Shebley v. United Cont'l Holdings, Inc.

357 F.Supp.3d 684

Mohamad SHEBLEY and Eaman Shebley, Plaintiffs,

v.UNITED CONTINENTAL HOLDINGS, INC., et al., Defendants.

No. 17-cv-01906

United States District Court, N.D. Illinois, Eastern Division.

Signed January 16, 2019

Phillip J. Robertson, CAIR, Chicago, IL, for Plaintiffs.

Austin William Bartlett, BartlettChen LLC, Christopher Jason Raistrick, Paula LoMonaco Wegman, Sarah Kirberg Lickus, Michael Gerard McQuillen, Adler Murphy & McQuillen LLP, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Andrea R. Wood, United States District Judge

Plaintiffs Mohamad and Eaman Shebley ("Shebleys") were passengers on a flight operated by Defendants United Airlines, Inc., United Continental Holdings, Inc., and SkyWest Airlines, Inc.¹ The Shebleys allege that Defendants discriminated against them on the basis of their perceived religion, race, color, and national origin by wrongfully removing them from their flight, in violation of the Airline Deregulation Act ("ADA"), 49 U.S.C. § 40101, et seq. , 42 U.S.C. § 1981, and Title VI of the Civil Rights Act of 1964 ("Title VI"), 42 U.S.C. § 2000d et seq. Before the Court is Defendants' motion to dismiss the Shebleys' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Dkt. No. 22.) Also before the Court is Plaintiffs' motion to amend their Complaint, conduct limited fact discovery, and strike portions of Defendants' reply brief. (Dkt. No. 33.) For the reasons explained below, both motions are granted in part and denied in part.

BACKGROUND

For the purposes of Defendants' motion to dismiss, the Court accepts as true the well-pleaded facts in the Complaint and views them in the light most favorable to the Shebleys. See Firestone Fin. Corp. v. Meyer , 796 F.3d 822, 826–27 (7th Cir. 2015).

According to the Complaint, on March 20, 2016, the Shebleys and their three children boarded United Airlines Flight 5811 at O'Hare International Airport in Chicago. (Compl. ¶ 7, Dkt. No. 1.) The family planned to vacation in Washington, D.C., for spring break. (Id. ) The Shebleys' two older children sat together in row 12, and the Shebleys sat with their youngest child in row 16. (Id. ¶¶ 9–10.) Eaman placed the youngest child in a "booster" seat atop the airplane seat. (Id. ¶ 9.) When flight attendant Eroll Agacaolli walked down the aisle to check that the passengers were secured with seatbelts, Mohamad politely asked for over-the-shoulder straps for the Shebleys' youngest child, as portrayed on the United website. (Id. ¶ 12.) Agacaolli replied that the airline did not provide such straps. (Id. ¶ 13.) Mohamad offered to show Agacaolli the picture on the United website on his phone. (Id. ¶ 14.)

While Agacaolli was looking at Mohamad's phone, another flight attendant, Alicia Heyes, approached Eaman and informed her that her child could not be seated in the booster. (Id. ¶ 15.) Eaman replied, "Okay," and asked whether the airline would provide over-the-shoulder straps instead. (Id. ¶ 16.) Heyes repeated that the child could not be seated in the booster. (Id. ¶ 17.) Eaman said that she was not aware that she could not use the booster, especially because the Shebleys had been permitted to bring the booster on the plane by other United staff members. (Id. ¶ 18.) Eaman asked, "is it safer for my daughter to be without a booster?" (Id. ¶ 19.) Heyes again did not answer the question, instead repeating a third time that the child could not be seated in the booster. (Id. ¶ 19.)

At this point, Agacaolli told the Shebleys to deboard the plane. (Id. ¶ 20.) Mohamad asked why, but Agacaolli simply repeated his request that they deboard. (Id. ¶¶ 21–22.) Eaman removed the booster from her daughter's seat, but Agacaolli and Heyes did not notice, as they had already started walking away from the Shebleys towards the cockpit. (Id. ¶ 23.) Two passengers approached the Shebleys and stated that they had witnessed the Shebleys follow the flight attendants' instructions and sit with fastened seatbelts the entire time. (Id. ¶ 25.) The Shebleys' children began to feel anxious and cry. (Id. ¶ 26.)

Later, Heyes returned and saw the Shebleys seated with their seat belts fastened and the booster removed. (Id. ¶ 27.) Heyes said nothing, then walked back to the cockpit. (Id. ) Thirty minutes later, flight attendant Jen Moore approached Eaman and asked what was going on. (Id. ¶ 28.) Eaman explained that the other flight attendants had left about an hour ago after instructing them to deboard and without answering any of their questions.

(Id. ¶ 28.) Moore then requested that Eaman deboard the plane. (Id. ¶ 29.) Mohamad told Moore that he was Eaman's husband and that he wanted to know why she was being asked to leave. (Id. ¶ 30.) Moore replied that a supervisor would speak to them off the plane and again requested that the Shebleys deboard. (Id. ¶ 31.) Mohamad again asked why but received no response. (Id. ¶ 32.)

A male flight attendant then approached and told the Shebleys to leave the plane. (Id. ¶ 33.) Mohamad asked him why, and the male flight attendant answered that the Shebleys had not followed instructions. (Id. ¶¶ 34–35.) Another passenger told the male flight attendant that the Shebleys had already removed the booster as requested and that the other flight attendants had left an hour before and not returned since then. (Id. ¶ 36.) The male flight attendant again said that the Shebleys had not followed instructions. (Id. ¶ 37.) And Eaman and the other passenger again replied that the Shebleys had followed instructions. (Id. ¶ 38.) The male flight attendant said that if the Shebleys left the plane, they could discuss it further. (Id. ¶ 39.) He then motioned for Captain Mathew Wagner to approach the Shebleys and speak to them. (Id. ¶ 40.)

Captain Wagner informed the Shebleys that he had been given full authority over the safety of the plane and that the flight attendants had notified him that the Shebleys had not followed instructions regarding their child. (Id. ¶ 41.) The Shebleys replied that they had followed instructions. (Id. ¶ 42.) Another passenger also told Captain Wagner that the Shebleys had followed instructions. (Id. ¶ 43.) Mohamad explained that he asked about over-the-shoulder straps for their child, but the flight attendants did not answer him and left. (Id. ¶ 44.) Mohamad reiterated that they had followed instructions. (Id. ) Captain Wagner then told the Shebleys to deboard the plane. (Id. ¶ 45.) When Mohamad asked why, Captain Wagner responded that it was his decision and he would give them more details on the jetway. (Id. ¶ 47.) Eaman asked whether the decision was based on discrimination. (Id. ¶ 48.) Captain Wagner responded that it was a flight safety issue. (Id. ¶ 48.)

The Shebleys left the plane. (Id. ¶ 51.) On the jetway, Captain Wagner told them that he would have frightened the other passengers if he had given them an explanation on board. (Id. ¶ 52.) He then told a story about how a passenger had disobeyed instructions on a U.S. Airways plane that crashed in the Hudson River, before concluding that he needed the Shebleys to follow instructions no matter what. (Id. ¶ 52.) Mohamad insisted that they had followed instructions and that Captain Wagner's explanation was irrelevant. (Id. ¶ 53.) Captain Wagner apologized for the inconvenience and said nothing further. (Id. ¶ 54.) Ultimately, the Shebleys gathered their children and belongings and boarded a different flight to Washington D.C. (Id. ¶ 55.)

Based on these allegations, the Shebleys assert that Defendants discriminated against them by removing them from their flight. With their present motion, Defendants seek to dismiss the Complaint in its entirety.

DISCUSSION

To survive a Rule 12(b)(6) motion, "a complaint must contain sufficient factual allegations, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). This pleading standard does not necessarily require a complaint to contain detailed factual allegations. Twombly , 550 U.S. at 555, 127 S.Ct. 1955. Rather, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Adams v. City of Indianapolis , 742 F.3d 720, 728 (7th Cir. 2014) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ).

I. Section 40127(a) of the ADA

In Count I of their Complaint, the Shebleys assert a claim under § 40127(a) of the ADA, which prohibits any "air carrier" from "subject[ing] a person in air transportation to discrimination on the basis of race, color, national origin, sex, or ancestry." Defendants argue that this claim should be dismissed because there is no private right of action under § 40127(a).²

The Seventh Circuit has not addressed whether § 40127(a) authorizes a private right of action. Based on this Court's review, most federal courts confronted with the issue have concluded that no private right of action exists. See, e.g. , Mali v. British Airways , No. 17 Civ. 685-KPF, 2018 WL 3329858, at *4 n.4 (S.D.N.Y. July 6, 2018) ; James v. Am. Airlines , 247 F.Supp.3d 297, 307 (E.D.N.Y. 2017) ; Arif Naqvi. v. Turkish Airlines, Inc. , 80 F.Supp.3d 234, 239 n.7 (D.D.C. 2015) ; Mercer v. Sw. Airlines Co. , No. 13-cv-05057-MEJ, 2014 WL 4681788, at *6 (N.D. Cal. Sept. 19, 2014) ; Al-Watan v. Am. Airlines , 570 F.Supp.2d 925, 931 n.5 (E.D. Mich. 2008) (finding no private right of action but also recognizing that the ADA may be a "vehicle for general federal statutes which prohibit discrimination," such as § 1981 ); Elnajjar v. Nw. Airlines, Inc. , No. Civ. A. H-04-680, 2005 WL 1949545, at *6 (S.D. Tex. Aug. 15, 2005).

Nonetheless, some district courts at least have hinted otherwise. For example, in Qayyum v. U.S. Airways, Inc. , No. 3:08-0996, 2008 WL 4879401, at...