The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Plaintiffs Tobias and Gertrude Weiss bring this action against El Al Israel Airlines ("El Al") to recover losses that they incurred as a result of their being involuntarily denied boarding, or "bumped," from a flight from New York to Jerusalem. They bring this action under regulations promulgated under the Federal Aviation Act, 14 C.F.R. § 250.1 et seq. ("Federal Regulations"), and under state tort and contract law.*fn1 El Al has moved to dismiss the complaint, contending that plaintiffs' claims are preempted by the Montreal Convention*fn2 and the Airline Deregulation Act ("ADA"), and that plaintiffs have no cause of action under the Federal Regulations. Plaintiffs in response have submitted a motion to strike, which for the most part simply opposes El Al's motion to dismiss, but also raises certain issues of service and jurisdiction that the Court separately addresses. For the reasons set forth below, El Al's motion to dismiss will be denied in part and granted in part, and plaintiffs' motion to strike will be denied.
The facts as alleged in the Complaint are as follows: Plaintiffs purchased tickets at a combined price of $2,434 from El Al for round-trip transportation between New York Kennedy airport and Jerusalem Ben-Gurion airport, departing New York on March 31, 2004, at 6.30 p.m. (Compl. ¶¶ 6-7.) They arrived at Kennedy airport on the scheduled date of departure a little more than one hour before the flight and were cleared by airline security, but were involuntarily denied boarding because the flight had been oversold by the airline and, as a result, their reserved seats given to other passengers. (Id. ¶ 8.) Plaintiffs, in a manner familiar to any regular flyer, had been "bumped."*fn3
El Al subsequently placed the bumped passengers, including plaintiffs, on a standby list to enable them to obtain seats on future El Al flights in the coming days in the event that seats opened up. (Id. ¶ 11.) El Al also took an extra $100 from plaintiffs in order to upgrade their seats, should they get seats, to business class. (Id.)
As a result of their standby status, plaintiffs were induced to remain at the airport for two days in the hope of obtaining seats on a subsequent flight. (Id. ¶ 21.) They spent the time moving about the airport attempting to comply with the airline's procedures for standby passengers. (Id.) During that period, plaintiffs allege that they suffered physical fatigue and exhaustion from all the activity. (Id. ¶ 22.) Plaintiffs also allege that they were treated in a "wanton, oppressive, indifferent, and uncaring" manner by the airline's employees, who "shunt[ed] the passengers around from place to place." (Id. ¶ 23.) Finally, plaintiffs allege that they suffered "emotional stress, and worry and anxiety, and great inconvenience in being denied the transportation on which they depended." (Id. ¶ 24.)
However, plaintiffs' and the airline's efforts were of no avail and, after two days without obtaining seats on any subsequent flight, plaintiffs decided to fly to Jerusalem on a different airline. (Id. ¶ 12.) Consequently, plaintiffs were unable to make use of the round-trip tickets they had purchased from El Al. To date, plaintiffs have not received a refund for the cost of these tickets nor have they received any compensation for being "bumped" from their reserved seats on the March 31 flight. (Id. ¶¶ 17-18.)
I. Subject Matter Jurisdiction
An issue that is addressed solely (and only barely) in connection with plaintiffs' motion to strike, and which the Court has an independent obligation to address at the outset, is subject-matter jurisdiction. This issue can be addressed in short order, as there is clearly jurisdiction over the case, both under the diversity jurisdiction statute, 28 U.S.C. § 1332,*fn4 and under sections 1331 and 1367. There is federal question jurisdiction, under section 1331, over plaintiffs' claim arising under the Federal Regulations. That being the case, the Court has jurisdiction over plaintiffs' remaining state law claims under the supplemental jurisdiction statute, section 1367.*fn5
II. El Al's Motion to Dismiss
El Al moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), contending that plaintiffs' claims are preempted by the Montreal Convention and the ADA, and that there is no right of action under the Federal Regulations.
On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court must accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the plaintiff. Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). The Court will not dismiss a complaint for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Beyond the facts in the complaint, the Court may consider, inter alia, "any written instrument attached to [the ...