holding that “the plaintiffs defamation claims are not pre-empted and may, therefore, proceed. Application of state law in these circumstances does not frustrate Congressional intent, nor does it impose a state utility-like regulation on the airlines. We therefore conclude that the plaintiffs suit is simply ‘too tenuous, remote, or peripheral’ to be subject to pre-emption, even though Delta’s statements refer to ticketing, arguably a ‘service.’ ”
How later courts described this case
- holding that “the plaintiffs defamation claims are not pre-empted and may, therefore, proceed. Application of state law in these circumstances does not frustrate Congressional intent, nor does it impose a state utility-like regulation on the airlines. We therefore conclude that the plaintiffs suit is simply ‘too tenuous, remote, or peripheral’ to be subject to pre-emption, even though Delta’s statements refer to ticketing, arguably a ‘service.’ ”
- holding that punitive damages award on defamation claim was not preempted because “defamation is so foreign to regulations on prices, routes, and services that it is unlikely that an award of traditional damages would offend Congressional intent”
- holding that tort claims were not preempted because the application of state law in the circumstances did not frustrate Congressional intent nor impose a state utility-like regulation on the airlines
- finding that enforcing a defamation claim did “not frustrate Congressional intent, nor [did] it impose a state utility-like regulation on the airlines”
Written by the judges who cited it.
The opinion
GARTH, Circuit Judge,
dissenting:
I approach the two issues in this case in reverse. See, e.g., Smith v. Comair, Inc., 134 F.3d 254 (4th Cir.1998). That is, first, I agree with the holding of this Court that the ADA does not preempt a state-law cause of action for defamation. However, in reaching the merits of Taj Mahal’s claim, I cannot agree that the facts giving rise to Taj Ma-hal’s cause of action warrant a reversal of the judgment of the District Court in favor of Delta. Because I cannot conclude that the letter sent by Delta can reasonably be determined to be defamatory of Taj Mahal, I dissent.
The majority (Majority Op. at 190), focuss-es on the following highlighted language in the letter, reproduced here in its entirety:
We regretfully inform you that the ticket presented has been reported as a stolen airline ticket.
It is unfortunate that you have purchased one of these tickets. While we empathize with your predicament, we cannot honor this ticket for transportation because Delta has not yet received the money you paid. To assist you in this difficult situation, we will sell you a new ticket, honoring the fare indicated in your flight reservation record and waiving any advance purchase requirements.
It is necessary to retain your ticket in order to assist with the ongoing law-enforcement investigation; however, this letter will serve as your receipt for ticket number [_]. If you purchased your ticket from an authorized Delta travel agency, please complete the attached affidavit and forward it to Delta Air Lines, Inc. for a refund. If you purchased the ticket from someone not authorized by Delta to sell its tickets, you should contact the individual from whom you purchased the ticket, as Delta has not received any payment for this ticket.
If this ticket has been issued by a travel agent and you have further questions, you may contact the Agency Audit and Fraud Prevention, Airline Reporting Corporation at (713) 816-8134.
*196 The majority analyzes those highlighted portions. Majority Op. at 189-90. In doing so, it makes two assumptions in its defamation analysis that are unwarranted by the record. First, the majority finds that the highlighted language “links theft, a criminal offense, to the ticket received from Taj Ma-hal” and, second, that Delta’s letter “emphasized to the reader that some type of criminal misappropriation is involved.” Majority Op. at 189-90.
The preliminary question for the trial court is whether the words at issue are capable of a defamatory meaning. Hill v. Evening News Co., 314 N.J.Super. 545 , 715 A.2d 999 (1998); Scelfo v. Rutgers Univ., 116 N.J.Super. 403 , 282 A.2d 445 (1971). A defamatory statement is “one that is false and ‘injurious to the reputation of another’ ... or subjects another person to a ‘loss of the good will and confidence’ in which he or she is held by others.” Higgins v. Pascack Valley Hosp., 307 N.J.Super. 277 , 704 A.2d 988, 1002 (1998). If the statement is not capable of a defamatory meaning, the trial court should dismiss the action as a matter of law. Id. See also Moldea v. New York Times Co., 15 F.3d 1137, 1142 (D.C.Cir.), cert. denied, 513 U.S. 875 , 115 S.Ct. 202 , 130 L.Ed.2d 133 (1994) (“It is only when a court can say that the publication is not reasonably capable of any defamatory meaning and cannot be reasonably understood in any defamatory sense that it can rule, as a matter of law, that it was not -libelous”) (internal quotations and citation omitted).
In determining whether a statement is defamatory, courts should give the statement its “fair and natural” meaning that a person of ordinary intelligence and sensibility would give it. Ward v. Zelikovsky, 136 N.J. 516 , 643 A.2d 972, 978 (N.J.1994). In particular, the court should consider the context in which the allegedly defamatory statements were made. Molin v. Trentonian, 297 N.J.Super. 153 , 687 A.2d 1022, 1023 (1997), certif. denied, 152 N.J. 190 , 704 A.2d 20 (1997), cert. denied, — U.S. -, 119 S.Ct. 239 , 142 L.Ed.2d 196 (1998). See also Ward, 643 A.2d at 980 .
The Delta letter does not rise to the level of attributing criminal conduct to Taj Mahal or to any other party. The letter merely states that the passenger’s ticket was “reported” as stolen, and states there is an “ongoing law enforcement investigation” underway. Even if the letter could be read as raising a specter of “some type of criminal misappropriation,” the text does not fall within the types of statements found by New Jersey courts to be assertions of criminal wrongdoing. This is not, for example, a situation in which the publication stated that the plaintiff “may be” charged with criminal activity. See Lawrence v. Bauer Pub. & Printing Ltd., 89 N.J. 451 , 446 A.2d 469 (N.J.), cert. denied, 459 U.S. 999 , 103 S.Ct. 358 , 74 L.Ed.2d 395 (1982). Nor is this a situation in which the plaintiff is named as taking an action that could be considered indicative of guilt. See Molnar v. Star-Ledger, 193 N.J.Super. 12 , 471 A.2d 1209 (1984) (finding article stating plaintiff refused to take lie detector test in arson investigation of his building defamatory). Rather, the Delta letter represents an attempt to gather information and does not impute criminal activity to any party.
Even when there is a clear imputation of criminal activity, unlike the case here, courts have upheld summary judgment for a defendant. See, e.g., Molin, 687 A.2d at 1024 (finding no defamation in publishing story about alleged stalker when headline indicated plaintiff had been arrested; body of story indicated plaintiff had only been charged with stalking and not yet convicted). Here, the circumstances are much more tenuous than in Molin . Taj Mahal is not imputed to have been charged with criminal conduct, or even that it will be charged. The reference to an “ongoing investigation” is enough, on a reasonable reading, to conclude that no one has been charged with any crime as yet, or even that no crime has been committed.
The majority’s conclusion that the letter accuses someone of having stolen the tickets is incorrect. Were that the case, it is unlikely that Delta would advise passengers who received the letter to contact the person from whom they purchased the ticket. The letter itself states that if a passenger “purchased the ticket from someone not authorized by Delta to sell its tickets, [the passenger] *197 should contact the individual from whom you purchased the ticket.” Read in context, the letter indicates only what it says: Delta has questions about the ticket presented, and the passenger should contact the party from whom he bought the ticket for information or a refund.
Nor do the statements in the letter rise to the level of the facts of cases that have found statements of sufficient ambiguity to send the determination of meaning to a jury. See, e.g., St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d 1309 (3d Cir.1994) (reversing summary judgment for defendant newspaper when article stated that criminal charges would be filed against plaintiff “next week”); Schiavone Constr. Co. v. Time, Inc., 847 F.2d 1069, 1082-83 (3d Cir.1988) (finding magazine report of name found in files relating to “sting” operation susceptible of non-defamatory meaning, and reversing lower court’s holding of defamation per se); Biondi v. Nassimos, 300 N.J.Super. 148 , 692 A.2d 103 (1997) (finding statement in public meeting that plaintiff had “mob connection” and was going to order a “hit” on defendant not defamatory as matter of law and susceptible to non-defamatory meaning).
The letter issued by Delta contains no connections between Taj Mahal and any possible wrongdoing sufficient to make the statements ambiguous. When a passenger received a letter, the passenger may have first wondered whether Taj Mahal was an authorized or non-authorized agent of Delta. Assuming (as the majority does, Majority Op. at 190), a customer was ignorant of that fact, the next likely step would be to call and ask Taj Mahal for an explanation, which is exactly what the letter instructs.
These actions, although inspired by the statements contained in the letter, do not make the statements “false and ‘injurious to the reputation of another’ ... or subjeet[ ] another person to a ‘loss of the good will and confidence’ in which he or she is held by others.’ ” Higgins, 704 A.2d at 1002 (finding no defamation in employer’s letter to plaintiff stating it found no substance to plaintiffs accusations about another employee).
The District Court was correct in holding the letter was not reasonably susceptible to a defamatory meaning and did not “state, suggest or imply that the plaintiff was a thief.” Therefore, I would affirm the decision of the District Court granting Delta’s motion to dis-. miss Taj Mahal’s complaint.
My disagreement with the majority’s analysis involves still another aspect of Taj Ma-hal’s claim pertaining to its action for defamation. An indispensable prerequisite for a defamation action is that the alleged defamatory statement be “of and concerning” the plaintiff. Durski v. Chaneles, 175 N.J.Super. 418 , 419 A.2d 1134, 1135 (1980) (citing Gnapinsky v. Goldyn, 23 N.J. 243 , 128 A.2d 697 (1957)). A party claiming to have been defamed must show either that the statement referred specifically to it, or that someone familiar with the statement reasonably believed that the party was in fact intended; proof may be by extrinsic circumstances. Scelfo, 282 A.2d at 448 . Because the Delta letter does not satisfy the threshold standard, i.e. that the letter is capable of a defamatory meaning, it cannot as a matter of law be deemed defamatory. Hence, I do not reach the issue of whether the letter is “of and concerning” Taj Mahal.
Because I would affirm the District Court’s judgment in favor of Delta, but the majority has reversed that judgment, I respectfully dissent.