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Shqeirat v. U.S. Airways Group, Inc.: US District Court : 4TH AMENDMENT | 1983 | MGDPA - rulings on airline security de-planing and related issues

Ahmed Shqeirat, Mohamed Ibrahim,
Didmar Faja, Omar Shahin, Mahmoud
Sulaiman, and Marwan Sadeddin,
Civ. No. 07-1513 ADM/AJB
U.S. Airways Group, Inc.,
U.S. Airways, Inc., and
Metropolitan Airports Commission,
Omar T. Mohammedi, Esq., Law Firm of Omar T. Mohammedi, LLC, New York, NY, and
Frederick J. Goetz, Esq., Goetz & Eckland P.A., Minneapolis, MN, argued on behalf of
Dane B. Jaques, Esq., Dombroff Gilmore Jaques & French, P.C., McLean, VA, and Michael C.
Lindberg, Esq., Johnson & Lindberg, P.A., Minneapolis, MN, argued on behalf of U.S. Airways
Group, Inc., and U.S. Airways, Inc.
Timothy R. Schupp, Esq., Flynn, Gaskins & Bennett, L.L.P., Minneapolis, MN, argued on behalf
of the Metropolitan Airports Commission.
On August 21, 2007, the undersigned United States District Judge heard oral argument
on Defendants U.S. Airways Group, Inc. and U.S. Airways, Inc.s (collectively U.S. Airways)
Motion to Dismiss [Docket No. 13] and Motion for Summary Judgment [Docket No. 9],
Defendant Metropolitan Airport Commissions (MAC) Motion to Dismiss [Docket No. 6], and
Plaintiffs Ahmed Shqeirat (Shqeirat), Mohamed Ibrahim (Ibrahim), Didmar Faja (Faja),
Omar Shahin (Shahin), Mahmoud Sulaiman (Sulaiman), and Marwan Sadeddins
(Sadeddin) (collectively Plaintiffs) Rule 56(f) Motion [Docket No. 54]. Plaintiffs
1 In considering a motion to dismiss, the pleadings are construed in the light most
favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true.
Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994).
2 U.S. Airways has provided Plaintiffs passenger name records (PNRs), which show that
Shahin purchased all of Plaintiffs tickets. The Court considers the PNRs for the limited purpose
of clarifying Plaintiffs ticket purchase and their seating arrangement for the return flight to
subsequently filed a Motion to Strike [Docket No. 96] U.S. Airwayss November 13, 2007,
Letter [Docket No. 94] to the Court regarding supplemental authority. For the reasons set forth
below, U.S. Airwayss Motion to Dismiss is granted in part and denied in part, U.S. Airwayss
Motion for Summary Judgment is denied without prejudice, MACs Motion to Dismiss is
granted in part and denied in part, Plaintiffs Rule 56(f) Motion is granted, and Plaintiffs Motion
to Strike is granted.
Plaintiffs are six Imams who traveled to Minneapolis, Minnesota, in November 2006 for
the North American Conference of Imams. 1st Am. Compl. [Docket No. 5] 24. Shqeirat, Faja,
Shahin, Sulaiman, and Sadeddin are Arizona residents, and Ibrahim is a California resident. Id.
12-17. Shqeirat and Shahin are Muslims of Jordanian-Arab origin, Ibrahim and Sulaiman are
Muslims of Egyptian-Arab origin, Faja is a Muslim of Albanian origin, and Sadeddin is a
Muslim of Syrian-Arab origin. Id.
On October 29, 2006, Shahin purchased tickets for round-trip air travel on U.S. Airways
from Phoenix International Airport to Minneapolis-St. Paul International Airport. Id. 25; U.S.
Airwayss Exs. [Docket No. 11] 2-5.2 Shahin purchased the tickets for himself, Sulaiman, Faja,
Sadeddin, and Shqeirat. U.S. Airwayss Exs. 2-5. On November 9, 2006, Shahin purchased an
3 It appears that Ibrahims origination and ultimate return city was Bakersfield,
California. See U.S. Airwayss Mem. in Supp. of Mot. for Summ. J. [Docket No. 11] at 4; U.S.
Airwayss Ex. 6.
additional ticket for Ibrahim for round trip air travel on U.S. Airways from Phoenix to
Minneapolis.3 Id. Ex. 6. The tickets specified that Shahin would travel from Phoenix to
Minneapolis on U.S. Airways Flight 353 on November 16, 2006, and the other Plaintiffs would
travel from Phoenix to Minneapolis on U.S. Airways Flight 57 on November 18, 2006. Id. Exs.
2-6. Plaintiffs all were booked to return to Phoenix on U.S. Airways Flight 300 (Flight 300),
scheduled to depart Minneapolis at 5:45 p.m. on November 20, 2006. 1st Am. Compl. 27.
Plaintiffs tickets were all for coach class travel. U.S. Airwayss Exs. 2-6.
Shahin and the other Plaintiffs traveled to Minneapolis on November 16 and 18, 2006,
respectively and attended the North American Conference of Imams. 1st Am. Compl. 24. On
November 20, 2006, Plaintiffs arrived at the Minneapolis-St. Paul International Airport planning
to return to Phoenix on U.S. Airways Flight 300. Id. 27. After checking in, Plaintiffs passed
through security without incident and arrived at gate C9 at approximately 3:45 p.m. Id. 31.
Plaintiffs conversed with each other in Arabic and English. Id. 32. In the gate area at around
4:20 p.m., Ibrahim, Shahin, and Sulaiman prayed together in observance of the Maghreb early
evening Muslim prayer. Id. 34-35. Faja, Sadeddin, and Shqeirat decided not to pray and
instead watched over Plaintiffs carry-on bags. Id. 35. Faja, Sadeddin, and Shqeirat observed
an older couple intently watching the other Plaintiffs pray. Id. 36. The male in the couple
made a cellular phone call while watching Ibrahim, Shahin, and Sulaiman pray. Id. 38. At
approximately 4:40 p.m., Ibrahim, Shahin, and Sulaiman finished praying. Id. 39.
At approximately 4:55 p.m., gate attendants began boarding procedures for Flight 300.
Id. 40. Shahin, who was automatically upgraded to first class based on his status as a Gold
Member in U.S. Airwayss frequent flyer program, sat in row one. Id. 26; U.S. Airwayss Ex.
2. Subsequently, Sulaiman assisted Sadeddin, who is blind, in boarding Flight 300. 1st Am.
Compl. 42. Initially, Sadeddin sat in his pre-assigned seat in row four and Sulaiman sat in his
seat in row nine. Id. 43; U.S. Airways Exs. 3-4. However, Sadeddin subsequently moved to an
aisle seat in row nine near Sulaiman after another passenger agreed to switch seats so that
Sulaiman could assist his blind friend. 1st Am. Compl. 44-45.
After the seat switch, Sadeddin requested a seatbelt extension because his seatbelt did not
fit him. Id. 46. At about this point in the sequence of events, Shahin left his first class seat,
walked towards Sadeddin, and asked Sadeddin whether he would like to sit in Shahins seat in
first class. Id. 47. Sadeddin declined the offer. Id. Shahin returned to his seat in first class
and requested a seatbelt extension because his seatbelt also did not fit him. Id. 48.
Meanwhile, Faja and Shqeirat sat together in their pre-assigned seats in row twenty-five,
and Ibrahim sat in his pre-assigned seat in row twenty-one. Id. 50; U.S. Airwayss Exs. 4-6.
Shqeirat fell asleep for approximately thirty minutes after boarding. 1st Am. Compl. 50.
When Shqeirat awoke, he and Faja noticed a police vehicle next to the airplane. Id. 51. Two
MAC police officers, and one undercover MAC officer, boarded the plane and spoke with a
flight attendant in the kitchen at the rear of the aircraft. Id. 53. The officers then approached
the six Plaintiffs and requested that they deplane. Id. 54. Plaintiffs obeyed the request and
exited the aircraft to the jetway. Id. 58.
In the jetway, the MAC police officers ordered Plaintiffs to face the wall and place their
hands above their heads to be searched and handcuffed. Id. 58. Faja alleges the police officers
refused his request for a lawyer. Id. 72. In response to a police officers question, Shqeirat
confirmed that Sadeddin is completely blind. Id. 59. Shqeirat asked the officer to explain the
situation, but the officer responded, I do not know. This is the airlines call and not our call.
Id. 60. The police officers ordered Plaintiffs to reboard the plane and identify their carry-on
luggage. Id. 61. The police officers then removed Plaintiffs and their carry-on luggage to the
jetway, and the officers thoroughly searched Plaintiffs and their belongings. Id. 62-63. While
handcuffed, Plaintiffs were escorted through the airport and transported in police cars to the
Minneapolis Airport Police Precinct. Id. 67.
Plaintiffs were detained at the police precinct until 11:30 p.m. Id. 73. Shqeirat and
Ibrahim were placed together in a small room. Id. 75. A police officer remained in the room
so the two could not communicate with each other. Id. The four other Plaintiffs were held in
separate cells. Id. 76. After several hours, agents of the Federal Bureau of Investigations
(F.B.I.) and the Secret Service interviewed each Plaintiff separately. Id. 77-97. Each
Plaintiff was provided with Miranda warnings before he was questioned. Id. In response to the
F.B.I. agents questions, Shqeirat stated he did nothing unusual at the airport and he did not
leave his seat on the aircraft. Id. 79-80. Shqeirat stated that Plaintiffs were active Imams in
Arizona. Id. 81. In response to the Secret Service agents questions, Shqeirat stated he did not
want the President of the United States to be harmed. Id. 84. The other Plaintiffs were asked
similar questions and gave similar answers. Id. 77-97. Each Plaintiff denied having discussed
Saddam Hussein and the Iraq war in the gate area or on the plane. Id. The F.B.I. agents asked
Sadeddin whether he was blind because a U.S. Airways flight attendant allegedly reported she
believed Sadeddin was faking his blindness. Id. 93. When the interviews were completed, the
F.B.I. and Secret Service agents informed Plaintiffs that they were not deemed security threats,
they were cleared of any wrongdoing, and they were free to leave. Id. 97.
After being released, Plaintiffs went to the terminal and Faja called U.S. Airways to ask
for rebooking on the next available flight to Phoenix. Id. 98-99. When Faja gave the ticketing
agent the code on his ticket for Flight 300, the agent informed Faja that Plaintiffs were not
permitted to fly with U.S. Airways. Id. 100. In response to questions from Faja and Shqeirat,
the F.B.I. agent assured them they were not on a no fly list. Id. 101. However, the U.S.
Airways ticketing agent refused to speak with the F.B.I. agent regarding Plaintiffs security
status. Id. 102. Shahin called the ticketing agent, who again stated that Plaintiffs could not fly
with U.S. Airways. Id. 103-104. At Plaintiffs request, the F.B.I. agent called U.S. Airways
and spoke for twenty minutes with the same ticketing agent. Id. 105. However, despite the
F.B.I. agents assurances that Plaintiffs did not pose a security threat, the ticketing agent
reiterated that U.S. Airways would not board Plaintiffs. Id. 106-07. Unable to find another
flight, Plaintiffs made arrangements to stay at a friends home on the night of November 20,
2006. Id. 108. That evening, Plaintiffs heard news reports, allegedly based on information
provided by U.S. Airways, that Plaintiffs had used cash to purchase one way tickets and were
disruptive and uncooperative when they were asked to deplane the aircraft. Id. 111.
Between 6:00 a.m. and 7:00 a.m. on November 21, 2006, Shahin again called U.S.
Airways and asked that Plaintiffs be booked on a flight to Phoenix. Id. 112. Within two hours,
U.S. Airways informed Shqeirat that Plaintiffs could not travel with U.S. Airways. Id. 113.
Later that morning, Plaintiffs arrived at the Minneapolis-St. Paul International Airport and went
to the U.S. Airways ticketing desk. Id. 115. Shahin presented his credit card and requested
4 Plaintiffs have moved to file a Second Amended Complaint. Mot. to Amend 1st Am.
Compl. [Docket No. 41]. That motion is currently before Magistrate Judge Arthur J. Boylan.
U.S. Airwayss and MACs instant motions address the allegations in the Amended Complaint,
and therefore the Court has limited its consideration to the allegations in the Amended
that Plaintiffs be rebooked on the next flight to Phoenix. Id. 116. After consulting with the
U.S. Airways System Operations Control Manager on duty, the ticketing agent informed
Plaintiffs they could not travel on U.S. Airways and she requested that Plaintiffs move away
from the U.S. Airways ticket counter. Id. 118. Plaintiffs complied with the ticketing agents
request and subsequently purchased tickets and returned to Phoenix on an 11:45 a.m. Northwest
Airlines flight. Id. 119.
On March 12, 2007, Plaintiffs filed a Complaint [Docket No. 1] against U.S. Airways,
MAC, and certain John Does. On March 23, 2007, Plaintiffs filed their Amended Complaint,4
asserting claims under federal statutes, and Minnesota statutes and common law against U.S.
Airways and MAC. The John Does are no longer named as defendants. Pls. Notice of
Dismissal [Docket No. 81]; Pls. and U.S. Airwayss Stipulation [Docket No. 85].
A. MACs Motion to Dismiss
1. Standard of Review
Rule 12 of the Federal Rules of Civil Procedure provides that a party may move to
dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). In considering a motion to dismiss, the pleadings are construed in the light most
favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true.
Hamm v. Groose, 15 F.3d at 112; Ossman v. Diana Corp., 825 F. Supp. 870, 879-80 (D. Minn.
1993). Any ambiguities concerning the sufficiency of the claims must be resolved in favor of the
nonmoving party. Ossman, 825 F. Supp. at 880. A motion to dismiss should be granted as a
practical matter . . . only in the unusual case in which the plaintiff includes allegations that show
on the face of the complaint that there is some insuperable bar to relief. Frey v. City of
Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995).
Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings shall contain a short
and plain statement of the claim showing that the pleader is entitled to relief. A pleading must
contain enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v.
Twombly, 127 S. Ct. 1955, 1974 (2007).
2. Materials Submitted by MAC in Support of its Motion
In support of its Motion to Dismiss, MAC has submitted its official police report of the
November 20, 2006, incident. Noel Aff. [Docket No. 25] Ex. 1. Rule 12(b) of the Federal Rules
of Civil Procedure states that if, on a [12(b)(6)] motion . . . matters outside the pleading are
presented to and not excluded by the court, the motion shall be treated as one for summary
judgment . . . and all parties shall be given reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.
Relying on Rule 10(c), MAC argues that its official police report does not qualify as a
matter outside the pleading because it is adopted by reference in Counts Ten and Seventeen of
Plaintiffs Amended Complaint. See Fed. R. Civ. P. 10(c) (Statements in a pleading may be
adopted by reference in a different part of the same pleading or in another pleading or in any
motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for
all purposes.). Count Ten asserts that MAC violated the Minnesota Government Data Practices
Act (MGDPA), Minn. Stat. 13.08, subd. 1, and 13.355, subd. 1, when it failed to remove
Shahins social security number from the police report, which was published on the internet. 1st
Am. Compl. 195-201. Count Seventeen asserts a claim of invasion of privacy based on the
same conduct. Id. 256-61. Significantly, Plaintiffs chose not to attach a copy of the police
report as an exhibit to the Complaint or the Amended Complaint.
The Eighth Circuit recognizes that on Rule 12(b)(6) motions, courts may consider
matters that are necessarily embraced by the pleadings. See Porous Media Corp. v. Pall Corp.,
186 F.3d 1077 (8th Cir. 1999), quoting Piper Jaffray Cos. v. Natl Union Fire Ins. Co., 967 F.
Supp. 1148, 1152 (D. Minn. 1997). For example, where a plaintiffs claims arise out of a written
contract, a court may consider an indisputably authentic copy of the contract in deciding a
motion to dismiss. Stahl v. Dept of Agric., 327 F.3d 697, 700-01 (8th Cir. 2003). Similarly, if a
plaintiffs securities law claims are based on allegedly misleading statements in a prospectus, a
court may consider an indisputably authentic copy of the prospectus. See Parnes v. Gateway
2000, Inc., 122 F.3d 539, 546 n.7 (8th Cir. 1997).
Under Eighth Circuit precedent, this Court may consider MACs police report in
deciding whether Counts Ten and Seventeen of the Amended Complaint survive MACs Motion
to Dismiss, because those counts necessarily embrace MACs police report. However, MAC
argues that factual statements in its police report regarding the November 20, 2006, incident
support dismissal of the other counts against it. The difficulty with MACs position is that,
unlike Counts Ten and Seventeen, the other counts bear no direct connection to MACs police
report. Because MACs police report is not necessarily embraced by the other counts, the Court
cannot consider the police report in addressing the merits of the other counts. See Jacobs v. City
5 Federal Rule of Civil Procedure 56(f) provides that [s]hould it appear from the
affidavits of a party opposing the [summary judgment] motion that the party cannot for reasons
stated present by affidavit facts essential to justify the partys opposition, the court may refuse
the application for judgment or may order a continuance to allow additional discovery.
of Chicago, 215 F.3d 758, 766 (7th Cir. 2000) (concluding that police report could not be
considered in deciding Rule 12(b)(6) motion).
Alternatively, MAC argues Eighth Circuit precedent allows its police report to be
considered in deciding a motion to dismiss as materials that are part of the public record or do
not contradict the complaint. Missouri ex rel. Nixon v. Coeur DAlene Tribe, 164 F.3d 1102,
1107 (8th Cir. 1999). However, MACs police report is inconsistent with certain allegations in
the Amended Complaint and therefore cannot be considered on MACs Motion to Dismiss.
Further, the Court declines to convert MACs Motion to Dismiss into a Rule 56 motion for
summary judgment. See Fed. R. Civ. P. 12(b). Plaintiffs have filed a well-supported Rule 56(f)5
Motion and accompanying affidavit explaining the need for discovery regarding the November
20, 2006, incident and MACs policies regarding detaining and arresting passengers. See Goetz
Aff. [Docket No. 58]. Therefore, the Court will only consider MACs police report in evaluating
whether Counts Ten and Seventeen state a claim for relief against MAC.
3. 42 U.S.C. 1983 Claims
In Counts Three and Four of the Amended Complaint, Plaintiffs assert that U.S. Airways
and MAC are liable under 42 U.S.C. 1983, which provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State . . . subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured . . . .
Under the Supreme Courts decision in Monell v. Department of Social Services, 436 U.S. 658,
6 MAC is a public corporation under Minn. Stat. 473.01. MACs Mem. in Supp. of
Mot. to Dismiss [Docket No. 24] at 6.
7 MAC concedes Plaintiffs were arrested but does not specify the precise moment when
Plaintiffs were arrested, as opposed to being briefly detained. See United States v. Sokolow, 490
U.S. 1, 7 (1989) (noting that police can stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported by articulable facts that criminal
activity may be afoot, even if the officer lacks probable cause), citing Terry v. Ohio, 392 U.S.
1 (1968). For the purposes of the instant motions, the Court will assume Plaintiffs were arrested
at the time they were handcuffed in the jetway after being removed from Flight 300.
690-92 (1978), a governmental entity such as MAC6 cannot be held liable under 1983 merely
because its employees committed unconstitutional acts. Instead, MAC is liable under 1983
only if its custom or policy caused the deprivation of the right protected by the Constitution or
federal law. Angarita v. St. Louis County, 981 F.2d 1537, 1546 (8th Cir. 1992).
a. Unreasonable Search and Seizure
Count Three of the Amended Complaint alleges that MAC unlawfully searched and
seized Plaintiffs in violation of their Fourth Amendment right to be free from unreasonable
searches and seizures. 1st Am. Compl. 146; see U.S. Const. amend. IV. The Fourth
Amendment applies to the states through the Fourteenth Amendment. United States v. Ameling,
328 F.3d 443, 447 (8th Cir. 2003). MAC concedes that Plaintiffs were arrested for purpose of
Fourth Amendment analysis. MACs Reply Mem. in Supp. of Mot. to Dismiss [Docket No. 67].
at 5-6.7 However, MAC argues that Plaintiffs Fourth Amendment claim must be dismissed
because Plaintiffs Fourth Amendment rights were not violated and, alternatively, because
Plaintiffs have failed to adequately allege that a MAC policy or custom was the moving force
behind the constitutional violation.
An arrest without probable cause is violative of rights secured by the Constitution and
can be the basis of recovery pursuant to 42 U.S.C. 1983. Sartin v. Commr of Pub. Safety,
535 F.2d 430, 434 (8th Cir. 1976). An officer has probable cause to make a warrantless arrest
when the facts and circumstances are sufficient to lead a reasonable person to believe that the
defendant has committed or is committing an offense. United States v. Torres-Lona, 491 F.3d
750, 755 (8th Cir. 2007). Probable cause requires only a probability or substantial chance of
criminal activity, rather than an actual showing of criminal activity. United States v. Mendoza,
421 F.3d 663, 667 (8th Cir. 2005).
MAC emphasizes that individuals consent to substantial intrusions on their Fourth
Amendment interests at airports and onboard commercial aircraft. See Cassidy v. Chertoff, 471
F.3d 67, 76 (2d Cir. 2006) (noting that society has long accepted a heightened level of security
and privacy intrusion with regard to air travel). However, although air travelers accept that
their persons and luggage are subject to intrusive searches for security purposes, law
enforcement authorities still need probable cause to arrest an individual in an airport. See
Florida v. Royer, 460 U.S. 491, 502-07 (1983) (plurality opinion) (finding officers had
reasonable, articulable suspicion to stop defendant because of suspected drug possession but
lacked probable cause for an arrest).
Based on the allegations in the First Amended Complaint, MAC police officers arrested
Plaintiffs premised on information that: (1) three of the Plaintiffs observed the Muslim Maghreb
prayer at the gate before boarding Flight 300; (2) Plaintiffs referred to Saddam Hussein and
criticized U.S. involvement in Iraq; (3) Shahin and Sadeddin requested seatbelt extensions; and
(4) Shahin left his seat to talk to Sadeddin. See 1st Am. Compl. 32-50. Whether these facts
would lead a reasonable person to conclude that Plaintiffs were committing or were about to
commit a crime such as interfering with flight crew members and attendants is doubtful. See 49
U.S.C. 46504 (setting forth elements of Interference with Flight Crew Members and
Attendants). Plaintiffs have stated a claim that their Fourth Amendment rights were violated.
Moreover, this Court would reach the same result even if MACs police report were
considered. MAC Police Officer Bradley Wingates report states that on November 20, 2006, at
5:38 p.m., he was dispatched to Gate C9 because U.S. Airways was in the process of denying
six passengers service and they wanted us to stand by as they have the six passengers de-board
the aircraft. Noel Aff. Ex. 1 at 10. At Gate C9, U.S. Airways Manager Robby Davis (Davis)
informed Officer Wingate that a passenger on Flight 300 had reported that six passengers had
engaged in suspicious activity. Id. Davis stated the six passengers were all of Middle
Eastern descent and three . . . had one-way tickets and no checked luggage, and that most of
the six passengers requested seatbelt extensions. Id.
Officer Wingate and Federal Air Marshal Steven Grewenow boarded Flight 300 and
spoke with the reporting passenger. Id. According to the passenger:
He witnessed six Middle Eastern males in the gate area praying and chanting in an
Arabic dialect. They chanted the words Allah, Allah, Allah. He then eavesdropped into
their conversation and overheard them mention Sad[d]am and heard them curse about the
U.S. involvement. He watched them position themselves together facing a certain
direction and pray again in a group. He watched them board the plane and they took a
mysterious seating arrangement throughout the plane. He stated two were seated in the
front of the plane, two were seated in the middle, and two were seated in the rear of the
plane. . . .
Id. Other MAC police officers arrived to assist Officer Wingate. Id. Federal Air Marshal
Grewenow and MAC Police Officer Wingate agreed the seating configuration, the request for
seatbelt extensions, the prior praying and utterances about Allah and the U.S. in the gate area . . .
was suspicious. Id. Officer Wingate contacted F.B.I. Agent Cannizzaro and informed him of
8 MAC also argues that U.S. Airwayss decision to deny service supports a finding of
probable cause. MACs Reply Mem. at 3-4. However, 49 U.S.C. 44902(b) gives an airline
discretion to deny service to anyone the airline decides is, or might be, inimical to safety. As
discussed below, this standard is lenient and does not require probable cause. Therefore, U.S.
Airwayss decision to deny service to Plaintiffs is not a component of probable cause. Only the
underlying facts regarding Plaintiffs conduct relied on by MAC can establish probable cause.
the incident. Id. Agent Cannizzaro requested that MAC police detain Plaintiffs so he could
interview them. Id. Plaintiffs and their luggage were subsequently removed from the plane,
searched, and then transported to the MAC Airport Police Department Police Operations Center.
Id. at 11. Plaintiffs were placed in holding cells and interview rooms until they were questioned
and released. Id. at 11-12.
Probable cause is determined based on the objective facts available to the officers at the
time of the arrest. Smithson v. Aldrich, 235 F.3d 1058, 1064 (8th Cir. 2000). According to its
police report, MAC officers arrested Plaintiffs based on the following facts: (1) U.S. Airways
reported three of the passengers had one-way tickets and no checked luggage, (2) most of the
passengers requested seatbelt extensions, (3) a co-passenger submitted a note to a flight
attendant stating that Middle Eastern passengers had prayed very loudly before the flight and
criticized United States involvement with Saddam Hussein, and (4) Plaintiffs seats were spread
out throughout the aircraft. MACs Reply Mem. at 3-4; Noel Aff. Ex. 1 at 10-11.8 Again, it is
dubious that these facts would lead a reasonable person to conclude that Plaintiffs were about to
interfere with the crew of Flight 300. Therefore, even if MACs police report is considered,
Plaintiffs have adequately stated a claim that MAC violated their Fourth Amendment rights.
Arguing against this result, MAC emphasizes that the F.B.I. requested that Plaintiffs be
detained. MAC cites cases such as Doran v. Eckold, 409 F.3d 958, 965 (8th Cir. 2005), for the
proposition that law enforcement officers may rely on information provided by others in the law
enforcement community, so long as the reliance is reasonable. However, there is no indication
in the police report that F.B.I. Agent Cannizzaro provided any information to Officer Wingate.
Instead, the flow of information was one-way: MAC Officer Wingate notified Agent Cannizzaro
that U.S. Airways had decided to remove Plaintiffs from Flight 300, and Agent Cannizzarro
requested that Officer Wingate detain Plaintiffs for questioning. On the record before the Court,
MAC has no basis to argue that it arrested Plaintiffs based on information provided by the F.B.I.
In the alternative, MAC argues that even if Plaintiffs arrests were unconstitutional,
Plaintiffs have insufficiently alleged that a MAC policy, practice, or custom caused a Fourth
Amendment violation. In the Amended Complaint, Plaintiffs allege that MAC engaged in a
course of action and behavior, rising to the level of a policy, custom and condoned practice,
which deprived Plaintiffs of the rights, privileges and immunities secured by the United States
Constitution and by federal statute in violation of 42 U.S.C. 1983. 1st Am. Compl. 141.
When a complaint is filed, a plaintiff may not be privy to the facts necessary to
accurately describe or identify any policies or customs which may have caused the deprivation of
a constitutional right. Doe v. Sch. Dist. of City of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003).
Therefore, the failure of [Plaintiffs] to specifically plead the existence of an unconstitutional
policy or custom, in itself, is not fatal to their claim for relief. Id. Instead, a complaint need
only allege facts which would support the existence of an unconstitutional policy or custom.
Id. Paragraphs 58-60, 140-143, and 146 of Plaintiffs Amended Complaint allege facts that
would support the existence of an unconstitutional MAC policy of arresting passengers when an
airline reports allegedly suspicious behavior falling short of probable cause. Therefore, Plaintiffs
have adequately stated a claim that a MAC custom or policy caused the violation of Plaintiffs
constitutional right to be free from unreasonable searches and seizures.
b. Equal Protection
Count Three of the Amended Complaint also alleges MAC violated the Fourteenth
Amendments Equal Protection Clause by arresting Plaintiffs on the basis of their race, religion
and[] national origin . . . . 1st Am. Compl. 145; see U.S. Const. amend. XIV. MAC argues
Plaintiffs equal protection claim fails because Plaintiffs have not alleged facts supporting an
inference that similarly situated persons of a different race, religion, color, or national origin
would have been treated differently. In support of these arguments, MAC relies on the statement
in Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 61 (2d Cir. 1985), that an allegation that
others were treated differently is essential to an equal protection claim. However, MAC has
provided no Supreme Court or Eighth Circuit authority supporting that an equal protection claim
must be based on an allegation that similarly situated individuals were treated differently. The
Amended Complaint alleges MAC arrested Plaintiffs without probable cause because of
Plaintiffs race and religion. These allegations give [MAC] fair notice of what [Plaintiffs]
claims are and the grounds upon which they rest. Swierkiewicz v. Sorema N.A., 534 U.S. 506,
514 (2002). As discussed above, it is dubious whether the facts in the Amended Complaint
provide probable cause for an arrest. The lack of probable cause, along with other evidence
adduced through discovery, could support an inference that Plaintiffs race and religion were
motivating factors in MACs decision to arrest Plaintiffs. The Amended Complaint contains
enough facts to state a claim to relief that is plausible on its face. Twombly, 127 S. Ct. at
Alternatively, MAC again argues that Plaintiffs have failed to sufficiently allege the
existence of an unconstitutional policy or custom. However, the facts alleged in the Amended
Complaint support the existence of an unconstitutional custom of arresting individuals without
probable cause based on their race. Therefore, Plaintiffs equal protection claim against MAC in
Count Three of Amended Complaint survives MACs Motion to Dismiss.
c. Sixth Amendment
Plaintiffs did not respond to MACs argument that the Sixth Amendment right-to-counsel
claim asserted in Count Three of the Amended Complaint must be dismissed because Plaintiffs
were not charged with a crime. See MACs Mem. in Supp. of Mot. to Dismiss at 11-12; Pls.
Mem. in Oppn to MACs Mot. to Dismiss [Docket No. 59] at 12-20. Therefore, the claim is
d. Failure to Train
Count Four of the Amended Complaint alleges that MAC failed to adequately train its
employees regarding unlawful discrimination and that, as a result, Plaintiffs were detained
without probable cause. 1st Am. Compl. 152-53; see City of Canton v. Harris, 489 U.S. 378,
387-92 (1989) (concluding that municipality can be liable under 1983 for constitutional
violations caused by failure to adequately train employees). MACs argument in support of
dismissal of Plaintiffs failure-to-train claim is premised entirely on its previous arguments for
dismissal of Plaintiffs Fourth and Fourteenth Amendment claims. However, as discussed
above, Plaintiffs have adequately stated claims that MAC conducted an unreasonable search and
seizure, and that MAC did so because of Plaintiffs race and religion Therefore, Plaintiffs
failure-to-train claim against MAC also survives.
4. State Law False Arrest
MAC argues the false arrest allegations in Count Five of the Amended Complaint focus
on U.S. Airways and do not clearly state a false arrest claim against MAC. In response,
Plaintiffs argue the previous 156 paragraphs of the Amended Complaint are incorporated by
reference in Count Five, and that paragraphs 54, 58, 62, 64, 66-67, 73, and 153 support an
allegation that MAC officers falsely arrested Plaintiffs. Pls. Mem. in Oppn to MACs Mot. to
Dismiss at 23. However, Count Five is ambiguous at best as to whether Plaintiffs are pursuing a
false arrest claim against MAC. Neither MAC nor this Court is required to sift through 156
paragraphs of allegations to determine if Plaintiffs are asserting a false arrest claim against
MAC. See Byrne v. Nezhat, 261 F.3d 1075, 1129 (11th Cir. 2001) (discussing problems where
each count [of a complaint] incorporates every antecedent allegation by reference ). If
Plaintiffs intend to assert a false arrest claim against MAC, then they should clearly so state.
Federal Rule of Civil Procedure 8(a) requires only a short and plain statement of the claim
showing that the pleader is entitled to relief. Plaintiffs false arrest claim fails to make such a
statement regarding MAC, and therefore Count Five against MAC is dismissed.
However, in the event Judge Boylan grants Plaintiffs leave to amend their false arrest
claim in a second amended complaint, it is helpful to briefly address MACs alternative
arguments on the merits. Based on the information in its police report, MAC argues that even a
properly stated false arrest claim against it must be dismissed because the decision to arrest
Plaintiffs was supported by probable cause. See Johnson v. Morris, 453 N.W.2d 31, 36 (Minn.
1990) (If probable cause to arrest exists . . . there is no cause of action for false arrest or false
imprisonment.) However, for the reasons stated above, it is dubious whether probable cause
existed to arrest Plaintiffs. Therefore, MACs alternative argument for dismissal of the false
arrest claim is rejected.
5. Claims Arising Out of the Disclosure of Shahins Social Security Number
a. Minnesota Government Data Practices Act
In Count Ten of the Amended Complaint, Plaintiff Shahin alleges MAC violated the
MGDPA by posting on the internet the police report showing Shahins social security number.
1st Am. Compl. 196. Shahin also alleges that MAC intentionally and/or recklessly failed to
remove [Shahins] social security number from the internet. 1st Am. Compl. 198. For the
purposes of its Motion to Dismiss, MAC concedes that the publication of Shahins social
security number constitutes a violation of the MGDPA. MACs Mem. in Supp. of Mot. to
Dismiss at 17-18. However, MAC argues Count Ten must be dismissed because Shahin fails to
allege an injury in fact.
The civil remedies provision of the MGDPA provides that a responsible authority or
government entity which violates [the MGDPA] is liable to a person . . . who suffers any damage
as a result of the violation . . . . Minn. Stat. 13.08, subd. 1. The Minnesota Supreme Court in
Navarre v. South Washington County Schs., 652 N.W.2d 9, 30 (Minn. 2002), recognized that
this broad language indicates that a plaintiff can recover damages for emotional harm under the
MGDPA. Although Navarre failed to produce verifiable medical or psychological evidence
of emotional harm, the court held that Navarres testimony that the disclosure of information
made her extremely upset and caused her to be afraid to go out in public was sufficient to create
a jury issue regarding damages. Id.
Here, Shahin alleges he continues and will continue to experience the fear that he may
become the victim of identity theft and fraud and continues and will continue to suffer anguish,
injury to his reputation and economic losses . . . in an amount to be proven at time of trial. 1st
Am. Compl. 201. Given the evidentiary threshold for MGDPA emotional harm damages
established in Navarre, Shahins allegations of emotional harm and his fear of possible identity
theft are sufficient to state a claim for damages under the MGDPA.
b. Invasion of Privacy
In Count Seventeen of the Amended Complaint, Plaintiff Shahin asserts a claim for
invasion of privacy based on MACs alleged disclosure of his social security number. 1st Am.
Compl. 256-61. In Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 233-235 (Minn. 1998),
the Minnesota Supreme Court first recognized the invasion-of-privacy torts of intrusion upon
seclusion, appropriation, and publication of private facts. The Court construes Count Seventeen
as asserting a claim for publication of private facts. Minnesota courts define publication of
private facts as an invasion of privacy when one gives publicity to a matter concerning the
private life of another if the matter publicized is of a kind that (a) would be highly offensive to a
reasonable person, and (b) is not of legitimate concern to the public. Id. at 233, quoting
Restatement (Second) of Torts, 652B (1977). MAC again argues that Shahins allegations that
he suffered emotional distress are insufficient to support a claim for publication of private facts.
However, MAC has not provided any Minnesota case law to support this argument. At this early
stage of the litigation, Shahins allegations that he has suffered emotional harm due to the fear of
identity theft is sufficient to support the damages element of his invasion of privacy claim.
Thus, Counts Three, Four, Ten, and Seventeen of the Amended Complaint state claims
upon which relief can be granted, and MACs Motion to Dismiss is denied as to those counts.
Count Five is dismissed because it fails to clearly assert a claim against MAC.
B. U.S. Airwayss Motion to Dismiss
1. 42 U.S.C. 1983 Claims
Count Three of the Amended Complaint names U.S. Airways as a co-defendant on the 42
U.S.C. 1983 claims against MAC. U.S. Airways argues Plaintiffs 1983 claims against it
must be dismissed because the Amended Complaint fails to sufficiently allege that U.S. Airways
acted under color of state law.
A private person is not liable under 1983 merely for contacting the police and invoking
a police officers authority. Young v. Harrison, 284 F.3d 863, 870 (8th Cir. 2002). Instead,
[p]rivate parties are only liable under 42 U.S.C. 1983 when they have been jointly engaged
with public officers in the denial of civil rights. Id. The Eighth Circuits decision in Murray v.
Wal-Mart, Inc., 874 F.2d 555 (8th Cir. 1989), provides guidance on the pleading standard for
1983 claims against private parties. Murray asserted 1983 claims against Wal-Mart, the City
of Blytheville, Arkansas, and other defendants arising out of the Citys decision to prosecute her
based on Wal-Marts allegations that Murray had shoplifted. Id. at 557-58. After Murray
prevailed against Wal-Mart in the district court, Wal-Mart argued on appeal that Murray failed to
allege sufficient facts to hold it liable under 1983. Id. at 558. The Eighth Circuit rejected Wal-
Marts argument, emphasizing that:
[Murray] alleged that each and all the acts which she set forth in her complaint were
done by the Defendants under the color and pretense of state law. Murrays claim stated
that she sustained numerous injuries and damages as a direct and proximate result of the
joint and several conduct[] of the Defendants, which constitute violation of Plaintiffs
Constitutional rights. Murrays complaint also specifically invoked jurisdiction
pursuant to section 1983.
Id. The court concluded that [t]hese statements more than adequately allege facts sufficient to
9 Count Four of the Amended Complaint does not assert a failure-to-train claim against
U.S. Airways See 1st Am. Compl. 151-56.
state a claim against Wal-Mart under 1983. Id.
Here, Plaintiffs allege U.S. Airways was acting under the color of state law when
[MAC], under the direction of U.S. Airways, deprived Plaintiffs of their [federal] rights . . . .
1st Am. Compl. 142. Plaintiffs also allege U.S. Airways and MAC acted in concert to
violate Plaintiffs federal rights. Id. 145. Additionally, Plaintiffs have alleged that after they
were handcuffed, Shqeirat asked the [MAC] police officer what was going on to which the
officer replied: I do not know. This is the airlines call and not our call. Id. 60. Under
Murray, the Amended Complaint sufficiently alleges that U.S. Airways and MAC jointly
violated Plaintiffs constitutional rights in violation of 1983.
U.S. Airways also briefly argues that Plaintiffs have insufficiently alleged that a U.S.
Airways policy or custom was the moving force behind the alleged constitutional violations.
U.S. Airwayss Reply Mem. in Supp. of Mot. to Dismiss [Docket No. 73] at 10. However,
Monell does not apply to the conduct of U.S. Airways because U.S. Airways is not a
governmental entity. U.S. Airways has provided no authority to support its argument that
Plaintiffs must prove that a U.S. Airways policy or custom was the moving force behind the
constitutional violations alleged in Plaintiffs 1983 claims. Plaintiffs claims alleging joint
violation of 1983 rights is sufficient to deny U.S. Airwayss motion for dismissal of Count
2. False Arrest
Count Five of the Amended Complaint asserts a false arrest claim against U.S. Airways.
Plaintiffs allege that: (1) U.S. Airways unlawfully had Plaintiffs handcuffed and arrested, (2)
the arrests were not based on probable cause, (3) U.S. Airwayss actions were discriminatory,
and (4) MAC police officers performed the arrest based exclusively on the statements of U.S.
Airwayss employees. 1st Am. Compl. 160, 163-65.
The Minnesota Supreme Court has stated that the essential elements of a false arrest
claim are: (1) an arrest performed by defendant, and (2) the unlawfulness of such arrest.
Lundeen v. Renteria, 224 N.W.2d 132, 135 (1974). U.S. Airways argues a claim of false arrest
requires an actual arrest performed by the defendant. U.S. Airwayss Mem. in Supp. of Mot.
to Dismiss [Docket No. 15] at 9. U.S. Airways argues it cannot be liable for false arrest because
MAC arrested Plaintiffs. However, the Minnesota Supreme Court has recognized that a
defendant may be liable for instigating an arrest by police officers. See Ward v. Natl Car Rental
Sys., 290 N.W.2d 441, 442-43 (Minn. 1980) (false arrest claim adequately supported by
evidence that plaintiff had been imprisoned [by police], that the imprisonment was instigated by
defendant, [and] that defendant did not have reasonable cause to believe that a theft of its
automobile had occurred). Therefore, Plaintiffs may state a false arrest claim against U.S.
Airways even though MAC actually performed the arrest.
U.S. Airways also argues it is entitled to immunity under 49 U.S.C. 44941. That statute
provides that:
Any air carrier . . . who makes a voluntary disclosure of any suspicious transaction
relevant to a possible violation of law or regulation, relating to air piracy, a threat to
aircraft or passenger safety, or terrorism . . . to . . . any Federal, State, or local law
enforcement officer, or any airport or airline security officer shall not be civilly liable to
any person under any law or regulation of the United States, any constitution, law, or
regulation of any State . . . for such disclosure.
49 U.S.C. 44941(a). The text of the statute protects U.S. Airwayss disclosure of information
to MAC. Here, Plaintiffs allege that in addition to disclosing information to MAC, U.S. Airways
acted in concert with MAC to arrest Plaintiffs. Plaintiffs specifically allege that immediately
after they were handcuffed and placed under arrest, a MAC police officer stated: This is the
airlines call and not our call. 1st Am. Compl. 60. Plaintiffs false arrest claim alleges
conduct by U.S. Airways that falls outside the protection of 49 U.S.C. 44941(a).
Finally, U.S. Airways argues there was no false arrest because Plaintiffs arrest was
supported by probable cause. However, for the reasons discussed above, this argument is
rejected based on the record currently before the Court.
3. Air Carrier Access Act Claim
In Count Six of the Amended Complaint, Plaintiff Sadeddin asserts a claim under the Air
Carrier Access Act (ACAA), 49 U.S.C. 41705, which prohibits air carriers from
discriminating against individuals on the basis of a disability. Sadeddin alleges that U.S.
Airways discriminated against him by claiming that Plaintiff Sadeddin appeared to be faking his
blindness. 1st Am. Compl. 170. Sadeddin states that as a result, he was left struggling to
descend the steps of the plane unassisted despite his request for aid. Id. 171. U.S. Airways
argues Sadeddins ACAA claim must be dismissed because individuals do not have a private
cause of action for ACAA violations.
The ACAA does not expressly create a private cause of action. However, the Eighth
Circuit held in Tallarico v. Trans World Airlines, Inc., 881 F.2d 566, 569-70 (8th Cir. 1989), that
the ACAA impliedly creates a private cause of action. The Tallarico court analyzed the issue
under the four factor test set forth by the United States Supreme Court in Cort v. Ash, 422 U.S.
66 (1975):
First, is the plaintiff one of the class for whose especial benefit the statute was
enactedthat is, does the statute create a federal right in favor of the plaintiff? Second,
is there any indication of legislative intent, explicit or implicit, either to create such a
remedy or to deny one? Third, is it consistent with the underlying purposes of the
legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of
action one traditionally relegated to state law . . . so that it would be inappropriate to infer
a cause of action based solely on federal law?
Cort, 422 U.S. at 78 (citations omitted). However, under the Supreme Courts subsequent
decision in Alexander v. Sandoval, 532 U.S. 275 (2001), the second Cort factorlegislative
intent to create a private cause of actionis now dispositive: The judicial task is to interpret the
statute Congress has passed to determine whether it displays an intent to create not just a private
right but also a private remedy. Statutory intent on his latter point is determinative. Id. at 286
(citations omitted).
The Eighth Circuit has not yet addressed whether the implied ACAA cause of action
recognized in Tallarico survives after Sandoval. The Tenth and Eleventh Circuits, the only two
Courts of Appeals to address the issue after Sandoval, have both held a private cause of action
does not exist under the ACAA. Boswell v. Skywest Airlines, Inc., 316 F.3d 1263, 1270 (10th
Cir. 2004); Love v. Delta Air Lines, 310 F.3d 1347, 1359 (11th Cir. 2002).
Before discussing the ACAA, it is helpful to briefly discuss the facts and reasoning of
Sandoval. There, a five-Justice majority concluded that individuals do not have a private cause
of action to enforce agency regulations promulgated under 602 of Title VI of the Civil Rights
Act of 1964, 42 U.S.C. 2000d-1. Section 602 stated that [e]ach Federal department and
agency . . . is authorized and directed to effectuate the [anti-discrimination] provisions of [
601]. 42 U.S.C. 2000d-1. The Sandoval Court concluded that 602 did not contain rightscreating
language because it focuses on the agencies regulated rather than the individuals
protected. Sandoval, 532 U.S. at 288-89. Additionally, even if rights-creating language were
present, 602s elaborate restrictions on agency enforcement action, and the provision for
judicial review of such action, contradict a congressional intent to create privately enforceable
rights through 602 itself. Id. at 289-90.
The Tallarico court relied heavily on the ACAAs legislative history in determining that
Congress intended to create a private cause of action. Tallarico, 881 F.2d at 570. However, after
Sandoval a court must begin . . . [its] search for Congresss intent with the text and structure of
[the ACAA]. Sandoval, 532 U.S. at 288. The ACAA states that [i]n providing air
transportation, an air carrier . . . may not discriminate against an otherwise qualified individual
on the ground that the individual has a physical . . . impairment that substantially limits one or
more major life activities. 49 U.S.C. 41705(a)(1). This is not rights-creating language
because it focuses on regulating the airlines rather than protecting individuals. Sandoval, 532
U.S. at 289.
Moreover, the elaborate administrative enforcement mechanisms provided by the ACAA
contradict an intent to create a private cause of action. Briefly stated, the statute requires the
Department of Transportation to investigate complaints that an air carrier has discriminated
against a disabled individual. 49 U.S.C. 46101(a)(1); 49 U.S.C. 41705(c)(1). After notice
and an opportunity for a hearing . . . the [DOT] shall issue an order to compel compliance . . . .
49 U.S.C. 46101(a)(4). The DOT can impose civil penalties. 49 U.S.C. 46301(a)(1)(A),
(a)(5)(C). The DOT or the Department of Justice may file a civil action in a district court to
enforce the ACAA. 49 U.S.C. 46106-46107. Additionally, an individual with a substantial
interest in a DOT enforcement action can seek review of a DOT order in a United States Court
of Appeals. 49 U.S.C. 46110(a). The express creation of an elaborate remedial scheme in the
ACAA leads to the inescapable conclusion that Congress intended to preclude a private cause of
action in federal district court. See Boswell, 316 F.3d at 1270; Love, 310 F.3d at 1359; cf.
Freeman v. Fahey, 374 F.3d 663, 665-66 (8th Cir. 2004) (concluding that administrative
enforcement scheme in 42 U.S.C. 5309 suggests Congress did not intend to create private
cause of action to enforce statute). As in Sandoval, the text and structure of the ACAA are
dispositive, and it is unnecessary to consider the legislative history relied on in Tallarico.
Individuals do not have a private cause of action to enforce the ACAA. Count Six of the
Amended Complaint is dismissed.
4. Intentional Infliction of Emotional Distress
Count Eleven of the Amended Complaint asserts a claim against U.S. Airways for
intentional infliction of emotional distress. Under Minnesota law, a claim of intentional
infliction of emotional distress has four elements: (1) the conduct must be extreme and
outrageous; (2) the conduct must be intentional or reckless; (3) it must cause emotional distress;
and (4) the distress must be severe. Langeslag v. KYMN Inc., 664 N.W.2d 860, 864 (Minn.
2003). Regarding the first element, the conduct must be so atrocious that it passes the
boundaries of decency and is utterly intolerable to the civilized community. Hubbard v. United
Press Intl, Inc., 330 N.W.2d 428, 439 (Minn. 1983) (quotation omitted).
Both federal and Minnesota law prohibit transportation providers such as air carriers
from discriminating on the basis of race and national origin. See, e.g., 49 U.S.C. 40127(a)
(An air carrier . . . may not subject a person in air transportation to discrimination on the basis
of race, color, national origin, religion, sex, or ancestry.); Minn. Stat. 363A.11, subd. 1
(prohibiting discrimination in places of public accommodation). U.S. Airways contends that
Count Eleven fails to allege extreme and outrageous conduct. U.S. Airways relies heavily on the
unpublished decision in Alasady v. Northwest Airlines Corp., Civ. No. 02-3669, 2003 U.S. Dist.
LEXIS 3841 (D. Minn. March 3, 2003) (J. Kyle). There, plaintiffs, three Muslim men of Middle
Eastern descent, alleged Northwest Airlines discriminated against them because of their race
when Northwest refused to allow them to board a flight. Id. at *3-8. The Alasady court
dismissed plaintiffs claim of intentional infliction of emotional distress because plaintiffs
offered no case in which race or national origin discrimination of the scope and nature alleged
here has been deemed so atrocious that it passes beyond the boundaries of decency and is utterly
intolerable to the civilized community. Id. at *45.
The claims alleged in the Amended Complaint are more severe than the refusal to board a
flight as in Alasady. Unlike the Alsady facts, the Amended Complaint alleges: (1) MAC
officers, acting in concert with U.S. Airways, removed Plaintiffs from an airplane flight, arrested
Plaintiffs, handcuffed them, and held them in the jetway for forty-five minutes; (2) Plaintiffs
were forced to reboard the plane to identify their carry-on luggage in front of the other
passengers; (3) Plaintiffs were escorted through the airport in handcuffs; and (4) Plaintiffs were
detained for several hours before being questioned and released. 1st Am. Compl. 54-97. For
the purposes of U.S. Airwayss Motion to Dismiss, this Court must accept Plaintiffs allegations
that U.S. Airways harbored a discriminatory motive when it took these actions. These
allegations, if proven true, could amount to extreme and outrageous conduct. Therefore, U.S.
Airwayss Motion to Dismiss is denied regarding Count Eleven of the Amended Complaint.
5. Negligent Infliction of Emotional Distress
Count Twelve of the Amended Complaint asserts a claim against U.S. Airways for
negligent infliction of emotional distress. To establish a claim for negligent infliction of
emotional distress, a plaintiff must show that she was within a zone of danger of physical impact,
reasonably feared for her safety, and suffered severe emotional distress with accompanying
physical manifestations. Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395, 408
(Minn. 1998). [P]roof of physical injury is only a requirement for negligent infliction of
emotional distress, not for intentional infliction. Dornfeld v. Oberg, 503 N.W.2d 115, 118
(1993). The physical manifestations must arise after and because of emotional distress. Lickteig
v. Alderson, Ondov, Leonard & Sween, P.A., 556 N.W.2d 557, 560 (Minn. 1996).
U.S. Airways argues Plaintiffs have failed to allege that they have suffered physical
manifestations of emotional distress. The Amended Complaint alleges Plaintiffs suffer
humiliation, anxiety to fly, shame, despair, embarrassment, depression, mental pain, anguish,
injury to their reputations, and economic losses. 1st Am. Compl. 217. The Court finds that
these allegations fail to plead the necessary element that Plaintiffs have suffered a physical
manifestation of their emotional distress. See Leaon v. Washington County, 397 N.W.2d 867,
875 (Minn. 1986) (evidence insufficient where plaintiff testified he lost weight (later regained),
became depressed, and exhibited feelings of anger, fear, and bitterness). Therefore Count
Twelve of the Amended Complaint is dismissed.
Arguing against this result, Plaintiffs rely on affidavits that assert new factual allegations.
See Pls. Exs. [Docket No. 63] 1-4. Plaintiffs claim they felt physical pain when they were
handcuffed, and they allege they suffer from insomnia, nightmares, stress, and anxiety. Id. Faja
alleges the ongoing stress he suffers caused him to be admitted to the emergency room in July
2007 for treatment of a panic attack. Pls. Ex. 2 49. Shahin alleges he began seeing a
psychologist, also in July 2007. Pls. Ex. 1 50. However, these allegations were not made in
the Amended Complaint and cannot be considered. Moreover, even if considered, these
allegations do not sufficiently allege physical manifestations. Any physical injuries Plaintiffs
suffered as a result of being handcuffed were not the result of emotional distress, and Plaintiffs
other new allegations are insufficient. See Elstrom v. Indep. Sch. Dist. No. 270, 533 N.W.2d 51,
57 (Minn. Ct. App. 1995) (denying recovery where plaintiff suffered from insomnia, crying
spells, a fear of answering the door and telephone, and depression, which caused her to seek
Plaintiffs argue in the alternative that this Court should follow the Minnesota Court of
Appeals decision in Bohdan v. Alltool Manufacturing. Co., 411 N.W.2d 902, 907 (Minn. Ct.
App. 1987), which states that [a]n exception to the zone of danger rule is that a plaintiff may
recover damages for mental anguish or suffering for a direct invasion of his rights, such as
defamation, malicious prosecution, or other willful, wanton or malicious conduct. However,
Judge Magnuson persuasively demonstrated in Meyer v. Tenvoorde Motor Co., 714 F. Supp.
991, 995-96 (D. Minn. 1989), that the reasoning in Bohdan is unsound and contradicts wellsettled
Minnesota Supreme Court precedent. Count Twelve of the Amended Complaint is
C. U.S. Airwayss Motion for Summary Judgment
1. U.S. Airwayss Arguments Under 49 U.S.C. 44902; Plaintiffs Rule 56(f)
U.S. Airways argues it is entitled to summary judgment because it acted within the
discretion provided by the Federal Aviation Act, 49 U.S.C. 44902, to airlines regarding
security-related boarding decisions. The statute provides that an air carrier . . . may refuse to
transport a passenger or property the carrier decides is, or might be, inimical to safety. 49
U.S.C. 44902(b). Courts interpreting this provision have followed the Second Circuits 1975
decision in Williams v. Trans World Airlines, Inc., 509 F.2d 942, 948 (2d Cir. 1975), which held
that under the predecessor to 49 U.S.C. 44902(b), an airline may be civilly liable for refusing
to board a passenger because of safety concerns only if the decision is arbitrary and capricious.
See also Cordero v. CIA Mexicana De Aviacion, S.A., 681 F.2d 669 (9th Cir. 1982). The
Williams court specified that:
The test . . . rests upon the facts and circumstances of the case as known to the airline at
the time it formed its opinion and made its decision and whether or not the opinion and
decision were rational and reasonable and not capricious or arbitrary in light of those
facts and circumstances. They are not to be tested by other facts later disclosed by
Williams, 509 F.2d at 948. This standard is more lenient than a negligence standard. The air
carriers decision is protected if exercised in good faith and for a rational reason. Dasrath v.
Contl Airlines, Inc., 467 F. Supp. 2d 431, 444 (D.N.J. 2006). However, a refusal to board a
passenger that is motivated by a passengers race is inherently arbitrary and capricious. Bayaa v.
United Airlines, Inc., 249 F. Supp. 2d 1198, 1205 (C.D. Cal. 2002) (noting that airlines
discretion under 44902 does not grant it a license to discriminate).
Relying on the declarations of the crew of Flight 300 and other U.S. Airways employees
involved in the November 20, 2006, incident, U.S. Airways argues that the captains decision to
remove Plaintiffs from Flight 300 was not arbitrary and capricious. The captain relied on: (1) a
passengers note alleging that Plaintiffs prayed loudly at the gate and made anti-U.S. comments,
(2) Plaintiffs dispersed seating arrangement, (3) a flight attendants observations that two of the
Plaintiffs had asked for seatbelt extensions but only one seemed to need one, (4) a flight
attendants observation that Shahin moved from first class to coach to talk to Sadeddin during
the delay, and (5) information from a U.S. Airways employee that Plaintiffs passenger name
records (PNRs) indicated that three of the Plaintiffs were traveling on one-way tickets. U.S.
Airwayss Mem. in Supp. of Mot. for Summ. J. at 9-10; U.S. Airwayss Exs. 7-15. U.S. Airways
argues that its employees declarations conclusively show that the captains decision to remove
Plaintiffs from Flight 300 was not arbitrary and capricious, and that the decision was not
motivated by Plaintiffs race.
U.S. Airways has cited cases where courts have granted summary judgment dismissing
claims that an airlines refusal to board passenger was motivated by race. See, e.g., Williams,
509 F.2d at 945 n.5, 948-49 (concluding that airline properly relied on FBIs assertion that
plaintiff should be considered an armed fugitive, even though subsequent search revealed no
weapons); Al-Qudhaieen v. Am. W. Airlines, Inc., 267 F. Supp. 2d 841, 843-44, 848 (S.D. Ohio
2003) (captains decision based on reports that plaintiffs failed to follow crew member
instructions, changed seats without permission, entered first class without permission, pulled
cockpit door handle, and asked whether same aircraft would be used for connecting flight to
Washington, D.C.); Sedigh v. Delta Airlines, Inc., 850 F. Supp. 197 (E.D.N.Y. 1994) (no
liability for captains decision to remove plaintiff based on reports that plaintiff appeared
nervous, smoked in lavatory, and stated kill the Jews, even though it was subsequently
determined plaintiff did not make the statement).
In response, Plaintiffs have filed a Rule 56(f) motion and affidavit explaining the need for
discovery to oppose the evidentiary material submitted by U.S. Airways. See Goetz Aff. The
Eighth Circuit has noted that Rule 56 does not require trial courts to allow parties to conduct
discovery before entering summary judgment. Humphreys v. Roche Biomed. Labs., Inc., 990
F.2d 1078, 1081 (8th Cir. 1993). Instead, a party invoking Rule 56(f)s protection must
affirmatively demonstrat[e] why he cannot respond to a movants affidavits . . . and how
postponement of a ruling on the motion will enable him, by discovery or other means, to rebut
the movants showing of the absence of a genuine issue of fact. Willmar Poultry Co. v.
Morton-Norwich Prods., Inc., 520 F.2d 289, 297 (8th Cir. 1975).
Plaintiffs have submitted an affidavit asserting a need to depose the crew of Flight 300,
the ticketing agent who refused to rebook Plaintiffs, and other U.S. Airways personnel involved
in Plaintiffs removal from Flight 300, the subsequent arrest, and U.S. Airwayss refusal to
rebook Plaintiffs. Plaintiffs also state they will seek discovery of any prior incidents of U.S.
Airways denying air travel to a passenger for reasons such as the passenger praying at the gate or
requesting a seatbelt extension. Plaintiffs argue such discovery would show that: (1) Plaintiffs
were not engaged in activities that could be construed as a safety threat, (2) U.S. Airways and
MAC acted in concert to detain and arrest Plaintiffs, and (3) U.S. Airways discriminated against
Plaintiffs because of their race and religion.
The Court grants Plaintiffs Rule 56(f) Motion. Assuming arguendo that U.S. Airwayss
decision to remove Plaintiffs from Flight 300 was not arbitrary and capricious, and thus shielded
by 49 U.S.C. 44902, U.S. Airways may still be liable under 42 U.S.C. 1983 for claims arising
out of Plaintiffs arrest and detention. Plaintiffs arrest related claims are not covered by 49
U.S.C. 44902, which applies only to an airlines refusal to board a passenger. As discussed
above, Plaintiffs 1983 claims survive U.S. Airwayss Motion to Dismiss. In pursuing their
1983 claims, Plaintiffs are likely to depose the crew of Flight 300 and other U.S. Airways
personnel identified in Plaintiffs Rule 56(f) affidavit. Thus, U.S. Airways is required to
participate in discovery regardless of whether it acted within its discretion under 49 U.S.C.
44902 when it removed Plaintiffs from Flight 300. Moreover, even if Plaintiffs had not named
U.S. Airways as MACs co-defendant on the 1983 claims, Plaintiffs would still likely depose
the crew of Flight 300 and other U.S. Airways employees to determine the information that
MAC relied on to detain and arrest Plaintiffs. Given that U.S. Airwayss employees will be
deposed, the merits of U.S. Airwayss summary judgment motion, to the extent it relies on 49
U.S.C. 44902, are best addressed only after the facts are more fully developed through
discovery. Although U.S. Airways has cited a number of authorities granting summary
judgment to an airline based on 49 U.S.C. 44902, it appears that significant discovery occurred
in each case.
2. Preemption
U.S. Airways argues Plaintiffs state law claims are preempted by the Airline
Deregulation Act of 1978 (ADA), which provides that 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). The ADAs preemption provision prevents
state regulation from undermining federal deregulation of competition between the airlines.
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378-79 (1992). In the instant case, U.S.
Airways argues that Plaintiffs state law tort claims of false arrest, and intentional infliction of
emotional distress, defamation, negligence, failure to train, conspiracy to discriminate, and
violations of Minn. Stat. 363A.11, subd. 1, and Minn. Stat. 363A.17, are all preempted to the
extent they arise out of U.S. Airwayss decision to deny transportation to Plaintiffs.
The Supreme Court has interpreted the ADAs preemption provision in two cases. In
Morales, a majority of five Justices held that state consumer protection guidelines regarding
airline fare advertising were preempted by the ADA. 504 U.S. at 391. The Court reasoned that
the words relating to in the ADAs preemption provision express a broad pre-emptive
purpose. Id. at 383. Therefore, [s]tate enforcement actions having a connection with or
reference to airline rates, routes, or services are preempted . . . . Id. at 384. The Court held
that the consumer protection guidelines at issue related to airline fares because the guidelines
explicitly regulated airline fare advertising. Id. at 388. The Court further noted that beyond the
guidelines express reference to fares, it is clear as an economic matter that state restrictions on
fare advertising have the forbidden significant effect on fares. Id.
The Supreme Court revisited the ADAs preemption provision in American Airlines, Inc.
v. Wolens, 513 U.S. 219 (1995). Plaintiffs sued for breach of contract and violations of the
Illinois Consumer Fraud Act based on American Airliness retroactive modification of its
frequent flyer program. Wolens, 513 U.S. at 224-25. The Court stated that the plaintiffs claims
clearly related to air carrier rates, such as mileage credits for free tickets and upgrades, and
air carrier services, such as access to flights and class-of-service upgrades. Id. at 226. The
Court held that Plaintiffs consumer fraud act claims were similar to those in Morales and thus
were preempted. Id. at 227-28. However, the breach of contract claims were not preempted
because enforcing the airlines private contracts did not amount to a states enforcement of a
law, regulation, standard, or other provision having the force and effect of law within the
meaning of the ADAs preemption clause. Id. at 228-29.
In the instant case, resolution of U.S. Airwayss preemption argument turns on the
ADAs definition of service. The Supreme Court has stated in dicta that access to flights and
class-of-service upgrades qualify as an air carrier service. Id. at 226. The Courts of Appeals
are divided on the issue. The Ninth and Third Circuits define service as the prices, schedules,
origins and destinations of the point-to-point transportation of passengers, cargo, or mail, but
not the provision of in-flight beverages, personal assistance to passengers, the handling of
luggage, and similar amenities. Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1261 (9th
Cir. 1998) (en banc); Taj Majal Travel, Inc. v. Delta Airlines Inc., 164 F.3d 186, 194 (3d Cir.
1998) (adopting the Ninth Circuits approach). The Ninth Circuit has held that the ADA does
not preempt state law claims premised on a discriminatory denial of boarding. See Newman v.
American Airlines, Inc., 176 F.3d 1128, 1131 (9th Cir. 1999) (As used in a public utility sense,
the term service does not refer to alleged discrimination to passengers due to their
The Fourth, Fifth, Seventh, and Eleventh Circuits define an airlines services more
broadly to include boarding procedures. See Branche v. Airtran Airways, Inc., 342 F.3d 1248,
1257-59 (11th Cir. 2003) (stating that services includes the physical transportation of
passengers . . . and the incidents of that transportation over which air carriers compete); Smith
v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998) (Undoubtedly, boarding procedures are a
service rendered by an airline.); Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995)
(en banc) (defining service as contractual features of air transportation, including ticketing,
boarding procedures, provision of food and drink, and baggage handling, in addition to the
transportation itself); Travel All Over The World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d
1423, 1433 (7th Cir. 1996) (adopting definition set forth in Hodges).
The Eighth Circuit in Botz v. Omni Air International, 286 F.3d 488, 495 (8th Cir. 2002)
noted the circuit split regarding the definition of service, but the Botz court did not settle on a
definition. Botz, a flight attendant, was terminated for refusing a flight assignment she believed
violated federal safety regulations. Id. at 490. The Eighth Circuit held that Botzs claims under
the Minnesota whistleblower statute, Minn. Stat. 181.931-.935, were preempted by the ADA
because enforcement of the statute would effectively authoriz[e] a flight attendant to refuse
assignments and protect[] her when she does. Botz, 286 F.3d at 495. Such statutory protections
have a forbidden connection with an air carriers service under any reasonable interpretation of
Congresss use of the word service. Id., citing Charas, 160 F.3d at 1265-66, and Hodges, 44
F.3d at 336. Although the Botz court did not decide the boundaries of the term service, it
noted that it is apparent from the preemption provisions plain language that it has a broad
preemptive effect on state law claims involving air-carrier prices, routes, or services. Id. at 494.
In Alasady, Judge Kyle held that three Muslim plaintiffs state law claims arising out of
Northwests refusal to board them were not preempted by the ADA. 2003 U.S. Dist. LEXIS
3841 at *32. The Alasady court adopted the Fifth Circuits broad definition of services of an air
carrier and held that boarding procedures are such a service. Id. at *24. However, the court
held that preemption of state laws that ensure equal access to public accommodations would do
nothing to further the purposes of the ADAnamely the fostering of maximum reliance on
competitive market forces. Id. at *31-32. The court reasoned that refraining from the
violation of individuals civil rights is not a theory of competition. Id.
U.S. Airways urges this Court to reject the reasoning in Alasady and hold that Plaintiffs
state law claims are preempted by the ADA. However, at least two district courts have held that
discovery is necessary before resolving preemption arguments in cases where plaintiffs allege a
discriminatory denial of boarding by an airline. The court in Woodson v. U.S. Airways, Inc. 67
F. Supp. 2d 554 (M.D.N.C. 1999), noted that:
[R]esolving the preemption issue at this stage will not conclude the case because
Plaintiffs [federal] claims will proceed at least to the summary judgment stage.
Accordingly, because this issue presents an important and difficult question of first
impression within this circuit and which involves an issue which may not be appropriate
for resolution at the pleading stage, the court will deny Defendants motion to dismiss
Plaintiffs claims based on state law. The court will reconsider this issue, if necessary at
the summary judgment stage.
Id. at 557; see also Chowdhury v. Nw. Airlines Corp., 238 F. Supp. 2d 1153, 1157 (N.D. Cal.
2002). The same reasoning applies in this case. Given the divergent approaches courts take on
the preemption issue, and the fact that Plaintiffs state law claims are unlikely to broaden the
scope of discovery, the Court will resolve the preemption issue based on facts adduced through
discovery, rather than based on the untested allegations of the Amended Complaint and the
declarations submitted by U.S. Airways. Therefore, U.S. Airwayss Motion for Summary
Judgment is denied without prejudice and Plaintiffs Rule 56(f) Motion is granted.
D. Plaintiffs Motion to Strike
In a letter of October 17, 2007, U.S. Airways notified the Court of the Ninth Circuits
decision in Montalvo v. Spirit Airlines, Inc., No. 05-15640, 2007 U.S. App. LEXIS 23252 (9th
Cir. Oct. 4, 2007), dismissing claims against defendant airlines for negligent failure to warn
passengers about the risk of deep vein thrombosis during flight. Id. at *20. The Ninth Circuit
held these claims were impliedly preempted by the Federal Aviation Act because federal law
occupies the entire field of aviation safety. Congress intent to displace state law is implicit in
the pervasiveness of the federal regulations, the dominance of the federal interest in this area,
and the legislative goal of establishing a single, uniform system of control over air safety. Id. at
*19. In its October 17 letter, U.S. Airways asserted that the implied preemption issue is
distinct from, and in addition to, our argument that the Airline Deregulation Act specifically
preempts Plaintiffs state law claims. U.S. Airwayss Oct. 17, 2007 Letter.
By letter dated October 22, 2007 [Docket No. 92], Plaintiffs argued that Montalvo is
distinguishable from the instant case. In a letter dated November 13, 2007, U.S. Airways
responded that Montalvo supports the argument that Plaintiffs state law claims are preempted
based on a theory of implied field preemption of aviation safety issues. U.S. Airwayss Nov.
13, 2007, Letter. In their Motion to Strike, Plaintiffs contend that U.S. Airwayss November 13
letter is an unsolicited memorandum of law prohibited by Local Rule 7.1(f).
The implied preemption argument was available to U.S. Airways when it filed its Motion
for Summary Judgment. See, e.g., Abdullah v. Am. Airlines, 181 F.3d 363, 376 (3d Cir. 1999)
(Because we find Congresss intent to regulate interstate and international air safety to be
unambiguous, we hold that state and territorial standards of care in aviation safety are federally
preempted.). However, in its memoranda of law, U.S. Airways did not clearly assert an implied
field preemption argument. See U.S. Airwayss Mem. in Supp. of Mot. for Summ. J. at 24-32;
U.S. Airwayss Reply Mem. in Supp. of Mot. for Summ. J. at 11-14. U.S. Airways cannot
remedy its failure to brief the implied field preemption issue by submitting letters that amount to
unsolicited supplemental memoranda of law. Plaintiffs Motion to Strike U.S. Airwayss
November 13, 2007, Letter is granted.
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
1. Defendant U.S. Airwayss Motion to Dismiss [Docket No. 13] is DENIED IN
2. Counts Six and Twelve of the Amended Complaint [Docket No. 5] are
3. Defendant U.S. Airwayss Motion for Summary Judgment [Docket No. 9] is
4. Defendant Metropolitan Airport Commissions Motion to Dismiss [Docket No. 6]
5. Count Five of the Amended Complaint is DISMISSED to the extent Plaintiffs are
asserting a claim against MAC;
6. Plaintiffs Rule 56(f) Motion [Docket No. 54] is GRANTED; and
7. Plaintiffs Motion to Strike [Docket No. 96] is GRANTED regarding U.S.
Airwayss November 13, 2007, Letter [Docket No. 94].
s/Ann D. Montgomery
Dated: November 20, 2007.


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