of crime.” Dairy Stores, Inc. v. Sentinel Publ’g Co., 516

A.2d 220, 226 (N.J. 1986); see also Moreau v. Walgreen Co., 387 F. App’x 202,

204 (3d Cir. 2010). But “a statement is not privileged if the person making it

has full knowledge of its untruthfulness.” Geyer v. Faiella, 652 A.2d 1245,

1248 (N.J. Super. Ct. App. Div. 1995). As explained, I must accept Wright-

Phillips’s allegation that whatever was said to the PA Police could not have

been truthful because she had done nothing wrong. Thus, Roe and Doe would

have had knowledge of their accusation’s untruthfulness, and no privilege

applies.13

Third, United does not contend that anyone involved is a public figure or

that the matter is one of public concern, so Wright-Phillips need only plead

that Roe and Doe “communicat[ed] the false statement while acting negligently

in failing to ascertain the truth or falsity of the statement before

communicating it.” Feggans, 677 A.2d at 775. She alleges that they

intentionally made the false accusations, so the fault element is satisfied.

Finally, when the defendant makes a spoken accusation of a crime, a

jury can presume damages. W.J.A. v. D.A., 43 A.3d 1148, 1154 (N.J. 2012) (per

curiam). The damages element is satisfied.

Thus, Wright-Phillips has adequately alleged the elements of a

defamation claim. United’s motion to dismiss Count 11 will be denied.

N. Count 12: Respondeat Superior

Wright-Phillips purports to state a claim for respondeat superior.

Respondeat superior is not an independent cause of action, but a doctrine for

imposing liability on the employer of a person who has committed some tort.

Powell v. Verizon, Civ. No. 19-8418, 2019 WL 4597575, at *13 (D.N.J. Sept. 20,

13 To be sure, when it comes to Doe, all I can tell from the Amended Complaint is

that he acted pursuant to what Roe told him. So he may lack the knowledge or intent

necessary for a defamation claim. But United does not attempt to distinguish between

Roe and Doe, so neither do I.

2019) (citations omitted). “Respondeat superior is not in itself, then, a ‘claim

upon which relief may be granted.’” Id. (quoting Fed. R. Civ. P. 12(b)(6)).

This is not to say that respondeat superior will not apply in this case.

Neither the pleading nor the parties’ briefs have yet attempted to differentiate

the liabilities of the three defendants. Moreover, respondeat superior and other

vicarious liability principles may apply differently to different claims, so we will

need to sort out who can be liable for what.

For now, I merely observe that a respondeat superior count does not set

forth a claim and is superfluous. Count 12 will be dismissed.

O. Punitive Damages

As a final matter, United notes that the Amended Complaint’s prayer for

relief seeks punitive damages, so United proceeds to argue for dismissal of the

request for punitive damages on each of the claims. (Mot. at 36–39.) I will not

reach this argument insofar as it is asserted with respect to claims that are

adequately alleged. As Judge Chesler has explained, “the ‘plausibility’ pleading

regime addresses the types of facts a plaintiff must allege to make out a cause

of action, not the types of damages the alleged cause of action may eventually

warrant.” Jones v. Francis, Civ. No. 13-04562, 2013 WL 5603848, at *2 (D.N.J.

Oct. 11, 2013). As such, “once a civil complaint shows a claim to be ‘facially

plausible,’ nothing in Rule 8 or its judicial gloss suggests, let alone requires,

that this Court scrutinize the damages requested by plaintiff as redress for that

claim.” Id. (citation omitted); see also In re Valsartan, Losartan, & Irbesartan

Prods. Liab. Litig., MDL No. 2875, 2020 WL 8970347, at *11 (D.N.J. Mar. 12,

2020) (adopting position); Zodda v. Nat’l Union Fire Ins. Co. of Pittsburgh, Civ.

No. 13-7738, 2014 WL 1577694, at *6 (D.N.J. Apr. 12, 2014) (same).

I have found that Wright-Phillips states six claims. This case will thus

proceed, and we are a long way off from consideration of damages. Moreover,

the availability, or not, of punitive damages will turn on the evidence produced.

Jones, 2013 WL 5603848, at *2. Except perhaps in the rare, clear case of a

particular form of damages being unavailable, it is too early to rule on such

questions at the motion to dismiss stage.

United’s motion to dismiss any requests in the Amended Complaint for

punitive damages will therefore be denied.

IV. CONCLUSION

For the reasons set forth above, the motion to dismiss is granted in part

and denied in part. Counts 1, 2, 3, 5, 7, and 12 will be dismissed. The

remaining claims (Counts 4, 6, 8, 9, 10, and 11) survive.

A separate order will issue.

Dated: April 1, 2021

/s/ Kevin McNulty

___________________________________

Hon. Kevin McNulty

United States District Judge