The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Plaintiffs Tobias and Gertrude Weiss bring this action against defendant El Al Israel Airlines ("El Al") to recover losses they suffered after being "bumped" from a flight from New York to Jerusalem on March 31, 2004. In a prior opinion, this Court dismissed the second count of plaintiffs' complaint -- a tort claim -- because the Airline Deregulation Act ("ADA") preempts such causes of action. Weiss v. El Al Israel Airlines, Ltd., No. 04 Civ. 9803, 2006 WL 1409736, at *7 (S.D.N.Y. May 22, 2006). Plaintiffs now move for reconsideration of the dismissal of their tort claim. For the following reasons the motion will be denied.
Because the factual background of this case is set forth in detail in the Court's prior opinion, see Weiss, 2006 WL 1409736, at *1, the facts can be sketched briefly here. Essentially, plaintiffs purchased two round-trip tickets for transportation from New York's John F. Kennedy Airport ("JFK") to Jerusalem's Ben-Gurion Airport, departing JFK at 6:30 p.m. on March 31, 2004. Plaintiffs arrived at JFK and passed through security in sufficient time to catch their flight, but as the result of overbooking plaintiffs were bumped from their contracted departure. El Al placed plaintiffs on a standby list to enable them to obtain available seats on a subsequent departure, and plaintiffs paid $100 to upgrade their seats to business class on the future flight. Plaintiffs spent two days in the airport on standby status, during which time they allege that they suffered physical and emotional fatigue and exhaustion from walking from place to place required to comply with the airline's standby procedures, and were treated in a "wanton, oppressive, indifferent, and uncaring" manner by the airline's employees. (Compl. ¶ 23.) Finally, unable to acquire seats on any El Al flight, plaintiffs purchased tickets on another airline. Subsequently, plaintiffs filed this action, with the second count of their complaint seeking recovery in tort for defendant's "damages to [plaintiffs] for their physical and emotional suffering and great inconvenience caused by the airline . . . during those two days for which the airline induced the passengers to remain at the airport." (Compl. ¶ 25.)
In its prior ruling, the Court dismissed the second count of the complaint, stating that it was "clearly preempted by the ADA," Weiss, 2006 WL 1409736, at *7, which preempts suits based on state law with any "'connection with or reference to airline rates, routes or services,'" id., quoting Morales v. Trans World Airlines, Inc., 504 U.S. 347, 384 (1992). Plaintiffs then filed the present motion, claiming that, because they never received passage aboard an El Al flight, their two days of abusive treatment were in fact not related to any service provided by the airline. Accordingly, plaintiffs argue that the ADA does not help El Al, because the ADA fails to preempt state law claims that are not connected to rates, routes, or services.
Plaintiffs' argument fails for two reasons. First, plaintiffs are barred from raising this argument because it was not presented to the Court in connection with the original motion to dismiss. Second, even if plaintiffs had raised the argument in a timely manner, it is without merit, because the allegedly abusive treatment plaintiffs suffered was connected to airline service, and is therefore preempted by the ADA.
I. Plaintiffs' New Argument Is Untimely
Reconsideration of a decision pursuant to Fed. R. Civ. P. 59(e) and Local Civil Rule 6.3 is appropriate "only where there is an intervening change of controlling law, newly available evidence, or the need to correct a clear error or prevent manifest injustice." In re Salomon Winstar Litig., 02 Civ. 6171 (GEL), 2006 WL 510526, at *1 (S.D.N.Y. Feb. 28, 2006); see also Slue v. N.Y. Univ. Med. Ctr., 04 Civ. 2087 (GEL), 2006 WL 212294, at *1 (S.D.N.Y. Jan. 26, 2006). A motion for reconsideration is not an opportunity for a losing party to advance new arguments to supplant those that failed in the prior briefing of the issue. EEOC v. Fed. Express Corp., 268 F. Supp. 2d 192, 199 (E.D.N.Y. 2003) ("Under Local Rule 6.3, a party may not advance new facts, issues or arguments not previously presented to the Court." (internal quotation marks omitted)).
Plaintiffs do not claim that there has been an intervening change of controlling law, or that there is newly available evidence, or that this Court's prior opinion resulted in some form of manifest injustice. Rather, plaintiffs simply emphasize a new argument -- that their suffering was not related to a service -- in contrast to their prior emphasis on the harm they suffered and the difference between bumping and delay.
In their prior briefing, plaintiffs did note the fact that El Al ultimately provided them with no transportation. However, this issue was raised not in the context of the ADA, but in the context of the distinction between bumping and delay under the Montreal Convention. (Pl. Memo. Op. Mot. Dis. 5-11.) Plaintiffs argued that claims based on delay, which involve eventual transportation, are preempted by the Montreal Convention, but claims based on bumping, which involve cancellation of the desired transportation, are not preempted. While this is an important distinction for the purposes of the Montreal Convention and for plaintiff's first and third counts, it is not germane to the question of whether bumping and subsequent actions by airline employees constitute service in the context of the ADA. Indeed, in their prior briefing plaintiffs only mentioned the ADA to say that it was the basis of one of defendant's arguments (id. at 4), and made vague conclusory assertions that tort causes of action are not preempted by federal statues (id. at 12-13).
Nowhere in their prior briefing did plaintiffs advance the argument they make now -- that bumping and attempts to obtain seats on later flights are not services. This is a new argument, and accordingly it is not an appropriate ground for a motion for reconsideration.
II. Plaintiffs' New Argument is Without Merit
In any event, even if plaintiffs were permitted to raise their new argument, it is without merit, because El Al's alleged mistreatment of plaintiffs was connected with airline services. Accordingly, the Court reaffirms its holding that plaintiffs' second count "is clearly ...