DICKINSON DEBEVOISE, Senior District Judge
In these recently consolidated cases Defendant Continental Airlines Inc. ("Continental") moves pursuant to 28 U.S.C. § 1292(b) for certification of an immediate appeal of this Court's order denying its motion to dismiss the Complaints.
Magistrate Judge Hedges issues an order consolidating the cases for pre-trial purposes on October 22, 2002.
In the case of Cureg and the ADC, the operative complaint is the Amended Complaint.
Continental also moves for a stay of discovery pending the requested appeal. Because the order involves controlling questions of law concerning which there are substantial grounds for difference of opinion, and because resolution of at least one of those questions may materially advance the ultimate termination of the litigation, Continental's motion will be granted.
BACKGROUND
A detailed account of the allegations in the two cases appears in the Court's prior opinion on Continental's motion to dismiss.See Dasrath v. Continental Airlines, Inc., ___ F. Supp. 2d ___, 2002 WL 31319716 (D.N.J. Oct 17, 2002). In one of the two cases Plaintiff Michael Dasrath asserts claims against 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 its flight 1218 to Tampa prior to its departure from Newark airport on December 31, 2001. In the other case 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.
In the opinion on the motion to dismiss, the Court concluded that 49 U.S.C. § 44902, which permits air carriers to refuse transport to passengers they decide might be "inimical to safety," does not shield air carriers from liability for arbitrary, racially motivated decisions to refuse carriage; and the Court determined that both the Complaints sufficiently alleged (for the purposes of a decision on a motion to dismiss) that Cureg and Dasrath's removal from their flight was an arbitrary, racially motivated act without a rational basis in safety considerations. The Court was not persuaded by Continental's argument that the Complaints should be dismissed because some of the facts alleged might have provided a legitimate basis for the Continental pilot's refusal to transport the Plaintiffs. Among the allegations that Continental emphasized (and that it emphasizes in its argument on this motion) is the assertion, in the Dasrath Complaint, that a white passenger informed the captain (designating three individuals including Cureg and Dasrath) that three "brown-skinned men" were "behaving suspiciously." Both Complaints allege that Plaintiffs were removed from the flight "solely in reliance on the unfounded, untrue, unexamined, and discriminatory assertions of another passenger." The Cureg Complaint does not quote the passenger's communication to the pilot. It notes only that, as Cureg was removed from the plane, Continental's flight supervisor advised him that the pilot had stated that a passenger was "uncomfortable" with his presence.
In connection with the motion to dismiss, the Court was also called upon to decide whether the claims for injunctive relief asserted by Cureg and the ADC were preempted by the Warsaw Convention. (Continental did not offer arguments based on the Convention against Dasrath's claims, implicitly recognizing that he was not an international traveler for the purposes of the Convention and therefore not covered by its provisions.) Relying in part on the plain language of the English translation of the Convention and in part on an examination of the purposes of the Convention, the Court concluded that the claims for injunctive relief were not preempted.
Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 3014 (1934), note following 49 U.S.C. § 40105. Unless otherwise indicated, subsequent citations to the Convention refer to Articles set forth in the note following 49 U.S.C. § 40105.
Continental now requests interlocutory appeal of both those two central issues (the application of § 44902 and Warsaw Convention preemption), framing them in the following terms:
1. Should the complaints be dismissed pursuant to
49 U.S.C. § 44902: (a) because they articulate a rational basis for the captain's decision to remove the plaintiffs (
i.e. another passenger's report of suspicious behavior by the individual plaintiffs); and (b) because the gravamen of plaintiffs' claims is that Continental discriminated against them because the captain unreasonably and/or negligently relied on the other passenger's report without investigating further?
2. Does the Warsaw Convention preempt claims for declaratory, equitable and/or injunctive relief?
DISCUSSION
Continental invokes 28 U.S.C. § 1292(b), which provides,
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals . . . may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order. . . .
I. Issue #1 — Dismissal Pursuant to 49 U.S.C. § 44902
As an initial matter, it must be observed that Continental's statement of Issue #1 represents at least in part a mistaken characterization of the Complaints, and of the issue with which the Court was actually presented on the motion to dismiss. As the opinion on the motion to dismiss made clear, the gravamen of Plaintiffs' claims is not (or at least not simply) that they were victims of discrimination because the captain of flight 1218 "unreasonably and/or negligently relied on the other passenger's report." Both Complaints allege that Plaintiffs' removal from the flight was prompted by racial bias; and they plead facts that provide at least a minimal foundation for the claims. It is the captain's alleged racial motivation, not merely his supposed negligence in reliance on a passenger report, that is the predicate for Plaintiffs' claims.
Because Issue #1 as proposed was not the issue decided by the Court on the motion to dismiss, it was not "involve[d]" in the order that Continental seeks to appeal within the meaning of § 1292, and cannot be the basis for certification. The more appropriate statement of the critical issue is as follows:
Should a claim that a plaintiff passenger was refused transport by an air carrier on the basis of race be dismissed pursuant to
49 U.S.C. § 44902 where the complaint alleges that the pilot who refused transport acted solely upon another passenger's report of suspicious behavior on the part of the plaintiff and other "brown-skinned men" aboard the plane?
This revised version of the proposed issue was before the Court, at least with respect to the Dasrath Complaint; and it does satisfy the statutory criteria for certification, justifying an immediate appeal.
The Court is not bound to accept Continental's phrasing. Because § 1292 refers to the appeal of orders, not to the certification of questions, Continental's phrasing of the issues is simply part of its argument for certification of the appeal. Moreover, § 1292 permits a court to certify an order for appeal sua sponte; and in such cases the court would obviously frame the critical issue on its own.
First, the issue is manifestly a controlling question of law with respect to the motion to dismiss Dasrath's suit. A decision of the question adverse to Plaintiffs would require dismissal of his Complaint.
Plaintiffs argue that Issue #1, though outcome determinative and therefore controlling, is not a question of law. They note that the Defendant does not dispute the general legal standard that the Court articulated under § 44902, and contend that Continental's quarrel with the Court's application of that standard to Plaintiffs' allegations is factual rather than legal in nature. As Plaintiffs observe, citing, for example,Link v. Mercedes-Benz, 550 F.2d 860, 863 (3d Cir. 1977), § 1292(b) is not designed for review of district court determinations of fact. It must be noted, however, that the cases that Plaintiffs cite do not involve decisions on motions to dismiss under 12(b)(6), which are in a sense by definition entirely matters of law.
Second, the issue is also one regarding which there are substantial grounds for difference of opinion. As the opinion on the motion to dismiss made clear, the standard applied to pilot decision making under § 44902 is extremely lenient. Accordingly, there is a substantial basis for the argument that, by alleging that the pilot acted "in reliance on" a report of suspicious behavior, Dasrath concedes that the removal decision was not arbitrary and that it was therefore within the protective scope of § 44902.
In this Court's view, set forth in its prior opinion, this allegation that the pilot knew of (even that he acted in reliance upon) the passenger's report is not fatal to the Complaint. As quoted the report itself contained language ("brown-skinned men") that could be interpreted to indicate racial bias on the part of the passenger — and by implication bias on the part of the pilot in his allegedly uncritical reliance upon the report. Because claims of discrimination are ultimately matters of motives rather than grounds, and because § 44902 authorizes actions based on decisions actually arising from safety concerns (not just actions that might have been grounded on safety), the mere existence of a legitimate basis for Dasrath's removal does not, in this Court's opinion, render his claims defective for the purposes of a motion to dismiss. Nevertheless, it must be conceded that substantial grounds exist for the opposing position.
Finally, the significance of the issue is such that an immediate appeal will advance the ultimate termination of the litigation. A decision unfavorable to Dasrath would require the immediate dismissal of all his claims on appeal; and with respect to the Cureg Complaint, resolution of the issue would also be decisive, even though it may not immediately require granting the motion to dismiss.
As already noted, the Cureg Complaint does not contain language specifically indicating that the captain was informed of suspicious behavior on the part of the Plaintiffs. Accordingly, a decision favorable to Continental respecting Issue #1 might not compel an immediate dismissal of the Cureg Complaint for failure to state a claim. However, such a decision would dramatically affect the standards governing any subsequent motion for summary judgment; and assuming that Cureg does not dispute the passenger's communication of some suspicion to the pilot, a decision on appeal that such communication brings the pilot's action within the scope of § 44902 would almost inevitably lead to the termination of Cureg's case.
Such an assumption appears sound in light of the arguments on this motion and on the motion to dismiss, in which both sides have cited the communication quoted in the Dasrath Complaint in discussions addressing both cases — without noting that it does not appear in Cureg's pleading.
It might theoretically be possible for the ADC to go forward even if Cureg's removal, as pleaded, is held not to be actionable: the ADC claims are based in part on alleged instances of discrimination other than the events involving Cureg. But the ADC claims would very probably have to be dismissed if they could not draw support from the allegations relating to flight 1218. The Cureg Complaint contains a brief allegation that an ADC member was subject to discriminatory treatment on another flight, and in addressing the motion to dismiss the Court concluded that this allegation represented a claim of injury to an ADC member sufficient to provide the organization with standing. But the ADC's general allegation of a practice of discrimination by Continental, the overarching allegation on which its claim for relief is ultimately based, draws much of its support from the allegations relating to Cureg's removal from flight 1218. If those allegations do not describe an instance of unlawful discrimination, then it is doubtful that the remaining allegations in the Complaint describe a practice of discrimination with sufficient particularity to state a claim for injunctive relief.
Like the Dasrath Complaint, it also contains a cumulative account of discrimination claims directed at numerous airlines including Continental.
Given the high probability that a decision favorable to Continental on Issue #1 would terminate both cases, an immediate appeal is warranted. As Continental observes, and as Plaintiffs confirmed at oral argument, discovery in these cases is not limited to the events of December 31, 2001. In connection with their claims for injunctive relief, Plaintiffs plan (appropriately) to take discovery relating to Continental's policies and practices. Given the scope of the allegations and the relief sought, it appears likely that that discovery will be extensive embracing numerous incidents and a wide array of procedures, exploring the airline's operations across the country and over an extended period of time.
Plaintiffs predict that their case is nevertheless likely to be resolved in this Court in less time than it would take the Court of Appeals to decide an immediate appeal. This prediction appears overly optimistic; and in any event, even if it were true that the cases could be decided on the merits (on summary judgment or at trial) in less than the time required for an appeal, such a resolution would speed the termination of the litigation only if Plaintiffs lost on the merits and did not find any issues of their own to appeal. Absent an immediate appeal, it is highly probable that the litigation will proceed through discovery and a merits decision followed by an appeal. Immediate resort to the Court of Appeals offers a chance of terminating the litigation completely in the time required for the appeal. Accordingly, it is clear that an immediate appeal of the Court's order denying the motion to dismiss may advance the ultimate termination of the litigation and is therefore warranted under § 1292(b).
II. Issue #2 — Warsaw Convention Preemption of Claims for Injunctive Relief
Issue #2 is a close question of law that controls the outcome of the Cureg case, and the utility of resolving it provides additional support for an immediate appeal.
In theory the ADC claims might elude preemption by the Warsaw Convention to the extent that they refer to incidents and request relief involving only domestic travelers. But, the discussion above with respect to Issue #1 indicates, it is unlikely that any portion of the Cureg Complaint states a cognizable claim if the specific allegations of Cureg's removal do not describe a violation of applicable law.
Issue #2 is a very evenly balanced question about which there is clearly a "substantial ground for difference of opinion." The French text of the key provisions of Article 24 does not provide a definitive answer to the question whether the Convention preempts claims for injunctive relief under local law; and although the holding of El Al Israel Airlines, Inc. v. Tseng, 525 U.S. 155 (1999), addresses only damages claims, some language in the Supreme Court's opinion, as Continental argues, is susceptible to an interpretation that supports preemption of claims for injunctive relief. On balance, especially given the Convention's clearly expressed and widely recognized emphasis on damages claims, the narrower interpretation of the Convention's preemptive scope (adopted in the opinion on the motion to dismiss) seems warranted. But there are reasonable arguments on both sides of the question.
Contrary to Continental's argument on the present motion, this Court did not, in its prior opinion, reject the authoritative French translation of Article 24 in favor of the English (which unambiguously refers to actions for damages). Rather, the Court considered the French "action en responsabilité" to be ambiguous and construed it by placing it in the context provided by the Convention as a whole — ultimately concluding that the English "action for damages" represented a translation of "action en responsabilité" that was faithful to the drafters' intent.
The Supreme Court concluded its opinion with the following summary of its holding: "we hold that the Warsaw Convention precludes a passenger from maintaining an action for personal injury damages under local law when her claim does not satisfy the conditions for liability under the Convention." Tseng, 525 U.S. at 176.
Issue #2 is also potentially determinative of the outcome of Cureg's case; and while the dismissal of the Cureg Complaint would not by itself advance the termination of the litigation as a whole as long as Dasrath's case remained open, such a dismissal would of course shorten the course of the combined cases if Dasrath's (but not Cureg's) Complaint were dismissed on grounds relating to § 44902. Consequently, the fact that an immediate appeal would permit the resolution of Issue #2 weighs in favor of such an appeal.
III. Stay of Discovery
Discovery will be stayed until further order of this Court. Should the Court of Appeals agree that an immediate appeal is appropriate, discovery will be stayed pending a decision on the appeal. Should the Court of Appeals choose not to hear the appeal, the stay of discovery will be lifted.
Although a stay of discovery is not mandated pending appeal under § 1292(b), here such a stay is appropriate. If the appeal results in the dismissal of all claims, any time and resources expended in discovery would of course be completely wasted. But even assuming that some or all of the claims will survive an appeal, a stay of discovery is warranted because the questions of law presented on appeal have substantial implications for the discovery process. The appeal invites the Court of Appeals to articulate standards of decision-making under § 44902 — standards effectively defining what Plaintiffs have to prove to prevail on their claims. The appeal also may very well result in the dismissal of either Complaint but not the other, or in a determination that the Warsaw Convention does preempt claims for injunctive relief under local law. Any of these decisions would have serious implications for the course of discovery; but absent a stay, the parties would have to conduct discovery without the guidance that the Court of Appeals may ultimately provide. The risk of wasting time and resources would be considerable. A stay is therefore warranted.
CONCLUSION
For the reasons stated above, Continental's motion under 28 U.S.C. § 1292(b), requesting certification for immediate appeal of this Court's order denying the motion to dismiss the Complaints, will be granted; and a stay of discovery will be ordered pending further order of this Court. An appropriate order will be entered.