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KALANTAR v. LUFTHANSA GERMAN AIRLINES

September 16, 2005.

DR. KAMYAR KALANTAR, Plaintiff,
v.
LUFTHANSA GERMAN AIRLINES, et al., Defendants.



The opinion of the court was delivered by: HENRY KENNEDY, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Dr. Kamyar Kalantar-Zadeh ("Kalantar"),*fn1 brings this action against Lufthansa German Airlines ("Lufthansa") and two of its employees, Ziba Vali-Coleman and Juergen Starks, under the Federal Aviation Act, 49 U.S.C. §§ 1374 and 1511; the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("§ 1981"); Title II of the Civil Rights Act of 1964 ("Title II"), 42 U.S.C. § 2000a; Article 1 of the Warsaw Convention, reprinted in note following 49 U.S.C. § 40105; and for a variety of common law torts. Kalantar alleges that on March 25, 2000, defendants improperly prevented him from boarding a Lufthansa flight to Frankfurt, Germany, after a dispute over whether he should be required to undergo a more thorough luggage search. In the ensuing discord, Kalantar claims Vali-Coleman and Starks made defamatory statements against him, arranged for him to be arrested and detained without justification, and pressed unsubstantiated criminal charges against him. Presently before the court is defendants' renewed motion for summary judgment [#50]. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that the motion must be granted in part and denied in part.

I. BACKGROUND

  A. Factual History

  Kalantar is a physician of Iranian birth and nationality, although he has been a permanent resident of the United States since the mid-1990s.*fn2 After attending a conference of the Renal Physician Association held in Washington, D.C., Kalantar went to Dulles Airport, located in northern Virginia, to travel on a Lufthansa Airlines flight to Frankfurt, Germany. Shortly after reaching the Lufthansa ticket counter, Kalantar presented his ticket and luggage to an agent who took his luggage and issued a boarding pass. Vali-Coleman, another agent, refused to give him the boarding pass until he consented to a hand-search of his luggage, telling him that because "he had an Iranian passport, he might be a security threat to the flight and to German passengers." Am. Compl. ¶ 7. Vali-Coleman added that she was acting pursuant to "top-secret United States government regulations" mandated by the Federal Aviation Administration ("FAA"), and told Kalantar within earshot of other passengers that "he must know that the United States government is against all Iranians." Id. When Kalantar protested this statement and asked to see the regulation in question, Vali-Coleman refused, allegedly explaining that she could not disclose it because it was "confidential." Kalantar Dep. at 50-52. Vali-Coleman instead threatened to call the police unless he complied with her instructions. Kalantar responded that her insistence on conducting an additional search of his baggage "[was] most likely illegal and racist," and that he would welcome the arrival of the police because "I have also my protest to convey to them." Id. at 57.

  After a few minutes, two airport police officers arrived at the Lufthansa ticket counter. The officers engaged in dialogue with Kalantar and Vali-Coleman, attempting unsuccessfully to find an FAA agent to explain the regulation to Kalantar and to have Vali-Coleman show him the regulation. Kalantar states that while he demanded to see the regulation or be apprised of its contents, he also allowed that "if this is an FAA regulation I do not have any problem with [the] luggage search." Id. at 70.

  At this point, Starks, Lufthansa's flight manager on duty at the time, approached the counter and after a brief exchange told Kalantar that he and Vali-Coleman "decided to deny you the flight because you refused [a] luggage search and you called us racist." Id. at 80. After further confrontation, Starks told Kalantar that he would ask the police officers to "relocate" him, id. at 82-83, and one of the police officers then asked Kalantar to leave the counter. When Kalantar hesitated, mentioning that the airline agents were holding his passports, his ticket, his boarding card, and luggage, Starks asked the officers to remove him. The officers then handcuffed Kalantar and led him to a wall adjacent to the Lufthansa ticket counter. As Kalantar was being led away, Starks allegedly smiled at him and said, "your unprofessional conduct will be handled legally soon." Id. at 86. After the police recovered Kalantar's possessions from the ticket counter and searched him, they transferred him to a detention room at the airport police station. At the station, Kalantar spoke with a police sergeant, Alan Pellerin, who said he would try to help Kalantar catch his flight on time, or assist him in otherwise arranging for transportation to Germany. After calling Lufthansa, though, Pellerin told Kalantar that Starks insisted that Kalantar be kept in custody, and indicated that the airline would press charges against him. Police officers then took Kalantar to an appearance before a magistrate, stopping en route at the Lufthansa ticket counter at the airport terminal. One of the officers returned with a document from Lufthansa, purportedly a report from the airline's employees testifying against Kalantar. When Kalantar appeared before the magistrate, the magistrate allegedly said that he saw no reason for Kalantar's arrest and detention, until he read Lufthansa's written statement. At that point, he said "now the story is different. Now we have a reason for arrest . . . this is criminal trespassing." Id. at 108. After setting a date for Kalantar's arraignment, the magistrate released him.

  Kalantar returned to Dulles the next afternoon, renewing his efforts to obtain passage to Germany. At the ticket counter, he encountered Vali-Coleman once more. This time, though, Vali-Coleman did not say anything about conducting a luggage search, even when Kalantar specifically asked about it, and issued him his boarding pass without incident or "any major conversation." Id. at 120. Kalantar then flew to Germany. Upon his return to Dulles, on March 28, 2000, he went to the Lufthansa ticket counter to try to obtain a copy of the testimony Lufthansa had prepared against him in preparation for his arraignment. Vali-Coleman, yet again at the counter, told Kalantar to wait for a few minutes. She apparently then summoned airport police, telling them that he was "threatening" her. Id. at 127. An officer arrived, talked with Kalantar, and gave him a telephone number to which he could direct his inquiry. Kalantar attended his arraignment and appeared for his trial date several months later. Kalantar pled not guilty, and all charges against him were dropped.

  Not surprisingly, Vali-Coleman and Starks paint a different picture of the events of March 25, 2000. Vali-Coleman admitted telling Kalantar that he would be subject to further search because he held an Iranian passport, and that the airline would not transport him if he refused to undergo the luggage search. She said, however, that she only called the police upon Kalantar's demand that she do so. Kalantar, she testified, "started making a derogatory speech, insulting the airline, the Germans, calling us Nazis and Hitler, and that he was being discriminated against because he is an Iranian Jew." Vali-Coleman Dep. at 54. When the police arrived, they explained to Kalantar that he would either have to comply with Lufthansa's baggage search or else leave the ticket counter. According to Vali-Coleman, Kalantar "wanted to be arrested." Id. at 61. She denied that she or anyone else at Lufthansa pressed charges against Kalantar, although she stated that at the request of police she prepared an incident report with the help of Starks and another Lufthansa employee. She testified that she never recalled Kalantar agreeing to a search if it was required by FAA regulation. On the next day, when Vali-Coleman checked Kalantar in without incident, he presented her with a United States passport, which he had allegedly not shown her the day before.*fn3 Starks, for his part, testified that he instructed Kalantar to go to a security checkpoint, and that Kalantar responded, "if [Starks would] take Aryans out of the line and they go with him and the Lufthansa rep, then he would go to the security checkpoint." Starks Dep. at 61. The police officers then, in Starks' recollection, told Kalantar that he would have to leave the area or they would escort him out, and Kalantar "put his hands behind his back and said, `[a]rrest me.'" Id. at 63. Starks admitted to being involved in the drafting of an incident report, but denied either sharing the report with anybody or having any contact with police after Kalantar's arrest.

  B. Procedural History

  Kalantar initiated this action on March 23, 2001. After answering the complaint, defendants filed an ex parte motion for summary judgment under seal. In this motion, defendants argued that they were entitled to judgment as a matter of law because their conduct toward Kalantar was mandated by an FAA directive which they could not disclose without the agency's permission. Kalantar responded with a motion to strike, proposing in the alternative that his attorney be permitted to review the motion subject to a court order that he not disclose any information regarding the security directive to anyone, including his client. After a hearing on this motion, the court issued an order on February 21, 2002, directing defense counsel to disclose the summary judgment motion to Kalantar's counsel and to deliver a copy of the court's order to the FAA.*fn4 The United States Transportation Security Administration then moved to stay the court's order, and the United States filed a statement of interest on April 10, 2002. In this filing, the United States asked the court to decide whether Kalantar's need to obtain the FAA directive was moot in light of the possible preemptive effect of Article 17 of the Warsaw Convention.*fn5 On August 7, 2003, the court ruled that Article 17 of the Warsaw Convention did not preempt Kalantar's claims, and that therefore defendants could refile their motion for summary judgment as redacted by the Transportation Security Administration. This motion, seeking summary judgment on all counts, is now before the court.

  II. ANALYSIS

  A. Legal Standard

  Under Fed.R.Civ.P. 56, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. The non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249-50.

  B. Claims Under Federal Law

  1. Federal Aviation Act and "Common Carrier Duty"

  Kalantar notes in his opposition brief that he "will stipulate to a dismissal of [his] claim under the Federal Aviation Act." Pl.'s Opp'n at 26 n. 6. In addition, he offers no response to defendants' argument that federal statutes have supplanted, and preempted, any common law duty that airlines may have had to "provide . . . air transportation in a manner that does not discriminate on the basis of race, religion, or national origin." Defs.' Mot. for Summ. J. at 11 (citing Am. Compl. ¶ 20). The court, therefore, treats defendants' argument as conceded, and dismisses both of these claims.

  2. Section 1981

  Kalantar next asserts that defendants violated his rights under the Civil Rights Act of 1866, 49 U.S.C. § 1981, which provides in part that "all persons shall have the same right in every State and Territory to make and enforce contracts as is enjoyed by white citizens. . . ." Section 1981 is violated only by "purposeful discrimination." Gen. Bldg. Contractors' Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982). To prevail on a § 1981 claim, a plaintiff must establish that he was treated differently than other similarly situated individuals, on account of his race. Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1413 n. 7 (1988). Kalantar asserts in his complaint and his opposition to defendants' summary judgment motion that he was singled out for the more extensive luggage search on the basis of his race*fn6 and religion,*fn7 and that defendants therefore violated his civil rights.

  There is an essential defect in Kalantar's position that compels summary judgment for defendants on this claim: he does not provide any evidence that shows, or even implies, that race was the reason he was subjected to a more extensive search. On the contrary, Kalantar's own deposition testimony indicates instead that Vali-Coleman and Starks both told him that his presentation of an Iranian passport triggered the additional security measures. For example, Kalantar testified that Vali-Coleman told him that "since you have an Iranian passport you require [a] luggage search, and more search [sic] if necessary." Kalantar Dep. at 26; see also id. at 46, 47 ("all Iranians with [an] Iranian passport require? special treatment."). Kalantar stated that when Lufthansa employees asked him to undergo the more extensive luggage search during a previous flight with the airline in December 1999, a police officer spoke with the airline agents and "made them show me the [FAA] regulation," which Kalantar read. Id. at 177. The regulation, according to Kalantar, "said that the holders of passports from the foreign countries should be — should or may require luggage search. And then there was ...


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