RAY v. AMERICAN AIRLINES INC (2024)

Proceedings: (IN CHAMBERS) ORDER GRANTING IN PART DEFENDANT'S MOTION TO DISMISS PLAINTIF'S FEDERAL CLAIM [ECF 20] AND SUA SPONTE DISMISSING PLAINTIFF'S STATE LAW CLAIMS

I.

In January 2023, plaintiff DeSean Ray was a passenger on an American Airlines flight from Los Angeles, California to Austin, Texas. According to his first amended complaint (FAC), plaintiff was confronted by a flight attendant after takeoff who mistook him for recording inside the cabin with a personal camera and demanded that he delete the recording under airline policy. While he denied recording anything inside the plane, plaintiff challenged the deletion policy, angering the flight attendant who notified the pilot. The next thing plaintiff knew, the plane began to descend and landed in Phoenix, Arizona, where he was forced to deplane as a danger to others and refused rebooking on another American Airlines flight. Plaintiff, who is African American, alleges that he was removed from the flight because of his race and now sues American Airlines (including the flight attendant as “Doe 1” among other unnamed Doe defendants) for racial discrimination under both federal and state law. Defendant American Airlines moves to dismiss those claims—including plaintiff's sole federal claim under 42 U.S.C. § 1981—for failure to state a claim on which relief may be granted. For the reasons below, defendant's motion is granted in part as to plaintiff's § 1981 claim, while his state law claims are dismissed without prejudice in the absence of a federal claim conferring original jurisdiction. Plaintiff is granted leave, however, to file a second amended complaint.

II.

The facts that follow are taken as true from the well-pled allegations in the FAC. Plaintiff is an African American man who was a passenger onboard American Airlines flight 1086 from Los Angeles to Austin on January 18, 2023. (ECF 19 at 4). He was traveling to Austin to attend his father's funeral. (Id.). After the flight had taken off and was in the air, plaintiff used his “personal camera” to record video of the clouds outside.¹ (Id.). He then began to test the zoom feature with the camera pointed at the front of his seat and focused on nothing specifically. (Id.). Noticing his camera use, a flight attendant (described as South Asian) told plaintiff that it was “illegal” to record anything inside the plane and instructed him to delete such recordings under American Airlines policy. (Id. at 2–4). But plaintiff questioned whether such a rule existed and denied filming inside the cabin anyway. (Id. at 4–5). He did not raise his voice, curse, or move from his seat. (Id. at 6). Still, the flight attendant became visibly angry and left to notify the pilot. (Id. at 4–5). Shortly after, with no announcement or warning, the plane began to descend. (Id. at 5). That sudden change caused plaintiff to deduce that the flight attendant must have told the pilot to make an emergency landing. (Id.). The plane indeed soon landed at the Phoenix airport, where plaintiff was forced to deplane with no explanation. (Id.). Armed security personnel then surrounded plaintiff and told him that the pilot had grounded the plane to have him removed as a danger to others. (Id.). When plaintiff tried to explain that he had done nothing wrong, no one listened. (Id.). He was denied credit for the rest of his booked flight and barred from taking another American Airlines flight. (Id.). So to reach Austin for his father's funeral, plaintiff had to buy another ticket and travel on a different airline. (Id. at 6).

As a result of these events, plaintiff alleges one federal claim and four state law claims in his FAC: (1) denial of the equal right to contract based on race in violation of 42 U.S.C. § 1981; (2) denial of the right to equal business services and accommodations because of race in violation of the Unruh Civil Rights Act, Cal. Civ. Code § 51; (3) negligence in the hiring, training, and supervision of airline employees; (4) direct negligence in the provision of safe flight services; and (5) intentional infliction of severe emotional distress (IIED). (ECF 19 at 7–12). For its part, American Airlines moves to dismiss the FAC in its entirety under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief may be granted. (ECF 20).

III.

Under the federal rules of civil procedure, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (cleaned up). That means the complaint must allege “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To survive a motion to dismiss, then, “the non-conclusory factual content” of the complaint and “reasonable inferences from that content” must be “plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (cleaned up). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In drawing such inference, the court must “take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party.” Steinle v. City & Cnty. of San Francisco, 919 F.3d 1154, 1160 (9th Cir. 2019). Still, the court cannot make “unreasonable inferences” or “unwarranted deductions of fact.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), as amended, 275 F.3d 1187 (9th Cir. 2001). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555–57, 127 S.Ct. 1955. So while the “plausibility standard is not akin to a probability requirement,” it still “asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (cleaned up).

By these familiar pleading standards, the FAC fails to state a plausible—rather than merely possible—claim for intentional race discrimination under 42 U.S.C. § 1981, the only federal-law basis on which plaintiff seeks relief in federal court. Section 1981 prohibits racial discrimination between private actors in “the making, performance, modification, and termination of contracts” to include “the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). To state a § 1981 claim against a private defendant like American Airlines, plaintiff must allege that (1) he is a member of a racial group, (2) some contractual right with defendant was impaired, (3) defendant intentionally discriminated against him based on race, and (4) his race was a but-for cause of the contractual impairment. See Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 589 U.S. 327, 341, 140 S.Ct. 1009, 206 L.Ed.2d 356 (2020); Gen. Bldg. Contractors Ass'n, Inc. v. Pa., 458 U.S. 375, 391, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982); accord Peterson v. State of California Dep't of Corr. & Rehab., 451 F. Supp. 2d 1092, 1101 (E.D. Cal. 2006).² No one disputes plaintiff's race or that illegitimate removal from a booked flight impairs a passenger's contractual rights to fly on a common carrier. Thus, only the third and fourth elements of a § 1981 claim are at issue in defendant's motion. (ECF 20 at 15–18). For either those elements, the court agrees with defendant that plaintiff has failed to allege enough nonspeculative and nonconclusory facts in the FAC to raise a plausible entitlement to relief under § 1981.³

First, plaintiff has alleged no facts plausibly suggesting that American Airlines intentionally discriminated against him because of his race. See Lowe v. City of Monrovia, 775 F.2d 998, 1010 n.10 (9th Cir. 1985), as amended by 784 F.2d 1407 (9th Cir. 1986); Astre v. McQuaid, 804 F. App'x 665, 666 (9th Cir. 2020) (citing Gen. Bldg. Contractors Ass'n, 458 U.S. at 391, 102 S.Ct. 3141). As applied here, that element turns on whether plaintiff has alleged enough facts plausibly suggesting that his contentious interaction with the flight attendant (which precipitated the grounding of his flight and removal from the plane) was motivated by racial animus.⁴ See Evans v. McKay, 869 F.2d 1341, 1345 (9th Cir. 1989); Gay v. Waiters’ & Dairy Lunchmen's Union, 694 F.2d 531, 538 (9th Cir. 1982). But even accepting plaintiff's allegations that he had violated no airline policy or law and remained calm and polite during his interaction with the flight attendant, these facts suggest no more than the “sheer possibility” that the flight attendant escalated that interaction on account of his race. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Besides the undisputed fact that plaintiff is African American (and the immaterial fact that the flight attendant was evidently South Asian), there is no other allegation concerning race—much less suggestive of racial animus—anywhere else in the FAC. Nothing, for instance, is alleged about the flight attendant referencing plaintiff's race, making racially charged comments, or treating other non-African American passengers differently when they used cameras in similar ways as plaintiff. Compare, e.g., Reg. v. United Airlines, Inc., 2017 WL 784288, at *4 (S.D. Cal. Mar. 1, 2017) (allegations about disagreement with flight crew member devoid of references to plaintiff's race held insufficient to support reasonable inference of racial animus), with, e.g., Keum v. Virgin Am. Inc., 781 F. Supp. 2d 944, 954 (N.D. Cal. 2011) (allegations including that plaintiff “was denied services, prevented from using facilities to which Caucasian passengers were permitted, and treated differently than Caucasian passengers” held sufficient to survive pleading stage), and Harrison v. Whole Foods Mkt., 854 F. App'x 124, 124 (9th Cir. 2021) (allegations that “[plaintiff] was denied the opportunity to contract because she is African American, in contrast to similarly situated white customers” held sufficient to state claim for racial discrimination).

Contrary to plaintiff's contentions (ECF 19 at 4–5; ECF 21 at 10–11, 13), racial animus cannot reasonably be inferred just because of the flight attendant's purportedly unjustified and outsized reaction to his camera use—allegedly leading, in turn, to the wildly disproportionate response of an emergency landing midflight. Even if true and construed in plaintiff's favor, such allegations “are merely consistent with a defendant's liability” and fall “short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (cleaned up). To plausibly plead intentional racial discrimination, “plaintiff cannot merely invoke his race in the course of a claim's narrative and automatically be entitled to pursue relief”—he must instead “allege some facts that demonstrate that race was the reason for defendant's actions.” Williams v. Tobener, 2016 WL 5235039, at *2 (N.D. Cal. Sept. 22, 2016) (quoting Mesumbe v. Howard Univ., 706 F. Supp. 2d 86, 92 (D.D.C. 2010)). The mere intersection of plaintiff's race and his alleged mistreatment by a defendant, in other words, is not enough to “nudge[ ]” plaintiff's claim of racial discrimination “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955; see, e.g., Berry v. Chevron USA, Inc., 84 F. App'x. 863, 865 (9th Cir. 2003) (allegation that employer made “condescending statements” toward plaintiff held insufficient to support “inference of [racial] discrimination”); Mercer v. Sw. Airlines Co., 2014 WL 4681788, at *7 (N.D. Cal. Sept. 19, 2014) (“[A]lthough Plaintiff has alleged that he was treated unfairly by [Defendant's] flight crew, he does not allege any facts that link the mistreatment to intentional racial discrimination.”). After all, “[i]t is also just as possible that the [flight attendant] was condescending and hostile toward everyone without regard to their race or any other personal characteristics.” Anderson v. Yolo Cnty., 2017 WL 590246, at *4 (E.D. Cal. Feb. 14, 2017).

Otherwise put, while the court cannot (and need not at this stage) rule out the possibility of the flight attendant's racial animus toward plaintiff, the FAC's intrinsic allegations cannot exclude the alternative possibility that plaintiff was just badly mistreated by an ill-informed and over-zealous flight attendant. And “when faced with two possible explanations, only one of which can be true and only one of which results in liability, plaintiff[ ] cannot offer allegations that are merely consistent with [his] favored explanation but are also consistent with the alternative explanation.” Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014) (quoting In re Century Aluminum Co. Secs. Litig., 729 F.3d 1104, 1108 (9th Cir. 2013)). “Something more is needed, such as facts tending to exclude the possibility that the alternative explanation is true ․ to render plaintiff[’s] allegations plausible.” Id. at 996–97. Yet there are no such facts alleged here. Even when construed with all nonspeculative inferences in his favor, the FAC's allegations (if true) cannot foreclose the genuine possibility that plaintiff just had the misfortune of encountering not a racist flight attendant but an irrational one who both mistook what he was doing with his camera and also misunderstood American Airlines policy.⁵ As a result, because the court “is faced with a choice between an ‘obvious alternative explanation ․ and the purposeful, invidious discrimination [plaintiff] asks [it] to infer, discrimination is not a plausible conclusion.’ ” Daulatzai v. Maryland, 606 F. Supp. 3d 252, 273 (D. Md. 2022), aff'd, 97 F.4th 166 (4th Cir. 2024) (quoting Iqbal, 556 U.S. at 682, 129 S.Ct. 1937); see Gonzalez v. Planned Parenthood of Los Angeles, 759 F.3d 1112, 1116 (9th Cir. 2014) (affirming dismissal where plaintiff's allegation was “merely possible rather than plausible” in face of obvious alternative explanation) (quoting Century Aluminum, 729 F.3d at 1108).

Second, plaintiff has alleged no facts plausibly suggesting that his race was a “but for” cause of American Airline's decision to ground his flight and force his removal from the plane. Comcast Corp., 589 U.S. at 341, 140 S.Ct. 1009. Even if plaintiff could allege enough facts suggesting that the flight attendant intentionally singled him out for his camera use based on his race, he still has alleged no facts from which the court can permissibly infer that the pilot therefore grounded the flight midair because of plaintiff's race. An airline may “refuse to transport a passenger” who “the carrier decides is, or might be, inimical to safety.” 49 U.S.C. § 44902(b) (emphasis added). To that end, airline pilots have exclusive authority to remove passengers for genuine or possible safety reasons. See 14 C.F.R. § 91.3(a). According to the allegations in the FAC, however, the only conceivable connection between plaintiff's encounter with the flight attendant and the pilot's ultimate decision to ground the plane is that the flight attendant notified the pilot of their fraught interaction, after which the pilot landed the plane. (ECF 19 at 5). But that is inadequate factual content to show that the pilot would not have grounded the plane and ordered plaintiff's removal but for his race. See, e.g., Daulatzai, 606 F. Supp. 3d at 271, 271 n.13 (dismissing § 1981 claim for failing to plausibly allege “that the but-for cause of [pilot's] conclusion was racial animus” given the lack of any allegation “that the Captain acknowledged or even considered her race at any time before she was removed from the flight” or that the flight crews’ alleged racism was “communicated to or adopted by the Captain”); cf. Cerqueira v. Am. Airlines, Inc., 520 F.3d 1, 15 (1st Cir. 2008) (“The biases of a non-decisionmaker may not be attributed to the decisionmakers.”). That is not to deny (at the pleading stage anyway) that the flight attendant presumably cast plaintiff's behavior in the worst possible light; perhaps the flight attendant even lied about the danger that plaintiff presented onboard, as plaintiff implies. None of those facts even if true, though, permits the inferential leap that the pilot removed plaintiff in the exercise of his exclusive authority to do so because of plaintiff's race rather than because of a perceived threat to flight or passenger safety—even if that threat were contrived and conveyed under false pretenses by the flight attendant.⁶

If anything, the FAC “itself undermines [plaintiff's] theory of the case and renders it implausible.” Orellana v. Mayorkas, 6 F.4th 1034, 1043 (9th Cir. 2021). When “non-discriminatory reasons” for a challenged decision are evident on the face of a complaint, such reasons can “render the allegation that race was the but-for cause” of that decision “implausible.” Takieh, 2022 WL 474170, at *2 (citing Orellana, 6 F.4th at 1043). Here, plaintiff doesn't deny that he ultimately refused to follow the flight attendant's instruction to delete whatever recording he had made with his phone. Instead, he is careful to allege that he only questioned the deletion policy even as he denied recording anything inside the cabin of the plane; he never admits that he followed the attendant's instructions. (ECF 19 at 4; ECF 23-2 at 3–4). But “failure to obey crew instructions” during a flight can be considered “a potential safety risk” sufficient to justify removal of the disobedient passenger. Shaffy v. United Airlines, Inc., 360 F. App'x 729, 730 (9th Cir. 2009). Thus, even if recording inside the cabin were not “illegal” as the flight attendant allegedly asserted, the fact remains—according to his own allegations—that plaintiff refused to comply with the attendant's instruction (since he believed it to be misguided and mistaken). Combined with the absence of any facts about the pilot's independent decision-making for the grounding of the flight itself, plaintiff's tacit admission that he refused to comply with an airline crewmember's instructions thus undermines any inference that plaintiff's race rather than his disobedience (no matter how righteous) was a but-for cause of his removal from the plane.⁷ See Comcast Corp., 589 U.S. at 331, 140 S.Ct. 1009 (rejecting Ninth Circuit's prior view that “§ 1981 plaintiff ․ must only plead facts plausibly showing that race played ‘some role’ in the defendant's decisionmaking process”).

IV.

For all these reasons, defendant American Airlines’ motion to dismiss the FAC is granted in part because plaintiff's claim under 42 U.S.C. § 1981—the sole basis for the court's exercise of subject matter jurisdiction—fails to state a federal claim on which relief may be granted. See Fed. R. Civ. P. 12(b)(6). Otherwise, there is no need to reach the merits of defendant's motion to dismiss plaintiff's state law claims because if there is no actionable federal claim conferring original jurisdiction, there is no good reason at this early pleading stage (especially with no scheduling order in place) to exercise discretionary supplemental jurisdiction over pendent state law claims.⁸ See 28 U.S.C. § 1367(c)(3). In any event, because it is not (yet) clear that further amendment of plaintiff's § 1981 claim would be futile, see Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000), leave is granted for plaintiff to file a second amended complaint (which may include actionable state law claims). See, e.g., Mirkooshesh v. Elie, 2023 WL 2652240, at *5 (N.D. Cal. Mar. 26, 2023).

If plaintiff decides to file a second amended complaint, he must do so no later than 28 days from this order, after which defendant's answer or other responsive pleading must be filed no later than 21 days of service of that amended complaint. Before filing an amended complaint, however, plaintiff must disclose the proposed amended complaint to defendant within 14 days of this order so that the parties can meet and confer about the factual or legal adequacy of the proposed complaint before its filing and any further motion practice. See L.R. 7-3; see also LA Pinnacle Ins. Agency Inc. v. Gou, 2023 WL 11557477, at *1 (C.D. Cal. Feb. 14, 2023). On the other hand, if plaintiff decides not to file an amended complaint for any reason, he must so notify the court within 14 days of this order so that judgment can promptly be entered dismissing this action without prejudice according to the terms of this order. The parties may agree, however, to extend or alter these deadlines for a reasonable period (in which case they must file a stipulation and proposed order to that end no later than 14 days from this order). With or without such stipulated order, if plaintiff files no timely notice or second amended complaint as ordered here, this action may be involuntarily dismissed—with or without prejudice—for lack of prosecution and failure to obey court orders. See Fed. R. Civ. P. 41(b); L.R. 41-1.

IT IS SO ORDERED.

FOOTNOTES

1.   The FAC does not specify if this “personal camera” was a smartphone with a built-in camera or a standalone digital camera of some kind.

2.   While both sides frame the elements of a § 1981 claim in slightly different terms using the McDonnell Douglas burden-shifting framework (ECF 20 at 16; ECF 21 at 9–10), that framework does not strictly apply when evaluating motions to dismiss § 1981 claims. See Maduka v. Sunrise Hosp., 375 F.3d 909, 912–13 (9th Cir. 2004). The McDonnell Douglas framework “is an evidentiary standard, not a pleading requirement.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Thus, if it applies to § 1981 claims at all, it would be during summary judgment when evaluating indirect evidence of alleged racial discrimination. See Comcast Corp., 589 U.S. at 340–41, 140 S.Ct. 1009.

3.   While often expressed together seemingly as a single element, intent and causation remain distinct elements needed to successfully state a § 1981 claim. To be sure, the same facts can (and often do) show both elements in some cases, so it may be unnecessary to parse them if causation cannot be denied once racial intent is plausibly alleged. See, e.g., Hameen v. Dollar Tree Stores Inc., 2022 WL 17416768, at *4 (D. Ariz. Dec. 5, 2022) (allegations held sufficient to “allow for a reasonable inference that [plaintiff] was treated differently than a similarly situated customer on account of his race” and that “race was a but-for cause of the denial of his right to contract”). But while racial animus is necessary to prove a § 1981 claim, it is not always sufficient by itself to prove that race was a “but for” cause of a contract-related injury. See Imagineering, Inc. v. Kiewit Pac. Co., 976 F.2d 1303, 1313 (9th Cir. 1992) (“The fact that [private defendant] may have acted wrongfully in order to gain [a] contract, even if it was racially motivated, does not provide a basis for section 1981 liability.”); Yoshikawa v. Seguirant, 41 F.4th 1109, 1117 (9th Cir. 2022) (whether selective enforcement of regulation against plaintiffs was motivated by race is different from whether defendants “would not have enforced it but for their race”), vacated on other grounds by 74 F.4th 1042 (9th Cir. 2023) (en banc); accord, e.g., Takieh v. Banner Health, 2022 WL 474170, at *2 (9th Cir. Feb. 16, 2022) (factual “allegations regarding disparate treatment ․ as compared to non-Arab physicians” held insufficient for still “fail[ing] to establish that race was a but-for cause of the revocation of” contract) (citing Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641–42 (9th Cir. 2004)). So in cases like this one where discriminatory intent and but-for causation are not inextricably entwined such that evidence of intent will necessarily establish the causal link between race and the claimed injury, the two elements must be analyzed separately rather than analytically conflated.

4.   If plaintiff has failed to allege facts plausibly suggestive of racial animus by the flight attendant, he has necessarily failed doubly so with respect to the American Airlines pilot for there is nothing in the FAC to suggest that the pilot was ever informed of plaintiff's race, saw plaintiff, or directly interacted with him in any way before the flight was grounded. Compare, e.g., Adams v. U.S. Airways Grp., Inc., 978 F. Supp. 2d 485, 500 (E.D. Pa. 2013) (“Captain's alleged decision to remove all African-American passengers from the flight and his hostile parting comments, all on the heels of an overtly racial argument, give rise to an inference that the captain intentionally discriminated against Plaintiffs when he removed them from the plane.”).

5.   American Airlines policy prohibits recording of airline personnel, equipment, or procedures, but agents apparently cannot require that passengers delete photos or videos from even prohibited recordings. (ECF 22-2 at 25–26).

6.   On the other hand, because his allegations must be construed in the light most favorable to plaintiff, it cannot be decided—at the pleading stage—that his § 1981 claim is barred by 49 U.S.C. § 44902(b) as a matter of law just because American Airlines claims it grounded the plane because of safety concerns. As defendant had to concede at oral argument, § 44902(b) cannot defeat plaintiff's § 1981 claim if he plausibly alleges (and can eventually prove) that racial discrimination was the cause of his removal from the plane, since such action (if proven) would necessarily be “arbitrary or capricious” even by the terms of § 44902(b). Cordero v. Cia Mexicana De Aviacion, S.A., 681 F. 2d 669, 671 n.2 (9th Cir. 1982). Section 44902(b) thus “does not provide immunity for a § 1981 claim if a passenger's protected status is the but-for cause of the airline's decision to remove that passenger.” Abdallah v. Mesa Air Grp., Inc., 83 F.4th 1006, 1017 (5th Cir. 2023).

7.   Besides, even under the most generous interpretation of plaintiff's complaint as currently alleged, the court would have to suspend all “judicial experience and common sense,” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937, to infer that the pilot risked liability not only to plaintiff but to all other passengers on the flight who had to have been equally inconvenienced (if not just as seriously distressed and displeased as plaintiff) by the midair grounding and delay of their flight in another city just to remove a passenger for no reason other than his race.

8.   It would make no difference anyway to entertain those state law claims now if (as indicated by plaintiff's counsel at oral argument) they presuppose racial discrimination as their sole factual basis. Like § 1981 claims, Unruh Act claims must allege facts sufficient to raise “a plausible inference of discriminatory intent.” Duronslet v. Cnty. of Los Angeles, 266 F. Supp. 3d 1213, 1217 (C.D. Cal. 2017). Similarly, if plaintiff cannot plausibly allege that race was the but-for cause of his claimed injuries under § 1981, he likewise could not meet the causation requirement inherent to common law claims for both negligence and intentional torts. See Brown v. Ransweiler, 171 Cal. App. 4th 516, 534, 89 Cal.Rptr.3d 801 (2009) (negligence claims require proof of actual and proximate causation); Hughes v. Pair, 46 Cal. 4th 1035, 1050, 95 Cal.Rptr.3d 636, 209 P.3d 963 (2009) (same for IIED claims). And even if he could allege and prove intentional discrimination, “[d]iscriminatory conduct alone is not per se extreme and outrageous” enough to support an IIED claim. James v. U.S. Bancorp, 2019 WL 3058971, at *5 (C.D. Cal. Jan. 11, 2019). At the same time, if plaintiff intends to allege state law claims based on alleged common carrier misconduct unrelated to race, such claims may be preempted (in whole or in part) by the Federal Aviation Act and its derivative federal regulations. See generally Ventress v. Japan Airlines, 747 F.3d 716, 719 (9th Cir. 2014); Gilstrap v. United Air Lines, Inc., 709 F.3d 995, 1006 (9th Cir. 2013); Montalvo v. Spirit Airlines, 508 F.3d 464, 468-73 (9th Cir. 2007); see, e.g., Ahmadi v. United Cont'l Holdings, Inc., 2015 WL 4730116, at *7 (E.D. Cal. Aug. 10, 2015) (describing federal regulations that govern “training, certification, and supervision of flight attendants”).

Steve Kim, United States Magistrate Judge