Odynocki v. Delta Air Lines Inc

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BORIS ODYNOCKI CIVIL ACTION

VERSUS No. 24-2341

DELTA AIRLINES INC SECTION I

ORDER AND REASONS

Before the Court is defendant Delta Airlines, Inc.’s (“defendant”) motion1 to

dismiss pro se plaintiff Boris Odynocki’s (“plaintiff”) complaint2 pursuant to Federal

Rule of Civil Procedure 12(b)(6). Plaintiff filed a response3 in opposition, and

defendant filed a reply.4 Upon the Court’s order,5 the parties also submitted

supplemental briefing.6 For the reasons that follow, the Court grants defendant’s

motion to dismiss in part and denies it in part.

I. BACKGROUND

On May 24, 2024, plaintiff alleges that he was denied boarding on a Delta flight

from Bogota to New Orleans.7 Plaintiff states that defendant had informed him by

email that boarding for his flight would close at 2:40 p.m.8 While plaintiff had

difficulty finding the boarding area for his flight, he states that he arrived at the gate

1 R. Doc. No. 6.

2 R. Doc. No. 1. The Court construes these filings liberally as they were filed pro se.

See Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994).

3 R. Doc. No. 9.

4 R. Doc. No. 10.

5 R. Doc. No. 12.

6 R. Doc. No. 13 (defendant’s supplemental briefing); R. Doc. No. 14 (plaintiff’s

supplemental briefing).

7 R. Doc. No. 1, at 3–4.

8 Id. at 4.

to board shortly before 2:00 p.m., when defendant’s employee denied him boarding

because he had arrived too late.9 After being denied boarding, plaintiff states that he

received an additional email stating that his flight time had been adjusted from 2:55

p.m. to 3:30 p.m.10 On this basis, plaintiff alleges that defendant’s justification for

denying him boarding—that he arrived too late—was a lie.11 Plaintiff contends that

there were no customer service agents to help him, and he incurred additional costs

to purchase a new flight to New Orleans the next day.12

Plaintiff brings several federal-law claims for violations of the Federal Aviation

Act (“FAA”) as amended by the FAA Reauthorization Act of 2024 (“the

Reauthorization Act”) and claims for violations of various Department of

Transportation (“DOT”) regulations.13 Plaintiff’s complaint additionally brings state-

law claims for breach of contract, fraud, breach of the duty of good faith and fair

dealing, and intentional infliction of emotional distress.14

Defendant argues in its motion to dismiss that plaintiff does not have a private

right of action for the violations of federal law and federal regulations as alleged in

plaintiff’s complaint.15 Defendant also argues that plaintiff fails to state a claim for

breach of contract and that any state-law claims asserted in the complaint are

9 Id.

10 Id.

11 Id.

12 Id. at 4–5.

13 Id. at 6–7.

14 Id. at 1, 5–6.

15 R. Doc. No. 6, at 8–9.

preempted and barred by the Montreal Convention and the Airline Deregulation Act

(“ADA”).16

II. STANDARDS OF LAW

a. Rule 12(b)(6) Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) allows for dismissal of a complaint for

“failure to state a claim upon which relief can be granted.” To survive a motion to

dismiss under Rule 12(b)(6), a plaintiff’s complaint must meet the requirement in

Rule 8(a)(2), requiring “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009) (quoting

Fed. R. Civ. P. 8(a)(2)). While this short and plain statement does not require

“detailed factual allegations,” it “must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Id. at 678 (internal

quotations and citations omitted). 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.” Id. “The plausibility standard is not

akin to a probability requirement, but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Culbertson v. Lykos, 790 F.3d 608, 616 (5th Cir.

2015) (citation and internal quotations omitted).

“[T]he face of the complaint must contain enough factual matter to raise a

reasonable expectation that discovery will reveal evidence of each element of the

[plaintiff’s] claim.” Hi-Tech Elec., Inc v. T&B Constr. & Elec. Servs., Inc., No. 15-3034,

16 Id. at 1.

2017 WL 615414, at *2 (E.D. La. Feb. 15, 2017) (Vance, J.) (citing Lormand v. US

Unwired, Inc., 565 F.3d 228, 255–57 (5th Cir. 2009)). A complaint is insufficient if it

contains “only labels and conclusions, or a formulaic recitation of the elements of a

cause of action.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (citation and

internal quotations omitted). The complaint “must provide the defendant with fair

notice of what the plaintiff’s claim is and the grounds upon which it rests.” Dura

Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (citation and internal quotations

omitted).

In considering a motion to dismiss, a court views the complaint “in the light

most favorable to [the] plaintiff, accepting as true all well-pleaded factual allegations

and drawing all reasonable inferences in [the] plaintiff’s favor.” Lovick v. Ritemoney

Ltd., 378 F.3d 433, 437 (5th Cir. 2004). A court must limit its review to “the complaint,

any documents attached to the complaint, and any documents attached to the motion

to dismiss that are central to the claim and referenced by the complaint.” Lone Star

Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing

Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)).

b. The Montreal Convention

The Montreal Convention, more formally known as the Convention for the

Unification of Certain Rules for International Carriage by Air, (the Convention) is a

“multilateral treaty that ‘governs the rights and liabilities of passengers and carriers

in international air transportation.’” Bridgeman v. United Cont’l Holdings, Inc., 552

F. App’x 294, 296 (5th Cir. 2013) (unpublished) (quoting Galbert v. W. Carribean

Airways, 715 F.3d 1290, 1292 (11th Cir. 2013)). The Convention was intended to

reform its predecessor, the Warsaw Convention, “so as to harmonize the hodgepodge

of supplementary amendments and intercarrier agreements of which the Warsaw

Convention system of liability consists.” Id. (quoting Sompo Japan Ins. v. Nippon

Cargo Airlines Co., 522 F.3d 776, 780 (7th Cir. 2008)).

The Convention provides an airline passenger the exclusive remedy for the

types of claims it covers: death and injury to passengers pursuant to Article 17(1),

damage to baggage pursuant to Article 17(2), damage to cargo pursuant to Article 18,

and delay pursuant to Article 19. White v. Emirates Airlines, Inc., 493 F. App’x 526,

529 (5th Cir. 2012) (unpublished); Convention for the Unification of Certain Rules for

International Carriage by Air, arts. 17–19, May 28, 1999, ICAO Doc. 9740, reprinted

in S. Treaty Doc. No. 106-45, 1999 WL 33292734, at *33–34 (2000) [hereinafter

Montreal Convention]. The Convention “preempts state-law causes of action relating

to the international carriage of persons, baggage, and cargo, but . . . only to the extent

they fall within its substantive scope.” Bridgeman, 552 F. App’x at 296.

Defendant argues that the Convention bars plaintiff’s claim for intentional

infliction of emotional distress.17 With respect to this claim, Article 17(1) of the

Convention establishes the conditions of liability for personal injury to passengers

and states that “[t]he carrier is liable for damage sustained in case of death or bodily

injury of a passenger upon condition only that the accident which caused death or

injury took place on board the aircraft or in the course of any of the operations of

17 R. Doc. No. 6-1, at 5–6.

embarking or disembarking.” Montreal Convention, art. 17(1), 1999 WL 33292734, at

*33.

c. Airline Deregulation Act

Prior to 1978, the FAA18 provided for federal economic regulation of air

carriers. Section 1106 of the FAA, however, contained a savings clause, which stated

that “[n]othing contained in this Act shall in any way abridge or alter the remedies

now existing at common law or by statute, but the provisions of this Act are in

addition to such remedies.”19 This allowed states to apply their own laws to air

carriers. See, e.g., Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 300 (1976) (holding

that a common-law claim for fraudulent representation based on overbooking

practices could proceed because it was not “absolutely inconsistent” with the FAA and

could “coexist as contemplated by § 1106”).

In 1978, Congress enacted the ADA,20 an amendment to the FAA, with the

purpose of dismantling federal economic regulation of air carriers after determining

that “efficiency, innovation, low prices, variety, and quality would be promoted by

reliance on competitive market forces rather than pervasive federal regulation.”

Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir. 1995) (en banc). To prevent

states from frustrating this purpose by maintaining their own economic regulations,

the ADA included a preemption provision, which prohibits states from enacting or

enforcing “any law . . . relating to [air carrier] rates, routes, or services.” Id. (quoting

18 Federal Aviation Act of 1958, Pub. L. No. 85-726,72 Stat. 731.

19 Id. § 1106 (codified as amended at 49 U.S.C. § 40120(c)).

20 Airline Deregulation Act of 1978, Pub. L. No. 95-504, 92 Stat. 1705.

Airline Deregulation Act of 1978, Pub. L. No. 95-504, § 105(a)(1), 92 Stat. 1705, 1708

(codified as amended at 49 U.S.C. § 41713(b)(1))). However, the ADA did not remove

the savings clause that existed as part of the FAA.

In determining whether a state law relates to rates, routes, or services and is

preempted by the ADA, the U.S. Supreme Court adopted a broad construction of

“relating to” and held that state enforcement actions are preempted if they “hav[e] a

connection with or reference to airline ‘rates, routes, or services.’” Morales v. Trans

World Airlines, Inc., 504 U.S. 374, 383–84 (1992). Pursuant to this broad

construction, the court stated that even laws of general applicability and laws that

may be applied consistently with federal law may be preempted if the law has a

“forbidden significant effect” on rates, routes, or services. Id. at 385–88. Nonetheless,

the court acknowledged that “‘[s]ome state actions may affect [airline fares] in too

tenuous, remote, or peripheral a manner’ to have pre-emptive effect.” Id. at 390

(quoting Shaw v. Delta Airlines, Inc., 463 U.S. 85, 100 n.21 (1983) (alterations in

original)).

The Fifth Circuit has defined “services” in the ADA to mean “a bargained-for

or anticipated provision of labor from one party to another,” which includes “ticketing,

boarding procedures, provision of food and drink, and baggage handling, in addition

to the transportation itself.” Hodges, 44 F.3d at 336 (quotations and citation omitted).

Proceeding with this definition, the Fifth Circuit has concluded that the services that

were deregulated by the ADA include airline practices “in their economic or

contractual dimension but not insofar as the safety of the flight is involved.” Smith v.

Am. W. Airlines, Inc., 44 F.3d 344, 347 (5th Cir. 1995).

In addition to allowing courts to enforce causes of action that do not relate to

services, routes, or rates, the ADA likewise does not preempt enforcement of privately

ordered obligations. Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 228–29 (1995). Courts

may enforce self-imposed contract terms because those obligations are not state

imposed. Id. “[S]tate-law-based court adjudication of routine breach-of-contract

claims” is permissible so long as a court makes “no enlargement or enhancement [of

the contract] based on . . . state laws or policies external to the agreement.” Id. at

232–33.

III. ANALYSIS

The Court first addresses whether plaintiff has a private right of action

allowing him to bring his federal-law claims. The Court then considers plaintiff’s

state-law claims.

a. Federal-Law Claims

For plaintiff’s federal-law claims, plaintiff alleges that defendant violated

various provisions of the FAA, as amended by the Reauthorization Act, and DOT

regulations providing for compensation to bumped passengers.21 Defendant argues

that Congress did not intend to create a federal cause of action for plaintiff’s claims

and that plaintiff’s federal-law claims should be dismissed.22

21 R. Doc. No. 1, at 6–7.

22 R. Doc. No. 6-1, at 8–9.

The Fifth Circuit has already held in Casas v. Am. Airlines, Inc. that the FAA,

as amended by the ADA, did not create a private right of action. 304 F.3d 517, 520,

521 & n.6 (5th Cir. 2002). The court in that case applied the four-factor test as first

articulated by the U.S. Supreme Court in Cort v. Ash, 422 U.S. 66 (1975). Casas, 304

F.3d at 521–22.

To determine whether a federal law creates an implied right of action, courts

consider the four Cort factors:

(1) Is this plaintiff a member of the class for whose “especial” benefit the

statute was passed? In other words, does the statute create a federal right for

this plaintiff?

(2) Is there any evidence of legislative intent, either explicit or implicit, to

create or deny a private remedy?

(3) Is it consistent with the legislative scheme to imply a private remedy?

(4) Is the cause of action one traditionally relegated to state law so that

implying a federal right of action would be inappropriate?

Lundeen v. Mineta, 291 F.3d 300, 311 (5th Cir. 2002) (quoting La. Landmarks Soc’y,

Inc., v. City of New Orleans, 85 F.3d 1119, 1122–23 (5th Cir. 1996)). When analyzing

these factors, a court should “begin with the familiar presumption that Congress did

not intend to create a private right of action.” La. Landmarks Soc’y, Inc., 85 F.3d at

1123 (internal quotation marks omitted). The plaintiff carries the burden of showing

“that Congress affirmatively contemplated private enforcement when it passed the

relevant statute.” Id. (quoting Victorian v. Miller, 813 F.2d 718, 721 (5th Cir. 1987)

(en banc)). “Where analysis of the first two Cort factors leads to the conclusion that

Congress did not intend to create a private right of action, [courts] need not address

the other two Cort factors.” Id. at 1125.

Regarding the first factor, the court in Casas determined that the provisions

that the plaintiff cited in the ADA were directed at the regulated air carriers and the

Secretary of Transportation and that they “d[id] not expressly identify domestic air

passengers as a class that Congress intended to benefit.” Casas, 304 F.3d at 522 &

n.8. The court therefore concluded that the provisions did not “confer a substantive

right upon an identifiable class of persons to which [the plaintiff] belong[ed]” as an

air passenger. Id. For the second factor, the court emphasized that the language and

enforcement scheme of the ADA suggests that Congress intended to primarily rely on

the Secretary of Transportation and Attorney General to bring enforcement actions

and intended to deny private individuals the right to enforce its provisions. Id. at

522–23. With the first two factors weighing against an implied right of action, the

court concluded that the FAA did not create such a right and declined to analyze the

third and fourth factors. Id. at 523.

The Reauthorization Act became law on May 16, 202423—a few days before the

alleged events on May 24, 2024 that gave rise to plaintiff’s complaint.24 Because the

Fifth Circuit decided Casas in 2002, it did not address whether the amendments in

the Reauthorization Act provide a private right of action.

Plaintiff specifically cites §§ 503 and 505 of the Reauthorization Act.25 Section

503 provides among other things that “an air carrier or a foreign air carrier shall,

upon request . . . provide a full refund, including any taxes and ancillary fees, for the

23 FAA Reauthorization Act of 2024, Pub. L. No. 118-63, § 503, 138 Stat. 1025, 1025.

24 See R. Doc. No. 1, at 3–4.

25 Id. at 7.

fare such carrier collected for any cancelled flight or significantly delayed or changed

flight.”26 Section 505 requires air carriers to maintain a customer service telephone

line, a customer chat option, and a monitored text messaging number that allow

customers to communicate with live agents.27 Like the ADA, nothing in Title V(A) of

the Reauthorization Act—which contains §§ 503 and 505 and addresses consumer

passenger experience improvements28—expressly provides a right of action for air

passengers. The Court must therefore consider whether it creates an implied right of

action.

The first Cort factor asks whether the plaintiff “belongs to an identifiable class

of persons upon whom the statute has conferred a substantive right.” La. Landmarks

Soc’y, Inc., 85 F.3d at 1123. “The issue is whether the statute expressly identifies [a]

class Congress intended to benefit or whether Congress has instead framed the

statute simply as a general prohibition or a command.” Lundeen, 291 F.3d at 311

(internal quotations and citations omitted). “Statutes that focus on the person

regulated rather than the individuals protected create ‘no implication of an intent to

confer rights on a particular class of persons.’” Alexander v. Sandoval, 532 U.S. 275,

289 (2001) (quoting California v. Sierra Club, 451 U.S. 287, 294 (1981)).

The Court concludes that the first factor does not favor finding an implied right

of action. The language in §§ 503 and 505 is framed as instructions to the regulated

26 FAA Reauthorization Act of 2024, Pub. L. No. 118-63, § 503, 138 Stat. 1025, 1188

(to be codified at 49 U.S.C. § 42305).

27 Id. § 505 (to be codified at 49 U.S.C. § 42307).

28 Id. at tit. V(A).

entity rather than focused on the person protected. The language is not rights-

creating and does not expressly identify a class that Congress intended to benefit.

The background in the House Report for the Reauthorization Act confirms this

focus. The report states that the need for the Reauthorization Act arose from threats

to the United States’ leadership role in aviation.29 Specifically, the report highlights

the Federal Aviation Administration’s need for “tools and resources to keep pace with

the rapidly advancing aviation sector” and the need to “serve all regulated entities in

a safe, timely and efficient manner.”30 With respect to the provisions dealing with the

passenger experience, the report highlights challenges to the aviation sector that

were caused by the COVID-19 pandemic and the operational challenges that came

with a subsequent increase in demand.31 This background demonstrates a

congressional focus on the regulated air carriers and the tools available to the Federal

Aviation Administration rather than a focus on creating rights for airline passengers.

While passengers may benefit from specific provisions of the Reauthorization

Act, these benefits are ancillary to the purpose of improving the U.S. aviation sector.

Neither the text nor the purpose of the Reauthorization Act identifies an intent to

confer substantive rights on airline passengers. The first factor weighs against

finding an implied right of action.

The second Cort factor, whether Congress intended to create a private remedy,

is the touchstone of the analysis courts use to determine whether there is an implied

29 H.R. Rep. No. 118-138, at 210 (2023).

30 Id.

31 Id. at 213.

right of action. La. Landmarks Soc’y, Inc., 85 F.3d at 1123. “[C]ourts must seek

congressional intent from the language of the statute as a whole, legislative history

of the statute, and the congressional purposes underlying the statute.” Shinault v.

Am. Airlines, Inc., 936 F.2d 796, 801 (5th Cir. 1991).

The Court concludes that the second factor also weighs against finding an

implied private right of action. As the court in Casas noted, the FAA creates a detailed

remedial scheme that suggests that Congress intended to deny private individuals

the right to enforce its specific provisions. Casas, 304 F.3d at 523. This enforcement

contemplates investigations by the Secretary of Transportation and administrative

proceedings that may result in civil penalties. See 49 U.S.C. § 46101 (providing for

agency investigations and orders to compel compliance); id. § 46301 (providing for

civil penalties). The Secretary of Transportation or Attorney General may likewise

file a civil lawsuit in federal court to enforce the law or an administrative order. Id.

§§ 46106–46107.

Aside from governmental actions to enforce its provisions, interested persons

may bring a civil action in a district court of the United States to enforce the specific

provision of the FAA that requires air carriers to hold a certificate from the Secretary

of Transportation. 49 U.S.C. §§ 46108, 41101(a)(1). “When Congress has established

a detailed enforcement scheme, which expressly provides a private right of action for

violations of specific provisions, that is a strong indication that Congress did not

intend to provide private litigations with a means of redressing violations of other

sections of the Act.” Casas, 304 F.3d at 523 (quoting Diefenthal v. C. A. B., 681 F.2d

1039, 10409 (5th Cir. 1982)).

The Reauthorization Act did not meaningfully amend provisions of the FAA

dealing with enforcement or otherwise mention a private remedy in addition to the

limited private right of action provided in 49 U.S.C. § 46108. The Reauthorization

Act’s language includes no evidence that Congress intended to create a private right

of action with respect to §§ 503 and 505. Accordingly, because the first and second

Cort factors weigh against an implied right of action, the Court declines to analyze

the third and fourth factors.32 Plaintiff has no private right of action to enforce the

FAA as amended by the ADA and the Reauthorization Act.

Because the FAA as amended does not provide a private right of action,

regulations implemented pursuant to authority granted by the FAA likewise cannot

provide a private right of action. “Language in a regulation may invoke a private right

of action that Congress through statutory text created, but it may not create a right

that Congress has not.” Casas, 304 F.3d at 520 (quoting Sandoval, 532 U.S. at 291).

Plaintiff specifically cites 14 C.F.R. §§ 250.2b, 250.5, and 250.8 in his

complaint.33 These regulations were adopted pursuant to regulatory authority

granted by the FAA as amended. Oversales, 47 Fed. Reg. 52980-01, 52985 (Nov. 24,

1982). Plaintiff therefore has no private right of action for his claims alleging

32 C.f. La. Landmarks Soc’y, Inc., 85 F.3d at 1125 (“Where analysis of the first two

Cort factors leads to the conclusion that Congress did not intend to create a private

right of action, [courts] need not address the other two Cort factors.”).

33 R. Doc. No. 1, at 6–7.

violations of the FAA or the cited DOT regulations, and his federal claims must

therefore be dismissed.

b. State-Law Claims

i. Breach of Contract

Plaintiff’s primary state-law claim is for breach of contract. Plaintiff states that

defendant wrongfully refused to transport him on its flight despite entering into a

contract for travel services by selling him a ticket.34 Defendant’s motion to dismiss

asserts that plaintiff’s breach-of-contract claim is barred by the ADA to the extent

that these claims are not based on contractual terms set out in the parties’

agreement.35 Defendant does not argue that plaintiff’s breach-of-contract claim is

preempted by the Montreal Convention as a claim for delay.36

The Wolens exception, which provides that courts may enforce privately

ordered obligations consistent with the ADA,37 plainly applies to plaintiff’s breach-of-

contract claim. Defendant’s suggestion that plaintiff’s claim relies on a state-imposed

obligation because plaintiff cites to the Louisiana Civil Code and the Uniform

Commercial Code38 is misplaced. The Wolens case made clear that “state-law-based

court adjudication of routine breach-of-contract claims” is permissible so long as a

34 Id. at 1, 5.

35 R. Doc. No. 6-1, at 8.

36 In deciding whether a breach-of-contract claim amounts to a claim for delay that is

covered by the Convention, courts often hold that a claim amounts to a delay when

the airline offers a reasonable alternative. See Hebert v. Am. Airlines, Inc., No. CV

16-345, 2016 WL 3517795, at *3 (E.D. La. June 27, 2016) (Engelhardt, J.) (citing

cases).

37 See Wolens, 513 U.S. at 228–29.

38 See R. Doc. No. 6-1, at 9.

court makes “no enlargement or enhancement [of the contract] based on . . . state

laws or policies external to the agreement.” Id. at 232–33. Defendant points to no

basis from which the Court can conclude that state law would enhance or enlarge

plaintiff’s ordinary breach-of-contract claim.

Alternatively, defendant argues that plaintiff fails to state a claim for breach

of contract.39 Defendant contends that because the contract of carriage—as the

contract between the parties—states that defendant may cancel a reservation if a

passenger does not comply with check-in and boarding deadlines, defendant did not

breach its contract with plaintiff.40

This argument relies on disputed factual questions and must therefore fail.

Although plaintiff alleges in his complaint that he had difficulty finding the boarding

area on the day of his flight, he states that “he discovered it shortly before 2 [p.m.]”

and “attempted to enter the boarding area.”41 He also states that communications

from defendant informed him that boarding for his 2:55 p.m. flight would close at 2:40

p.m.42 Far from admitting failure to comply, plaintiff’s complaint appears to allege

that he complied with all check-in and boarding deadlines. Because the Court accepts

plaintiff’s factual allegations and draws all reasonable inferences in his favor for the

purpose of this motion, see Lovick, 378 F.3d at 437, defendant’s motion is denied with

respect to plaintiff’s breach-of-contract claim.

39 Id. at 10.

40 Id. at 11–12.

41 R. Doc. No. 1, at 4.

42 Id.

ii. Fraud and Breach of the Duty of Good Faith and Fair Dealing

In addition to plaintiff’s breach-of-contract claim, plaintiff appears to state a

claim for fraud and for breach of the duty of good faith and fair dealing.43 Defendant

argues that these claims are preempted by the ADA and should be dismissed because

they “seek enforcement of state law that enlarges or enhances the terms defendant

itself stipulated.”44 The Court first addresses plaintiff’s claim for fraud and then

addresses his claim for breach of the duty of good faith and fair dealing.

In Lyn-Lea Travel Corp. v. American Airlines, Inc., 283 F.3d 282 (5th Cir.

2002), the Fifth Circuit considered whether the Wolens exception applied to claims

for fraud. There, a travel agency entered into a contract with American Airlines

(“American”) in which American was required to pay the travel agency a commission

for booking flights in accordance with American’s published commission schedule. Id.

at 284. Shortly after executing the agreement, American announced modifications to

its commission schedule reducing the commission paid to travel agencies. Id. In its

lawsuit for fraud and other claims, the travel agency alleged that American knew

that it planned on changing its commission schedule when it entered into the

agreement and that it should have disclosed the impending changes. Id. at 284–85.

Although the court acknowledged that a narrow reading of Wolens “might be

interpreted to permit the litigation of extra-contractual common law business torts

that do not directly involve airline passengers,” it concluded that a better reading of

43 See id. at 5–6.

44 R. Doc. No. 6-1, at 9.

Wolens required preemption. Id. at 288. While some business dealings will not “relate

to” prices, routes, and services, the court stated that the travel agency’s claim for

fraud regarding contracted commissions was preempted because it had a connection

with American’s prices and services and did not seek to enforce self-assumed

contractual obligations. Id. at 288–89.45

Plaintiff’s claim for fraud appears to rely on allegations that defendant’s

employees misrepresented to him that he had arrived at the gate too late when he

had not and/or that defendant had closed boarding before the time that defendant

advised in official communications.46 This claim has a connection to defendant’s

boarding procedures and therefore relates to defendant’s services within the meaning

of the ADA. Accordingly, plaintiff’s claim for fraud is preempted.

The Court next addresses plaintiff’s claim for breach of the duty of good faith

and fair dealing. Following Wolens, the Supreme Court held in Northwest, Inc. v.

Ginsberg that state-law claims for breach of the implied duty of good faith and fair

dealing are preempted by the ADA “if it seeks to enlarge the contractual obligations

that the parties voluntarily adopt.” 572 U.S. 273, 276 (2014). In so holding, the court

acknowledged that the doctrine does not appear to have any precise, uniform meaning

despite being recognized in most states in some form. Id. at 285. While some states

45 An affirmative defense for fraudulent inducement, however, was not preempted

because it is “related to the fundamental issue in contract actions” of determining

whether there is mutual assent. Lyn-Lea Travel Corp. v. American Airlines, Inc., 283

F.3d 282, 289 (5th Cir. 2002). “The defense does not reflect a state policy seeking to

expand or enlarge the parties’ agreement.” Id. at 290.

46 See R. Doc. No. 1, at 4.

“use the doctrine to effectuate the intentions of parties or to protect their reasonable

expectations,” others “employ the doctrine to ensure that a party does not violate

community standards of decency, fairness, or reasonableness.” Id. at 286 (internal

quotations and citations omitted). If states do not allow parties to disclaim the duty

of good faith and fair dealing, then the obligation is imposed by law rather than

implied from the parties’ contract. See id. at 287. In such a case, “a breach of covenant

claim is pre-empted under the reasoning of Wolens.” Id.

Defendant points to a choice-of-law provision in its contract at carriage stating

that Georgia law applies.47 Plaintiff does not dispute that Georgia law governs his

claims.48 Louisiana law provides that contractual choice-of-law provisions are

presumed valid, unless the chosen law “contravenes the public policy” of the state

whose law would otherwise apply. See La. C.C. art. 3540. “The party who seeks to

invalidate a contractual choice of law provision bears the burden of proving either

that the provision is invalid or that the application of the ‘chosen’ law would violate

public policy.” Diversified Maint. Sys., Inc. v. J. Star Enterprises, Inc., No. CV 22-959,

2022 WL 17476950, at *6 (E.D. La. Dec. 6, 2022) (Brown, C.J.). Because plaintiff does

not argue that the provision is invalid or that it contravenes public policy, the Court

applies Georgia law in accordance with the parties’ choice-of-law provision.

“Generally, every contract governed by Georgia law ‘imposes upon each party

a duty of good faith and fair dealing.’” Ohio Cas. Ins. Co. v. Beall, No. 3:23-CV-00060-

47 R. Doc. No. 13, at 1–2.

48 R. Doc. No. 14, ¶¶ 2, 5.

TES, 2024 WL 3993851, at *7 (M.D. Ga. Aug. 29, 2024) (quoting Hunting Aircraft,

Inc. v. Peachtree City Airport Auth., 636 S.E.2d 139, 141 (Ga. Ct. App. 2006)). “The

implied covenant modifies the meaning of all explicit terms in a contract,” but it

“cannot be breached apart from the contract provisions that it modifies and therefore

cannot provide an independent basis for liability.” Adr1assist, LLC v. Lima One Cap.,

LLC, 580 F. Supp. 3d 1293, 1300 (N.D. Ga. 2022). To state a clam, a plaintiff must

therefore allege a “breach of an actual, express contract term.” Id.

The implied duty of good faith and fair dealing “requires both parties to a

contract to perform their promises and provide such cooperation as is required for the

other party’s performances.” Hunting Aircraft, Inc., 636 S.E.2d at 141 (Ga. Ct. App.

2006) (quoting Camp v. Peetluk, 585 S.E.2d 704, 708 (Ga. Ct. App. 2003)). “[W]here

the manner of performance is left more or less to the discretion of one of the parties

to the contract, he is bound to the exercise of good faith.” Id. (quoting Camp, 585

S.E.2d at 708). “However, when a contract expressly grants one party absolute or

uncontrolled discretion in making a decision, then no duty of good faith is implied as

to that decision.” Ohio Cas. Ins. Co., 2024 WL 3993851, at *7.

Speaking of the duty of good faith and fair dealing, Georgia courts have stated

that “[a]n implied term in an agreement exists where it is reasonable and necessary

to effect the full purpose of the contract and is so clearly within the contemplation of

the parties that they deemed it unnecessary to state.” WirelessMD, Inc. v.

Healthcare.com Corp., 610 S.E.2d 352, 355 (Ga. Ct. App. 2005) (quoting Fisher v.

Toombs County Nursing Home, 479 S.E.2d 180, 184 (Ga. Ct. App. 1996). Georgia

courts examine the language of the contract and the circumstances of the case when

determining whether a contractual term is implied. Id. “When the contract is silent,

principles of good faith . . . fill the gap. They do not block use of terms that actually

appear in the contract.” Martin v. Hamilton State Bank, 723 S.E.2d 726, 728 (Ga. Ct.

App. 2012) (quoting Kham & Nate’s Shoes No. 2, Inc. v. First Bank of Whiting, 908

F.2d 1351, 1357 (7th Cir. 1990)).

Pursuant to Georgia law, the implied duty of good faith and fair dealing seems

intended to effectuate the intent of the parties. Any implied duty can be disclaimed

by clear language expressing an intent to grant a party absolute discretion. The Court

therefore concludes that plaintiff’s claim is not preempted by the ADA in accordance

with the reasoning in Northwest, Inc. v. Ginsberg. The Court will grant defendant’s

motion to dismiss with respect to plaintiff’s claim for fraud. However, the Court will

deny defendant’s motion with respect to plaintiff’s claim for breach of the implied

duty of good faith and fair dealing.

iii. Intentional Infliction of Emotional Distress

Plaintiff next claims that defendant knowingly and intentionally caused him

emotional pain and suffering when it bumped him from his flight without warning or

explanation.49 He states that he attempted to enter the boarding area when he “was

stopped by [defendant’s] employee who declared that [he could not] board the aircraft

because he came too late.”50 Plaintiff does not make any claim that he was physically

49 R. Doc. No. 1, at 1.

50 Id. at 4.

injured by defendant. Defendant argues that this claim for emotional damages is

preempted and barred by the Convention because the Convention does not allow

recovery for purely emotional injuries.51

The Court must first determine whether plaintiff’s alleged injuries occurred

“in the course of any of the operations of embarking or disembarking.” See Montreal

Convention, art. 17(1), 1999 WL 33292734, at *33. If so, the Convention provides

plaintiff’s exclusive means of relief. See White, 493 F. App’x at 529. If not, the

Convention does not preempt plaintiff’s state-law claim. See El Al Israel Airlines, Ltd.

v. Tsui Yuan Tseng, 525 U.S. 155, 158 (1999).

Defendant does not cite to any cases addressing when the operations of

embarking begin. And the Court is unaware of any cases in the Fifth Circuit

addressing this question. However, the Fifth Circuit has acknowledged that “the

phrase ‘in the course of any of the operations of embarking’ ‘strongly suggests that

there must be a tight tie between an accident and the physical act of entering an

aircraft.’” Bridgeman, 552 F. App’x at 297 (quoting McCarthy v. Nw. Airlines, Inc., 56

F.3d 313, 317 (1st Cir. 1995)).

Other circuit courts to address the question of when the operations of

embarking begin have concluded that injuries that occur when attempting to board a

plane occur in the course of an operation of embarking. See e.g., Marotte v. Am.

Airlines, Inc., 296 F.3d 1255, 1260 (11th Cir. 2002) (concluding that the plaintiff was

“embarking” when his “party had their boarding passes in hand and were attempting

51 R. Doc. No. 6-1, at 5–6.

to board the plane”); Day v. Trans World Airlines, Inc., 528 F.2d 31, 33–34 (2d Cir.

1975) (concluding that injuries sustained from a terrorist attack, which occurred

while passengers were standing in line at their departure gate, occurred in the course

of embarking). Additionally, in El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, the

Supreme Court accepted that injuries resulting from a security search prior to

boarding occurred in the course of embarking. 525 U.S. 155, 160, 167 (1999).

The Court therefore concludes that plaintiff was in the course of an operation

of embarking when he attempted to enter the boarding area and was stopped from

boarding by one of defendant’s employees. Plaintiff’s claim for emotional injuries falls

within the scope of the Convention.

The Court must next decide whether the Convention provides a means of relief

for plaintiff’s claim. Recovery for claims of personal injuries suffered “on board [an]

aircraft or in the course of any of the operations of embarking or disembarking” are

not available pursuant to state law when the Convention does not provide relief. See

Id. at 160–61.

Article 17(1) establishes air carrier liability for “death or bodily injury” to a

passenger that results from an accident. See Montreal Convention, art. 17(1), 1999

WL 33292734, at *33. “[E]motional injuries are not recoverable under Article 17 of

the Montreal Convention or Warsaw Convention unless they were caused by physical

injuries.” Bassam v. Am. Airlines, 287 F. App’x 309, 317–18 (5th Cir. 2008); see also

E. Airlines, Inc. v. Floyd, 499 U.S. 530, 534 (1991) (“We now hold that Article 17 does

not allow recovery for purely mental injuries.”). Plaintiff does not allege that he

suffered any physical injuries in his complaint. The Convention therefore does not

provide a means of relief for plaintiff’s claim. Because the Convention provides no

basis of relief for plaintiff’s emotional injuries, his state-law claim for intentional

infliction of emotional distress is barred.

iv. Punitive Damages

Plaintiff requests that the Court award him punitive damages, among other

categories of damages requested.52 Defendant asks that plaintiff’s request for

punitive damages be dismissed because it is preempted by the ADA.53 Defendant

argues that any claim for punitive damages—when it is based on a breach-of-contract

claim that relates to rates, routes, or services—falls outside the Wolens exception

because it expands a plaintiff’s rights beyond the terms of the contract.54

Defendant cites no cases within the Fifth Circuit for this proposition. Nor is

the Court aware of any cases in the Fifth Circuit to address this question. However,

the Court notes that several other courts have concluded that the ADA preempts

certain punitive damages. See, e.g., Travel All Over the World, Inc. v. Kingdom of

Saudi Arabia, 73 F.3d 1423, 1432 (7th Cir. 1996) (concluding that the ADA preempted

a claim for punitive damages for the plaintiff’s contract claim relating to services

because punitive damages represent an “enlargement or enhancement [of the

bargain] based on state laws or policies external to the agreement” (quoting Wolens,

513 U.S. at 233)); West v. N.W. Airlines, Inc., 995 F.2d 148, 151 (9th Cir. 1993)

52 R. Doc. No. 1, at 2.

53 R. Doc. No. 6-1, at 10.

54 Id.

(holding that the ADA preempts “punitive damages under state contract and tort

law”).

The purpose of punitive damages is to punish a party for its wrongful conduct

and to deter others from similar behavior. Edmonson v. Cnty. of Van Zandt, 15 F.3d

180, 1994 WL 24912, at *4 (5th Cir. 1994) (unpublished). Awarding punitive damages

for a contractual claim therefore necessarily enlarges and enhances the plaintiff’s

claim beyond what it is entitled to pursuant to the terms of its privately ordered

agreement. The Court concludes that plaintiff’s requests for punitive damages for his

contractual claims is preempted by the ADA. Because only plaintiff’s contractual

claims remain, the Court need not address whether punitive damages are preempted

with respect to plaintiff’s other claims.

c. Supplemental Jurisdiction

Having dismissed plaintiff’s federal claims, and having addressed the

questions of federal preemption that bear upon plaintiff’s state-law claims, the Court

declines to exercise supplemental jurisdiction over plaintiff’s remaining breach-of-

contract claim and claim for breach of the duty of good faith and fair dealing.55 A

district court has “wide discretion” when deciding whether it should retain

jurisdiction over state-law claims once all federal claims have been eliminated.

Guzzino v. Felterman, 191 F.3d 588, 595 (5th Cir. 1999). However, the general rule

55 Jurisdiction for this lawsuit was originally premised upon the federal questions

presented by plaintiff’s claims. See R. Doc. No. 1, at 2–3. The Court notes that 28

U.S.C. § 1332 affords no alternative basis for continued original jurisdiction over this

dispute because the amount in controversy is not greater than $75,000. See id. at 8.

in the Fifth Circuit is “to dismiss state claims when the federal claims to which they

are pendent are dismissed.” Parker & Parsley Petroleum Co. v. Dresser Indus., 972

F.2d 580, 585 (5th Cir. 1992).

A district court may decline to exercise supplemental jurisdiction over a state-

law claim if:

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over

which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original

jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for

declining jurisdiction.

28 U.S.C. § 1367(c). In addition to these factors, the Fifth Circuit has instructed

district courts to consider the common law factors of “judicial economy, convenience,

fairness, and comity.” Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008). “These

interests are to be considered on a case-by-case basis, and no single factor is

dispositive.” Id.

These factors weigh in favor of dismissing plaintiff’s breach-of-contract claim

without prejudice so that he may assert that claim in state court. The Court has

“dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).

Moreover, allowing state courts to rule on state law “encourages fairness between the

parties by ‘procuring for them a surer-footed reading of applicable law.’” Bitte v. EMC

Mortgage Corp., No. 07-9273, 2009 WL 1950911, at *2 (E.D. La. July 1, 2009) (Africk,

J.) (citations omitted) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715,

726 (1966)). “[D]eference in this case with respect to the state law issue[s] promotes

the important interest of comity to state courts.” Id.

Therefore, the Court declines to exercise supplemental jurisdiction over

plaintiff's remaining claim for breach-of-contract and breach of the duty of good faith

and fair dealing brought pursuant to state law. That claim is dismissed without

prejudice, as ordered below.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that defendant’s motion to dismiss is GRANTED IN PART

and DENIED IN PART. The motion is GRANTED with respect to plaintiff's claims

for violations of the FAA as amended, violations of DOT regulations, intentional

infliction of emotional distress, fraud, and punitive damages. These claims are

DISMISSED WITH PREJUDICE. Defendant’s motion is DENIED with respect to

plaintiff's breach-of-contract claim and claim for breach of the duty of good faith and

fair dealing.

IT IS FURTHER ORDERED that plaintiffs breach-of-contract claim and

plaintiffs claim for breach of the duty of good faith and fair dealing are DISMISSED

WITHOUT PREJUDICE to their being timely asserted in state court.

New Orleans, Louisiana, February 11, 2025.

UNITED STMTES DISTRICT JUDGE

27