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Fox v. American Airlines

August 5, 2003

KERRY FOX ET AL., PLAINTIFFS,
v.
AMERICAN AIRLINES, INC., DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 5

MEMORANDUM OPINION GRANTING THE DEFENDANT'S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

I. INTRODUCTION

The plaintiffs in this action are family members who flew on an American Airlines' flight from Baltimore-Washington International Airport ("BWI") to Laredo, Texas. The plaintiffs allege that American Airlines acted in a grossly negligent manner and thereby caused serious physical injuries to plaintiff Kerry Fox and severe mental anguish and distress to the other plaintiffs. This matter is before the court on the defendant's unopposed motion to dismiss the plaintiffs' first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). Because the plaintiffs, who are represented by counsel, failed to respond to this motion, the court grants the motion as conceded.

II. BACKGROUND

In November 2001, the plaintiffs were on an American Airlines flight from BWI to Laredo, Texas, where they attended a funeral. First Am. Compl. ("Compl.") ¶ 7. According to the first amended complaint, plaintiff Kerry Fox, who suffers from advanced diabetes, experienced life-threatening insulin shock during the flight. Id. ¶ 18. By the time his sister could check on him, the insulin shock was so advanced that his medication would not have improved his status. Id. ¶¶ 10-19. The plaintiffs allege that this occurred because they could not sit near him and because food carts in the aisle prevented the flight attendants from checking on him in a timely manner. Id. As a result of Mr. Fox's condition, the pilot made an emergency landing in Nashville, Tennessee. Id. ¶ ¶ 21-22.

After emergency personnel and a hospital physician successfully treated Mr. Fox, the family continued its flight to Laredo. Id. ¶ ¶ 24-29. American Airlines personnel allegedly searched the plaintiffs at the gate before their flight to Laredo and before their return flight to BWI. Id. ¶¶ 28-30. The plaintiffs allege that the defendant targeted them for these searches because of the medical emergency on the earlier flight. Id. ¶ 31.

On October 23, 2002, the plaintiffs filed a complaint alleging gross negligence, intentional infliction of emotional distress, breach of contract and violations of the Americans with Disabilities Act ("ADA") and regulations implementing the ADA. In response, the defendant filed a motion ("first motion") to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). The court issued its Standing Order on November 21, 2002, which alerts the parties to required compliance with the local and federal rules. On December 2, 2002, the plaintiffs filed both an opposition to the first motion and a first amended complaint. The amended complaint includes four counts: Count I alleges gross negligence, Count II charges intentional infliction of emotional distress, Count III claims breach of contract, and Count IV asserts violations of the Air Carrier Access Act ("ACAA"), 49 U.S.C. § 41705. Id. ¶¶ 8-69.

The plaintiffs' opposition to the defendant's first motion addresses the defendant's Rule 12(b)(6) argument pertaining to Count IV, but fails to address the defendant's Rule 12(b)(1) and (6) arguments pertaining to Counts I-III. On December 6, 2003, the defendant filed a motion ("second motion") to dismiss the first amended complaint. The defendant's second motion addresses the differences between the complaint and the first amended complaint and argues that the changes to the complaint do not cure the jurisdictional and pleading problems. The second motion contends that the court should dismiss Counts I through III for lack of subject-matter jurisdiction, Count III and Count IV, each for failure to state a claim. The plaintiffs did not file an opposition to the defendant's second motion.

III. ANALYSIS

A. Legal Standard for Treating a Motion as Conceded

Local Civil Rule 7.1(b) requires an opposing party to file a memorandum of points and authorities in opposition to a motion within 11 days of the filing of the motion, or the court may treat the motion as conceded. Giraldo v. Dep't of Justice, 2002 U.S. App. LEXIS 13685, at *2 (D.C. Cir. July 8, 2002) (per curiam) (citing Fed. Deposit Ins. Corp. v. Bender, 127 F.3d 58, 68 (D.C. Cir. 1997)). A party who fails to file a timely response "is deemed to have waived his opposition to the [motion]." Weil v. Seltzer, 873 F.2d 1453, 1459 (D.C. Cir. 1989) (discussing a motion in limine) (cited by Bender, 127 F.3d at 67-68, in the context of a motion for summary judgment). Accordingly, the D.C. Circuit has stated, "Where the district court relies on the absence of a response as a basis for treating the motion as conceded, we honor its enforcement of the rule." Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997). Furthermore, when a plaintiff files a response to a motion to dismiss but fails to address certain arguments made by the defendant, the court may treat those arguments as conceded, even when the result is dismissal of the entire case. Sparrow v. United Air Lines, Inc., 1999 U.S. Dist. LEXIS 22054, at *17 (D.D.C. July 23, 1999), overruled on other grounds, 216 F.3d 1111 (D.C. Cir. 2000); Hanson v. Greenspan, 1991 U.S. Dist. Lexis 17451, at *11 (D.D.C. Dec. 6, 1991).

B. The Court Grants the Defendant's Motion to Dismiss the First Amended Complaint

Notwithstanding Local Civil Rule 7.1(b)'s requirement that an opposing party file a memorandum of points and authorities in opposition to a motion within 11 days of the filing of the motion, the plaintiff, represented by counsel, failed to respond to the defendant's motion to dismiss the first amended complaint. This is true despite the fact that the Standing Order states, "Motions and related submissions must comply with Local Civil Rule 7.1." Standing Order ΒΆ 12. Accordingly, because the plaintiffs failed to ...


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