Saliba v. American Airlines Incorporated et al, No. 2:2022cv00738 - Document 32 (D. Ariz. 2022)
Court Description: ORDER granting 16 Motion to Dismiss. IT IS ORDERED that Plaintiff's claims against Defendant Long are dismissed without prejudice for lack of personal jurisdiction. IT IS FURTHER ORDERED that Plaintiffs' claims for violations of aviation law and the JCBA are dismissed without prejudice and without leave to amend for lack of subject matter jurisdiction. IT IS FURTHER ORDERED that Plaintiff's hostile work environment, defamation, and § 1983 claims are dismissed with leave to amend. IT IS FURTHER ORDERED that Plaintiff shall have until October 10, 2022 to file an Amended Complaint. If Plaintiff does not file an Amended Complaint by October 10, 2022, the Clerk of Court must terminate this action. Signed by Judge Steven P Logan on 9/12/22. (MJW)
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 ) ) ) Plaintiff, ) ) vs. ) ) American Airlines Incorporated, et al., ) ) ) Defendants. ) ) Bahig Saliba, No. CV-22-00738-PHX-SPL ORDER 15 Before the Court is Defendants’ Motion to Dismiss (Doc. 16), in which they seek 16 dismissal for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure 17 to state a claim. For the reasons that follow, the Motion will be granted. 18 I. 19 Pro se Plaintiff Bahig Saliba is an airline captain employed by Defendant 20 American Airlines, Inc. (“American”). (Doc. 1 at 1). Defendant Chip Long is American’s 21 Senior Vice President of Flight, and Defendant Timothy Raynor is American’s Director 22 of Flight. (Doc. 1 at 1). On May 2, 2022, Plaintiff filed a Complaint against Defendants 23 alleging claims arising out of American’s company mask policy. (Doc. 1 at 1). BACKGROUND 24 In response to the COVID-19 pandemic, President Biden issued an executive order 25 requiring mask-wearing on certain modes of transportation. (Doc. 1 at 8). Pursuant to the 26 executive order, the Transportation Security Administration (“TSA”) issued security 27 directives to airport and aircraft operators requiring mask-wearing subject to certain 28 exemptions. (Doc. 1 at 7–8). American implemented a mask policy requiring pilots to 1 wear masks in certain locations, not including the flight deck. (Doc. 1 at 13–15). Plaintiff 2 alleges that American’s mask policy placed pilots at risk of having dangerously reduced 3 oxygen levels. (Doc. 1 at 15). He alleges that American’s mask policy “compelled pilots 4 to submit to acts that potentially violated their medical certificates,” which are required 5 by the Federal Aviation Administration (“FAA”) to be able to fly. (Doc. 1 at 5, 16). 6 Plaintiff’s disagreement with federal and company mask policies came to a head 7 on December 6, 2021. On that day, Plaintiff arrived at the Spokane International Airport 8 to sign in for a duty shift for a flight to Dallas Fort Worth. (Doc. 1 at 17). Plaintiff was 9 not wearing a mask, which he asserts was “in compliance with his medical certificate 10 requirements” and an exemption in the TSA security directives for those for whom 11 wearing a mask would pose a risk to workplace health or safety. (Doc. 1 at 9, 17). A TSA 12 officer asked Plaintiff to wear a mask and when Plaintiff refused, he contacted airport 13 police. (Doc. 1 at 17). The airport police eventually allowed Plaintiff to proceed through 14 the airport to his scheduled flight, but the police notified American of the encounter. 15 (Doc. 1 at 18). Upon arrival at Dallas Worth, Plaintiff was removed from flying status 16 and placed on administrative leave pending a disciplinary hearing. (Doc. 1 at 18). 17 A disciplinary hearing was held on January 6, 2022. (Doc. 1 at 19). At the end of 18 the hearing, Plaintiff was given a directive to follow company policy and the federal 19 mask mandate, and the next day, Defendant Raynor issued a written notice that was 20 placed in Plaintiff’s employee file. (Doc. 1 at 21). Plaintiff alleges that the written 21 advisory is “one step from termination” and that “[a]ny event involving a mask would be 22 an immediate termination of his employment.” (Doc. 1 at 21). Plaintiff elected to use sick 23 leave instead. (Doc. 30 at 16). 24 After the federal mask mandate was vacated by a federal court on April 18, 2022, 25 Plaintiff was prepared to return to work. (Doc. 1 at 22). Shortly thereafter, however, 26 Plaintiff was placed on administrative leave with pay through May 2022 pending an 27 evaluation of his fitness for duty. (Doc. 1 at 22). He then initiated this action. 28 /// 2 1 2 II. LEGAL STANDARDS a. Personal Jurisdiction 3 Federal Rule of Civil Procedure (“Rule”) 12(b)(2) authorizes dismissal for lack of 4 personal jurisdiction. When a defendant moves to dismiss for lack of personal 5 jurisdiction, “the plaintiff bears the burden of demonstrating that jurisdiction is 6 appropriate.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 7 2004). When the motion is based on written materials rather than an evidentiary hearing, 8 as here, the Court must determine “whether the plaintiff’s pleadings and affidavits make a 9 prima facie showing of personal jurisdiction.” Id. (internal quotation marks omitted). 10 Plaintiffs “cannot simply rest on the bare allegations of [their] complaint,” but 11 “uncontroverted allegations in the complaint must be taken as true.” Id. (internal 12 quotation marks and citation omitted). 13 b. Subject Matter Jurisdiction 14 Rule 12(b)(1) “allows litigants to seek the dismissal of an action from federal 15 court for lack of subject matter jurisdiction.” Kinlichee v. United States, 929 F. Supp. 2d 16 951, 954 (D. Ariz. 2013) (internal quotation marks omitted). “A motion to dismiss for 17 lack of subject matter jurisdiction under Rule 12(b)(1) may attack either the allegations of 18 the complaint as insufficient to confer upon the court subject matter jurisdiction, or the 19 existence of subject matter jurisdiction in fact.” Renteria v. United States, 452 F. Supp. 20 2d 910, 919 (D. Ariz. 2006); see also Edison v. United States, 822 F.3d 510, 517 (9th Cir. 21 2016). “When the motion to dismiss attacks the allegations of the complaint as 22 insufficient to confer subject matter jurisdiction, all allegations of material fact are taken 23 as true and construed in the light most favorable to the nonmoving party.” Renteria, 452 24 F. Supp. 2d at 919. “When the motion to dismiss is a factual attack on subject matter 25 jurisdiction, however, no presumptive truthfulness attaches to the plaintiff’s allegations, 26 and the existence of disputed material facts will not preclude the trial court from 27 evaluating for itself the existence of subject matter jurisdiction in fact.” Id. “A plaintiff 28 has the burden of proving that jurisdiction does in fact exist.” Id. 3 c. Failure to State a Claim 1 2 To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient 3 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 4 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A claim is 5 facially plausible when it contains “factual content that allows the court to draw the 6 reasonable inference” that the moving party is liable. Id. Factual allegations in the 7 complaint should be assumed true, and a court should then “determine whether they 8 plausibly give rise to an entitlement to relief.” Id. at 679. Facts should be viewed “in the 9 light most favorable to the non-moving party.” Faulkner v. ADT Sec. Servs., Inc., 706 10 F.3d 1017, 1019 (9th Cir. 2013). A pro se complaint must be “liberally construed” and 11 “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. 12 Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted). 13 III. DISCUSSION 14 It is difficult to identify the particular claims in Plaintiff’s Complaint, but 15 construing the Complaint liberally, the Court identifies the following causes of action 16 against Defendants, supported by the briefing of the Motion: (1) violations of “aviation 17 law” by superseding or contradicting FAA regulations, dispatching flights illegally, and 18 placing pilots, flight attendants, and passengers in danger based on the company mask 19 policy (Doc. 1 at 1–2, 12–16, 24); (2) hostile work environment based on Defendants’ 20 implementation of the policy (Doc. 1 at 2, 24); (3) defamation based on alleged 21 implications during a disciplinary hearing that Plaintiff is a criminal (Doc. 1 at 2, 20, 24); 22 (4) violation of the Joint Collective Bargaining Agreement (“JCBA”) between the Allied 23 Pilots Association (“APA”) and American by refusing to provide Plaintiff certain 24 documents, refusing to reschedule his disciplinary hearing, requiring him to submit to a 25 “fitness for duty” assessment, and wrongfully disciplining him (Doc. 1 at 2, 19, 22, 24); 26 and (5) violation of his rights pursuant to 42 U.S.C. § 1983 (Doc. 1 at 25).1 The Court 27 The Complaint makes a vague, conclusory reference to a “violat[ion] of a contract in existence between the plaintiff and [American],” (Doc. 1 at 2), but because 1 28 4 1 will address each cause of action in turn, but first, it will consider whether it has personal 2 jurisdiction over Defendants Long and Raynor. 3 a. Personal Jurisdiction 4 Initially, Defendants argue that this Court lacks personal jurisdiction over 5 Defendants Long and Raynor. When no federal statute is applicable to govern personal 6 jurisdiction, as is the case here, “the district court applies the law of the state in which the 7 district court sits.” Id. at 800. “Arizona’s long-arm jurisdictional statute is co-extensive 8 with federal due process requirements; therefore, the analysis of personal jurisdiction 9 under Arizona law and federal due process is the same.” Biliack v. Paul Revere Life Ins. 10 Co., 265 F. Supp. 3d 1003, 1007 (D. Ariz. 2017). For a court to exercise personal 11 jurisdiction, federal due process requires that a defendant have “certain minimum 12 contacts” with the forum state “such that maintenance of the suit does not offend 13 traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 14 U.S. 310 (1945). Personal jurisdiction can be general or specific. Biliack, 265 F. Supp. 15 3d at 1007. Plaintiff’s Response concedes that the Court lacks general personal 16 jurisdiction over Defendants Long and Raynor. (Doc. 30 at 12). 17 The Ninth Circuit applies a three-prong test for specific personal jurisdiction: 18 (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; 19 20 21 22 (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and 23 (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. 24 25 26 27 28 that is the only mention of a breach of contract and there are no other allegations that would support such a claim, the Court does not construe the Complaint to contain a breach of contract claim. The Complaint also alleges that American “disadvantaged the plaintiff financially and created and placed him in an untenable position.” (Doc. 1 at 2, 24). Even construing this allegation liberally, it is an allegation of Plaintiff’s damages rather than its own cause of action. 5 1 Schwarzenegger, 374 F.3d at 802. Plaintiff bears the burden of establishing the first two 2 prongs. Id. If Plaintiff satisfies them, the burden shifts to Defendant “to present a 3 compelling case that the exercise of jurisdiction would not be reasonable.” Id. (internal 4 quotation marks omitted). 5 Regarding the first prong, Plaintiff argues that purposeful direction applies to 6 Defendants Long and Raynor. “Purposeful direction requires that the defendant have 7 (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm 8 that the defendant knows is likely to be suffered in the forum state.” Morrill v. Scott Fin. 9 Corp., 873 F.3d 1136, 1142 (9th Cir. 2017) (internal quotation marks and alteration 10 omitted). “An intentional act is one denoting an external manifestation of the actor’s 11 will[,] not including any of its results, even the most direct, immediate, and intended.” Id. 12 (internal quotation marks and alterations omitted). When considering whether a 13 defendant’s conduct is expressly aimed at the forum state, the Court must look at 14 “contacts that the defendant himself creates with the forum” and “the defendant’s contacts 15 with the forum State itself, not the defendant’s contacts with persons who reside there.” 16 Id. at 1143 (internal quotation marks omitted). “[R]andom, fortuitous, or attenuated 17 contacts are insufficient to create the requisite connection with the forum.” Id. at 1142 18 (internal quotation marks omitted). 19 Importantly, the Court can consider only facts set forth in Plaintiff’s Complaint, as 20 Plaintiff has not submitted any affidavits setting forth jurisdictional facts. See 21 Schwarzenegger, 374 F.3d at 800. After a thorough review of the Complaint, the Court 22 agrees with Defendants that the only relevant allegations found therein are (1) that 23 “defendants conduct business and maintain contacts with the forum as Vice President of 24 Operations and Director of Flight,” (Doc. 1 at 3), and (2) that Defendant Raynor flew in 25 to Arizona to conduct Plaintiff’s disciplinary hearing, (Doc. 1 at 19). The first statement 26 is conclusory and provides no factual support for Defendants’ contacts with Arizona. See 27 NuCal Foods, Inc. v. Quality Egg LLC, 887 F. Supp. 2d 977, 988 (E.D. Cal. 2012) 28 (“[T]he court need not consider merely conclusory claims, or legal conclusions in the 6 1 complaint as establishing jurisdiction.”). Thus, Plaintiff makes no showing that the Court 2 has personal jurisdiction over Defendant Long, and the claims against him will be 3 dismissed. 4 As to Defendant Raynor, however, his attendance at Plaintiff’s disciplinary 5 hearing suffices to give this Court personal jurisdiction. Defendant Raynor traveled to 6 Arizona specifically for the hearing, and his statements and conduct at the hearing are 7 grounds for Plaintiff’s claims. Thus, he purposefully directed conduct towards Arizona, 8 and Plaintiff’s claims arise from the forum-related activities. Accordingly, Plaintiff has 9 met his burden to establish that the Court has personal jurisdiction over Defendant 10 11 Raynor. b. Violations of Aviation Law 12 Proceeding to the merits, Plaintiff first alleges broadly that “the defendants created 13 and implemented a company mask policy that directly violated aviation law, superseded 14 the [FAA regulations], dispatched flights illegally, and placed pilots, flight attendants and 15 passengers alike in grave danger.” (Doc. 1 at 1–2). Defendants argue that this claim must 16 be dismissed on multiple grounds, including that there is no private right of action based 17 on any of the regulations that Plaintiff cites. Plaintiff counters that there is an implied 18 private right of action under the Federal Aviation Act (the “Act”). 19 A claim must be dismissed for lack of subject matter jurisdiction if the law on 20 which it is based does not create a private right of action. See In re Digimarc Corp. 21 Derivative Litig., 549 F.3d 1223, 1229 (9th Cir. 2008). “[T]he Ninth Circuit has 22 concluded, repeatedly and without equivocation, that [the Act] does not create a private 23 right of action.” Shapiro v. Lundahl, No. 16-cv-06444-MEJ, 2017 WL 895608, at *2 24 (N.D. Cal. Mar. 7, 2017) (citing In re Mex. City Aircrash of Oct. 31, 1979, 708 F.2d 400, 25 406–08 (9th Cir. 1983); G.S. Rasmussen & Assocs., Inc. v. Kalitta Flying Servs., Inc., 958 26 F.2d 896, 901–02 (9th Cir. 1992); Martin ex rel. Heckman v. Midwest Express Holdings, 27 Inc., 555 F.3d 806, 808 (9th Cir. 2009)). The same is “particularly” true “where 28 plaintiff’s claim is grounded in the regulations rather than the statute itself.” G.S. 7 1 Rasmussen & Assocs., 958 F.2d 896 at 902. Accordingly, because there is no private right 2 of action for violations of “aviation law,” Plaintiff’s claims on that basis will be 3 dismissed for lack of subject matter jurisdiction. c. Hostile Work Environment 4 5 Plaintiff next alleges that Defendants created a hostile work environment. 6 Defendants argue that the claim must be dismissed for several reasons, including that 7 Plaintiff has failed to exhaust his administrative remedies. Under Title VII, “[a] hostile 8 work environment is one where the workplace is permeated with discriminatory 9 intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the 10 conditions of the victim’s employment and create an abusive working environment.” 11 Ware v. NBC Nev. Merchs., Inc., 219 F. Supp. 3d 1040, 1051 (internal quotation marks 12 omitted). In order to establish subject matter jurisdiction over a Title VII claim, however, 13 a plaintiff must exhaust his administrative remedies “by filing a timely charge with the 14 [Equal Employment Opportunity Commission], or the appropriate state agency.” B.K.B. 15 v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002) (citing 42 U.S.C. § 2000e- 16 5(b)). Here, Plaintiff does not allege that he filed an administrative charge. Accordingly, 17 the Court lacks subject matter jurisdiction over Plaintiff’s hostile work environment 18 claim. 19 d. Defamation 20 Plaintiff’s Complaint alleges that during his disciplinary hearing, “Captain Raynor 21 used language such as ‘shy of a mug shot or you being on a police blotter’ as if the 22 plaintiff is some sort of a criminal, defaming him in the presence of other [American] 23 employees.” (Doc. 1 at 20). Defendants argue that this does not suffice to give rise to a 24 claim for defamation because the statements are privileged and are not defamatory. 25 “Under Arizona law, a plaintiff asserting a claim for defamation must show (1) that the 26 defendant made a false statement; (2) that the statement was published and 27 communicated to someone other than the plaintiff; and (3) that the statement tends to 28 harm plaintiff’s reputation.” Prostrollo v. Scottsdale Healthcare Hosps., No. CV-178 1 00409-PHX-DJH, 2018 WL 501414, at *4 (D. Ariz. Jan. 12, 2018) (citing Godbehere v. 2 Phx. Newspapers, Inc., 783 P.2d 781, 787 (Ariz. 1989)). A statement does not meet the 3 first element if it is “not susceptible to proof of truth or falsity” and if it “cannot 4 reasonably be interpreted as actual fact[ ].” Turner v. Devlin, 848 P.2d 286, 294 (Ariz. 5 1993). 6 First, Defendants argue that the alleged statements are privileged because they 7 were made during a grievance proceeding. Indeed, “as a matter of law, statements that are 8 made in grievance proceedings established by a [collective bargaining agreement] and are 9 not published to persons lacking legitimate interests in them are privileged and may not 10 support a state tort claim.” Hyles v. Mensing, 849 F.2d 1213, 1217 (9th Cir. 1988). Here, 11 Plaintiff makes no allegation that the allegedly defamatory statements were 12 communicated to anyone other than American employees who had a legitimate interest in 13 the proceedings, so they are privileged and cannot give rise to a defamation claim. 14 Second, Defendants argue that Defendant Raynor’s statement was neither false nor 15 negative, and thus, was not defamatory. The Complaint provides only a fragment of 16 Defendant Raynor’s statement, making it somewhat difficult to assess, but even that 17 fragment makes clear that it is not a false statement that Plaintiff is a criminal because it 18 conveys that the events were shy of a mug shot or inclusion on a police blotter. Thus, the 19 statement cannot reasonably be interpreted as defamatory. Plaintiff’s claim for 20 defamation will be dismissed for failure to state a claim. 21 e. Violations of the JCBA 22 Next, Plaintiff alleges that Defendants violated the JCBA by refusing to provide 23 Plaintiff certain documents, refusing to reschedule his disciplinary hearing, requiring him 24 to submit to a “fitness for duty” assessment, and wrongfully disciplining him. (Doc. 1 at 25 2, 19, 22, 24). Defendants argue that any claims involving the interpretation and 26 application of the JCBA are preempted by the Railway Labor Act (“RLA”), 45 U.S.C. 27 § 151 et seq. “The RLA, which was extended in 1936 to cover the airline industry, sets up 28 a mandatory arbitral mechanism to handle disputes ‘growing out of grievances or out of 9 1 the interpretation or application of agreements concerning rates of pay, rules, or working 2 conditions.’” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994). Courts lack 3 jurisdiction over such disputes. See Air Transp. Ass’n of Am. v. City & County of San 4 Francisco, 266 F.3d 1064, 1076 (9th Cir. 2001). On the other hand, “[c]laims or causes 5 of action involving rights and obligations that are independent of the [collective 6 bargaining agreement] are not preempted.” Id. 7 It is plain that Plaintiff’s claims fall in the former category and are preempted by 8 the RLA. Plaintiff’s claims amount to allegations that Defendants breached the JCBA by 9 failing to abide by its provisions related to the disciplinary process and “fitness for duty” 10 assessments. The Supreme Court has expressly held that such claims are preempted. See 11 Hawaiian Airlines, Inc., 512 U.S. at 257–58 (stating that an employee’s claim is 12 preempted by the RLA when it is “firmly rooted in a breach of the [collective bargaining 13 agreement] itself”); see also Beers v. S. Pac. Trasp. Co., 703 F.2d 425, 429 (finding 14 claims involving disciplinary procedures covered by a collective bargaining agreement 15 were preempted). Accordingly, Plaintiff’s claims based on alleged violations of the JCBA 16 will be dismissed for lack of subject matter jurisdiction. f. Violation of 42 U.S.C. § 1983 17 18 Finally, Plaintiff seeks judgment pursuant to 42 U.S.C. § 1983, although he does 19 not clearly set forth a factual basis for that claim. (Doc. 1 at 25). Regardless, Defendants 20 argue that the § 1983 claim must be dismissed because they are private actors. “To state a 21 claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured 22 by the Constitution or laws of the United States was violated, and (2) that the alleged 23 violation was committed by a person acting under the color of State law.” Long v. County 24 of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Still, Plaintiff argues that 25 “defendants became state actors by coordinating and effectuating action taken by the 26 police officers at the Spokane International Airport on December 6, 2021.” (Doc. 30 at 27 9). 28 Plaintiff argues that each of the four tests used to identify state action applies in 10 1 this case: “(1) public function; (2) joint action; (3) governmental compulsion or coercion; 2 and (4) governmental nexus.” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) 3 (internal quotation marks omitted). First, the public function test applies only when a 4 private entity is “endowed by the State with powers or functions” that are “both 5 traditionally and exclusively governmental.” Id. at 1093 (internal quotation marks 6 omitted). Plaintiff appears to assert that Defendants exercised police power by conducting 7 disciplinary hearings against him. (Doc. 30 at 11). Not so. A private employer’s 8 disciplinary proceedings against its employee are certainly not a traditional and exclusive 9 government function. 10 Second, the joint action test applies “when the state knowingly accepts the benefits 11 derived from unconstitutional behavior.” Kirtley, 326 F.3d at 1093 (internal quotation 12 marks omitted). Plaintiff does not identify any benefit that the police derived from 13 Defendants’ behavior—much less from any unconstitutional behavior. 14 Third, “[t]he compulsion test considers whether the coercive influence or 15 ‘significant encouragement’ of the state effectively converts a private action into a 16 government action.” Id. at 1094. Plaintiff argues that “[t]he police at the Spokane 17 International Airport not only acquiesced to the defendants in favor of an on-time 18 departure of a flight commanded by the plaintiff, but also created sufficient contact with 19 the defendants and offered assistance and encouragement in the persecution of the 20 plaintiff.” (Doc. 30 at 10). But the only allegation in the Complaint about contact 21 between Defendants and the police is that “[t]he police immediately notified” American 22 after the encounter with Plaintiff. (Doc. 1 at 18). Mere notification falls well short of 23 coercive influence or significant encouragement. 24 Finally, the nexus test “asks whether there is such a close nexus between the State 25 and the challenged action that the seemingly private behavior may be fairly treated as that 26 of the State itself.” Kirtley, 326 F.3d at 1094–95 (internal quotation marks omitted). 27 Again, the fact that the police contacted American to notify Defendants of their encounter 28 with Plaintiff is not nearly sufficient to turn American’s resulting employee disciplinary 11 1 proceedings into a state action. Because Plaintiff has failed to plead that Defendants were 2 acting under the color of state law, his § 1983 claim must be dismissed for failure to state 3 a claim. 4 IV. 5 In sum, Plaintiff’s claims against Defendant Long are dismissed for lack of 6 personal jurisdiction; his claims against the remaining Defendants for violations of 7 aviation law, hostile work environment, and violations of the JCBA are dismissed for 8 lack of subject matter jurisdiction; and his claims against the remaining Defendants for 9 defamation and violation of § 1983 are dismissed for failure to state a claim. “A district 10 court should not dismiss a pro se complaint without leave to amend unless it is absolutely 11 clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. 12 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (internal quotation marks omitted). Here, it is 13 absolutely clear that Plaintiff cannot cure his claims based on aviation law (because the 14 FAA does not give a private right of action) or the JCBA (because the RLA preempts 15 claims for violations of the agreement), so they will be dismissed without leave to amend. 16 As to the other claims, however, Plaintiff will be given the opportunity to file an 17 amended complaint that cures the deficiencies state in this Order. Accordingly, IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. 16) is granted as 18 19 CONCLUSION follows: 1. Plaintiff’s claims against Defendant Long are dismissed without prejudice for 20 lack of personal jurisdiction; 21 22 2. Plaintiffs’ claims for violations of aviation law and the JCBA are dismissed 23 without prejudice and without leave to amend for lack of subject matter 24 jurisdiction; and 3. Plaintiff’s hostile work environment, defamation, and § 1983 claims are 25 dismissed with leave to amend. 26 27 /// 28 /// 12 1 IT IS FURTHER ORDERED that Plaintiff shall have until October 10, 2022 to 2 file an Amended Complaint. If Plaintiff does not file an Amended Complaint by October 3 10, 2022, the Clerk of Court must terminate this action. 4 Dated this 9th day of September, 2022. 5 6 Honorable Steven P. Logan United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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