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July 7, 1997


The opinion of the court was delivered by: KRAM


 In this personal injury action, defendant Continental Airlines, Inc. ("Continental") moves to dismiss the complaint of Patricia Peterson ("Peterson") pursuant to Federal Rule of Civil Procedure 12(h)(3), on the grounds that the Court lacks subject matter jurisdiction to hear Peterson's claims. For the reasons set forth below, Continental's motion is denied.


 This case arises out of an incident that occurred on May 20, 1996, while Peterson was on board Continental flight 770 from Houston, Texas to Panama City, Panama. Peterson, who was traveling with her twenty-eight year old niece and her four year old nephew, was to attend her uncle's funeral in Panama.

 Upon arrival at Houston from LaGuardia Airport in New York City, Peterson and her family proceeded to the check-in counter to obtain boarding passes for their flight to Panama City. Peterson claims that they were furnished with three boarding passes: Peterson was assigned seat 21D; her niece was assigned seat 30A; and her nephew was assigned to row 21, without a specific seat designation. Continental, on the other hand, claims that Peterson's nephew was assigned seat 20F. Prior to boarding, Continental announced that they had overbooked flight 770 and would appreciate volunteers willing to relinquish their seats in return for financial compensation and hotel accommodations. Peterson did not volunteer to relinquish her seats.

 After boarding the airplane, Peterson claims that she asked a flight attendant whether her nephew could sit next to her given his age and that he had not been assigned a specific seat within row 21. According to Peterson, the flight attendant gave permission for Peterson's nephew to sit next to her. In addition, Peterson claims that when her niece proceeded to seat 30A, it was occupied by another passenger. Accordingly, her niece returned to row 21 and sat down next to Peterson, so that Peterson and her family were occupying seats 21D, 21E and 21F. Peterson claims that at this time, she signaled a flight attendant in order to advise her that another passenger was occupying the seat assigned to her niece, seat 30A. Peterson alleges that in response, the flight attendant told her that her niece should remain seated next to Peterson given the crowded condition of the airplane.

 When the passengers holding the seat assignments for 21E and 21F arrived and found them occupied by Peterson and her family, a flight attendant was called to examine the passengers' boarding passes. *fn1" What occurred subsequently is the main point of contention between the parties. According to Peterson, she voluntarily produced her ticket and was told that another passenger had been assigned the same seat. A supervising flight attendant also examined the tickets, and purportedly asked Peterson to relinquish her seat and informed her that she would be flown out on a subsequent flight. After declining this request, Peterson claims that a second supervisor approached her, and without discussion or investigation informed Peterson that she had to leave the airplane and that she would be physically removed if she refused. Peterson asserts that despite her requests for information, she was never advised as to why she was being asked to leave. Eventually, the police, who were summoned by the airline, questioned Peterson as to what had occurred. At this time, Peterson's niece allegedly offered to give up her seat, but was told that Peterson was the one who had to leave. Peterson claims that without provocation or warning, four police officers lifted her from her seat, handcuffed her and forcibly removed her from the airplane.

 Continental's version of what transpired once the seat conflict arose differs dramatically. According to Continental, even after it was determined that the seat assignments for Peterson, her nephew and her niece were 21D, 20F and 30A respectively, she refused to move or allow her family members to move to their assigned seats. In an effort to resolve the situation, Continental personnel purportedly asked the passengers who were assigned seats 21E and 21F if they would take other seats. One passenger obliged, but the other passenger insisted on taking her assigned seat, which at the time was allegedly occupied by Peterson. Continental claims that despite numerous attempts to reason with Peterson, she refused to move or otherwise follow the instructions of the flight attendants. The flight attendants contend that they became increasingly concerned that Peterson posed a danger to the safety of the flight in that if faced with an emergency, Peterson would be unwilling to follow directions. Accordingly, the captain of flight 770 determined that Peterson should be asked to leave the plane. *fn2" Specifically, Peterson was informed that unless she took her assigned seat, she would be directed to leave the plane. Continental claims that Peterson responded that they should call the police because she was not going to move or allow the plane to move. Upon arriving, the police allegedly explained to Peterson that she would have to either move to her assigned seat or leave the plane. Given her refusal to engage in either alternative, the police instructed Continental to deplane all the other passengers so that Peterson could be removed. Once the plane was evacuated, the police attempted to take Peterson from her seat, at which time she purportedly struck at one of the officers. She was then placed in handcuffs and removed from the plane.

 On or about September 22, 1996, Peterson brought the instant action, alleging the following causes of action: (1) breach of contract; (2) negligence; (3) assault and battery; (4) false arrest; (5) false imprisonment; (6) abuse of process; (7) civil rights violations pursuant to 42 U.S.C. ยง 1983; and (8) defamation. She also seeks punitive damages in the amount of $ 10 million. In its answer, Continental denies each allegation in the complaint, and as an affirmative defense, asserts that Peterson's claims are preempted by the Federal Aviation Act.


 I. Standard of Law

 Under Federal Rule of Civil Procedure 12(h)(3), a court may dismiss an action "whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter." Fed. R. Civ. P. 12(h)(3). Rule 12(h)(3) motions are subject to the same standard as motions brought pursuant to Rule 12(b)(1). See Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 880 n.3 (3d Cir. 1992) (motions under 12(b)(1) and 12(h)(3) are governed by identical standards except that the latter may be asserted at any time and need not be responsive to a pleading); Becker v. Beame, 454 F. Supp. 867, 867 n.1 (S.D.N.Y. 1978) (Rule 12(h)(3) is governed by the same standard as applied to a motion under Rule 12(b)(1)).

 Under Rule 12(b)(1), a facially sufficient complaint may be dismissed for lack of subject matter jurisdiction if the Court finds that the asserted basis for federal jurisdiction is not sufficient. United States v. Suffolk Const. Co., 1996 U.S. Dist. LEXIS 9756, No. 95 Civ. 9363, 1996 WL 391875, at *1 (S.D.N.Y. July 12, 1996). Once challenged, the burden of establishing a federal court's jurisdiction rests with the party asserting jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S. Ct. 673, 86 L. Ed. 951 (1942). In such an attack, a court must accept as true all material factual allegations in the complaint. Atlantic Mutual Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). "However, argumentative inferences favorable to the party asserting jurisdiction should not be drawn." Id. A court may resolve disputed ...

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