United States District Court, D. Colorado
ASSAD IBRAHIM, individually and in his capacity as Father and Next Friend of minor H.A.M., Plaintiff,
DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT, d/b/a Lufthansa German Airlines, Defendant.
ORDER ON MOTION TO DISMISS
Michael E. Hegarty United States Magistrate Judge
Before the Court is Defendant’s Motion to Dismiss Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [filed February 24, 2016; docket #35]. The motion is fully briefed, and the Court finds oral argument would not materially assist the Court in its adjudication of the motion. Based on the record contained herein, the Court grants in part and denies in part Defendant’s motion.
Plaintiff Assad Ibrahim (“Ibrahim”) initiated this action on October 5, 2015 in the District Court, Denver County, Colorado. Docket #3. Defendant Deutsche Lufthansa Aktiengesellschaft (“Lufthansa”) removed the action to this Court on October 23, 2015 pursuant to 28 U.S.C. §§ 1332(a), 1441(a) and 1446 (docket #1), then filed a motion to dismiss the Plaintiff’s Complaint on November 20, 2015 (docket #16). At a conference on December 15, 2015, the Court discussed with the parties the status of the case, then stayed discovery pending resolution of the motion to dismiss. Docket #22. After the motion was fully briefed, Plaintiff sought leave to amend the Complaint in an attempt to cure any deficiencies raised by the motion. Docket #27. The Court granted leave, and Plaintiff filed the operative Amended Complaint on February 5, 2016. Docket #29.
I. Statement of Facts
The following are factual allegations (as opposed to legal conclusions, bare assertions or merely conclusory allegations) made by the Plaintiff in the Amended Complaint, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must limit its review to the four corners of the Amended Complaint, but may also consider documents attached to the pleading as exhibits, Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001), as well as any unattached documents which are referred to in the Amended Complaint and central to the plaintiff’s claim, so long as the authenticity of such documents is undisputed. Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002).
On the afternoon of October 18, 2014, H.A.M. (Ibrahim’s 16-year-old daughter) and two female friends presented to the Lufthansa ticket counter at Denver International Airport to purchase same-day airline tickets to Istanbul, Turkey. It was their intention, once they reached Istanbul, to join the Islamic terrorist group, “ISIS.” All three girls were minors, under the age of 18, dressed in black, and wearing head scarves. They purchased one-way tickets to Istanbul using cash, in the total amount of approximately $2, 700.00. At the time of purchase, H.A.M., a United States citizen, presented her passport to Lufthansa employees. The flight was scheduled to leave at approximately 6:00 p.m., and the flight path to Istanbul required a stop in Frankfurt, Germany.
On the date in question, Lufthansa’s policy regarding minor travel from the United States stated that “children and teenagers under the age of 18 traveling to/from an airport in the USA . . . require a notarized consent letter from their parents or legal guardians.” At the time of purchase, H.A.M., a United States citizen, presented her passport to Lufthansa employees, but neither H.A.M. nor her any of her friends presented a parental consent letter authorizing overseas travel from the United States.
Meanwhile, Ibrahim observed that H.A.M. did not return from school, and remotely checked the call log on her cellular phone, which showed that she had called Lufthansa. Ibrahim then called Lufthansa and identified himself as the father of a minor child who he believed might be traveling, without authorization, on Lufthansa. Ibrahim asked whether his daughter, H.A.M., had been issued a Lufthansa ticket for travel that day and was told that she had not. Based on this information, Ibrahim did not immediately ask Lufthansa personnel to stop H.A.M. from boarding the plane or drive to the airport and take steps to stop her himself, as he would have done had he learned the accurate information. Instead, H.A.M. flew to Frankfurt with the intention of continuing on to Istanbul and joining ISIS.
When he could not find his daughter, Ibrahim called law enforcement authorities, who were able to intercept H.A.M. in Frankfurt. However, because H.A.M. was intercepted in Frankfurt, rather than in Denver, the press became aware of the situation, and H.A.M.’s intention to join ISIS was publicized on television and in newspapers. Due to this publicity, Ibrahim suffered public disapproval, as well as financial losses in his limousine business. In addition, H.A.M. suffered criminal penalties and was placed on the United States Government’s no-fly list.
II. Procedural History
Based on these allegations, Ibrahim alleges four claims against Lufthansa: three based on conduct by the telephone operator for false representation, nondisclosure or concealment, and negligence, and one based on conduct by the ticket agent for negligence. Amended Complaint, docket #29. Ibrahim, on behalf of himself and H.A.M., seeks recovery for “damages, in the form of public disapproval, and financial losses to Ibrahim’s limousine business, as well as H.A.M.’s criminal penalties, and placement on the United States government’s no-fly list. Ibrahim and his daughter also suffered significant emotional distress and other noneconomic damages.” Id., ¶¶ 20, 25, 29, 34.
Lufthansa responded to the Amended Complaint by filing the present motion to dismiss, arguing that Claims 1-3 contain no allegations of any tort against H.A.M. and, thus, these claims brought on her behalf should be dismissed, and that all four claims brought by Ibrahim are insufficient to state actual or proximate causation.
Ibrahim counters that by failing to undertake an accurate check of its records, Lufthansa breached duties owed to both Ibrahim and H.A.M., a minor, and they both suffered damages as a result of the telephone operator’s negligence, as alleged in Claim 3. Ibrahim also argues that there can be more than one cause for an injury, and Lufthansa misstates his burden regarding alleging foreseeability and, thus, his allegations concerning causation are plausible.
Lufthansa replies that Ibrahim fails to allege it owed a duty to H.A.M. to disclose her flight information to someone who called the airline’s customer service number. Lufthansa also argues that the actual cause of the alleged injuries was H.A.M.’s attempt to join ISIS, and it was not foreseeable that selling a plane ticket to a 16-year-old with a valid passport in the absence of a consent letter, or that mistakenly reporting to Ibrahim there was no record of the ticket purchase by H.A.M. would lead to the Plaintiff’s alleged injuries.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 678-80. Second, the Court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.
Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.
The adequacy of pleadings is governed by Federal Civil Procedure Rule 8(a)(2), which requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This rule “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal citations omitted). Determining whether the allegations in a complaint are “plausible” is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. If the “well pleaded facts do not permit the ...