The opinion of the court was delivered by: Dickinson R. Debevoise, Senior District Judge
Continental moves to dismiss all Plaintiffs' claims for failure to
state a claim under Fed.R.Civ.P. 12(b)(6) and to dismiss certain of their
claims for lack of subject matter jurisdiction under Fed.R.Civ.P.
12(b)(1). It also moves to dismiss claims for monetary relief on the
ground that any remedies should be limited by the terms of the contracts
under which Cureg and Dasrath traveled. For the reasons stated below,
this joint motion will be denied in all respects.
For the purposes of a motion to dismiss under Rule 12(b)(6), the court
must assume the truth of all the allegations in the complaints; and where
a defendant challenges a plaintiff's standing or the ripeness of a cause
of action on the face of the complaint, the court must similarly assume
the truth of a plaintiff's allegations. Med. Soc'y of New Jersey v.
Herr, 191 F. Supp.2d 574, 578 (D.N.J. 2002). Accordingly, the following
account of the facts relevant to the motion is drawn entirely from the
Plaintiff Cureg is a 34 year old Filipino citizen and has been
a permanent resident of the United States since April of 2000. He
is a graduate student at the University of South Florida ("USF")
in Tampa, where he resides.
Plaintiff ADC is an organization committed to defending the rights of
people of Arab descent and to combating defamation and stereotyping
directed at them. Its members number in the thousands.
B. The Events of December 31, 2001
On December 31, 2001, Cureg planned to fly from London-Gatwick Airport
to Tampa with a stopover in Newark. While at Gatwick, Cureg encountered a
colleague from USF, Dr. Saraleesan Nadarajah, who was also heading back
to Tampa on the same Continental flight. The two men spoke briefly before
boarding the plane to Newark. They were seated in different sections of
the plane and did not speak during the flight.
Before disembarking in Newark and then again after passing through
customs and rechecking his baggage, Cureg placed a cell phone call to
another friend and colleague at USF. Informed that Nadarajah was on the
same flight, the friend said he would like to speak with Nadarajah. When
Cureg encountered Nadarajah at the gate assigned to the flight to Tampa
(#1218, scheduled to depart at 4:10 pm), Cureg mentioned the conversation
with their common friend and offered Nadarajah the use of his cell phone
to call him back. While Nadarajah was on Cureg's phone, a boarding
announcement was made, and Cureg told Nadarajah that he
could return the phone after they had boarded the plane.
Cureg had been upgraded to first class for the flight to Tampa.*fn2 As
Nadarajah passed Cureg on the way to his seat in coach, he returned the
phone, saying, "Thank you," to which Cureg replied, "You're welcome."
After the pilot announced that the flight would remain at the gate so
that some luggage could be re-examined by security personnel, Nadarajah
came forward to the first class cabin and sat in the empty seat beside
Cureg. A passenger later identified as Dasrath sat directly behind
Cureg. Dasrath did not communicate with the other two men.
Three to five minutes later, the flight supervisor approached and asked
the three men to gather their belongings and follow him off the plane,
and they complied. The flight supervisor explained that the pilot had
said a passenger was "uncomfortable" with their presence. After checking
the identities of the three men and confirming that Cureg and Nadarajah
had been on the London-Newark flight, the flight supervisor left for
about five minutes to speak with the pilot, attempting to convince him
that the men presented no safety concerns. But he failed to persuade the
pilot to let the three men back on the plane.*fn3 At no time did the
pilot or any security personnel question Cureg or conduct any
investigation prior to ejecting him from the flight.
With the assistance of the flight supervisor and gate staff, Cureg and
Dasrath were provided with seats on a 5:00 pm flight to Orlando, and with
car service to take them from Orlando to Tampa.
C. Allegations Relevant to Claims of Continuing Discrimination
by Continental against Cureg and ADC Members
In support of his claim for injunctive relief, Cureg alleges that he
has a reasonable fear of "similar mistreatment" by Continental . . . in
the future unless such conduct is enjoined." He does not specifically
describe any plans to fly with Continental in the future, but he states
that he is a frequent flier with Northwest "and, by extension, its
partners, including Continental," and avers that Continental has "engaged
in a practice of removing certain non-white passengers."
The ADC states that its members (including its 15 board members) fly
regularly on major airlines including Continental, and that it holds an
annual conference attended by approximately 2000 people from across the
country, some of whom have in previous years flown Continental to the
conference. The ADC similarly alleges that its members "face a
likelihood" of being subjected to discriminatory treatment in the future
as a result of their continuing travel on Continental . . . and [its]
practice of discriminating against passengers it perceives as Arab or
The ADC contends that since September 11 it has "documented more than
60 incidents of alleged discrimination against Arab Americans by domestic
and foreign airlines"; and it describes one such incident involving
The complaint also recounts Department of Transportation reports of
complaints of discrimination by air carriers (for example, 84 in the
period between January and March 2002), "including several against
II. The Dasrath Complaint
Dasrath is a U.S. Citizen born in Guyana who moved to this country
(specifically to Brooklyn, New York) with his parents when he was one
year old. He holds an MBA and works in "Consulting Services" for J.P.
Morgan Chase in New York City. Dasrath's wife and two sons live in
Tampa, and on December 31, 2001 he planned to travel to join them there
on Continental's flight #1218 the same flight on which Cureg planned to
Because Dasrath's wife is an employee of Continental, he is entitled to
fly standby at a considerably reduced fair as a "non-revenue" ticket
holder. He relies on the privilege to fly to Tampa approximately twice a
month to visit his family. The tickets he obtains show his non-revenue
B. The Events of December 31, 2001
Dasrath passed through security essentially without incident (His
carry-on baggage was subjected to a random x-ray, and his belt buckle set
off a metal detector.) When he arrived at the gate, he was informed that
the plane was not full and assigned a seat in the first class section.
Dasrath saw Nadarajah board the plane and greet Cureg on his way to the
coach cabin, then saw him return to first class and converse with
Cureg.*fn6 At no ...