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Valerie L. Reuben, Plaintiff v. U.S. Air and Tsa

June 18, 2012


The opinion of the court was delivered by: Judge Nora Barry Fischer



Presently before the Court are two Motions to Dismiss (Docket Nos. 21, 26) Plaintiff's Civil Action Complaint (Docket No. 5) under Federal Rule of Civil Procedure Rule 12(b)(6), and alternatively under 28 U.S.C. § 1915, filed by Defendants United States Department of Homeland Security, Transportation Security Administration ("TSA") and US Airways, Inc.*fn1

(collectively, "Defendants"), respectively. Plaintiff Valerie L. Reuben ("Plaintiff") filed her Complaint alleging personal injury sustained on a Lufthansa flight from Germany. (See Docket No. 5). Both Defendants seek the dismissal of Plaintiff's Complaint by arguing that Plaintiff has not pled sufficient facts to render her claims plausible as required by the Supreme Court's decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). (Docket Nos. 22, 27). For the reasons discussed herein, Defendants' Motions (Docket Nos. 21, 26) are GRANTED.


Plaintiff alleges that, on May 10, 2010, while aboard Lufthansa Flight No. 431 on a return trip from Germany to Chicago, Illinois, "[she] encounter[ed] cigarette smoke" "while sitting in a nonsmoking seat (area)." (Docket No. 5 at 1). She claims that she was unable to breathe and vomited several times. (Id.). Plaintiff was provided three canisters of oxygen to assist her breathing, but after about five hours, she was told that there was no more oxygen to administer. (Docket No. 5-1 at n.8). She subsequently began to vomit for the next four hours and claims she was denied permission to lie down. (Docket No. 5 at 2). As a result of this incident, Plaintiff maintains she was dehydrated, dizzy, and unable to walk from the plane. (Id.).

On April 6, 2011, Plaintiff submitted a Standard Form 95 ("Claim for Damage, Injury, or Death") to the Claims Management Branch at TSA, wherein Plaintiff described the incident and claimed damages in the amount of $5,300. (Docket No. 5-1 at 2). She also named United Airlines on the form as the airline on which the incident occurred. (Id. at 3). On April 19, 2011, TSA wrote Plaintiff, explaining that her claim was received and assigned a control number. (Id. at 5). After Plaintiff contacted the Office of Customer Relations at US Airways, a representative responded on June 30, 2011, stating that she was "unable to verify [Plaintiff's] travel on US Airways on May 26 from Frankfurt."*fn3 (Docket No. 6).

On September 14, 2011, TSA notified Plaintiff that her administrative claim against TSA was denied, explaining that, "[a]fter careful consideration of the evidence, it appears that the subject incident did not involve, and was not caused by a negligent or wrongful act or omission of, TSA personnel."*fn4 (Docket No. 22-1).


On October 3, 2011, Plaintiff filed an Amended Motion to Proceed In Forma Pauperis (Docket No. 3), which the Court granted. (Docket No. 4). She then filed her Complaint against Defendants on October 4, 2011. (Docket No. 5). Plaintiff subsequently filed several exhibits in support of her Complaint. (Docket Nos. 6, 14, 20-1). Thereafter, on December 5, 2011, this Court ordered Plaintiff to complete U.S. Marshals Service 285 forms and to provide the Clerk of Court's office with service copies of her Complaint as well as Summons for Defendants (with a correct address for US Airways) by December 19, 2011. (Docket No. 11). Plaintiff failed to comply with this Order, however, and the Court issued another Order, dated December 22, 2011, requiring Plaintiff to show good cause by January 5, 2012 why her claim should not be dismissed. (Docket No. 12). By January 3, 2012, the Court received the documents ordered on December 22, 2011. (See Civil Docket No. 11-1235). Upon service, each Defendant sought an extension of time, which the Court granted. (See Docket Nos. 18-19, 24-25).

TSA subsequently filed its Motion to Dismiss and Brief in Support on March 27, 2012. (Docket Nos. 21-22). US Airways filed similar motions on April 12, 2012. (Docket Nos. 26-27). Due to Plaintiff's failure to timely respond to TSA's Motion in accordance with the Court's Order on Motions Practice (Docket No. 23), the Court entered an Order on April 23, 2012 indicating that Plaintiff must show cause by May 7, 2012 as to why her claim should not be dismissed as to Defendant TSA. (Docket No. 28). As such, Plaintiff filed her "Show Cause Order Response" on May 4, 2012. (Docket No. 29). The Court ordered both Defendants to file their Replies (Docket No. 30), which the Court received from TSA and US Airways on May 17, 2012 and May 21, 2012, respectively. (Docket Nos. 33-34). The Court also ordered Plaintiff to show cause by May 23, 2012 as to why her claim against US Airways should not be dismissed for failure to respond to its Motion to Dismiss. (Docket No. 31). On May 22, 2012, Plaintiff requested additional time to respond to the Show Cause Order, which the Court construed as a Motion for Extension of Time and granted, allowing Plaintiff to respond no later than June 6, 2012. (Docket No. 35). She then submitted a document on June 6, 2012 entitled "In re: To Motion to Stop Show Cause Order After Receiving Oxygen on Plain [sic] While in Flight. Never Received Med. Att."*fn5 (Docket No. 36). Accordingly, both Motions to Dismiss are fully briefed and ripe for disposition.


1. Failure to state a claim under FED.R.CIV.P. 12(b)(6)

A motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6) challenges the legal sufficiency of a complaint. The United States Supreme Court has held that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955');">127 S. Ct. 1955 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932 (1986)) (alterations in original).

The Court must accept as true all well-pleaded facts and allegations and must draw all reasonable inferences therefrom in favor of the plaintiff. See Iqbal, 556 U.S. at 678-79; Twombly, 550 U.S. at 555.As the Supreme Court made clear in Twombly, however, the "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. The Supreme Court has subsequently broadened the scope of this requirement, stating that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). This standard requires showing "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). "This 'plausibility' determination will be 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679).

After Iqbal, the United States Court of Appeals for the Third Circuit explained that a district court must conduct the following analysis to determine the sufficiency of a complaint:

First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."

Santiago v. Warminster Twp.,629 F.3d 121, 130 (3d Cir. 2010)(quoting Iqbal, 556 U.S. at 675, 679); see also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011), cert. denied, 2012 WL 296904 (Apr. 2, 2012); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

Twombly and Iqbal have not changed the other pleading standards for a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), and the requirements of FED. R. CIV. P. 8 must still be met.

See Burtch, 662 F.3d at 220. Rule 8 requires a showing, rather than a blanket assertion, of entitlement to relief, and "contemplates the statement of circumstances, occurrences, and events in support of the claim presented and does not authorize a pleader's bare averment that he wants relief and is entitled to it." Twombly, 550 U.S. at 555 n.3 (internal alterations, citations, and quotations omitted). The Supreme Court has explained that a complaint need not be "a model of the careful drafter's art" or "pin plaintiffs' claim for relief to a precise legal theory" so long as it states "a plausible 'short and plain' statement of the plaintiff's claim." Skinner v. Switzer, ---U.S. ---, 131 S. Ct. 1289, 1296 (2011); see also Matrixx Initiatives, Inc. v. Siracusano, --- U.S.---, 131 S. Ct. 1309, 1322 ...

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