1 13-3427-cv Abdelgadir Aboeid, et al. v. Saudi Arabian Airlines Corp. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LO CAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Co urthouse, 40 Foley Square, in the City of New York, on the 15 th day of May, two thousand fourteen.

P RESENT : J OHN M. W ALKER , J R ., P ETER W. H ALL , Circuit Judges , J. G ARVAN M URTHA ,  District Judge.

____________________________________________________ A BDELGADIR A BOIED , on behalf of his seven minor children, M ONA A BDELGADIR , Plaintiffs-Appellants , v. 13-3427-cv

S AUDI A RABIAN A IRLINES C ORPORATION , Defendant-Appellee

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____________________________________________________ FOR APPELLANTS: T HATCHER A. S TONE , E SQ ., Keswick, VA.

FOR APPELLEE: S TEPHEN J. F EARON , E SQ ., New York, NY.

 The Honorable J. Garvan Murtha, of the United States District Court for the District of Vermont sitting by designation.2 Appeal from a judgment of the United States District Court for the Eastern District of New York (William F. Kuntz, II, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiffs-Appellants Abdelgadir Aboeid and his wife, Mona Abdelgadir, on behalf of themselves and their seven minor children (coll ectively “Appellants” or “the Aboeid family”) appeal the judgment of the di strict court, entered on Augus t 26, 2013, finding no liability on the part of Defendant-Appellee Saudi Arabian Airlines Corporation (“Appellee” or “SAA”) as to their claims for breach of contract, breach of th e implied covenant of good faith and fair dealing, and violations of their civil rights under 42 U. S.C. § 1981 as well as New York Executive Law § 296. We assume the parties’ fa miliarity with the underlying fact s, the procedural history, and the issues presented for review. For the reason s that follow, we affirm the district court’s thorough and well-reasoned decision. “Following a civil bench trial, we review a dist rict court’s findings of fact for clear error,

and its conclusions of law de novo ; resolutions of mixed questions of fact and law are reviewed de novo to the extent that the alleged error is based on the misundersta nding of a legal standard,

and for clear error to the extent that the alle ged error is based on a factual determination.” Diebold Found., Inc. v. Commissioner , 736 F.3d 172, 182 (2d Cir. 2013)

. First, with respect to Appellants’ race discri mination claim, the district court accurately determined that the Aboeid family failed to show “ both that [the airline’s non-discriminatory] reason was false, and that discrimination was the real reason” for its actions toward Appellants during the check-in process for their outbound flight from John F. Kennedy International Airport. St Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 515 (1993).3 Second, a review of the record indicates that the district court correctly concluded that Appellants were under the obligation to arrive “early enough to complete departure procedures.” It was also established at trial that passengers who purchase their plane tickets electronically, as the Aboeid family did, are advised at the time of purchase that SAA flight check-ins close one hour prior to departure. Although Appellants argue that they never had actual knowledge of this term and condition, the district court did not clea rly err when it found that “[b]ecause Plaintiffs purchased their ticket s electronically, they were awar e of Saudi Airline’s check-in requirements.” Aboeid v. Saudi Arabian Airlines Corp. , 959 F. Supp. 2d 300, 307 (E.D.N.Y. 2013). Under the circumstances pr esented, the Appellants were presumed at least to have constructive knowledge of the require ments applicable to their arriva l and check-in at the airport. Cf. Consol. Edison Co. of N.Y. v. United States , 221 F.3d 364, 371 (2d Cir. 2000) (“In general, individuals are charged with know ledge of the contents of docum ents they sign—that is, they have ‘constructive knowledge’ of those contents.”). Because the Aboeid family arrived at the SAA check-in counter in King Abdulaziz International Airport in Jeddah sometime after 1:20 a.m., less than an hour prior to departure, Appellants failed to show by a preponderance of the evidence that they performed thei r obligation under the contract. See Diesel Props S.r.l. v. Greystone Bus. Credit II LLC , 631 F.3d 42, 52 (2d Cir. 2011) (discu ssing a plaintiff’s burden of proof for a breach of contract claim). Based on these findings and SAA’s no-show polic y, the district court also correctly held that Appellants were not entitle d to “Denied Boarding Compensati on” because they “ultimately bore responsibility for timely checking in.” Aboeid , 959 F. Supp. 2d at 307 n.3. Additionally, we note that Appellants’ contenti on that the district court relied on the Delta Air Lines contract

in Giuffre v. Delta Air Lines, Inc. , No. 10-cv-1462, 2012 WL 3988981, at *5 (E.D.N.Y. Sept. 11, 2012) is completely misguided. It is appa rent that the district court merely applied the4 holding in Giuffre to the facts involved here and did not consider th e contract at issue in Giuffre

to be evidence in this case. Finally, we have held that in some circumst ances, evidentiary issu es “may be preserved by a motion in limine when the issue is one that (1) is fairly presented to the trial court, (2) may finally be decided before trial, and (3) is the subject of a defi nite ruling by the trial judge.” Rosenfeld v. Basquiat , 78 F.3d 84, 90 (2d Cir. 1996). Appella nts raised objections to SAA’s expert testimony in a motion in limine and as part of the Joint Pre-Trial Order submitted by the parties. The district court, however, did not issue a formal ruling concerning these motions. Moreover, while Appellants’ counsel claims that these objections were renewed at trial, he states in a footnote that they “can’t be found in the record.” Appe llants Reply Br. at 26 n.13. We agree, as we cannot find them ourselves. Appe llants further contend th at the district court ignored their expert’s re port. Nevertheless, al though the district court declined to consider Appellants’ expert report at the summary judg ment stage, nothing precluded Appellants from seeking to enter the report into evidence at tria l. In fact, Appellants’ expert was listed as a

witness on the Joint Pre-Trial Order but was neve r called to testify. Moreover, at no time during the bench trial did Appellants request the Daubert hearing they now claim to have been entitled to. Accordingly, Appellants failed to preserve these issues for appeal. We have considered all of Appellants’ other contentions on a ppeal, including the supplemental arguments accompanying the documents filed on April 29, 2014, and find them to

be without merit. 1

1 In footnotes 8 and 16 of their Brief, Appellants oste nsibly raise a number of challenges to the district court’s procedural rulings and conduct during the bench trial. It is uncl ear what Appellants would have us do with respect to these items, and Appellee has not responded to them. Because it is well-established that arguments uniquely presented to us in footno tes are not entitled to consideration on appeal, s ee, e.g. , Concourse Rehabilitation & Nursing Ctr. Inc. v. DeBuono , 179 F.3d 38, 47 (2d Cir. 1999) ; United States v. Mapp , 170 F.3d 328, 333 n.8 (2d Cir. 1999) ; United States v. Restrepo , 986 F.2d 1462, 1463 (2d Cir. 1993) , we decline to address them.5 The judgment of the district court is hereby AFFIRMED

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FOR THE COURT: Catherine O’Hagan Wolfe, Clerk