Opinion
Civil Action 19-cv-03544-CMA-NRN
09-23-2020
LENA RAMSAY and JANE DOE, individually, and on behalf of all other similarly situated, Plaintiffs, v. FRONTIER, INC., Defendant.
ORDER REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION TO AMEND COMPLAINT (Dkt. #65)
N. REID NEUREITER, United States Magistrate Judge.
I. Procedural Background
This matter is before the Court on Plaintiffs' Motion for Leave to Amend the Complaint (Dkt. #65), filed on August 20, 2020. The Motion for Leave to Amend was filed contemporaneously with Plaintiffs' objection to my recommendation of July 31, 2020 (Dkt. #61) where I recommended that certain of Plaintiffs' claims against Frontier, Inc. (“Frontier”) be dismissed and that Plaintiffs' class action allegations be stricken. Judge Arguello referred the Motion for Leave to Amend to me on August 24, 2020. See Dkt. 67. Frontier filed a response to the Motion for Leave to Amend on September 9, 2020. Dkt. 70. Plaintiffs filed a reply in support of the Motion for Leave to Amend on September 16, 2020. Dkt. #71.
I heard argument regarding the Motion for Leave to Amend on September 18, 2020. As articulated at the conclusion of the hearing, I recommend that the Motion for Leave to amend be DENIED. I expound on my reasons below.
II. Background
This is a lawsuit brought by two female sexual assault victims against an airline, Frontier. The suit seeks both compensation and injunctive relief for sexual assaults that allegedly occurred while flying on Frontier flights. The lawsuit is brought as a class action under Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs seek compensation for the physical and emotional injuries the two suffered from the alleged assaults and their aftermath and seek injunctive relief on behalf of “[a]ll passengers who flew on Frontier flights between December 16, 2017 and the present.”
The asserted basis for the class aspect of the suit is that sexual assault on commercial flights is becoming more and more prevalent. While aware of this reality, Frontier is alleged to lack adequate policies either to prevent or to respond to in-flight sexual assaults and failed to enforce the policies it does have, thereby subjecting all Frontier passengers to the unnecessary risk of harm from in-flight sexual assault. It is alleged that Frontier has an affirmative duty to aid and protect its passengers and that this duty includes protecting passengers from sexual assaults by fellow passengers and responding properly to in-flight sexual assaults that do occur. Frontier allegedly violated its duties by failing to implement or enforce appropriate policies and procedures to prevent, or properly respond to, sexual assaults that occur on its flights, failing to report in-flight assaults to the proper authorities, and failing to cooperate with authorities in the investigation process.
III. My prior recommendation recommending dismissal of certain claims and the striking of class allegations
As noted, on July 30, 2020, I recommended that Judge Arguello grant in part Frontier's motion to dismiss and also recommended that she grant Frontier's motion to strike the class allegations from the Complaint. See generally, Dkt. #61. Plaintiffs' proposed amended complaint attempts to address certain of the deficiencies identified in the July 30 recommendation. In that recommendation, I came to the following conclusions:
1. That Plaintiffs' claim for willful and wanton conduct (basically for exemplary damages) should be dismissed as inconsistent with Colorado law which precludes seeking exemplary damages in an original complaint. See Dkt. #61 at 17-18.
2. That Plaintiffs' claim for negligence against Frontier for allegedly causing the sexual assaults should be dismissed for failing to sufficiently allege foreseeability of criminal conduct by third parties under Colorado state law. See Dkt. #61 at 1828.
3. That Plaintiffs' claim for negligent infliction of emotional distress because of postassault emotion injury be permitted to proceed. See Dkt. #61 at 28-30.
4. That Plaintiffs' claim for intentional infliction of emotional distress (a.k.a. “outrageous conduct”) be dismissed for failure to include allegations of Frontier's conduct that are “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community, ” which is required for an outrageous conduct claim under Colorado law. See Dkt. #61 at 31-33.
5. That Plaintiffs' claims for injunctive relief should be dismissed for failure to allege sufficient imminence and certainty of the threat of future harm. Dkt. #61 at 33-38. I also recommended that Plaintiffs' claims for injunctive relief be dismissed because any such injunctive claim (essentially a request for the Court to impose regulatory requirements on an airline) are preempted by the Airline Deregulation Act of 1978, as amended (“ADA”). See Dkt. #61 at 39-46.
6. That Plaintiffs' claim for negligent infliction of emotional distress is not preempted by federal law. See Dkt. #61 at 46-51.
7. That Plaintiffs' Class Action allegations should be stricken from the complaint because Plaintiffs will be unable to establish facts that would make class treatment appropriate. Millions of class members were not harmed and are entitled to no damages, making it a certainty that Plaintiffs could not meet the predominance requirement for a class action. Dkt. #61 at 52-62.
Plaintiffs' proposed amended complaint tries to remedy some of the issues by adding a few limited additional factual allegations.
IV. Standard for a motion for leave to amend
Rule 15(a)(2) directs a trial court to “freely give leave [to amend a complaint] when justice so requires.” It is a rule intended “to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Hardin v. Mintowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982)).
The grant or denial of an opportunity to amend is within the discretion of the trial court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1970). Notwithstanding the liberal intent of the Rule, if there is “any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.-the leave sought” need not be granted. Minter, 451 F.3d at 1204 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)(emphasis added). A proposed amendment is futile “if the complaint, as amended, would be subject to dismissal.” Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1288 (10th Cir. 2008) (quoting Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007)).
Here, I do not find that Plaintiffs have acted with any bad faith, or unduly delayed in seeking amendment. The proposed amendment was filed promptly along with the objections to my recommendation to address identified problems in the claims as originally pled. The real question is whether the proposed amended complaint would be subject to dismissal for the same reasons articulated in my original recommendation. Put another way, the question is whether the additional information and allegations included in the proposed amended complaint are sufficient to overcome the flaws in the claims recommended for dismissal in as identified in Dkt. #61. This requires an identification of Plaintiffs' new factual allegations to determine whether Plaintiffs have alleged enough in the proposed amended complaint to overcome the legal hurdles identified in the recommendation.
V. Plaintiffs' new factual allegations
Plaintiffs add new details regarding the assaults themselves. It is alleged that Plaintiff Ramsey was assaulted on an over-night, hours-long flight from Denver to Providence. Amended Complaint ¶15. Plaintiff Ramsey was seated in a window seat and her assailant was seated behind her. It is alleged that the assailant reached forward between the seats and grabbed her breast. Id. at ¶¶16-17. Similarly, Plaintiff Doe is now alleged to have flown on an overnight, hours-long flight from Denver to Florida. Plaintiff Doe was sitting in the middle seat while her assailant was seated next to her on the aisle. Id. at ¶¶25-26. No information is added about the specific nature of the assault on Plaintiff Doe. Plaintiffs add no new allegations regarding specifically what was said between the respective plaintiffs and the flight attendants with whom they interacted.
Plaintiffs add a new allegation that Frontier's lack of policies or failure to enforce policies to protect passengers from the harm of sexual assault causes emotional distress to passengers traveling on Frontier flights, “including but not limited to those who have previously suffered in-flight sexual assault and know they continue to be at risk of being victimized.” Id. at ¶53.
With respect to injunctive relief and irreparable injury, Plaintiffs have deleted language referring to the existence of an adverse interest and present existing controversy, and replaced it with language specifically asserting that they have “suffered irreparable harm as a result of Frontier's breach of its duty, for which there is no adequate remedy at law.” Id. at ¶95.
It is alleged that Plaintiffs and Class Members, as victims of sexual assault, have suffered an “indelible wound that causes trauma, emotional distress, anguish, grief, and other psychological suffering.” Id. at ¶96. Plaintiffs allege that they and Class Members “expect that they will have to travel on Frontier flights again in the future, and will be subject to the same risk of harm.” Id. at ¶97.
Plaintiffs have added an allegation that they and Class members will suffer emotional harms from the mere knowledge “that so long as Frontier continues to breach its duty to passengers, others are put at risk of the same injury.” Id. at 98.
Plaintiffs provide more detail with regard to the purpose of the requested injunctive relief: “an Order that will ensure that Frontier protects future passengers, including Plaintiffs, from future harms like those they have already suffered as a result of in0flight sexual assault and Frontier's failure to protect against in-flight sexual assault.” Id. at ¶99.
Plaintiffs make reference to Frontier's “recently-enacted sexual assault policy” without explaining any of the details of that policy or how it might be deficient. Instead, in their request for injunctive relief, they assert that if the new policy “aligns with best practices, as determined in consultation with experts, such [injunctive relief order] may simply call for the enforcement of that policy.” Id. at ¶100. But, if “the newly-enacted policy is inadequate or does not align with best practices, or if the Court deems additional relief appropriate, ” the injunctive relief order could, “but need not necessarily include” the categories of relief requested in the original Complaint, including more frequent cabin walk-throughs, passenger cabin monitoring via closed-circuit TV, uniform training and education for staff, humane and trauma-informed treatment of alleged victims, and/or a lifetime ban on passengers who commit sexual assault on Frontier flights. See Id. at ¶101(a)-(h).
The question is whether these relatively modest changes/additions to Plaintiffs' original complaint are enough to overcome the problems identified in my original Recommendation, Dkt. #61, which I incorporate by reference here. I conclude they are not.
VI. Analysis
For the most part, the changes and additions found in the proposed amended complaint are minor and do not meaningfully parry the thrusts of the reasoning in various sections of my recommendation. Therefore, I conclude that the accepting the proposed amended complaint would be an exercise in futility.
A. Claim for Willful and Wanton Conduct
In the proposed amended complaint, Plaintiffs have made no changes to the factual allegations supporting their claim for willful and wanton conduct, and therefore the basis for dismissal previously articulated in the recommendation stands unchallenged. The willful and wanton conduct claim in the proposed amended complaint would also be subject to dismissal. See Dkt. #61 at 17-18.
B. Claim for Negligence in Causing Sexual Assaults
With respect to the claims of negligence in causing the sexual assaults, my recommendation to dismiss was based on my interpretation of Colorado law on foreseeability, and a similar case out of the District of Oregon, interpreting Texas law. See Dkt. #61 at 20-21 (citing R.M. v. Am. Airlines, 338 F.Supp.3d 1203 (D. Or. 2018)). In addressing the issue of foreseeability, the Recommendation states,
Plaintiffs make no specific allegations that Frontier had any advance knowledge about the specific passengers who are alleged to have assaulted Plaintiffs. No odd or threatening pre-assault behavior by either of the assailants is noted or described in the Complaint. In fact, the Complaint contains no details of the assaults at all, nor any description of the flights, the assailants, or the circumstances of the incidents. There is no allegation that Plaintiffs' specific flights were somehow known to be prone to sexual assaults. And, as noted in Footnote 5 above, other than general statements about increased reports of in-
flight sexual assaults, Plaintiffs make no allegations about the likelihood or probability of a sexual assault occurring on an airline....The Complaint does not say whether these were night flights, whether Plaintiffs were seated near windows, or provide any description of where the assailants were seated or how they behaved either before or after the alleged assault.Dkt. #61 at 18-19. The proposed amended complaint does provide limited additional detail about the alleged assaults, including that they were long-distance night flights, that one assailant was seated behind the victim and one was seated next to the other victim. See Dkt. #65-1 at ¶¶15-17, 25-26. And it is true that these allegations are consistent with the FBI's published warning that “The attacks generally occur on long-haul flights when the cabin is dark. The victims are usually in middle or window seats, sleeping and covered with a blanket or jacket.” See Dkt. #65-1 at ¶37.
The question remains whether this still sparse information about the circumstances of the assaults is sufficient to overcome the recommendation's conclusion that the assaults were not foreseeable as a matter of Colorado negligence law so as to hold Frontier liable for the criminal conduct of third parties. There is still no indication that either of the two assailants were acting suspiciously before the assaults. There is no allegation that these particular flights were more prone to sexual assaults than other flights and no allegation that Frontier flights generally are more likely to have sexual assaults as compared to other airlines. There are no allegations about the probability of sexual assaults occurring on an airline generally or Frontier specifically, or what percentage of the millions of Frontier passengers have been sexually assaulted.
Plaintiffs reply brief in support of the motion to amend (Dkt. #71) asserts that the proposed amended complaint includes additional information about “other sexual assault complaints received by Frontier” and the existence of “a new sexual assault policy implemented by Frontier in 2019.” See Dkt. #71 at 2. But a careful review of the proposed amended complaint (Dkt. #65-1) did not reveal any allegation about additional sexual assault complaints by Frontier passengers and does not include any description of Frontier's newly-adopted sexual assault policy.
While the proposed amended complaint does provide a little more information about the circumstances of these assaults, for the reasons outlined in my recommendation, that information is not enough to make this third party criminal conduct foreseeable for the purposes of holding Frontier responsible. See R.M. v. Am. Airlines, supra; Dkt. #. 61 at 18-28. Accepting a contrary view would effectively turn Frontier (and indeed any airline) into an insurer for any sexual assaults that might occur on board. Id. at 20. Therefore, I do not find that the additional allegations are enough as a matter of law to make these assaults foreseeable and the amendment is futile because the claim for negligence in causing the sexual assaults should be dismissed in any event.
C. Claim for Negligent Infliction of Emotional Distress (post-assault conduct)
The recommendation did not recommend dismissing the claim for negligent infliction of emotional distress and little need be said regarding that claim here regarding the two named plaintiffs.
Plaintiffs insist however that the proposed amended complaint addresses the objections found in the recommendation to addressing this claim on a class-wide basis. In their reply, Plaintiffs assert that Frontier has produced 10 additional formal complaints of in-flight passenger-on-passenger sexual assault, and that it is well-known that sexual assaults are “drastically underreported” and therefore the true number of victims is likely much larger. In their reply (but notably not in their proposed amended complaint), Plaintiffs estimate the “true number assaulted on Frontier flights is probably more like 42-240, if not more.” Dkt. #71 at 6. Plaintiffs declare that their “amended complaint will plausibly allege that the number of formal reports to Frontier represents just a fraction of the true number of victims sexually assaulted and institutionally betrayed on Frontier flights.” Id. at 6. But the proposed amended Complaint, as submitted, does not include any such allegations. But even if the proposed amended complaint were to include plausible allegations that, due to underreporting, 40-240 Frontier passengers over the past three years have experienced offensive sexual groping or touching on Frontier flights, the number still pales in comparison to the tens of millions of Frontier passengers who flew during that time. See Dkt. #61 at n. 4 (explaining that even if the number of sexual assaults reported to the FBI is underreported by a factor of ten, the number still represents a minuscule fraction of the total number of air passengers and reflecting a very small probability of a sexual assault).
In addition, Plaintiff's suggestion is that entire class (which, as proposed, includes millions and millions of Frontier passengers) has experienced the “same injury, ” which is the alleged risk of assault and “institutional betrayal.” Dkt. #71 at 6. The proposed amended complaint also asserts that Frontier's failure to enforce its policies to protect passengers from the harm of sexual assault “causes emotional distress to passengers traveling on Frontier flights, including but not limited to those who have previously suffered in-flight sexual assault and know they continue to be at risk of being victimized.” Dkt. #65-1 at ¶53. In Plaintiffs' view, the fact that millions and millions of passengers -- putative Class members -- have flown Frontier without incident, damage, harm, or even knowledge about Frontier's alleged lack of a sexual assault policy, is irrelevant because they have all been exposed to the “same injury” and the question of individualized damages for negligent infliction of emotional distress “can be addressed at a later stage.” Dkt. #71 at 6.
This cannot be the law. It may well be that, as Plaintiffs argue and as the Ninth Circuit has held, in certain cases, the “fortuitous non-injury to a subset of class members does not necessarily defeat class certification of the entire class.” See Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1137 (9th Cir. 2016). But that was a case involving “informational injury” with farm workers who, because of an employer's nondisclosure, were deprived of the opportunity to pursue work at $12 per hour. The Ninth Circuit itself recognized that whether a number of non-injured plaintiffs could defeat class certification is a question of degree. While the presence of certain “non-injured” individuals within a plaintiff class does not necessarily defeat predominance, “the existence of large numbers of class members who were never exposed to the challenged conduct to begin with” would be a flaw that may defeat predominance. Id. at 1136. See, Mazza v. American Honda Motor Co., Inc., 666 F.3d 581, 596 (9th Cir. 2012) (holding that a class of all purchasers of a particular model car was overbroad and vacating a class certification decision, where the claim was based on exposure of the consumers to advertising misinformation and only a small segment of an expansive class of car buyers had seen the ads, defeating predominance).
Plaintiffs insist that the millions of non-assaulted passengers do not matter because they were all supposedly exposed to the same dangerous condition-exposure to Frontier's alleged inadequate sexual assault policy. But the inadequate sexual assault policy was not the direct cause of the injury here. The direct cause of the injury here was the criminal assaults by third party passengers. As Frontier points out, accepting Plaintiffs' class action reasoning in the airline context would mean that millions of Frontier passengers could be included in other class actions, “for not being struck by luggage falling from overhead bins, for not tripping and not falling during boarding, and for not being the subject of discrimination, all because these passengers flew on Frontier when Frontier had, or did not have, policies regarding stowing overhead baggage, boarding procedures, and anti-discrimination.” Dkt. #69 at 11. To state the argument is to recognize its absurdity.
Here, I have recommended that, as a matter of law, Frontier cannot be held liable for the assaults themselves, for lack of foreseeability. The negligent infliction of emotional distress claim (and the right to any damages associated with that claim) is limited to those passengers who actually have been sexually assaulted and then mistreated in the aftermath by Frontier. The surviving individual claim for negligent infliction of emotional distress is therefore dependent on a plaintiff who has actually been sexually assaulted, sought assistance from Frontier personnel and then been ignored. Nothing in the proposed amended complaint changes my view that the claim for negligent infliction of emotional distress is a fundamentally (and predominantly) an individualized inquiry about what happened to each passenger (whether she was assaulted), how they interacted with the flight crew after the assault, the actions taken by each flight crew, and the scope of the individual passenger's emotional injury. Thus, I conclude that the amended negligent infliction of emotional distress claims on behalf of the class would be dismissed (or the class allegations stricken), and amendment to extend the negligent infliction of emotional distress to the entire class of passengers (whether assaulted or not) would be futile.
D. Claim for Intentional Infliction of Emotion Distress
There are no new allegations in the proposed amended complaint that would address the intentional infliction of emotional distress claim, which I had recommended be dismissed for lack of allegations that would constitute outrageous conduct under Colorado law. Thus, with respect to this claim too, the proposed amended complaint would remain subject to dismissal.
E. Claims for Injunctive Relief and Federal Preemption
The Recommendation explained why the claims for injunctive relief are preempted by federal law. Nothing about the proposed amended complaint adds or modifies the allegations to the point where pre-emption can be avoided. The suggestion is that if Frontier's “recently-enacted sexual assault policy aligns with best practices, as determined in consultation with experts, ” the Court's injunctive relief order could “simply call for enforcement of that policy.” Dkt. #65-1 ¶100. Plaintiffs suggested in oral argument that rather than imposing requirements on Frontier in violation of federal preemption principles, court enforcement of a voluntarily-adopted policy would be more akin to enforcement of a contract, which would be permitted under the ADA. I reject this argument. The voluntary adoption of a sexual assault policy is not the same as a contract and I find no authority that would justify the imposition of a safety-based court injunction on an airline in the context of a private personal injury lawsuit. Absent statutory authority, courts are not in the business of enacting federal aviation regulations, which is what the injunctive relief called for in the proposed amended complaint (indeed, any injunctive relief imposing policies or procedures on an airline) would be. The claims for injunctive relief in the proposed amended complaint would be subject to dismissal for that reason and thus amendment would be futile.
F. (In)validity of Class Allegations
I have addressed above in part the issue of the class claims for negligent infliction of emotional distress. I find that the changes in the proposed amended do not change the conclusion in the recommendation that the class allegations should be stricken. Plaintiffs say that they can change the class definition if necessary at the class certification stage. But they have made no effort in the proposed amended complaint to modify the definition. As defined, the class includes essentially all Frontier passengers for a period of years, the vast majority of whom were not subject to sexual assaults and are not entitled to any monetary damages, and none of whom (because of federal preemption) are entitled to injunctive relief. Individual issues will predominate over any class-wide issues and I do not believe Plaintiffs could prove any set of facts that would justify class treatment in this case. Amendment to salvage the class allegations would be futile.
G. CONCLUSION
For the reasons described above and as outlined in my original recommendation, I recommend that Plaintiffs Motion to Amend should be denied on the basis of futility.
NOTICE:
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colorado Dep't of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).