Nektalov v. Kuwait Airways Corp., 15-CV-0033 (JO)

DAVID NEKTALOV, et al., Plaintiffs, v. KUWAIT AIRWAYS CORPORATION, Defendant.

15-CV-0033 (JO)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 30, 2016

MEMORANDUM AND ORDER

James Orenstein, Magistrate Judge:

Plaintiffs David and Iris Eliazarov Nektalov have asserted a variety of discrimination and tort claims against defendant Kuwait Airways Corporation ("KAC") for refusing to honor Iris Nektalov's ticket for passage on a flight from John F. Kennedy International Airport ("JFK") to London because she held an Israeli passport. See Docket Entry ("DE") 11 (Amended Complaint) ("Complaint"). Each side has moved for dispositive relief: the Nektalovs seek partial summary judgment on the question of liability, see DE 36, Fed. R. Civ. P. 56; and KAC seeks the dismissal of all of the plaintiffs' causes of action (save for a discrimination claim under state and municipal law) for failure to state a claim, see DE 30, Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, I deny the plaintiffs' motion for partial summary judgment; I dismiss without prejudice their claim under Title 42, United States Code, Section 1981; and I dismiss with prejudice all of their remaining claims except their cause of action for discrimination under state and municipal law.

I. Background

Iris Nektalov is a United States permanent resident who was born in Israel and has an Israeli passport. DE 40 (Nektalovs' Rule 56.1 statement) ("N56") ¶¶ 3-5; DE 46 (KAC's Rule 56.1 statement) ("K56") ¶ 1; DE 3-1 (David Nektalov Aff.) ¶ 3. Her husband David is a United States citizen. N56 ¶ 1; David Nektalov Aff. ¶ 2. On October 30, 2014, the Nektalovs purchased round-trip airline tickets from KAC for travel between JFK and Heathrow Airport in London, England. N56 ¶ 7; David Nektalov Aff. ¶ 5. On November 1, 2014, when the Nektalovs arrived at the JFK boarding gate for their flight to London, KAC permitted David Nektalov to board the airplane but refused entry to Iris Nektalov "because she has an Israeli passport[.]" N56 ¶¶ 11-13; David Nektalov Aff. ¶ 7; DE 32 (KAC memorandum supporting dismissal motion) ("KM") at 1; Complaint ¶¶ 15-16. As a result of KAC's refusal to board her, Iris Nektalov had to buy a ticket to London from another airline. DE 3-1 (David Nektalov Aff.) ¶ 7; DE 3-2 (Iris Nektalov Aff.) ¶ 3.

KAC explained its actions by noting that the law of Kuwait, to which it is subject, prohibits the airline from conducting business with Israeli citizens. See DE 37 (Nektalov memorandum supporting summary judgment motion) ("NM") at 2 (citing Kuwaiti Law No. 21 of 1964 Concerning the Unified Law for the Boycott of Israel). On December 3, 2014, KAC refunded $2,478.96 to the Nektalovs, an amount that not only wholly reimbursed them for the price of Iris Nektalov's ticket, but also constituted a full refund for the tickets purchased for David Nektalov and an additional family member with whom they were travelling. K56 ¶ 13.

The next day, on December 4, 2014, the Nektalovs filed their initial complaint in New York Supreme Court, Queens County. DE 1 at 6-10. KAC then timely removed the case to this court on January 6, 2015. DE 1 at 1-3 (removal notice).¹ Following the removal, the Nektalovs filed their amended complaint (the operative pleading for the instant motions) on February 26, 2015. DE 11. The amended pleading asserted the following nine causes of action:

• unlawful discrimination in violation of Title 42, United States Code, Section 1981 ("Section 1981"), id. ¶¶ 20-27;

• unlawful discrimination by a beneficiary of United States government aid, in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI"), id. ¶¶ 28-31;• intentional infliction of emotional distress ("IIED") in violation of New York law, id. ¶¶ 32-39;

• negligent infliction of emotional distress ("NIED") in violation of New York law, id. ¶¶ 40-44;

• negligence in violation of New York law, id. ¶¶ 45-54;

• failure to train, supervise and discipline KAC employees, in violation of New York law, id. ¶¶ 55-61;

• unlawful discrimination in violation of New York state and municipal law, id. ¶¶ 62-68 (citing New York State Human Rights Law, N.Y. Exec. Law. §§ 296-97 ("NYSHRL"); New York City Human Rights Law, N.Y.C. Admin. Code, §§ 8-107(4), (18) & 8-130 ("NYCHRL"));²

• unlawful discrimination in violation of the United Nations Charter, id. ¶¶ 69-73 (citing U.N. Charter art. 1, para. 3); and

• violation of federal anti-boycott provisions of the Export Administration Regulations, 15 C.F.R. § 760.2(a)(1), id. ¶¶ 74-79.

On July 30, 2015, the parties consented to refer the case to a magistrate judge for all purposes, including the entry of judgment, and the case was thereafter reassigned to me. DE 22; DE 23; 28 U.S.C. § 636(c). The parties filed KAC's fully briefed motion to dismiss on December 3, 2015; they filed the Nektalovs' fully briefed motion for summary judgment on December 4, 2015. DE 30; DE 36. I heard oral argument on both motions on January 14, 2016 and reserved decision. DE 51 (minute entry); DE 53 (transcript) ("Tr.").

II. The Plaintiffs' Motion for Summary Judgment

"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). In determining whether to grantsummary judgment, a court is confined to issue-finding, not issue-resolution. Rasmussen v. Sigma Corp. of Am., 27 F. Supp. 2d 388, 391 (E.D.N.Y. 1998) (citing B.F. Goodrich v. Betkoski, 99 F.3d 505, 522 (2d Cir. 1996)). The court does not "weigh the evidence and resolve ... factual issues" but rather "determine[s] as a threshold matter whether there are genuine unresolved issues of material fact to be tried." Owens v. New York City Hous. Auth., 934 F.2d 405, 408 (2d Cir. 1991) (quoting Gibson v. Am. Broad. Cos., 892 F.2d 1128, 1132 (2d Cir. 1989)); see also Fed. R. Civ. P. 56(c). A fact is material if it "might affect the outcome of the suit under the governing law." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A genuine issue is presented if "the evidence is such that a reasonable jury could return a verdict for the non[-]moving party." Id. (same). On a motion for summary judgment, "[t]he evidence of the non-movant is to be believed ... [and] all permissible inferences are to be drawn in [her] favor[.]" Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012) (internal citations and quotation marks omitted).

"[T]he party moving for summary judgment has the burden to show that he is entitled to judgment under established principles; and if he does not discharge that burden then he is not entitled to judgment. No defense to an insufficient showing is required." Adickes v. S. H. Kress & Co., 398 U.S. 144, 161 (1970) (citing 6 James Moore, Federal Practice § 56.22(2) 2824-2825 (2d ed. 1966)) (internal quotation marks omitted).

The essential facts of this case are not in dispute: KAC acknowledges that it denied passage to Iris Nektalov "because she was traveling under an Israeli passport." KM at 1 (citing Complaint ¶¶ 1, 14, 16). The question thus reduces to whether that admission entitles the Nektalovs to prevail on their claims. As explained below, it does not.

As a threshold matter, at no point do the Nektalovs offer any analysis of the specific causes of action they assert against KAC or make any attempt to demonstrate that the undisputed facts of the case satisfy the essential elements of any such claim. Instead, they simply offer the conclusory assertion that KAC has violated the law applicable to each claim. That alone suffices to deny their motion for summary judgment. Moreover, none of the specific legal (or, in some instances, policy-based) arguments they do offer suffices to warrant any relief as a matter of law.

The Nektalovs first contend that federal judicial decisions in cases arising out of the Nazi government's treatment of Jews during the Holocaust set a precedent that compels a judgment in their favor for having had to make alternate travel arrangements. Specifically, they argue that in those cases, "Federal Courts held that a diplomatic solution must be accomplished by the Federal Executive Branch when a foreign entity deliberately seeks to break our ... [l]aws here in New York" and that, in the absence of such a diplomatic solution, "the Federal Judiciary must act." NM at 4, 6 (citing In re Nazi Era Cases against German Defendants Litig. ("Nazi Era Cases"), 198 F.R.D. 429 (D.N.J. 2000); Nazi Era Cases, 213 F. Supp. 2d 439 (D.N.J. 2002); Nazi Era Cases, 236 F.R.D. 231 (D.N.J. 2006); Nazi Era Cases, 240 F. App'x 980 (3d Cir. July 20, 2007), cert. denied, 552 U.S. 1098 (2008)). The Nazi Era Cases concerned efforts to remediate a German bank's misappropriation, as an agent of the Nazi government, of a Jewish family's fortune. Analogizing the instant case to that litigation, the Nektalovs assert that the Nazi Era Cases compel the following relief:

In the instant case, this Court must direct the United States Department of Justice Representative to have our Federal Executive Branch send a Special Envoy to Kuwait to inform the Government of Kuwait that they cannot enforce Kuwait Law No. 21 of 1964 (concerning the Unified Law for the Boycott of Israel) at Kennedy Airport in Queens County, New York, any longer. The U.S. Special Envoy must inform Kuwait that the U.S. Government will withdraw any further assistance to Kuwait if this is not done.

This Court must make it clear to the United States Department of Justice representative and KAC that in the absence of a diplomatic solution, this Court mustgrant partial Summary Judgment to the plaintiffs, and order discovery and a Jury Trial so

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