GONZALEZ FIGUEROA v. JetBlue Airways Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-61178-CIV-SINGHAL/STRAUSS

RAMON GONZALEZ FIGUEROA,

Plaintiff,

v.

JETBLUE AIRWAYS CORPORATION,

Defendant.

___________________________/

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT

THIS CAUSE is before the Court on Defendant’s Motion to Dismiss Plaintiff’s

Complaint (“Motion”) (DE [17]). The Motion was referred to Magistrate Judge Jared M.

Strauss for a Report and Recommendation on October 28, 2024 (DE [23]). Judge Strauss

issued a Report and Recommendation on December 18, 2024, recommending that the

Motion be granted (DE [30]). Plaintiff filed its Objections to Report and Recommendation

on January 2, 2025. (DE [31]) (“Objections”). Defendant filed its Response in Opposition

to Plaintiff’s Objections to Report and Recommendation on January 16, 2025. (DE [32])

(“Response to Objections”).

I. BACKGROUND

There is no need to rework the facts, background, and applicable legal standards that

were articulated by Judge Strauss. This Court adopts Judge Strauss’s description of the

factual and procedural background and the applicable legal standards in the Report and

Recommendation (DE [30]) and incorporates that background by reference herein.

Suffice it to say, the Court is not unsympathetic to Plaintiff’s claim, but the decision today

is based on the threshold preemption argument, not on whether Defendant made the

correct decision in its treatment of Plaintiff.

In the Motion, Defendant moved to dismiss Plaintiff’s Complaint on the grounds that

Plaintiff failed to state a ground upon which relief could be granted. (DE [17]), p. 1).

Defendant contends that Plaintiff’s claim is pre-empted under the Airline Deregulation Act

(“ADA”) and that even if Plaintiff could bring forth this claim, he would need to meet the

burden of proof greater than the arbitrary and capricious standard he articulates. (DE

[17]), p. 3-4). In the Report, Judge Strauss finds that Plaintiff’s claim is pre-empted under

the ADA. (DE [30], p. 11).

Plaintiff objected to the Report for several reasons. First, he argues that his claim did

not involve a service as provided under the ADA. (DE [31], p. 3). Second, he contends

Judge Strauss’s proposed dismissal of the claim is premature since it is based on an

affirmative defense. (DE [31], p. 4). Third, he notes that if this Court does choose to

dismiss the claim it should be without prejudice and with leave to amend. (DE [31], p. 5-

6). In its Response to Objections, Defendant addresses and denies the substance of

Plaintiff’s Objections. (DE [32]). This Court will review these arguments in turn.

II. STANDARDS OF REVIEW

A. Review of a Magistrate Judge’s Report and Recommendation

When a party objects to a magistrate judge's findings, the district court must “make

a de novo determination of those portions of the report ... to which objection is made.” 28

U.S.C. § 636(b)(1). The district court “may accept, reject, or modify, in whole or in part,

the findings or recommendations made by the magistrate judge.” Id. The district court

must consider the record and factual issues independent of the magistrate judge's report,

as de novo review is essential to the constitutionality of § 636. Jeffrey S. v. State Bd. of

Educ., 896 F.2d 507, 513 (11th Cir. 1990).

B. Motion to Dismiss

At the pleading stage, a complaint must contain “a short and plain statement of

the claim showing the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). Although Rule

8(a) does not require “detailed factual allegations,” it does require “more than labels and

conclusions . . . a formulaic recitation of the cause of action will not do.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, “factual

allegations must be enough to raise a right to relief above the speculative level” and

must be sufficient “to state a claim for relief that is plausible on its face.” Id. at 555. “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court

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

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In considering a Rule 12(b)(6) motion to dismiss, the court’s review is generally

“limited to the four corners of the complaint.” Wilchombe v. TeeVee Toons, Inc., 555

F.3d 949, 959 (11th Cir. 2009) (quoting St. George v. Pinellas Cty., 285 F.3d 1334,

1337 (11th Cir. 2002)). Courts must review the complaint in the light most favorable to

the plaintiff, and must generally accept the plaintiff’s well-pleaded facts as true. Hishon

v. King & Spalding, 467 U.S. 69, 73 (1984); Am. United Life Ins. Co. v. Martinez, 480

F.3d 1043, 1057 (11th Cir. 2007). However, pleadings that “are no more than

conclusions are not entitled to the assumption of truth. While legal conclusions can

provide the framework of a complaint, they must be supported by factual allegations.”

Iqbal, 556 U.S. at 679.

III. DISCUSSION

A. The ADA Preempts Plaintiff from Bringing His Claim.

The ADA aims “to provide efficiency, innovation, and low prices,” “placing

maximum reliance on competitive market forces and on actual and potential competition

to provide the needed air transportation system.” 49 U.S.C. §§ 40101(a)(6), (12)(A).

Under the Act, a state “may not enact or enforce a law, regulation, or other provision

having the force and effect of law related to a price, route, or service of an air carrier.” 49

U.S.C. § 41713(b)(1) (emphasis added). The inclusion of this preemption provision helps

“to ensure that the States would not undo the anticipated benefits of federal deregulation

of the airline industry.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 374 (1992)

(holding that the ADA preempted the enforcement of state consumer laws to regulate the

air industry).

To determine whether the ADA preempts Plaintiff from bringing this action, this

Court must first decide whether Plaintiff’s claim amounts to an “‘enact[ment] or

enforce[ment] [of] any law, rule, regulation, standard, or other provision having the force

and effect of law’ within the meaning of [the ADA pre-emption provision].” Nw., Inc. v.

Ginsberg, 572 U.S. 273, 281 (2014) (holding that plaintiff’s claim for breach of implied

covenant of good faith and fair dealing was pre-empted under the ADA) (citing Am.

Airlines, Inc. v. Wolens, 513 U.S. 219, 228-229 (1995)). Next, this Court must “determine

whether respondent's breach of implied covenant claim ‘relates to’ ‘rates, routes, or

services.’” Id. at 284.

To begin, this Court will address the first part of this test. “[T]he phrase ‘other

provision having the force and effect of law’ includes common-law claims.” Id. Plaintiff

brings a claim under Florida’s common law of negligence. (Compl., (DE [1]), p. 5).

Accordingly, Plaintiff’s claim constitutes a “law, regulation, or other provision having the

force and effect of law, and Plaintiff does not appear to dispute this fact. 49 U.S.C. §

41713(b)(1).

Next, this Court must decide whether Plaintiff’s claim “is related to” the “service of

an air carrier.” 49 U.S.C. § 41713(b)(1). The Supreme Court has interpreted the phrase

“related to” as expressing a “broad pre-emptive purpose.” Ginsberg, 572 U.S. at 273

(citing Morales, 504 U.S. at 383). The Supreme Court has not yet defined the term

“service of an air carrier.” 49 U.S.C. § 41713(b)(1). Courts of appeals have interpreted

the statute differently. Compare Hodges v. Delta Airlines, Inc. 44 F.3d 334, 336 (5th Cir.

1995) (defining services “broadly”),1 with Charas v. Trans World Airlines, Inc. 160 F.3d

1259, 1265-66 (9th Cir. 1998) (defining services “narrowly”). The 11th Circuit adopted the

5th Circuit’s definition of “services,” finding that:

‘Services’ generally represent a bargained-for or anticipated provision of

labor from one party to another. If the element of bargain or agreement is

incorporated in our understanding of services, it leads to a concern with the

contractual arrangement between the airline and the user of the service.

Elements of the air carrier service bargain include items such as ticketing,

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

addition to the transportation itself. These matters are all appurtenant and

necessarily included with the contract of carriage between the passenger or

shipper and the airline. It is these [contractual] features of air transportation

that we believe Congress intended to de-regulate as “services” and broadly

to protect from state regulation.

1 This Court notes that the 11th Circuit was formed in 1981 after it was split from the 5th Circuit. Bonner v.

City of Prichard, Ala., 661 F.2d 1 206, 1207 (11th Cir. 1981). While only 5th Circuit decisions handed

down prior to the separation are binding in this Circuit, this Court acknowledges this historic relationship.

Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1256–57 (11th Cir. 2003) (quoting

Hodges, 44 F.3d at 336). Further, this Court acknowledges that the ADA does not

preempt all state tort claims. See, e.g. Branche, 342 F.3d at 1258 (“Unsurprisingly,

airlines do not compete on the basis of likelihood of personal injury.”).

“This focus on the bargained-for aspects of air carrier service is perfectly consistent

with the ADA's purpose of promoting competition within the airline industry; air carriers

compete in only a limited range of contexts, e.g., fares, routes, timing, etc., which

constitute the bargained-for elements of its service.” Branche, 342 F.3d at 1255–56. The

Eleventh Circuit has ruled that “ticketing” and “the transportation itself” are “elements of

an air carrier service bargain.” Id. at 1257 (quoting Hodges, 44 F.3d at 336). The

Supreme Court has found that “access to flights” falls within the ambit of services.

Ginsberg, 572 U.S. at 284.

Here, Defendant’s choice to place Plaintiff on its uninvited to fly (“UTF”) list relates

directly to “ticketing” and the “transportation itself.” Id. at 1257. Defendant’s decision to

place Plaintiff on its UTF list determines whether Plaintiff even has “access to flights.”

Ginsberg, 572 U.S. at 284. Accordingly, the ADA preempts Plaintiff from bringing his

claim.

Plaintiff’s main argument against federal preemption of his claim is based on the

11th Circuit’s decision in Xiaoyun Lucy Lu v. AirTran Airways. See (DE [31], p. 3-4) (citing

631 F. App'x 657 (11th Cir. 2015)). In Lu, plaintiff was removed from a flight after a

disagreement arose over a leaking air vent and plaintiff’s cellphone use. Lu, 631 F. App'x

at 659. The 11th Circuit affirmed the district court’s findings and held, among other things,

that plaintiff in Lu failed to plausibly state a claim for removal. Id. at 662. Plaintiff asserts

this action involves “the type of situation, i.e., a removal, that is not classified as a service

as explained by the 11th Circuit in Lu because ‘it is improbable that customers discern

between the procedures for removal for failure to comply with FAA regulations.”2 (DE

[31], p. 4) (quoting Lu, 631 F. App'x at 661 n.3).

This Court disagrees with Plaintiff’s assertion that this action is “akin to removal

claims.” (DE [31], p. 3). Here, Plaintiff was not removed during the flight. Rather,

Defendant placed his name on its UTF list after the flight concluded. (DE [1], ¶¶ 27-28).

This Court treats Lu’s consideration as to “whether customers discern between the

procedures for [placing a passenger on an airline’s UTF list]” as a persuasive authority.

631 F. App'x at 661 n.3.3 This remark does not establish a legal standard that informs

this Court’s preemption analysis. Rather, this Court finds that Branche’s definition of

“services” informs our decision-making, see 342 F.3d at 1255–56, and, under this

definition, see infra p. 6, Plaintiff is preempted from bringing his claim.

B. This Court May Rule at the Motion to Dismiss Stage.

Plaintiff argues “it is inappropriate to rule on the affirmative defense of preemption

at the motion to dismiss stage unless ‘the defense clearly appears on the face of the

complaint.’” (DE [31], p. 4 (quoting DE [30], p. 4)). First, the Court acknowledges, and

2 This Court notes that Plaintiff’s argument relies on dicta contained in a footnote in the 11th Circuit’s

unpublished decision in Lu.

3 Accepting the dicta in Lu as persuasive, this Court emphasizes that it adopts a broad definition of

services. See infra p. 5. For example, while many customers’ decision to fly with an airline may not be

motivated by the choice of available snacks that does not mean that these offerings are not considered

services. See Branche, 342 F.3d at 1256 (“Elements of the air carrier service bargain include …

provision of food and drink”). Thus, this comment references only one of several considerations this

Court accounts for in determining whether an airline’s action is “related to” the “service of an air carrier”

under the ADA. 49 U.S.C. § 41713(b)(1).

Plaintiff does not appear to dispute, that the law treats preemption as an affirmative

defense. See Geddes v. Am. Airlines, Inc., 321 F.3d 1349, 1352 (11th Cir. 2003)

(“Ordinary preemption may be invoked in both state and federal court as an affirmative

defense to the allegations in a plaintiff's complaint. Such a defense asserts that the state

claims have been substantively displaced by federal law.”). Plaintiff maintains that more

fact-finding is needed before this Court can make this determination, (DE [31], p. 5), but

the Court disagrees.

“Generally, the existence of an affirmative defense will not support a motion to

dismiss. Nevertheless, a complaint may be dismissed under Rule 12(b)(6) when its own

allegations indicate the existence of an affirmative defense, so long as the defense clearly

appears on the face of the complaint.” Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067,

1069 (11th Cir. 1984), on reh'g, 764 F.2d 1400 (11th Cir. 1985).

Plaintiff cites to Zamber v. American Airlines to support its claim. See Zamber v.

Am. Airlines, Inc., 282 F. Supp. 3d 1289, 1302 (S.D. Fla. 2017) (“Determining whether

[plaintiff’s] claims have an impermissible effect on [defendant’s] prices or services is an

inherently factual question; evidence is required to determine whether and how [p]laintiff's

claim would have such an effect.”). In Zamber, the Court needed to glean the impact of

plaintiff’s travel insurance policy on American Airline’s prices and services to then

determine whether the ADA applied. Id. The Court points out that Plaintiff’s presence

on Defendant’s UTF list does not present an “inherently factual question.” Id.

Here, the Court need not defer its ruling until the summary judgment stage

because the contractual relationship between Plaintiff and Defendant is at the center of

the dispute. Here, there is no question of degree prompting an “inherently factual” inquiry.

Id. By placing Plaintiff on a UTF list, Defendant prohibited Plaintiff from using its services.

Accordingly, the question of whether the ban would be considered a service under the

ADA is a legal one, and the matter is ripe for ruling.4

C. This Case is Dismissed with Prejudice

Plaintiff asserts that if this Court choses to dismiss this case it should do so without

prejudice “given the early stages of this case and that Plaintiff has not yet had an

opportunity to amend his complaint.” (DE [31]), p. 6). Rule of 15 of the Federal Rules of

Civil Procedure provides that a plaintiff can amend his complaint twenty-one days after

serving it. Fed. R. Civ. P. 15. Plaintiff served Defendant on July 11, 2024. (DE [8]). The

deadline to amend has passed, and Plaintiff has had ample opportunities to respond to

the Motion.

IV. CONCLUSION

It is hereby ORDERED AND ADJUDGED that the magistrate judge’s Report and

Recommendation (DE [30]) is AFFIRMED and ADOPTED. Plaintiff's Motion to Dismiss

Counterclaim (DE [17]) is GRANTED. It is FURTHER ORDERED that Plaintiff's

Objections to the Report and Recommendation (DE [30]) are OVERRULED.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 24 day of

February 2025. \

<=

UNITED STATES DISTRICT JUDGE

4 This Court also recognizes that courts have dismissed ADA cases based on preemption at the motion to

dismiss stage countless times. See, e.g., Xiaoyun Lucy Lu v. AirTran Airways, Inc., 631 Fed. Appx. 657

(11th Cir. 2015) (affirming dismissal of complaint where plaintiff failed to state a claim for wrongful

removal); see also Cintron v. JetBlue Airways Corp., 324 F.Supp.3d 248 (D. Mass. 2018) (dismissing

Sree) brought under the ADA at the motion to dismiss stage where defendant removed plaintiff from

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