Bower v. Egyptair Airlines Co.

United States Court of Appeals
For the First Circuit
No. 12-1427
COLIN BOWER, on his own behalf and as the guardian
and legal custodian of his minor children, N and R,
Plaintiff, Appellant,
v.
EGYPTAIR AIRLINES COMPANY,
Defendant, Appellee,
MIRVAT EL-NADY BOWER,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella, Circuit Judge,
and DiClerico,* District Judge.
Joshua L. Solomon, with whom Barry S. Pollack, Sullivan &
Worcester LLP, Howard M. Cooper, Julie E. Green and Todd & Weld
LLP, was on brief for appellant.
Christopher Carlsen, with whom Deborah Anne Elsasser, Clyde &
Co US LLP, Brian Paul Voke and Campbell Campbell Edwards & Conroy,
P.C., was on brief for appellee.
Judith R. Nemsick, with whom Holland & Knight LLP and Michael
T. Maroney, was on brief for Amici Curiae International Air
Transport Association and Air Transport Association of America,
Inc.
*
Of the District of New Hampshire, sitting by designation.
October 2, 2013
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TORRUELLA, Circuit Judge. This appeal stems from an
international parental kidnapping perpetrated by defendant Mirvat
El-Nady. Plaintiff-appellant in this case, Colin Bower, is El-
Nady's former husband. In August 2009, El-Nady acted in violation
of a court order when she drove the former couple's two minor
children to New York City, where they boarded an EgyptAir Airlines
Company ("EgyptAir") flight to Cairo, Egypt. This prompted Bower,
on his own behalf and on behalf of his two minor children, to
initiate this lawsuit against El-Nady and EgyptAir. Bower claims
that the airline interfered with his custodial relations and was
negligent in allowing El-Nady to board the flight despite the
alleged presence of "red flags" suggesting that she was abducting
the two children. The district court granted EgyptAir's motion for
summary judgment and dismissed Bower's claims, finding that
EgyptAir did not know of El-Nady's plan to abduct the children and
did not owe either Bower or the children a duty to investigate the
"red flags." Bower now appeals from that determination, arguing,
among other things, that the district court erred in determining
that it had subject matter jurisdiction. We find that the district
court had jurisdiction over the claims and affirm their dismissal,
albeit on the grounds that the claims are preempted under the
Airline Deregulation Act, 49 U.S.C. § 41713 ("ADA").
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I. Background
A. Factual Background
Mirvat El-Nady, an Egyptian citizen, and Colin Bower, a
United States citizen, met in Cairo, Egypt and married in 1998.
Subsequently, they moved to London where they had two children,
whom the parties refer to as "N" and "R."1 In 2005, the family
moved to Massachusetts, but the relationship between Bower and El-
Nady eventually soured, and they divorced in Massachusetts on
December 1, 2008. Pursuant to the divorce decree, Bower was given
sole legal custody of the children, but he shared physical custody
with El-Nady. The decree also prohibited El-Nady from taking the
children out of Massachusetts.
On or about August 7, 2009, Bower dropped off the
children at El-Nady's home in Massachusetts for a court-ordered
visit. On August 11, 2009, El-Nady drove the two children to
John F. Kennedy International Airport ("JFK") in New York. Once
there, she purchased three one-way business-class tickets to Cairo,
Egypt, for which she paid almost $10,000 in cash. El-Nady and her
children presented Egyptian passports for travel. EgyptAir did not
recognize that the children's passports had no entry visas
reflecting the children's arrival in the United States. Moreover,
1
The district court found that the children were dual citizens of
the United States and the United Kingdom, and that they were
eligible to become citizens of Egypt.
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EgyptAir did not comment on the fact that El-Nady and her children
had different last names,2 nor did it check for their I-94 forms.3
Following their flight, El-Nady and the children remained
in Cairo, Egypt with no intention of returning to the United
States. El-Nady had previously worked in Egypt and currently has
family there. In December 2009, approximately four months after
moving to Egypt, El-Nady obtained an order from a court in Cairo
granting her custody of the two children. Shortly thereafter,
Bower retained counsel in Cairo and appealed the custody order.4
The Cairo court granted Bower's motion seeking visitation rights,
and he was able to visit the children at least four times in Cairo,
under the supervision of El-Nady and members of her family.
2
Per Egyptian naming customs, El-Nady retained her maiden name
after marrying while her children took their father's surname.
3
The I-94 Form is an arrival/departure record issued by a Customs
and Border Protection ("CBP") officer to foreign visitors entering
the United States. The officer generally attaches the I-94 Form to
the visitor's passport when the visitor enters the United States.
As a general rule, when the visitor exits the United States via
commercial aircraft, he or she must fill out the departure portion
of the Form and provide it to the airline, which in turn provides
it to the CBP officer at the port of departure. See 8 C.F.R.
§ 231.2(b)(1). However, United States citizens do not require I-94
Forms. See 8 C.F.R. § 231.2(b)(2) ("The form I-94 requirement
. . . does not apply to United States citizens. . . .").
4
While the record is murky as to the outcome of Bower's appeal,
and neither party briefed the issue, it appears that Bower was
ultimately successful and that on November 24, 2010, the court in
Cairo set aside and nullified its prior order granting El-Nady
custody. See App. 1103-09 (translating the Arabic order).
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B. Procedural History
On February 5, 2010, Bower filed this action in
Massachusetts Superior Court on his behalf and on behalf of his
children in his capacity as guardian of "N" and "R." As
defendants, he listed both El-Nady5 and EgyptAir. His complaint
asserted that EgyptAir intentionally interfered with his custodial
relations and was negligent in allowing El-Nady and the children
passage to Egypt despite the presence of numerous "red flags" that
suggested a child abduction was in progress. He also alleged that
he has incurred significant economic damages in attempting to
locate and recover his children since they were abducted by his
former spouse, and that he has suffered trauma and emotional
distress with physical manifestations, as well as loss of filial
consortium, due to the absence of his children.
On March 8, 2010, EgyptAir removed the case to federal
district court on diversity grounds or, alternatively, on the
grounds that the claims were preempted by an international treaty
known as the Montreal Convention.6 Following removal, Bower filed
a motion seeking a ruling to resolve the issue of whether the court
5
Bower's claims against El-Nady included interference with
custodial relations, false imprisonment, negligent infliction of
emotional distress, intentional infliction of emotional distress,
and loss of filial consortium.
6
Convention on the Unification of Certain Rules of International
Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45, 2242
U.N.T.S. 309 (entered into force Nov. 4, 2003) [hereinafter
Montreal Convention].
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possessed subject matter jurisdiction. The district court
determined that there was diversity jurisdiction, finding that both
El-Nady and EgyptAir were citizens of Egypt at the time the
litigation commenced.
On March 21, 2012, the district court granted EgyptAir's
motion for summary judgment and dismissed all of Bower's claims
against EgyptAir. As a threshold matter, the district court
rejected EgyptAir's argument that the claims against it were
preempted by the ADA and the Montreal Convention. As to the
merits, the district court found that EgyptAir had no actual
knowledge that El-Nady in fact planned to kidnap the children, thus
dooming Bower's interference with custodial relations claim. As to
the negligence claims, the court concluded that EgyptAir owed no
duty of care, either to Bower or the children, to investigate
whether El-Nady was traveling with them in violation of a court
order.
Following the district court's ruling on the motion for
summary judgment, Bower filed this timely appeal.7
II. Discussion
We begin our discussion by explaining why the district
court possessed subject matter jurisdiction over this case. We
then proceed to the matter of preemption under the ADA.
7
The district court entered a default judgment against El-Nady on
October 26, 2012.
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A. Subject Matter Jurisdiction
Bower's first argument on appeal is that the district
court erred when it found that the parties had complete diversity
of citizenship. Specifically, Bower claims that El-Nady is a
"fugitive from justice" under 18 U.S.C. § 1073, since she fled the
United States to avoid prosecution for kidnapping his children.
Because she is a fugitive, he argues, the district court should
have found that her domicile was her last known pre-flight
residence in Massachusetts. Such a finding would, Bower argues,
properly divest the court of subject matter jurisdiction.
We review the district court's conclusion that it had
subject matter jurisdiction over the complaint de novo. Fernández-
Vargas v. Pfizer, 522 F.3d 55, 63 (1st Cir. 2008). For the
following reasons, we disagree with Bower's jurisdiction argument
and find that the district court correctly concluded that El-Nady's
domicile for diversity purposes is Egypt.
The law is well established that an adult person acquires
a legal "domicile" when he or she is physically present in a
location and has the intent to remain there for the indefinite
future. Hall v. Curran, 599 F.3d 70, 72 (1st Cir. 2010); see
García-Pérez v. Santaella, 364 F.3d 348, 350 (1st Cir. 2004);
Rodríguez-Díaz v. Sierra-Martínez, 853 F.2d 1027, 1029 (1st Cir.
1988) (ascertaining an individual's domicile requires two showings:
(1) physical presence in a state; and (2) the intent to make such
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a state the individual's home). El-Nady, by virtue of her presence
in Egypt and her demonstrated intent to remain there, acquired a
legal domicile in Egypt. Her status as a fugitive does not prevent
such a finding where the "presence plus intent" rule is satisfied.
See Stifel v. Hopkins, 477 F.2d 1116, 1123 (6th Cir. 1973)
("Refugees or fugitives, who leave their homes because of . . .
apprehension of prosecution can establish domiciles within the
jurisdictions in which they seek asylum."); Popal v. Slovis, No. 12
Civ. 3916, 2013 WL 1234875 (S.D.N.Y. Mar. 27, 2013) (finding that
alleged murderer fleeing to California to evade a police
investigation could establish a domicile in California).
It is only when these presence and intent requirements
cannot be met, such as when a fugitive's current whereabouts are
unknown, that the fugitive's last domicile before fleeing "should
be his domicile for diversity purposes." See Lloyd v. Loeffler,
694 F.2d 489, 490 (7th Cir. 1982). As Judge Posner explained:
It seems absurd to hold that since a fugitive
might be domiciled anywhere or maybe even
nowhere the act of becoming a fugitive puts a
person beyond the jurisdiction of the federal
courts. Probably the last domicile of the
fugitive before he fled should be his domicile
for diversity purposes. . . . This is a simple
rule, and avoids rewarding the fugitive for
his elusiveness.
Id. at 490 (internal citation omitted). Where an alleged fugitive
has established both physical presence and intent to remain
indefinitely at a known location, however, the logic of Lloyd does
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not sound with equal force. Cf. Ríos v. Civiletti, 571 F. Supp.
218, 223 (D.P.R. 1983) (considering an army deserter, the court
stated, "the total circumstances of his desertion must be examined
to know if his stay, however long, in Mexico worked to effect a
change of his domicile"). Under such circumstances, the fugitive
has, through compliance with the "presence plus intent" rule,
established a new domicile in the state where she or he is hiding.
See United States v. Otherson, 480 F. Supp. 1369, 1371 n.4 (S.D.
Cal. 1979) ("[A] fugitive from justice can establish a legal
'domicile' where he is hiding.").
It is undisputed that El-Nady, in August of 2009, fled
the United States and took her children to Cairo, Egypt, where she
had previously worked and currently has family. While there,
El-Nady initiated a custody battle in Egyptian courts for her
children. Indeed, as asserted in Bower's complaint, El-Nady
intends to remain in Egypt with the children permanently.8
El-Nady's relocation and her intent to remain in Egypt satisfy the
requirements of the "presence plus intent" rule. See Padilla-
Mangual v. Pavía Hosp., 516 F.3d 29, 31-32 (1st Cir. 2008);
Sullivan v. Town of Ashfield, 227 Mass. 24, 26, 116 N.E. 565, 566
(1917) ("A domicile once acquired is presumed to continue until a
new one is acquired by actual change of residence with the
8
In his Amended Complaint, Bower states that "on or about
August 11, 2009, [El-Nady] established a new domicile for herself
in Egypt."
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intention of remaining permanently at the place of removal."). As
such, at the time the suit was brought, El-Nady was domiciled in
Egypt, and Lloyd's "pre-flight domicile" rule is wholly
inapplicable.
Bower disagrees with this assessment and instead argues
that Lloyd is directly applicable to the facts of this case. In
Lloyd, he claims, the whereabouts of the fugitive defendants were
also known, given that the fugitives had sent several pieces of
correspondence postmarked from Milwaukee, Wisconsin to their family
members. We disagree. The mere existence of postmarked
correspondence, on its own, fails to show that the fugitive
defendants intended to remain in Wisconsin indefinitely. See Miss.
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989)
(stating that domicile "is not necessarily synonymous with
'residence'"). In fact, the Seventh Circuit noted that the
plaintiff had spent "thousands of dollars on private detectives" to
locate the fugitive defendants and his kidnapped daughter, to no
avail. Lloyd, 694 F.2d at 490. In contrast, the undisputed
evidence here shows that El-Nady fled to Egypt with the intent to
remain there indefinitely and that Bower had no trouble finding
her, as evinced by his appeal of the Egyptian court's custody order
and his multiple visits with his children under El-Nady's
supervision. Therefore, the holding in Lloyd is inapposite to the
facts of this case.
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Next, Bower claims that if El-Nady qualifies as an
Egyptian domiciliary, so do the children "N" and "R," who were
living with her at the time this suit was filed. Because the
children are plaintiffs in this case, he claims, there is not
complete diversity given that the defendants, EgyptAir and El-Nady,
are also Egyptian domiciliaries. Although the district court did
not make a finding as to this issue, we conclude that the children
remain domiciled in Massachusetts.
We rely on federal common law when determining a
litigant's domicile for diversity purposes. Rodríguez-Díaz, 853
F.2d at 1030, 1033. Typically, "relevant rules of state law
provide the basis for the applicable federal common law." Id. at
1033. In Massachusetts, the domicile of a child is the same as the
domicile of the parent who has lawful custody of the child. Durfee
v. Durfee, 293 Mass. 472, 478 (1936) (emphasis added); see also Gil
v. Servizio, 375 Mass. 186, 189 (1978) ("The domicile of the . . .
children [is] the same as the domicile of their parent who has
lawful custody of them."). Accordingly, a parent without lawful
custody has "no power to change the domicile of his child while
. . . subject to a valid decree giving custody to the" other
parent. Conley v. Conley, 324 Mass. 530, 534 (1949) (holding that
the domicile of the child follows that of the parent with lawful
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custody). Bower was awarded sole legal custody of his children.9
Since a child's domicile follows that of the parent with lawful
custody, and El-Nady has no power to change the domicile of her
children while they are subject to a valid custody order, the
domicile of the children is Massachusetts. See Conley, 324 Mass.
at 534.
Thus, there exists complete diversity of citizenship
between the parties such that the federal courts have subject
matter jurisdiction to hear this case.
B. Preemption Under the ADA
Bower's second claim of error on appeal is that the
district court erred in awarding summary judgment to EgyptAir.
Specifically, Bower takes issue with the court's findings that the
airline had no actual knowledge that El-Nady was traveling with the
children in violation of a court order and was under no duty to
investigate that fact. For the reasons that follow, however, we
conclude that Bower's common law tort claims against EgyptAir are
preempted by the ADA.
We review the district court's granting of summary
judgment de novo, drawing all reasonable inferences in favor of the
non-moving party. Rockwood v. SKF USA, Inc., 687 F.3d 1, 9 (1st
9
Bower relies heavily on the validity of this Massachusetts
custody order to argue that El-Nady deprived him of his custody
rights. He cannot, therefore, suggest that the order is invalid or
should otherwise be ignored by this court for diversity purposes
without undermining his claim on the merits.
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Cir. 2012). We may affirm on any independently sufficient grounds
made manifest by the record.10 Id. Federal preemption issues are
questions of statutory construction that we review de novo.
DiFiore v. American Airlines, Inc., 646 F.3d 81, 85 (1st Cir.
2011).
To determine whether plaintiff's common law tort claims
are preempted by the ADA, 49 U.S.C. § 41713(b)(1), we begin by
noting that the Supremacy Clause nullifies state laws that
"interfere with, or are contrary to" federal laws enacted by
Congress. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210-11 (1824).
Federal preemption may be either express or implied, and where
express, the starting point for our analysis is the "language
employed by Congress and the assumption that the ordinary meaning
of that language accurately expresses the legislative purpose."
FMC Corp. v. Holliday, 498 U.S. 52, 56-57 (1990) (internal
quotation marks omitted).
Here, the ADA expressly states that except as otherwise
provided, "a State, political subdivision of a State, or political
authority of at least two States may not enact or enforce a law,
regulation, or other provision having the force and effect of law
10
In its appellate brief, EgyptAir argues alternatively that the
district court should have concluded that the claims were preempted
by the ADA and the Montreal Convention. Bower opposed this
argument in his reply brief. We affirm the district court's
dismissal of Bower's claims on the separate basis that they are
indeed preempted by the ADA.
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related to a price, route, or service of an air carrier that may
provide air transportation . . . ." 49 U.S.C. § 41713(b)(1). As
we recently explained, ADA preemption analysis breaks down into two
sub-questions: whether the claim is based on a state "law,
regulation, or other provision having the force and effect of law,"
(the "mechanism" question), and whether the claim is sufficiently
"related to a price, route, or service of an air carrier" (the
"linkage" question). Brown v. United Airlines, Inc., 720 F.3d 60,
63 (1st Cir. 2013).
In the case at hand, plaintiffs asserted common law
claims of interference with custodial relations, negligence,
negligent infliction of emotional distress, and loss of filial
consortium. Turning to our recent decision in Brown, we find that
the question of whether these claims fall within the ADA's
preemption provision has already been answered. In Brown, we
explained that state common law claims are covered by the language
"other provision having the force and effect of law." Id. at 65-
66; see United Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d 605,
607 (7th Cir. 2000) ("State common law counts as an 'other
provision having the force and effect of law' for purposes of this
statute."). But see Ginsberg v. Northwest, Inc., 695 F.3d 873,
880-81 (9th Cir. 2012), cert. granted, 133 S. Ct. 2387 (2013)
(ruling common law contract claims related to an airline's frequent
flyer program were not preempted by the ADA).
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This is not to say that Congress intended all common law
tort and contract claims to be preempted by the ADA. To the
contrary, the Supreme Court has clearly stated that there are
numerous claims that survive preemption. Morales v. Trans World
Airlines, Inc., 504 U.S. 374, 390 (1992) (explaining that state
actions that affect airlines in too "tenuous, remote or peripheral"
a manner may survive preemption). For example, the Court has drawn
a distinction between state-imposed consumer protection standards
and claims that an airline breached its own contract terms. Am.
Airlines, Inc. v. Wolens, 513 U.S. 219, 232-33 (1995) (preempting
plaintiffs' claims under the former, while allowing the latter).
Numerous courts have also recognized that the Federal Aviation
Authority's savings clause, 49 U.S.C. § 40120(c), as well as its
mandated insurance coverage provision, 49 U.S.C. § 41112(a), would
not make sense unless Congress intended certain tort claims to
survive preemption. Id. at 231 n.7, 232-33; Taj Mahal Travel v.
Delta Airlines, Inc., 164 F.3d 186, 194 (3d Cir. 1998); Charas v.
Trans World Airlines, Inc., 160 F.3d 1259, 1265 (9th Cir. 1998).
Thus, while our decision in Brown answers the "mechanism"
question, we must now turn to the "linkage" question portion of the
preemption analysis and ask whether plaintiff's common law claims
are sufficiently "relat[ed] to a price, route, or service of an air
carrier." Brown, 720 F.3d at 64.
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Boiled down to their essence, plaintiff's claims assert
that EgyptAir failed to respond appropriately to numerous "red
flags" when it allowed El-Nady to board a flight to Egypt with the
two abducted children. Specifically, plaintiffs maintain that
EgyptAir should have been alerted by the differing surnames of the
mother and children; the "emergency" nature of the tickets,
purchased in cash on the day of the flight; the fact that Egypt is
not a signatory to the Hague Convention, enhancing the risk of
international abduction; and the fact that the children's Egyptian
passports did not contain U.S. entry visas. Plaintiffs argue that
due to the presence of these "red flags," EgyptAir should have been
alerted to the possibility of an international child abduction and
either investigated further, required a signed parental consent
form, or had some procedure in place to deal with these types of
circumstances.
In determining whether these claims are preempted by the
ADA, we first turn to the text of the statute. It is plain that
the claims are neither related to a "price" or "route" in anything
more than the most tangential of ways. The sticking point, then,
is "service."
We have previously recognized a circuit split on the
interpretation of the word "service." DiFiore, 646 F.3d at 88 n.9.
Most notably, the Ninth Circuit in Charas narrowly interpreted
"service" to track closely to "price" and "route." In their
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opinion, "service" referred to the "frequency and scheduling of
transportation, and to the selection of markets to and from which
transportation is provided" as in an airline providing service
"from Tucson to New York twice a day." Charas, 160 F.3d at 1265-66.
We decline to follow this approach. As we noted in
DiFiore, the Supreme Court's opinion in Rowe v. N.H. Motor
Transport Ass'n, 552 U.S. 364 (2008), has treated service more
expansively.11 In Rowe, the Court held that Maine's attempt to
regulate tobacco shipping in the state by requiring numerous
delivery verification procedures substantially impacted the
"delivery services" offered by air and motor vehicle carriers. Id.
at 373. In our view, Rowe forecloses the Charas interpretation of
"service" as a term closely related to prices and routes. See Air
Transport Ass'n of Am. v. Cuomo, 520 F.3d 218, 223 (2d Cir. 2008)
(agreeing that Rowe "necessarily defined 'service' to extend beyond
prices, schedules, origins and destinations"). We also believe
that the Charas interpretation skirts the long-recognized canon of
avoiding superfluousness. Corley v. United States, 556 U.S. 303,
314 (2009). By narrowly interpreting "service" to relate to
scheduling and "service to" certain destinations, the Charas
opinion does little to distinguish "service" from "route."
11
The Court in Rowe was interpreting the preemption provision of
the Federal Aviation Administration Authorization Act of 1994, 49
U.S.C. § 14501(c), which deliberately copied the exact preemption
provision of the ADA. Rowe, 552 U.S. at 370. As such, the Court's
interpretation of the FAAAA preemption provision guides us here.
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The broader view of "service," which pre-dates Rowe in
our sister circuits, includes items such as the handling of
luggage, in-flight food and beverage provisions, ticketing, and
boarding procedures. See, e.g., Cuomo, 520 F.3d at 223; Travel All
Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433
(7th Cir. 1996); Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336-
38 (5th Cir. 1995). We implicitly adopted this approach shortly
after it was initially advanced by the Fifth Circuit in Hodges.
See Chukwu v. Bd. of Dirs. British Airways, 889 F. Supp. 12, 13 (D.
Mass. 1995), aff'd mem. sub nom. Azubuko v. Bd. of Dirs. British
Airways, 101 F.3d 106 (1st Cir. 1996) (unpublished table decision).
Our most recent decisions on the "linkage" question, DiFiore and
Brown, held that claims brought by luggage handlers against an
airline were preempted by the ADA, noting that they could fairly
relate to either a "price" or "service" of the airline. DiFiore,
646 F.3d at 88; see Brown, 720 F.3d at 71.
Although this case presents a set of facts not squarely
addressed in the cases cited above, we believe these claims are
similarly covered by the term "service." Plaintiff's complaint is
essentially that EgyptAir allowed El-Nady to board the aircraft
without adequately investigating her pre-flight documentation and
status. Numerous circuits have held that where an airline denied
boarding, the claims were preempted. See, e.g., Onoh v. Nw.
Airlines, Inc., 613 F.3d 596, 599-600 (5th Cir. 2010); Smith v.
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Comair, 134 F.3d 254, 259 (4th Cir. 1998); see also Chukwu, 889 F.
Supp. at 13-14. Whether the airline is allowing a passenger onto
the plane or preventing a passenger from boarding, that
determination takes place during the company's ticketing, check-in
and boarding procedures. See Chukwu, 889 F. Supp. at 14 ("The gist
of [plaintiff's] complaint is that [the airline] wrongfully
prevented his brother from boarding a flight, a process uniquely
within the service provided and controlled by air carriers."). We
thus conclude that the ticketing, check-in and boarding procedures
at issue here constitute a "service" for the purposes of the ADA in
accordance with our broader view of the term "service."
Plaintiffs protest that the decision to allow boarding is
nonetheless too "tenuous, remote, or peripheral," Morales, 504 U.S.
at 390, in its relationship to the provision of a service. We
disagree. The Supreme Court has noted the breadth of the "relating
to" language and the broad interpretation it has afforded the
phrase in cases interpreting the similarly-worded Employee
Retirement Income Security Act. Id. at 383-84; see Shaw v. Delta
Air Lines, Inc., 463 U.S. 85, 96 (1983). Ultimately, Congress's
intent in enacting the ADA and its preemption provision was
ensuring "maximum reliance on competitive market forces" and "that
the States would not undo federal deregulation with regulation of
their own." Morales, 504 U.S. at 378. As such, state law may be
preempted even if it is indirectly or generally applicable, and
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preemption is favored where the law would have a "significant
impact" on Congress's deregulatory goals. Rowe, 552 U.S. at 370-
71.
In this case, the district court assumed that the claims
in question implicated "services," but it felt that the claims did
not "relate to" the "services" strongly enough. Bower v. El-Nady,
847 F. Supp. 2d 266, 272 (D. Mass. 2012). It viewed the negligence
claims as being similar to personal injury tort claims, which
nearly all courts agree are not preempted by the ADA. Id. at 272-
73. In reaching this conclusion, the court relied heavily on
Gill v. JetBlue Airways Corp., 836 F. Supp. 2d 33, 41-43 (D. Mass.
2011), which held that a personal injury lawsuit was not preempted
despite its implicating the "service" of boarding because it did
not sufficiently relate to Congress's deregulatory goals. The
district court felt that in this case, although plaintiff's success
might have an "incidental impact" on the airline's ticketing
procedures, it would be a generalized one that would not put any
one airline at a competitive disadvantage. Bower, 847 F. Supp. 2d
at 273.
We disagree. Although the district court correctly noted
that personal injury claims are generally not preempted by the ADA,
there are numerous distinctions between personal injury claims and
the claims present in this case. First, the fact that the ADA
insurance provision mandates that airlines carry sufficient
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insurance to pay "for bodily injury to, or death of" its passengers
suggests that Congress never intended to preempt personal injury
claims. See 49 U.S.C. § 41112(a). Plaintiffs do not allege bodily
injury here, however.
Second, neither a tort claim like the one at issue in
Gill, nor the type of minor breach of contract claim at issue in
Wolens12 gives rise to the type of patchwork state regulations that
the ADA was intended to dissolve. Much like the laws against
gambling and prostitution referenced as "tenuous" in Morales,
standard common law duties of care have little effect on an
airlines' day-to-day operations. See Morales, 504 U.S. at 390.
Accordingly, the ADA offers little reason to treat a passenger who
slips and falls while deplaning differently than one who slips and
falls in a restaurant.13 Were we to hold that EgyptAir violated its
common law tort duty in this case, however, we would be imposing a
12
In Wolens, the dispute centered on the terms of an airline's
self-imposed frequent-flyer program. The Court relied on the
limited nature of the contract at issue in holding that the ADA's
preemption clause did not extend to a breach of contract claim
"seeking recovery solely for the airline's alleged breach of its
own, self-imposed undertakings." Wolens, 513 U.S. at 228. In
contrast, plaintiffs here seek to challenge a host of ticketing and
boarding procedures, bringing them well beyond the limitations of
the so-called "Wolens exception."
13
Those types of injuries would more properly fall under the
purview of the Convention for the Unification of Certain Rules
Relating to International Transportation by Air, Oct. 12, 1929, 49
Stat. 3000, 137 L.N.T.S. 11 (entered into force Feb. 13, 1933)
[hereinafter Warsaw Convention], see McCarthy v. Nw. Airlines,
Inc., 56 F.3d 313, 316-18 (1st Cir. 1995), as amended by the
Montreal Convention.
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fundamentally new set of obligations on airlines under the rubric
of "duty of care." These would include heightened and
qualitatively different procedures for the booking and boarding of
certain passengers on certain flights. To defeat Congressional
intent to preempt, a mere reference to a duty of care will not
suffice. It is the nature and extent of that duty which alters the
analysis. We believe the Third Circuit stated the issue well when
it said "the proper inquiry is whether a common law tort remedy
frustrates deregulation by interfering with competition through
public utility-style regulation. When state law does not have a
regulatory effect, it is 'too tenuous, remote or peripheral' to be
preempted." Taj Mahal Travel, Inc., 164 F.3d at 194 (quoting
Morales, 504 U.S. at 390).
Plaintiffs, however, suggest that the proper analysis
relates to the economic impact that the laws would have on the
airlines. The district court seemed to agree, stating that "it is
difficult to imagine why any one airline would be put at a
competitive disadvantage with others subject to the same rules."
We do not see this as the correct analysis post-Rowe.14 As we have
recently recognized, the ADA preempts laws regulating the
14
Even if the competitive effect on the airlines was not the wrong
focus, EgyptAir arguably would feel the brunt of Bower's proposed
regulations, including specialized training for ticket agents and
limited kiosk check-ins for single parents traveling with children,
more than the average airline by virtue of its primarily flying to
a non-Hague Convention signatory country.
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operations of airlines "whether at high cost or low." DiFiore, 646
F.3d at 88 (explaining that skycaps' attempts to change the
airlines' signage and messaging, at little cost to the airline, are
"just what Congress did not want the states regulating"). In our
interpretation, Rowe shows that non-economic laws that nonetheless
have a significant regulatory effect on the airlines are preempted.
Id. at 86 ("[P]reemption might have been confined to state laws
that themselves aimed at economic regulation as opposed to other
state interests, but that course too has been foreclosed.")
(emphasis in original) (citing Rowe, 552 U.S. at 373-76).
Plaintiffs persist, arguing that Rowe only talks about
economic motivation and that economic impact is still the correct
analysis. We do not agree that the Court's focus was so narrow.
The Court in Rowe was concerned with whether the regulation imposed
on the airline service obligations beyond what the market required.
The Court stated that the law in question would require carriers to
provide services not dictated by the market, but "even were that
not so, the law would freeze into place services that carriers
might prefer to discontinue in the future." Rowe, 552 U.S. at 372.
Significantly, Rowe recognized that Maine's attempts to
impose verification duties on tobacco deliverers were preempted.
The analogous conclusion would be that common law enforcement which
would ultimately impose additional verification duties on airlines
(in the business of transporting people, not tobacco) is also
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preempted. Cf. Rowe, 552 U.S. at 373 ("[t]o allow Maine to insist
that the carriers provide a special checking system would allow
other States to do the same. [This] . . . could easily lead to a
patchwork of state service-determining laws, rules, and regulations
. . . inconsistent with Congress's major legislative effort to
leave such decisions . . . to the competitive marketplace.").
Plaintiffs attempt to frame their claims as doing no more
than applying general tort principles to the airlines. In
plaintiff's estimation, the duty to investigate for abductions
would only be triggered when an airline is faced with specific
circumstances. Much like airlines are constrained by general tort
principles in dealing with drunk and disorderly passengers,
plaintiffs claim, the airlines must exhibit a basic duty of care in
preventing child abductions. We are unconvinced by this argument.
Unlike dealing with drunks, taking general care to avoid deplaning
injuries, or preventing gambling/prostitution rings from being run
out of their airport lounges, plaintiff's claims would impose
duties on the airlines beyond what is expected of nearly every
other business. As the district court found when dismissing
plaintiff's tort claims, plaintiff's set of "red flags" are not
nearly as rare as they contend.15 See Bower, 847 F. Supp. 2d at
15
According to EgyptAir, passengers fly on an "emergency" basis,
often paying with cash, every day, and a parent travels with
children but no spouse present on nearly every flight. In this
case specifically, El-Nady did not take Bower's last name in
accordance with Egyptian naming customs, meaning EgyptAir sees
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277-78. In other words, it was not at all obvious that an
abduction was taking place, as it is when an inebriated passenger
causes a scene. Moreover, international child abductions tend to
uniquely impact airlines, and even then only the subset of airlines
flying transnational routes, as opposed to other types of
businesses serving the public. This is not true with more
generalized tort cases.
Furthermore, if plaintiffs prevailed, the result would be
exactly what Rowe and Morales warn against: a "patchwork" of state
regulations that effectively frustrate Congress's purpose in
deregulating the airlines. Rowe, 552 U.S. at 373; Morales, 504
U.S. at 378-79. Were plaintiffs to succeed with their claims, the
result would likely force international airlines departing from
Massachusetts to institute investigative procedures, define "red
flags," and develop protocols to deal with international child
abductions.16 Absent a successful case in another jurisdiction,
however, they would not have these same duties in any other
airports.
mothers with different last names from their children regularly.
16
This is particularly troubling given that the imposition of
state law standards on the operations of international airlines is
a subject highly regulated under the obligations of various
treaties. The deregulation of foreign air transportation is itself
enshrined in international obligations of the United States. See,
e.g., 49 U.S.C. § 40101(e); International Air Transportation
Competition Act of 1979, § 17, Pub. L. No. 96-192, 94 Stat. 35, 42
(1980).
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Congress is aware of the issues that international child
abductions raise with respect to the airlines. Should Congress
choose to act in this area with federal regulation, it will be with
full knowledge of the economic and non-economic impacts on the
airline industry. This is highly preferable to a state-by-state
(and potentially, jury-by-jury) determination of what, exactly,
airlines must do when confronted with a possible abduction attempt.
In conclusion, we hold that plaintiff's claims, which
challenge airline ticketing, check-in, and boarding procedures,
sufficiently relate to the service of an air carrier and are
therefore preempted by the ADA.17
III. Conclusion
For the above-stated reasons, we affirm the district
court's dismissal of plaintiff's claims.
Affirmed.
17
Because we find that the claims are preempted, we need not
address Bower's claim that the district court erred in excluding
one of his expert witnesses.
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