17-589 Fawemimo v. American Airlines, Inc. 

## 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 LOCAL 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 (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 19 th day of September, two thousand eighteen. 3 4 PRESENT: 5 JON O. NEWMAN, 6 DENNIS JACOBS, 7 ROSEMARY S. POOLER, 8 Circuit Judges, 9

_____________________________________ 10 11 Janet Fawemimo, 12 13 Plaintiff-Appellant , 14 15 v. 17-589 16 17 American Airlines, Inc., 18 19 Defendant-Appellee. 20

_____________________________________ 21 22 FOR PLAINTIFF-APPELLANT: Janet Fawemimo, pro se, New York, NY. 23 24 FOR DEFENDANT-APPELLEE: Brian P. Morrissey, Michael J. Crowley, 25 Connell Foley LLP, New York, NY. 26 27

282 Appeal from a judgment of the United States District Court for the Southern District of 1 New York (Castel, J .). 2 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 4 DECREED that the judgment of the district court is AFFIRMED

. 5 6 Janet Fawemimo, pro se, appeals from the dist rict court’s grant of summary judgment in 7 her common law tort action against American Ai rlines, Inc. (“American”). Fawemimo alleged 8 that she hit her head on a televi sion monitor above her seat while boarding an American flight 9 and that her injuries were the result of an unsafe aircraft de sign. American moved for summary 10 judgment, arguing that Fawemimo’s suit was pr eempted by the Federal Aviation Act (“FAA”), 11 49 U.S.C. § 40101 et seq., as amended by the Airline Deregulation Act (“ADA”), 49 U.S.C. 12 § 41713(b), because the ADA expressly preempts state laws that relate to the price, route, or 13 service of an air carrier and b ecause Congress intended the FAA to occupy the field of air safety. 14 Fawemimo did not file an opposition (despite rece iving three extensions of time to do so), and 15 the district court granted summa ry judgment for American on the ground that Fawemimo’s 16 claims were expressly preempted by the ADA. 1 We review the grant of summary judgment de 17

novo. See Sotomayor v. City of New York , 713 F.3d 163, 164 (2d Cir. 2013). We assume the 18 parties’ familiarity with the underlying facts, th e procedural history, and the issues presented for 19 review. 20

1 After judgment was entered, Fawemimo filed a motion styled as an opposition to American’s motion for summary judgment . The district court construe d that filing as a motion for reconsideration and denied it. Despite having timely appealed the court’s original preemption ruling, Fawemimo did not appeal the denial of reconsideration. Accordingly, Fawemimo’s challenge to the preemption ruling is properly before th is Court, but the issues raised for the first time in Fawemimo’s motion for reconsideration are not. See Sorensen v. City of New York , 413 F.3d 292, 295–96 (2d Cir. 2005).3 The Supremacy Clause of the U.S. Constitution, U.S. Const. art. VI, cl. 2, “invalidates 1 state laws that interfere with, or are contrary to, federal law.” Air Transp. Ass’n of Am., Inc. v. 2
Cuomo , 520 F.3d 218, 220 (2d Cir. 2008) (quoting Hillsborough Cty. v. Automated Med. Labs., 3
Inc. , 471 U.S. 707, 712 (1985)). Preemption may be express when a federal statute “expressly 4 directs that state law be ouste d,” or implied when “Congress inte nded the Federal Government to 5 occupy a field extensively, or when state la w actually conflicts with federal law.” Id. (internal 6 quotation marks and citations omitted). 7 The ADA was enacted in 1978 after Congress determined that “maximum reliance on 8 competitive market forces would best further e fficiency, innovation, and low prices as well as 9 variety [and] quality . . . of air transportation.” Id. at 222 (internal quotation marks omitted) 10 (quoting Morales v. Trans World Airlines, Inc. , 504 U.S. 374, 378 (1992)). Preemption is 11
express: 12 Except as provided in this s ubsection, a State, political s ubdivision of a State, or 13 political authority of at leas t 2 States may not enact or enforce a law, regulation, or 14 other provision having the force and effect of law related to a price, route, or service 15 of an air carrier that may provide air transportation under this subpart. 16 17 49 U.S.C. § 41713(b)(1). 18
In Morales , the Supreme Court held that § 41713(b)(1) may apply to a “state enforcement 19 action[] having a connection . . . to [an] airline . . . service[]” so long as the connection is not 20 “too tenuous, remote, or peripheral.” 504 U.S. at 384, 390 (quoting Shaw v. Delta Air Lines, 21
Inc. , 463 U.S. 85, 100 n.21 (1983)). More recently, the Court clarifie d that § 41713(b)(1) 22 applies with equal force to su its brought under state common law, assuming the necessary nexus 23 to an airline service. See Northwest, Inc. v. Ginsberg , 572 U.S. 273, 284 (2014) (addressing 244 breach of implied covenant of good faith and fair d ealing in relation to frequent flyer program). 1 “What is important . . . is the effect of [the] st ate law, regulation, or pr ovision, not its form, and 2 the ADA’s deregulatory aim can be undermined just as surely by a state common-law rule as it 3 can be by a state stat ute or regulation.” Id. at 283. 4 Fawemimo’s particular common law claim indeed relates to an air line “service” as that 5 term is used in § 41713(b)(1). As we recognized in Air Transport Association of America , “[a] 6 majority of the circuits to have construed ‘ser vice’ have held that th e term . . . encompasses 7 matters such as boarding procedures, baggage ha ndling, and food and drink-matters incidental to 8 and distinct from the actual tr ansportation of passengers.” Air Transp. Ass’n, 520 F.3d at 223 9 (collecting cases). And we expressly held that the definition includes an airline’s provision of 10 “food, water, electricity, and restrooms.” Id. (holding that a state la w requiring airlines to 11 provide amenities during long flight delays was preempted). Fawemimo’s complaint challenges 12 the size and positioning of monitors used to provid e passengers with safety instructions and in13 flight entertainment, as well as the size, arrange ment, and spacing of aircraft seats. Like an 14 airline’s provision of food, water, or electricity, its provision of monitors and seats are matters 15 that Congress intended to regulat e through the FAA, but otherwise leave unregulated in order to 16 permit market forces to promote efficacy, variety, and quality. See id. at 222–24. Accordingly, 17 Fawemimo’s action is preempted under § 41713(b)(1). 18 Fawemimo’s reliance on Hodges v. Delta Airlines, Inc ., 44 F.3d 334 (5th Cir. 1995), is 19 unavailing. In Hodges , the Fifth Circuit held that § 41713(b)(1) does not preempt personal 20 injury tort actions because the FAA requires air car riers to obtain insuran ce for personal injuries 21 or property damage resulting from the opera tion or maintenance of an aircraft. See Hodges , 44 225 F.3d at 336, 338; see also 49 U.S.C. § 41112. However, the cour t resolved the tension between 1 the FAA’s insurance requirement and its preemp tion provision by distinguishing claims that 2 challenge airline policies--and are thus related to airline service --from those challenging distinct 3 negligent acts related to th e operation of an aircraft. Hodges , 44 F.3d at 339 (holding that a 4 challenge to an airline’s policy permitting carry-o n baggage relates to airline service, while a 5 claim based on a flight attendant’s failure to properly monitor compliance with overhead rack 6 regulations relates to the safe opera tion of an aircraft). Thus, under Hodges , § 41713(b)(1) 7 preempts claims that challenge airline policies an d could potentially create inconsistent standards 8 between states, while leaving room for personal injury actions that allege an airline was 9 negligent in carryi ng out its policy. See id. ; see also Air Transp. Ass’n , 520 F.3d at 225 10 (acknowledging that “the FAA does not preempt all state law tort actions”). Fawemimo’s 11 complaint argued that the design of the aircraft ’s monitors and seats was dangerous. These 12 claims pertain to an airline po licy, rather than the negligent in stallation or maintenance of her 13 specific monitor or seat, and they are therefore preempted under Hodges. 14 Moreover, Fawemimo’s claims are also barred by implied preemption. Congress 15 intended the FAA, as amended by the ADA, to occupy the field of air safety. Goodspeed 16 Airport LLC v. East Haddam Inl and Wetlands & Watercourses Comm’n , 634 F.3d 206, 210 (2d 17 Cir. 2011). State laws that conflict with the FAA or sufficiently interfere with federal regulation 18 of air safety are thus preempted. Id. at 210–211. American produced evidence that its 19 installation of monitors and s eats was approved by federal agencies. Because the complaint 20 challenges the overall design of the monitors an d seats, it depends on a common law rule for 21 monitors and seats that would c onflict with requireme nts established by the federal government. 226 This result would be contrary to the FAA’s goal of centralizing, in the federal government, the 1 regulation of air safety. See Air Transp. Ass’n ., 520 F.3d at 225 (applying implied preemption 2 to prevent state from enacting varying prohibitions on food and dr ink that would “unravel[] the 3 centralized federal framework for air travel”). Accordingly, Fawemimo’s claim is incompatible 4 with the federal government’s authority to regulate the field of air safety and is preempted. 5 To the extent that Fawemimo argues that American negligently failed to meet FAA 6 regulations and that her specific monitor and seat were non-complia nt with those regulations, the 7 claim is not properly before this Court because Fawemimo did not raise it in the district court 8 prior to entry of judgment. See Harrison v. Republic of Sudan , 838 F.3d 86, 96 (2d Cir. 2016). 9 While she raised this claim in an untimely oppos ition to summary judgment, which the district 10 court construed as a motion for r econsideration, she did not separate ly appeal from the denial of 11 reconsideration. See Sorensen , 413 F.3d at 295–96. 12 We have considered Fawemimo’s remaini ng arguments and find them to be without 13 merit. Accordingly, we AFFIRM the judgment of the District Court. 14
FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk of Court 16