regarding blind passengers and emergency exit row seats.
With regard to Mr. Anderson's claim under the commerce clause, the Court finds that there has been no showing as to how commerce has been burdened by USAir's policy. The restriction applies to only two of 22 rows in this particular type of aircraft and is safety-related. Similarly, the Court finds that Mr. Anderson has not alleged specific facts to support his claim that his right to travel was denied. USAir offered a seat to Mr. Anderson on his choice of flights on both February 6 and 7 in any non-emergency exit row. At all times, USAir has stood ready to transport Mr. Anderson. Reasonable safety restrictions on the flights are permissible and have not curtailed Mr. Anderson's right to travel. See United States v. Davis, 482 F.2d 893, 912-13 (9th Cir. 1973) (airport searches do not violate right to travel). Accordingly, Mr. Anderson's claims under the Constitution must be dismissed.
Claims Under State Law
In Count Five of his complaint, Mr. Anderson states that USAir's policy and the efforts of its agents in procuring the arrest of Mr. Anderson constitute a "tort of outrage." In Count Six, Mr. Anderson alleges that USAir's policy and its agents' actions violated his contractual rights and USAir's "obligation as a public carrier to provide equal and courteous service to all."
The Court finds first that Mr. Anderson has not set forth facts sufficient to state a cause of action for outrage in his complaint or in the pleadings filed thereafter. The tort of outrage requires that the underlying conduct be "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." RESTATEMENT (SECOND) OF TORTS § 46 comment d (1965). It is for the Court to determine "in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so." Id. at comment h. See also Hingson v. Pacific Southwest Airlines, 743 F.2d 1408, 1416 (9th Cir. 1984). Nowhere in the filings is there alleged conduct satisfying any of those standards. Rather, USAir's actions were in accord with both its published procedures and the FAA's recommendations. Consequently, the Court finds that USAir is entitled to summary judgment on this claim.
The Court next turns to Mr. Anderson's claim that USAir breached its contract of carriage in failing to transport him in an emergency exit row seat. No specific term or condition of the contract is alleged to have been breached, however. Furthermore, there is no provision in the contract between the parties specifying a passenger's right to sit anywhere in the plane. The tickets issued by USAir incorporate by reference USAir's Terms of Transportation under which "USAir may refuse to transport, or may remove from any flight, any passenger [who] . . . (2) attempts to interfere with any member of the flight crew in the pursuit of his/her duties, . . . or (4) engages in any action that might jeopardize the safety or comfort of other passengers." Finally, the Terms of Transportation explicitly limit USAir's liability for refusal to transport, stating that "USAir is not liable for its refusal to transport any passenger or for its removal of any passenger in accordance with the above paragraphs but USAir will provide the applicable involuntary refund." Mr. Anderson received such a refund through a credit on a TWA ticket. Thus, the contract provided for Mr. Anderson's removal when he attempted to interfere with the flight crew's duties which were imposed by the Flight Attendant Emergency Manual and when he engaged in actions jeopardizing the safety of other passengers by refusing to comply with a policy based on safety considerations. Since USAir's contract also limits its liability for refusing to carry Mr. Anderson to a refund which he has received, Mr. Anderson cannot recover on this theory of liability.
The Court finally finds that Mr. Anderson's claim that USAir's policy violated USAir's obligation as a common carrier to provide service is based on a state law duty that has been expressly preempted by Congress in an amendment to the Federal Aviation Act. The Act provides in pertinent part that:
No State or political subdivision thereof . . . shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier having authority under subchapter IV of this chapter to provide interstate air transportation.
49 U.S.C. § 1305(a)(1). The legislative history is clear that this Act and regulations issued thereunder preempted any state laws relating to air carrier services. See H.Rep. No. 1211, 95th Cong., 2d Sess. 15-16 reprinted in 1978 U.S. Code Cong. & Ad. News 3751-52. Such services include the regulation of air carrier seating policies for handicapped passengers. See Hingson, 743 F.2d at 1415-16. Moreover, the common law of common carriers was not revived by the repeal of § 404(b) since the repeal was part of the same legislation which enacted the preemption provision. Thus, Mr. Anderson has no basis for his claims for USAir's alleged violation of its obligation as a public carrier.
Motion for Leave To Amend the Complaint
The Court has considered Mr. Anderson's motion for leave to file an amended complaint. Ordinarily, leave is freely given when justice requires it under Fed. R. Civ. P. 15. The Court finds in this case, however, that prejudice and expense would inure to the defendant without a significant offsetting benefit. Therefore, justice requires that the motion be denied.
As noted in the facts, this case was filed with unusual speed -- on the day after the second of the deliberately planned precipitating incidents. Approximately a month later, a status conference was held, at which time the parties agreed to a discovery and briefing schedule. More than three months after the complaint was filed, discovery was closed; ten days thereafter plaintiff's motion was filed with the parties' cross-motions for summary judgment. If the amended complaint alleged facts unknown prior to completion of discovery, the delay in amending the complaint would be understandable. However, an analysis of the amended complaint shows that no new facts are alleged to justify adding four counts. Furthermore, a fifth additional count would require additional discovery and is only tangentially related to the incident upon which the complaint is based. Finally, the remaining changes are superfluous.
In light of the lateness of this motion, in that the parties had agreed to a schedule and were well on their way toward disposition, the unnecessary delay that would be caused by the amendment of the complaint, and the absence of new facts to justify the delay in moving to amend the complaint, the Court finds that the motion to file an amended complaint must be denied.
For the foregoing reasons, and upon consideration of Mr. Anderson's motion for leave to file an amended complaint, the opposition thereto, and the reply, it hereby is
ORDERED, that the motion is denied.
Upon consideration of the defendant USAir's motion for summary judgment, the plaintiff Russell Anderson's motion for summary judgment, the respective responses thereto, and the entire record herein, it hereby is
ORDERED, that USAir's motion for summary judgment on all claims is granted. The Clerk shall enter judgment for USAir and dismiss with prejudice all claims brought against it. It hereby further is
ORDERED, that Mr. Anderson's motion for summary judgment is denied.