Keum v. Virgin America Inc.

Citations: 781 F. Supp. 2d 944; 2011 U.S. Dist. LEXIS 28358; 2011 WL 835537Docket: C 10-03285 SI

Court: District Court, N.D. California; March 4, 2011; Federal District Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Jennifer Keum filed a lawsuit against Virgin America after an incident on a flight from Seattle to San Francisco on May 27, 2010. She alleges that a flight attendant, identified as Kelly, exhibited rude behavior towards non-Caucasian passengers, specifically targeting Keum, who is of Korean descent. The situation escalated when Keum returned from the first-class restroom; she claims that Kelly yelled at her for using it, stood too close, and physically assaulted her by punching her shoulder, causing pain. Keum asserts that a Caucasian passenger who used the same restroom was treated differently. Following the incident, Keum and her mother lodged a complaint with Virgin's Customer Service, and Keum later filed a police report.

Keum's complaint includes seven causes of action: negligent hiring and supervision, assault and battery, negligence, intentional infliction of emotional distress, discrimination under 42 U.S.C. § 1981, violation of Title VI of the Civil Rights Act of 1964, and discrimination under California's Unruh Civil Rights Act. Virgin America sought judgment on the pleadings, arguing that Keum failed to present sufficient facts for all claims except battery and that her California law claims were preempted by the Federal Aviation Act (FAA).

The court concluded that the standard for a motion for judgment on the pleadings mirrors that of a motion to dismiss, requiring the court to accept the non-moving party's allegations as true. The court must determine if those facts warrant a legal remedy, with heightened scrutiny for civil rights claims. While the court recognizes the plaintiff's factual allegations, it does not have to accept legal conclusions as true. The court granted in part and denied in part Virgin's motion, and if Keum chooses to amend her complaint, it must be filed by March 18, 2011. A case management conference was rescheduled for the same date.

Threadbare recitals of a cause of action with merely conclusory statements are insufficient; plaintiffs must present a claim for relief that is plausible on its face, meaning they must allege facts that indicate more than a mere possibility of unlawful action by the defendant. If a complaint fails to state a legally sufficient claim, it may be dismissed or judgment entered on the pleadings, with the court required to consider whether to allow an amendment. The Ninth Circuit mandates that leave to amend should generally be granted unless it is clear that the pleading cannot be cured by additional facts.

In the context of federal preemption, Keum's tort claims are framed as violations of California's standard of care and anti-discrimination laws. Virgin contends that these state laws are preempted by the Federal Aviation Administration (FAA), which establishes a federal standard of care for airline safety, though the FAA does not explicitly define such a standard. California law, specifically California Civil Code section 2103, imposes a duty on common carriers to provide reasonable accommodations and treatment to passengers. Some courts have ruled that this duty is preempted by the FAA in airline contexts, but for claims not directly related to airline safety, California law has been upheld. In Keum's case, since her claims do not obviously implicate airline safety, the court assumes no blanket field preemption exists and that the California standard of care applies.

Keum has alleged two negligence claims: negligent hiring and general negligence, asserting both direct and indirect liability. She claims Virgin was negligent in its hiring, training, supervision, or termination of an employee, Kelly, and that Virgin, as a common carrier, has a duty of care. Virgin argues that Keum has not demonstrated sufficient physical injury to support her claims and has failed to show that Virgin was aware of any potential inappropriate behavior by its employee. However, Virgin does not contest its liability under the doctrine of respondeat superior or its status as a common carrier, instead arguing against the correctness of the standard of care Keum proposes. Since Virgin has not sufficiently established that Keum's claims are preempted, the court will apply state law standards for this motion. The key elements of a negligence claim include a legal duty of care, a breach of that duty, and the breach being the proximate cause of the injury.

In negligence claims, the plaintiff must first establish that the defendant owed a duty of care, determined by California's seven-factor Rowland test. A defendant's duty may arise from direct liability or through respondeat superior as an employer. Following the establishment of duty, the plaintiff must prove that the defendant breached this duty, which proximately caused the injury. Keum alleges that Kelly was unfit for his role, claiming that Virgin failed to adequately train, supervise, or terminate him, thus causing her injuries. Under California law, an employer can be directly liable for negligent hiring, training, or retention if it knew or should have known about the risks posed by the employee. Virgin contends that Keum's claims lack plausible allegations of its prior knowledge of Kelly's potential danger, asserting that mere conclusory statements do not suffice under the Iqbal standard. Keum's assertion regarding inadequate supervision is also deemed insufficient as it lacks allegations of knowledge by supervisors. Consequently, the court grants Virgin's motion for judgment on the pleadings concerning the negligent hiring claim but allows Keum to amend her complaint to include facts supporting Virgin's prior knowledge of Kelly's unfitness.

Regarding standard negligence claims, both parties agree that the same basic elements apply. Keum claims Virgin had a duty to ensure her safety while traveling and breached that duty, leading to her emotional distress. This claim is interpreted as negligent infliction of emotional distress (NIED), as Keum only alleges momentary physical effects from being punched by Kelly. Virgin argues for dismissal based on federal preemption and the assertion that emotional distress alone does not constitute a valid negligence claim in California. Virgin further contends that without evidence showing it condoned or encouraged such employee behavior, no direct negligence claim can be established against it. Both parties reference the case Potter v. Firestone Tire, which allows for recovery of damages for negligently inflicted emotional distress even in the absence of physical injury.

The court clarified that physical injury is not necessary to recover damages for serious emotional distress if the circumstances guarantee genuineness. Recovery for emotional distress is allowed only if it results from the defendant's breach of a legal duty and is proximately caused by that breach, typically requiring a threat of physical injury rather than mere financial or property damage. In the case of Keum against Virgin, the court noted that Virgin had a duty to ensure Keum's safety, which was breached when Kelly, an employee, allegedly caused her injuries. While it remains uncertain if Keum's claims qualify as physical injury or sufficiently severe emotional distress, she need only state facts supporting a claim for Negligent Infliction of Emotional Distress (NIED) to counter Virgin's motion for judgment on the pleadings, which was thus denied.

In her intentional tort claims, Keum accused Kelly of yelling at her and punching her, leading to extreme emotional distress. Virgin contended that Kelly's behavior was unpleasant but not intolerable in a civilized society. The court recognized that, unlike NIED, Intentional Infliction of Emotional Distress (IIED) does not require physical harm but does rely on an intentional act. Given the allegations of extreme behavior, Virgin's motion regarding the IIED claim was also denied.

For assault and battery, Keum alleged that Kelly intended to make harmful contact and acted in a way that caused her to feel threatened. Virgin accepted that Keum sufficiently stated a battery claim under the doctrine of respondeat superior but challenged the assault claim. The court explained that assault involves the reasonable apprehension of imminent harmful contact, and since battery implies an assault, Virgin's motion regarding the assault claim was denied as well.

Lastly, Keum presented three racial discrimination claims: two under federal law (42 U.S.C. 1981 and 42 U.S.C. 2000d, Title VI) and one under California Civil Code 51 and 51.5 (Unruh Act). Virgin sought dismissal of all three claims, alleging failure to state a claim.

Virgin contends that Keum's claim under the Unruh Act is preempted by federal law. For a valid claim under 42 U.S.C. § 1981, a plaintiff must demonstrate membership in a racial minority, intent to discriminate by the defendant, and that the discrimination pertains to activities covered by the statute. Virgin asserts that Keum did not provide sufficient facts to substantiate claims of discriminatory intent. However, Keum alleges she was denied services, barred from certain facilities, and treated differently than Caucasian passengers. The court finds her allegations sufficient to survive a motion for judgment on the pleadings, resulting in the denial of Virgin's motion regarding the § 1981 claim.

Regarding Title VI, Virgin argues that Keum did not claim that Virgin received federal subsidies, which is essential for a Title VI claim. Keum admits her failure to adequately support this claim and requests permission to amend. The court grants Virgin's motion for judgment on the pleadings for this claim, allowing Keum to amend her allegations concerning federal financial assistance.

For the Unruh Civil Rights Act, Keum claims that Kelly's actions violated her rights under California law. Virgin argues that Keum did not assert the incident occurred in California, and even if it did, the claim would be preempted by federal law. The Unruh Act guarantees equal rights and accommodations within California's jurisdiction. The court notes that previous rulings indicate the Unruh Act is not preempted by federal laws and only applies within California. Since Keum's complaint fails to establish the events occurred in California, the court grants Virgin's motion for judgment on the pleadings regarding the Unruh Act claim, also allowing Keum to amend her allegations.

In conclusion, the court partially grants and partially denies Virgin's Motion for Judgment on the Pleadings. Specifically, it grants the motion regarding Keum's first, sixth, and seventh causes of action, while allowing her the opportunity to amend all three claims.

Keum must file her amended complaint by March 18, 2011. Virgin's motion is denied concerning Keum's second, third, fourth, and fifth causes of action. Virgin argued that recent circuit decisions adopted a preemption standard from Abdullah v. American Airlines, asserting federal law governs air safety standards. While the Second Circuit supported this view in Goodspeed Airport LLC v. East Haddam Inland Wetlands and Watercourses, the Ninth Circuit had already aligned with this position in Montalvo. The court notes that, due to the nature of this motion for judgment on the pleadings, determining the preemption of Keum's claims is inappropriate at this stage. The court finds that it is unclear whether Keum's claims fall under categories of pervasive federal regulation, leading to the denial of the motion.