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Susan Rogers v. Continental Airlines

September 21, 2011


The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.

Not for Publication

(being fictitious)


Plaintiff Susan Rogers filed this action asserting state law tort and breach of contract claims based on her removal by defendant Continental Airlines, Inc. ("Continental") from a flight bound from Newark to Cancun, Mexico.*fn1 Continental removed this case to federal court and now moves for summary judgment (D.E. 19), arguing that Rogers' claims are preempted by international conventions governing airline liability in connection with international air travel. Continental also argues that Rogers' complaint fails to state a viable cause of action under the conventions. For the reasons stated below, Continental's motion is granted.


This suit arises from Rogers' removal from Continental Flight 1730 from Newark to Cancun, Mexico, on February 4, 2009. When she purchased tickets for the flight, Rogers requested adjoining seats for herself and her two-year-old daughter, but she claims she was told that the seat assignment had to be done at the airport. (Dep. of Susan Rogers, Dec. 21, 2010 ("Rogers Dep."), D.E. 21, ex. D at 23:10-23.) According to Rogers' deposition testimony, when she arrived at the ticket counter at Newark Liberty International Airport, she was told to speak to a supervisor at the gate about seating, and then an agent at the gate told her to wait until boarding. (Id. at 20:22-21:1 and 25:8-13.) After Rogers boarded, a flight attendant helped her find adjacent seats in an exit row. Rogers sat down and began feeding her daughter when a second flight attendant told her she had to move because her daughter was too young to sit in an exit row. (Id. at 34:10-5-35:1-4 and 36:13-17.) Rogers replied that "we can sit here" because the first flight attendant had seated them there, but the second flight attendant insisted that Rogers and her daughter move.

Rogers eventually to wait in the kitchen galley, where she began talking on her cell phone. (Id. at 36:17-22.) A flight attendant told her that she "needed to get off my phone," but Rogers replied that "the pilot didn't announce not to be on your phone and I'm talking to my Mom." (Id. at 38:4-39:3 and 39:7-12.) The flight attendant then told Rogers to stop talking on her phone or else exit the plane. (Id.) Rogers said that she "wasn't getting off the plane" and continued speaking on the phone for another six or seven minutes. (Id. at 44:18-45:1.) The flight attendant returned with a supervisor, who asked Rogers to leave the plane. (Id. at 39:14-17; 40:1-10.) Rogers refused to leave, objecting that "I need to know why I'm getting off the plane." (Id. at 40:1-10.) Rogers testified that the supervisor did not give her an explanation, but he did tell her three times to leave. She refused. (Id. at 83:25-84:3.) According to Rogers, the supervisor was polite at first, but he gradually began raising his voice and eventually "grabbed my pocketbook, my carry-on and the baby's bag and he threw it on [the jetway]." (Id. at 40:6-10 and 84:4-12.)

Rogers claims that she never raised her voice during the encounter. (Id. at 50:15). However, three flight attendants who filed reports after the incident described Rogers as "extremely rude," and as "cursing" and "yelling" when she was asked to move, which she refused to do. (D.E. 19 at exhibits F and G.) According to Continental, when a flight attendant requested that Rogers calm down and speak to the agent about the situation, Rogers responded, "or what. . . what are you going to do if I don't[?]". (Id. at exhibit H.)

Rogers testified that, after the supervisor told her to get off the plane, he escorted her to a customer service counter to rebook her flight. (Rogers Dep. at 54:4-25.) Rogers booked a flight for three hours later, but realized she had lost her passport. The customer service agent radioed the plane to find the passport, but the plane had taken off, so the agent rebooked Rogers for the last flight of the day while Rogers drove to Connecticut to get a replacement passport. (Id. at 55:24-56:6 and 57:21.) After she had ordered a new passport, Rogers received a call from the agent saying that her passport had been found on the jetway. (Id. at 57:10). Rogers left that night on a flight to Cancun, arriving around 2 a.m. on February 5th, several hours later than originally scheduled. (Id. at 66:8-10 and 77:1.) Rogers claims that the incident, including replacing her passport, cost her approximately $170. (Id. at 58:3, 60:10-17, 67:17 and 68:5.)

Rogers did not suffer any physical injury (id. at 71:4-7), but she claims that she was mistreated, publicly embarrassed and distressed at the prospect at not seeing her husband, whom she was meeting in Cancun. (Pt.'s Br. in Opp'n, D.E. 21 at 2.) Rogers asserts that she cried for days after the incident, and, after her vacation, sought treatment from a psychiatrist for "ways to deal with what happened to [me] on the flight." (Id. at 87:5-9 and 72:15-17.) However, Rogers acknowledges that she stayed for her full vacation in Cancun, where she shopped, visited a zoo and spent time with her husband (Id. at 77:11-18).

Rogers filed a three-count complaint against Continental and various unnamed defendants in May 2010, alleging: (1) intentional infliction of emotional distress; (2) negligent infliction of emotional distress; and (3) breach of contract. (D.E. 1.) Defendants removed to federal court based on diversity jurisdiction pursuant to 28 U.S.C. §1332 and based on 28 U.S.C. §1331, which provides federal jurisdiction because the case arises under an international treaty to which the United States is a party.

Legal Standard:

Summary judgment is appropriate when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it could affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id. In considering a motion for summary judgment, a court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Knopick v. Connelly, 639 F.3d 600, 606 (3d Cir. 2011); see also Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 ...

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