The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:
MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Iya Dennis ("Plaintiff") brought this action for wrongful exclusion from a flight, racial discrimination and breach of contract, pursuant to 42 U.S.C. § 1981 ("Section 1981"), 49 U.S.C. §§ 1374 and 40127(a), and New York common law. Defendant moved for summary judgment pursuant to Federal Rule of Civil Procedure 56, and Plaintiff opposed the motion. U.S. Magistrate Judge Lois Bloom issued a Report and Recommendation, dated August 18, 2011, recommending that Defendant's motion for summary judgment be granted in its entirety. (See Docket Entry No. 27 ("R & R").) Plaintiff objected. For the reasons set forth below, the R & R is adopted and Defendant's motion for summary judgment is granted.
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The court must view all facts in the light most favorable to the nonmoving party, but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id. A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where a party objects to a R & R, a district judge must make a de novo determination with respect to those portions of the R & R to which the party objects. See FED. R. CIV. P. 72(b);
United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Portions of the R & R to which the parties have not objected are reviewed for clear error. See Orellana v. World Courier, Inc., 2010 WL 3861013, at *2 (E.D.N.Y. Sept. 28, 2010).The district court may then "accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." FED. R. CIV. P. 72(b); see also 28 U.S.C. § 636(b)(1).
Plaintiff objects to the magistrate judge's recommendation that Defendant's motion for summary judgment be granted on all counts. Accordingly, the court will review Defendant's entire motion de novo.*fn2 See FED. R. CIV. P. 72(b); Orellana, 2010 WL 3861013 at *2.
A.Breach of Contract Claim
Plaintiff alleges that Defendant breached its contract with her when it did not allow her to board her scheduled flight and cancelled the unused portion of her ticket. Plaintiff also claims that Defendant's Domestic General Rules Tariff ("Rule" or the "Rules"), which include provisions stating that Defendant can cancel a passenger's flight in certain circumstances, were not published to Plaintiff and, thus, they do not apply to the instant case. The court disagrees.
Plaintiff booked her airline ticket on orbitz.com, which includes a "Notice of Incorporated Terms of Contract" that specifically states that air transportation "is subject to the individual terms of the transporting air carriers, which are herein incorporated by reference and made part of the contract of carriage." (See Affirmation of Louis R. Martinez ("Martinez Aff.") Exs. A ¶¶ 4-10, A(3).) Furthermore, a copy of the Rules was available for public inspection at LaGuardia Airport, which provided notice to passengers of the incorporated conditions of carriage. (See Martinez Aff. Exs. L at ¶ 7, L(1), L(2).) Thus, by making a copy of the Rules available to passengers at LaGuardia Airport and providing notice to Plaintiff when she purchased her ticket on orbitz.com, the court agrees with the magistrate judge that Defendant complied with federal regulations for incorporating terms into the contract of carriage. See 14 C.F.R. §§ 253.4, 253.5; Reed v. Delta Airlines, Inc., 2011 WL 1085338, at *3 (S.D.N.Y. Mar. 23, 2011). Accordingly, ...