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Michael Rosen v. Continental Airlines

February 25, 2013

MICHAEL ROSEN, PLAINTIFF-APPELLANT,
v.
CONTINENTAL AIRLINES, INC., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8257-10.

The opinion of the court was delivered by: Kennedy, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted September 11, 2012

Before Judges Messano, Ostrer and Kennedy.

The opinion of the court was delivered by KENNEDY, J.A.D.

Plaintiff appeals from a Law Division order dismissing with prejudice the counts in his complaint alleging that defendant violated the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20 (count two); that defendant's refusal to accept cash during a flight constituted unlawful "discrimination against low income individuals" (count three); and that defendant, by refusing to accept cash during the flight, prevented plaintiff from enjoying in-flight amenities, and caused plaintiff to suffer "severe mental anguish and emotional distress" (count four). The order denied defendant's motion to dismiss plaintiff's breach of contract claim (count one), but plaintiff later voluntarily dismissed this count making the order appealable as of right.*fn1

The motion judge determined that plaintiff's claims under the CFA, and other state tort claims, were preempted by a specific clause of the federal Airline Deregulation Act (ADA), 49 U.S.C.A. § 41713(b)(1), and that plaintiff's claim for class certification was baseless. We affirm.

We derive the following facts from the record. On December 1, 2009, defendant instituted a cashless cabin policy for accounting and security purposes. Defendant informed the public of this change in policy by issuing a nationwide press release, and through pre-boarding announcements and announcements after completion of the boarding process. The motion judge recited other pertinent facts, which are undisputed:

[In] 2009 plaintiff Michael Rosen purchased a round trip flight ticket from Newark, New Jersey to Los Angeles, California with the defendant Continental Airlines. While on board the flight from Newark to Los Angeles plaintiff purchased a headset by credit card from defendant for in-flight movies.

Prior to purchasing the headset the passengers on the flight were advised that headsets could be used on future Continental flights. On January 6th, 2011, plaintiff boarded the return flight from Honolulu, Hawaii to Newark. On that flight the plaintiff attempted to use the headset purchased on the prior flight and discovered the headset was not compatible with "jacks" and he would have to purchase a new headset which would be compatible with the available jacks.

Plaintiff tried to purchase a new headset with cash. But defendant's representative indicated that the defendant was only capable of accepting payments by credit card or debit card. Plaintiff later tried to purchase a cocktail and was told that Continental had a no cash policy on its airplane and that he could not make any purchases unless he possessed a debit or credit card.

Since plaintiff did not have in his possession either debit or credit card he was unable to make any purchases on the flight.

Plaintiff filed suit on October 4, 2010, in the Law Division, asserting the causes of action noted above. On defendant's motion, the case was initially removed to the federal district court, but was later remanded to the Law Division, where defendant then moved to dismiss plaintiff's complaint for failure to state a claim on which relief could be granted pursuant to Rule 4:6-2(e). Plaintiff opposed the motion, and filed a cross-motion for leave to file an amended complaint asserting a class action. After hearing argument, Judge Denise A. Cobham issued an order dismissing, with prejudice, the second, third and ...


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