The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
DENYING THE PLAINTIFFS' MOTION TO ALTER OR AMEND JUDGMENT
This matter comes before the court on the plaintiffs' motion to alter or amend judgment.*fn1 The plaintiffs argue that the court should reconsider its order granting the defendant's motion to dismiss because the plaintiffs' counsel did not receive the defendant's motion to dismiss the amended complaint and because their amended complaint alleges a valid cause of action. Given that plaintiffs' counsel should have known of the pending motion to dismiss and because a motion to alter or amend judgment is not an opportunity to reargue legal theories on which the court has already ruled, the court denies the plaintiffs' motion.
The suit stemmed from the plaintiffs' November 2001 flight from Baltimore-Washington International Airport ("BWI") to Laredo, Texas. Am. Compl. at 3-8. According to the amended complaint, plaintiff Kerry Fox, who suffers from advanced diabetes, experienced life-threatening insulin shock during the trip, requiring the aircraft to make an emergency landing in Nashville, Tennessee. Id. at 4-5. In light of Mr. Fox's medical condition, the plaintiffs allege that airline personnel were supposed to monitor him during the flight, but neglected to do so. Id. at 4. Further, the airline personnel did not administer medical aid to him during his emergency. Id. at 5. After medical personnel revived Mr. Fox at the Nashville airport, the family continued on to Laredo. Id. at 5. During the trip to Laredo and the return to BWI, the defendant's employees repeatedly searched the family's belongings because of the medical emergency on the original flight. Id. at 5-7. Finally, the plaintiffs claim that an employee of the defendant refused to board the family on their return flight to BWI because of their request to sit together. Id. at 6-7.
On October 23, 2002, the plaintiffs filed suit against the defendant. The initial complaint alleged gross negligence, intentional infliction of emotional distress, breach of contract and violations of the Americans with Disabilities Act ("ADA") (42 U.S.C. § 12101 et seq.). Compl. at 8-10. On November 19 2002, the defendant filed a motion to dismiss, noting that the plaintiff's argument regarding the ADA actually implicated the Air Carrier Access Act ("ACAA") (49 U.S.C. § 41705). On November 21, 2002, the court issued its Standing Order directing parties to comply with the federal and local rules. On December 2, 2002 the plaintiffs filed an amended complaint and an opposition to the motion to dismiss.
The first three counts of the amended complaint mirrored the first three counts of the original complaint. Compare Am. Compl. at 8-9 with Compl. at 8-9. Count IV, however, substituted the allegations involving violations of the ADA with violations of the ACAA. Am. Compl. at 9. On December 6, 2002, the defendant filed a motion to dismiss the amended complaint. The plaintiffs did not file an opposition to the defendant's motion to dismiss the amended complaint, instead filing on January 15, 2003, a joint meet and confer statement and proposed scheduling order that noted "a motion to dismiss is pending." Joint Statement at 1; Prop. Scheduling Order at 1.
On August 5, 2003, the court granted the defendant's motion to dismiss the amended complaint. Order dated Aug. 5, 2003. In its Memorandum Opinion, the court observed that the plaintiffs' opposition to the first motion to dismiss only addressed Count IV, and that "even if the court treats the plaintiffs' opposition to the defendant's first motion as an opposition to the defendant's second motion, the plaintiffs still have not responded to the arguments pertaining to Counts I-III." Fox v. American Airlines, Inc., 2003 WL 21854800 at *2 (D.D.C. Aug. 5, 2003). The court further noted that, "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." Id. Accordingly, the court treated Counts I-III as conceded and granted the defendant's motion to dismiss. Id. Analyzing count IV in detail, the court concluded that "the defendant's argument that the ACAA does not create a private right of action is substantively correct." Id. at *4. The court then granted the defendant's motion to dismiss Count IV. Id. On August 18, 2003, the plaintiffs filed a motion to alter or amend the court's order granting the defendant's motion to dismiss. The court now turns to that motion.
A. Legal Standard for Rule ...