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November 7, 1994



The opinion of the court was delivered by: SONIA SOTOMAYOR


 In this diversity action, defendant United Air Lines, Inc. ("United") moves for summary judgment, pursuant to Fed. R. Civ. P. 56(b), to dismiss plaintiff Sarah Shepard Rombom's state tort claims as preempted by the Federal Aviation Act, 49 U.S.C. §§ 1301-1557 (1976 and 1994 Supp.). For the reasons discussed below, defendant's motion is granted in part, and denied in part.


 On August 3, 1992, plaintiff, Sarah Shepard Rombom ("Rombom"), boarded a United flight in Chicago destined for New York. Rombom and her travelling companion Lani Adelman ("Adelman"), however, were removed from the plane before it departed and arrested by the Chicago Police Department.

 Both sides agree on the following facts. Plaintiff claims that after she and Adelman boarded the flight, they engaged in conversation with three men seated in the row behind them. The group became friendly, photographs were taken, and one of the men massaged Adelman's hand between the seats. Affidavit of Sarah Shepard Rombom ("Rombom Aff."), sworn to December 23, 1993, at P 3; Affidavit of Lani Adelman ("Adelman Aff."), sworn to December 22, 1993, at P 4. As the aircraft left the gate, a flight attendant had to stop reading the flight safety instructions to ask Rombom, Adelman, and the three men to be quiet. Rombom Aff. at P 3; Plaintiff's Memorandum of Law in Opposition to the Motion of Defendant United Airlines, Inc. for Summary Judgment ("Plaintiff's Opposition Memorandum") at 3.

 The parties disagree about what then ensued. United claims that the group refused to comply with the flight attendant's requests to be quiet, and continued to act in a rambunctious manner during and after the safety instructions. The flight attendant sought assistance from the head flight attendant, defendant Joyce Cunningham, who notified the pilot, defendant K.S. Burbech of the situation. Burbech instructed Cunningham to tell the offending passengers that they would be removed from the aircraft if they failed to behave properly. Cunningham relayed this message to Rombom and her associates, who allegedly reacted to this ultimatum by becoming even more ill-mannered. Affidavit of Joyce Cunningham ("Cunningham Aff."), sworn to October 15, 1993, at PP 6-7.

 Cunningham reported this response to Burbech, who decided to return to the gate. Id. At the gate, members of the crew requested that the five offending passengers disembark. The group refused, and asserted that they would deplane only if escorted off by the police. Id. The police were then summoned to escort the passengers off the plane. Id. At this point, the three men deplaned quietly and were not arrested. Rombom and Adelman, however, had a sharp exchange with the police officers, who arrested the women for disorderly conduct. Id.

 Plaintiff describes quite a different scenario. She rejects United's characterization of her conduct as disruptive and a safety problem. To the contrary, Rombom alleges that it was Cunningham who acted inappropriately and unprofessional, in a rude and aggressive manner toward her and Adelman.

 Rombom acknowledges that she and her friends were talking when the flight attendant began giving the flight safety instructions. Nevertheless, Rombom claims that she and her friends became quiet when the flight attendant stopped the safety demonstration and asked the group to settle down. Affidavit of Jacques Augustin ("Augustin Aff."), sworn to December 29, 1993, at P 6. After the flight safety instructions, the group resumed its conversation. Id. at PP 6-7. Cunningham then approached the group and repeatedly threatened to turn the plane around if they did not behave. One of the men replied that the group was doing nothing wrong, and challenged Cunningham to take whatever course of action she felt was appropriate. Rombom Aff. at P 3. When Rombom asked what the problem was, Cunningham told her to mind her own business unless she wanted to be thrown off the plane. Augustin Aff. at P 9.

 Subsequently, the pilot announced that he was turning back to the gate. Members of the flight crew threatened to remove anybody who spoke out loud. Id. at PP 10-11. At the gate, plainclothes security officers approached the group, and instructed them to collect their belongings and deplane. Id. at P 11. As Rombom voluntarily exited the plane onto the gateway, a member of the crew said "put these two girls under arrest." Rombom Aff. at P 5. Rombom denies that she was rude to the police. Id. The police handcuffed Rombom, and charged her with disorderly conduct. Id. at P 8. As Rombom was placed in a police car, she saw "every passenger" staring at her. Id. at P 8.

 Rombom and Adelman were taken to a holding cell at the airport. They were later transported to another jail in downtown Chicago, where they were placed with "hard core criminals." Id. at PP 9-12. Rombom was scared that she would be raped because the words "Lesbian love" were written all over the walls of her cell. Id. at P 12. Rombom and Adelman were released on bail later that evening. The charge against Rombom and Adelman was subsequently withdrawn *fn1" Id. at P 15.

 Rombom sued United, the pilot and the head flight attendant in the Supreme Court of the State of New York, New York County, claiming that as a result of the defendants' actions she suffered "great mental and physical distress, of a temporary and permanent nature, was humiliated, made sick and injured her character and reputation and otherwise suffered grievous harm." Complaint at P 26. Rombom demanded five million dollars in compensatory damages, and punitive and exemplary damages in the amount of three million dollars.

 United removed the case to this Court pursuant to 28 U.S.C. §§ 1332 and 1441, and now moves for summary judgment as a matter of law, alleging that Rombom's state tort claims are explicitly preempted by § 1305(a) of the Federal Aviation Act of 1958, Pub. L. No. 85-726, 72 Stat. 731, amended by the Airline Deregulation Act, Pub. L. No. 95-504, 92 Stat. 1705 (1978), and the Civil Aeronautics Board Sunset Act of 1984, Pub. L. No. 98-443, 98 Stat. 1703, codified at 49 U.S.C. §§ 1301-1557. Alternatively, United maintains that §§ 1374 and 1511 of the Airline Deregulation Act and 14 C.F.R. §§ 121.533 and 121.571 of the Federal Aviation Regulations implicitly preempt Rombom's claims because the actions taken by the flight crew were mandated by these statutes and regulations. Rombom opposes the summary judgment motion, arguing that the conduct of which she complains does not fall within the purview of the Federal Aviation Act or the Airline Deregulation Act, and thus is not subject to preemption. Rombom also maintains that there are material issues of fact which defeat the summary judgment motion.


 I. Rule 56: Summary Judgment

 Rule 56(c), F.R. Civ. P., provides that summary judgment is appropriate if:

the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

 The burden is on the moving party to show that no genuine issue of material fact exists. Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994) (citation omitted). In determining whether a genuine issue of material facts exists, all ambiguities must be resolved and all inferences drawn in favor of the non-moving party. McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (other citations omitted)).

 The moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case. Gallo, 22 F.3d at 1223-24 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); DiCola v. SwissRe Holding (N.A.) Inc., 996 F.2d 30, 32 (2d Cir. 1993)). Establishing the "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]" Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (emphasis in original)). Rather, to defeat a summary judgment motion, the responding party must show the existence of a disputed material fact in light of the substantive law. Anderson, 477 U.S. at 248. Preemption is a question of law that may be resolved "on the basis of the summary judgment evidence available." Trans World Airlines, Inc. v. Morales, 949 F.2d 141, 145 (5th Cir. 1991) (per curiam), aff'd in part, rev'd in part, U.S. , 112 S. Ct. 2031, 119 L. Ed. 2d 157 (1992).

 II. Preemption Generally

 The Supremacy Clause of the Constitution provides:

this Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

 Article VI, cl. 2. Any state law that conflicts with federal law is "without effect." Maryland v. Louisiana, 451 U.S. 725, 746, 68 L. Ed. 2d 576, 101 S. Ct. 2114 (1981) (citing McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 427, 4 L. Ed. 579 (1819) (other citations omitted)). To avoid "unintended encroachment on the authority of the States, however, a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption." CSX Transportation, Inc. v. Easterwood, 123 L. Ed. 2d 387, 113 S. Ct. 1732, 1737 (1993). The assumption that the historic police powers of the States are not to be preempted by a federal statute is overcome on a showing that such a result is the "clear and manifest purpose of Congress." Cipollone v. Liggett Group, Inc., U.S. , 120 L. Ed. 2d 407, 112 S. Ct. 2608, 2617 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L. Ed. 1447, 67 S. Ct. 1146 (1947)). The "ultimate touchstone" of preemption analysis is the purpose of Congress. Id. (quotation omitted).

 Preemption may be express, or implied from the structure and purpose of a statute. Gade v. National Solid Wastes Management Ass'n, U.S. , 120 L. Ed. 2d 73, 112 S. Ct. 2374, 2383 (1992) (quotation omitted). In the absence of express preemption, implied preemption may be found in two ways. The first type of implied preemption is field preemption, which occurs in cases where the scheme of federal regulation "is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it . . ." Id. (quotation omitted). The second form of implied preemption is conflict preemption. Conflict preemption arises where (1) "compliance with both federal and state regulations is a physical impossibility" or (2) the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of ...

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