LANGLEY v. UNITED AIRLINES INC.

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BRENDAN LANGLEY,

Plaintiff,

Civil Action No. 23-20602 (ES) (CLW)

v.

OPINION

UNITED AIRLINES, INC. et al.,

Defendants.

SALAS, DISTRICT JUDGE

This matter arises from an alleged verbal and physical altercation between Plaintiff

Brendan Langley and a United Airlines, Inc. employee, Philipe Rivera, at Newark Liberty

International Airport that ultimately led to Plaintiff’s detention by the Port Authority of New York

and New Jersey Police Department (“PAPD”). (D.E. No. 1-1 (“Complaint” or “Compl.”)).

Plaintiff asserts claims against Defendants United Airlines, Inc. (“United”), United Ground

Express Inc. (“UGE”), a subsidiary of United that assists United with the customer check-in

process, and Rivera for unlawful discrimination under 42 U.S.C. § 1981 and the New Jersey Law

Against Discrimination, N.J.S.A. 10:5-1, et seq., as well as common law claims for assault, battery,

false imprisonment, intentional infliction of emotional distress, and defamation based on Rivera’s

verbal and physical confrontation with Plaintiff. (Id. ¶¶ 20 & 94–158). Plaintiff also asserts claims

against United and UGE for negligence, and negligent supervision, retention, and training based

on Rivera’s verbal and physical confrontation with Plaintiff. (Id. ¶¶ 159–84). In addition, Plaintiff

brings claims against the Port Authority of New York and New Jersey (“Port Authority”) as well

as officers of Port Authority and PAPD for violations of his civil rights; violations of equal

protection; false arrest; negligence; and negligent training and supervision based on Plaintiff’s

detention in the aftermath of Rivera’s confrontation with Plaintiff. (Id. ¶¶ 175–210). United and

UGE (together, “Defendants”) have moved to dismiss all claims asserted against them in Plaintiff’s

Complaint in Counts I through X. (D.E. No. 2 (“Motion”)). Having considered the parties’

submissions, the Court decides this matter without oral argument. See Fed. R. Civ. P. 78(b); L.

Civ. R. 78.1(b). For the following reasons, Defendants’ Motion is GRANTED and Counts I

through X of Plaintiff’s Complaint, as asserted against United and UGE, are dismissed without

prejudice.

I. BACKGROUND

A. Factual Allegations

According to the Complaint, on May 19, 2022, Plaintiff intended to travel from Atlanta,

Georgia, to Calgary, Canada to join the pre-season training camp with the Calgary Stampeders of

the Canadian Football League. (Compl. ¶¶ 25–26). Plaintiff’s travel itinerary from Atlanta to

Calgary allegedly had a one-stop layover at Newark Liberty International Airport, where Plaintiff

intended to board his connecting flight on United Flight UA8507, which was operated by Air

Canada. (Id. ¶¶ 26–29). Plaintiff alleges that the gate agent refused to allow Plaintiff to board the

connecting flight because Plaintiff’s vaccination status did not meet the requirements for entry into

Canada. (Id. ¶ 30). Because Plaintiff was unable to board United Flight UA8507, he immediately

made arrangements to take a later flight from Newark Liberty International Airport to Calgary that

same day. (Id. ¶ 32). According to the Complaint, to board his next flight, Plaintiff needed to

collect the baggage that he had checked in for his original flight itinerary and proceed to the United

check-in counters to drop off his baggage for the rebooked flight. (Id. ¶ 33). Plaintiff alleges that

after he proceeded to the baggage claim area, he saw a wheelchair in the vicinity but no baggage

carts, and asked an employee of Air Canada whether he could use the wheelchair to transport his

baggage instead. (Id. ¶ 34). The Air Canada employee allegedly told Plaintiff that he could use

the wheelchair. (Id.).

After collecting his baggage and loading it onto the wheelchair, Plaintiff allegedly

proceeded to the upper level of the terminal to re-check his baggage at a United check-in counter.

(Id. ¶ 35). After reaching the upper level, Plaintiff alleges that a United employee by the name of

Philipe Rivera approached Plaintiff and “aggressively demanded” that Plaintiff stop using the

wheelchair. (Id. ¶ 36). Though Plaintiff allegedly attempted to walk past Rivera, Plaintiff claims

that Rivera grabbed and yanked Plaintiff’s arm from behind and began harassing Plaintiff “in an

increasingly intimidating tone and manner.” (Id. ¶¶ 38–39). To avoid any confrontation, Plaintiff

explained to Rivera that he had been denied boarding on his original connecting flight and just

wanted to make his next flight without causing any problems. (Id. ¶ 41). Plaintiff alleges that

Rivera continued to harass Plaintiff even after Plaintiff reached the United check-in counters by

“hurling expletives” at Plaintiff. (Id. ¶¶ 42–48). Thereafter, Rivera allegedly shoved Plaintiff

aggressively, prompting Plaintiff to “defend himself . . . with a single open hand slap to the left

side of Rivera’s face.” (Id. ¶ 49). Rivera then immediately “squared back to [Plaintiff], balled his

hands in a fist, flared his chest, and continued to verbally harass [Plaintiff].” (Id. ¶ 50). Plaintiff

alleges that in order to protect himself, he struck Rivera multiple times and shoved Rivera back

into a check-in counter. (Id. ¶¶ 51–53). Plaintiff then took “several steps backwards, hoping that

his encounter with [Rivera] would come to an end.” (Id. ¶ 54). However, Plaintiff alleges that as

he was facing the other way, Rivera again approached Plaintiff and “used his open left hand to

strike the right side of [Plaintiff’s] face while simultaneously grabbing [Plaintiff’s] face and neck

to shove [Plaintiff] violently.” (Id. ¶ 57). Plaintiff then struck Rivera two more times, knocking

Rivera into and over the check-in counters. (Id. ¶ 59). At that point, Plaintiff alleges that another

United employee walked Rivera to an employee-only area behind the check in counters. (Id. ¶

61).

Thereafter, three or four PAPD officers arrived at the scene and handcuffed Plaintiff. (Id.

¶¶ 63–65). Ultimately, the PAPD officers told Plaintiff that they were going to have to take him

“in” and transported Plaintiff to a holding facility while they investigated the incident and reviewed

security footage. (Id. ¶¶ 71–75). Plaintiff alleges that he was detained at the holding facility for

approximately five to six hours before being informed that he would be released. (Id. ¶ 76). At

that point, Plaintiff was handed a Complaint and Summons by one of the PAPD officers, which

stated that Plaintiff had assaulted Rivera in violation of N.J.S.A. 2C:12-1(A)1. (Id. ¶¶ 78–80). On

July 13, 2022, Plaintiff appeared at the Municipal Court of Essex County, Newark, New Jersey to

respond to the Complaint; during that appearance, Rivera indicated that he wished to dismiss the

complaint against Plaintiff. (Id. ¶¶ 91–92). After learning about the incident between Plaintiff

and Rivera, the Calgary Stampeders released a press statement that they would be “indefinitely

suspending [] Langley” from their team. (Id. ¶ 88).

B. Procedural History

Plaintiff initiated this action in Essex County Superior Court (Law Division), New Jersey

on May 19, 2023. (See Compl.). Plaintiff’s Complaint alleges a total of 14 counts. (Id. ¶¶ 94–

210). The first seven counts allege common law tort and statutory claims against Rivera, United,

and UGE (as well as fictitiously-named defendants) arising out of Rivera’s instigation of a verbal

and physical confrontation with Plaintiff, including for (i) false imprisonment; (ii) assault; (iii)

battery; (iv) intentional infliction of emotional distress; (v) defamation; (vi) violation of the New

Jersey Law Against Discrimination (“NJLAD”); and (vii) denial of equal rights under the law in

violation of 42 U.S.C. § 1981. (Id. ¶¶ 94–158). In counts eight through ten Plaintiff also brings

claims against United and UGE for (viii) negligent retention and supervision; (ix) negligent

training; and (x) negligent failure to provide reasonably safe premises. (Id. ¶¶ 158–84). Plaintiff

also alleges the tenth Count for negligent failure to provide reasonably safe premises against

Defendants Port Authority; John Bilich, the chief security officer for Port Authority; and Huntley

Lawrence, the chief operating officer for Port Authority. (Id. ¶¶ 9–10 & 175–84). Plaintiff’s

eleventh through fourteenth Counts arise out of Port Authority and the PAPD’s arrest and detention

of Plaintiff in the aftermath of Rivera’s confrontation with Plaintiff and include claims against Port

Authority as well as officers of Port Authority and PAPD, including Edward Cetnar, the

superintendent of police for PAPD; Louis P. Klock, the deputy superintendent of police for the

PAPD; Emilio Gonzalez, the chief of police operations for the PAPD; and E. Boquiren, a police

officer for Port Authority. Counts Eleven through Fourteen assert claims for (xi) violations of

civil rights; (xii) violations of equal protection; (xiii) false arrest; and (xiv) negligent training and

supervision. (Id. ¶¶ 6–8, 11 & 185–210).

On September 22, 2023, United and UGE removed the case to this Court. (See D.E. No.

1). On September 29, 2023, United and UGE filed a motion to dismiss Counts I through X of

Plaintiff’s Complaint as asserted against them, pursuant to Federal Rule of Civil Procedure

12(b)(6). (See Motion; D.E. No. 2-1 (“Mov. Br.”)). The Motion is fully briefed. (D.E. No. 13

(“Opp. Br.”); D.E. No. 15 (“Reply”)).1

1 In Reply, Defendants note that “[t]he Court should be alerted to the fact that Plaintiff’s Opposing Brief

improperly fails to comply with the typeface and page limitations set forth in Local Rule 7.2(d).” (Reply at 1 n.1).

Even if Plaintiff failed to comply with any such requirements, the Court has discretion to overlook such shortcomings

“in the interests of judicial efficiency and fairness,” and finds it appropriate to do so here. Agostino v. Costco

Wholesale Corp., No. 19-8976, 2019 WL 6080242, at *6 (D.N.J. June 24, 2019), report and recommendation adopted,

No. 19-8976, 2019 WL 6050746 (D.N.J. Nov. 7, 2019).

II. LEGAL STANDARD

A. Rule 12(b)(6)

In assessing whether a complaint states a cause of action sufficient to survive dismissal

under Rule 12(b)(6), the Court accepts “all well-pleaded allegations as true and draw[s] all

reasonable inferences in favor of the plaintiff.” City of Cambridge Ret. Sys. v. Altisource Asset

Mgmt. Corp., 908 F.3d 872, 878 (3d Cir. 2018). “[T]hreadbare recitals of the elements of a cause

of action, legal conclusions, and conclusory statements” are all disregarded. Id. at 878–79 (internal

quotation marks omitted) (quoting James v. City of Wilkes-Barre, 700 F.3d 675, 681 (3d Cir.

2012)). The complaint must “contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face,” and a claim is facially plausible when the plaintiff “pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Zuber v. Boscov’s, 871 F.3d 255, 258 (3d Cir. 2017) (internal

quotation marks omitted) (first quoting Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir.

2010); and then quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

While the Court generally “may not consider matters extraneous to the pleadings” when

deciding a Rule 12(b)(6) motion, In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426

(3d Cir. 1997), an exception to this general rule provides that the Court may also consider “exhibits

attached to the complaint, matters of public record, as well as undisputedly authentic documents

if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223,

230 (3d Cir. 2010); see also Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006)

(noting that, pursuant to Rule 12(b)(6), the Court “may consider documents that are attached to or

submitted with the complaint, and any ‘matters incorporated by reference or integral to the claim,

items subject to judicial notice, matters of public record, orders, [and] items appearing in the record

of the case’”) (first citing Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.

2002); and then quoting 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure

§ 1357 (3d ed. 2004)). Thus, “a court may consider ‘an undisputedly authentic document that a

defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the

document.’” Fuller v. Rozlin Fin. Grp., Inc., No. 19-20608, 2020 WL 5036215, at *2 (D.N.J. Aug.

26, 2020) (quoting Clemons v. Midland Credit Mgmt., Inc., No. 18-16883, 2019 WL 3336421, at

*2 (D.N.J. July 25, 2019)).

III. DISCUSSION

United and UGE move to dismiss Plaintiff’s Complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6), contending that none of the purported causes of action against United and

UGE in Counts I through X of Plaintiff’s Complaint state a claim upon which relief can be granted.

(Mov. Br. at 6–26). The Court considers the sufficiency of each of these causes of action in turn.

A. Defamation (Count V)

Plaintiff seeks to hold United and UGE liable based on the fact that Rivera allegedly

published false statements of fact, omitted material facts, and/or acted with reckless disregard as

to their truth or falsity to procure Plaintiff’s arrest, detention, interrogation, and criminal charge.

(Compl. ¶¶ 132–39). United and UGE move to dismiss this claim, arguing among other things

that Plaintiff has offered only a formulaic recitation of the elements of a defamation claim, has

failed to identify the allegedly defamatory statements made, and has offered no supporting factual

allegations to make a showing that United or UGE or anyone acting on their behalves made any

false statement, much less “with reckless disregard as to their truth or falsity.” (Mov. Br. at 15–

16 (emphasis in original)). In opposition, Plaintiff contends that he is not required to allege precise

defamatory statements to maintain his defamation claim and maintains that he has instead

sufficiently alleged supporting facts that allow this Court to “infer” that Rivera (and potentially

other United and UGE employees) “falsely accused Plaintiff of criminal behavior during their

interactions with the PAPD, including, but not limited to, when summoning the PAPD, assisting

PAPD officers with their investigation, and answering questions from PAPD officers before and

after Plaintiff’s arrest and detention.” (Opp. Br. at 16). For the reasons set forth below, the Court

agrees with Defendants and finds that Plaintiff’s defamation claim asserted against them must be

dismissed.

To sufficiently state a claim for defamation, a plaintiff must allege (i) the assertion of a

false and defamatory statement concerning the plaintiff, (ii) the unprivileged publication of that

statement to a third party, (iii) fault amounting to at least negligence by the publisher, and (iv)

damages. DeAngelis v. Hill, 847 A.2d 1261, 1267–68 (2004) (citation omitted). While “a

defamation pleading does not need to cite precise defamatory statements, it must . . . provide

sufficient notice to the other party of the allegations made against [it].” Cristelli v. Filomena II,

Inc., No. 99-2862, 1999 WL 1081290, at *3 (D.N.J. Dec. 1, 1999) (emphasis added). The

“pleading must allege the elements of defamation . . . to a degree of sufficient specificity.” Mangan

v. Corp. Synergies Grp., Inc., 834 F. Supp. 2d 199, 204 (D.N.J. 2011). In other words, a plaintiff

“‘must plead facts sufficient to identify the defamatory words, their utterer[,] and the fact of their

publication. A vague conclusory allegation is not enough.’” Robles v. U.S. Env’t Universal Servs.,

Inc., 469 F. App’x 104, 109 (3d Cir. 2012) (quoting Zoneraich v. Overlook Hosp., 514 A.2d 53,

63 (N.J. Super. Ct. App. Div. 1986)); see also F.D.I.C. v. Bathgate, 27 F.3d 850, 875 (3d Cir.

1994). “A plaintiff can bolster a defamation cause of action through discovery but not [ ] file a

conclusory complaint to find out if one exists.” Printing Mart–Morristown v. Sharp Elec. Corp.,

563 A.2d 31, 46 (N.J. 1989) (internal quotation marks and citation omitted).

Even accepting the facts of Plaintiff's Complaint as true, the Court finds that Plaintiff has

failed to sufficiently allege a plausible claim for defamation against United and UGE. As stated,

to support his claim against United and UGE for defamation, Plaintiff alleges that Rivera allegedly

“published false statements of fact, omitted material facts, and/or acted with reckless disregard as

to their truth or falsity” “to procure Plaintiff’s arrest, detention, interrogation, and criminal charge.”

(Compl. ¶ 136). However, as Defendants point out (Mov. Br. at 15–16), Plaintiff has not identified

any false or defamatory words that were uttered by Rivera or Defendants concerning Plaintiff. Nor

has Plaintiff offered any supporting factual allegations to make a showing that United or UGE or

anyone acting on their behalves made any false statement or defamatory statements, much less

with negligence or reckless disregard as to their truth or falsity. In fact, though Plaintiff alleges

that Rivera allegedly published false statements of fact, omitted material facts, and/or acted with

reckless disregard as to their truth or falsity “to procure Plaintiff’s arrest, detention, interrogation,

and criminal charge,” he at no point alleges that Rivera or any other employee of United or UGE

summoned PAPD to the scene of the altercation or uttered any particular defamatory words to

PAPD regarding Plaintiff. (Compl. ¶ 136). Such “vague” and “conclusory” allegations are

insufficient to maintain a claim against Defendants for defamation. F.D.I.C., 27 F.3d at 875; see

also Doe v. Sebrow, No. 21-20706, 2023 WL 2596880, at *3 (D.N.J. Mar. 22, 2023) (dismissing

claim for defamation where plaintiff failed to explain the nature of the allegedly defamatory

statements or provide any other information to give the defendant notice of the allegations made

against him); Russomanno v. Sunovion Pharms., Inc., No. 22-5032, 2023 WL 2649453, at *3

(D.N.J. Mar. 27, 2023), aff’d, No. 23-1587, 2023 WL 6374191 (3d Cir. July 17, 2023) (dismissing

defamation claim where the plaintiff’s complaint failed to allege with specificity that (i) the

defendant made false and defamatory statements concerning her and (ii) that defendant made those

statements negligently); Foy v. Wakefern Food Corp., No. 09-1683, 2010 WL 147925, at *6

(D.N.J. Jan. 7, 2010) (dismissing defamation claim for providing no information “beyond mere

conclusory statements” and failing to plead facts sufficient to “identify the defamatory words, their

utterer[,] and the fact of their publication”).

Plaintiff’s cited case law does not compel a contrary conclusion. In opposition, Plaintiff

cites to Wright-Phillips v. United Airlines, Inc., No. 20-14609, 2021 WL 1221111 (D.N.J. Apr. 1,

2021), to support his assertion that a defamation pleading does not need to cite precise defamatory

statements to state a claim but must only provide sufficient notice to the other party of the

allegations made against him. (Opp. Br. at 15–16). The Court, however, finds Wright-Phillips

distinguishable. In Wright-Phillips, the plaintiff suffered an anxiety attack while aboard a United

Airlines flight, but the flight attendant refused to supply her with requested oxygen. Wright-

Phillips, 2021 WL 1221111, at *1–2. 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. Id. The plaintiff brought a claim against United for defamation, alleging that its

employees’ accusations to the police about her disruptive conduct were false. Id. at *18–19. The

court concluded that it could infer that the United employees must have made some accusation of

criminal behavior against the plaintiff because they called the police to report the plaintiff’s

disruptive conduct and “informing law enforcement that a passenger is a disturbance raises the risk

that a person could be detained on suspicion of” committing a criminal offense. Id. at *19.

Because a statement falsely attributing criminality to an individual is defamatory as a matter of

law, the court found that the plaintiff had adequately stated a claim for defamation. Id. Here,

though Plaintiff alleges that one of the PAPD officers eventually “check[ed] on Rivera” (Compl.

¶ 67), there are no allegations as to how or why PAPD arrived at the scene, or that it was Rivera

who called them, or that Rivera or any other employee of United or UGE even spoke with them

about Plaintiff’s conduct while at the scene, let alone that Rivera or any other employee of United

or UGE uttered any particular defamatory words to PAPD regarding Plaintiff. In fact, Plaintiff

alleges that when PAPD officers arrived at the scene it was a witness “who was not a United

employee nor an employee of any airline, security, or other airport personnel” that accused

“Plaintiff of being the aggressor.” (Id. ¶ 68). As such, unlike in Wright-Phillips, Plaintiff has not

set forth sufficient facts to provide Defendants with notice of the allegations of defamatory conduct

made against them. Therefore, Count V as asserted against United and UGE must be dismissed.2

B. NJLAD (Count VI)

Plaintiff next seeks to hold United and UGE liable for racial discrimination under the

NJLAD—specifically, N.J.S.A. 10:5-12(f). (Compl. ¶¶ 140–52; Opp. Br. at 17–19). Defendants

move to dismiss this claim, arguing that Plaintiff has failed to allege any facts that indicate that

Plaintiff was subject to discrimination because of his race. (Mov. Br. at 17–19). They point out

that although Plaintiff alleges he “is African American” (Complaint ¶ 21) and Rivera is “of Latin

American decent” (id. ¶ 37), the Third Circuit and the District of New Jersey have repeatedly held

that mere allegations of difference in race are insufficient to support a claim of racial

discrimination. (Mov. Br. at 17). In opposition, Plaintiff argues that an inference that Rivera’s

conduct was motivated by a racial animus can reasonably be drawn based on Rivera’s

disproportionate response to observing Plaintiff using a wheelchair. (Opp. Br. at 19). For the

reasons set forth below, the Court agrees with Defendants and finds that Plaintiff’s NJLAD claim

as asserted against United and UGE must be dismissed.

2 Plaintiff asserts a right to recover against United and UGE for the alleged conduct of Rivera based on a theory

of vicariously liability as to his claim for defamation. Nevertheless, as discussed, Plaintiff has failed to state a plausible

claim for defamation. And without an underlying claim, there can be no respondeat superior liability. See Moriarty

v. Classic Auto Grp., Inc. et al., No. 13-5222, 2014 WL 884761, at *6 (D.N.J. Mar. 6, 2014).

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 . . .” N.J.S.A. § 10:5-12(f)(1). “To state a claim under the NJLAD

for discrimination by a place of public accommodation, a Plaintiff must, (1) ‘demonstrate that []he

is a member of a protected class’; (2) must ‘show that the defendant’s actions were motivated by

discrimination’; and (3) must demonstrate that ‘others not within the protected class did not suffer

similar adverse . . . actions.’” Florentino v. City of Newark, No. 19-21055, 2020 WL 5105291, at

*14 (D.N.J. Aug. 31, 2020) (quoting Partovi v. Felician Coll., No. A-1961-09T1, 2011 WL

867275, at *7–8 (N.J. Super. Ct. App. Div. Mar. 15, 2011)). Plaintiff has demonstrated that he is

a member of a protected class by alleging that he is “African-American.” (Complaint ¶ 21).

However, he has failed to adequately plead the second and third elements to maintain a NJLAD

claim against United and UGE.

To meet the second element, Plaintiff must allege facts sufficient to create an inference that

Defendants’ actions were motivated by racial discrimination. See Phillips v. New Jersey Transit,

No. 19-13427, 2021 WL 1661087, at *9 (D.N.J. Apr. 28, 2021). Conclusory allegations of

discrimination are insufficient. Florentino, 2020 WL 5105291, at *14. Here, Plaintiff makes only

conclusory allegations of racial discrimination—that Defendants, including Rivera, subjected him

to discrimination “by, among other things, using verbal threats and violent physical force directed

specifically at [Plaintiff],” prevented Plaintiff from checking his baggage so he could proceed to

boarding his flight without legal justification, and caused him to be detained, arrested, interrogated,

and criminally charged because of his race. (Compl. ¶¶ 140–52). However, Plaintiff does not

allege any facts to support his assertion that Rivera or anyone else acting on United or UGE’s

behalves took these actions against Plaintiff based on his race. Although Plaintiff alleges he “is

African American” (id. ¶ 21) and Rivera is “of Latin American decent,” (id. ¶ 37), mere allegations

of difference in race are insufficient to support a claim of racial discrimination. Collick v. William

Paterson Univ., No. 16-0471, 2016 WL 6824374, at *13 (D.N.J. Nov. 17, 2016) (dismissing

NJLAD claim for racial discrimination where plaintiff only alleged that parties were different races

since “[v]oicing a grievance and identifying the participants by race is not enough, standing alone,

to support an inference of racial discrimination”). Accordingly, Plaintiff's allegations that he was

discriminated against on the basis of race, without more, is conclusory and does not plausibly

establish the second element of a NJLAD claim. See Reed v. Jersey City, No. 21-3921, 2022 WL

166462, at *4 (D.N.J. May 24, 2022) (“Plaintiff’s allegations that he was discriminated against on

the basis of race through racial profiling, without more, is conclusory and does not establish the

remaining elements of a NJLAD public accommodation discrimination claim.”); Chong v. City of

Hoboken, No. 21-15825, 2022 WL 3357899, at *4 (D.N.J. Aug. 15, 2022) (“Plaintiff contends, in

a conclusory fashion, that by ‘booting [his] vehicle’ Hoboken unlawfully discriminated against

him on the basis of his status as a Korean American. While [p]laintiff has alleged that he is a

member of a protected class, [p]laintiff has not alleged a nexus between his race and the booting

of his vehicle . . . Without more, Plaintiff has not plausibly alleged a violation of the NJLAD”).

Plaintiff has also failed to adequately allege the third element, as he has not alleged

sufficient facts to indicate that others outside of his protected class received different treatment

from Rivera or anyone else acting on United or UGE’s behalves. (See generally Compl.).

Accordingly, Plaintiff’s NJLAD claim for discrimination by a place of public accommodation

(Count VI) is dismissed as to United and UGE. See Florentino, 2020 WL 5105291, at *14

(dismissing NJLAD claim where the plaintiff “failed to allege facts that indicate others outside of

her protected class received different treatment”); Partovi, 2011 WL 867275, at *8 (affirming

dismissal of plaintiffs NJLAD claim, in part because they “did not allege any facts that indicate

that [an individual plaintiff] was treated differently than other students based on her national origin

or any other protected characteristic”).

Plaintiff’s cited case law does not compel this Court to reach a contrary conclusion. To

support his claim that he has adequately stated a claim for racial discrimination under the NJLAD,

Plaintiff cites to Wright-Phillips v. United Airlines, Inc., No. 20-14609, 2021 WL 1221111 (D.N.J.

Apr. 1, 2021). (Opp. Br. at 18–19). The Court, however, finds Wright-Phillips distinguishable.

As described above, in Wright-Phillips, the plaintiff suffered an anxiety attack while aboard a

United Airlines flight, but the flight attendant refused to supply her with requested oxygen. Id. at

*1–2. 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. Id. The court found

that the plaintiff adequately stated a claim for racial discrimination under the NJLAD because the

complaint alleged differential treatment on the basis of race, including that the flight attendant

spoke to the plaintiff, who was Black, “with a dismissive and disdainful attitude” and refused to

serve her despite her “demonstrable need for help,” yet expressed concern for a white passenger

“who had not shown any need for such concern.” Id. at *9–14. In contrast, here, Plaintiff makes

only conclusory allegations of racial discrimination and has not alleged sufficient facts to indicate

that others outside of his protected class received different treatment from Rivera or any other

United or UGE employee.3

3 Plaintiff asserts a right to recover against United and UGE for the alleged conduct of Rivera based on a theory

of vicariously liability as to his claim under the NJLAD (Count VI). Nevertheless, as discussed, Plaintiff has failed

to state a plausible claim under the NJLAD. And without an underlying claim, there can be no respondeat superior

liability. See Moriarty, 2014 WL 884761, at *6.

C. 42 U.S.C. § 1981 (Count VII)

Plaintiff next seeks to hold United and UGE liable for racial discrimination in violation of

42 U.S.C. § 1981. (Compl. ¶¶ 153–58). Defendants move to dismiss this claim, arguing that

Plaintiff has failed to allege any facts that United or UGE, or any other Defendant, intended to

discriminate against Plaintiff on the basis of his race. (Mov. Br. at 19–20). In opposition, Plaintiff

again argues that an inference that Rivera’s conduct was motivated by a racial animus can

reasonably be drawn based on Rivera’s disproportionate response to observing Plaintiff using a

wheelchair. (Opp. Br. at 19–20). For the reasons set forth below, the Court agrees with Defendants

and finds that Plaintiff’s claim asserted against them under 42 U.S.C. § 1981 must be dismissed.

Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall

have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the

full and equal benefit of all laws and proceedings for the security of persons and property as is

enjoyed by white citizens.” 42 U.S.C. § 1981(a). “To establish a right to relief under § 1981, a

plaintiff must show (1) that he belongs to a racial minority; (2) ‘an intent to discriminate on the

basis of race by the defendant; and (3) discrimination concerning one or more of the activities

enumerated in’ § 1981[.]” Pryor, 288 F.3d at 569 (quoting Brown v. Philip Morris Inc., 250 F.3d

789, 797 (3d Cir. 2001)). The plaintiff must also plead that “but for race,” he would “not have

suffered the loss of a legally protected right.” Wright-Phillips, 2021 WL 1221111, at *8 (quoting

Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 589 U.S. 327, 341 (U.S. 2020)). And to

establish a § 1981 claim, a plaintiff must still establish that the defendant treated him “differently

than others outside of the protected class who were similarly situated.” Williams v. Wells Fargo

Bank, N.A., No. 16-1003, 2016 WL 4370033, at*4 (D.N.J. Aug. 10, 2016) (quoting Anderson v.

Wachovia Mortgage Corp., 609 F. Supp. 2d 360, 369–70 (D. Del. Apr. 3, 2009)).

Here, Plaintiff has failed to allege facts that show that Defendants intended to discriminate

against Plaintiff because of his race. Again, Plaintiff makes only conclusory allegations of racial

discrimination—that Defendants, including Rivera, denied him full and equal treatment under the

laws of the United States on the basis of his race by, among other things, using verbal threats and

violent physical force directed specifically at Plaintiff, preventing Plaintiff from checking his

baggage so he could proceed to boarding his flight without legal justification, and causing him to

be detained, arrested, interrogated, and criminally charged. (Compl. ¶¶ 140–58). However,

Plaintiff has failed to allege any facts which would allow the Court to infer that discriminatory

animus by Rivera or Defendants, or any other employee of United or UGE, motivated these

actions. Nor has Plaintiff alleged any facts indicating that Defendants, or anyone else acting on

their behalves, treated Plaintiff differently than others outside of the protected class who were

similarly situated. While Plaintiff is “not required to prove discriminatory intent at the motion to

dismiss stage,” these allegations alone do not “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) (internal

quotation marks and citation omitted); see also Bridgeforth v. Am. Educ. Services, 412 F. App’x

433, 435 (3d Cir. 2011) (affirming a district court’s dismissal of a plaintiff’s § 1981 claim

“generally alleg[ing] ‘race discrimination’” because “merely reciting an element of a cause of

action or making a bare conclusory statement is insufficient”); Williams, 2016 WL 4370033, at *4

(dismissing Section 1981 claim where plaintiff failed to “establish that [d]efendant treated him

differently than others outside of the protected class who were similarly situated” (internal

quotation marks and citation omitted)). And again, although Plaintiff alleges he “is African

American” (Complaint ¶ 21) and Rivera is “of Latin American decent,” (id. ¶ 37), as Defendants

point out (Mov. Br. at 17), mere allegations of difference in race are insufficient to support a claim

of racial discrimination. See Abdullah v. Small Bus. Banking Dep’t of Bank of Am., 532 F. App’x

89, 91 (3d Cir. 2013) (“That the plaintiff and defendant are different races is not sufficient to

plausibly state a claim of racial discrimination.”); Holmes v. Fed Ex, 556 F. App’x 150, 151 (3d

Cir. 2014) (“Holmes relies on Benedict’s awareness of her race, but that mere awareness,

particularly in light of the conclusory nature of Holmes’s other allegations, is patently insufficient

to raise an inference of discrimination under § 1981.”). Plaintiff’s cited authority does not compel

a contrary conclusion because the challenged complaint in that case alleged specific facts that

plausibly supported an inference of discriminatory intent. See Wright-Phillips, 2021 WL 1221111,

at *9–10 (Section 1981 claim against United survived motion to dismiss where complaint alleged

differential treatment on basis of race, including that flight attendant spoke to Black passenger

“with a dismissive and disdainful attitude” and refused to serve her despite her “demonstrable need

for help,” yet expressed concern for white passenger “who had not shown any need for such

concern”). Accordingly, Plaintiff’s claim for discrimination under 42 U.S.C. § 1981 (Count VII)

is dismissed as to Defendants.4

D. Negligent Retention, Supervision and Training (Counts VIII and IX)

Plaintiff next asserts claims against United and UGE for (i) negligent retention and

supervision (Count VIII), and (ii) negligent training (Count IX). (Compl. ¶¶ 159–74).

Specifically, Plaintiff alleges that Defendants had a duty to exercise reasonable care in the makeup

of their workforce and the training of their employees to protect Plaintiff, and other persons,

“against the unlawful denial of services, hostile conduct, discrimination, malicious harassment,

4 As stated, “[t]o establish a right to relief under § 1981, a plaintiff must show (1) that he belongs to a racial

minority; (2) ‘an intent to discriminate on the basis of race by the defendant; and (3) discrimination concerning one

or more of the activities enumerated in’ § 1981[.]” Pryor, 288 F.3d at 569 (citation omitted). In addition to arguing

that Plaintiff has failed to adequately allege an intent to discriminate, Defendants also move to dismiss Plaintiff’s §

1981 claim because he has failed to allege discrimination concerning one or more of the activities enumerated in’ §

1981. (Mov. Br. at 19–20). Nevertheless, because the Court has found that Plaintiff has failed to adequately allege

an intent to discriminate, it need not reach this argument.

and other unlawful tortious conduct” as alleged in the Complaint. (Id. ¶¶ 162 & 170). Defendants

move to dismiss these claims, contending that Plaintiff has done nothing more than offer a

formulaic recitation of the elements of a claim for negligent retention and supervision and

negligent training, without providing the factual basis for the conclusory allegations on which this

claim is composed. (Mov Br. at 20–24). In opposition, Plaintiff asserts that he has alleged

sufficient facts to maintain claims for negligent retention and supervision and negligent training

because Defendants had reason to know that their employees would interface with United

customers, passengers, and business invitees, and that a failure to properly train employees on

conflict management, de-escalation, and intervention creates a risk of harm to such persons,

including Plaintiff. (Opp. Br. at 20–21). Furthermore, Plaintiff contends that because numerous

United and/or UGE employees stood idly by while Rivera’s attacks on Plaintiff continued, the

Complaint provides a plausible inference that Rivera and other employees were not properly

trained on procedures for handling escalating conflicts between United’s workforce and their

customers. (Id. at 21). For the reasons set forth below, the Court agrees with Defendants and finds

that Plaintiff’s claims against United and UGE for negligent retention and supervision (Count VIII)

and negligent training (Count IX) must be dismissed.

A claim for negligent retention requires the plaintiff to plead facts demonstrating that: “(1)

that the employer ‘knew or had reason to know of the particular unfitness, incompetence or

dangerous attributes of the employee and could reasonably have foreseen that such qualities

created a risk of harm to other persons’ and (2) ‘that, through the negligence of the employer in

hiring the employee, the latter’s incompetence, unfitness or dangerous characteristics proximately

caused the injury.’” G.A.-H. v. K.G.G., 210 A.3d 907, 916 (N.J. 2019) (quoting Di Cosala v. Kay,

450 A.2d 508, 515 (N.J. 1982)); Moretz v. Trustees of Princeton, No. 21-19822, 2023 WL

9017155, at *3 (D.N.J. Dec. 29, 2023). “Critically, timing is important in tort of negligent

retention. The employee’s incompetence, unfitness, or dangerous attribute must be known to the

employer before the employee takes the action which causes a plaintiff’s injury.” Westberry v.

State Operated Sch. Dist. of Newark, No. 15-7998, 2017 WL 2216395, at *11 n.11 (D.N.J. May

19, 2017) (emphasis in original). For negligent supervision or training, “the plaintiff must satisfy

what is essentially the same standard, but framed in terms of supervision or training. That is to

say, the plaintiff must prove that (1) an employer knew or had reason to know that the failure to

supervise or 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., 210 A.3d at 916.

Plaintiff has not stated negligent retention or supervision claims, nor has he stated a claim

for negligent training. Here, Plaintiff broadly alleges that Defendants breached their duty of care

by failing to properly retain, supervise, and train their workforce because they knew or should have

known of the particular unfitness, incompetence, or dangerous attributes of Rivera and that such

attributes could result in physical or emotional injuries to Plaintiff, particularly without proper

supervision and training. (Compl. ¶¶ 159–74). However, Plaintiff does not allege any facts to

support an inference that Rivera, or any other employee of Defendants, was particularly unfit,

incompetent, or dangerous before the altercation between Rivera and Plaintiff took place. Nor

does he allege that Defendants knew or had reason to know of any unfitness of Rivera or any other

employee of Defendants at the time of retention or at any other time before the altercation took

place.5 Further, while Plaintiff offers a conclusory allegation that United and UGE failed to have

5 Though the Complaint alleges that Defendants should have known of the particular unfitness, incompetence,

or dangerous attributes of Rivera because of Rivera’s treatment of United’s business invitees in a hostile manner

throughout the course of his employment, the Complaint offers no factual allegations to support the conclusory

allegation that Rivera treated United’s business invitees, other than Plaintiff, in a hostile manner. (Compl. ¶ 160).

Without additional allegations indicating what conduct Rivera had engaged in with respect to United’s business

invitees before the altercation with Plaintiff took place, the Court cannot plausibly infer that Rivera was particularly

“anti-harassment and discrimination policies [or] effective formal and informal training” in place

(Id. ¶ 173), Plaintiff fails to allege any specific facts to indicate that Defendants failed to supervise

or train Rivera or any other employee and that there was a reasonable foreseeability that the failure

to supervise or train Rivera or any other employee in a certain way would create the risk of harm

to Plaintiff alleged here. The Complaint merely parrots the elements for claims of negligent

retention, supervision, and training. (See id.). However, restatements of the elements of a claim

are legal conclusions not entitled to a presumption of truth. Burtch v. Milberg Factors, Inc., 662

F.3d 212, 224 (3d Cir. 2011). Accordingly, Plaintiff’s claims against United and UGE for

negligent retention and supervision (Count VIII) and negligent training (Count IX) must be

dismissed. See Hoffman v. Silverio-Delrosar, No. 20-13291, 2021 WL 2434064, at *4 (D.N.J.

June 15, 2021) (“Here, the [c]omplaint states that Uber and Rasier failed to implement or

administer effective policies, screening, training, and supervision. But [p]laintiff provides no

specific allegations to support this claim. In fact, [p]laintiff does not even allege that prior to the

current incident, Silverio-Delrosar was unqualified or unfit to be an Uber driver. Without

sufficient factual support, [p]laintiff fails to plausibly plead a negligent training, supervision, or

hiring claim.”); see also Conserve v. City of Orange Twp., No. 21-0872, 2022 WL 1617660, at *6

(D.N.J. May 23, 2022) (dismissing negligent supervision and training claim where plaintiffs failed

to “specify how and in what way” defendant knew or had reason to know of employee’s alleged

unfitness or that defendant “could reasonably have foreseen that such qualities created a risk of

harm to other persons”); Beaman v. Bank of Am., N.A., No. 21-20561, 2023 WL 4784254, at *19

(D.N.J. July 27, 2023) (dismissing negligent hiring, supervision, and retention claim where the

plaintiffs only generally alleged that the defendant failed to conduct background checks or take

unfit, incompetent, or dangerous before his employment or that Defendants knew or had reason to know of any

unfitness of Rivera.

other security measures when hiring its employees, because such allegations did not indicate that

defendant knew or should have known the employees hired and retained were “violent or

aggressive” or “might engage in injurious conduct” and were insufficient to establish reasonably

foreseeability that the employee would injure a customer in the performance of their duties due to

negligent supervision).

Plaintiff’s remaining arguments in opposition are unavailing. Plaintiff contends that

because numerous United and/or UGE employees stood idly by while Rivera’s attacks on Plaintiff

continued, the Complaint provides a plausible inference that Rivera and other employees were not

properly trained on procedures for handling escalating conflicts between United’s workforce and

their customers. (Opp. Br. at 21). The Court is not convinced. As in all negligence cases,

“[f]oresight, not hindsight, is the standard by which one’s duty of care is to be judged.” See Hill

v. Yaskin, 380 A.2d 1107, 1109 (1977) (quoting 57 Am. Jur. 2d Negligence, § 58 (1970)). As

already stated, Plaintiff does not allege any facts supporting an inference that Rivera, or any other

employee of Defendants, was particularly unfit, incompetent, or dangerous before the altercation

between Rivera and Plaintiff took place or that Defendants knew or had reason to know of any

unfitness of Rivera or any other employee of Defendants at the time of retention or at any other

time before the altercation took place. Nor does Plaintiff allege facts indicating how Defendants

failed to supervise or train their employees and that the failure to supervise or train their employees

in a certain way would create the risk of harm alleged here. And the Court will not rely on

hindsight—the conduct of United employees at the time the altercation between Rivera and

Plaintiff took place—to measure Defendants’ duty of care. See Hill, 380 A.2d at 1109; Brijall v.

Harrah’s Atl. City, 905 F. Supp. 2d 617, 621 (D.N.J. 2012) (“As with the negligent supervision

claim, [p]laintiff’s sole evidence of negligent training is surveillance footage from which he argues

a jury can determine if Camara was properly trained. However, absent any evidence as to what

Harrah’s training policies were and how they failed to consider the type of injury that occurred in

this case, the video evidence is purely an example of hindsight being used as the standard to

measure Harrah’s duty of care.”).6

E. Negligent Failure to Provide Reasonably Safe Premises (Count X)

Plaintiff next asserts claims against United and UGE for negligent failure to provide

reasonably safe premises. (Compl. ¶¶ 175–84). Specifically, Plaintiff contends that Defendants

breached their duty of care by failing to provide reasonably safe premises as indicated by the lack

of meaningful intervention during Rivera’s escalating hostile, harassing, and tortious conduct

towards Plaintiff. (Id. ¶ 182). And Plaintiff further alleges that as common carriers, Defendants

owed a heightened duty of care to provide reasonably safe premises for its invitees, and that they

failed to do so in this case. (Id. ¶ 180). Defendants move to dismiss this claim, arguing that in

order for Defendants to be held to a heightened duty of care as a common carrier, Plaintiff must

present facts that would extend their duty to the area where the subject incident occurred—and

here, Plaintiff has failed to allege facts tending to show that the subject incident occurred in an

area under United or UGE’s control, or to otherwise allege that they were under a duty to provide

6 In raising claims against Defendants for negligent retention and supervision (Count VIII) and negligent

training (Count IX), Plaintiff asserts that as common carriers, Defendants owed a heightened duty of care to retain,

supervise, and train their employees properly. (Compl. ¶¶ 163 & 171). However, as will be explained further below,

although a heightened standard of care is applicable to common carriers “the heightened duty of a common carrier is

subject to a standard of reasonableness, and does not apply if the common carrier ‘neither knows nor should know of

the unreasonable risk, or of the illness or injury.’” Davis v. Devereux Found., 37 A.3d 469, 488 (N.J. 2012) (quoting

Restatement (Second) of Torts § 314A cmt. e (1965)). And as stated, Plaintiff does not allege any facts to support an

inference that Rivera, or any other employee of Defendants was particularly unfit, incompetent, or dangerous before

the altercation between Rivera and Plaintiff took place or that Defendants knew or had reason to know of any unfitness

of Rivera or any other employee of Defendants at the time of retention or at any other time before the altercation took

place. Plaintiff also provides no specific allegations to indicate that Defendants failed to supervise or train Rivera or

any other employee and that there was a reasonable foreseeability that the failure to supervise or train Rivera or any

other employee in a certain way would create the risk of harm alleged here. As such, Plaintiff’s claims for negligent

retention, supervision, and training cannot proceed as pled.

adequate security in such an area. (Mov. Br. at 25). Further, Defendants contend that Plaintiff has

failed to provide any factual support for the conclusory allegation that Defendants “could have

foreseen that the failure to provide reasonably safe premises and adequate security[] created a risk

of harm that could result in physical or emotional injuries.” (Id.). In opposition, Plaintiff contends

that the Complaint provides a plausible inference that Defendants negligently failed to provide

reasonably safe premises because “Defendants are lessees of significant portions of Newark

Liberty Airport and [] they had reason to know that its employees will interface with United

customers, passengers, and business invitees, and that its employees may become involved in

disputes with business invitees and United customers.” (Opp. Br. at 22). For the reasons set forth

below, the Court agrees with Defendants and finds that Plaintiff’s claim for negligent failure to

provide reasonably safe premises must be dismissed.

To establish negligence, a plaintiff must demonstrate that the defendant (i) owed the

plaintiff a duty; (ii) breached that duty; and (iii) that the breach caused a “foreseeable resulting

injury.” Anderson v. Sammy Redd and Assocs., 650 A.2d 376, 379 (N.J. Super. App. Div. 1994).

The court may determine the existence and scope of a duty as it is a question of law. Id.;

Pfenninger v. Hunterdon Cent. Reg’l High Sch., 770 A.2d 1126, 1132 (N.J. 2001). A heightened

standard of care is applicable to common carriers, including airlines, as follows:

Carriers wh[ich] accept passengers entrusted to their care must use

great caution to protect them, which has been described as the

‘utmost caution characteristic of very careful prudent men,’ or ‘the

highest possible care consistent with the nature of the undertaking,’

and this may include the relational duty to exercise control of the

conduct of third persons.

Kantonides v. KLM Royal Dutch Airlines, 802 F. Supp. 1203, 1213 (D.N.J.1992) (quoting Ricci v.

Am. Airlines, 544 A.2d 428, 430 (N.J. Super. App. Div. 1988)). “In the case of a common carrier,

the duty imposed requires not only that the transportation vehicle be kept safe, but that a safe

means of ingress and egress be maintained for the use of the passengers.” Buchner v. Erie R. Co.,

111 A.2d 257, 258 (N.J. 1955). However, “although private and public common carriers must

exercise a duty of care consistent with the nature of [their] undertaking, they are not absolute

guarantors of their passengers’ safety and they cannot protect against all possible dangers.”

Maison v. New Jersey Transit Corp., 245 A.3d 536, 552 (N.J. 2021) (internal quotation marks and

citation omitted). “[T]he heightened duty of a common carrier is subject to a standard of

reasonableness, and does not apply if the common carrier ‘neither knows nor should know of the

unreasonable risk, or of the illness or injury.’” Davis v. Devereux Found., 37 A.3d 469, 488 (N.J.

2012) (quoting Restatement (Second) of Torts § 314A cmt. e (1965)).

Here, even if the heightened duty of care applied to Defendants’ conduct in this case,

Plaintiff has failed to state a viable claim against Defendants for negligent failure to provide

reasonably safe premises. As stated above, “the heightened duty of a common carrier is subject to

a standard of reasonableness, and does not apply if the common carrier ‘neither knows nor should

know of the unreasonable risk, or of the illness or injury.’” Davis, 37 A.3d at 488 (quoting

Restatement (Second) of Torts § 314A cmt. E (1965)). Plaintiff has failed to allege sufficient facts

to indicate that the sequence of events leading to Plaintiff’s injuries were known to or reasonably

anticipated by Defendants. As already stated, Plaintiff does not allege sufficient facts supporting

an inference that Rivera, or any other employee of Defendants was particularly unfit, incompetent,

or dangerous before the altercation between Rivera and Plaintiff took place or that Defendants

knew or had reason to know of any unfitness before the subject incident took place. Without such

additional facts, the Court cannot plausibly infer that Defendants knew or should have known of

the unreasonable risk of injury that occurred in this case. See, e.g., Cioletti v. Cont’l Airlines, Inc.,

No. 09-3014, 2011 WL 3159136, at *3 (D.N.J. July 25, 2011) (stating that the heightened standard

of care between passenger and carrier does not mean that defendant “is responsible for any and all

injuries that are sustained by passengers. Nothing in the record indicates that the sequence of

events leading to [p]laintiff’s injury were known or reasonably anticipated”); Maison, 245 A.3d at

552 (stating that carriers are liable only for the wrongful acts of co-passengers who present

“dangers that are known or are reasonably foreseeable,” and noting that in that case where teenager

struck plaintiff with a bottle if “one of the teenagers [had] unexpectedly thrown the bottle—in the

absence of any provocative conduct or warning—defendants would not be liable under those

circumstances”). As such, Plaintiff’s claim for negligent failure to provide reasonably safe

premises (Count X) asserted against United and UGE must be dismissed.

F. Vicarious Liability (Counts I–IV)

Plaintiff also asserts claims against Defendants for (i) false imprisonment (Count I), (ii)

assault (Count II), (iii) battery (Count III), and (iv) intentional infliction of emotional distress

(Count IV). (Compl. ¶¶ 94–131). Plaintiff asserts a right to recover against United and UGE for

the alleged conduct of Rivera based on a theory of vicarious liability as to each of these Counts.

(Id.). Defendants move to dismiss these claims, arguing, among other things, that Plaintiff has

failed to plead facts to establish that United and UGE are vicariously liable for Rivera’s alleged

conduct as asserted in Counts I through IV of the Complaint. (Mov. Br. at 6–10). Specifically,

they contend that Plaintiff has failed to allege any facts to indicate that Rivera’s alleged conduct

in this case fell within the scope of Rivera’s employment or was authorized or ratified by United

or UGE. (Id. at 8). Plaintiff opposes, contending that he has adequately pled an employer-

employee relationship between United and Rivera to support a theory of vicarious liability against

United and UGE and has also alleged sufficient facts to establish that Rivera’s conduct fell within

the scope of his employment to support a theory of vicarious liability as to Counts I through IV

against United and UGE. (Opp. Br. at 5–9). For the reasons set forth below, the Court agrees with

Defendants and finds that Counts I through IV as asserted against United and UGE must be

dismissed because Plaintiff has failed to plead facts to establish that United and UGE are

vicariously liable for Rivera’s alleged conduct as asserted in those counts.

“Although as a general rule of tort law, liability must be based on personal fault,” under

the doctrine of respondeat superior an employer will be held vicariously liable for the tortious

conduct “of an employee causing injuries to third parties, if, at the time of the occurrence, the

employee was acting within the scope of his or her employment.” Carter v. Reynolds, 815 A.2d

460, 463 (N.J. 2003). To establish liability under the theory of respondeat superior, a plaintiff

must show “(1) that a master-servant relationship existed and (2) that the tortious act of the servant

occurred within the scope of that employment.” Id. The term “scope of employment” refers to

those acts “which are so closely connected with what the servant is employed to do, and so fairly

and reasonably incidental to it, that they may be regarded as methods, even though improper ones,

of carrying out the objectives of employment.” Id. at 465. Whether the act is foreseeable “is a

crucial inquiry.” Davis, 37 A.3d at 489. The Restatement of Torts § 228(1) sets forth four factors

that support a finding that an alleged act is within the scope of employment:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space

limits;

(c) it is actuated, at least in part, by a purpose to serve the master;

and

(d) if force is intentionally used by the servant against another, the

use of force is not unexpectable by the master.

Restatement (Second) of Torts § 228(1). An employee’s act is outside the scope of employment

“if it is different in kind from that authorized, far beyond the authorized time or space limits, or

too little actuated by a purpose to serve the master.” Davis, 37 A.3d at 490 (quoting Restatement

of Torts § 228(2) (internal quotation marks omitted)). Courts in New Jersey have recognized that

“[o]nly rarely will intentional torts fall within the scope of employment.” Id.

As stated above, Plaintiff asserts a right to recover against United and UGE on a theory of

vicarious liability for the alleged conduct of Rivera as to the following counts: (i) false

imprisonment (Count I), (ii) assault (Count II), (iii) battery (Count III), and (iv) intentional

infliction of emotional distress (Count IV). (Compl. ¶¶ 94–131). Specifically, Plaintiff asserts

that Rivera (as well as United and UGE) is liable under these counts, respectively, because Rivera

(i) “confined, detained, and/or restrained [Plaintiff’s] liberty and freedom of movement by use of

verbal threats and physical force” while Plaintiff attempted to approach the United check-in

counters and otherwise “incited, invited, directed, [and] requested” that Plaintiff be arrested and

detained by the PAPD; (ii) intentionally caused harmful or offensive contact or apprehension of

such contact against Plaintiff; (iii) touched, grabbed, shoved, and struck Plaintiff with the intent to

harm Plaintiff; and (iv) engaged in intentional and outrageous conduct towards Plaintiff that went

beyond all possible bounds of decency. (Compl. ¶¶ 96, 99, 110, 118 & 127). Nevertheless, though

Plaintiff pleads that Rivera “was an employee and/or agent” of United and/or UGE (id. ¶ 4),7

Plaintiff fails to allege that Rivera’s alleged wrongful conduct recited above occurred within the

scope of Rivera’s employment with Defendants such that he may hold Defendants vicariously

liable for Rivera’s conduct as asserted in in Counts I through IV.

7 In their moving brief, Defendants assert that Rivera was not employed by United at the time of the incident.

(Mov. Br. at 8 n.1). Nevertheless, as Plaintiff points out (Opp. Br. at 4–5), at this stage the Court must accept as true

Plaintiff’s allegation that Rivera “was an employee and/or agent” of United and/or UGE. (Compl. ¶ 4). While Plaintiff

bears the burden of pleading his claim, he does not bear the burden of rebutting Defendants’ competing factual

narrative.

In his Complaint, Plaintiff alleges that United and UGE and its “servants, agents, and/or

employees,” including Rivera, “support [United’s] airport operations, including, but not limited

to, assisting [United] check-in agents with the customer check-in process and tagging and handling

customer baggage.” (Id. ¶ 20). However, though Plaintiff alleges in a conclusory fashion that

United and UGE “are vicariously liable for the tortious conduct of its employees in that the conduct

occurred within the scope, authorized time and location of [his] employment” (id. ¶¶ 106, 115, 123

& 131), there are no allegations in the Complaint that indicate that Rivera’s actions, which included

verbally and physically assaulting a prospective United passenger and restraining that passenger’s

freedom of movement, were of the kind he was employed to perform; that those actions were

motivated by a desire to serve United or further his role as an employee that assists United check-

in agents with the customer check-in process; or that his actions were expected or foreseeable in

his alleged role of assisting United check-in agents with the customer check-in process. And in

fact, as stated above, courts in New Jersey have recognized that “[o]nly rarely will intentional

torts” such as those alleged in Counts I through IV “fall within the scope of employment.” See

Davis, 37 A.3d at 489–90 (explaining that foreseeability is critical to scope of employment test).

Thus, viewing the allegations as a whole, the Court concludes that the alleged wrongful acts here—

as alleged in Counts I through IV of the Complaint—do not sufficiently invoke respondeat

superior. See, e.g., Hoffman, 2021 WL 2434064, at *3 (“Silverio-Delrosar was apparently

authorized to perform acts to further his role in picking up passengers and driving them to a

scheduled location. Punching a customer is not a foreseeable act, does not further Silverio-

Delrosar’s role as an employee who transports passengers, and is not the type of force usually used

by a person who transports passengers in a car.”); Roe ex rel. Roe v. Rutgers, State Univ. of N.J.,

No. 13-1762, 2013 WL 3446456, at *5 (D.N.J. July 13, 2013) (concluding that Rutgers could not

be held vicariously liable where the alleged wrongdoing by professor, including an assault, “were

not foreseeable and could not reasonably be actuated by a purpose of serving Rutgers”); Blevins v.

SEW Eurodrive, Inc., No. 05-5261, 2006 WL 1128708, at *6 (D.N.J. Apr. 25, 2006) (finding that

employer could not be vicariously liable for intentional tort of physical assault because “the

[p]laintiff [could not] demonstrate that Ms. Jones’ alleged offensive touching was reasonably

connected with her employment and so within its scope. Ms. Jones alleged conduct is not in any

way designed to serve a business purpose of [her employer], nor was it something to be expected

to arise out of Ms. Jones’ employment as an Administrative Manager.”).8 Accordingly, Counts I

through IV as asserted against United and UGE must be dismissed.

Plaintiff’s remaining arguments in opposition are unavailing. Plaintiff contends that New

Jersey courts have unequivocally recognized employers’ potential liability for their employees’

tortious conduct where the employee’s responsibilities include enforcement of the employer’s

rules. (Opp. Br. at 9 (citing cases)). And here, Plaintiff contends that it is plausible that Rivera’s

job duties included greeting and assisting members of the public and United customers within the

vicinity of United’s terminals, and that questioning Plaintiff’s use of a wheelchair was “so closely

connected with” what Rivera was employed to do, and incidental to it, such that United and UGE

can be vicariously liable for Plaintiff’s actions. (Id. at 8). The Court disagrees. As already stated,

generally, intentional torts, as alleged in Counts I through IV of Plaintiff’s Complaint, do not fall

within the scope of employment. See Davis, 37 A.3d at 490. However, New Jersey courts have

8 Though Plaintiff points out that United and UGE do not dispute that Plaintiff sufficiently alleges that Rivera’s

conduct occurred “substantially within the authorized time limits” (Opp. Br. at 6), Plaintiff has failed to allege, as

described above, that Rivera’s actions were of the kind he was employed to perform; were motivated by a desire to

serve United or further his role as an employee that assists United check-in agents with the customer check-in process;

or that his actions were expected or foreseeable in his alleged role of assisting United check-in agents with the

customer check-in process. Thus, viewing the allegations as a whole, the Court concludes that the alleged wrongful

acts here—as alleged in Counts I through IV of the Complaint—do not sufficiently invoke respondeat superior. See,

e.g., Hoffman, 2021 WL 2434064, at *3.

found employees’ acts to be within the scope of their employment when their attempts to counter

interference with their employer’s business and “enforce their employer’s rules instigated

violence.” Brijall, 905 F. Supp. 2d at 622. The New Jersey Supreme Court summarized the

common fact patterns of such cases as follows:

The facts of these cases fit a common pattern. In each, the

employee’s responsibilities include enforcement of the employer’s

rules. The employee’s attempt to compel compliance with those

rules was met with resistance and provoked a physical altercation.

The courts attribute the conduct, in whole or in part, to the starting

point of each incident: the employee’s attempt to serve the

employer. Accordingly, the employer was potentially liable under

principles of respondeat superior.

Davis, 37 A.3d at 491; see also Mason v. Sportsman’s Pub, 702 A.2d 1301, 1310 (N.J. Super. Ct.

App. Div. 1997) (holding that a bouncer was acting within the scope of his employment when his

attempt to eject a patron from the bar led to a fistfight); Schisano v. Brickseal Refractory Co., 162

A.2d 904, 907–08 (N.J. Super. Ct. App. Div. 1960) (holding that an employee who was responsible

for keeping unauthorized cars out of his employer’s private parking lot was acting within the scope

of his employment when a fight ensured after the employee asked a man who had parked his car

in the lot to move his car). This case, however, is distinguishable. Though Plaintiff generally

alleges that United and UGE and its “servants, agents, and/or employees,” including Rivera,

“support United’s airport operations, including but not limited to, assisting United check-in agents

with the customer check-in process and tagging and handling customer baggage” and claims that

Rivera stated that he “run[s] this airport” (Compl. ¶¶ 20 & 42), Plaintiff does not otherwise allege

what Rivera’s job responsibilities included or that that Rivera’s job responsibilities included the

enforcement of any of United’s rules. (See generally id.). Further, there is nothing in Plaintiff’s

Complaint to indicate that the manner in which Plaintiff transported his baggage from the baggage

terminal to United’s check-in counter interfered with United’s business and that Rivera’s attempt

to prevent Plaintiff from transporting his baggage in a particular manner (here, on a wheelchair)

was meant to enforce compliance with United’s rules. And as stated above, there are no other

allegations in the Complaint that indicate that Rivera’s actions, which included verbally and

physically assaulting a prospective United passenger and restraining that passenger’s freedom of

movement based on the manner in which that passenger was transporting his baggage, were

something to be expected to arise out of Rivera’s employment of assisting United check-in agents

with the customer check-in process. Without such additional allegations, the Court cannot

plausibly infer that Rivera’s actions as alleged in Counts I through IV fell within the scope of

Rivera’s employment.9 See Davis, 37 A.3d at 489 (explaining that foreseeability is critical to scope

of employment test). As such, Plaintiff’s arguments are unavailing.

9 To support his contention that Rivera’s actions were plausibly within the scope of his employment, Plaintiff

cites to Smith v. Bosco, 19 A.2d 637 (E. & A. 1941). There, the court held that a bridge employee’s attack on the

plaintiff, who refused to move his truck when instructed to and threw a brick at the employee’s guard dogs, could be

considered within the scope of the employee’s employment where the bridge employee was responsible for collecting

tolls, making minor repairs to the bridge, and also performed other duties around the premises such as repairing the

roads and putting up a “no parking” sign to prevent automobiles from parking at the prohibited place. Smith, 19 A.2d

at 638. Plaintiff points out that the court in that case rejected the employer’s argument that the employee was only

employed to collect tolls, light lanterns and to make minor repairs to the bridge, but that his duties were not to police

the property nor to control traffic, and that it had no knowledge that the employee had been doing so nor that the

employee had put up the ”no parking” sign. Id. In rejecting this argument, the court noted that “[f]rom the proofs the

jury could well have found under the clear and comprehensive charge of the court the facts to be that plaintiff’s truck

was parked at a place which interfered with the business of the [employer] and that it had impliedly authorized [the

employee] to prevent such parking.” Id. In contrast, here, Plaintiff does not allege that the manner in which Plaintiff

transported his baggage from the baggage terminal to United’s check-in counter interfered with United’s business or

that Rivera was impliedly authorized to prevent the transport of baggage in this manner. Rather as stated, though

Plaintiff generally alleges that United and UGE and its “servants, agents, and/or employees,” including Rivera,

“support United’s airport operations, including but limited to, assisting United check-in agents with the customer

check-in process and tagging and handling customer baggage” and claims that Rivera stated that he “run[s] this

airport” (Compl. ¶¶ 20 & 42), Plaintiff does not otherwise allege what Rivera’s job responsibilities included or that

that Rivera’s job responsibilities included the enforcement of any of United’s rules. (See generally id.). As such, the

Court finds Smith distinguishable.

Plaintiffs’ other cited case law is also distinguishable from the facts of this case for similar reasons and as

such does not compel this Court to reach a contrary conclusion. See Alexander v. Riga, 208 F.3d 419, 433 (3d Cir.

2000) (finding that apartment building owner could not insulate himself from liability for discrimination in regard to

an apartment building owned jointly by him and his wife, and managed for their joint benefit, merely by relinquishing

the responsibility for preventing discrimination to his wife, also his managerial agent, where he left his wife in charge

of the apartment building with authority to act on behalf of the two of them as a couple); Abbamont v. Piscataway

Twp. Bd. of Educ., 650 A.2d 958, 966 (N.J. 1994) (finding that the actions of board’s superintendent and principal,

specifically their recommendation that plaintiff not be rehired with tenure, were within the scope of their employment

where they were high-level employees who were responsible for evaluating plaintiff’s job performance, and for

G. Punitive Damages

Finally, in all ten counts against United and UGE outlined above, Plaintiff seeks punitive

damages as a result of Defendants’ alleged conduct. (Compl. ¶¶ 94–184). However, because

Plaintiff has failed to allege a cognizable claim against United or UGE, his request for punitive

damages as against United and UGE is dismissed. Indeed, Plaintiff is not entitled to such an award,

without having asserted an “independent cause of action for compensatory damages.” See

O’Connor v. Harms, 266 A.2d 605 (App. Div. 1970); see also Gomez v. H&M Int’l Transp., Inc.,

No. 17-0231, 2017 WL 1483306, at *3–4 (D.N.J. April 24, 2017) (dismissing punitive damages

request against one of the defendants in the absence of an adequately pled underlying violation

against that defendant); Karlson v. Dematic Corp., No. 16-0321, 2016 WL 4487849, at *4 (D.N.J.

Aug. 24, 2016) (dismissing a request for punitive damages in a products liability suit, where the

plaintiff “failed to state a claim for relief under the NJPLA or common law”).

IV. CONCLUSION

Based on the foregoing, Defendants’ motion (D.E. No. 2) is GRANTED and Counts I

through X of Plaintiff’s Complaint as asserted against United and UGE are dismissed without

prejudice. See Prudential Ins. Co. of Am. v. Bank of Am., Nat’l Ass’n, 14 F. Supp. 3d 591, 596

(D.N.J. 2014) (Dismissal of a complaint with prejudice is a “‘harsh remedy’” that “is [only]

appropriate if amendment would be inequitable or futile.”). An appropriate Order follows.

Dated: June 28, 2024 s/ Esther Salas

Esther Salas, U.S.D.J.

making tenure recommendations); Donio v. United States, 746 F. Supp. 500, 506 (D.N.J. 1990) (finding that

statements made by prosecutor to reporter concerning a case were defamatory statements made within the scope of

employment because it is within the scope of a prosecutor’s office to issue press statements and “such statements are

authorized as part of a prosecutor’s regular responsibilities in administering the law”).