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MERRITT v. SHUTTLE

July 15, 1998

RICHARD MERRITT and MARY-JO MERRITT, Plaintiffs, against SHUTTLE, INC., U.S. AIRWAYS, INC., TERRY V. HALLCOM, JOSEPH McNEIL, JOHN BLANKENSHIP, KEVIN O'DONNELL, KENT JARRELL, WUSA TELEVISION, STEVEN K. WILSON and JOHN DOES 1 through 50, in their individual capacities, the last 50 names being fictitious names of employees of Shuttle, Inc., U.S. Airways, Inc. and Federal Aviation Administration, Defendants.


The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

 PLATT, District Judge.

 Defendant U.S. AIRWAYS, INC. ("US Airways") moves pursuant to Rule 12(b)(6) to dismiss the First Amended Complaint. Defendants UNITED STATES OF AMERICA, KEVIN O'DONNELL, JOHN BLANKENSHIP and JOSEPH McNEIL (collectively, "the federal defendants"), SHUTTLE, INC. ("Shuttle"), TERRY HALLCOM ("Hallcom") and STEVEN WILSON ("Wilson") move to dismiss the First Amended Complaint pursuant to Rules 12(b)(1), 12(b)(6) and 12(c) on the ground that this Court lacks subject matter jurisdiction or, alternatively, for failure to state a claim. *fn1" Defendants WUSA TELEVISION ("WUSA") and KENT JARRELL ("Jarrell") move to dismiss the First Amended Complaint pursuant to Rules 12(b)(2) and 12(b)(6) on the basis that this Court lacks personal jurisdiction over these defendants or, alternatively, for failure to state a claim.

 BACKGROUND

 Plaintiff RICHARD MERRITT ("Merritt") worked for Shuttle as a pilot. On June 24, 1996, he was the captain of a Boeing 727 assigned to fly flight number 6500 from Washington National Airport to LaGuardia Airport. Plaintiff claims that he was told to proceed to his aircraft for an early departure at 4:15 p.m. that afternoon. Merritt claims that between 4:30 p.m. and 5:00 p.m., that same day, Shuttle, US Airways and Federal Aviation Administration ("FAA") employees received information about severe weather--including a possible tornado--rapidly approaching Washington National Airport. Merritt avers that Shuttle and FAA employees failed to advise him of those warnings and directed him to take off. At 5:11 p.m., while FAA personnel were preparing to evacuate the flight tower, flight 6500 was cleared for takeoff. The severe weather passed directly over Washington National Airport as Merritt was taking off, causing a windshear that forced the 727's left wing to hit the runway just as it became airborne.

 Merritt contends that Shuttle and FAA employees knew that the left wing of the aircraft had been damaged upon takeoff but failed to inform the crew of flight 6500. Merritt ultimately landed safely in New York. Merritt claims that he was detained for six hours upon his arrival while Shuttle employees altered aircraft log books. The next day, Merritt refused Shuttle management's order to undergo FAA interrogation regarding the incident because he believed that the order violated federal air regulations. Allegedly acting in conspiracy, US Airways and Shuttle management and FAA personnel subsequently contacted the news media and reported that Merritt's own poor judgment caused the incident. The FAA revoked Merritt's pilot license at an emergency hearing and, after a review by the National Transportation Safety Board ("NTSB"), modified the revocation to a nine-month suspension. Thereafter, plaintiff was terminated from his employment by defendant Wilson. Plaintiff alleges that the grievance proceedings held to review his termination were tainted.

 In the First Amended Complaint, plaintiff asserts several causes of action, including claims for negligence (first and second counts), violation of constitutional rights (third count), defamation (fourth count), violations of the Railway Labor Act, 45 U.S.C. § 151 et seq. ("RLA") (sixth count), violations of the Employee Retirement Income Security Act of 1974 ("ERISA") (seventh count), violations of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") (ninth count) and violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA") (tenth count). *fn2" Plaintiff's wife MARY-JO MERRITT asserts a claim for loss of consortium (eighth count).

 DISCUSSION

 A. Claims Against WUSA and Jarrell

 Defendant WUSA and its announcer Jarrell move to dismiss the First Amended Complaint pursuant to Rule 12(b)(2) for lack of personal jurisdiction and Rule 12(b)(6) for failure to state a claim.

 According to Rule 12(b)(2), a complaint is subject to dismissal when the court lacks jurisdiction over the person upon whom it is served. Fed. R. Civ. P. 12(b)(2). When a defendant challenges personal jurisdiction by a motion to dismiss, the burden is on the plaintiff to prove jurisdiction. Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). In an action based upon diversity of citizenship, New York law determines whether a defendant who has not consented to jurisdiction is amenable to suit. See Savin v. Ranier, 898 F.2d 304, 306 (2d Cir. 1990).

 New York's Civil Practice Laws and Rules ("CPLR") § 301 provides: "A court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore." (McKinney 1990). Decisional law prior to and continuing under the CPLR, therefore, is the basis for determining whether a court may exercise jurisdiction over defendants who do not consent. FCNB Spiegel Inc. v. Dimmick, 163 Misc. 2d 152, 619 N.Y.S.2d 935, 937 (1994). According to case law, a foreign corporation "doing business" within the state subjects itself to personal jurisdiction as long as it does business "not occasionally or casually, but with a fair measure of permanence and continuity. . . ." Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915 (1917). This principle was extended to apply to individual defendants in ABKCO Indus., Inc. v. Lennon, 85 Misc. 2d 465, 377 N.Y.S.2d 362, 366-67 (1975).

 Plaintiffs' First Amended Complaint fails to allege that either WUSA or Jarrell engaged in any activities that constitute "doing business" in the State of New York. Indeed, the First Amended Complaint fails to recite a basis upon which the New York courts may exercise personal jurisdiction at all. See Compl. at P 14. Rather, it is only in plaintiffs' opposition to this motion that plaintiffs allege defendants have any New York contacts at all by arguing that WUSA sells videotapes and written transcripts of its broadcasts in a mail order business. Pls.' Mem. at 16. Moreover, the opposition is silent regarding Jarrell's contacts with the State of New York.

 The jurisdictional omission in the First Amended Complaint notwithstanding, even assuming plaintiffs' allegations in their opposition are true and WUSA indeed directs mail orders into New York, WUSA's contacts with New York as described here do not subject it to personal jurisdiction. Honda Assoc., Inc. v. Nozawa Trading, Inc., 374 F. Supp. 886, 890 (S.D.N.Y. 1974). The test of jurisdiction is whether

 
the aggregate of the corporation's activities in the state [is] such that it may be said to be present in the state not occasionally or casually, but with a fair measure of permanence and continuity . . . and [whether] the quality and nature of the corporation's contacts with the state [are] sufficient to make it reasonable and just according to traditional notions of fair play and substantial justice that it be required to defend the action [in the state.]

 Diskin v. Starck, 538 F. Supp. 877, 880 (E.D.N.Y. 1982) (quoting Laufer v. Ostrow, 55 N.Y.2d 305, 309-10, 449 N.Y.S.2d 456, 434 N.E.2d 692 (1982)) (ellipsis in original).

 The quality and nature of WUSA's and Jarrell's contacts with New York are insufficient to require them to defend this action. For instance, WUSA's broadcast signal does not reach New York; neither WUSA nor its parent corporation, The Detroit News, Inc., which is incorporated and has its principal place of business in Michigan, are qualified to do business in New York; and neither entity owns any property in the State. Jarrell does not own property in New York and has not lived here for twenty years. Indeed, the only jurisdictional allegation plaintiffs make against Jarrell is: "Defendant Kent Jarrell was at all relevant times employed as a television commentator or announcer for defendant WUSA Television or Channel 9 Television in the District of Columbia and/or State of Virginia. Upon information and belief [Kent Jarrell] resides in either the State of Virginia or Maryland." Compl. at P 13.

 Therefore, this Court may not properly exercise jurisdiction over WUSA or Jarrell pursuant to CPLR § 301.

 Moreover, jurisdiction over WUSA and Jarrell is inappropriate under CPLR § 302(a)(1), which provides:

 
[A] court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . . . transacts any business within the state or contracts anywhere to supply goods or services in the state. . . .

 N.Y. C.P.L.R. § 302(a)(1) (McKinney 1990).

 Although a defendant need not engage in "systematic and continuous" transactions in New York, there must be a direct and substantial relationship between the in-state activities and the cause of action. Diesel Sys., Ltd. v. Yip Shing Diesel Eng'g Co., 861 F. Supp. 179, 182 (E.D.N.Y. 1994). WUSA and Jarrell argue that plaintiffs' libel claim is not substantially related to the transaction of their business in New York. Defendants contend that "plaintiffs' cause of action against WUSA and Jarrell is predicated on news reports televised in Washington, D.C. . . . not . . . any purported mail order activity . . . ." Defs.' Reply Mem. at 3. Indeed, WUSA's sole in-state activity is filling orders for videotapes and written transcripts of its broadcasts and mailing them to New York. The libel claim does not arise from defendant's delivery of mail orders to New York. Therefore, this Court may not properly exercise long-arm jurisdiction under § 302(a)(1).

 Finally, this Court may not exercise jurisdiction pursuant to §§ 302(a)(2) or (3) because both sections unambiguously exempt "cause[s] of action for defamation of character arising from [a tortious] act[,]" and here, plaintiffs allege defamation claims. N.Y. C.P.L.R. §§ 302(a)(2), (3) (McKinney 1990).

 Because this Court concludes it may not properly exercise jurisdiction over WUSA and Jarrell, defendants' motion to dismiss is granted. *fn3"

 B. Claims Against the United States, O'Donnell, Blankenship and McNeil

 The federal defendants move to dismiss the First Amended Complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) contending that: (1) the United States Court of Appeals has exclusive jurisdiction to review FAA decisions; (2) the discretionary function exception embodied in 28 U.S.C.A. § 2680(a) bars claims arising out of conduct that is a matter of choice for a federal official; (3) 28 U.S.C. § 2680(h) bars the claims for libel and slander; and (4) the United States did not consent to be sued for constitutional torts. Additionally, the individual federal defendants move pursuant to Rule 12(b)(6) claiming that: (1) they are entitled to qualified immunity; and (2) the First Amended Complaint fails to state a claim for constitutional violations.

 1. Jurisdiction to Review Constitutional Violations Related to the Suspension of Plaintiff's Pilot License

 In sum, the federal defendants contend that this Court lacks subject matter jurisdiction because the United States Court of Appeals has exclusive jurisdiction to review certificate actions issued by the NTSB and FAA pursuant to 49 U.S.C. § 46110(a) (1998). Because this Court concludes that plaintiff is not seeking review of the revocation of his pilot license but rather judicial determination of his claim of conspiracy to deprive him of his constitutional rights, this Court has subject matter jurisdiction.

 Defendants characterize plaintiff's cause of action as an "impermissible attempt to challenge in tort the administrative processes involved in the Federal Aviation Administration (FAA) enforcement action against him." *fn4" Defs.' Mem. at 1-2. Applying this description, defendants assert that plaintiff's conspiracy claim is nothing more than a collateral attack on the revocation of his pilot license.

 In support, the federal defendants rely heavily on Green v. Brantley, 981 F.2d 514 (11th Cir. 1993). In Green, the designated pilot examiner for the FAA filed a Bivens action against FAA officials seeking recovery for constitutional torts based on revocation of his certificate of authority. The Eleventh Circuit Court of Appeals, in holding that the district court lacked subject matter jurisdiction over the Bivens claim, identified Green's claims as based on procedural defects and the reasons for the FAA order. *fn5" Id. at 519. The Court emphasized that Green never sought review of the order that withdrew his certificate of authority, choosing instead to sue FAA officials for money damages. Id. at 517-18.

 However, plaintiff's claims here are distinguishable from Green. The key distinction is that here, plaintiff did appeal the revocation of his license. As a result, the revocation was reduced to a nine-month suspension. Plaintiff appealed the suspension to the full board of the NTSB but then decided to withdraw his appeal. Consequently, plaintiff is not alleging a due process violation arising out of the suspension of his license by the NTSB. Also, he does not question the motives of either the Administrative Law Judge ("ALJ") or the NTSB. Instead, plaintiff alleges a conspiracy to deprive him of rights guaranteed by the Constitution.

 Although the United States Court of Appeals retains exclusive jurisdiction to review certificate actions issued by the NTSB and the FAA, this Court may evaluate plaintiff's constitutional claims as these claims are not "inescapably intertwined with a review of the procedures and merits surrounding the FAA's" revocation of plaintiff's pilot license. Id. at 521.

 2. Discretionary Function Exception to the Federal Tort Claims Acts

 Next, the federal defendants contend that the discretionary function exception to the Federal Tort Claims Act ("FTCA") deprives this Court of subject matter jurisdiction. According to this principle, courts lack subject matter jurisdiction to adjudicate tort claims resulting from federal defendants' performance of discretionary functions. Garcia v. United States, 826 F.2d 806, 809 (9th Cir. 1987). More specifically, the discretionary function exception provides that no liability shall lie for "any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a) (1994).

 According to Berkovitz v. United States, 486 U.S. 531, 536, 100 L. Ed. 2d 531, 108 S. Ct. 1954 (1988), for the discretionary function exception to apply: (1) the challenged conduct must be a "matter of choice for the acting employee"; and (2) the "judgment [must be the type] that the discretionary function exception was designed to shield." Defendants correctly conclude that "because the FAA inspectors are charged to use their own independent judgment in choosing enforcement actions and sanctions within certain parameters [pursuant to FAA regulations], their conduct clearly meets the first prong of the Berkowitz test." Defs.' Mem. at 10. Nevertheless, this Court concludes that the challenged conduct is not the kind that the discretionary function exception was intended to shield.

 According to United States v. Gaubert, 499 U.S. 315, 324-25, 113 L. Ed. 2d 335, 111 S. Ct. 1267 (1990), "for a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime." Here, the First Amended Complaint alleges that the federal defendants acted in a manner not grounded in FAA policy but, rather, conspired to place blame upon plaintiff. See Compl. at P 43-44. The allegations in the First Amended Complaint overcome the "strong presumption that a discretionary act authorized by the regulation involved consideration of the same policies which led to the promulgation of the regulations." Id. at 324. Moreover, the investigation conducted by the federal defendants occurred at an "operational" (as opposed to "planning") level of government. Nevin v. United States, 696 F.2d 1229 (9th Cir.), cert. denied, 464 U.S. 815, 78 L. Ed. 2d 84, 104 S. Ct. 70 (1983). Although there was room for discretion, the course of action the federal defendants selected did not implicate social, political or economic policy considerations. Mattice v. United States, 752 F. Supp. 905, 906 (N.D. Cal. 1990). Because this Court concludes that the discretionary function exception does not absolve the government from liability for the acts of the individual federal defendants, the motion is denied.

 3. First Amendment Claim

 The United States argues that the First Amendment claim should be dismissed pursuant to Rule 12(b)(6), contending that although plaintiff claims to allege a constitutional violation, effectively, he asserts a common law tort claim. This claim, defendants aver, is barred by the FTCA which provides:

 
the provisions of [the FTCA] . . . shall not apply to--
 
(h) any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. . . ."

 28 U.S.C. § 2680 (1994) (emphasis added).

 In paragraph 56 of the First Amended Complaint plaintiff alleges, in pertinent part, "USAir management, Shuttle management and FAA personnel contacted the news media and gave false and misleading reports claiming that Richard Merritt intentionally made a takeoff in a thunderstorm and/or tornado and that the captain used poor judgment."

 On its face, this allegation fails to implicate the First Amendment right to free speech and more appropriately is understood to be a claim for libel and slander. However, these claims are barred by 28 U.S.C. § 2680(h) because the government has not waived its sovereign immunity for libel and slander. B & A Marine Co. v. American Foreign Shipping Co., 831 F. Supp. 91, 93 (E.D.N.Y. 1993), aff'd, 23 F.3d 709 (2d Cir. 1994), cert. denied, 513 U.S. 961, 115 S. Ct. 421, 130 L. Ed. 2d 336 (1994). The Ninth Circuit Court of Appeals has held that exceptions to the FTCA "are not to be nullified through judicial interpretation, since Congress clearly delineated the areas in which it did not intend to forfeit [the federal government's] immunity from suit." Builders Corp. of America v. United States, 320 F.2d 425, 426 (9th Cir. 1963). Here, the First Amended Complaint, insofar as it could be construed as seeking recovery for an act of libel by federal officials, is insufficient to state a cause of action because it is an attempt to bring an unconsented-to action against the United States. Benjamin v. Ribicoff, 205 F. Supp. 532, 533 (Mass. Dist. Ct. 1962).

 Accordingly, plaintiff's First Amendment claim against the United States is dismissed because it is effectively a tort claim which is barred by the libel and slander exceptions to the FTCA.

 4. Fourth Amendment Claim

 O'Donnell, Blankenship and McNeil (collectively, "the individual federal defendants") move to dismiss plaintiff's Fourth Amendment claim, alleging that the doctrine of qualified immunity shields them from suit and that plaintiff fails to allege a Fourth Amendment violation with specificity. *fn6"

 Plaintiff alleges that "defendant Wilson did not allow plaintiff, Richard Merritt[,] to rest or receive medical attention but ordered him confined for some six (6) hours before administering tests for alcohol and drugs which tests were unnecessary and produced negative results." Compl. at P 48. Plaintiff contends that when Wilson ordered plaintiff back to Shuttle offices to be interrogated by O'Donnell and Blankenship, the individual federal defendants violated his constitutional rights--apparently referring to his Fourth Amendment right to be free from governmental seizure. Compl. at P 49. Moreover, plaintiff seems to allege that Wilson's order that he return to Shuttle offices for interrogation violated unspecified federal air regulations. Compl. at P 50.

 To assert a Fourth Amendment claim for seizure, plaintiff must allege an unreasonable: "(1) governmental (2) termination of freedom of movement (3) through means intentionally applied." Loria v. Town of Irondequoit, 775 F. Supp. 599, 603 (W.D.N.Y. 1990) (citing Brower v. County of Inyo, 489 U.S. 593, 109 S. Ct. 1378, 1381, 103 L. Ed. 2d 628 (1989)). Plaintiff properly alleges governmental action by asserting "that at the time of the orders, Shuttle management and USAir management were working in concert with defendants McNeil, Blankenship and O'Donnell[.]" Compl. at P 50. Plaintiff alleges that the means were intentionally applied by stating that defendants sought "to avoid publicity and place blame on Richard Merritt," (Compl. at P 50) and that the confinement "was a means of preventing the captain from making proper entries in aircraft log books and records." Id. at P 48.

 However, plaintiff fails to allege that his freedom of movement was terminated--that he was seized. "[A] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). Plaintiff does not allege that he felt threatened by the presence of the individual federal defendants, that any of these defendants displayed a weapon, that anybody touched him or used language or tone suggesting that compliance with the investigation was necessary or that the individual federal defendants retained his personal effects for a prolonged period. United States v. Lee, 916 F.2d 814, 819 (2d Cir. 1990). There is no indication that plaintiff believed, or that a reasonable person would have believed, that he was not free to leave.

 Accordingly, defendants' motion to dismiss the Fourth Amendment claim against them is granted and this Court need not address the issue of immunity in this context.

 5. Due Process Claims7

 Defendants move to dismiss plaintiff's Fifth Amendment due process claims, arguing that plaintiff received all the process that is due to him when he exhausted his administrative remedies and that they are entitled to qualified immunity. In opposition, plaintiff contends that: "Judge Fowler did not address the issues of: 1) a massive cover-up, 2) collusion among the present defendants, or ...


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