The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION DISMISS
Defendants Delta Air Lines, Inc. ("Delta") and Mesaba Aviation, Inc.*fn1 move to dismiss Plaintiff Bernice Summers's Complaint on grounds of federal preemption and insufficient 19 pleading. The Court heard oral argument on March 24, 2011. Having considered the submissions 20 and arguments of the parties, the Court grants in part and denies in part Defendants' motion to dismiss.
On June 13, 2010, Plaintiff Bernice Summers flew to San Jose, California, to visit her daughter on Delta Flight 2163, allegedly operated by Mesaba.*fn2 Compl. at 1, ¶¶ 13-14. Plaintiff is an 84-year-old woman who suffers from various physical limitations and therefore requires special 2 assistance and the use of a wheelchair while entering and exiting an airplane. Compl. at 1. Prior to 3 her trip to San Jose, Plaintiff arranged, with the help of her daughter, to have special assistance 4 from Delta, including the use of a wheelchair to enter and exit the plane. Compl. ¶ 13.
On June 13, 2010, when Delta Flight 2163 landed in San Jose, the plane did not pull up directly to the gate, but instead passengers were required to disembark by walking through the 7 plane's door, onto a platform, and down a flight of stairs. Compl. ¶ 14. Delta did not provide a 8 wheelchair to assist Plaintiff's exit, and flight personnel did not offer to assist her in exiting. Compl. ¶ 15. Surprised that a flight attendant had not offered to assist her from the plane, Plaintiff 10 attempted to exit the plane on her own.*fn3 Compl. at 2. Plaintiff claims that there was a large gap or e platform leading to the stairs, step between the plane's door and th due to the different heights of 12 the platform and the floor of the plane. Compl. ¶ 16. The flight crew did not use a ramp to cover 13 the gap or step, and flight personnel did not attempt to help Plaintiff or offer her assistance in 14 exiting the plane. Id. Plaintiff alleges that the large gap or step constituted a dangerous condition 15 for herself and other passengers. Id. While Plaintiff was attempting to step over the gap or step, 16 and while a flight attendant and pilot stood within a few feet of her, Plaintiff fell, seriously injuring 17 her leg and hip. Compl. ¶ 17. After falling, Plaintiff claims that she lay on the platform in serious pain for over an hour while waiting for medical care. Compl. ¶ 18.
Plaintiff alleges that she fell and incurred serious injuries due to the dangerous condition created by the step or gap and due to the lack of required assistance from flight personnel. Compl. 21 ¶ 17. She claims the flight personnel did not make her aware that there was a platform and a flight 22 of stairs she would have to descend in order to exit the plane. Compl. ¶ 15. She claims, further, 23 that Delta was aware that she could not exit in this manner since she had arranged for wheelchair 24 assistance prior to the flight. Id. Based on these allegations, Plaintiff filed the instant action 25 against Defendants Delta and Mesaba on December 15, 2010, invoking the Court's diversity 26 jurisdiction. Her Complaint asserts four state law causes of action: (1) failure to provide the utmost care and diligence in the safe carriage of Plaintiff, in violation of California Civil Code § 2100; (2) 2 failure to provide a plane safe and fit for its purpose, in violation of California Civil Code § 2101; (3) negligence; and (4) negligent infliction of emotional distress. Defendants argue that each of 4 these claims is preempted by the Air Carrier Access Act of 1986 and now move to dismiss the Complaint on grounds of federal preemption and other alleged deficiencies.
A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A Rule 12(b)(6) 9 dismissal may be based on either a lack of a cognizable legal theory or the absence of sufficient 10 facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121 (9th Cir. 2008). In considering whether the complaint is sufficient to state a claim, the court must accept as true all of the factual allegations contained in the complaint.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). However, the court need not accept as true "allegations that contradict matters properly subject to judicial notice or by exhibit" or "allegations 15 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." St. Clare v. Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008). While a 17 complaint need not allege detailed factual allegations, it "must contain sufficient factual matter, 18 accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible 20 when it "allows the court to draw the reasonable inference that the defendant is liable for the 21 misconduct alleged." Iqbal, 129 S.Ct. at 1949. If a court grants a motion to dismiss, leave to 22 amend should be granted unless the pleading could not possibly be cured by the allegation of other 23 facts. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
In their motion to dismiss, Defendants raise two bases for federal preemption of Plaintiff's state law claims. First, Defendants argue that all of Plaintiff's claims are preempted by the Air Carrier Access Act ("ACAA"), 49 U.S.C. § 41705, and the implementing regulations promulgated 28 by the U.S. Department of Transportation ("DOT"), 14 C.F.R. Part 382. The ACAA was enacted in 1986 as an amendment to the Federal Aviation Act. Pub. L. No. 99-435, 100 Stat. 1080 (1986). The ACAA and its implementing regulations prohibit air carriers from discriminating against 3 passengers on the basis of disability; require carriers to make aircraft, other facilities, and services 4 accessible; and require carriers to take steps to accommodate passengers with disabilities. 14 C.F.R. § 382.1. Defendants also argue that the Federal Aviation Act, 49 U.S.C. § 40101 et seq., 6 preempts Plaintiff's first and second causes of action under the California Civil Code because the FAA imposes a federal standard of care and preempts claims based on a state-law standard of care. Finally, Defendants also argue that if Plaintiff's fourth cause of action is not preempted, it must be 9 dismissed because it is insufficiently pled.
A.Background on Preemption under the FAA and the ACAA
It is well-established that Congress may preempt state law, either expressly or impliedly. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992). Here, the parties agree that neither the ACAA nor the FAA contains a relevant express preemption provision. "In the absence of an 14 express congressional command, state law is pre-empted if that law actually conflicts with federal 15 law, or if federal law so thoroughly occupies a legislative field as to make reasonable the inference 16 that Congress left no room for the States to supplement it." Id. (citations and quotation marks 17 omitted). In this case, Defendants' arguments are primarily directed toward field preemption. Although the Ninth Circuit has not yet considered the preemptive effect of the ACAA, it has twice 19 considered the field-preemptive effect of the FAA. Because the Ninth Circuit's decisions rely 20 heavily on the Third Circuit's analysis of FAA field preemption, and because the Third Circuit has 21 considered the preemptive effect of the ACAA, the Court will consider the decisions of both 22 circuits, as well as recent district court decisions, in evaluating Defendants' arguments.
1.Ninth and Third Circuit Precedent
In Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), the Ninth Circuit considered the general preemptive effect of the FAA for the first time. In Montalvo, the plaintiffs brought 26 common law negligence claims against various airlines for failure to warn passengers about the danger of developing deep vein thrombosis. Id. at 467-68. The district court held that the FAA preempted the field of preflight warnings and therefore dismissed the failure-to-warn claims. Id. at 468. Upon review, the Ninth Circuit noted that a number of circuits had concluded that the FAA preempts discrete aspects of air safety. Id. The Third Circuit, however, had gone a step further. Id. (citing Abdullah v. American Airlines, Inc., 181 F.3d 363, 367-68 (3d Cir. 1999)). Based on the 4 historic need for uniformity in air safety and the pervasive nature of regulations under the FAA, the Third Circuit in Abdullah held that the FAA preempts all state or territorial standards of care 6 relating to aviation safety. 181 F.3d at 368-71. The Third Circuit also noted that FAA regulation 14 C.F.R. § 91.13(a) supplies a comprehensive, general standard of care that can be used in cases 8 where there is no specific regulation addressing the particular risk at issue in a given case. Id. at 371; see also 14 C.F.R. § 91.13(a) ("No person may operate an aircraft in a careless or reckless 10 manner so as to endanger the life or property of another."). The Abdullah court imposed a critical limitation on its holding, however. Reasoning that federal standards of care can coexist with state and territorial tort remedies, the Third Circuit concluded that while the FAA broadly preempts all 13 state or territorial standards of care, state tort claims based on violations of the federal standard of 14 care are not preempted. 181 F.3d at 375. Thus, the Third Circuit stated: "Even though we have 15 found federal preemption of the standards of aviation safety, we still conclude that the traditional 16 state and territorial law remedies continue to exist for violation of those standards." Id.
In Montalvo, the Ninth Circuit "adopt[ed] the Third Circuit's broad, historical approach to hold that federal law generally establishes the applicable standards of care in the field of aviation 19 safety." 508 F.3d at 468. The Ninth Circuit reviewed the regulations promulgated under the FAA 20 and determined that those regulations, "read in conjunction with the FAA itself, sufficiently 21 demonstrate an intent to occupy exclusively the entire field of aviation safety." Id. at 471. It also 22 found that the purpose, history, and language of the FAA indicate Congress's intent to create a Circuit's decision in Abdullah, the Ninth Circuit held that the "FAA, together with federal air 25 safety regulations, establish complete and thorough safety standards for interstate and international air transportation that are not subject to supplementation by, or variation among, states." Id. at
Circuit held further that Plaintiff's negligence claim failed as a matter of law. Id.
"single, uniform system for regulating aviation safety." Id. Accordingly, following the Third
474. Because the federal standard did not require warnings about deep vein thrombosis, the Ninth clarified, and to some degree limited, the scope of field preemption under the FAA. First, in 2009, 3 the Ninth Circuit in Martin considered a personal injury claim brought by a pregnant woman who 4 fell from an airplane's stairs, injuring herself and her fetus. Martin ex rel. Heckman v. Midwest Exp. Holdings, Inc., 555 F.3d 806, 808 (9th Cir. 2009). The airline had settled with the passenger 6 and sought indemnity from the stair manufacturer. Id. Relying on Montalvo, the manufacturer 7 argued that the FAA preempted the passenger's personal injury claims and, consequently, the 8 airline's indemnity claim. Id. The Ninth Circuit disagreed. Reviewing its earlier decision, the
Since the decisions in Abdullah and Montalvo, both the Ninth and Third Circuits have Ninth Circuit found that "[c]onsidered as a whole . . . Montalvo cuts against the manufacturer's 10 argument for broad FAA preemption." Id. at 809. The court emphasized that the preemption analysis in Montalvo rested heavily on the FAA's pervasive regulation of warnings to passengers and noted that the decision did not find FAA preemption of the plaintiffs' claim that the airplane 13 seats were defectively designed. Id. at 809-810. The Ninth Circuit also pointed to its decision in Charas v. Trans World Airlines, Inc.,160 F.3d 1259 (9th Cir. 1998), which reversed several 15 decisions that interpreted preemption of personal injury claims under the Airline Deregulation Act 16 too broadly. Martin, 555 F.3d at 810-11. The Court noted that this holding would be moot if all of 17 the personal injury claims in Charas were preempted by the FAA. Id. at 811. Based on this 18 analysis, the Ninth Circuit clarified the preemptive effect of the FAA as follows:
standard of care when there are no relevant federal regulations. Instead, it means that when the agency issues "pervasive regulations" in an area, like passenger warnings, the FAA preempts all state law claims in that area. In areas without pervasive regulations or other grounds for preemption, the state standard of care remains applicable.
Montalvo, then, neither precludes all claims except those based on violations of specific federal regulations, nor requires ...