LCBF represented a national transportation company and its employee in a lawsuit resulting from the removal of a passenger for refusing to take her assigned seat. The plaintiff alleged that she refused to sit in her assigned seat because it was next to a bathroom that was not properly ventilated. When plaintiff refused to sit in her assigned seat, plaintiff claimed that the bus driver publicly humiliated her, and due to an alleged previous incident, the driver retaliated against her by not allowing her to sit elsewhere. The complaint was originally filed in state court and removed by LCBF to the Federal District Court for the District Court of New Jersey via federal diversity jurisdiction.
In a pre-discovery motion to dismiss, LCBF argued that for plaintiff to sustain her federal constitutional claims they must allege conduct by a state actor and a private transportation company does not meet the state actor definition. As for plaintiff’s public accommodation claim under the New Jersey Law Against Discrimination (“NJLAD”), LCBF argued the claim required discrimination on the basis of a protected class, which plaintiff did not plausibly allege, having not plead discrimination based on any protected characteristics.
As for plaintiff’s IIED claims, LCBF argued that plaintiff could not allege that being asked to sit in her assigned seat is “atrocious conduct utterly intolerable in a civilized community” as required for an IIED claim. The motion also contended that plaintiff’s claim alleging breach of the covenant of good faith and fair dealing could not survive because plaintiff was required to uphold her end of the contract and sit in her assigned seat. Finally, LCBF argued that plaintiff’s claim under 49 C.F.R. § 374.313(b) arising from the purported condition of the bathroom must be dismissed because the regulation does not provide for a private right of action.
The District Court agreed with LCBFs positions and dismissed all five counts of plaintiff’s amended complaint with prejudice. The LCBF team was headed by Alex Marcus and Taylor Perez. You can read more about this decision here.