Elgin Banks v. American Airlines Group, Inc. ( 2022 )

FILED
NOT FOR PUBLICATION
MAY 16 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELGIN BANKS, an Individual; et al., No. 21-55538
Plaintiffs-Appellants, D.C. No.
2:20-cv-05495-MCS-GJS
v.
AMERICAN AIRLINES GROUP, INC., MEMORANDUM*
DBA American Airlines, a Delaware
Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Mark C. Scarsi, District Judge, Presiding
Submitted May 12, 2022**
Pasadena, California
Before: IKUTA and NGUYEN, Circuit Judges, and DANIELS,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable George B. Daniels, United States District Judge for the
Southern District of New York, sitting by designation.
Elgin Banks, Aubrey Kelly, Natalie Epstein, Brandy Flowers, and Cynthia
Vassor (collectively “Appellants”) appeal the district court’s dismissal of their
complaint against defendant American Airlines Group, Inc. (“American Airlines”)
for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Appellants failed to state a claim for race discrimination under 42 U.S.C.
§ 1981 because their complaint does not identify a contractual relationship with
American Airlines or “rights under the existing (or proposed) contract that
[Appellants] wishe[d] ‘to make and enforce.’” Domino’s Pizza, Inc. v. McDonald,
546 U.S. 470, 479–80 (2006). Although Appellants’ complaint alleges they were
discriminated against with respect to bringing a carry-on bag aboard the plane,
changing seats once on the plane, and receiving a voucher for overnight
accommodations after the flight was cancelled, they do not allege that they had a
contractual right to such benefits. Nor do Appellants allege that they sought to
modify an existing contract with American Airlines for such benefits.1
Appellants failed to state a claim for negligence under California law
because their complaint failed to make the necessary allegation that American
1
Plaintiffs failed to include such allegations in their complaint even after the
district court expressly identified this deficiency in its order dismissing Plaintiffs’
second amended complaint.
2
Airlines owed them a duty of care. See Doe v. United States Youth Soccer Assn.,
Inc., 8 Cal. App. 5th 1118, 1128 (Cal. Ct. App. 2017). We reject Appellants’
assertion that the American Airlines owed them a duty of care under California
Civil Code § 2103, because before the district court, Appellants conceded that
California Civil Code § 2103 is preempted by the Federal Aviation Act (FAA).
See Abou-Jaoude v. British Airways, 228 Cal. App. 3d 1137, 1141 (Cal. Ct. App.
1991) (holding that the FAA preempts Cal. Civ. Code § 2103).2 We also reject
Appellants’ assertion that American Airlines had a duty to teach its employees to
conduct themselves with dignity in order to eliminate discrimination, because
Appellants failed to allege that duty in their complaint and failed to raise it to the
district court. See Dream Palace v. Cty. of Maricopa, 384 F.3d 990, 1005 (9th Cir.
2004) (“Ordinarily, [this court] decline[s] to consider arguments raised for the first
time on appeal.”).
AFFIRMED.
2
Although we are “not bound by state court decisions on the preemptive
effect of federal law,” Matter of Holiday Airlines Corp., 647 F.2d 977, 980 (9th
Cir. 1981), Appellants do not dispute that they are bound by their concession that
the FAA preempts California Civil Code § 2103.
3