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April 25, 1994


The opinion of the court was delivered by: EUGENE H. NICKERSON

 NICKERSON, District Judge:

 Plaintiffs, Ali Sedigh (Sedigh) and his wife Ezat Sedigh, brought this suit in New York State Supreme Court against defendant Delta Air Lines, a Delaware corporation, alleging unlawful imprisonment, assault, intentional infliction of emotional distress, slander, loss of comfort, and breach of contract. Plaintiffs seek over $ 4,000,000 in damages.

 On October 28, 1992 defendant removed the case to this court. Defendant claims that jurisdiction lies in this court pursuant to 28 U.S.C. § 1331, as the claims are governed by various treaties and laws of the United States. E.g. The Federal Aviation Act of 1958, as amended, 49 U.S.C. app. §§ 1301 et seq. The complaint is drawn under state law alone. Whether or not the removal based on a federal question was appropriate, the court has diversity jurisdiction pursuant to 28 U.S.C. § 1332.

 Defendant has moved for summary judgment. At oral argument the court determined that pro bono counsel should be appointed for plaintiffs, whose attorney had withdrawn from the action in February 1993. On March 1, 1994, over six months after oral argument and after several unsuccessful attempts to assign counsel, the court ordered that no further counsel should be assigned to plaintiffs.


 The complaint alleges, in pertinent part, the following.

 On March 25, 1992 Sedigh was a passenger on a Delta Air Lines flight from Germany to the United States. The flight made a stop-over at Frankfurt AM Main Airport. While at that airport, Sedigh made a comment to the effect, "So this is the country where so many Jews were killed." The flight captain then approached him, abused him verbally and physically, accused him of travelling with a false passport, and held him until the German Federal Police or Border Police arrived.

 At defendant's request the Police arrested Sedigh and charged him with crimes relating to the alteration of his United States Passport. He was held for three days in handcuffs, beaten by the German Police, and forced to pay a 3,000 Deutschmark fine for the alleged crime, which he claims he did not commit.


 Defendant's affidavits, exhibits, and unopposed statement of material facts pursuant to Local Rule 3(g) show the following.

 On March 24-25, 1992 Sedigh was travelling from the United States to Istanbul, Turkey. From John F. Kennedy International Airport he took Delta flight 106 to Frankfurt. There he was part of a group of connecting passengers who boarded Delta Flight 072. That flight was scheduled to leave for Istanbul at 12:05 p.m. but was delayed due to mechanical troubles with an air conditioning unit. He and the other connecting passengers boarded late, some time after 12:05.

 While the plane was on the ground Sedigh immediately attracted the attention of the flight attendants because he was agitated and acted nervously. He was seated in a non-smoking section but asked to move to a smoking section. After he moved one of the flight attendants saw him make two trips to the lavatory. On both occasions he stayed in for a long time but did not flush the toilet. During his second trip the smoke detector in the lavatory became activated.

 While Sedigh was in the lavatory the second time the "Flight Attendant in Charge," Eva Durczak, went to the cockpit to report his behavior to the captain. She recounted his trips to the lavatory and the fact that, although the airplane was cool, he was sweating profusely. The captain told her to have the flight attendants keep him under surveillance.

 When Sedigh left the lavatory one of the flight attendants informed him that smoking in the lavatory was forbidden. He became more upset. Flight attendants and several passengers heard him muttering, "kill all the Jews," and vowing he was "going to get them."

 Durczak reported Sedigh's increasing agitation and statements to the captain. The captain became concerned. He knew that on the plane were nine armed United States Federal Sky Marshals, assigned to flights deemed at greater risk of hijacking and sabotage. The captain asked the leader of that team of Marshals to come to the cockpit along with the Frankfurt Airport ground security coordinator, who was on the plane conducting a routine inspection. In the cockpit Durczak repeated her account to the Marshal and security coordinator.

 The captain requested the Sky Marshals to evaluate the situation for security risk. The security coordinator directed the German police to bring some vehicles over to the plane. Two Sky Marshals then watched as Sedigh made a third trip to the lavatory. They searched the other lavatory and then waited for him to come out. At this time several passengers complained to the Marshals and flight attendant Iwona Zacharewecz that Sedigh had been heard saying "kill the Jews" and "Jews are to blame for world problems" before boarding, and that he had shouted "kill everyone" while on the plane. Durczak twice more returned to the cockpit to update the captain on the situation.

 The captain again met with the leader of the Sky Marshals and the ground security coordinator. They reached a consensus that Sedigh posed a possible security risk. The captain recommended removing all of the passengers from the plane, ostensibly because of the continuing air conditioning malfunction, and then interviewing Sedigh in the airport terminal. The captain also said that law enforcement personnel should make any decision about him because the plane was still on the ground with its exterior doors open. The Sky Marshals' leader felt that he posed too great a risk ...

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