United's Motion to Dismiss Sex Toy Gag on Gay Couple Doesn't Survive 5th Circuit Scrutiny

In 2012, a Virginia gay couple accused United Airlines and Continental (collectively United) of negligence, invading their privacy, and intentionally inflicting emotional distress when an airline worker allegedly went into their luggage, removed a private sex toy, covered it with a foul smelling substance, taped it to the top of their luggage, and sent the luggage to the baggage claim carousel to embarrass them and to prompt waiting travelers to laugh at and ridicule the couple.  United removed the case from state court to the district court in the Southern District of Houston.  They then promptly filed a 12(b)(6) motion to dismiss, asserting that the claims cannot survive because they are preempted by Article 17 of the Montreal Convention (for a nice article explaining the Article and exploring legal cases involving it, click here).  In a decision dated November 29, 2012, the district court granted the motion and dismissed the case.  

Not discouraged by this setback, the couple and their capable attorney Dax Faubus appealed the case.  Fast forward a year.  On November 4, 2013 the 5th Circuit reversed and remanded the case, holding that the claims are not preempted by the Montreal Convention.  Specifically, the Court noted that the Article deals with passengers embarking and disembarking an aircraft.  In this case, the events that took place are related to embarking and disembarking only tenuously at best.  Indeed, the injury took place away from the aircraft and at the baggage claim area.  The Court further stated that the claim by United - that the action is preempted because it dealt with baggage - is not persuasive given the fact that the couple alleged no claim for the possible damage or loss to the baggage itself, only claiming personal injuries based upon what was done to the baggage.  Thus, sections 17(1) and (2) do not preempt the state law claims.  

What struck me as interesting is that there appears to be little to no attention paid to another possible issue with the preemption argument.  The facts of the case state that the couple was flying from Costa Rica to Norfolk VA.  However, during their layover in Houston TX they actually switched planes and "re-checked" their baggage.  Because they re-checked the baggage in the U.S. and made a U.S.-only flight from Houston to Virginia, arguably the 'international flight-focused' Montreal Convention might not have been applicable.  

I also find it curious that United seems to have decided against substantial pre-litigation settlement talks and instead opted for the deny and defend strategy.  Regardless of the legal merits, this seems like a potential PR nightmare for one of the world's largest airlines that possibly could have been avoided had the airline offered something more than the "goodwill gesture" the spokesperson(s) for the company states was extended.  Of note, the company continues to stick to its strategic focus by recently stating that "there is no support for this allegation" and that they will "vigorously defend themselves and their employees."  

Hat tip to Texas Lawyer.