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Robert Segalman, No. 2 v. Southwest Airlines; and Does 1 Through 10

October 23, 2012

ROBERT SEGALMAN, NO. 2
PLAINTIFF,
v.
SOUTHWEST AIRLINES; AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Robert Segalman ("Plaintiff") brought this action on July 8, 2011 against Southwest Airlines ("Defendant") and Does 1 through 10, asserting claims under the Air Carrier Access Act of 1986, 49 U.S.C. § 41705 ("ACAA") and general negligence. On June 22, 2012, Plaintiff filed a Second Amended Complaint ("SAC") asserting claims under federal and state law for denial of full and equal access to ground airport services and negligence. Specifically, Plaintiff alleges that Defendant failed to follow written instructions on how to store and transport his mechanized wheelchair when placing it in the cargo area, resulting in both damage to the wheelchair and subsequent injury to Plaintiff.

Defendant filed a Motion to Dismiss ("Motion") on July 9, 2012, alleging that the SAC fails to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). *fn1 Defendant further argues that federal preemption bars Plaintiff's claims. Plaintiff filed an Opposition to Defendant's Motion on August 23, 2012, and Defendant filed a Reply on August 30, 2012. Having considered the submitted papers by the parties, for the reasons stated below, Defendant's Motion will be GRANTED.

BACKGROUND

Plaintiff is an individual with cerebral palsy and can neither walk nor talk aloud. (SAC at ¶ 8, ECF No. 27.) Due to his condition, Plaintiff relies on a mechanized wheelchair to ambulate. Plaintiff alleges that during the past four years, on more than one occasion, he arrived at a Southwest Airlines terminal after a flight without power to his wheelchair. Plaintiff claims that when this has occurred, he had to use an uncomfortable and manual wheelchair (which he is unable to push himself) for up to twenty-four hours. Plaintiff further claims that a wheelchair mechanic explained that power disruptions he experienced were due to failure on the part of Defendant's employees to follow written instructions on how to handle the wheelchair when placing it in cargo.

In addition to these general allegations, Plaintiff alleges three specific instances where the conduct of Defendant and its employees amounted to discrimination, denying him full and equal access within a public accommodation. Plaintiff alleges that on the first occasion in February 2009, on a round-trip flight from Sacramento to Albuquerque, Defendant broke the arm and neck rests of his wheelchair. (Id. at ¶ 9.) Second, Plaintiff also alleges that on March 29, 2010, Plaintiff's wheelchair arrived in San Diego missing one seatbelt which had been present on departure from Sacramento. (Id. at ¶ 10.) Plaintiff states that he arrived home on a Saturday, but was unable to make an appointment to replace the seatbelt until the following Wednesday. Plaintiff claims that on Tuesday night, he fell out of his wheelchair outside of his apartment building and broke his shin in two places. Due to his injuries, Plaintiff claims he spent four days in the hospital. The third and last incident occurred on August 15, 2010, on a round-trip from Sacramento to Portland, Oregon. (Id. at ¶ 11.) Plaintiff claims that when his wheelchair arrived in Portland, it was without power and that despite his calls to many wheelchair repair shops, he was unable to find anyone to come out to fix it that day. Plaintiff alleges that a cable coming out of the joystick that charged the chair had been pulled out of place during the flight, which caused the loss of power.

Plaintiff did not file an administrative complaint with the Department of Transportation ("DOT") against Defendant based on the experiences described above. Instead, Plaintiff filed the instant action against Defendant on July 8, 2011, on the basis of original and supplemental jurisdiction. (ECF No. 1.) Plaintiff has since amended his complaint and the operative complaint is now the Second Amended Complaint filed on June 22, 2012. (ECF No. 27.) Plaintiff's SAC asserts three causes of action: (1) failure to provide full and equal access to Defendant's facility, in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12182(a)-(b); (2) failure to provide full and equal access to Defendant's facility, in violation of the Unruh Act, California Civil Code section 51 and the Disabled Persons Act, California Civil Code section 54; and (3) negligence.

Defendant argues that the first cause of action should be dismissed for failure to state a claim because the ADA does not apply to aircraft and its operations. Defendant contends that because the ADA is inapplicable in this case and because the applicable statute, the ACAA, does not provide for a private right of action, Plaintiff's first cause of action should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant also argues that the second and third claims are preempted by the ACAA and its governing regulations and therefore, dismissal is appropriate due to federal preemption.

STANDARD

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) dismissal may be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). When considering whether a complaint is sufficient to state a claim, the court must accept as true all material factual allegations contained in the complaint and construe them in the light most favorable to the plaintiff. Nursing Home Pension Fund, Local 144 v. Oracle Corp., 380 F.3d 1226, 1229 (9th Cir. 2004). This principle does not apply to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)).

The requirements of a complaint are minimal as Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" to "give the defendant fair notice of what the...claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint does not need to allege detailed factual allegations, it does require more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Id. at 557 (internal citations and quotations omitted).

A complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when it "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

After a court has decided to grant a 12(b)(6) motion, it must then decide whether to grant leave to amend. A court should "freely give" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of . . . the amendment, [or] futility of the amendment...." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend should be granted unless the pleading could not possibly be cured by the allegation ...


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