Opinion
Civil Action 19-cv-03544-CMA-NRN
07-30-2020
LENA RAMSAY and JANE DOE, individually, and on behalf of all other similarly situated, Plaintiffs, v. FRONTIER, INC., Defendant.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (DKT. #36) and DEFENDANT'S MOTION TO STRIKE CLASS ACTION ALLEGATIONS (DKT. #37)
N. Reid Neureiter, United States Magistrate Judge
I. Background
This is a lawsuit brought by two female sexual assault victims against an airline, Frontier, Inc. (“Frontier”). The suit seeks both compensation and injunctive relief for sexual assaults that allegedly occurred while flying on Frontier flights. The lawsuit is brought as a class action under Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs seek compensation for the physical and emotional injuries the two suffered from the alleged assaults and their aftermath, and also seek injunctive relief on behalf of “[a]ll passengers who flew on Frontier flights between December 16, 2017 and the present.”
The asserted basis for the class aspect of the suit is that sexual assault on commercial flights is becoming more and more prevalent. While aware of this reality, Frontier is alleged to lack adequate policies either to prevent or to respond to in-flight sexual assaults and failed to enforce the policies it does have, thereby subjecting every Frontier passenger to the unnecessary risk of harm from in-flight sexual assault. It is alleged that Frontier has an affirmative duty to aid and protect its passengers and that this duty includes protecting passengers from sexual assaults by fellow passengers and responding properly to in-flight sexual assaults that do occur. Frontier allegedly violated its duties by failing to implement or enforce appropriate policies and procedures to prevent, or properly respond to, sexual assaults that occur on its flights, failing to report in-flight assaults to the proper authorities, and failing to cooperate with authorities in the investigation process.
The injunctive relief sought includes an order requiring that Frontier establish and implement a variety of uniform policies that would reduce the incidence of sexual assault on commercial airplanes and ensure appropriate “trauma-informed” treatment of victims when sexual assaults do occur.
The matter comes before the Court on Frontier's Motion to Dismiss for Failure to State a Claim (Dkt. #36) and Motion to Strike Class Action Allegations (Dkt. #37). The two motions were referred to me by Judge Arguello on March 16, 2020. Dkt. #38. I heard argument on the motions (by telephone) on May 27, 2020. A transcript of the argument on Frontier's motions can be found in the record at Dkt. #58.
In addition to the Motions, Oppositions, and Replies filed by the Parties, Plaintiffs were given leave to file a Sur-Reply to the Motion to Dismiss, which Plaintiffs did on May 1, 2020. See Dkt. #50. At oral argument on the motions, Plaintiffs were given further leave to file a supplemental brief addressing the issue of the availability of injunctive relief in a personal injury case. Plaintiffs filed their Supplemental Brief addressing Injunctive Relief on June 1, 2020. Dkt. #56. Defendant Frontier was permitted to file its own supplemental brief. See Dkt. #57.
The Court has reviewed the written submissions of the Parties and considered the authorities cited therein, as well as the Parties' oral arguments. It is recommended that Defendant Frontier's Motion to Dismiss for Failure to State a Claim be GRANTED IN PART and DENIED IN PART. It is further recommended that Defendant Frontier's Motion to Strike Class Allegations be GRANTED.
II. Plaintiffs' Complaint
The following is a synopsis of the Plaintiffs' Complaint (Dkt. #1), the non-conclusory allegations of which are taken as true for purposes of Defendants' Motion to Dismiss.
Frontier is an airline carrier headquartered in Denver, Colorado. Dkt. #1 at ¶ 28. Plaintiff Lena Ramsay is a resident of Denver, Colorado. Id. at ¶ 14. Ms. Ramsay was sexually assaulted by a male passenger on a Frontier flight from Denver, Colorado to Providence, Rhode Island on October 20, 2018. Id. at ¶ 15. Ms. Ramsay immediately reported the incident to a flight attendant, but the flight attendant refused to allow Ms. Ramsay to switch seats to move away from her assailant. Id. at ¶¶ 16-17. The flight attendant did not report the incident to anyone else and did not ask that law enforcement be contacted to meet the plane upon landing. Id. at ¶¶ 18-19. Frontier is alleged to have failed to cooperate or assist Ms. Ramsay in procuring evidence concerning her assault, including refusing to provide her or the FBI with the identities of her assailant and potential witnesses. Id. at ¶ 20.
Plaintiff Jane Doe is a resident of Denver, Colorado. She was sexually assaulted by a male passenger on a Frontier flight from Denver to Florida on November 30, 2018. Id. at ¶¶ 22-23. Like Plaintiff Ramsay, Jane Doe reported the assault to a flight attendant. The flight attendant did not report the incident to anyone else or ask that law enforcement be contacted to meet the plane upon landing. Id. at ¶¶ 24-26. It is alleged that Frontier failed to cooperate and assist Jane Doe with evidence concerning her assault, including refusing to provide her with the identities of her assailant and potential witnesses. Id. at ¶ 27.
Plaintiff Jane Doe moved for the right to proceed anonymously, given the nature of the allegations in the Complaint and in order to protect her privacy. See Dkt. #2. That Motion was granted on February 20, 2020. See Dkt. #29.
Per the Complaint, passenger-on-passenger in-flight sexual assault is a well-known, growing problem. Frontier is aware of the problem of in-flight sexual assault because, among other things, in June 2018, the FBI issued a warning to airlines and the public at large that the number of sexual assaults reported during commercial airline flights has been increasing “at an alarming rate.” Id. at ¶ 2. The Complaint's citation to this information comes from a CNN article found at https://www.cnn.com/2018/06/20/politics/fbi-airplane-sexual-assault/index.html . The cited article notes that the FBI had opened 63 in-flight sexual assault investigations in 2017, compared with 57 in 2016, 40 in 2015, and 38 in 2014. See Javier De Diego, Omar Jimenez, Rene Marsh and Juana Summers, FBI: Sexual Assaults on Flights Increasing ‘At an Alarming Rate, ' CNN, Updated 9:19 PM ET, June 20, 2018.
The International Air Transport Association reported 812 incidents during 2018 that were categorized as inappropriate behavior such as touching, sexual harassment, physical aggression, or indecent acts. Dkt. #1 at ¶ 31. Twenty percent of flight attendants report receiving a passenger report of in-flight sexual assault. Id. at ¶ 32. The airline passenger organization FlyerRights.org released twenty detailed passenger complaints of alleged in-flight sexual assault made to the United States Department of Transportation (“DOT”) (obtained via Freedom of Information Act requests), which Plaintiffs assert “provide a sense of the scope and frequency of in-flight sexual assault.” Id. at ¶ 33.
The Complaint asserts that the news media has been reporting on the prevalence of in-flight sexual assaults for years. The FBI reports the similarity of the crimes: usually occurring on long-haul flights when the cabin is dark, with victims either in the middle or window seats, sleeping and covered with a blanket or jacket. Victims report waking up with their seatmate's hands inside their clothing or underwear. Id. at ¶ 35. The FBI has also publicized actions that a flight crew can take when a sexual assault is reported:
Flight attendants and captains represent authority on the plane . . . they can alert law enforcement, and they can sometimes deal with the problem in the air. The flight crew can also put the offender on notice, which might prevent further problems. If alerted in advance [by the pilot radioing ahead to the airport], FBI agents can be on hand when the plane lands to conduct interviews and take subjects into custody. FBI victim specialists can respond as well, because victims of federal crimes are entitled by law to a variety of services.Id. ¶ 36.
Eighty-six percent of flight attendants surveyed said they were uncertain, or had no knowledge, of any policies, procedures, or even guidance from their airlines for handling sexual assault reports. Id. at ¶ 38.
Thus, per the Complaint, Frontier knew or should have known of the growing prevalence of in-flight sexual assaults because it is widely available and public knowledge. Id. at ¶ 39.
The Complaint alleges that, as a common carrier, Frontier has a special duty to provide due care and aid in the protection of passengers' safety. Id. at ¶ 40. That duty allegedly includes a duty to take reasonable steps to prevent and deter in-flight sexual assault on Frontier flights and to properly respond to assaults that do occur. Id. at ¶ 41. This is because while passengers are on a plane, they have little control over their surroundings: they are in cramped quarters and they cannot leave the plane until it lands. In sum, Frontier has control over passengers' surroundings and, indeed, their activities during the time they are onboard the plane. Id. at ¶¶ 43-44. Accordingly, Frontier is alleged to have both the ability and the duty to implement and enforce policies to prevent and deter in-flight sexual assaults and properly respond to those that do occur. Id. at ¶ 46.
The Complaint asserts that as a result of the breaches of duty by Frontier (namely, the lack of appropriate policies or lack of enforcement of the policies that do exist), “Plaintiffs were sexually assaulted by their fellow passengers while they were on Frontier flights, and are at ongoing risk for future sexual assaults.” Id. at ¶ 5. The failure to enforce adequate policies for the proper response to in-flight sexual assaults “exacerbates and amplifies the trauma of the actual assault due to institutional betrayal.” Id. at ¶¶ 50-51.
Plaintiffs allege that as a result of Frontier's conduct, they suffered and continue to suffer “great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress including depression, anxiety, humiliation, and fear of flying and travel. Id. at ¶ 69.
III. Class Action Allegations
Beyond the two individual sexual assault victims seeking a remedy for the harm from the assaults and the distressing aftermaths, this case includes class allegations. Plaintiffs purport to sue on behalf of themselves and a nationwide class of “all passengers who flew on Frontier flights between December 16, 2017 and the present” (the “Class”). Dkt. #1 at ¶ 53. To be clear, the proposed Class includes not just Frontier passengers who may claim to have been sexually assaulted, but all Frontier passengers, presumably including husbands and wives and other family members sitting next to each other or passengers who were sitting alone in otherwise empty rows.
Excluded from the Class are Frontier employees and family members, as well as judicial officers assigned to this case, their staffs, and immediate family members.
Plaintiffs allege that the Class consists of “hundreds, if not thousands” of passengers, “making joinder impracticable, ” in satisfaction of Fed. R. Civ P. 23(a)(1). Id. at ¶¶ 56-57. This alleged number of Class members is a vast under-estimate given that the Class includes all Frontier passengers since December 2017, not just those that have been sexually assaulted. The Court will take judicial notice of the fact that, based on the DOT's Bureau of Transportation Statistics database, Frontier carried more than 16.8 million passengers (both domestic and international) in 2017, 19.4 million passengers in 2018, and more than 22.6 million in 2019. See https://www.transtats.bts.gov/Data Elements.aspx?Data=1.Of course, accounting for people who flew round-trip and/or took multiple flights on the airline, the number of individuals who traveled on Frontier in those years will be smaller. But one at least gets a sense of the order of magnitude of the size of the proposed Class-tens of millions of passengers-who were subject to the allegedly harmful conditions on Frontier flights. The same data set, https://www.transtats.bts.gov/Data Elements.aspx?Data=2, includes the number of flights by airlines. This shows 117, 666 discrete Frontier flights in 2018 and 133, 326 Frontier flights in 2019.
The Court is entitled to take judicial notice of facts which are of public record and not subject to reasonable dispute. Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006).
From the allegations of the Complaint and information of which the Court is entitled to take judicial notice, it stands to reason that even if the rate of in-flight sexual assault is increasing nationally (as reported by the FBI in the articles cited in the Complaint), the number of passengers who have been sexually assaulted nevertheless is very small as compared to the tens of millions of passengers who have flown on Frontier since December 2017.
Other than the reference to the number of reports of sexual assaults to the FBI, Plaintiffs' Complaint makes no attempt to estimate the actual number of sexual assaults on Frontier flights. Nor does it attempt to predict the likelihood or probability of sexual assault on an airline generally or on a Frontier flight specifically. The simple probability of an event occurring is mathematically defined as P(A)=(Number of Event A)/(Total number of Events). Plaintiffs' barely provide the numerator needed for such a probability analysis, and completely fail to mention the denominator-either the annual number of Frontier passengers or the annual number of air passengers in United States airspace. Even if one were to assume that the FBI figures cited in Plaintiffs' referenced CNN article underreport in-flight sexual assault by a factor of ten, 63 actual investigations in 2017 suggests potentially 630 sexual assaults occurred in-flight in the United States in that year. If these assumed 630 assaults occurred among an estimated 16.79 million Frontier passenger enplanements in 2017, (see DOT Bureau of Transportation Statistics at https://www.transtats.bts.gov/Data Elements.aspx?Data=1), then Frontier fliers in 2017 would have a 1 in 26, 650 chance of being sexually assaulted. But the 630 assumed assaults are not only for Frontier. They would be spread across all airlines and all passengers. According to 2017 U.S. Airline Traffic Data, there were approximately 964.7 million passengers carried in 2017 in the United States. Dividing 630 estimated assaults by 964.7 million passenger enplanements suggests that airline passengers in the United States would have a one in 1.5 million chance of being sexually assaulted in 2017. This illustration is not intended to minimize the seriousness of the issue of in-flight sexual assault or the trauma that individual sexual assault victims have experienced. Rather, it illustrates the difference between the relatively small number of passengers who may have been sexually assaulted (from what can be gleaned from the limited allegations of the Complaint) and the vastly larger number of passengers who flew on domestic airlines (including Frontier) and could not claim to have been sexually assaulted. It also provides a very rough estimate of the probability or likelihood of sexual assault for any particular passenger. Other than conclusory statements about the increased reporting of sexual assaults on airlines, Plaintiffs' Complaint makes no allegations about the likelihood or probability of sexual assault at all. The Complaint similarly lacks any plausible estimate of the number of sexual assaults on Frontier flights.
Plaintiffs assert their claims are typical of the other Class members' claims because Plaintiffs and Class members “were subjected to the same wrongful conduct in the same manner.” Dkt. #1 at ¶ 59.
Plaintiffs also assert that this action involves common questions of law and fact that predominate over any questions affecting individual class members, specifically:
(a) Whether Defendant owed a duty to Plaintiffs and Class members to protect and aid in the protection of their safety while traveling on Frontier flights;
(b) Whether Defendant breached its duties to Plaintiffs and Class members;
(c) Whether Defendant knew or reasonably should have known of the prevalence of and foreseeability of passenger-on-passenger in-flight sexual assault on its flights;
(d) Whether Defendant lacked and/or failed to enforce adequate policies or procedures to prevent/deter in-flight sexual assaults;
(e) Whether Defendant lacked and/or failed to enforce adequate policies or procedures to respond to in-flight sexual assaults that do occur;
(f) Whether Defendant lacked and/or failed to enforce any policies to prevent/deter in-flight sexual assaults;
(g) Whether Defendant lacked and/or failed to enforce adequate policies to respond to in-flight sexual assaults that do occur;
(h) Whether Defendant is liable for negligence;
(i) Whether Defendant is liable for willful and wanton conduct;
(j) Whether Defendant is liable for negligent infliction of emotional distress;
(k) Whether Defendant is liable for intentional infliction of emotional distress; and
(1) Whether Plaintiffs and Class members suffered harm as a result of Defendant's violations and, if so, the appropriate measure of damages.Id. at ¶ 60.
Plaintiffs also allege that they are adequate class representatives. They claim their interests do not conflict with the interests of other Class members they seek to represent, and they intend to prosecute the action vigorously. Id. at ¶ 61.
Finally, Plaintiffs allege that a class action is superior to all other available means for the fair and efficient adjudication of the controversy. Plaintiffs assert that the “highly sensitive and private nature of the facts involved here counsels toward providing a class vehicle to adjudicate these claims.” Id. at ¶ 62. They assert that the damages and other financial detriment suffered by Plaintiffs and other class members are “relatively small” compared to the burden and expense that would be required to individually litigate these claims. Id. Plaintiffs assert that “the class action device presents far fewer management difficulties and provides the benefits of single adjudication, economy of scale, and comprehensive supervision by a single court.” Id.
IV. Claims Asserted
Plaintiffs make five separate claims for relief: 1) Negligence; 2) Negligent Infliction of Emotional Distress; 3) Intentional Infliction of Emotional Distress; 4) Willful and Wanton Conduct; and 5) for Injunctive and Equitable Relief.
A. Negligence
With respect to the negligence claim, Plaintiffs assert that Frontier, as a common carrier, has a special duty to provide due care and ensure and protect and aid in the protection of passengers' safety. This duty allegedly includes the duty to “take reasonable steps to prevent and deter in-flight sexual assault on its flights, and to properly respond to such assaults that do occur, particularly in light of Frontier's knowledge of the prevalence of in-flight sexual assault. Dkt. #1 at ¶ 65. Plaintiffs assert there is a duty “to protect and warn” that arises from the common carrier doctrine as applied to airline carriers. Id. at ¶ 67. Plaintiffs allege that Frontier breached its duty of care to Plaintiffs (and Class members) by failing to implement and enforce uniform policies and procedures for the prevention, deterrence, and response to in-flight sexual assaults on its flights; by failing to report in-flight sexual assaults to the proper authorities (or any authorities); and by failing to cooperate with authorities in the reporting and investigation process into in-flight sexual assaults. Id. at ¶ 68.
Plaintiffs claim that as a direct and foreseeable result of this conduct, Plaintiffs and the Class members were and still are being put at unnecessary risk of harm and in many cases “suffered and continue to suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress including depression, anxiety, humiliation, loss of enjoyment of life, and fear of flying and travel, ” among other injuries. Id. at ¶ 69.
B. Negligent Infliction of Emotional Distress
With respect to the claim of negligent infliction of emotional distress, it is alleged that Frontier knew or should have known that a passenger who experienced in-flight sexual assault and was treated poorly or inadequately in the aftermath would experience emotional distress. Id. ¶ 72. Plaintiffs and Class members were allegedly in the “zone of danger” as passengers on Frontier flights, unable to escape from their assailants, or report a crime to the authorities on their own. Id. at ¶ 74. As a result of Frontier's conduct, Plaintiffs and Class members are alleged to have sustained severe emotional distress, physical manifestations of emotional distress, and economic and noneconomic damages. The injuries suffered by Plaintiffs and the Class members are alleged to be “substantial, continuing, and permanent.” Id. at ¶ 75. Frontier's conduct is alleged to have caused suffering for Plaintiffs and the Class members “at levels that no reasonable person should have to endure.” Id. at ¶ 76.
C. Intentional Infliction of Emotional Distress
With respect to this claim, Plaintiffs assert that Frontier's “extreme and outrageous conduct” intentionally or recklessly caused severe emotional distress to Plaintiffs and Class members. The Complaint alleges that Frontier acted with intent or recklessness, “knowing that passengers were likely to endure emotional distress given their relative lack of power or control over the situation or ability to report a crime while passengers on Frontier flights.” Id. at ¶ 79. Also cited is Frontier's alleged failure to report or adequately respond to Plaintiffs' having suffered an in-flight sexual assault. Plaintiff claim the same damages-emotional, economic, and noneconomic-for this claim as well. Plaintiffs assert that Frontier's conduct caused suffering for Plaintiffs and Class members “at levels that no reasonable person should have to endure.” Id. at ¶ 81.
D. Willful and Wanton Conduct
Plaintiffs make this claim, which is essentially a claim for punitive damages under Colorado law, asserting that Frontier acted with “willful disregard for precautions” in a manner Frontier “must have realized as dangerous” and did so “heedlessly and recklessly, without regard to consequences, or to the rights and safety of others.” Id. at ¶¶ 85-86.
E. Injunctive and Equitable Relief
Finally, Plaintiffs allege that “an actual, justiciable controversy” exists between Plaintiffs and Class Members on the one hand, and Frontier on the other. Id. at ¶ 89. Because Frontier has allegedly breached its duty under Colorado law to “protect and aid its passengers, ” Plaintiffs and the Class request that the Court issue an order requiring Frontier to:
1. establish and implement a uniform policy, including training and education for employees and crew members, for how to identify in-flight sexual assault;
2. establish and implement policies and procedures for the prevention and deterrence of in-flight sexual assault, including passenger education and messaging, clear communication of consequences, more frequent cabin walk-throughs, and passenger cabin monitoring by closed-circuit television;
3. establish and implement a uniform policy for how to respond to in-flight sexual assault, including humane and trauma-informed treatment of alleged victims;
4. centrally track all reports of in-flight sexual assault;
5. establish and implement a uniform policy for how to report in-flight sexual assault to the FBI and making reporting of in-flight sexual assault to the FBI mandatory;
6. ban for life all passengers who commit sexual assault on Frontier flights;
7. cooperate with the FBI and any other law enforcement in the ongoing and future investigations into in-flight sexual assault on Frontier flights.Id. at ¶ 90.
V. Frontier's Motion to Dismiss
Frontier moves to dismiss all of Plaintiffs' claims for failure to state a claim. To the extent that Plaintiffs allege Frontier acted negligently prior to the assaults and could have or should have taken actions that would have prevented the assaults from occurring, Frontier argues that Plaintiffs fail to allege Frontier had sufficient notice or opportunity to prevent the assaults to support their negligence claim. In Frontier's view the sexual assaults were not sufficiently foreseeable to create a duty on Frontier's part to protect its passengers from such assaults. With respect to alleged intentional or negligent breaches of duty after the assaults occurred, Frontier argues both that there was no duty to assist in the investigation of the assaults and that any such common law duty is preempted by federal law. With respect to the injunctive and equitable relief, Frontier asserts that Plaintiffs have not adequately alleged irreparable harm and that therefore injunctive relief is not available as a matter of law. Frontier also argues that because Plaintiffs' claims (especially the claims for injunctive relief) relate to airline services, they are preempted by federal law and regulation. Frontier also argues that the claim for “willful and wanton conduct” should be dismissed because it is, in effect, a claim for punitive damages that, under Colorado law, must not be pled in an initial complaint.
VI. Frontier's Motion to Strike Class Action Allegations
In addition to moving to dismiss all of Plaintiffs' claims, Frontier has also moved to strike Plaintiffs' class action allegations. According to Frontier, this case should be deemed a personal injury action brought by two passengers, who flew different planes on different flights, and were assaulted by different people. It should not, in Frontier's view, be a class action brought on behalf of everyone who has flown Frontier for the past two and a-half years. Frontier claims that the issues relating to class certification are sufficiently plain from the pleadings that the class action allegations should be stricken. The putative class definition of “all passengers who flew on Frontier flights between December 16, 2017 and the present, ” irrespective of whether they were sexually assaulted or suffered injuries, is overbroad and lacks the commonality or typicality necessary for a class action. Frontier also takes issue with the claim for injunctive relief as not being appropriate to the class as a whole. Finally, to the extent that Plaintiffs seek certification as to particular issues only, Frontier asserts that too many individual issues and differences predominate, and a class action could never be maintained.
VII. Frontier's Motion to Dismiss for Failure to State a Claim
A. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hull v. Dutton, 935 F.2d 1194, 1198 (10th Cir. 1991). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-81. Second, the court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
However, the Court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted).
In evaluating a Rule 12(b)(6) motion to dismiss, the Court may consider documents incorporated by reference, documents referred to in the complaint that are central to the claims and matters of which a court may take judicial notice. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly filed court records, including court transcripts, are subject to judicial notice. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979); United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007).
B. Plaintiffs' Claim for Willful and Wanton Conduct
First, I recommend that Plaintiffs' claim for willful and wanton conduct be dismissed. Colorado law does not recognize an independent cause of action of this type. Carani v. Meisner, 2009 WL 2762719, at *4 (D. Colo. Aug. 26, 2009) (dismissing plaintiff's willful land wanton conduct claim for that reason). Plaintiffs argue in response that they have simply mislabeled what instead should be a claim for exemplary damages under Colo. Rev. Stat. § 13-21-102 and ask for leave to amend the Complaint to recast their claim as one for exemplary (punitive) damages.
There are two problems with Plaintiffs' position. First, under Colorado law, no claim for punitive or exemplary damages may be included in any initial claim for relief. Instead, the plaintiff must seek leave of court to add such a claim after making a prima facia showing that exemplary damages may be justified. See Colo. Rev. Stat. § 13 102(1.5)(a). And second, a request to amend a complaint in a response brief is not proper in any event. Under D.C.COLO.LCivR 7.1(d), “[a] motion shall not be included in a response or reply to the original motion. A motion shall be filed as a separate document.” So, both as a matter of Colorado state substantive law and this Court's procedures, Plaintiffs' claim for “willful and wanton conduct” should be dismissed. If Plaintiffs later can show prima facie proof of a triable issue on exemplary damages, with proper citation to evidence, Plaintiffs may seek leave to amend to add such a claim in the normal course. See Colo. Rev. Stat. § 13-21-102(1.5)(a).
C. Plaintiff's Claim for Negligence in Causing the Sexual Assaults
Plaintiffs assert that, as a common carrier, Frontier had a duty to protect and aid in passengers' safety and that this duty extended to include the duty to prevent and deter in-flight sexual assaults. Frontier's knowledge of the growing problem of in-flight sexual assaults allegedly arises both from the CNN article dated June 20, 2018 referencing the FBI report on the increasing number of sexual assaults on airplanes and other general media reports of in-flight sexual assaults. But Plaintiffs make no specific allegations that Frontier had any advance knowledge about the specific passengers who are alleged to have assaulted Plaintiffs. No odd or threatening pre-assault behavior by either of the assailants is noted or described in the Complaint. In fact, the Complaint contains no details of the assaults at all, nor any description of the flights, the assailants, or the circumstances of the incidents. There is no allegation that Plaintiffs' specific flights were somehow known to be prone to sexual assaults. And, as noted in Footnote 5 above, other than general statements about increased reports of in-flight sexual assaults, Plaintiffs make no allegations about the likelihood or probability of a sexual assault occurring on an airline.
With respect to Plaintiff Ramsay, the only description of the assault is contained in paragraph 15 of the Complaint: “Plaintiff Lena Ramsay was sexually assaulted by a male passenger on a Frontier flight from Denver to Providence on or about October 20, 2018.” With respect to Jane Doe, the allegation, found at paragraph 23 of the Complaint, similarly lacks any detail: “Plaintiff Jane Doe was sexually assaulted by a male passenger on a Frontier flight from Denver to Florida on or about November 30, 2018.” The Complaint does not say whether these were night flights, whether Plaintiffs were seated near windows, or provide any description of where the assailants were seated or how they behaved either before or after the alleged assault.
In sum, from the Complaint, there was a complete absence of any warnings or indications about the behavior of these particular assailants in advance of these alleged assaults. Nor is there any description about the circumstances of these particular flights, and whether sexual assaults were known to occur on these routes. Without any specifics about these particular sexual assailants or any advance warning that these particular passengers might be sexual predators, or the dangers of these specific flights, Plaintiffs' Complaint necessarily implies that Frontier was (or should have been) on notice that each of its tens of millions of annual passengers is a potential sexual predator and, not having taken any precautionary measures, Frontier could be held civilly liable for any assaults by passengers that might occur because of its duty to protect, arising from its alleged general knowledge about the relatively recent increase in in-flight sexual assault. Accepting Plaintiffs' position would turn Frontier (and indeed any airline) into an insurer for any sexual assaults that might occur on board.
Colorado cases espouse the general principle that a legal duty to use reasonable care arises in response to a foreseeable and unreasonable risk of harm to others. Un. Blood Servs. v. Quintana, 827 P.2d 509, 519 (Colo. 1992). Plaintiffs are correct that Colorado law generally states a common carrier (such as an airline) is subject to the highest degree of care in negligence actions. Publix Cab Co. v. Fessler, 335 P.2d 865, 868 (Colo. 1959); Bedee v. Am. Med. Response of Colo., 361 P.3d 1083, 1092 (Colo.App. 2015). See also Westin Operator, LLC v. Groh, 347 P.3d 606, 613 (Colo. 2015) (noting the similarity between the high duty owed by an innkeeper towards his patrons and the special relationship and associated duty between a common carrier and its passengers). Yet this degree of care, while very high, does have a limit: it is “the highest degree of care reasonably to be expected from human vigilance and foresight.” Colo. & S.R. Co. v. McGeorge, 102 P. 747, 748 (Colo. 1909) (internal citation omitted). Even a common carrier need not take protective measures which would be impractical or protect from unforeseeable harms; the “highest degree of care” must reflect both the mode of transportation and the practicalities of its business operations. Id. See also Publix Cab, 335 P.2d at 868 (Colo. 1959) (common carrier owes “the highest degree of care commensurate with the practical operation of its business”). In Colorado, a common carrier is not an insurer against any accident or injury, nor is it required to “ward off any and every imaginable peril.” McGeorge, 102 P. at 749.
To assess whether, even in the face of a special relationship, a common carrier owes a duty to a passenger to avoid a specific harm, the court must engage in an analysis of the foreseeability and likelihood of the injury. See Westin Operator, 347 P.3d at 614. A negligence claim requires two distinct and separate foreseeability analyses. “First, foreseeability is an integral element of duty.” Id. at n.5. “Second, foreseeability is the touchstone of proximate cause.” Id. The first aspect of the foreseeability analysis- whether there exists a duty to protect from a particular harm-is a question of law for the court. Id.
Here, Frontier argues that there is nothing in the Complaint to suggest it was foreseeable that these two otherwise unremarkable passengers on otherwise unremarkable flights would commit sexual assault. Therefore, there was no general duty on Frontier's part to act in advance to prevent the assaults from occurring. The Court agrees.
The United States District Court for the District of Oregon recently had a very similar case, but involving at least some allegations of arguable suspicious activity on the part of the assailant in advance of the sexual assault. See R.M. v. Am. Airlines, 338 F.Supp.3d 1203 (D. Or. 2018). That court nevertheless concluded that the assault was unforeseeable and on summary judgment absolved the defendant airline of negligence.
The R.M. case involved an unaccompanied minor child flying alone on an American Airlines flight from Texas to Oregon in 2016. With respect to unaccompanied minors, it was American Airlines' customer policy to pay extra attention to such passengers to “ensure their well-being and safe travel.” The R.M. plaintiff was assigned a window seat. The assailant was assigned the middle seat next to R.M. Even though the aisle seat was vacant, and the flight attendant informed the assailant that he could move to the vacant aisle seat if he wanted, the assailant elected to sit in the middle seat, next to his victim. The assailant had to be reminded by the flight attendant to stow his seat tray prior to takeoff. The unaccompanied minor was not given the chance to change seats. When a flight attendant began distributing snacks to passengers, she noticed the assailant's hand on the R.M. plaintiff's groin area. The flight attendant immediately demanded that the assailant remove his hand, and the assailant was moved to the back of the plane and, on landing, was charged with sexual assault. 338 F.Supp.3d at 1206-07.
The R.M. plaintiff suffered physical, mental, and emotional injuries as a result of the incident and sued American Airlines in negligence for not preventing the assault. On the issue of foreseeability, the R.M. plaintiff had cited (1) evidence of other incidents where passengers, including unaccompanied minors, were sexually assaulted on commercial flights between the years 2013 and 2015; (2) “widely publicized” online news articles regarding sexual assaults on airlines; and (3) the introduction of a bill in the U.S. House of Representatives, called the “Protecting Airline Passengers from Sexual Assaults Act of 2014.” The cited news articles broadly stated that sexual assaults on commercial flights were on the rise. In addition, as to evidence of foreseeability, the plaintiff cited the fact that she was an unaccompanied minor seated in a window seat in the middle of the plane next to a male passenger, the assailant had refused to move to an open seat, and the assailant had not followed the flight attendant's safety instructions. Id. at 1215.
Applying Texas law, the court would only impose a duty on the common carrier defendant where the conduct at issue was a foreseeable result of the prior negligence of a party. Id. at 1213. The court concluded that the sexual assault of an unaccompanied minor was not foreseeable as a matter of law, finding the public news reports of increasing incidents of sexual assault on airplanes were not enough to make the assault foreseeable. Id. at 1215. In the absence of foreseeability of the assault, the court concluded that the defendant airline did not owe a duty to the R.M. plaintiff to prevent the criminal conduct, dismissing the negligence claim with prejudice. Id. at 1216. See also Dozier v. AMR Corp., No. 2-09-186-CV, 2010 WL 3075633 at *4 (Tex. App. Aug. 5, 2010) (in a case involving sexual misconduct on airline, rejecting argument that the common carrier had a duty to prevent the misconduct by patrolling the aisles and policing passengers, finding that plaintiff failed to provide evidence that the criminal sexual conduct by a male passenger toward a female seat-mate on a commercial flight was foreseeable).
The Court concludes that the same result should apply in this case under Colorado law. Notwithstanding the higher duty imposed on a common carrier, the Complaint contains no information that would have suggested it was foreseeable to Frontier personnel that the two alleged assailants in these two separate incidents on separate flights were likely to sexually assault the passengers seated next them. There is nothing in the Complaint that differentiated these two assailants from the millions of other people that fly on Frontier planes every year. There is nothing about the probability or likelihood of a sexual assault occurring on an airplane. There is nothing in the Complaint to suggest that Frontier knew or should have known that these flights or routes were particularly prone to assaultive behavior. And, as described above, in light of the number of annual passengers carried by Frontier and the number of total U.S. air passengers, it would be too much to impose a duty on Frontier to assume that, because there have been general reports of increasing sexual assault on commercial flights, every passenger is a potential sexual predator and every flight presents a foreseeable likelihood of a sexual assault.
It is instructive to compare the in-flight sexual assault scenario presented in this case to the situation in Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo. 1987), where the Colorado Supreme Court found there was a duty on the part of a fast food restaurant located in a high crime area to take reasonable steps to protect patrons from harm resulting from foreseeable criminal conduct of third parties. The Taco Bell case involved the shooting of a patron after he had entered the restaurant while a robbery was progress. The injured patron sued Taco Bell in negligence, claiming that the restaurant had failed to take reasonable preventative steps to protect its customers, such as by hiring armed security. Citing Comment f to Section 344 of the Restatement (Second) of Torts, the court in Taco Bell emphasized that “the existence of the duty depends, to a great extent, on the foreseeability of criminal conduct by third persons.” 744 P.2d at 47. The court found that evidence of ten armed robberies in three prior years at the same Taco Bell restaurant in a high crime area on East Colfax Avenue in Denver, coupled with testimony by a police officer as to the dangerousness of the neighborhood, “sufficiently established that harm to customers as the result of criminal acts by third persons was foreseeable by Taco Bell.” Id. at 48. Foreseeability, the court explained “is based on common sense perceptions of the risks created by various conditions and circumstances.” Id. (citing Restatement (Second) of Torts § 289 (1965)).
Another useful comparison is a very recent decision by the Colorado Supreme Court on the foreseeability of criminal conduct by a third party in the context of the Colorado Premises Liability Act, under which a premises owner has a duty to provide invitees with a safe and secure environment “free from foreseeable risks and dangerous conditions of which [the owner] knew or should have known.” Rocky Mountain Planned Parenthood, Inc v. Wagner, 2020 CO 51, ¶ 8 (Colo. June 8, 2020). This is arguably similar to the special relationship and duty owed to a passenger by a common carrier. See Restatement (Second) of Torts § 314A (1) & (2) (explaining that innkeeper's duty to his guests is the same as that of a common carrier to its passengers in terms of protection against unreasonable risk of physical harm). In Rocky Mountain Planned Parenthood, the court held that the plaintiff had established a genuine issue of fact as to whether it was foreseeable that a man intent on murder would attack a Planned Parenthood facility in Colorado Springs. The Colorado Supreme Court's conclusion was based on evidence that (1) Rocky Mountain Planned Parenthood (“PPRM”) had known for many years there was a risk of violence against its facilities, (2) PPRM had warned all new physicians of the inherent risk associated with working at the facility, (3) PPRM had offered to provide all new physicians with custom-fitted bullet-proof vests, (4) the level of threats of violence directed at Planned Parenthood facilities had increased exponentially in the aftermath of the release of a video purporting to show (falsely) that Planned Parenthood was involved in the sale of baby body parts; (5) PPRM had hired an armed security guard, but that guard only worked for limited hours three days a week; and (6) no fencing was erected around Colorado Springs despite fencing having been erected at PPRM's Denver facility. Given those facts, the court found that while it involved a random act of criminal violence, it was “committed at a facility that had long been the subject of known threats of such violence, making the likelihood of an event like that which occurred less remote and arguably more foreseeable.” Id. at ¶ 38. This makes the Planned Parenthood case, with the numerous threats of violence to a specific location, similar to the Taco Bell case, and unlike the current airline sexual assault scenario, where there was no basis to believe sexual assaults were likely to occur onboard these flights (other than general reports of increasing sexual assaults on airlines).
For their part, Plaintiffs cite two cases, one out of California and a second out of New York, for the general proposition that “a common carrier's duty to its passengers includes a duty to protect them from assaults by fellow passengers.” Dkt. #41 at 15. But these general citations do not answer the foreseeability question in the context of this case. The California decision, Lopez v. Southern California Rapid Transit, 710 P.2d 907 (Cal. 1985), involved bus passengers suing a public common carrier after they were injured during a fight between other passengers. The Lopez plaintiffs alleged a history of violent and assaultive conduct by passengers on the particular bus route in question, that violent incidents occurred on that bus daily or weekly, that the defendant was fully aware of the history of violence on that bus route, and that bus driver actually had been notified that an altercation had begun but failed to take any precautionary measures and did nothing to maintain order or to protect his passengers. Instead, the driver continued to operate the bus while the initial altercation developed into a violent physical fight resulting in injury to innocent passengers.
The California Supreme Court held that those facts, “if true, give rise to a duty of care on behalf of [the defendant] to protect plaintiffs from assaults by fellow passengers.” 710 P.2d at 917. But the recitation of the Lopez facts makes even more apparent the difference between the foreseeable nature of the danger to the passengers in the Lopez bus case and the circumstances of this airline case. Plaintiffs allege nothing more than generalized public reports about the increasing prevalence of sexual assault on airlines. The Complaint says nothing about the probabilities or likelihood of a sexual assault on these particular Frontier flights among the tens of thousands of annual Frontier flights and tens of millions of passengers that fly on Frontier every year. Thus, nothing about the Lopez decision changes the conclusion about the lack of foreseeability in this case. See also Walker v. Metro. Atlanta Rapid Transit Auth., 487 S.E.2d 498 (Ga.Ct.App. 1997) (affirming summary judgment against patron of metropolitan transit authority who brought action to recover for injuries as result of criminal assault while he was waiting for train at station because patron failed to show that authority had knowledge that particular route had history of violent and assaultive conduct by passengers, such that violent incidents occur daily or weekly, as would give rise to duty on part of authority as common carrier to prevent assault); Restatement (Second) of Torts § 314A cmts. e & f (explaining that a common carrier is not required to take precautions against a “sudden attack from a third person which he has no reason to anticipate” nor “required to take any action until he knows or has reason to know that the plaintiff is endangered”).
The New York case cited by Plaintiffs, Farash v. Continental Airlines, Inc., 574 F.Supp.2d 356 (S.D.N.Y. 2008), is no more persuasive. The Farash case arose out of a dispute between a first-class passenger and a flight attendant who had asked him to move seats. The Farash decision does recite the general principle that an airline “owes a duty not only to [this] plaintiff, but to all passengers, to exercise reasonable care for their safety.” 574 F.Supp.2d at 367. And, citing New York law, the Farash decision notes that there is a duty on an airline, as a common carrier, “to protect it passengers from other travelers.” Id. But the decision goes on to explain that New York law holds a common carrier to the “‘same standard of care as any other alleged tortfeasor: It must exercise ordinary care commensurate with the existing circumstances.'” Id. (quoting Stagl v. Delta Airlines, Inc., 52 F.3d 463, 471 n.5 (2d Cir. 1995)). Farash says nothing about foreseeability and ultimately, while the Farash court acknowledged a duty of care on the part of the airline to a passenger while traveling, the duty was not so broad as to protect the plaintiff from the injuries that he had alleged in that case. Id.
In this case, Plaintiff's would effectively impose a duty on Frontier to treat its commercial airliners as “high crime areas” foreseeing the likelihood of sexual assault by and against all of its millions of passengers. The allegations of the Complaint are not sufficient to make the sexual assaults alleged here foreseeable as a matter of law. See R.M v. American Airlines, 338 F.Supp.3d at 1215 (rejecting notion that newspaper articles and other publicity generally discussing sexual assaults on airlines, including a reference to a “surge in cases, ” was enough to make sexual assault foreseeable). Therefore, the Court recommends that the claims for negligence in failing to prevent the sexual assaults be dismissed because of the lack of foreseeability of the criminal conduct by third parties.
D. Claims for Negligent and Intentional Infliction of Emotional Distress for Post-Assault Injury
Plaintiffs' claims for post-assault emotional distress injury are different on the question of foreseeability. Although Plaintiffs argue that Frontier should not be permitted to slice and dice Plaintiffs' claims into pre-assault and post-assault conduct by the airline, analyzing the issue of foreseeability (which is dispositive of Plaintiffs' claim that Frontier should bear responsibility for the initial assaults) results in a different conclusion when it comes to the post-assault aftermath. With respect to post-assault conduct, Plaintiffs allege that, having been sexually assaulted, they informed flight attendants who then essentially did nothing. Instead of moving the assailants to different seats to minimize the risk of reoccurrence of the assault and separate the assailant from the victim, each plaintiff was forced to spend the remainder of her flight sitting next to a sexual predator, fearful that he would strike again. Plaintiffs allege that their distress stems from the aftermath of each assault while “in a specific zone of danger as passengers on Frontier flights, unable to escape from their assailant, or report a crime to the authorities on their own.” Id. ¶ 73. Plaintiffs also allege that Frontier did nothing to assist in apprehending the perpetrators, including failing to notify police at the arrival airport.
See Dkt. #41 at 9-10, where Plaintiffs in their Opposition insist that Frontier's duty to protect and aid its passengers “is not divisible by timeframe (i.e. ‘pre-assault' and ‘postassault') or by specific action or inaction; rather, it is a constant, overarching duty that is inherent in the role of common carrier.”
It should be expected that, having been sexually assaulted on an airplane, a passenger would turn to a flight attendant for succor and could expect, at the very least, to be physically separated from the predator. It is foreseeable that failing to separate the predator from the victim and forcing the victim to fly the rest of the flight in fear of another assault would cause emotional distress and mental injury for the victim. This is a different injury from the initial assault itself. I do find that Plaintiffs have adequately alleged the existence of a legal duty (including the foreseeable aspect of the duty) on the part of an airline to provide protection to a passenger who has alleged she has been the victim of a sexual assault by an adjacent passenger. See Restatement (Second) of Torts § 314A (1)(a) & (b) (common carrier is under a duty to its passengers to take reasonable action to protect them against unreasonable risk of physical harm and to give first aid after it known or has reason to know that they are ill or injured, and to care for them until they can be cared for by others).
In Colorado, a cause of action for negligent infliction of emotional distress has six elements:
1. The defendant's conduct is negligent;
2. The negligent conduct created an unreasonable risk of physical harm;
3. Causing the plaintiff to be in fear of their own safety;
4. That the plaintiff either (a) suffered physical injury or (b) was in the “zone of danger” created by the negligent conduct;
5. The plaintiff's fear had “physical consequences” or “long-continued emotional disturbance, ”; and,
6. The defendant's conduct was the cause of the damages.See, e.g., Vance v. TOLMAR, Inc., 2018 WL 1456275, at *7 (D. Colo. Mar. 23, 2018); Draper v. DeFrenchi-Gordineer, 282 P.3d 489, 496-97 (Colo.App. 2011).
I find that Plaintiffs have adequately alleged a claim for negligent infliction of emotional distress, unless, as described in more detail below, the claim is preempted by federal law.
In contrast to a claim for negligent infliction of emotional distress, a claim for intentional infliction of emotional distress, also known as “outrageous conduct, ” has just three elements:
1. The defendant engaged in extreme and outrageous conduct;
2. The defendant did so recklessly or with the intent of causing the plaintiff severe emotional distress; and
3. The defendant's conduct caused the plaintiff severe emotional distress.See Colo. Jury Instr., Civil 23:1; Rugg v. McCarty, 476 P.2d 753, 756 (Colo. 1970).
The paucity of the details in the Complaint as to what actually occurred on each flight precludes the survival of Plaintiffs' claim for intentional infliction of emotional distress. Under Colorado law, the level of outrageousness required for conduct to create liability for intentional infliction of emotional distress is “extremely high: ‘Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'” Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999) (quoting Restatement (Second) of Torts § 46 (1965)). “Such outrageous conduct occurs when knowledge of all the facts by a reasonable member of the community would arouse that person's resentment against the defendant and lead that person to conclude that the conduct was extreme and outrageous.” Colo. Jury Instr. Civil 23:2 (“Extreme and Outrageous Conduct - Defined.”)
Here, there is nothing in the Complaint to suggest exactly what words were said, either to or by the flight attendants, and no description of the flight attendants' reactions to news of the sexual assault other than the bare statement that the victims were not permitted to change seats, and later were not given assistance in reporting the assaults to the police. There is no basis to conclude from the very limited allegations in the Complaint that the flight attendants' conduct was anything other than negligent.
I come to this conclusion after a review of other Colorado cases where fairly extreme conduct was found not to meet the very high standard required for an intentional infliction of emotional distress claim in Colorado. One example is Reigel v. SavaSeniorCare, LLC, 292 P.3d 977 (Colo.App. 2011), a wrongful death action against a nursing home where nursing staff had refused to send its patient, whose spouse was crying, to a hospital or doctor for evaluation. Instead, staff stated in a caustic voice, “well, if it was an emergency, we would call an ambulance”; responded to spouse's requests “like she was totally overreacting”; and allegedly falsified a chart entry related to the deceased's condition. The Court found that conduct, “although cold, callous, and lacking sensitivity” was not enough to state an intentional infliction of emotional distress claim under Colorado's high standard. 292 P.3d at 991. Similarly, in Gilbert v. United States Olympic Committee, 423 F.Supp.3d 1112 (D. Colo. 2019), Judge Arguello dismissed a claim for outrageous conduct against the United States Olympic Committee in a case involving alleged human trafficking involving the U.S. taekwondo team. There, a single allegation that the Olympic Committee had clothed perpetrators with the legitimacy and authority of Team USA, despite knowing of “their decades-long pattern of serial sexual predation” was too simple and vague to plausibly allege conduct that went “beyond all possible bounds of decency” and that could be regarded as “utterly intolerable in a civilized community.” 423 F.Supp.3d at 1152.
Therefore, given the very limited facts recited in the Complaint about Frontier's conduct in each alleged incident, I recommend Plaintiffs' claim for intentional infliction of emotional distress be dismissed for lack of allegations that plausibly would constitute the “extreme and outrageous” conduct required for this claim under Colorado law.
E. Plaintiffs' Claims for Injunctive Relief
On the most basic level, Plaintiffs' claims for injunctive relief fail because the Complaint does not allege an essential element necessary for the issuance of any permanent injunction: the immediate threat of and significant risk of irreparable harm. See Fisher v. Okla. Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) (citing Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 (1987)) (party seeking a permanent injunction must show, among other things, that irreparable harm will result unless the injunction is issued). See also, Saint John's Church in Wilderness v. Scott, 194 P.3d 475 (Colo.App. 2008) (discussing irreparable harm element necessary for permanent injunction).
A complaint that “alleges neither irreparable damages nor the threat of irreparable damages or facts from which it may be concluded irreparable damages may ensue” does not state a claim for any injunctive relief. Ogden River Water Users Ass'n v. Weber Basin Water Conservancy, 238 F.2d 936, 942 (10th Cir. 1956). A word search of Plaintiffs' 93-paragraph, 20-page Complaint fails to reveal any mention of the word “irreparable.” Neither do Plaintiffs allege the alternative phrase that they do not have an adequate remedy at law. “The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.” Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-507 (1959).
Oddly, in the injunctive relief section of the Complaint, rather than including the “irreparable harm” allegations necessary to justify the issuance of an injunction, Plaintiffs include allegations about the existence of “[a]n actual, justiciable controversy” existing between Plaintiffs and Class Members and Frontier. Dkt. #1 ¶ 89. Plaintiffs allege that issuance of a judgment “regarding these issues would afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations of the parties.” Id. (emphasis added). These are the kinds of allegations seen in a complaint for a declaratory judgment, but allegations of mere “uncertainty” and “insecurity” are not allegations of the kind of “significant risk” of immediate “real danger” that injunctive relief is intended to prevent.
The Tenth Circuit will not deem harm “irreparable” unless a petitioner can show “a significant risk that he or she will experience harm that cannot be compensated after the fact by money damages.” Fish v. Kobach, 840 F.3d 710, 751 (10th Cir. 2016) (quoting RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1210 (10th Cir. 2009)). “Purely speculative harm will not suffice, but ‘[a] plaintiff who can show a significant risk of irreparable harm has demonstrated that the harm is not speculative and will be held to have satisfied this burden.'” Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1157 (10th Cir. 2011) (alteration in original) (quoting RoDa Drilling, 552 F.3d at 1210). See also Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1258 (10th Cir. 2003) (holding that the “irreparable harm requirement is met if a plaintiff demonstrates a significant risk that he or she will experience harm that cannot be compensated after the fact by monetary damages”) (emphasis added).
Plaintiffs argue in their brief that the prospective harm alleged here is “irreparable” because it involves the threat of sexual assault, and unlike a contractual breach or purely economic loss, sexual assault “is severe physical and emotional trauma to a human being-a deep wound that, frankly, no amount of money can heal.” Dkt. #56 at 3. The Court is in complete agreement. But it is the plausible imminence of the threat that is absent from the Complaint, not the claimed seriousness of the potential injury.
For an injunction to issue, the threatened harm must be real and imminent, not merely speculative or possible. As this Court wrote in 1982 regarding the importance of limiting and circumscribing the use of the injunctive power:
[H]istorically, and even today, the main prerequisite to obtaining injunctive relief is a finding that plaintiff is being threatened by some injury for which he has no adequate legal remedy.” 11 C. Wright & A. Miller, Federal Practice and Procedure § 2942, at 368-369 (1973). As explained years ago by Justice Baldwin:
There is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case, than the issuing of an injunction; it is the strong arm of equity, that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction: . . . It will be refused till the courts are satisfied that the case before them is of a right about to be destroyed, irreparably injured, or great and lasting injury about to be done by an illegal act; in such a case the court owes to its suitors and its own principles, to administer the only remedy which the law allows to prevent the commission of such act.
Bonaparte v. Camden, 3 Fed.Cas. 821, 827 (C.C.D.N.J. 1830) (No. 1, 617). To secure issuance of injunctive relief, a plaintiff “must demonstrate that there is a real danger that the act complained of actually will take place. There must be more than a mere possibility or fear that the injury will occur.” 11 C. Wright & A. Miller, Federal Practice & Procedure § 2942 at 369 (1973). An injunction “will not be granted against something merely feared as liable to occur at some indefinite time in the future.” State of Connecticut v. Commonwealth of Massachusetts, 282 U.S. 660, 674 (1931); see also General Fireproofing Co. v. Wyman, 444 F.2d 391 (2d Cir. 1971). The power to grant injunctive relief should never be exercised merely to assuage fears of what may happen in the future. Roseboro v. Fayetteville City Board of Education, 491 F.Supp. 110, 112 (E.D. Tenn. 1978); see also Continental Baking Co. v. Woodring, 286 U.S. 352, 367369 (1932).
We must protect that which is protectable, but, in so doing, we must limit the use of injunctive relief to situations where it is necessary to prevent immediate and irreparable injury.
The dramatic and drastic power of injunctive force may be unleashed only against conditions generating a presently existing actual threat; it may not be used simply to eliminate a possibility of a remote future injury, or a future invasion of rights . . .Holiday Inns of America, Inc. v. B & B Corp., 409 F.2d 614, 618 (3d Cir. 1969). Martinez v. Winner, 548 F.Supp. 278, 310-11 (D. Colo. 1982), aff'd in part, rev'd in part on other grounds, 771 F.2d 424 (10th Cir. 1985).
Here, Plaintiffs seek injunctive relief to reduce the risk of future sexual assaults on Frontier flights. That sexual assaults by some unknown third parties may occur on future Frontier flights is a possibility. But it is just that, a “fear that injury will occur” at “some indefinite time in the future.” It cannot be described as a “presently existing actual threat.” Compare Plaintiffs' generalized fear of future sexual assaults on Frontier flights to the district court's conclusion in Fish v. Kobach, a voting rights case, of “an almost certain risk that thousands of otherwise qualified Kansans would be unable to vote” without the requested injunction. 840 F.3d at 752-53 (emphasis added). Nothing in Plaintiffs' Complaint allows an inference that there is an “almost certain risk” of future sexual assaults on Frontier planes absent the implementation of the requested injunctive relief.
As to the supposed future harm that future hypothetical Frontier passengers may experience, Plaintiffs in their supplemental brief equate the situation of flying on a Frontier flight to children in state custody being detained in unsafe conditions in foster homes or schools with inadequate or dangerous supervision. See Dkt. #56 at 4 (citing DG v. Devaughn, 594 F.3d 1188, 1196 (10th Cir. 2010), and Milonas v. Williams, 648 F.2d 688 (10th Cir. 1981), for the proposition that “courts have recognized the significant risk of future physical and emotional harm warrants injunctive relief in analogous class actions concerning grave risks of future harm”). But voluntarily flying on an airline where there are no allegations of any greater likelihood of sexual assault compared to any other airline is in no way similar to cases presenting plausible allegations of ongoing constitutional violations at the hands of the state against individuals in state custody. For example, the Devaughn case involved allegations of harm to foster children in Oklahoma state custody that reflected an imminent threat of serious harm to a substantial number of children. See 594 F.3d at 1195 (reciting allegations that caseworkers failed to visit children regularly to monitor health and safety of placement, and that 25 percent of foster homes reviewed by an Oklahoma Commission had serious safety issues and never have been approved for placement in the first place). In this case, by contrast, there is nothing concrete or imminent about the alleged potential future harm about which Plaintiffs complain.
I would equate Plaintiffs' allegations of the danger of assault on a Frontier flight to a situation where an amusement park patron is seriously injured on a defectively designed and dangerous roller coaster. That patron properly may seek money damages in compensation for her physical injury. But even if the patron believes the roller coaster is dangerous to others because of a design flaw that caused her own injury, absent statutory authority, the patron would not be entitled to bring a private action, on her own behalf and on behalf of all other (unharmed) past riders, seeking injunctive relief to remedy the problem so as to ensure that future riders are protected from the possibility of injury. Our judicial system does not work that way. The injured patron can sue for personal injury. The patron also can publicize her experience and the dangers of the ride-putting public pressure on the amusement owner to make changes. The patron could petition regulatory authorities to adopt and enforce safety regulations-and those regulators might be able to obtain an injunction consistent with the law. Or the patron could petition her legislators to pass laws requiring changes in amusement park operations. Most basically, the patron could elect not to ride the dangerous rollercoaster until changes are made. What the patron cannot do is sue for an injunction asking a court to mandate regulatory changes to prevent possible, but not imminent, future injury.
In sum, even before getting to the issue of federal preemption (discussed in detail below), based on the sparse allegations of the Complaint, there is no plausible immediate impending threat to Plaintiffs of the type that could justify the issuance of an injunction. Plaintiffs have failed to allege a sufficient likelihood that they will be wronged again in a similar way to justify injunctive relief. See Shain v. Ellison, 356 F.3d 211, 215-16 (2d Cir. 2004) (absent a sufficient likelihood that plaintiff will be wronged again in a similar way, Plaintiff lacked standing to seek injunctive relief against future unconstitutional strip search); See Mehr v. Federation Internationale De Football Association, 115 F.Supp.3d 1035, 1057 (N.D. Cal. 2015) (dismissing on standing grounds class action claims for injunctive relief against youth soccer organizations as remedy for dangerous condition of soccer concussions, for failing to allege facts showing any of the plaintiffs is realistically threatened by repetition of any violation and no allegation of “imminent danger of injury”).
F. Preemption by Federal Law
Frontier also argues that all of plaintiff's post-assault claims and claims for injunctive relief are preempted by the Airline Deregulation Act of 1978 (“ADA”).Congress enacted the ADA in 1978 in order to loosen the economic regulation of the airline industry after determining that “‘maximum reliance on competitive market forces' would best further ‘efficiency, innovation, and low prices' as well as ‘variety [and] quality . . . of air transportation.'” Morales v. TWA, 504 U.S. 374, 378 (1992) (alteration and omission in original) (quoting 49 U.S.C. § 1302(a)(4), (9) (1988)). To that effect, the ADA placed “exclusive legislative and regulatory authority in the aviation context in the hands of the federal government.” Weiss v. El Al Isr. Airlines, Ltd., 433 F.Supp.2d 361, 369 (S.D.N.Y. 2006). The current version of the ADA's preemption provision provides that “a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.” 49 U.S.C. § 41713(b).
Frontier does not claim that the claim for damages from the assault itself is preempted by federal law. With respect to that claim, Frontier relies on the lack of foreseeability described above.
The Supreme Court has interpreted the ADA as preempting state action “having a connection with, or reference to, airline rates, routes, or services.” Morales, 504 U.S. at 384 (internal quotation marks omitted). In a subsequent decision, American Airlines Inc. v. Wolens, 513 U.S. 219 (1994), the Supreme Court clarified that the ADA's preemption clause applies to state tort lawsuits. See also Weiss, 433 F.Supp.2d at 36970 (discussing Woolens). Courts have repeatedly-and recently-emphasized the breadth of the ADA's preemption provision. See, e.g., Wolens, 513 U.S. at 225-26; Morales, 504 U.S. at 383-84; Rowe v. N.H. Motor Transp. Assn, 552 U.S. 364 (2008) (Ginsburg, J., concurring); Air Transp. Ass'n of Am. v. Cuomo, 520 F.3d 218, 222 (2d Cir. 2008) (per curiam). See also Gardner v. United States, 316 F.Supp.3d 1308, 1318 (D. Utah 2018) (describing the Tenth Circuit's broad interpretation of the phrase “service of an air carrier” in the preemption context).
The Supreme Court, nevertheless, also has limited to some extent the ADA's preemptive reach, explaining that “‘some state actions may affect [airline rates, routes or services] in too tenuous, remote or peripheral a manner' to have a pre-emptive effect.” Morales, 504 U.S. at 390 (quoting Shaw v. Delta Air Lines. Inc., 463 U.S. 85, 100 n.21 (1983)).
On the issue of the breadth and scope of the ADA's preemption provisions, the Tenth Circuit has spoken of different minds. In the context of personal injury tort claims, in Cleveland v. Piper Aircraft Corp., 985 F.2d 1438 (10th Cir. 1993), the Circuit found that a suit against an airplane manufacturer under a theory of negligent aircraft design was not preempted. Cleveland held that even a broad reading of the ADA preemption clause announced in Morales would not lead to preemption of a personal injury tort claim for negligent design. 985 F.2d at 1441.
But, as opposed to a tort claim for money damages, in the context of an attempt to impose a state law-based regulatory scheme on an airline, the Tenth Circuit has held that such an effort would be preempted by the ADA. In US Airways, Inc. v. O'Donnell, 627 F.3d 1318 (10th Cir. 2010), the court considered regulatory actions taken against U.S. Airways by New Mexico state officials pursuant to the New Mexico Liquor Control Act. A U.S. Airways passenger had allegedly purchased and consumed numerous alcoholic beverages during a U.S. Airways flight to Albuquerque. During his drive home, the drunk passenger caused a car crash killing himself and five others. After investigation of the incident, New Mexico regulators served U.S. Airways with a citation alleging that the airline had served alcohol to an intoxicated person. The regulators also served U.S. Airways with a cease a desist order directing U.S. Airways to refrain from “selling, serving and otherwise dispensing, storing or possessing alcoholic beverages of any kind in the State of New Mexico” without properly complying with the New Mexico Liquor Control Act. 627 F.3d at 1323. New Mexico authorities also declined to extend a temporary public service liquor license to U.S. Airways citing two incidents involving drunk driving by passengers served alcohol on U.S. Airways flights.
The Tenth Circuit held New Mexico's effort to regulate the in-flight service of alcohol, even in the interests of public safety, was preempted by federal law, holding that it was the intent of Congress to occupy the field of aviation safety with uniform federal regulations:
Based on the FAA's [Federal Aviation Act's] purpose to centralize aviation safety regulation and the comprehensive regulatory scheme promulgated pursuant to the FAA, we conclude that federal regulation occupies the field of aviation safety to the exclusion of state regulations. The FAA was enacted to create a “uniform and exclusive system of federal regulation” in the field of air safety. City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 639 (1973).O'Donnell, 627 F.3d at 1326. Other circuits have come to similar a conclusion. See, e.g., Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F.3d 784, 795 (6th Cir. 2005) (“We agree . . . that federal law establishes the standards of care in the field of aviation safety and thus preempts the field from state regulation); Abdullah v. Am. Airlines Inc., 181 F.3d 363, 367 (3d Cir. 1999) (“[W]e hold that federal law establishes the applicable standards of care in the field of air safety, generally, thus preempting the entire field from state and territorial regulation.”).
In O'Donnell, the Tenth Circuit distinguished Cleveland by recognizing that while Congress may have given the federal government the exclusive right to regulate safety in a given field, it may nonetheless permit the states to maintain tort remedies covering the same territory. 627 F.3d at 1326. Thus, a state tort suit for money damages to compensate for personal injury may not be preempted, but a state's effort to impose new regulations or requirements on an airline involving the same subject matter would be preempted. See id. (distinguishing between Cleveland, which involved state tort remedies as opposed to the imposition of “substantive requirements”). See also France v. Trans States Airlines, LLC, Civ. Action No. 19-cv-01795-REB-NRN, 2019 WL 6130803 (D. Colo. Nov. 19, 2019) (report and recommendation discussing O'Donnell's preemption of state regulatory efforts while finding no preemption of personal injury negligence per se lawsuit against airline for damages on behalf of overheated child due to lengthy tarmac delay).
The question remains whether bringing a state tort lawsuit seeking (1) compensation and (2) injunctive relief for conduct in the aftermath of an alleged in-flight sexual assault is preempted.
1. Preemption of Plaintiffs' Claims for Injunctive Relief
Plaintiffs cite no case where any court has issued an injunction ordering an airline to adopt certain safety measures or crew training procedures as a tort remedy in a personal injury case. This is the type of relief Plaintiffs demand in their claim for injunctive relief, and Plaintiffs concede this objective in their opposition to the Motion to Dismiss: “Here, Plaintiffs seek to have the Court order Frontier to take steps to fulfill its duty to protect passengers, which implicitly includes protection from passenger-on-passenger in-flight sexual assault, and proper response when it does happen.” Dkt. #41 at 6. See also Dkt. #42 at 1 (“This is not a case about what happened just to Plaintiffs, or indeed any specific passenger.”).
Put another way, Plaintiffs seek to have this Court impose on Frontier, via court order, a series regulatory obligations-from the installation of closed-circuit video systems for passenger cabin monitoring; to the implementation of uniform training for employees and crew members for the identification of sexual assault; to requiring passenger education and messaging; to more frequent cabin walk-throughs; to mandatory tracking of sexual assaults; to the establishment of uniform policies on how to respond to in-flight assaults and provide for the trauma-informed treatment; to mandating reporting of in-flight assaults to the FBI; and lifetime bans for sexual assault perpetrators. All these proposed remedies would be imposed on a single national airline in the exercise of this Court's equitable power based on alleged breaches of Colorado state tort law. These measures are not be intended to provide any remedy for past injury, but instead would be implemented to reduce the likelihood of future injury to millions of Frontier passengers. This is regulation pure and simple-not compensation for past harm.
The late Judge Richard Matsch of this District, in a case brought against firearms vendors by victims in the aftermath of the horrific 2012 Aurora theater mass shooting, spoke to the impropriety in a personal injury case of court-ordered injunctive relief seeking broad policy changes. See Phillips v. Lucky Gunner, LLC, 84 F.Supp.3d 1216 (D. Colo. 2015). That suit sought to enjoin the firearm vendor defendants who had sold the weapons and ammunition to the Aurora theater shooter from conducting online sales of such weapons and ammunition so as “to protect the public from future harm.” Judge Matsch concluded his opinion dismissing the Phillips plaintiffs' claims by explaining that such broad injunctive relief in a personal injury case would threaten the balance between the branches in our system of government:
To grant such relief this court must conduct hearings and make policy decisions that are within the authority of the political branches of government responsive to the people under our constitutional structure of representative government. The defendants' motions to dismiss must be granted because this court does not have the authority to grant the relief requested.84 F.Supp.3d at 1228.
The same must be said about the forms of injunctive relief Plaintiffs seek here. The issue of closed-circuit video monitors on airplanes for the prevention of sexual assault raises questions of personal privacy for all passengers. More frequent “policing” by flight attendants up and down the aisles of airlines might raise safety concerns for the flight attendants themselves. Requiring release, on demand, of the identity of alleged assailants to victim-passengers would run afoul of an already extant federal regulation that limits the ability of airlines to release passenger manifests (but nevertheless allows law enforcement to use normal tools, including subpoena power, to obtain such lists in the course of a criminal investigation). See Raub v. U.S. Airways, Inc., 2017 WL 2633430, at *2 (E.D. Pa. June 19, 2017) (“Federal law prohibits airline carriers from releasing passenger contact information.”) (citing 14 C.F.R. §§ 243.7(a), 243.9(c) which provides that passenger information “shall be kept confidential” and may be released only to certain governmental agencies, but not preempting other government agencies that “have an independent, legal right to obtain this information”).
Judge Matsch was reluctant on separation of powers grounds to impose policybased injunctions in a personal injury tort case even in the absence of legislation, like the ADA, that specifically preempts state regulation. But the Tenth Circuit has emphasized the same principle of separation of powers in the aviation area given the ADA's explicit preemption provision:
The ADA's preemption provision prohibits courts from imposing an equitable remedy in the absence of a contract because the remedy would reflect the court's policy judgments, not the parties' mutual assent....[A]s we have explained before, “[a]ny deficiency in the plain language of the [ADA] or the scope of its coverage must be corrected by Congress, not this court.Scarlett v. Air Methods Corp., 922 F.3d 1053, 1068-69 (10th Cir. 2019) (quoting EagleMed LLC v. Cox, 868 F.3d 893, 904-05 (10th Cir. 2017)).
Plaintiffs' injunctive relief claims therefore are preempted by the ADA under the reasoning outlined in O'Donnell and Scarlett. Plaintiffs assert that “there is no state regulation at issue here.” Dkt. #50 at 7. I disagree. By Plaintiffs' admission, the injunctive relief seeks to prevent future harm by imposing, in the words of O'Donnell, “substantive requirements” on Frontier relating to airline safety. At least with respect to the injunctive relief claims, Plaintiffs would have the Court play the role of a regulatory agency, assessing the propriety of certain policies, procedures, and training protocols and imposing such requirements on Frontier, all as a matter of Colorado state common law. It is especially revealing that one of the requested forms of injunctive relief includes “such other relief as may be determined best-practice after consultation with experts in the prevention and response to sexual assault.” Dkt. #1 ¶ 93(h). This is an explicit invitation for the Court to engage in policy determinations in the aviation safety area that the ADA has explicitly reserved to federal regulatory authorities. Therefore, Plaintiffs' claims for injunctive relief are preempted by federal law and should be dismissed.
2. Preemption of Plaintiffs' Claim for Negligent Infliction of Emotional Distress
Having found the Plaintiffs' claims for injunctive relief to avoid future sexual assaults preempted, I now turn to the question whether Plaintiffs' remaining claim for money damages for negligent infliction of emotional distress based on Frontier's postassault treatment of the victims is similarly preempted.
In Gardner v. United States, an airline passenger brought an action against an airline and the United States arising out of his in-flight and post-flight interactions with a bullying air marshal. The court there stated that “[t]he test for determining whether a particular [tort] claim is preempted is whether it is ‘related to a price, route, or service of an air carrier.'” 316 F.Supp.3d at 1318 (citing 49 U.S.C. § 41713(b)(1)). The Gardner court ultimately dismissed the claim against the airline, finding that the allegations against the airline, which related to the flight crew's failure to protect the passenger from a bullying air marshal related to the “service of an air carrier.” Id. (finding that under the Tenth Circuit's broad interpretation of the term “service of an air carrier, ” “mediation of disputes between passengers and maintaining order in the cabin to provide a safe a tranquil flight” necessarily is a “service”).
I find too facile the statement in Gardner that the test for preemption is whether a tort claim is “related to a price, route, or service of an air carrier.” In light of the Supreme Court's caution in Morales that some state actions may effect airline rates, routes or services “‘in too tenuous, remote or peripheral a manner' to have a pre-emptive effect, ” 504 U.S. at 390, I do not believe that every tort action seeking damages, even if it relates to a service of an air carrier, is necessarily preempted. See Gill v. JetBlue Airways Corp., 836 F.Supp.2d 33, 39 (D. Mass. 2011) (explaining that enforcement of state laws against airlines on the basis of how particular services are provided is preempted unless it affects those services in “too tenuous, remote, or peripheral manner” to warrant preemption) (citing Morales).
Justice Sotomayor, when she was but a District Judge, wrote a nuanced decision explaining an intermediate position addressing the issue of federal preemption of state tort cases. See Rombom v. Un. Air Lines, Inc., 867 F.Supp. 214, 221 (S.D.N.Y. 1994). Per Rombom, the threshold inquiry in deciding whether state tort claims against an airline are preempted by Section 41713 is whether the activity at issue is an airline service. Id. If the Court determines that the activity is not an airline service for Section 41713 purposes, then the preemption inquiry ceases, and the state law claims are actionable. Id. at 222.
But the analysis does not end there. If the activity at issue implicates an airline service, the Court must then address the second prong: Whether the plaintiff's claims affect the airline service directly, as opposed to “tenuously, remotely, or peripherally.” Id. If the state claims have only an incidental effect on the airline service, there is no preemption. The third prong of the preemption inquiry focuses on whether the underlying tortious conduct was reasonably necessary to the provision of the service. Id. In other words, Section 41713 “cannot be construed in a way that insulates air carriers from liability for injuries caused by outrageous conduct that goes beyond the scope of normal aircraft operations.” Id. at 222. The Rombom decision concluded: “If the tortious act did not occur during the service in question or the tortious act did not further the provision of a service in a reasonable manner, then the state tort claim should continue.” Id. Ultimately, in Rombom, then-Judge Sotomayor found that certain of the claims relating to the airline's conduct (a decision by the pilot to return the aircraft to the gate) were preempted, while claims relating to other conduct, namely the flight crew's decision, allegedly out of spite, to have the plaintiff arrested, was not.
This approach has been adopted by other courts. See, e.g., Hammond v. Northwest Airlines, No. 09-12331, 2009 WL 4166361 (E.D. Mich. 2009) (adopting the Rombom approach to conclude that a claim against airline for unreasonably ejecting passengers from airplane without explanation after seating conflict arose was not preempted); Smith v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998) (citing Rombom for proposition that tort claims are not preempted if premised upon unreasonable conduct that is unnecessary to the provision of a service); Farash, 574 F.Supp.2d at 363 (citing Rombom and explaining that if allegedly tortious act did not occur during provision of an airline service, or did not further the provision of the service in a reasonable manner, then the state tort claim should continue).
Applying the Rombom rubric to Plaintiffs' allegations of negligent infliction of emotional distress requires an assessment of each of the allegedly negligent postassault acts by the flight crew. See Rombom at 223 (analyzing three chronologically distinct actions taken by the flight crew). Plaintiffs claim that having reported to the flight attendant that they had been sexually assaulted by their respective seatmates, the flight attendants on the respective flights reported the incidents to no one, did nothing to separate the victims from the predators, and forced Plaintiffs to continue their flights in close proximity to their assailants fearful that another assault could occur. Plaintiffs also make allegations about the failure of Frontier to assist in notifying authorities and refusal to cooperate with the FBI in identifying the assailants.
Courts have found that issues involving seating disputes and maintaining order in the cabin to provide a safe and tranquil flight are included in the definition of “air carrier service.” Gardner, 316 F.Supp.3d at 1318; Peterson v. Continental Airlines, Inc., 970 F.Supp. 246, 250 (S.D.N.Y. 1997) (holding that flight crew's conduct of efforts to locate appropriate seat assignments and resolve seat conflicts constitutes an airline service within the meaning of Section 41713); Farash, 574 F.Supp.2d at 364 (claims related to flight attendant's efforts to locate appropriate seat assignments and resolve seat conflicts are “clearly airline services”). It is also arguable that Plaintiffs' allegations regarding refusal to separate the perpetrator from the victim affect the service provided (safe air travel) directly, rather than tenuously. Plaintiffs are complaining about the manner in which the flight attendants provided the service of maintaining order in the cabin by assigning, or not reassigning, seats. Id. (where plaintiffs “openly attack the manner in which the flight crew provided a service, [their] claims directly arise from the inadequate provision of a service”). Such an interpretation of Plaintiffs' claims weighs in favor of preemption.
However, I find that Frontier's preemption argument nonetheless fails under the third prong of the Rombon inquiry because, at this early motion to dismiss stage, it remains in dispute whether Frontier acted reasonably in ignoring and doing essentially nothing in response to Plaintiffs' sexual assault allegations. See Peterson, 970 F.Supp. at 250 (denying motion to dismiss tort claim against airline, even if it directly involved an airline service, because under allegations of complaint, airline “cannot be said to have provided any airline service in a reasonable manner”).
Here, Plaintiffs allege that they each sought the assistance of Frontier flight attendants complaining about the sexual assault by an adjacent passenger. Reading the allegations in the light most favorable to the Plaintiffs, it can be inferred that rather than protecting the victimized passengers from further assaults by separating them from their assailants, the Plaintiffs were forced to fly the remainder of their flights in close proximity to known predators, in fear that the assailants would attack again. It is difficult to imagine a circumstance where it would be reasonable for force a sexual assault victim to stay seated (perhaps for hours) next to her perpetrator. I find that there is a legitimate question as to whether ignoring a passenger sexual assault victim's plea for assistance constitutes the reasonable provision of an airline service. Therefore, Frontier's motion to dismiss Plaintiffs' claim of negligent infliction of emotional distress for post-assault conduct on preemption grounds should be denied.
Compare, for example, Plaintiffs' alleged treatment at the hands of Frontier after reporting having been sexually assaulted, to the flight attendant's actions in R.M. v. American Airlines, supra. In that case, when the flight attendant noticed the assaultive behavior toward an unaccompanied minor, the offender was immediately separated from the victim, moved to another seat in the back of the airplane, placed under observation, and was arrested on deplaning.
It is not necessary now to parse and separate Plaintiffs' various specific allegations about Frontier's post-assault conduct. Obviously, to the extent that Plaintiffs seek to impose tort liability on Frontier for not doing something that the airline is prohibited by federal regulation from doing (for example, voluntarily providing the Plaintiffs or law enforcement with the cabin manifest to better identify the assailant) such a discrete allegation would be preempted and could not form the basis for liability. Discovery will provide more detail about what happened on minute-by-minute basis on each of these flights. Frontier may well re-assert its preemption argument at the summary judgment stage after more detailed factual development via discovery. At this stage, however, it is enough to say that in alleging Frontier's flight attendants ignored pleas of help after passengers had been sexually assaulted, and did not even take the minimal and obvious step of separating the victims from their perpetrators, Plaintiffs have plausibly alleged a claim against Frontier for negligent infliction of emotional distress for post-assault conduct. Reading the allegations of the Complaint in the light most favorable to the Plaintiffs, it cannot be said that such a claim is preempted as a matter of law.
VIII. Defendant's Motion to Strike Class Allegations
Defendant Frontier has moved, pursuant to Fed.R.Civ.P. 23(d)(1)(D), to strike Plaintiffs' class allegations from the Complaint. Plaintiffs object that Frontier has sought to strike the allegations under the wrong rule and that motions to strike class allegations are disfavored as premature. Plaintiffs argue that the proper rule is Rule 12(f) and, at this preliminary stage, the burden should be on the defendant to show that the class allegations should be stricken. Plaintiffs assert that granting such a preemptive motion to strike would require the Court to improperly pre-judge facts and assume how class certification evidence and arguments will develop, rather than conducting the required rigorous class certification analysis after briefing on a full record. Plaintiffs insist that “[i]n the ordinary course, with the benefit of discovery into Frontier's policies and practices, Plaintiffs will demonstrate that they satisfy the requirements for [class] certification.” Dkt. #42 at 1.
A. Standard for Striking Class Allegations at the Pleading Stage
“Rule 23 does not preclude a defendant from bringing a ‘preemptive' motion to deny [class] certification.” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 939 (9th Cir. 2009). Although the Tenth Circuit has not articulated a standard for evaluating preemptive motions to deny class certification, judges in this district have held motions to strike class allegations are not inappropriate, but are subject to a high standard of proof. In Francis v. Mead Johnson & Co., No. 10-cv-00701-JLK, 2010 WL 3733023 at *1 (D. Colo. Sept. 16, 2010), the court ruled that to prevail on a motion to strike class allegations, a defendant “must demonstrate from the face of plaintiffs' complaint that it will be impossible to certify the classes alleged by the plaintiffs regardless of the facts the plaintiffs may be able to prove.” (quoting Bryant v. Food Lion, Inc., 774 F.Supp. 1484, 1495 (D.S.C.1991)). Likewise, in Friedman v. Dollar Thrifty Auto. Grp., Inc., No. 12-CV-02432-WYD-KMT, 2013 WL 544078 at *3 (D. Colo. Sept. 27, 2013), the court opined that, in a preemptive challenge to class certification, “the Tenth Circuit would require only that the named [p]laintiffs prove that the allegations of their complaint, accepted as true, satisfy Rule 23(a)'s requirements” (citation and quotation omitted). See also Chenensky v. N.Y. Life Ins. Co., 2011 WL 1795305 at *1 (S.D.N.Y. April 27, 2011) (“A motion to strike class allegations is even more disfavored [than motions to strike generally] because it requires a reviewing court to preemptively terminate the class aspects of litigation, solely on the basis of what is alleged in the complaint, and before plaintiffs are permitted to complete the discovery to which they would otherwise be entitled on questions relevant to class certification”) (quoting Ironforge.com v. Paychex, Inc., 747 F.Supp.2d 384, 404 (W.D.N.Y.2010) (ellipses omitted)).
While Frontier brings its motion to strike under Rule 23(a)(1)(D), I generally agree with Plaintiffs that a motion to strike class allegations on the pleadings should be brought under Rule 12(f). Rule 12(f) provides that a court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). This court has found that Rule 12(f) “is a permissible vehicle in which to file an early motion to deny class certification.” Murphy v. Aaron's, Inc., No. 19-cv-00601-CMA-KLM, 2020 WL 2079188 (D. Colo. April 30, 2020). In a motion to strike, the burden is on the moving party and requires a “high standard of proof.” Id. Consistent with this court's precedent, the Court will only grant Frontier's motion to strike if it is able to show conclusively that plaintiffs will be unable to establish facts that would make class treatment appropriate. Wornicki, 2015 WL 1403814 at *4.
But see Edwards v. Zenimax Media Inc., No. 12-cv-00411-WYD-KLM, 2012 WL 4378219, at *6 (D. Colo. Sept. 25, 2012) (striking class allegations on motion under Rule 23(d)(1)(D)).
Using this high standard, I conclude, consistent with my decisions on Frontier's Motion to Dismiss, supra, that based on the limited single claim for negligent infliction of emotional distress that remains in the suit, Plaintiffs' class allegations should be stricken from the complaint.
B. Plaintiffs' Proposed Class
As described in in the sections above, Plaintiffs' claims for intentional infliction of emotional distress and injunctive relief against Frontier fail. Thus, the only remaining claim in this case is the claim for monetary compensation for negligent infliction of emotional distress due to Frontier's post-assault conduct.
This assumes my recommendation on the Motion to Dismiss is adopted. If my recommendation regarding dismissing claims injunctive relief is not adopted, it may change the conclusion regarding the striking of class allegations.
The claim for negligent infliction of emotional distress is an individual claim for money damages by each of the two Plaintiffs. As a matter of logic, to be entitled to compensation for emotional distress inflicted after a sexual assault, a passenger must have been sexually assaulted. Although included in the class definition, the millions of Frontier passengers who flew on Frontier flights and who were not sexually assaulted suffered no emotional distress, have no damages, and cannot be part of a class of plaintiffs seeking exclusively monetary compensation for emotional distress after having been sexually assaulted.
So, while Plaintiffs assert in opposition to Frontier's Motion to Strike that this is “not a case about what happened just to Plaintiffs, or indeed any specific passenger, ” Dkt. #42 at 1, given the recommended dismissal of Plaintiffs' claims for injunctive relief, this presently is a case about what happened just to the Plaintiffs, and whether Frontier by its actions (or lack thereof) exacerbated Plaintiffs' emotional distress. It would make no sense for the millions of other Frontier passengers who could not claim to have been sexually assaulted and could not claim to have any damages, to be part of an action for money damages brought by these two plaintiffs based on these two discrete incidents. A class which includes all Frontier passengers, whether they have been sexually assaulted or not, and who would not be entitled to any injunctive relief regardless, is wildly overbroad. See Edwards, 2012 WL 4378219, at *6 (granting motion to strike where the class definition was overbroad because it included class members regardless of whether they were ever injured, preventing an accurate evaluation of the prerequisites set forth in Rule 23); Gilbert v. United States Olympic Comm., 423 F.Supp.3d 1112, 1155 (D. Colo. 2019) (adopting recommendation of Magistrate Judge Hegarty, which relied on Edwards, to strike class allegations when the proposed class definition was overbroad because it included in a damages class, putative members who were not in fact damaged).
The exclusion of passengers who have not experienced a sexual assault raises the problem of numerosity as well. The Complaint identifies only two sexual assault victims-the Plaintiffs. The Complaint does not plausibly allege any other Frontier passengers have been sexually assaulted during the proposed class period. Excluding from the class definition Frontier passengers who have not been sexually assaulted, Plaintiffs have not alleged sufficient numbers to satisfy the numerosity requirement of Rule 23 other than in a conclusory manner.
Rule 23(a)(1) requires that the putative class membership be sufficiently large to warrant a class action because the alternative of joinder is impracticable. Some courts have held that numerosity may be presumed at a certain number; the Tenth Circuit, however, “has never adopted such a presumption.” Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006). “The Tenth Circuit has stated that there is ‘no set formula' to determine whether the numerosity requirement is met; instead, it is a fact-specific inquiry best left to the district court's discretion.” Gonzales v. City of Albuquerque, No. CIV 09-0520 JB/RLP, 2010 WL 4053947, at *7 (D.N.M. Aug. 21, 2010) (quoting Rex v. Owens, 585 F.2d 432, 436 (10th Cir. 1978)). Cf. Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999) (finding that proposed class consisting of “100 to 150 members . . . is within the range that generally satisfies the numerosity requirement”). In determining whether a proposed class meets the numerosity requirement, “the exact number of potential members need not be shown, ” and a court “may make ‘common sense assumptions' to support a finding that joinder would be impracticable.” Neiberger v. Hawkins, 208 F.R.D. 301, 313 (D. Colo. 2002) (citation omitted). See also Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 884 n.1 (6th Cir. 1997) (noting that Rule 23(a)(1) is not a “‘strict numerical test'”; holding, however, that where class comprises over 1, 100 persons, suggestion that joinder is not impractical is “frivolous”) (citation omitted); Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993) (“[T]he difficulty in joining as few as 40 putative class members should raise a presumption that joinder is impracticable.”) (citation omitted). “Satisfaction of the numerosity requirement does not require that joinder is impossible, but only that plaintiff will suffer a strong litigational hardship or inconvenience if joinder is required.” Cook v. Rockwell Int'l Corp., 151 F.R.D. 378, 384 (D. Colo. 1993). “Impracticable does not mean impossible.” Robidoux, 987 at 935.
But there must be at least some allegation of a sufficient number of similarly situated putative class members to make joinder impractical. See, e.g., Kelly v. Norfolk & W. Ry. Co., 548 F.2d 34 (4th Cir. 1978) (affirming denial of class certification in race discrimination suit where maximum number of people that could fit in the class could not exceed 67, all lived in the same general area, and only eight were identified); McCree v. Sam's Club, 159 F.R.D. 572 (D. Ala. 1995) (class would not be certified in Title VII class action where plaintiffs made conclusory allegations about the size of the class and class comprised of 15 members was not so numerous that joinder of all members was impracticable).
Here, Plaintiffs make no plausible allegations that, other than themselves, there are any other Frontier passengers who have been sexually assaulted and been subject to similar conduct by Frontier's flight attendants-namely being ignored and forced to continue the rest of the flight sitting next to their assailtants. Thus, based on the allegations of the Complaint, Plaintiffs cannot meet the numerosity requirement of Rule 23.
C. Common Questions and Superiority
Plaintiffs seek class certification under Rule 23(b)(2) for injunctive relief and under 23(b)(3) for monetary damages. Certification under Rule 23(b)(2) is not proper because the claims for injunctive relief should be dismissed. For certification under Rule 23(b)(3), the court must find that questions of law or fact “common to class members predominate over any questions affecting only class members.” The argument that common questions in these cases would predominate over any questions affecting only individual members does a disservice to the Plaintiffs themselves by minimizing the seriousness of the alleged harms they have suffered.
Plaintiffs do identify certain common questions that they assert would be common to both Plaintiffs (and presumably the class as a whole), including Frontier's knowledge about the prevalence of sexual assaults, the existence of Frontier's policies regarding in-flight sexual assaults, Frontier's enforcement or lack thereof of those policies, and the existence of a duty to protect passengers from in-flight sexual assault. See Dkt. #1 ¶60.
But these cases are, at core, personal injury cases. Fundamental and predominating over each case will be the questions specific to each plaintiff-passenger: whether the passenger was actually sexually assaulted; how the flight attendants were informed of the assault; how each flight attendant reacted (if at all); whether that reaction was reasonable under the circumstances; how long the Plaintiffs were forced to continue to sit next to their assailant; and the degree and scope of injury suffered by each plaintiff. All of these are individual questions, as each Plaintiff was on a separate flight, was presumably assaulted by a different person, was served by different flight crews, and suffered distress in different ways and scope. Indeed, the fact that one Plaintiff has agreed to have her name publicly disclosed while the other chooses to remain anonymous because of the highly personal nature of the allegations provides an indication that these events have impacted the two Plaintiffs in meaningfully different ways.
As the Supreme Court noted in Wall-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the issue on class certification is not the mere existence of questions of law and fact “common to the class, ” because “any competently crafted class complaint literally raises common questions.' . . . What matters to class certification . . . is not the raising of common ‘questions'-even in droves-but rather, the capacity of the class-wide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.” 564 U.S. at 349-50 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L.Rev. 97, 132 (2009)).
On the allegations of the Complaint, given the personal, serious, and individual nature of each Plaintiff's alleged injury and the differing circumstances leading to each injury (different flights, different flight crews, different assailants, etc.), the common questions which are apt to generate common answers would not predominate over individual issues in these cases. Most simply, findings by a jury that Plaintiff Ramsey was sexually assaulted, was then negligently treated by the flight attendants on her flight, and suffered severe emotional distress as a result, says nothing about whether Plaintiff Jane Doe was sexually assaulted, was negligently treated post-assault by her flight crew, and then suffered emotional distress as a result. These facts would have to be tried independently for both Plaintiffs, as they would for any other Frontier passenger claiming to have been sexually assaulted.
A further illustration of the individual nature of these discrete events is shown by the FlyerRights.org report cited at ¶33 of the Complaint. A review of this report does show 20 in-flight assault reports to the DOT for years dating 2016-18. Of the twenty reported incidents, two occurred on Frontier flights. The others involved Air France, American Airlines (2), Avianca, Cathy Pacific, Copa Compania Panamena, Delta Airlines (4), Icelandair, JetBlue, Spirit Airlines, Swiss Air, Trans States Airlines, and United Airlines (2). See https://flyersrights.org/wp-content/uploads/2018/11/DOT-Sexual-Assault-Records.pdf (visited June 25, 2020). Although Plaintiffs would point to this document as evidence of “the scope and frequency” of in-flight sexual assault, reviewing each of the Frontier incidents gives a sense of how fact-intense each in-flight assault is.
For example, one cited Frontier incident describes an August 2017 Las Vegas to Denver flight where a young woman was “assaulted physically and racially attacked verbally by a passenger in row 19 . . . whom [sic] pushed her and called her racial slurs for approximately 3 minutes in front of several passengers in the back of the plane during arrival in the Denver, CO airport with no flight attendants in site [sic] or around to deescalate the situation.” The second Frontier incident describes a January 2018 flight from Washington DC to Denver where the complainant sat beside two men that became very intoxicated:
Each man drank 4 Gin and Tonics. They were loud, used course language and one of the men bragged about sleeping with a flight attendant from a previous Frontier flight .... The man beside me . . . grabbed by upper thigh to ‘help' me put my seat belt on! I was very uncomfortable with him touching me. My biggest concern was he told me he was driving to Vail CO that night and he was drinking heavy! The flight attendants never cut him off-in fact his last drink was given to him as we were descending into DIA. The flight attendants were unprofessional and were flirting with both men and never asked either of them to control their behavior. Again, both men were very intoxicated. Very disappointed in this crew!Id.
It is difficult to even characterize the first Flyersrights.org incident as a sexual assault. With respect to the second incident, although uncomfortable with the unwanted touching, the complaining passenger was more concerned about the prospect of the inebriated passenger driving drunk. Neither Frontier incident reported in the Flyerrsrights.org report bears any similarity to the situations of the two Plaintiffs in this case. It is not clear that, even if Frontier had implemented the policy changes sought in this case, it would have prevented or reduced the severity of those specific incidents. And most important, jury findings about these two Flyersrights.org incidents would say nothing about whether there should be similar findings in the cases of the two Plaintiffs.
Plaintiffs' filings also contain a striking inconsistency that accentuates the impropriety of addressing these two and other in-flight sexual assaults claims via the allegedly more “efficient” procedural vehicle of a class action. In their Supplemental Brief Regarding Injunctive Relief (Dkt. #56), Plaintiffs take issue with the assertion that they have not adequately alleged irreparable harm, emphasizing that “the harm at issue here is sexual assault.... This is severe physical and emotional trauma to a human being-a deep wound that, frankly, no amount of money can heal.” Dkt. #56 at 2 (emphasis in original). This statement properly emphasizes the severity of the claimed injury and importance to each assaulted plaintiff of individually controlling the prosecution of their respective actions. See Fed.R.Civ.P. 23(b)(3)(A). Yet, in seeking to justify class treatment, Plaintiffs' Complaint minimizes the seriousness of Plaintiffs' injuries, alleging, “The damages or other financial detriment suffered by Plaintiffs and the other class members are relatively small compared to the burden and expense that would be required to individually litigate these claims. As a result, it would be impracticable for class members to seek redress individually.” Dkt. #1 ¶ 62 (emphasis added).
I agree that sexual assault involves a “deep wound” and serious emotional trauma. This is not some “coupon” case where minor economic harm was inflicted via the same fraudulent scheme on thousands of people. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (explaining that the class action mechanism's core policy is “to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor”) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997)). Given the alleged seriousness of the sexual assaults in this case and the resultant emotional distress to each of the Plaintiffs, there should be sufficient incentive for individual sexual assault victims to seek redress in court. Nothing about this case suggests that a class action would be a superior mechanism for trying these issues than individual lawsuits brought to seek personal vindication for each victim.
For these reasons, I recommend that Plaintiffs' class allegations be stricken.
IX. Conclusion
With respect to Frontier's Motion to Dismiss for Failure to State a Claim (Dkt. #36), I RECOMMEND that it be GRANTED IN PART and DENIED IN PART. I recommend the Motion be GRANTED with respect to Plaintiffs' claims for negligence in causing the sexual assaults, intentional infliction of emotional distress, willful and wanton conduct, and for injunctive relief. I recommend the Motion to Dismiss be DENIED with respect to Plaintiffs' claims for post-assault negligent infliction of emotional distress.
With respect to Defendant's Motion to Strike Class Allegations (Dkt #37), I RECOMMEND the Motion be GRANTED and Plaintiffs' class action allegations be STRICKEN from the Complaint.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colorado Dep't of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).