Petition for Writ of Certiorari — Fressie v. Trans World Airlines

In THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

JOHN FRESSIE,

Petitioner,

v.

TRANS WORLD AIRLINES, DIANA

MAGADAN, Individuaily,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Jocl M. Bacher

Counsel of Record

Fricke & Solomon, P.C.

60 Westervelt Avenue

Teanfly, New Jersey 07670

(201) 569-4215

fax (201) 589-8572

Attorneys for Petitioner

John Fressie

i

QUESTION PRESENTED FOR REVIEW

Did the Court of Appeals err in holding that John Fressie's

claims against Trans World Airlines of False Arrest, Malicious

Prosecution and Breach of Contract are. pre-empted under the

terms of the Airline Deregulation Act, 49 U.S.C.A. § 1301 et seg?

nang Regen on

ii

LIST OF ALL PARTIES

JOHN FRESSIE

TRANS WORLD AIRLINES

Petitioner and

plaintiff below

Respondent and

defendant below

ill

TABLE OF CONTENTS

QUESTION PRESENTED i

LIST OF ALL PARTIES ll

TABLE OF CONTENTS ill

APPENDICIES iv

TABLE OF AUTHORITIES Vv

OPINIONS BELOW l

JURISDICTION

STATUTORY PROVISIONS

STATEMENT OF THE CASE

ARGUMENT FOR GRANTING THE WRIT

I. INTRODUCTION

Il. THE DECISION OF THE UNITED

STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT CONFLICTS

WITH THE APPLICABLE DECISIONS

OF THIS COURT AS WELL AS OTHER

CIRCUIT AND STATE COURTS 8

a ww? Th te ho

CONCLUSION 19

ddl 33 eH

Ry be tse aye

RS, a

oe sed ea

}

iV

APPENDICES

JUDGMENT OF THE THIRD CIRCUIT

COURT OF APPEALS (July 6, 1994)

DECISION OF UNITED STATES

DISTRICT COURT FOR THE DISTRICT

OF NEW JERSEY (December 23, 1991)

ORDER OF UNITED STATES

DISTRICT COURT FOR THE DISTRICT

OF NEW JERSEY (December 23, 1991)

Appendix A

Appendix B

Appendix C

Vv

TABLE OF AUTHORITIES

Beushy T Id Airli

Inc., 915 F.2d 693 (Sth Cir. 1990)

Bayne v. Adventure Tours USA, Inc.,

1994 WL 9531 (N.D. Tex. Jan. 13 1994)

Braxton v. United States, 111 S.Ct.

1854, 114 L.Ed. 2d. 385 (1991)

Butcher v. Houston

813 F. Supp. 515 (S.D. Tex. 1993)

Citas Aenesicen Aistiocs }

1993 WL 437670 (D. Mass. Oct. 19, 1993)

F Kanai Medias}

1993 WL 541430, 830 F. Supp. 1218

(S.D. Miss. Nov. 19, 1993)

4 F.3d 350 (Sth Cir. 1993), reh'g

en bane granted, 1994 WL 6232

(Sth Cir. Jan. 12, 1994)

17

812 F.Supp 713 (S.D. Tex 1992)

is Acie!

812 N.J.. Super 618, 602 A.2d 785

(App. Diy. 1992)

Page

13

16

10, 11, 17

14

14, 15, 16

13, 14, 15, 16,

10, 11, 16, 17

10, 16

\ iv

Morales v. Transworld Airlines, Inc.

504 U.S. 112 S.Ct. 2031, 119 L.

Ed 2d 157 (1992)

15, 16,

Vail v. Pan Am Corp.

260 N.J. Super 292, 616

A.2d. 523 (App. Div. 1992)

Ww Nortl sili I

923 F.2d 657 (9th Cir. 1990), judgment

vacated and remanded U.S.

112 S.Ct. 2986, 120 L.Ed.2d 864 (1992),

on remand, 995 F.2d 148 (9th Cir. 1993),

cert den S.Ct. 1993 WL

495239 (U.S.), 62 U.S.L.W. 3396

(Feb. 22, 1994)

Wol ! : sili I

565 N.E.2d 258 (Ill. App. Ct. 1990)

aff'd, 589 N.E.2d 533 (Ill. 1992) cert

granted and judgment vacated

USS. moe Tem

32, 121 L.Ed. 2d 6 (1992), on remand,

1993 WL 518593 (Ill. Dec. 16, 1993)

8, 9, 12,14,

18

9,10, 17

12, 13

15, 16

MNT eat avec ne ~

1

OPINIONS BELOW

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(The District Court's Ruling on Respondent's Motion for

Summary Judgment Appears as Appendix B Herein).

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

(The decision of the Third Circuit Court of Appeals

affirming the District Court's opinion and judgment appears as

Appendix A herein).

2

JURISDICTION

This matter is properly brought before this Court due to

conflicting decisions rendered in both the Circuit Courts of

Appeals and the State Courts.

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1) on the grounds that the United States Court of

Appeals for the Third Circuit has decided a federal question in a

way that conflicts with the applicable decisions of this Court, and

that the case presents an important question of federal law which

should be decided by this Court.

The final Judgment of the United States Court of Appeals

for the Third Circuit was entered July 6, 1994. This petition for

certiorari is filed within the period permit by the Rules of Court.

3

STATUTORY PROVISION

49 U.S.C.A. § 1305 et. seq. provides as follows:

(a) Preemption

(1) Except as provided in paragraph (2) of this

subsection, no State or political subdivision thereof

and no interstate agency or other political agency

of two or more States shall enact or enforce any

law, rule, regulation, standard, or other provision

having the force and effect of law relating to rates,

routes, or services of any air carrier having

authority under subchapter IV of this chapter to

provide air transportation.

(2) Except with respect to air transportation (other

than charter air transportation) provided pursuant

to a certificate issued by the Board under section

1371 of this title, the provisions of paragraph (1) of

this subsection shall not apply to any transportation

by air of persons, property, or mail conducted

wholly within the State of Alaska.

(b) Proprietary powers and rights

(1) Nothing in subsection (a) of this section shall

be construed to limit the authority of any State or

political subdivision thereof or any interstate

agency or other political agency of two or more

States as the owner or operator of an airport served

by any air carrier certificated by the Board to

exercise its proprietary powers and rights.

(2) Any aircraft operated between points in the

same State (other than the State of Hawaii) which

in the course of such operation crosses a boundary

between two States, or between the United States

4

and any other country, or between a State and the

beginning of the territorial waters of the United

States, shall not, by reason of crossing such

boundary, be considered to be operating in

interstate or overseas air transporation.

(c) Existing State authority

When any intrastate air carrier which on August |,

1977, was operating primarily in intrastate air

transportation regulated by a State receives the

authority to provide interstate air transportation,

any authority received from such State shall be

considered to be part of its authority to provide air

transportation received from the Board under

subchapter IV of this chapter, until modified,

suspended, amended, or terminated as provided

under such subchapter.

(d) Definition

For the purposes of this section, the term "State"

means any State, the District of Columbia, the

Commonwealth of Puerto’ Rico, _ the

Commonwealth of the Northern Mariana Islands,

Guam, the Virgin Islands, and any territory or

possession of the United States.

P

:

q

a a

5

STATEMENT OF THE CASE

This action was commenced by the Petitioner for damages

sustained when Respondent arrested and prosecuted him after it

refused to honor the ticket and boarding pass it had issued on

October 6, 1988 for its flight 800, Kennedy Airport, New York to

Paris France the evening of October 15, 1988.

Petitioner filed a complaint in the Superior Court of New

Jersey, Law Division, Passaic County on March 23, 1989. The

complaint set forth causes of action for false arrest, malicious

prosecution, breach of contract and punitive damages.

A timely Petition for Removal was filed by the Respondent

with the United States District Court for the District of New Jersey

on May 1, 1989. Issue was joined with the filing of an answer by

Respondent on May 5, 1989.

The parties mutually agreed to discontinue the action

against Respondent's employee, Diana Magadan, individually with

the recognition by Respondent that Magadan was acting, at all

times, within the scope of her employment with Respondent. The

stipulation and Order, signed by the Honorable Maryanne Trump

Barry, was filed with the District Court on December 22, 1989.

After considerable discovery was conducted by both parties

and the matter was on Judge Barry's trial calendar, Respondent

filed for summary judgment on November 1, 1991. It contended

that the Petitioner's causes of action were preempted by federal

legislation or, in the alternative, that Respondent had a duty to

remove an allegedly obstreperous passenger from its aircraft. It

also asserted that if the Court should not rule in its favor, then, at

a minimum, Petitioner was limited to a ten dollar recovery because

of tariff regulations.

The district court did not entertain oral argument on

ee ee

ee eeaeaear—reeEyEIE

6

Respondent's motion for summary judgment. An opinion of the

District Court (Barry, D.J.) was rendered, granting Respondent's

summary judgment application and filed on December 23, 1991.

(See Appendix B.)

The Court thereafter entered an Order on December 23,

1991 granting Respondent's motion for summary judgment. (See

Appendix C). An appeal followed to the United States Court of

Appeals, for the Third Circuit, with the timely filing of a Notice of

Appeal by Petitioner on January 17, 1992.

The Third Circuit rendered its opinion in this matter on

July 6th 1994. (See Appendix A). The Court of Appeals affirmed

the District Court's conclusion that Petitioner's tort claims were

preempted and while agreeing that the district court erred in

dismissing Petitioner's breach of contract claim, concluded that it

was nevertheless preempted by federal law.

7

ARGUMENT FOR GRANTING THE WRIT

I.

INTRODUCTION

This Court has stated that the purpose of certiorari is to

permit it to "resolve conflicts among the Circuit Courts of Appeals

and state courts concerning the meaning of provisions of federal

law." Braxton v. United States, 111 S. Ct. 1854, 114 L. Ed. 2d. 385

(1991). It is Petitioner's position that his state claims of false arrest

and malicious prosecution as well as breach of contract do not fall

within the scope of the preemption provision as set forth in 49

U.S.C.A. § 1305. This Court has rendered one opinion regarding

this provision. The majority of the decisional law that has been

rendered since this Court's ruling supports the Petitioner's position.

Therefore, the lower courts erred in dismissing and affirming the

dismissal of Petitioner's complaint.

8

I

THE DECISION OF THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT CONFLICTS

WITH THE APPLICABLE DECISION OF THIS COURT

The Airline Deregulation Act codified at 49 U.S.C.A. 1301

et. seg., prohibits the States from enacting or enforcing "any law,

rule, regulation, standard, or other provision having the force and

effect of law relating to rates, routes, or services of any air carrier."

49 U.S.C.A. 1305(a)(1) (West 1994). On June 1, 1992, this Court

rendered a decision addressing the preemptive scope of this

statutory provision. Morales v. Trans World Airlines, 112 S. Ct.

2031, 119 L. Ed. 2d 157 (1992).

In Morales, the National Association of Attorneys General

(NAAG), adopted Air Travel Industry Enforcement Guidelines

which were intended to prevent deceptive practices laws in airline

advertising. The Guidelines specifically provided for the manner

in which an airline could advertise, award premiums to its

customers, and, pay compensation to customers who voluntarily

yielded their seats on overbooked flights. Id. at 2031. The

Guidelines clearly sought to control the airline industry business.

The airlines then filed suit, claiming that the Guidelines violated

the preemption provision in that they related directly to the "rates,

routes, and services" of the carrier.

This Court concluded that the Guidelines were preempted

by section 1305(a)(1). Provisions requiring advertising disclosure

of fare terms, restrictions and availability were "obviously

relat[ed] to rates,’ " and therefore, within the scope of the statute.

In its discussion, the Court recognized that " ‘some state actions

may affect [airline fares] in too tenuous, remote, or peripheral a

manner, ‘to have preemptive effect.” Id. at 2040 (citations omitted).

For example, this Court recognized that state laws unrelated to

—— or rates were not preempted. Furthermore, while

9

recognizing that the prohibitions might arguably fall within the

scope of "services", they were nonetheless too remotely related to

be preempted by statute. |

In the instant matter, the same reasoning should be applied.

Suits grounded in common law theories of tort and contract do not

directly affect the airlines’ ability to conduct their daily business.

The issue before this Court is whether it is acceptable to obliterate

the rights of an individual from harm caused by unreasonably

negligent behavior engaged in by an airline, when such behavior

would render the average person liable for those same or similar

actions. It is Petitioner's understanding of Morales that state

common law causes of action are not preempted by the statute

since they are within that category of laws that too tenuously or

remotely affect airline rates, routes or services.

Despite Morales, several state and Circuit Courts of

Appeals have rendered conflicting decisions regarding which, if

any, state claims are to be preempted. However, the majority of

the courts reason that the preemptive scope of the statute is not so

pervasive as to prohibit suits brought under state common law

theories of tort and contract. Petitioner now seeks a ruling from

this Court, stating what the law is regarding the preemptive effect

of § 1305. The Court's decision, in this instance, is necessary given

the number of cases that have arisen, stemming from similar, if not

identical claims, from those set forth in Petitioner's complaint.

Each of the following cases have resulted in conflicting decisions.

The Petitioner will now discuss them, in turn, in the order in which

they were rendered, following Morales.

In Vail v. Pan Am Corp., 260 N.J. Super 292, 616 A.2d

523 (App. Div. 1992) plaintiffs alleged that the defendants falsely

advertised that they were implementing an enhanced security

system. Accordingly, the plaintiffs were charged an additional five

dollar fee on each ticket purchased, in order to defray the costs of

the security system. According to the plaintiffs, no such program

10

was provided. Suit was commenced alleging willful

misrepresentation, consumer fraud, and deceptive business

practices. Id. at 524. The New Jersey Superior Court, Law

Division, granted summary judgment in favor of the defendants.

The Appellate Division affirmed, reasoning that the "plaintiffs'

claims relate to an air carrier's rates and services," and were

therefore preempted by § 1305. Id.

The Appellate Court in Vail distinguished the facts therein

from its prior holding in Miller v. Northwest Airlines, 253 N.J.

Super 618, 602 A.2d 785 (App. Div. 1992), where the court held

that the plaintiffs state law tort claims of false arrest, and,

negligent and intentional infliction of emotional distress were not

preempted by § 1305. The Vail court further distinguished the

claims in the respective cases, stating that the Vail claims

"challeng[ed] the ‘service’ itself," Vail, 616 A.2d at 527, while the

Miller claims "arose out of a single incident tangentially related to

the ‘service’ of an airline." Id. Therefore, under Vail's, and its

predecessor, Miller's, interpretation of § 1305, state law claims,

like those alleged by Petitioner, are not preempted by § 1305.

In Lawal v. British Airways, 812 F.Supp. 713 (S.D.Tex.

(Houston Div.) 1992), plaintiff had purchased an airline ticket

from the defendants, to Nigeria. When he attempted to board a

connecting flight in London, he was accused, by British Airways

security, of using a stolen ticket, and was required to purchase

another round trip ticket in order to complete his travels. Upon

returning to Houston, plaintiff demanded compensation from the

defendant; the request was denied. Plaintiff then filed suit alleging

false arrest and false imprisonment, assault and battery, and

intentional infliction of emotional distress. The Lawal court,

reached a different conclusion than Vail.

Insofar as the intentional and negligent infliction of

emotion distress and false arrest claims were concerned, the court

concluded that the claims were not "tenuous or remote and clearly

rete we ae leas Leach i eV aeee ar OT ee Re ee ee TS ee fee eee, ee cas ee Cee a

11

related[ed] to airline services." Lawal, 812 F.Supp. at 720.

Later, the Houston Division rendered a decision in Butcher

v. Houston, 813 F.Supp. 515 (S.D.Tex. 1993), which permitted a

plaintiff to maintain his action against the City of Houston and

Southwest Airlines, for negligence and gross negligence arising

from a slip and fall at the airport gate. The court reasoned that the

statute refers to those "services" which "necessarily pertain to

distinctive airline services." Butcher, 813 F.Supp. at 517. Citing

Morales, the court reiterated the rationale underlying the

preemption provision, specifically, "The purpose of this

legislation,... was to preclude states from attempting to regulate

rates, routes, and services, thereby leading to a confusing and

burdensome maze of state laws and regulation peculiarly affecting

the airlines. ... Congress wanted to prevent conflicts and

inconsistent regulations." Id. (citations omitted). The court further

stated that such common law duties, such as the duty to exercise

reasonable care in the maintenance of floors, was "not the sort of

state law or regulation that would ‘confuse or unduly burden’ either

the airline or the airline passengers." Butcher, 813 F. Supp. at 518.

The court set forth some examples of state regulations that would

affect rates and services, and thereby cause confusion to the

airlines regarding individual state's laws. Regulations setting

frequency of airline service to certain cities, requiring nonstop

flights, or providing conditions for preferred seating, were

undoubtedly "beyond the power of states to regulate or otherwise

affect by local law." Butcher, 813 F. Supp. at 517-518.

The Petitioner's claims are far from the criteria that the

Butcher court interpreted as those intended by Congress to be

preempt under § 1305. The claims of this Petitioner are not the

type the airline industry could assert they would be "confused or

unduly burdened" by. The basic concepts of tort and contract law

do not vary so greatly from state to state that the airlines will be

burdened in attempting to ascertain what each state's laws require

of the carriers on a state-by-state basis. The law makes no

. f oe ee My. oe ee a

Ca La oy ia rite ste si “

12

exceptions for any individual regardless of which states he may

traverse, or in which state he resides. If this does not place undue

burden or confusion on the average person, then it does not do so

to the airline industry. Most importantly, the apparent discrepancy

between the Butcher and Lawal cases -- rendered by the same

court -- warrants a decision by this Court, clarifying the scope of

preemption regarding state common law claims, specifically.

The Ninth Circuit's decisions support Petitioner's position.

In West v. Northwest Airlines, 995 F.2d 148 (9th Cir. 1993), the

Court of Appeals reviewed its prior decision in the same matter,

pursuant to this Court's remand for further consideration. In West,

plaintiff purchased an airline ticket from Northwest. Due to

overbooking, Northwest refused to allow plaintiff to board the

plane. Plaintiff filed suit alleging breach of the covenant of good

faith and fair dealing pursuant to Montana law, and discrimination

pursuant to section 404(b) of the Federal Aviation Act (FAA),

seeking compensatory and punitive damages. West, 995 F.2d at

149-50. The District Court granted summary judgment in favor of

Northwest on the grounds that the plaintiffs claims were

preempted by the FAA. West appealed the issue of whether the

state law claims were preempted by the FAA, and the Court of

Appeals affirmed in part and reversed in part, finding that the FAA

preempted the claims for punitive, but not compensatory damages

under state law. Id. at 150. The Court of Appeals distinguished

"between state laws which ‘merely have an effect on airline

services’ and those involving an ‘underlying statute or regulation

[which] itself relates to airline services." West, 995 F.2d at 151.

Both parties petitioned this Court for certiorari; the Court

postponed deciding the petitions until after it had rendered a

decision in Morales. The Court then denied West's petition and

granted Northwest's, and remanded the case to the Court of

Appeals to pass on whether compensatory damages were

preempted. Id.

The Court of Appeals again concluded that state contract

Sites oe

13

laws and tort laws, upon which West based his allegations, were

not preempted by the Airline Deregulation Act (ADA) because

they fell within the "range of statutes too tenuously connected to

airline regulation to trigger preemption." West, 995 F.2d at 151. In

addition, the Ninth Circuit noted that Morales lacked sufficient

guidelines to enable courts in to decide which state laws

sufficiently affected rates, routes and services to trigger

preemption. Id.

In the instant matter, the most significant part of the West

decision is that portion which discusses the standard used in

deciding whether the ADA preempts state law claims. The Ninth

Circuit looked to the agency regulations interpreting the FAA.

Specifically, part 250.9 of Title 14 of the Code of Federal

Regulations, which implements the Deregulation provision, allows

passengers, who have been denied passage, due to oversales or

overbooking, the option to refuse compensation from the airline

and attempt recovery in a court of law. West, 995 F.2d at 152. The

Ninth Circuit, in concluding that compensatory damages were not

preempted by the statute stated: "Were we to hold that West's state

claims are preempted completely by the ADA, we would

eviscerate the third option detailed in the regulation. The plain

language of the regulation indicates that passengers retain the

option... of pursuing compensatory damages in the state court.” Id.

In Hodges v. Delta Airlines, 4 F.3d 350 (Sth Cir. 1993), the

Circuit Court of Appeals, bound by an earlier opinion in Baugh v.

Trans World Airlines, 915 F.2d 693 (Sth Cir. 1990), reluctantly

preempted a negligence action pursuant to § 1305. In Hodges,

- plaintiff brought an action against the airline, alleging negligence

in allowing a case of rum to be stored in an overhead

compartment, which fell, struck and injured him. The District

Court granted summary judgment in favor of the defendant. The

Court of Appeals affirmed. The Fifth Circuit, while following

Baugh, urged an en banc review of the decision. Hodges, 4 F.3d at

352. En banc review was granted January 12, 1994, 1994 WL

14

6232. Although the en banc decision has not yet been rendered, it

is clear that the Fifth Circuit does not construe § 1305 so broadly

as to preempt common law tort causes of action due to their remote

effect on an airline's rates, routes, or services.

The Hodges discussion centered primarily on the

legislative history of the ADA, which was intended to be an

economic deregulation statute. Hodges, 4 F.3d at 353. In 1978,

Congress amended the FAA "after determining the efficiency,

innovation, low prices, variety, and quality would best be furthered

by reliance on competitive market forces in the airline industry."

Id. The ADA was enacted to dismantle the then-existing federal

regulation of the industry. Section 1305 paralleled the federal

deregulation at the state level. Id.

The court concluded that Congress did not intend to

preempt state law tort claims. In support of this proposition, the

court looked to § 1506 of the FAA which preserved remedies

existing at common law or by statute. Hodges, 4 F.3d at 355. The

court recognized that § 1305 limited the saving power of § 1506,

but nevertheless concluded that "since Congress left that section

intact," it could not have intended to "completely undermine the

savings clause." Id.

The Fifth Circuit exemplifies the confusion caused by §

1305, not only among the Circuits, but within them as well.

Approaching the preemption issue in the same manner as

the Fifth Circuit Court of Appeals had, the District Court for the

District of Massachusetts also looked to Congressional intent. It

decided that claims for intentional infliction of emotional distress

and assault and battery, arising from an apparently racially

motivated altercation between a flight attendant and the plaintiff,

while he was stowing his baggage and seating himself, were not

preempted. Doricent v. American Airlines, 1993 WL 437670 (D.

Mass.). The District Court found that the state law claims did not

a —-. —_—<— —

15

meet the "sufficient impact" test, as set forth in Morales.

Specifically, the state law claims asserted did not significantly

"relate to” rates, routes, or services, to necessitate preemption

under the statute. Jd, at 4. The District Court concluded that the

claims alleged therein had nothing to do with the Congressional

intent underlying the act, to wit, the "industry-wide practice of

affording airline service.” Id. at 5.

Another District Court within the Fifth Circuit also

concluded that common law claims for false imprisonment and

slander were not preempted by the statute. Fenn v. American

Airlines, 839 E. Supp. 1218 (S.D. Miss. 1993). In Fenn, the

plaintiff was accused of stealing another passenger's ring while

providing medical assistance to the passenger. The plaintiff was

then detained by the airline officials and publicly accused of taking

the ring. In reaching its conclusion, the District Court went

through the usual steps of ascertaining Congressional intent and

interpreting the Morales decision. The court did, however,

question the Hodges result, stating that claims for bodily injury

could fall within the ambit of "services" insofar as services require

an airline to provide to its passengers, safe transportation.

Therefore, any claims that arose due to the airline's failure to

provide safe passage, fell within the scope of the statute. Fenn,

supra 839 F.Supp. at 1223. Presumably, the Fenn court would

preempt such claims. Nevertheless, it did find that the airline's

detention of an alleged thief was "by no means an airline

“service”. Fenn, 839 E.Supp. at 1223. This case serves as another

example of the need for a decision from this Court as to what

common law causes of action are not preempted by the statute. If

this Court agrees with Fenn, that the detention of an alleged thief,

by an airline, is not within the meaning of "services", then clearly,

Petitioner's claim for malicious prosecution and false arrest are not

preempted.

In direct support of Petitioner's position, that a breach of

contract claim is not preempted by the statute, is Wolens v.

iid

16

)

American Airlines, 626 N.E.2d 205 (1993). In Wolens, the

Plaintiffs filed a class action suit on behalf of the participants in

American's frequent flyer program. American changed the

program's rules and applied the changes retroactively. Suit was

filed alleging breach of contract, and violations of the Illinios

Consumer Fraud and Deceptive Business Practices Act, seeking

inter alia, injunctive relief enjoining American from implementing

the changes. The Appellate Court granted interlocutory review on

the issue of whether the injunctive relief sought would constitute

"an attempt to regulate the airline," and concluded that it would.

Wolens, 626 N.E.2d 206. The Illinios Supreme Court affirmed.

American petitioned for certiorari. This Court granted certiorari,

vacated the Illinios Supreme Court's decision and remanded for

further consideration in light of Morales. The Illinios Court

thereafter found its prior ruling, on the issue of injunctive relief,

consistent with Morales.

In reviewing the claims for money damages, stemming

from the breach of contract claim and the state Consumer Fraud

Act violations, the Illinios Court concluded that the claims were

not preempted by the statute, or by this Court's ruling in Morales.

Specifically, the Illinios Court found that Morales "intended to

leave open the possibility that state law actions that had only a

slight connection to an airline's rates, routes, or services, would not»

be preempted." Wolens, 626 N.E.2d at 208. The frequent flyer

program was not an "essential element" of airline operations and

therefore, the claims bore only a "tangential relation" to rates,

routes, and services. Id. Should this Court agree with Wolens

interpretation of both the statute and Morales, as they pertain to

breach of contract claims, then the Petitioner's breach of contract

claim, in the instant matter, was wrongfully dismissed.

The most recent case involving this issue dealt with claims

substantially similar to the Petitioner's claims herein. In Bayne v.

Adventure Tours USA, 1994 WL 9531 (N.D. Tex. Jan 13, 1994),

the plaintiff was taken into custody, detained and subjected to a

17

luggage search after the pilot made misrepresentations about the

plaintiff to the police. The complaint alleged violations of the

Texas Deceptive Trade Practices Act, breach of warranty, slander,

severe emotional distress, and false imprisonment. Relying heavily

on dicta in Hodges, and the Fifth Circuit's obvious intent to review

its own decision due to binding precedent, the Bayne court

concluded that the plaintiff's claims were not preempted by § 1305.

Further, the court expressly declined to follow precedent

interpreting § 1305 broadly, namely, Lawal, supra. Id. at 2.

Ultimtely, the court found that it lacked subject matter jurisdiction

over the state law claims, and remanded the matter to the state

court for adjudication.

It is apparent since this Court's decision in Morales that the

majority of the Circuit and state courts have interpreted the

preemption provision narrowly. All the cases cited above involved

claims similar, if not identical, to those alleged by the Petitioner,

and none were held to be preempted pursuant to the statute. See,

Miller, supra (false arrest); Fenn, supra (false imprisonment);

Wolens, supra (breach of contract). Therefore, should this Court

agree with the decisions rendered by those courts, then the

Petitioner's complaint should be reinstated.

Nevertheless, Petitioner does not deny that some confusion

still exists among the lower courts as to which state causes of

action should be preempted, if any. See, Vail, supra (fraud and

breach of contract); Lawal, supra (intentional infliction of

emotional distress, false arrest and imprisonment); Hodges, supra

(common law negligence claim). This disparity among the courts

renders this issue proper for certification before this Court. As it

now stands, the statute does little to alleviate confusion or undue

burdens on the airline industry regarding the various states' laws.

The confusion causes increased litigation and haphazard results.

See, Butcher discussion, supra. From the plaintiff's perspective,

the law either preserves those minimal rights available at common

law, or, in effect, allows the airline to unreasonably inflict injury

18

upon the passengers, without providing any recourse.

Therefore, Petitioner respectfully requests that this Court

grant certiorari to render a final determination as to which common

law causes of action remain viable, in light of § 1305. The

decision will assist the airline industry by setting forth those state

law claims to which it remains subject. Regardless of the effect

this Court's decision may have on Petitioner's claims, the matter

presents the Court with the opportunity to address this issue, and

state once and for all what the meaning of § 1305 is.

19

CONCLUSION

It is clear that there are conflicting decisions that have been

rendered by various circuit courts, federal district courts and state

courts since this Court's decision in Morales v. Transworld

Airlines, Inc., in particular, with regard to which, if any, common

law causes of action by individuals are preempted by the Airline

Deregulation Act. The resolution of this conflict is crucial since

instead of clarifying congressional intent, confusion has resulted.

For these reasons, Petitioner respectfully requests that a Writ of

Certiorari issue to review the judgment and opinion of the District

Court of New Jersey and Court of Appeals for the Third Circuit.

Dated: September 30, 1994

lly submitted,

CKE & SOLOMON, P.C.

Attorneys for Petitioner

60 Westervelt Avenue

Tenafly, New Jersey 07670

(201) 569-4215

A-1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 92-5042

JOHN FRESSIE

Appellant

V.

TRANS WORLD AIRLINES;

DIANA MAGADAN, Individually

On Appeal from the United States District Court

For the District of New Jersey

(D.C. Civil Action No. 89-01910)

District Judge: Honorable Maryanne Trump Barry

Argued: June 20, 1994

BEFORE: STAPLETON, GARTH and PRATT,’ Circuit Judges :

JUDGMENT ORDER

* Honorable George C. Pratt, United States Circuit Judge for the

Second Circuit, sitting by designation.

A-2

After consideration of the contentions raised by appellant,” it is

ORDERED AND ADJUDGED that the judgment of the

district court entered December 26, 1991, be and the same is hereby

affirmed.

Costs taxed against appellant.

By the Court,

Circuit Judge Walter K. Stapleton

ATTEST:

P. Douglas Sisk, Clerk

Dated: July 6, 1994

** While we agree with appellant that the district court erred in

dismissing his breach of contract claim for lack of subject matter

jurisdiction, we conclude that this claim, like appellant's other

claims, is preempted by federal law.

an. RE Gerd) wheres Woes

B-1

APPENDIX-B

UNITED STATES DISTRICT COURT

District of New Jersey

Chambers of USPO & Courthouse Bldg.

MARYANNE TRUMP BARRY __ Newark, NJ 07101

December 23, 1991

LETTER OPINION

ORIGINAL FILED WITH THE CLERK OF THE COURT

Mr. Richard M. Fricke, Esq.

Daniels & Solomon, P.A.

60 Westervelt Avenue ORIGINAL FILED

Tenafly, New Jersey 07670 December 23. 1991

William T. Walsh, Clerk

Mr. John D. Clemen, Esq.

Shanley & Fisher, P.C.

131 Madison Avenue

Morristown, New Jersey 07962-1979

a: 1 ae

Dear Counsel:

I. INTRODUCTION

Presently before the court is defendant Trans World Airlines'

(TWA) motion for summary judgment. TWA contends that

plaintiff John Fressie's three state law causes of action must be

5 ae

ena, |

gps

ae

ane 4g e

ees

B-2

dismissed on the ground that federal legislation has preempted such

actions against air carriers or, in the alternative, that TWA had a

duty to remove an allegedly obstreperous passenger from an

aircraft and, thus, that there is no basis for tort liability. Finally,

TWA argues that if this court is not inclined to rule in its favor on

either of those two contentions, the court should, at a minimum,

limit plaintiff's potential recovery to ten dollars because of his

failure to mitigate damages. Plaintiff responds that federal law

does not preempt his state law causes of action, that whether TWA

had a right or duty to take the actions it did is properly a jury

question, and that its liability should not be limited. For the

reasons that follow, TWA's motion will be granted in part and the

remainder of this action will be dismissed for lack of subject matter

jurisdiction.

II. FACTUAL BACKGROUND

Because the instant motion is one for summary judgment,

all reasonable factual inferences must be viewed in favor of

plaintiff, the non-moving party. Matsushita Elec, Industrial Co. v.

a Ris PWR APL A EIA AI VE Fe BBs ks:

a ern OR ST

ee a oe ae

‘

B-3

Zenith Radio Corp., 475 U.S. 574, 587 (1986). This litigation

arises out of a dispute between TWA and plaintiff John Fressie, one

of its passengers. Plaintiff, a frequent domestic and international

air traveler, planned a trip to France for October, 1988. He had

sufficient frequent flier miles with TWA to request an award of a

round trip first class ticket to France. Deposition of Susan Boyd,

Pl. Opp. Br., Exh. J (hereinafter "Boyd Dep.") at 27; Deposition of

Gayle Snow, Pl. Opp. Br., Exh. G (hereinafter "Snow Dep.") at 13.

When plaintiff's secretary attempted to make reservations for first

class seating for him on TWA Flight 800, departing on October 15,

1988 from John F. Kennedy Airport, New York to Charles

DeGaulle Airport, Paris, France, TWA informed her that there was

no first class seating available on the flight. Instead, it confirmed a

seat reservation in Ambassador Class, noting that plaintiff could

check back at a later date to see if first class seating became

available. Snow Dept. at 14.

TWA sent plaintiff a frequent flier bonus coupon entitling

him to one first class round trip ticket. Pl. Opp. Br., Exh. C;

B-4

Deposition of John Fressie, Def. Movant Br., Exh. C (hereinafter

"Def. Fressie Dep.") at 106. On October 6, 1988, plaintiff went to

the TWA counter at O'Hare Airport in Chicago in order to secure a

First Class seat reservation for his upcoming flight to France.

Deposition of John Fressie, Pl. Opp. Br., Exh. E (hereinafter "PI.

Fressie Dep.") at 73. When plaintiff was informed that he could

not receive a confirmed First Class ticket due to unavailability of

seating for that class of ticket, he apparently became angry and

caused a scene. Deposition of Daniel Sullivan, Pl. Opp. Br., Exh.

H (hereinafter "Sullivan Dep.") at 39. The TWA ticket agent then

issued a First Class boarding pass against a separate First Class

reservation that plaintiff had made in order to circumvent the

nonavailability in the frequent flier class. Sullivan Dep. at 42.

On October 15, 1988, plaintiff boarded TWA Flight 800

and sat in‘the First Class section of the aircraft. When another

passenger indicated to plaintiff that plaintiff was seated in his seat,

plaintiff instructed the other passenger to "[g]et the flight

attendant." Def. Fressie Dep. at 96. Plaintiff moved over one seat;

B-5

then, when asked to move to the Ambassador Class section of the

aircraft, plaintiff refused to move. Def. Fressie Dep. at 96, 99; PI.

Fressie Dep. at 103. When a flight attendant indicated that if

plaintiff did not move he would be arrested, plaintiff continued to

refuse to move. PI. Fressie Dep. at 104. Finally, plaintiff was

escorted off the plane by Port Authority Police. Pl. Fressie Dep. at

104. Although TWA offered to book plaintiff on a flight later that

evening on Pakistani Airlines, he refused the offer, electing instead

to purchase a Business or Coach Class ticket on TWA flight 800

for the following day. Pl. Fressie Dep. at 111-12.

TWA employee (and codefendant) Diana Magadan signed a

complaint, and a summons citing plaintiff for disorderly conduct |

was issued. Criminal Complaint, Pl. Opp. Br. Exh. A. The charge

was later dropped for failure to prosecute.'

Plaintiff alleges three state law claims against TWA and

Diana Magadan -- false arrest and malicious prosecution (Count I),

breach of contract (Count II), and a separate claim for punitive

1 Thus, a claim for malicious prosecution will not lie.

damages (Count III).

III. Analysis

A. Federal Preemption of Plaintiff's State Law Claims

TWA contends that plaintiff's state law claims against it are

preempted by federal law, specifically the Federal Aviation Act, as

modified by the Airline Deregulation Act, 49 U.S.C. § 1301 et seg.

Generally, federal law can preempt state law in one of three

different ways. Michigan Canners & Freezers Ass'n v. Agricultural

Marketing & Bargaining Board, 467 U.S. 461, 469 (1984). First,

Congress may expressly define the extent to which a federal law

will preempt state law. See, e.g., Shaw v. Delta Airlines, Inc., 463

U.S. 85, 95-96 (1983). Second, where Congress indicates an intent

to occupy an entire field of regulation, federal law will be deemed

to preempt state law. See. ¢.g.. Fidelity Federal Savings & Loan

Ass'n v. De La Cuesta, 458 U.S. 141, 153(1982). Third, where

state law and federal law conflict, the federal law will be deemed to

preempt state law. See, ¢.g.. Florida Lime & Avacado Growers v._

Paul, 373 U.S. 132, 142-43 (1963).

B-7

In support of its preemption argument, TWA relies

primarily on O'Carroll v. American Airlines, 863 F.2d 11 (5th Cir.),

cert. denied, 109 S. Ct. 3158 (1989). O'Carroll involved a suit by a

passenger against an air carrier for removing the passenger from a

flight. Plaintiff was drunk when he boarded the flight and was

generally boisterous. After discovering an irregularity with

plaintiff's ticket, the flight attendant asked him to deplane to

straighten out the problem. When plaintiff refused to leave the

plane, the police came and arrested him for disorderly conduct.

The Fifth Circuit held that plaintiff's state law claims of wrongful

exclusion were preempted by federal law. The O'Carroll court

cited the broad discretion granted to air carriers by section 1511 of

the Federal Aviation Act as to whom will be granted or denied

passage. That section provides in pertinent part:

Subject to reasonable rules and regulations

prescribed by the Administrator, any such carrier

may also refuse transportation of a passenger or

property when, in the opinion of the carrier, such

transportation would or might be inimical to safety

of flight.

49 U.S.C. § 1511(a). See Williams v. Trans World Airlines, 509

Bias 18)

PRS

pee) Lae cha om :

Py pS A See Ons ee Dee wis

B-8

F.2d 942, 949 (2d Cir. 1975) (denying plaintiff's damages claims

because defendant airline acted in accordance with section 1511 in

denying plaintiff passage to protect the safety of other passengers).

The court then noted that this discretion is not absolute, but is

limited by 49 U.S.C. § 1374. In particular, the court indicated that

an implied private cause of action exists under section 1374.

O'Carroll, 863 F.2d at 13.

As plaintiff correctly points out, section 1374 has been, for

the most part, repealed by the sunset provisions of the Airline

Deregulation Act of 1978, Pub. L. No. 95-405, 92 Stat. 1744

(codified at 49 U.S.C. § 1551(a)(2)(B) and (4)(C)). Therefore,

while it may have once been true that a private right of action

existed under section 1374, it is clear that no such right now exists.’

2 Section 1551(a2\B), effective January 1, 1983, repealed

section 1374 to the extent that it related to the interstate and

overseas air transportation of persons. See 49 U.S.C. § 1551(a)(2).

Effective January 1, 1985, section 1551(a)(4)(C) repealed section

1374 more generally to the extent it related to interstate and

overseas air transportation. See 49 U.S.C. § 1551(aX(4X(C).

However, the explicit language of each of these subsections

of section 1551 makes clear that they repealed section 1374 except

as air carriers to provide safe and adequate service. See

_ 49 U.S.C. § 1551(a)(2)(B) and (4\(C) (specifically stating that the

=a

ia

Lae i ind eocue £¢C! setooad te

a8 SOL OT OF ayarey 2 . |

es (3,

B-9

Nevertheless, the existence of a private cause of action under

federal law was not dispositive in O'Carroll and the question of

preemption must be analyzed independently of whether such a

private cause of action exists. See Illinois Corporate Travel, Inc. v.

provisions would cease to be in effect "except in so far as such

section requires air carriers to provide safe and adequate service").

Of the two subparts of section 1374, only section 1374(a) requires

air carriers to provide safe and adequate service. See 49 U.S.C. §

1374(a) ("It shall be the duty of every air carrier . . . to provide safe

and adequate service ...). Therefore, no portion of section

1374(b), which prohibited air carriers from unduly, unjustly, or

unreasonably discriminating against "any particular person, port,

locality, or description of traffic,” survived section 1551. Rather,

only that portion of section 1374(a) dealing with safe and adequate

service was saved by the language in section 1551.

As the case law indicates, the private cause of action

implied under section 1374 could only have been under section

1374(b). See Anderson v. USAir, Inc., 818 F.2d 49, 54-55 (D.C.

a 1987) (applying the four prong test of Cort v. Ash, 422 U.S.

66, 78 (1975) and concluding that section 404(a) of the Aviation

Act, 49 U.S.C. § 1374(a), does not create a private remedy);

Hingson v, Pacific Southwest Airlines, 743 F.2d 1408, 1414 (9th

Cir. 1984) (no private right of action under section 1374(a));

Diefenthal v. C..A.B. 681 F.2d 1039, 1049-50 (Sth Cir. 1982), cert.

denied, 459 U.S. 1107 (1983) (recognizing that a private cause of

action may exist under section 1374(b), but declining to imply one

under section 1374(a)). Therefore, because a private cause of

action could only be implied under section 1374(b) and the

language of section 1551 repealing section 1374 carves out only

One exception that is not relevant to section 1374(b), there can no

longer be a private cause of action under section 1374.

B-10

American Airlines, Inc., 889 F.2d 751, 754 (7th Cir. 1989).

Section 105 of the Federal Aviation Act, 49 U.S.C. § 1305,

is an express preemption provision:

Except as provided in paragraph (2) of this

subsection, no State or political subdivision thereof

and no interstate agency or other political agency of

two or more States shall enact or enforce any law,

rule, regulation, standard, or other provision having

the force and effect of law relating to rates, routes, |

or services of any air carrier having authority under |

subchapter IV of this chapter to provide air

transportation.

The question before the court is whether plaintiff's claim of false

arrest, breach of contract, and punitive damages "relate to" services

of the air carrier within the meaning of section 1305. If they do,

then the express preemption provision of section 1305 demands

dismissal.

ai False Arrest and Malicious Prosecution

Clearly, the great weight of authority on this point

indicates that the conduct at issue here, i.e. the removal of an

obstreperous passenger by the Port Authority Police, is within the

meaning of "services" as used in section 1305. See Anderson v.

j

;

B-11

USAir, Inc,, 818 F.2d 49, 57 (D.C. Cir. 1987) (state law obligation

to give courteous service was related to services and therefore

preempted); O'Carroll, 863 F.2d at 13 (removal of unruly passenger

related to services); Hingson v. Pacific Southwest Airlines, 743

F.2d 1408, 1415 (9th Cir. 1984) (California state law requiring

equal access for blind persons related to services and therefore

preempted); Gay v. Carlson, 1991 WL 190584 (S.D.N.Y.

September 17, 1991) ("A state law remedy for a passenger who felt

wrongly excluded from a particular flight would contravene the

express intent of Congress to ensure that such decisions are

governed by federal standards"); VonAnhalt v. Delta Air Lines,

Inc., 735 F. Supp. 1030, 1031 (S.D. Fla. 1990) (plaintiff's state tort

claims arising from her removal from an airplane related to services

and preempted). Because the "services" at issue here fall within the

ambit of section 1305, the statute's plan language preempts any

State law relating to them.

The Ninth Circuit, while concluding that "services" must be

read to include boarding policies, has cautioned that section 1305

ae,

VR nt ae am +

B-12

should not be read too expansively. West v. Northwest Airlines,

Inc., 923 F.2d 657, 660 (9th Cir. 1990). Citing the presumption

against preemption in traditional state law areas, the court opined

that state law which merely affect airline services should not be

preempted. Id. West holds that state law should be preempted only

when the underlying statute or regulation itself relates to airlines.

Id. Under the West formulation, plaintiff's state law claims would

not be preempted.

I find West's interpretation of section 1305 too narrow.”

3 For several reasons, I am similarly unpersuaded by plaintiff's

reliance on Salley v. Trans World Airlines, Inc., 723 F. Supp. 1164,

1166 (E.D. La. 1989). First, the court in Salley stated that

plaintiff's state law claims were not preempted because they did not

conflict with any provision of the Federal Aviation Act. Id. That

court treated the preemption issue as one arising from a conflict

between state and federal law. Of the three ways in which federal

preemption may occur, section 1305, entitled "Federal

Preemption," is quite clearly express preemption. Indeed, it is

difficult to imagine a more express preemption. Thus, it is

immaterial whether the state law conflicts with a federal provision.

See Illinois Corporate Travel, Inc. v. American Airlines, Inc. 889

F.2d 751, 754 (7th Cir. 1989) (where federal preemption is express,

the absence of contrary federal law is irrelevant). Second, in Salley

the airline did not act in the name of safety, as in O'Carroll. Salley,

723 F. Supp. at 1166. Here, TWA has asserted that it removed

plaintiff because he posed a potential threat to the safety of other

passengers. The facts here are much closer to those in O'Carroll

.

.

~~

FE te pk Bn

SHR TRG a6}

B-13

Congress’ intent to preempt state law relating to airline services is

patently clear.‘ Furthermore, section 1511 specifically leaves the

decision as to whether or not to exclude a passenger from a flight

based on safety considerations to the air carrier. 49 U.S.C. §

1511(a). Here, TWA made a decision to remove plaintiff from the

aircraft based on safety considerations, a decision contemplated by

section 1511 and, as such, not subject to scrutiny under state law

standards. See Stewart v. American Airlines, Inc., 1991 WL

226391, *4 (S.D. Tex. October 29, 1991) (state law preempted

where it creates a different standard than the Federal Aviation Act).

Plaintiff's remedy, if any, must come from federal law.

2. Punitive Damages

than those in Salley.

4 Case law interprets the statutory language "relating to" broadly.

See Illinois Corporate Travel, Inc. v. American Airlines, Inc., 889

F.2d 751, 754 (7th Cir. 1989) (“relating to" language substantially

increases the extent of preemption); see also Shaw v. Delta Air

Lines, Inc., 463 U.S. 85 (1983) (interpreting "relating to" language

in the context of ERISA preemption as expanding the scope of

preemption).

B-14

Because plaintiff's tort claim for false arrest must be

dismissed under the preemption doctrine, plaintiff's claim for

punitive damages must also be dismissed. Punitive damages

cannot be awarded in connection with a breach of contract claim.

See W.A, Wright, Inc, v. KDI Sylvan Pools, Inc., 746 F.2d 215,

217-18 (3rd Cir. 1984); Ellmex Constr. Co. v. Republic Ins. Co..

202 N.J. Super. 195, 207 (App. Div. 1985).

3. Breach of Contract

Having dismissed plaintiff's tort claims and punitive

damages claim, this court is divested of jurisdiction over the breach

of contract claim, the only remaining claim. Plaintiff initially

brought suit in state court. TWA subsequently removed the action

to this court on the basis of both federal question and diversity

jurisdiction. Notice of Removal .{7. The action was properly

removable on diversity grounds, inasmuch as plaintiff is a New

Jersey resident and TWA and Magadan are both citizens of New

York. Se¢ 28 U.S.C. § 1441(b). Removal on the ground that this

court had original jurisdiction over the action based on a federal

AW) bow teyieast yoesot

‘ .

dt Upwey all ov beamed (6)t2hi Ue ms

%

iatotest § 0, bape

B-15

Whether or not federal question jurisdiction exists is

governed by the "well-pleaded complaint" rule--that "a cause of

action arises under federal law only when the plaintiff's well

pleaded complaint raises issues of federal law." Metropolitan Life

Ins. Co, v. Taylor, 481 U.S. 58, 63 (1987). Plaintiffs complaint

does not raise any federal question on its face, but rather asserts

only state causes of action. In its notice of removal, TWA asserts

that federal question jurisdiction exists as a result of preemption.

Notice of Removal $4. Although the analysis, supra, concludes

that plaintiff's state tort claims are, in fact, preempted by federal

law, this preemption should not be confused with "complete

preemption.” Only such "compete preemption" enables a federal

court to assert original jurisdiction.

Complete preemption is a very narrow exception to the

well-pleaded complaint rule. Federal preemption is ordinarily a

defense to a plaintiff's claims. Mateeoliten Life ins. 481 U.S. at

63. However, where Congress has so completely preempted an

acre a AMS

t lariat Tie

B-16

area that any complaint raising claims in that area must necessarily

be federal in character, federal jurisdiction will lie. Id.; Franchise

Tax Board of Cal. v.C ital Vacation Trust £

Southern Cal., 463 U.S. 1, 23 (1983) (the preemptive force of

section 301 of the Labor Management Relations Act (LMRA) is so

potent that even a breach of contract action will be deemed federal

in nature). Initially the doctrine was limited in application to the

LMRA. See Avco Corp. v. Machinists, 390 U.S. 557 (1968). The

Supreme Court later extended complete preemption to certain state

law claims coming within the bounds of ERISA. See Metropolitan

Life Ins., 481 U.S. at 66.

There is no indication in the case law that the FAA so

completely preempts state law that a state law breach of contract

action is transformed into a federal question. On the contrary,

breach of contract claims arising out of air carriage contracts have

been treated under state law. See e.g., Anderson, 818 F.2d at 57

(considering breach of contract claim without mention of federal

preemption): Diefenthal, 681 F.2d at 1051 (dismissing plaintiff's

i

rs

& i,

eer . ¢

7 I i i a i i es eee ee ee

(Fase?

a Owes io

uso otlms 10 daoserss gaineiwenad)

ae ce

3

thuniala gnaae vereib) (coi ee *

F Fy.

B-17

breach of contract of air carriage claims because amount in

controversy for diversity jurisdiction not met); Kutner v. Eastern

Airlines, Inc., 514 F. Supp. 553, 557 (E.D. Pa. 1981) (rejecting

plaintiffs' federal claims and holding that plaintiffs’ tort and

contract claims remain as a result of diversity of citizenship and are

governed by Pennsylvania law); Clemente v. Philippine Airlines,

614 F. Supp. 1196, 1197 (S.D.N.Y. 1985) (breach of air carriage

contract removed to federal court only under 28 U.S.C. § 1441(d)

as a civil action brought against a foreign state). Therefore, this

court's continuing jurisdiction over this action must come, if at all,

from diversity of citizenship.

In addition to complete diversity between plaintiffs and

defendants, diversity jurisdiction requires that the amount in

controversy exceed $50,000. 28 U.S.C. § 1332(a).5 Without

s The amount in controversy requirement of 28 U.S.C. § 1332 was

increased from $10,000 to $50,000, effective for all civil actions

commenced on or after November 19, 1988. This case was filed in

_ New Jersey state court on March 29, 1989 and was removed to this

oot om May |, 1989. Therefore, the $50,000 amount in

PII OY De te

Ter ote bene

-

4 / ; Age”. 4 ya yey

«% . Om ATP Mites

} aA we s a wid aie.

Sn Sexo » east}, part Bi

bays

~~ er eee ee

te fers nego ti aie sinner ont

fs 0, 0 22 aq 008.0;

ia

B-18

plaintiff's state law tort claims and punitive damages claim, the

amount in controversy falls far short of the statutory requirement.

Plaintiff only alleges $10,000 in damages relating to the breach of

contract claim. Complaint, Second Count 43. Therefore, this court

no longer has subject matter jurisdiction over this action and, more

specifically, over plaintiff's breach of contract claim.

IV. CONCLUSION

For the reasons set forth above, summary judgment will be

granted in favor of defendants TWA and Diana Magadan on

plaintiff's claims of false Bias and malicious prosection (Count I)

and on plaintiff's punitive damages claim (Count III). As this court

lacks subject matter jurisdiction over the remaining breach of

contract claim (Count II), that count will be dismissed as to both

defendants.

An appropriate order shall issue.

MARYANNE TRUMP BARRY

US.D.J.

ee

a

a

‘ 4

Ged Tye

+ oneal Ma be OR ea ed al ae . ee Dd wate pit ais : at

H

Py ike

q

gt

+8

y

*

eT:

oa

Ais

C-1

APPENDIX-C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ORIGINAL FILED

December 2, 1991

William T. Walsh, Clerk

JOHN FRESSIE,

Plaintiff,

Civil Action No.

89-1910(MTB)

VS.

TRANS WORLD AIRLINES and ORDER

DIANA MAGADAN, individually,

Defendants.

This matter having been opened to the Court upon the

motion of defendant Trans World Airlines for summary judgment

pursuant to Fed. R. Civ. P. 56; and the Court having reviewed the

submissions of the parties both in support of and in opposition to

the motion without oral argument pursuant to Fed. R. Civ. P. 78;

It is on this 23rd day of December, 1991, for the reasons set

forth in this Court's letter opinion of even date,

ed

ee.

ates

eas etre *.

C-2

ORDERED, that the motion of defendant Trans World

Airlines for summary judgment is hereby granted in part as to both

defendants and the remainder of this action is dismissed as to both

defendants for lack of subject matter jurisdiction.

MARYANNE TRUMP BARRY

U.S.D.J.