DelVecchia v. Frontier Airlines

[3] 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 PETER DELVECCHIA, individually and as Case No. 2:19-cv-01322-KJD-DJA next friend of A.D., a Minor, 8 ORDER Plaintiffs, [9] v. [10] FRONTIER AIRLINES, INC., et al., [11] Defendants. 12 kjd Presently before the Court is Defendants’ Motion to Strike the Second Amended [13] Complaint (#107) and Motion to Dismiss Counts III and VII of the Second Amended Complaint [14] (#108). Plaintiffs filed responses in opposition (#109/110) to which Defendants replied [15] (#111/112). [16] I.Procedural and Factual Background [17] On August 1, 2019, Plaintiffs filed their Complaint against Frontier and John Does 1 [18] through 5. On August 29, 2019, Frontier filed a Partial Motion to Dismiss and Partial Motion to [19] Strike Plaintiffs’ Complaint. On November 20, 2019, Plaintiffs filed a Motion for Leave to [20] Amend the Complaint seeking leave to name the flight crew (two pilots and four flight [21] attendants) as individual defendants to the lawsuit. Plaintiffs attached their proposed Amended [22] Complaint to their motion. [23] On December 4, 2019, Frontier filed its Opposition to Plaintiffs’ Motion for Leave to [24] Amend the Complaint. On December 5, 2019, Plaintiffs filed their Reply in Support of Motion [25] for Leave to Amend. On March 24, 2020, this Court ruled on Frontier’s Partial Motions to [26] Dismiss and Strike and Plaintiffs’ Motion for Leave to Amend, granting Frontier’s Motion to [27] Dismiss Plaintiffs’ NIED and false light invasion of privacy claims, and granting Plaintiffs’ [28] 1 Motion for Leave to Amend the Complaint to name the Doe defendants who were previously 2 unknown to Plaintiffs. The Court also granted Plaintiffs leave to amend their NIED claim. 3 Acting on the Court’s order granting the motion for leave to amend, Plaintiffs filed their 4 First Amended Complaint on March 30, 2020, which added Scott Warren, Chelsie Bright 5 Sakurada, Anna Bond, Amanda Nickel, Rex Shupe, and Shawn Mullin as defendants. In their 6 14-page, five-count First Amended Complaint, Plaintiffs sought compensatory and punitive 7 damages for an alleged violation of 42 U.S.C. §1981 (Count I), intentional infliction of emotional 8 distress (Count II), false imprisonment/unlawful detention (Count III), battery and sexual assault 9 (Count IV), and defamation (Count V). However, Plaintiffs did not include an amended NIED 10 claim, though the Court’s order had authorized it. Eventually, Plaintiffs voluntarily dismissed all 11 the individual defendants, except Shupe and Warren. 12 On April 3, 2020, Frontier filed its answer to the First Amended Complaint. On May 28, 13 2020, Captain Shupe and FA Warren each filed their Answers to Plaintiffs’ First Amended 14 Complaint. On June 9, 2020, without seeking leave of this Court, Plaintiffs filed their Second 15 Amended Complaint, which pleads entirely new and/or significantly expanded factual 16 allegations, their first ever negligence claim in this case, and a new NIED claim. 17 The Second Amended Complaint alleges, in much greater detail than the first amended 18 complaint, that Plaintiffs Peter DelVecchia (“Peter”) and his twelve-year old son, A.D., 19 contracted with Defendant Frontier Airlines to fly from North Carolina to Las Vegas on or about 20 March 28, 2019.1 Plaintiff Peter is Caucasian and A.D. is African-American. Plaintiffs were 21 seated next to each other on the flight. Peter fell asleep with his head resting on the back of the 22 seat in front of him. He was abruptly awakened when Defendant Warren, an employee of 23 Frontier airlines, violently struck him at the base of his neck. The blow was forceful enough to 24 cause a concussion. Defendant Warren then falsely accused Peter of engaging in illegal human 25 trafficking and sexual assault. Based upon the allegations of the complaint, the assault and the 26 accusations were based on Warren’s belief a white man should not be traveling with a black [27] 28 1 The Court considers the allegations of the complaint as true, as it must when resolving a motion to dismiss under Rule 12(b)(6). 1 child. The flight crew believed that Peter showed inappropriate affection to A.D. 2 Warren then forced A.D. to leave his seat and father. He was forced to sit in the rear of 3 the plane where an adult male sat between A.D. and the aisle. The father and the son were not 4 allowed to reunite for the duration of the flight. The captain on the flight, Defendant Shupe, and 5 first officer, Mullin, condoned and authorized the separation of the Plaintiffs and authorized the 6 calling of the police and FBI to meet the plane when it landed in Las Vegas. In the presence of 7 other passengers that were deplaning, Warren said loudly to Peter “Go on outside, the FBI is 8 waiting for your ass.” Previously, Warren had yelled on the plane that Peter had touched his son 9 inappropriately. When Peter protested, Warren said, “Well we’re going to have let the police sort 10 that out.” 11 Defendants have now moved to strike the second amended complaint, because it was 12 filed after the deadline to amend in the Scheduling Order and because Plaintiffs failed to seek 13 leave of the Court before it was filed. Alternatively, Defendants seek to dismiss the third claim 14 for negligence and the seventh claim for negligent infliction of emotional distress. 15 II. Motion to Strike Plaintiffs’s Second Amended Complaint 16 Federal Rule of Civil Procedure 12(f) authorizes a court to strike from any pleading 17 material that is redundant, immaterial, impertinent or scandalous. Additionally, the Court has 18 inherent authority to strike any improper filing and control its docket. Atchison, Topeka & Santa 19 Fe Ry. v. Hercules, Inc., 146 F.3d 1071, 1074 (9th Cir. 1998). Motions to strike are wholly 20 discretionary. 21 Generally, a party may amend their pleadings once “as a matter of course” before a 22 responsive pleading has been served. Fed. R. Civ. Pr. 15(a). After that, a party may amend their 23 pleadings “only by leave of the court...[which] leave shall be freely given when justice so 24 requires.” Id. In such instances, the Court would balance the strong policy towards permitting 25 amendment versus “undue delay, bad faith or dilatory motive on the part of the movant, repeated 26 failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing 27 party by virtue of allowance of the amendment, futility of amendment, etc.” See Schlacter-Jones 28 v. General Telephone, 936 F.2d 435, 443 (9th Cir. 1991) (quoting Foman v. Davis, 371 U.S. 178 , 1 182 (1962)). 2 However, where the Court has filed a pretrial scheduling order that has established a 3 timetable or deadline for amending the pleadings, the Court will consider proposed amendments 4 under Federal Rule of Civil Procedure 16(b). That rule requires the schedule for amending 5 pleadings not be modified without a showing of good cause for failure to amend within the time 6 specified in the scheduling order. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th 7 Cir. 2000). This standard “primarily considers the diligence of the party seeking the 8 amendment.” See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). A 9 scheduling order (#33) was issued in this case that set November 26, 2019 as the deadline for 10 amending the pleadings. 11 Therefore, the Court will review the Plaintiffs’ motion to amend under Rule 16’s good 12 cause standard, because the motion was filed well past the deadline set in the discovery 13 scheduling order. Here, the only excuse offered by Plaintiffs was that the Court had authorized 14 the filing of the amended complaint. However, the Court had only authorized the filing of the 15 complaint that was attached to the initial motion to amend with the caveat that Plaintiff could 16 amend its claim for negligent infliction of emotional distress if Plaintiff felt that he could cure 17 the deficiencies identified by the Court. 18 Instead, Plaintiff filed the attached complaint without amendment on March 30, 2020. 19 Plaintiff then filed a Second Amended Complaint (“the operative complaint”) on June 9, 2020 20 without seeking leave of the Court pursuant to the Federal Rules of Civil Procedure. The 21 operative complaint contained a new claim for negligence in addition to amending the claim for 22 negligent infliction of emotional distress. Plaintiff has entirely failed to demonstrate good cause 23 for failing to amend within the time allowed in the scheduling order. However, given the amount 24 of discovery effort and briefing the parties have put into the operative complaint, judicial 25 economy would be ill-served by striking the second amended complaint entirely which would 26 likely spawn a new round of motion practice that would forestall the efficient trial of this action. 27 Instead, the Court dismisses the claim for negligence and negligent infliction of 28 emotional distress in the operative complaint for failure to show good cause for failing to meet 1 the deadline in the discovery order and for failure to seek leave of the Court to file a second 2 amended complaint. Alternatively, the Court dismisses each claim on the merits for failing to 3 state a claim under Rule 12(b)(6). 4 III. Motion to Dismiss 5 A. Legal Standard 6 The Court may dismiss a complaint that “fail[s] to state a claim upon which relief can be 7 granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must provide “a short and plain 8 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell 9 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed 10 factual allegations, it demands more than “labels and conclusions or a formulaic recitation of the 11 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion 12 to dismiss, the complaint must provide enough facts to state a plausible claim for relief on its 13 face. Id. at 678 . A claim is facially plausible when the plaintiff’s complaint alleges facts that 14 allow the court to draw a reasonable inference that the defendant is liable for the alleged 15 misconduct. Id.at 678. Further, where the complaint does not permit the court to infer more than 16 the mere possibility of misconduct, the complaint has “alleged–but it has not show[n]–that the 17 pleader is entitled to relief.” Id.at 679 (internal quotation marks omitted). 18 B. Negligence 19 To bring a negligence claim in Nevada, a plaintiff must show that (1) defendant owed a 20 duty of care to plaintiff; (2) defendant breached that duty; (3) defendant’s breach was the actual 21 and proximate cause of the plaintiff’s injuries; and (4) plaintiff was injured.” Larson v. 22 Homecomings Fin., LLC, 680 F. Supp. 2d 1230, 1235 (D. Nev. 2009) (citing Scialabba v. 23 Brandise Constr. Co., Inc., 112 Nev. 965, 968 (1996)). Here, Plaintiffs allege that “Frontier is a 24 common carrier and therefore [was] bound to use the utmost care and diligence,” that FA Warren 25 and Captain Shupe “were also bound to use the utmost care and diligence,” or in the alternative, 26 owed them a duty of reasonable care, and that Captain Shupe was “the pilot in command” and 27 “had a duty not to operate the aircraft in a careless or reckless manner so as to endanger the life 28 or property of another.” Plaintiffs then assert that Defendants breached these duties by allegedly 1 placing Peter and A.D. under surveillance, accusing Peter of human trafficking and sexual 2 misconduct, striking Peter, re-seating A.D., mocking and shouting at Peter, and arranging for 3 police and FBI to meet the aircraft upon arrival in Las Vegas. 4 However, under Nevada law these allegations do not meet the standard for negligence, 5 because they are centered around Defendants’ alleged intentional conduct. The conduct 6 described in this cause of action is not negligent conduct; it is intentional conduct. Plaintiffs base 7 their § 1981, IIED, battery, defamation, and false imprisonment claims on the same intentional 8 conduct. However, “[a]ny given act may be intentional or it may be negligent, but it cannot be 9 both. Intent and negligence are regarded as mutually exclusive grounds for liability.” Allen v. 10 Clark Cty. Det. Ctr., No. 2:10-cv-00857-RLH-GWF, 2012 U.S. Dist. LEXIS 14260 , at *7-8 (D. 11 Nev. Feb. 6, 2012) (citing Dan B. Dobbs, The Law of Torts, §26). 12 The analysis does not change merely because Plaintiff alleges the claim in the alternative. 13 See Dineen v. Stramka, 228 F.Supp.2d 447, 454 (S.D.N.Y. 2002) (stating that when a plaintiff 14 asserts claims “which are premised upon a defendant’s allegedly intentional conduct, a 15 negligence claim with respect to the same conduct will not lie”). Plaintiffs allege that Frontier’s 16 negligence resulted in flight attendants conducting their duties in ways that were not racially 17 neutral. However, a cause of action for negligent racial discrimination does not exist. See 18 Cummings v. Vill. of Port Chester, No. 08 Civ. 6940 (LMS), 2013 U.S. Dist. LEXIS 202987 , at 19 *31 n. 17 (S.D.N.Y. July 3, 2013) (stating that “[t]o the extent that Plaintiff’s allegation implies a 20 state law claim for negligent discrimination, the Court knows of no legal support for such a 21 claim”)). Rather, it is a discrimination claim, which Plaintiffs have asserted in their § 981 cause [1] 22 of action. 23 Further, even if the Court allowed a negligence claim to go forward, Plaintiffs’ other 24 grouping of allegations relates to Frontier’s alleged negligence in failing to train its employees 25 on a range of topics, including human trafficking, sex trafficking, and Threat Level instructions. 26 However, Plaintiffs’ negligence count is premised on the doctrine of respondeat superior, which 27 is inconsistent with direct claims against employers for negligent training. A court in this district 28 found that, “Nevada would adopt the majority rule such that, in situations in which a motor 1 carrier admits vicarious liability for the conduct of a driver, direct claims of negligent 2 entrustment or negligent training and supervision against a motor carrier would be disallowed 3 where those claims are rendered superfluous by the admission of vicarious liability.” Adele v. 4 Dunn, No. 2:12-cv-00597-LDG (PAL), 2013 U.S. Dist. LEXIS 44602 , at *6 (D. Nev. Mar. 27, 5 2013). 6 Finally, Defendants make arguments that they may be immune from liability under the 7 Aviation and Transportation Security Act, 49 U.S.C. § 44941 . See Air Wis. Airlines Corp. v. 8 Hoeper, 571 U.S. 237, 241 (2014) (to ensure that the TSA would be informed of potential 9 threats, Congress gave airlines and their employees immunity against civil liability for reporting 10 suspicious behavior). However, that immunity would apply to true statements made by 11 defendants who would not be protected from materially false statements. Id. at 248-49 . The 12 Supreme Court has not determined whether immunity is a question of law for the court to decide 13 before trial, or whether it requires issues of material fact to be determined by a jury at trial. Id. at 14 252-53. Therefore, the Court cannot dismiss the claims based on immunity at this juncture. 15 C. Negligent Infliction of Emotional Distress 16 Further, even if the Court allowed amendment of this claim, it would dismiss it because 17 Plaintiff has still failed to sufficiently state a claim. In Nevada, the law clearly requires that the 18 witness-plaintiff prove that he or she (1) was located near the scene; (2) was emotionally injured 19 by the contemporaneous sensory observance of the accident; and (3) was closely related to the 20 victim.” Kennedy v. Carriage Cemetery Servs., Inc., 727 F. Supp. 2d 925, 934 (D. Nev. 2010). 21 “To recover for negligent infliction of emotional distress under Nevada law, [the plaintiff] must 22 ... establish that he/she either suffered a physical impact or serious emotional distress causing 23 physical injury or illness.” Alexander v. Falk, No. 2:16-cv-02268-MMD-GWF, 2019 U.S. Dist. 24 LEXIS 132201 , at *27 (D. Nev. Aug. 7, 2019). Even with the amended claims, Plaintiffs have 25 still failed to state a claim. First, A.D. did not witness his father being struck, because he was 26 asleep. Further the Court will not allow a third try at amending this claim, because A.D. admitted 27 during his deposition, that he did not see his father struck. Therefore, amending the complaint 28 would be futile. Finally, there is no allegation that A.D. was injured so as to be the “victim” of an “accident,” as required by Nevada law, when the FA Warren asked A.D. to change seats. 2} Kennedy, 727 F. Supp. 2d at 934 . Accordingly, Plaintiffs’ Second Amended Complaint does not 3 | state a cause of action for NIED. IV. Conclusion 5 Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Strike the Second 6 | Amended Complaint (#107) and Motion to Dismiss Counts III and VII of the Second Amended 7 | Complaint (#108) are GRANTED in part and DENIED in part; 8 IT IS FURTHER ORDERED that the Motion to Strike and Motion to Dismiss are 9 | granted to the extent that Claim III for negligence and Claim VII for negligent infliction of 10 | emotional distress are DISMISSED. 1] D Dated this 30th day of March, 2021. 13 / | 14 TY 15 Kent J. Dawson United States District Judge [28] -8-