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Dasrath v. Continental Airlines

October 18, 2002


The opinion of the court was delivered by: Debevoise, Senior District Judge



In one of these related cases Plaintiff Michael Dasrath asserts claims against Defendant Continental Airlines ("Continental") under 42 U.S.C. § 1981; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; and the New Jersey Law against Discrimination (the "NJLAD"), N.J.S.A. 10:5.1 et seq., alleging that Continental engaged in unlawful discrimination (in violation of all three statutes) when it removed him from one of its flights prior to its departure from Newark airport on December 31, 2001. In a separate complaint Plaintiff Edgardo S. Cureg alleges that Continental violated the same three statutes when it removed him from the same flight. The American Arab Anti-Discrimination Committee (the "ADC"), on behalf of its members, joins in Cureg's suit. Dasrath's complaint asserts a claim for damages and for declaratory and injunctive relief. Cureg and the ADC seek only declaratory and injunctive relief.

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 complaints. *fn1

I. The Cureg Complaint

A. Plaintiffs

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 Muslim."

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 Continental. *fn4

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 Continental."

II. The Dasrath Complaint

A. Plaintiff

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 fly.

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 status. *fn5

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 ...

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