# Opinion

> District Court, E.D. North Carolina · July 29, 2026

URL: https://www.frixlaw.com/law-library/cases/11415922

## Case

- **Full name:** Sui Generis Nexus Express Trust by Kevin Miles TTE, AF v. Southwest Airlines, et al.
- **Court:** District Court, E.D. North Carolina
- **Decided:** July 29, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 5:25-CV-734-BO-BM

SUI GENERIS NEXUS EXPRESS TRUST _ )
BY KEVIN MILES TTE, AF, )
)
Plaintiff, )
) ORDER
v. )
)
SOUTHWEST AIRLINES, et al., )
)
Defendants. )

This matter comes before the Court on plaintiff's motion to remand [DE 12]. Defendant
has responded [DE 19] and the time for reply has elapsed. The Court also considers defendant’ s
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). [DE 8]. Plaintiff responded [DE 13] and
the time for reply has elapsed. In this posture, the motions are ripe for disposition. For the following
reasons, plaintiff's motion to remand is denied and defendant’s motion to dismiss is granted.
BACKGROUND
Plaintiff, proceeding pro se, initiated this case by filing a complaint against defendants in
Wake County Superior Court. Defendants filed a notice of removal based on federal question
jurisdiction [DE 1] and subsequently moved to dismiss the case [DE 8]. The following factual
background is drawn from the complaint. [DE 1-2].
“Plaintiff is a 64-year-old, 100% disabled veteran, with PTSD, chronic pain, and severe
anxiety[.]” /d. at § 5. “On September 26, 2025, Plaintiff arrived at Chicago Midway Airport to
board a Southwest Airlines flight. The plaintiff requested wheelchair assistance but was denied the
accommodation.” Jd. at J 6. “While in transit, Plaintiff was startled awake by a male Southwest

flight attendant. Plaintiff was told that while he slept, the attendant had tapped rather firmly on his
shoulders. Plaintiff inadvertently nudged at the attendant’s hand as a reflexive movement.” /d. at
q 7A.
Subsequently, plaintiff “was treated as if he were a security threat, despite having
committed no crime and merely seeking medical accommodation.” /d. at § 8. Southwest airlines
employees engaged the Chicago Police Department’s Counterterrorism Team and detained
plaintiff. Jd. at § 7. “During the course of the detention, the Southwest Airlines General Manager
attempted to hand Plaintiff a refund of only $9.27 for the cancelled segment” of his flight, for
which he was denied re-boarding. /d. at 9-10. Plaintiff was forced to buy a ticket with a different
airline, and the delay in his travels caused him to consume his entire supply of medication before
returning home, so that he ran out of medication before he could acquire more. /d. at {§] 11-13. He
was later notified that he would be banned from all future Southwest flights. /d. at 4 17.
Plaintiff asserts the following claims: (1) unlawful detention and violation of due process
under N.C. Const. Art. I §§ 6, 13, 17; U.S. Const. Amend. V, XIV, and 42 U.S.C. § 1983; (2)
breach of duty and constructive fraud under UCC 3-501, UCC 3-603, and Restatement (Second)
of Contracts § 205; (3) violations of ADA [Americans with Disabilities Act] and Air Carrier
Access Act under 42 U.S.C. § 12132, 49 U.S.C. § 41705, and 14 C.F.R. Part 382; (4) breach of
contract and common carrier duty under 49 U.S.C. § 40127 and Nader v. Allegheny Airlines, Inc.,
426 U.S. 290 (1976); (5) psychological, emotional, and financial injury under North Carolina tort
law and 14 C.F.R. § 250.5; and (6) retaliation and blacklisting in violation of 42 U.S.C. § 12203
and North Carolina public policy.

DISCUSSION
A 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted
tests the complaint’s legal and factual sufficiency. See Fed. R. Civ. P. 12(b)(6). The focus is on
the pleading requirements under the Federal Rules, not the proof needed to succeed on a claim.
“Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give the defendant fair notice of what
the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (cleaned up). This standard does not require detailed factual allegations, id., but it “demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Nadendla v.
WakeMed, 24 F.4th 299, 305 (4th Cir. 2022) (citation omitted). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 US.
at 570). For a claim to be plausible, its factual content must permit the court to “draw the reasonable
inference that the defendant is liable for the misconduct alleged.” /d.
I. Motion to Remand
Plaintiff moved to remand this case to Wake County Superior Court. [DE 12]. In his motion
to remand, he argues first that this Court lacks federal question jurisdiction over this case under 28
U.S.C. § 1331. He contends he “pleaded with no federal statute, no federal civil-rights claim, no
ADA or ACAA claim, and no FAA regulatory claim.” [DE 12, p. 2]. Not so; his complaint
specifically asserts, “Count III — Violation of ADA” and otherwise cites numerous federal statutes
throughout his “Causes of Action” section. [DE 1-2, p. 5]. The Court has federal question
jurisdiction pursuant to 28 U.S.C. § 1331.

Plaintiff also argues Southwest CEO Bob Jordan failed to consent to the remand. Jordan,
however, is a nominal party. “Nominal parties are excepted from the requirement that all
defendants join in or consent to removal to federal court.” Hartford Fire Ins. Co. v. Harleysville
Mut. Ins. Co., 736 F.3d 255, 257 (4th Cir. 2013). “Nominal means simply a party having no
immediately apparent stake in the litigation either prior or subsequent to the act of removal. In
other words, the key inquiry is whether the suit can be resolved without affecting the non-
consenting nominal defendant in any reasonably foreseeable way.” /d. at 260. Plaintiff alleges no
facts and asserts no claims specific to Jordan, and could be made whole by Southwest alone.
Southwest is the party with which plaintiff has a real dispute. Jordan has no immediately apparent
stake in the outcome of this litigation and is a nominal party whose consent is not necessary for
removal.
As the remainder of plaintiffs arguments in favor of remand are immaterial, his motion to
remand is denied.
II. 42 U.S.C. § 1983 and Unlawful Detention
“By the plain terms of [42 U.S.C.] § 1983, two—and only two—allegations are required
in order to state a cause of action under that statute. First, the plaintiff must allege that some person
has deprived him of a federal right. Second, he must allege that the perscn who has deprived him
of that right acted under color of state or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640
(1980) (citing Monroe v. Pape, 365 U.S. 167, 171 (1961)). “Like the state-action requirement of
the Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes from its
reach ‘merely private conduct, no matter how discriminatory or wrongful[.]’” Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citing Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). “The
ultimate issue in determining whether a person is subject to suit under § 1983 is the same question

posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal
rights ‘fairly attributable to the State?’” Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (citing
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).
The complaint contains no allegation that either defendant could act on behalf of the state,
or that their actions are fairly attributable to the state. Accordingly, plaintiff fails to state a § 1983
claim against them. Similarly, because defendants are not state actors, plaintiffs claims under the
North Carolina Constitution fail. To effectively plead a North Carolina Constitutional violation, a
plaintiff must allege a state actor violated his constitutional rights. See Kinsley v. Ace Speedway
Racing, Ltd., 284 N.C. App. 665, 674 (2022), aff'd, 386 N.C. 418 (2024).
Plaintiff references unlawful detention in his first count for relief. Plaintiff appears to plead
his state law tort claims under the law of North Carolina. Defendants do not agree that North
Carolina law applies to this dispute, because “the incident occurred in Chicago and Southwest’s
Contract of Carriage chooses Texas law to govern.” [DE 9, p. 8]. The Court need not determine
which state’s law applies, as plaintiff fails to state a claim regardless.
Plaintiffs false imprisonment claim fails under any of the relevant standards! because he
fails to allege “that any employee of Southwest Airlines actually participated in any unlawful
detention or even instigated any such unlawful detention.” Shah v. Sw. Airlines, No. 1:13-CV-1481
AJT/JFA, 2014 WL 4547160, at *2 (E.D. Va. Mar. 6, 2014) (dismissing false imprisonment claim

1 “To state a claim of false imprisonment in North Carolina, a plaintiff must allege: (1) the illegal restraint
of plaintiff by defendant, (2) by force or implied threat of force ... (3) against the plaintiff's will.” Murphy v. Page,
No. 1:23CV963, 2025 WL 3122705, at *7 (M.D.N.C. Nov. 7, 2025), report and recommendation adopted, No. 1:23-
CV-963, 2025 WL 4792126 (M.D.N.C. Dec. 8, 2025) (cleaned up, emphasis added). Under Texas law, the “elements
of a false imprisonment cause of action are: (1) willful detention by the defendant, (2) without consent of the detainee,
and (3) without authority of law.” Fojtik v. Charter Med. Corp., 985 S.W.2d 625, 629 (Tex. App. 1999) (emphasis
added). In Illinois, false imprisonment “is an unreasonable restraint of an individual's liberty, against his will, caused
or procured by the defendant.” Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 474, 564 N.E.2d 1222, 1231 (1990)
(emphasis added).

with similar facts on those grounds). Rather, it was the Chicago Police Department’s
Counterterrorism Team that allegedly detained plaintiff.
Breach of Duty and Constructive Fraud
Constructive fraud is a legal claim or doctrine which treats certain breaches of fiduciary
duty as fraudulent even in the absence of deceptive intent. A plaintiff pleading constructive fraud
must necessarily allege the existence of a fiduciary relationship.” Because plaintiff does not allege
any facts suggesting he entered a fiduciary relationship, or any special relationship reposing
confidence with defendants, he fails to state a claim.
IV. ADA and Air Carrier Access Act Claims
Title II of the ADA dictates: “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42
U.S.C. § 12132. The public entities subject to Title I include “(A) any State or local government;
(B) any department, agency, special purpose district, or other instrumentality of a State or States
or local government; and (C) the National Railroad Corporation, and any commuter authority (as
defined in section 103(8) of the Rail Passenger Act.” 42 U.S.C. § 12131(1).
Because plaintiff fails to allege facts indicating either defendant is a public entity subject
to Title I], he fails to state a claim. Furthermore, “Title III does not cover the operations of any
portion of any airport that are under the control of an air carrier.” Bynum v. Southwest Airlines,

* Under North Carolina law, constructive fraud “arises when a confidential or fiduciary relationship exists.”
Gasper v. Brady Trane Serv., Inc., 276 N.C. App. 35. Under Texas law, constructive fraud “is the breach of a legal or
equitable duty that the law declares fraudulent because it violates a fiduciary relationship.” McClain v. McClain, 2017
Tex. App. LEXIS 3471, *12 (citing Archer v. Griffith, 390 S.W.2d 735, 740 (Tex. 1964)). Under Illinois law, the
“elements of constructive fraud are: (1) a fiduciary relationship; (2) a breach of the duties that are imposed as a matter
of law because of that relationship; and (3) damages.” D'Attomo v. Baumbeck, 2015 IL App (2d) 140865, 74, 36
N.E.3d 892, 917.

2019 U.S. Dist. LEXIS 227156, *8 (quoting Gilstrap v. United Air Lines, Inc., 709 F.3d 995, 1003
(9th Cir. 2013)) (cleaned up).
The Air Carrier Access Act (ACAA) provides,
an air carrier... may not discriminate against an otherwise qualified individual on
the following grounds: (1) the individual has a physical or mental impairment that
substantially limits one or more major life activities. (2) the individual has a record
of such an impairment. (3) the individual is regarded as having such an impairment.
49 U.S.C. § 41705. The ACAA does not, however, create a private right of action. Andreadakis v.
Ctr. for Disease Control & Prevention, 2022 U.S. Dist. LEXIS 122236, *26-28 (E.D. Va. July 11,
2022) (collecting cases from other circuits).
V. Breach of Contract and Common Carrier Duty
Plaintiff's fourth count for relief purports to assert a claim based on 49 U.S.C. § 40127,
which states, an “air carrier or foreign air carrier may not subject a person in air transportation to
discrimination on the basis of race, color, national origin, religion, sex, or ancestry.” Plaintiff's
complaint is devoid of any allegation that he was discriminated against based on his race, color,
national origin, religion, sex, or ancestry. Rather, the complaint indicates he was discriminated
against on the basis of his disability.
Plaintiff cites to Nader v. Allegheny Airlines, Inc., 426 U.S. 290 (1976), including in his
fourth count the assertion that “Defendants breached . .. caselaw[.]” Plaintiff does not specify
what additional cause of action, if any, he intends to pursue, or how Nader supports a finding of
defendants’ breach. Accordingly, he fails to state a claim.
VI. Psychological, Emotional, and Financial Injury
Plaintiff's fifth count for relief recites some of the kinds of damages he alleges he suffered,
and suggests he is due remuneration under “under North Carolina tort law and 14 C.F.R. § 250.5.”
[DE 1-2, p. 5] (cleaned up). He does not specify which tort he contends caused these injuries.

14 C.F.R. § 250.5 requires carriers to “pay compensation in interstate air transportation to
passengers who are denied boarding involuntarily from an oversold flight[.]” Plaintiff alleges he
“was denied reboarding[.]” [DE 1-2, J 9]. He does not, however, allege facts suggesting he was
denied boarding because the flight was “oversold.” The complaint suggests that denial was
discriminatory or retaliatory. There is no plausible inference that § 250.5 should govern plaintiff's
claims.
VII. Retaliation and Blacklisting in Violation of 42 U.S.C. § 12203 and North Carolina Public
Policy.
42 U.S.C. § 12203 provides, “[n]o person shall discriminate against any individual because
such individual has opposed any act or practice made unlawful by” the ADA, and “prohibits
retaliation against any individual who opposes a discriminatory act.” Stanley v. City of Sanford,
Fla., 606 U.S. 46, 53 (2025). The complaint contains no allegation that plaintiff opposed a
discriminatory act (only that he purports to have suffered one), and no allegation that defendants
retaliated against him for that opposition.
Plaintiff alleges his request for a wheelchair after he arrived at the airport was denied—but
does not suggest that the altercation on the plane or the subsequent detention were related to his
disability. Rather, plaintiff alleges he “inadvertently nudged” a flight attendant’s hand, and
defendants “escalated this ordinary and harmless occurrence into a pretext for unlawful action.”
[DE 1-2, 7A]. The allegations in the complaint relating to plaintiff's disability are allegations of
discrimination—not of retaliation for his opposing an act made unlawful by the ADA. He fails to
state a claim.

CONCLUSION
For the foregoing reasons, plaintiff's motion to remand [DE 12] is DENIED. Defendants’
motion to dismiss [DE 8] is GRANTED. The Clerk is directed to enter judgment in favor of
defendants and close the case.

SO ORDERED, this o9 day of July 2026.

TT esting Ki _
TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11415922. Public record. Not legal advice.