Chiao et al v. United Airlines, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JACQUELYN CHIAO, et al.
Plaintiffs,
v.
UNITED AIRLINES, INC.,
Defendant.
Civil Action No. ELH-25-687
MEMORANDUM OPINION
In this race discrimination and tort case, plaintiffs Jacquelyn Chiao, Christine Kim, Adriana
Parvanova, and Danielle Simmons filed suit against United Airlines, Inc. (“United”), asserting
claims under federal and Maryland law.1 ECF 25 (“Amended Complaint”).2 At the relevant time,
plaintiffs were co-workers who were traveling together in connection with work. They allege that
United barred Kim, an “Asian woman,” from reboarding the airplane after falsely claiming that
Kim “had pushed a flight attendant.” Id. ¶ 5. Thereafter, all of the plaintiffs were barred from
reboarding the airplane and “were escorted out of the airport by armed police officers at the behest
of United personnel.” Id. ¶ 10.
The Amended Complaint contains four causes of action, which I shall sometimes refer to
as counts. The “First Cause Of Action,” brought only by Kim, asserts racial discrimination, in
violation of 42 U.S.C. § 1981. Id. ¶¶ 61–65. The remaining counts are lodged by all the plaintiffs.
The “Second Cause Of Action” asserts intentional infliction of emotional distress (“IIED”). Id. ¶¶
1 The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C.
§ 1343. Subject matter jurisdiction is also founded on diversity, under 28 U.S.C. § 1332. As to
the State law claims, the Court has supplemental jurisdiction under 28 U.S.C. § 1367(a).
2 Plaintiffs initially filed suit on March 5, 2025. ECF 6. The First Amended Complaint
followed on June 12, 2025. ECF 25.
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66–74. The “Third Cause Of Action” is titled “Negligence/Breach Of Duty”. Id. ¶¶ 75–82. And,
the “Fourth Cause Of Action” asserts “Defamation/Slander/Libel[.]” Id. ¶¶ 83–89. Plaintiffs have
since withdrawn the claim for IIED. ECF 39 at 1.
Defendant has filed a “Partial Motion To Dismiss” the Amended Complaint, pursuant to
Fed. R. Civ. P. 12(b)(6). ECF 36. It is supported by a memorandum (ECF 36-1) (collectively, the
“Motion”) and two exhibits. In particular, United urges the Court to dismiss the negligence claim
on the ground that it is preempted by the Airline Deregulation Act of 1978 (“ADA”), 49 U.S.C.
§ 40101 et seq. ECF 36-1 at 7. Additionally, United seeks dismissal on the ground that “Plaintiffs
have not alleged a physical injury that is required to recover emotional distress damages under a
negligence theory.” Id. at 8.
Plaintiffs oppose the Motion. ECF 39 (the “Opposition”). United replied. ECF 40.
No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that
follow, I shall grant the Motion, with leave to amend.
I. Factual Background3
Plaintiffs are co-workers who reside and work in Virginia. ECF 25, ¶¶ 18–21, 23. Chiao
and Kim are Asian, id. ¶¶ 18, 19, and Parvanova and Simmons are Caucasian. Id. ¶¶ 20, 21. In
August 2024, they traveled to a work-related real estate convention in Las Vegas, and were joined
by their colleague, John Doe. Id. ¶¶ 24, 26.
The group left Las Vegas on August 29, 2024. Id. ¶ 28. On that date, they boarded United
Flight 1627, heading to Washington Dulles International Airport (“IAD”). Id. But, “after arriving”
at IAD, the flight was “diverted” because of “bad weather.” Id. The plane circled “for 45 minutes
3 As discussed, infra, at this juncture I must assume the truth of the facts alleged in the suit.
Retfalvi v. United States, 930 F.3d 600, 605 (4th Cir. 2019). Therefore, the factual summary
derives from plaintiffs’ Amended Complaint. ECF 25.
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to an hour” and was then “re-routed to” Baltimore/Washington International Thurgood Marshall
Airport (“BWI”), where it landed at 5:30 PM. Id. ¶¶ 29, 30. However, the passengers “were
required to remain on” the plane “for five hours before being allowed to disembark the aircraft[.]”
Id.; see id. ¶¶ 40, 41. Plaintiffs assert that the duration of time was “in violation of Federal Aviation
Regulations”, citing 14 C.F.R. 259. Id.
On the plane, Doe was seated in row 8, next to Simmons. Id. ¶ 31. Kim was in seat 15 F.
Id. ¶ 43. During the fourth hour of “this five hour wait” on the tarmac, Doe “began sweating
profusely and experiencing chest pain[.]” Id. ¶ 31. Simmons “witnessed” the “difficulties” that
Doe was experiencing. Id. Chiao, Parvanova, and an unidentified male passenger were standing
in the aisle of the aircraft, near Simmons, and also witnessed Doe’s condition. Id. ¶ 32.
Doe “press[ed] the call button for a flight attendant.” Id. ¶ 31. According to plaintiffs,
when the flight attendant arrived, she “rudely asked” Doe “if he was having a heart attack.” Id.
¶ 33. Doe “indicated that he had no idea if he was having a heart attack.” Id. The flight attendant
“left and came back with a phone[.]” Id. ¶ 34. Plaintiffs claim that the flight attendant “belatedly
offered [Doe] an oxygen mask.” Id. But, Doe “declined to wear the mask” because he “was
concerned about its cleanliness due to prior use and reuse[.]” Id.
The flight attendant “continued to question” Doe “about his condition, minimizing the
potential seriousness of his condition by stating, ‘Oh, okay. So, you’re just having a panic attack.’”
Id. ¶ 35. The plaintiffs claim this was a “determination” the flight attendant “was patently
unqualified to make.” Id.
Chiao, who was “present” during the questioning, “asked the flight attendant why she was
being so rude and to show a little compassion to a passenger who was clearly in distress.” Id. ¶ 36.
According to plaintiffs, “the flight attendant smirked, gave a snarky response, witnessed by more
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than one of the passengers, and abruptly walked away.” Id. ¶ 37. Throughout this conversation,
the flight attendant did not “make an announcement to attempt to ascertain the presence of medical
professionals on board the aircraft who could assess Mr. Doe.” Id. ¶ 39. Parvanova and an
unidentified male passenger were standing between Chiao and the flight attendant during this
interaction. Id. ¶ 38.
More than five hours after the plane had landed at BWI, and an hour after Doe called for
help, “all of the passengers were allowed to deboard the plane onto the tarmac.” Id. ¶ 40. Until
then, the passengers had not been “offered the opportunity to deplane[.]” Id. ¶¶ 41, 42.
The process of reboarding the plane began after plaintiffs waited an additional hour
“outside an airline gate.” Id. ¶ 44. Chiao and Doe were in Group 2, and “were the first among
those involved in the incident to board the plane.” Id. ¶ 45. Kim, Simmons, and Parvanova were
in Groups 3–5. Id. ¶ 46. As Kim attempted to reboard the plane, “she was pulled aside by the gate
agent and informed that the captain decided not to allow her back on the flight.” Id. ¶ 47. Kim
asked the basis of the decision and was told that “there was no other reason other than the captain
was the deciding factor and she was not allowed back on the plane.” Id. ¶ 48.
Kim informed the other plaintiffs that she was not permitted to reboard the plane. Id. ¶ 49.
Simmons and Parvanova asked “the agents why they were refusing to allow” Kim to board the
plane. Id. ¶ 50. Kim was reduced to “tears as a result of the maltreatment from the United
employees[.]” Id. ¶ 51. When Simmons and Parvanova saw that Kim was in distress, they
“stepped out of line to support her while they attempted to gain clarification as to why she was
being treated differently.” Id. Simmons also called Chiao, “who had already boarded” the aircraft,
and told Chiao “what had occurred.” Id. ¶ 52. Chiao, “the only Asian plaintiff who had an
interaction with the flight attendant, disembarked the plane, as did the pilot.” Id. ¶ 53.
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In response to questions as to why Kim had been “denied access to the aircraft”, the pilot
“informed” the plaintiffs “that a flight attendant reported that she had been physically assaulted by
a female Asian passenger.” Id. ¶ 54. However, neither Kim nor Chiao, both of whom are Asian,
“made any physical contact with any of the airline employees[.]” Id. ¶ 55. Plaintiffs assert that
this fact “can be attested to by the other Plaintiffs as well as the passengers on the aircraft.” Id.
Then, all four plaintiffs “were wrongfully denied boarding to the aircraft and were
separated from their luggage, which remained on the aircraft as it travelled to IAD.” Id. ¶ 56. And,
at the request of United employees, “all of the Plaintiffs were escorted out of the airport by armed
police officers[.]” Id. ¶ 57.
According to plaintiffs, “[a]t no point did” they “voluntarily decide not to board the plane.”
Id. ¶ 58. Plaintiffs posit that “Kim was denied” permission to reboard “because of her race while
Plaintiffs Chiao, Parvanova, and Simmons were denied access in retaliation for their attempts to
understand and resolve the situation.” Id.4
Plaintiffs allege that, as a result of this incident, Kim “suffered, and continues to suffer,
severe mental anguish and emotional distress[.]” Id. ¶ 64. Additionally, all the plaintiffs claim
that they “endured” “emotional and mental anguish” and “humiliation” because of United’s
conduct, including: “racial discrimination of Plaintiff Kim, falsely accusing [plaintiffs] of causing
a disturbance, denying [plaintiffs] access to their aircraft, and [the] forcible removal [of the
plaintiffs] from the airport by armed officers[.]” Id. ¶¶ 78, 88.
4 Plaintiffs claim that “a traveling United Airlines employee” witnessed the events set forth
in the Amended Complaint. ECF 25, ¶ 59. Plaintiffs have not disclosed the employee’s identity
to “protect this United employee from retaliation, workplace backlash, or other harm to
employment[.]” Id. ¶ 60. However, plaintiffs assert that they will disclose this employee’s identity
“in discovery once a protective order is entered in this case.” Id.
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II. Legal Standards
Pursuant to Rule 12(b)(6), United seeks dismissal of Count III, which alleges
“Negligence/Breach of Duty”. ECF 36 at 1; see ECF 25, ¶¶ 75–82. Plaintiffs assert that United
“had a duty to protect the plaintiffs from injury, mental, emotional, or physical, while they were
in Defendant’s care.” ECF 25, ¶ 76. And, they claim defendant breached the duty by engaging in
“racial discrimination and maltreatment . . .” Id. ¶ 77. Additionally, plaintiffs allege that United
“had a duty to transport all of the Plaintiffs to their final destination as long as the [sic] complied
with the carrier’s contract of carriage.” Id. ¶ 79. According to plaintiffs, United breached its duty
“by arbitrarily, and without cause, denying [plaintiffs] access to the aircraft as well as calling for
armed law enforcement personnel to parade the Plaintiffs out of the airport as if they were criminals
after falsely accusing them of causing a disturbance, in addition to the false allegation of assault
by Plaintiffs Chiao and Kim.” Id. ¶ 80; see also id. ¶ 78.
A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss
under Rule 12(b)(6). Nadendla v. WakeMed, 24 F.4th 299, 304–05 (4th Cir. 2022); Robertson v.
Anderson Mill Elementary Sch., 989 F.3d 282, 290 (4th Cir. 2021); Fessler v. Int'l Bus. Machs.
Corp., 959 F.3d 146, 152 (4th Cir. 2020); Paradise Wire & Cable Defined Benefit Pension Plan
v. Weil, 918 F.3d 312, 317 (4th Cir. 2019); In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017);
Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165–66 (4th Cir. 2016); McBurney v. Cuccinelli,
616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom. McBurney v. Young, 569 U.S. 221 (2013). A
Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a
plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be
granted[.]” Fed. R. Civ. P. 12(b)(6).
The “court's role under Rule 12(b)(6) is to evaluate the sufficiency of a complaint . . . .”
Doriety v. Sletten, 109 F.4th 670, 679 (4th Cir. 2024). Whether a complaint states a claim for
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relief is assessed by reference to the pleading requirements of Fed. R. Civ. P. 8(a)(2). See Migdal
v. Rowe Price-Fleming Int'l Inc., 248 F.3d 321, 325–26 (4th Cir. 2001); see also Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 513 (2002). Fed. R. Civ. P. 8(a)(2) provides that a complaint must
contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The
purpose of the rule is to provide the defendant with “fair notice” of the claims and the “grounds”
for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007); see Brown-
Hyatt v. Brenner, SAG-25-1737, 2025 WL 2855769, at *2 (D. Md. Oct. 8, 2025) (same).
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain
facts sufficient to “state a claim to relief that is plausible on its face.” Id. at 570; see Ashcroft v.
Iqbal, 556 U.S. 662, 684 (2009) (citation omitted) (“Our decision in Twombly expounded the
pleading standard for ‘all civil actions’”); Seabrook v. Driscoll, 148 F.4th 264, 269 (4th Cir. 2025);
Sysco Mach. Corp. v. DCS USA Corp., 143 F.4th 222, 228 (4th Cir. 2025); Lokhova v. Halper,
995 F.3d 134, 141 (4th Cir. 2021); Fauconier v. Clarke, 966 F.3d 265, 276 (4th Cir. 2020);
Paradise Wire & Cable Defined Benefit Pension Plan, 918 F.3d at 317–18; Willner v. Dimon, 849
F.3d 93, 112 (4th Cir. 2017). A plausible claim is more than merely conceivable or speculative.
Holloway v. Maryland, 32 F.4th 293, 299 (4th Cir. 2022). “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. “But where the well-
pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679
(quoting Fed. R. Civ. P. 8(a)(2)).
In considering a Rule 12(b)(6) motion, “a court ‘must accept as true all of the factual
allegations contained in the complaint,’ and must ‘draw all reasonable inferences [from those facts]
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in favor of the plaintiff.’” Retfalvi v. United States, 930 F.3d 600, 605 (4th Cir. 2019) (alteration
in Retfalvi) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th
Cir. 2011)); see Hebb v. City of Asheville, N. Carolina, 145 F.4th 421, 432 (4th Cir. 2025); Ray v.
Roane, 948 F.3d 222, 226 (4th Cir. 2020); Semenova v. Md. Transit Admin., 845 F.3d 564, 567
(4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015). However,
“a court is not required to accept legal conclusions drawn from the facts.” Retfalvi, 930 F.3d at 605
(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see Glassman v. Arlington Cnty., 628 F.3d
140, 146 (4th Cir. 2010). Nor does the court accept “‘legal conclusions couched as facts . . . .’”
United States ex rel. Taylor v. Boyko, 39 F.4th 177, 189 (4th Cir. 2022) (citation omitted).
“A court decides whether [the pleading] standard is met by separating the legal conclusions
from the factual allegations, assuming the truth of only the factual allegations, and then
determining whether those allegations allow the court to reasonably infer” that the plaintiff is
entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th.
Cir. 2011), cert. denied, 566 U.S. 937 (2012). But, “[m]ere recitals of a cause of action, supported
only by conclusory statements, are insufficient to survive” a Rule 12(b)(6) motion. Morrow v.
Navy Federal Credit Union, 2022 WL 2526676, at *2 (4th Cir. July 7, 2022); see Sheppard v.
Visitors of Va. State Univ., 993 F.3d 230, 234 (4th Cir. 2021).
A plaintiff need not include “detailed factual allegations” to satisfy Rule 8(a)(2). Twombly,
550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint
for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of
Shelby, Miss., 574 U.S. 10, 11 (2014) (per curiam). However, mere “‘naked assertions’ of
wrongdoing” are generally insufficient to state a claim for relief. Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009) (citation omitted).
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In other words, the rule demands more than bald accusations or mere speculation.
Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir.
2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation
of the elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. “[A]n
unadorned, the-defendant-unlawfully-harmed-me accusation” does not state a plausible claim of
relief. Iqbal, 556 U.S. at 678. Instead, to satisfy the minimal requirements of Rule 8(a)(2), the
complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of
action, “even if . . . [the] actual proof of those facts is improbable, and . . . recovery is very remote
and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks omitted).
Ordinarily, when ruling on a Rule 12(b)(6) motion, a court does not “‘resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.’” King v. Rubenstein,
825 F.3d 206, 214 (4th Cir. 2016) (citation omitted); see Megaro v. McCollum, 66 F.4th 151, 157
(4th Cir. 2023); Bing v. Brio Sys., LLC, 959 F.3d 605, 616 (4th Cir. 2020). But, “in the relatively
rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the
complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Pressley v.
Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009). Because Rule 12(b)(6)
“is intended [only] to test the legal adequacy of the complaint,” Richmond, Fredericksburg &
Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle only applies . . . if all
facts necessary to the affirmative defense ‘clearly appear[ ] on the face of the complaint.’”
Goodman, 494 F.3d at 464 (emphasis in Goodman) (quoting Forst, 4 F.3d at 250); see L.N.P. v.
Kijakazi, 64 F.4th 577, 585–86 (4th Cir. 2023).
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A plaintiff may not cure a defect in a complaint or otherwise amend a complaint by way of
opposition briefing. See, e.g., Henderson v. City of Roanoke, 2022 WL 704351, at *3 (4th Cir.
Mar. 9, 2022) (per curiam) (“[N]o litigant is exempt from the well-established rule ‘that parties
cannot amend their complaints through briefing or oral advocacy.’”) (quoting So. Walk at
Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th
Cir. 2013)); Glenn v. Wells Fargo Bank, N.A., DKC-15-3058, 2016 WL 3570274, at *3 (D. Md.
July 1, 2016) (declining to consider declaration attached to brief opposing motion to dismiss
because, among other things, it included allegations not included in the suit); Zachair Ltd. v.
Driggs, 965 F. Supp. 741, 748 n.4 (D. Md. 1997) (stating that a plaintiff “is bound by the
allegations contained in its complaint and cannot, through the use of motion briefs, amend the
complaint”), aff'd, 141 F.3d 1162 (4th Cir. 1998).
“Generally, when a defendant moves to dismiss a complaint under Rule 12(b)(6), courts
are limited to considering the sufficiency of allegations set forth in the complaint and the
‘documents attached or incorporated into the complaint.’” Zak v. Chelsea Therapeutics Int'l, Ltd.,
780 F.3d 597, 606 (4th Cir. 2015) (quoting E.I. du Pont de Nemours & Co., 637 F.3d at 448); see
Goines, 822 F.3d at 166 (citation omitted) (a court may properly consider documents that are
“explicitly incorporated into the complaint by reference . . . and those attached to the complaint as
exhibits”); see also Six v. Generations Fed. Credit Union, 891 F.3d 508, 512 (4th Cir. 2018);
Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); U.S. ex rel. Oberg v.
Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014); Am. Chiropractic Ass'n
v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004), cert. denied, 543 U.S. 979 (2004);
Phillips v. LCI Int'l Inc., 190 F.3d 609, 618 (4th Cir. 1999); Fed. R. Civ. P. 10(c) (“A copy of a
written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). Under
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limited circumstances, however, a court may consider documents beyond the complaint, without
converting the motion to dismiss to one for summary judgment. Goldfarb v. Mayor & City Council
of Balt., 791 F.3d 500, 508 (4th Cir. 2015).
In particular, a court may “consider a document submitted by the movant that [is] not
attached to or expressly incorporated in a complaint, so long as the document was integral to the
complaint and there is no dispute about the document's authenticity.” Goines, 822 F.3d at 166
(citations omitted); see also Finn v. Humane Soc'y of the United States, 160 F.4th 92, 96 n.2 (4th
Cir. 2025); Fusaro v. Cogan, 930 F.3d 241, 248 (4th Cir. 2019); Woods v. City of Greensboro, 855
F.3d 639, 642 (4th Cir. 2017), cert. denied sub nom., City of Greensboro v. BNT Ad Agency, LLC,
583 U.S. 1044 (2017); Kensington Volunteer Fire Dep't v. Montgomery Cnty., 684 F.3d 462, 467
(4th Cir. 2012); Sturgis v. Nines, SAG-25-841, 2025 WL 3240039, at *2 (D. Md. Nov. 20, 2025);
Moody v. The Board of Education Of Wicomico County, Defendant., SAG-25-00642, 2025 WL
3119201, at *4 (D. Md. Nov. 7, 2025); Doriety, 2024 WL 3558754, at *6. To be “integral,” a
document must be one “that by its ‘very existence, and not the mere information it contains, gives
rise to the legal rights asserted.’” Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC,
794 F. Supp. 2d 602, 611 (D. Md. 2011) (emphasis in original) (citation omitted); see also Brentzel
v. Fairfax Transfer and Storage, Inc., 2021 WL 6138286, at *2 (4th Cir. Dec. 29, 2021) (per
curiam).
United appended an exhibit to its Motion, which it asks the Court to consider in ruling on
its Motion. ECF 36-1 at 12 n.3. The exhibit is titled “Maryland Transportation Authority
[“MDTA”] Subpoena Response.” ECF 36-2 at 1 (the “Police Report”).5 The Police Report states
5 The exhibit includes a copy of the Maryland Transportation Authority Police Central
Records Unit’s response to a subpoena, addressed to KMA Zuckert LLP, the firm representing
United. ECF 36-2 at 2. The letter indicates that KMA Zuckert LLP requested records regarding
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that the MDTA received a call on August 29, 2024, at “23:28 Hrs” and that the incident was closed
by “23:34 Hrs[.]” Id. at 3. The Police Report lists the address of the incident as “7050 Friendship
Road”, i.e., the BWI airport, and specifically the “E5 Boarding Area[.]” Id. It does not include
the name of any of the plaintiffs but refers to “4 female pasgners [sic]” and includes descriptions
of each woman’s clothing. Id. The Police Report includes “remarks” that describe “pasngers [sic]
being beligerant [sic] and not allowing people to board the flight” and “yelling at United Airlines
Supervisor[.]” Id. Additionally, the Police Report states: “[I]ndivs [sic] being escorted to get
refunded . . . indivds [sic] escorted off pier[.]” Id.
United argues that “[t]he Court may consider the police report” because it “is integral to
the FAC.” Id. at 12 n.3. The Police Report appears to be authentic; it contains the official insignia
of the MDTA Police and was submitted with a letter that bears the letterhead of the MDTA Police
Headquarters. Notably, “a court may consider an undisputedly authentic document that a
defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the
document.” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993). Plaintiffs do not contest the authenticity of the Police Report. Indeed, in plaintiffs’
Opposition, they quote from the Police Report. ECF 39 at 10 (quoting ECF 36-2).
the “Jacquelyn Chiao Case #1:25-cv-00687-ELH[.]” Id. Further, the letter indicates that the
MDTA’s only record referencing Chiao was a “CAD report”, attached to the subpoena response.
Id.
“CAD” is an abbreviation used by law enforcement officials that stands for “computer
aided dispatch[.]” BUREAU OF JUSTICE ASSISTANCE, STANDARD FUNCTIONAL SPECIFICATIONS FOR
LAW ENFORCEMENT COMPUTER AIDED DISPATCH (CAD) SYSTEMS vii (last accessed Dec. 1, 2025),
https://perma.cc/P492-C7TP. CAD systems are used by law enforcement to “collect the initial
information for an incident”, and are used to facilitate “incident response and communication in
the field.” Id. at viii, 1. United claims the CAD was generated when MDTA officers removed
plaintiffs from the boarding area. ECF 36-2 at 3; ECF 36-1 at 12.
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Some courts have found that a police report is integral to a complaint when the report itself
is referenced in the complaint, and it is central to the complaint’s claims. See, e.g., Eubank v.
Wesseler, DLB-10-210, 2011 WL 3652558, at *3 (E.D. Ky. Aug. 19, 2011); compare Ogunsula
v. Maryland State Police, ELH-20-2568, 2021 WL 6105503, at *12 (D. Md. Dec. 23, 2021)
(declining to take judicial notice of a police report attached to defendants’ motion to dismiss
because “plaintiff did not reference these exhibits in her Complaint, nor are they integral to her
suit”). In Wheeler v. Giant of Maryland LLC, BAH-23-1643, 2024 WL 4171199 (D. Md. Sept.
11, 2024), for example, the defendant attached two police reports to its motion to dismiss. Id. at
*3 n.3. But, the plaintiff “explicitly referenced” these reports “in the amended complaint” and
“quoted verbatim” from one of these reports “in the amended complaint.” Id. “Out of an
abundance of caution”, the court reviewed only the report that the plaintiff had quoted in the
amended complaint. Id.
Here, the Police Report was attached to defendant’s Motion. But, as noted, plaintiffs quote
from it in their Opposition. See, e.g., ECF 39 at 3, 10. In support of plaintiffs’ negligence claim,
they allege that the mental anguish they suffered was “due” in part to United “falsely accusing”
plaintiffs “of causing a disturbance” and forcibly being removed from the airport “by armed
officers . . . .” ECF 25, ¶ 78. Similarly, in support of their claim for “defamation/slander/libel”,
plaintiffs claim that, “[b]y reporting to law enforcement that Plaintiff Kim and/or Chiao assaulted
the Defendant’s agent, along with falsely claiming that the other Plaintiffs were causing a
disturbance”, United had “published certain statements concerning the Plaintiffs.” Id. ¶ 84.
However, plaintiffs never mention the Police Report in their Amended Complaint.
The involvement of the police is of import to the case. But, the Police Report itself is not
integral to the Complaint.
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United also claims that the Court may consider the Police Report because it is a “public
record[.]” ECF 36-1 at 12 n.3. “[A] court may properly take judicial notice of ‘matters of public
record’ and other information that, under Federal Rule of Evidence 201, constitute ‘adjudicative
facts.’” Goldfarb, 791 F.3d at 508; see also Tellabs, Inc., 551 U.S. at 322; Katyle, 637 F.3d at
466; Philips, 572 F.3d at 180. However, under Fed. R. Evid. 201, a court may only take judicial
notice of adjudicative facts if they are “not subject to reasonable dispute,” in that they are “(1)
generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.”
Courts have come to varying conclusions as to whether a police report is a public record.
See Alvarez v. Cnty. of Orange, N.Y., 95 F. Supp. 3d 385, 397 (S.D.N.Y. 2015) (comparing cases
where courts “have taken judicial notice of . . . police reports, and similar materials on a motion
to dismiss, not for the truth of their contents, but rather to establish their existence” with “[o]ther
courts” that “have declined to do so”). Some courts have found that police reports are public
records and can be considered by a court in ruling on a motion to dismiss. See, e.g., Cobin v.
Hearst-Argyle Television, Inc., 561 F. Supp. 2d 546, 551 (D.S.C. 2008) (concluding that “the Court
may consider the police report [submitted by defendants in support of their motion to dismiss] as
a matter of public record”). But, some courts have cautioned against concluding that a police
report is a public record merely because it is “held in a public repository[.]” Freeman v. Town of
Hudson, 714 F.3d 29, 36 (1st Cir. 2013). The First Circuit has explained, Freeman, id.: “Many
documents in the possession of public agencies simply lack any indicia of reliability whatsoever.
In that regard, they are unlike official records, such as birth or death certificates and other similar
records of vital statistics.”
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In my view, the Court may take judicial notice of the fact that a Police Report was prepared.
But, it would be “improper” to take judicial notice of “[t]he accuracy of the remarks in the
report[.]” Polnac v. City of Sulphur Springs, 555 F. Supp. 3d 309, 326 (E.D. Tex. 2021).
Therefore, I will take judicial notice that the MDTA police created the Police Report in
regard to an incident involving four female passengers at the BWI boarding area on August 29,
2024, reflecting police interaction with the plaintiffs. However, I decline to take judicial notice of
the accuracy of the content of the Police Report. See ECF 36-2 at 3. In any event, the Police
Report has little to do with the two issues United raises in its Motion.
III. Discussion
A. The Sufficiency of the Negligence Claim
1.
United contends that plaintiffs have failed to state a negligence claim. It complains that,
in the Opposition, plaintiffs “improperly assert and rely on new factual allegations not set forth in”
their Amended Complaint “to argue that they have suffered recoverable injuries under their
negligence claims.” ECF 40 at 1. In other words, United contends that plaintiffs seek to cure their
deficient Complaint by way of their Opposition.
In the Amended Complaint, plaintiffs make several factual allegations regarding the
emotional damage that they allegedly suffered because of United’s conduct. As to Kim, plaintiffs
allege that “Kim was in tears” after United barred her from reboarding the plane. ECF 25, ¶ 51.
Plaintiffs also claim that, “as a direct and proximate result of United’s intentional discrimination
. . . Kim suffered, and continues to suffer, severe mental anguish and emotional distress[.]” Id.
¶ 64. Further, plaintiffs claim that Kim’s “co-workers and fellow Plaintiffs suffered immensely
seeing the extreme manner in which [Kim] was being treated, by the Defendant, solely because of
her race.” Id. ¶ 70.
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In addition, plaintiffs allege that “all of the Plaintiffs were forced to endure the
embarrassment of being denied access to their aircraft, separated from their luggage, and forcibly
escorted out of the airport by armed police officers after being falsely accused of causing a
disturbance and wrongfully denied boarding.” Id. ¶ 71; see also id. ¶ 81 (“The behavior and actions
of the Defendant’s agents caused the Plaintiffs a great deal of hardship, embarrassment and
suffering, causing their mental and emotional suffering.”); id. ¶ 82 (asserting that plaintiffs
“suffered and continue to endure” “mental and emotional pain and suffering”); id. ¶ 88 (“Plaintiffs
have sustained legally presumed damages, including, but not limited to, embarrassment,
humiliation, mental suffering[.]”).
To be sure, in their Opposition, plaintiffs expand on their allegations regarding emotional
suffering. For example, in the Opposition, plaintiffs assert that after Kim was denied permission
to reboard, “the other Plaintiffs were in vary [sic] states of shock, confusion, and pain.” ECF 39
at 3. They elaborate, id. at 6 (emphasis added):
This incident left Plaintiffs feeling frightful for their futures due to the damage a
false criminal accusation can do to one’s reputation, particularly as realtors.
Further, the Plaintiffs were left shaking, in tears, embarrassed, confusion [sic],
exhausted, and feeling completely hopeless after, in full view of those in the airport,
as if they were violent offenders unfit for air travel. Plaintiff Kim’s emotional state
was so severe during this incident, she couldn’t even speak. Not one of the Plaintiffs
are able to think about this incident, or enter an airport, without all of these feelings
rushing to the forefront. This horrific incident led to sleepless nights and feelings
of worthlessness, emotions caused, not by the actions of the Plaintiffs, but by the
malevolence and dishonesty of the Defendant’s employees.
As I see it, the Opposition adds detail to allegations in the Complaint regarding the
emotional trauma that plaintiffs allegedly experienced. However, in assessing the sufficiency of
the allegations, I may only consider the allegations in the suit, and not the additional assertions set
forth in the Opposition.
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2.
As noted, plaintiffs have lodged three claims arising from the incident. In Count I, Kim
asserts racial discrimination, pursuant to 42 U.S.C. § 1981. Plaintiffs assert negligence in Count
III. And, they assert defamation in Count IV. ECF 25, ¶¶ 61–65, 75–82, 83–89.
United claims that plaintiffs fail to state a claim for negligence. Instead, argues United,
plaintiffs “confusingly conflate the focus of their negligence claims with their other claims” of
“racial discrimination and false reporting” that “are the basis of” Kim’s “Section 1981 racial
discrimination claim and Plaintiffs’ defamation claims[.]” ECF 40 at 7; see id. at 10. In essence,
United contends that the substance of the negligence claim is embodied in the claims for race
discrimination and defamation, but it is not an independent, viable claim of negligence.
In general, to assert a claim of negligence in Maryland, “a complaint must allege facts
sufficient to support a finding of: 1) a duty to the plaintiff (or to a class of which the plaintiff is a
part), 2) a breach of that duty, and 3) a causal relationship between the breach and the harm, and
4) damages suffered.” Balfour Beatty Infrastructure, Inc. v. Rummel Klepper & Kahl, LLP, 226
Md. App. 420, 438, 130 A.3d 1024, 1034 (2016), aff'd, 451 Md. 600, 155 A.3d 445 (2017); see
Steamfitters Loc. Union No. 602 v. Erie Ins. Exch. No. 40, 469 Md. 704, 727, 233 A.3d 59, 72
(2020); Schultz v. Bank of Am., N.A., 413 Md. 15, 27, 990 A.2d 1078, 1086 (2010); Walpert,
Smullian & Blumenthal, P.A. v. Katz, 361 Md. 645, 655, 762 A.2d 582, 587 (2000); Jacques v.
First Nat. Bank of Md., 307 Md. 527, 531, 515 A.2d 756, 758 (1986); Cramer v. Hous.
Opportunities Comm'n of Montgomery Cnty., 304 Md. 705, 712, 501 A.2d 35, 39 (1985). Some
courts describe the damages element as the “actual injury or loss” that the “plaintiff suffered[.]”
Steamfitters Loc. Union No. 602, 469 Md. at 727, 233 A.3d at 72; see Balfour Beatty
Infrastructure, Inc. v. Rummel Klepper & Kahl, LLP, 451 Md. 600, 610, 155 A.3d 445, 451 (2017);
100 Inv. Ltd. P'ship v. Columbia Town Ctr. Title Co., 430 Md. 197, 212–13, 60 A.3d 1, 10 (2013).
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In regard to plaintiffs’ negligence claim, they contend that United “had a duty to protect
the Plaintiffs from injury, mental, emotional or physical, while they were in the Defendant’s care.”
Id. ¶ 76. Additionally, plaintiffs claim that United “had a duty to transport all of the Plaintiffs to
their final destination as long as the [sic] complied with the carrier’s contract of carriage.” Id. ¶
79.
According to plaintiffs, United breached its duty to protect them from injury by engaging
in the following conduct, id. ¶¶ 77, 78, 80:
The racial discrimination and maltreatment endured by Plaintiff Kim at the hands
of Defendant and its agents . . . [United] falsely accusing [plaintiffs] of causing a
disturbance . . . and their forcible removal from the airport by armed officers [and]
. . . parad[ing] the Plaintiffs out of the airport as if they were criminals . . . in
addition to the false allegation of assault by Plaintiffs Chiao and Kim.
The conduct that plaintiffs cite as a breach of defendant’s duty to transport is as follows,
id. ¶ 80:
[United] arbitrarily, and without cause, denying [plaintiffs] access to the aircraft as
well as calling for armed law enforcement personnel to [remove] the Plaintiffs out
of the airport. . . .
The conduct on which plaintiffs rely as the basis for their negligence claim is the same
conduct on which the claims of racial discrimination and defamation are premised. To be sure,
the same conduct can support multiple legal claims. But, as discussed, infra, this is not merely a
matter of multiple claims. Rather, plaintiffs do not state a negligence claim.
“[T]here is no reason to allow . . . duplicative requests to proceed in the improper guise of
independent causes of action.” Simone v. VSL Pharms., Inc., TDC-15-1356, 2017 WL 66323, at
*10 (D. Md. Jan. 5, 2017). Notably, “when there is one and only one cause of action, it does not
become different because of a misstatement of the time or place, or even the legal theory upon
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which liability is based.” Mack Trucks, Inc. v. Webber, 29 Md. App. 256, 283, 347 A.2d 865, 880
(1975).
For starters, “[m]erely stating that a duty existed, or that it was breached, or that the breach
caused the injury does not suffice” to state a claim for negligence. Horridge v. St. Mary's Cnty.
Dep't of Soc. Servs., 382 Md. 170, 182, 854 A.2d 1232, 1238 (2004) (adjudicating a claim for
negligent supervision). Of import, “[t]he absence of intent is essential to the legal conception of
negligence. If the tortious act is intentional, it may be willful, wanton, or fraudulent, but not
negligent[.]” Adams v. Carey, 172 Md. 173, 190 A. 815, 821 (1937). Indeed, “[i]t has long been
established that negligence is not an intentional tort but, instead, arises where an individual’s
unintentional failure to use reasonable care results in injury to another.” Schuerholz v. Coker,
WMN-15-1990, 2016 WL 6433173, at *3 (D. Md. Oct. 31, 2016).
In Maryland, there is a “narrow exception” to the general proposition that negligence
necessarily entails the absence of intent. Id. In particular, in Maryland, “the presence of an intent
to do an act does not preclude negligence.” Ghassemieh v. Schafer, 52 Md. App. 31, 40, 447 A.2d
84, 89 (1982). When “‘an intentional act’” creates “‘unintended consequences”’, that act can “‘be
a foundation for a negligence action.’” Moore v. Myers, 161 Md. App. 349, 378, 868 A.2d 954,
971 (2005) (quoting Ghassemieh, 52 Md. App. at 40, 447 A.2d at 89); see also Walser v. Resthaven
Mem'l Gardens, Inc., 98 Md. App. 371, 393–94, 633 A.2d 466, 476 (1993) (“[A]n act committed
intentionally may give rise to an action in negligence if one or more of the harmful consequences
of that act are unintended.”).
Walser, 98 Md. App. 371, 633 A.2d 466, is instructive. This suit arose from the alleged
“wrongful internment” of plaintiffs’ deceased relative. Id. at 377, 633 A.2d 466 at 468. The
decedent’s father and stepmother had purchased four plots in a cemetery for their family. Id. at
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378, 633 A.2d 466 at 469. At the time of the alleged wrongful internment, the decedent, the
decedent’s father, and the child of decedent’s father and stepmother had all died and been buried
in this plot. Id. The final open space in the burial plot was reserved for the stepmother, who was
still alive. Id.
If the stepmother had been buried in that spot, she would have been laid to rest next to the
decedent and not next to her biological son. The stepmother “decided that she wanted to be buried
next to her natural son . . . and therefore requested [the cemetery] to have the remains of [her
stepson] and [her natural son], who were buried next to each other, switched.” Id. When the
cemetery received the stepmother’s request, it entered into two “Disinterment Agreements, under
which it agreed to arrange for the switch” with the stepmother. Id. No one notified the decedent’s
other relatives of the “contemplated, or actual, disinterment of” the decedent. Id. The decedent’s
relatives only discovered that the switch had been made when they visited the decedent’s gravesite.
Id. The decedent’s mother and siblings subsequently filed suit against the stepmother, the
cemetery, and other defendants who had facilitated the disinterment of the decedent. Id. at 377,
633 A.2d 466 at 468. They asserted several claims, including negligence. Id. at 378–79, 633 A.2d
466 at 469. The circuit court dismissed plaintiffs’ multi-count complaint, and plaintiffs appealed.
Id. at 377, 633 A.2d 466 at 468.
Although plaintiffs brought numerous claims, “the entire complaint rest[ed] on the
underlying premise that” the stepmother “was under a legal obligation to consult with” the mother
of the decedent and “obtain her consent before proceeding to move” the decedent’s body. Id. at
392, 633 A.2d 466 at 476. The Maryland Court of Special Appeals affirmed the circuit court’s
dismissal of plaintiffs’ claims. Id. at 397, 633 A.2d 466 at 478. As to the negligence claim, the
court noted that plaintiffs had alleged that the stepmother had “‘consciously decided not to discuss
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her plans or request permission for authorization’ prior to proceeding with the disinterment[.]” Id.
at 393, 633 A.2d 466 at 476 (quoting the complaint) (emphasis in original).
The court concluded that it was “evident that” the decedent’s mother had “pleaded
intentional conduct, not negligent conduct.” Id. The court acknowledged that in Maryland “an act
committed intentionally may give rise to an action in negligence if one or more of the harmful
consequences of that act are unintended[.]” Id. at 393–94, 633 A.2d 466 at 476. But, it reasoned
that “the complaint here avers that both the act and the consequences were intended. That is the
essence of a claim of malicious conduct—conduct in “conscious,” rather than negligent or even
reckless, disregard of the effect on [the decedent’s mother].” Id. at 394, 633 A.2d 466 at 476–77
(emphasis in original). Therefore, the court concluded that the decedent’s mother had “failed to
plead an action for negligence or even gross negligence.” Id.
Maryland courts have also considered the relationship between intentional conduct and
negligence in the context of insurance coverage, where litigants have sought to shoehorn
intentional conduct into negligence claims. The courts have soundly rejected such a charade.
For example, in Moscarillo v. Pro. Risk Mgmt. Servs., Inc., 398 Md. 529, 543, 921 A.2d
245, 253 (2007), the Maryland Court of Appeals refused to countenance the plaintiff’s effort to
repackage “intentional torts of fraud and conspiracy to defraud” into “negligent acts[.]” Similarly,
in Saba v. Darling, 72 Md. App. 487, 491, 531 A.2d 696, 698 (1987), aff'd, 320 Md. 45, 575 A.2d
1240 (1990), the Maryland Court of Special Appeals concluded that because the defendant’s
alleged conduct “arose from no more or less than a willful, intentional, deliberate assault and
battery” it was “hardly . . . negligence[.]”
Harpy v. Nationwide Mut. Fire Ins. Co., 76 Md. App. 474, 482–83, 545 A.2d 718, 722
(1988), is informative. There, the Maryland Court of Special Appeals concluded that the
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defendant’s conduct, sexual abuse of a child, could not form the basis for a negligence claim
because the defendant intended the injury. Indeed, the court characterized the insured's position
to the contrary as “absurd.” Id. at 482, 545 A.2d at 722. Although the court recognized that “an
intended act causing unintentional injury, under some circumstances, can be considered
negligence,” id. at 484, 545 A.2d at 723, it reasoned that there is a “substantial certainty that sexual
molestation of a child by her father over an extended period of time will cause that child to suffer
serious harm.” Id. at 483, 545 A.2d at 723. The court reasoned that “‘for the [l]aw to define sex
with one's nine to thirteen year-old daughter to be anything but intentional injury is ridiculous.’”
Id. at 482–83, 545 A.2d at 722 (quoting trial judge) (alteration in original).
Pettit v. Erie Ins. Exchange, 349 Md. 777, 709 A.2d 1287 (1998), followed Harpy by some
ten years. It is also instructive. There, the insurer brought a “declaratory judgment action
concerning personal liability insurance coverage for a pedophile who was sued for sexual child
abuse . . . . purportedly under several theories of negligence.” Id. at 779, 709 A.2d at 1288. The
Maryland Court of Appeals upheld the applicability of “the exclusion for injuries expected or
intended by the insured . . . despite the pedophile's subjective belief that his conduct caused no
harm.” Id. at 778–79, 709 A.2d 1287, 709 A.2d at 1288.
The insured sexually abused two boys, one aged seven and the other nine years old when
the abuse began. Id. at 779, 709 A.2d at 1288. He also “encouraged and permitted others to molest
the boys” and “videotaped these activities.” Id. The tort plaintiff, who was mother and next friend
of the victims, was also a defendant in the insurance company’s declaratory action. She
acknowledged that the insured “intended to engage in the conduct constituting sexual acts and
contacts,” but argued that the insurance policy covered his conduct because the insured
subjectively “believed that the sexual acts and contacts were not harmful to the children.” Id. at
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785, 709 A.2d at 1291. In rejecting this contention, the Maryland Court of Appeals stated:
“[S]exual molestation is a tort which is only committed intentionally. There is no dichotomy
between the ‘damages' resulting from [the insured's] conduct and his intent to perform the acts of
sexual child abuse.” Id. at 786, 709 A.2d at 1292. Notably, the court also determined that
declaratory relief in favor of an insurer is “appropriate prior to trial of the tort action where the
allegations in the underlying tort claims obviously constitute a patent attempt to recharacterize, as
negligent, an act that is clearly intentional.’” Id. at 780, 709 A.2d at 1289 (quoting Allstate Ins.
Co. v. Atwood, 319 Md. 247, 253, 572 A.2d 154, 157 (1990)).
Thereafter, in Lititz Mutual Insurance Co. v. Bell, 352 Md. 782, 724 A.2d 102 (1999), the
Maryland Court of Appeals extended the logic of Pettit and Harpy to the tort of battery. In that
case, insurance coverage turned on whether a punch thrown by a psychiatric patient with
“intermittent explosive disorder” could be characterized as negligent or, instead, intentional as a
matter of law. See id. at 783–91, 724 A.2d 102, 724 A.2d at 102–07. Relying on a concession by
the insured's counsel at oral argument that the insured intended to throw the punch, id. at 795–97,
724 A.2d at 108–10, the Lititz Court held that the alleged battery could not constitute negligence,
stating, id. at 798, 724 A.2d at 110 (internal citations omitted):
[W]here the facts indicate a battery, the harm is the contact itself. The acts of sexual
molestation in Pettit were acts of battery, and the rationale of the decision is framed
in the law of battery . . . . If [the patient] had not intended the contact itself due to
a mental condition, then the act might be considered an “accident” and not
intentional because the contact (the harm) would have taken place without his
foresight or expectation. However, where the actor intends to cause an offensive
contact, the legally recognized harm, ipso facto, cannot be said to have taken place
without his foresight or expectation.
Applying the logic of the cases cited above, it is clear that the conduct alleged by plaintiffs
under the guise of negligence was clearly intentional conduct with intended consequences.
Plaintiffs’ attempt to characterize the conduct as negligent is unavailing. Again, “[p]leading in the
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alternative, and even making alternative arguments, is entirely permissible. Hammons v. Univ. of
Maryland Med. Sys. Corp., 649 F. Supp. 3d 104, 124 (D. Md. 2023). But, the facts alleged here
in support of the negligence claim correspond to the facts that undergird the claims of
discrimination and defamation, which embody intentional conduct; the conduct does not sound in
negligence.
To elaborate, plaintiffs allege that United purposely made false statements to police. There
is no suggestion that the statements were made unintentionally. Plaintiffs also claim that they were
“escorted out of the airport by armed police officers at the behest of the United employees,” i.e.,
that United acted purposely. Id. ¶ 57. Clearly, plaintiffs’ removal from the airport was an intended
consequence of United’s conduct in contacting law enforcement.
Similarly, United’s conduct towards Kim, as alleged, smacks of intentionality. Plaintiffs
claim that Kim was denied permission to board “purely” because of her race and ethnicity. Id.
¶ 63. Indeed, plaintiffs refer to the treatment of Kim by United personnel as “intentional
discrimination[.]” Id. ¶ 64.
Plaintiffs also allege that United unlawfully barred plaintiffs from reboarding the plane.
See ECF 25, ¶ 47 (describing how Kim “was pulled aside by the gate agent and informed that the
captain decided not to allow her back on the flight”) (emphasis added); id. ¶ 58 (“Plaintiffs Chiao,
Parvanova, and Simmons were denied access in retaliation for attempts to understand and resolve
the situation [involving Kim].”). Clearly, United intended to bar plaintiffs from reboarding the
aircraft.
In support of their negligence claim, plaintiffs also assert that defendant had a duty to
transport plaintiffs if they “complied with the carrier’s contract of carriage.” ECF 25, ¶ 79. And,
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according to plaintiffs, they “complied with the contract of carriage,” but United nonetheless
breached its duty to transport them. Id. ¶ 80.
Under Maryland law, the elements of a claim for breach of contract are “‘contractual
obligation, breach, and damages.’” Tucker v. Specialized Loan Servicing, LLC, 83 F. Supp. 3d
635, 655 (D. Md. 2015) (quoting Kumar v. Dhanda, 198 Md. App. 337, 17 A.3d 744, 749 (2011)).
United’s refusal to transport plaintiffs on its aircraft might be a breach of the parties’ contract. But,
plaintiffs did not bring a claim for breach of contract. Instead, they seek to characterize a possible
contract claim as a negligence claim. Even in the light most favorable to plaintiffs, they do not
allege a basis for negligence in regard to the failure to transport.
Plaintiffs’ attempt to frame United’s conduct as a basis for a negligence claim is akin to
trying to fit a square peg in a round hole.6 However, dismissal of the negligence claim does not
shut the courthouse doors to plaintiffs. The conduct set forth in plaintiffs’ negligence claim is the
basis for Kim’s racial discrimination claim and plaintiffs’ defamation claim. Compare ECF 25,
¶¶ 63–65 with id. ¶¶ 77–78; compare id. ¶¶ 78, 80 with id. ¶¶ 84–89. These two claims are not the
subject of the Motion. In any event, I shall grant plaintiffs leave to amend their Complaint.
3.
Alternatively, United maintains that plaintiffs’ negligence claim fails because plaintiffs
“have not alleged a physical injury that is required to recover emotional distress damages under a
negligence theory.” ECF 36-1 at 8. In United’s view, plaintiffs have only asserted emotional
injury, which is not compensable unless it is “accompanied by physical harm.” Id. at 22. It
6 There are cases where, in the context of incidents involving boarding, plaintiffs have
alleged claims such as negligent hiring, training, and supervision. See, e.g., Adams v. U.S. Airways
Grp., Inc., 978 F. Supp. 2d 485, 488 (E.D. Pa. 2013); Qayyum v. US Airways, Inc., RCC-08-0996,
2008 WL 4879401, at *4 (S.D.W. Va. Nov. 12, 2008); Woodson v. U.S. Airways, Inc., 67
F.Supp.2d 554, 556 (M.D.N.C. 1999). This is not one of those cases.
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characterizes plaintiffs’ allegations that they suffered “‘a great deal of hardship, embarrassment
and suffering, causing their mental and emotional suffering’” as “conclusory and general
allegations that . . . do not plausibly support a negligence claim[.]” Id. at 22–23 (quoting ECF 25
¶ 81).
Plaintiffs dispute United’s characterization of their injuries as conclusory. ECF 39 at 7.
They allege that United’s conduct in refusing to allow them to reboard and “falsely” accusing
plaintiffs “of crimes . . . left Plaintiffs feeling frightful for their futures due to the damage a false
criminal accusation can do to one’s reputation, particularly as realtors.” Id. at 6. They add that
the incident left them “shaking, in tears, embarrassed, confusion [sic], exhausted, and feeling
completely hopeless . . . in full view of those in the airport, as if they were violent offenders unfit
for air travel.” Id. Further, plaintiffs claim that “Kim’s emotional state was so severe during this
incident, she couldn’t even speak.” Id. Plaintiffs also assert that “[t]his horrific incident led to
sleepless nights and feelings of worthlessness[.]” Id. And, they posit that “[n]ot one of the
Plaintiffs are able to think about this incident, or enter an airport, without all of these feelings
rushing to the forefront.” Id. As discussed, I may only consider the allegations that appear in the
Amended Complaint, not in the Opposition.
For a state law claim considered under supplemental jurisdiction, the court applies the law
of the forum state, including as to choice of law. See, e.g., Nash v. Montgomery Cty., GJH-20-
1138, 2021 WL 1222874, at *7 n.7 (D. Md. Mar. 31, 2021); Ben-Joseph v. Mt. Airy Auto
Transporters, LLC, 529 F. Supp. 2d 604, 606 (D. Md. 2008). In tort actions, Maryland adheres to
the rule of lex loci delicti, meaning it applies the substantive law of the state where the wrong
occurred. Ben-Joseph, 529 F. Supp. 2d at 606 (citing Erie Ins. Exch. v. Heffernan, 399 Md. 598,
619, 925 A.2d 636, 648–49 (2007)) (other citations omitted); see also DiFederico v. Marriott Int'l,
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Inc., 677 Fed. App'x 830, 833 (4th Cir. 2017). Because plaintiffs’ negligence claim is premised
on events that occurred in Maryland, the law of Maryland applies.7
As noted earlier, damages is an element of a negligence claim. See, e.g., Steamfitters Loc.
Union No. 602, 469 Md. at 727, 233 A.3d at 72; Balfour Beatty Infrastructure, Inc., 451 Md. at
610, 155 A3d at 451. “Generally, a plaintiff may not recover damages in tort for mental distress
without a physical impact.” Wright v. Willow Lake Apartments (MD) Owner, LLC, 648 F. Supp.
3d 647, 666 (D. Md. 2023) (citing Exxon Mobil Corp. v. Albright, 433 Md. 303, 71 A.3d 30, on
reconsideration in part, 433 Md. 502, 71 A.3d 150 (2013)); see also Nicholson v. Durant, 162
F.4th 417, 428 (4th Cir. 2025) (“Maryland courts have indeed vacated jury verdicts for emotional
distress damages where plaintiffs experienced no physical manifestation of their emotional
distress.”); Wheeling v. Selene Fin. LP, 473 Md. 356, 393 250 A.3d 197, 219 (2021) (“In
7 The choice over which standard of care applies to United’s conduct implicates the FAA.
See Kelley v. United States, AJT-08-31, 2009 WL 1439896, at *5 (E.D. Va. Mar. 26, 2009) (“The
duties of air traffic controllers are defined by FAA Order 7110.65R [an air traffic control
handbook]. Air controllers are also subject to a common law duty of reasonable care.”) (internal
citation omitted).
Some courts have held that negligence claims arising out of an airline’s decision to bar a
passenger from boarding implicate airline safety and require that the court apply the standard of
care enunciated in the FAA because the FAA “preempts ‘the entire field of aviation safety.’”
Adams v. U.S. Airways Grp., Inc., 978 F. Supp. 2d 485, 494 (E.D. Pa. 2013) (quoting Abdullah v.
American Airlines, Inc., 181 F.3d 363, 1159, 365 (3d Cir. 1999)); see Furnas v. Appalachian
Power Co., ICB-23-00168, 2024 WL 3996084 (S.D.W. Va. Aug. 29, 2024) (noting that
“[a]lthough the Fourth Circuit has not addressed whether the field of aviation safety is preempted
by federal law . . . the Circuit Courts have, by and large, come to a consensus that the FAA
preempts the field of air safety regulations”) appeal dismissed, No. 24-1925, 2025 WL 900055
(4th Cir. Feb. 4, 2025). On the other hand, some courts have applied state law to determine the
applicable standard of care in the context of boarding. See, e.g., Mansour v. British Airways PLC,
BJR-18-01757, 2020 WL 1847750, at *3–4 (W.D. Wash. Apr. 13, 2020).
Neither party addresses which standard of care applies to plaintiffs’ negligence claim.
Defendant’s Motion rests largely on its argument that plaintiffs have not alleged a compensable
injury. Moreover, United does not contend in its Motion that it did not breach its duty of care.
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Maryland, a right to recovery exists for emotional distress ‘if it results in physical injury.’”)
(quoting Vance v. Vance, 286 Md. 490, 494, 408 A.2d 728, 730 (1979)); Alban v. Fiels, 210 Md.
App. 1, 61 A.3d 867, 876 (2013) (“Traditionally, recovery for emotional distress as an element of
damage in a negligence action required proof of a physical injury or, in some instances, a physical
impact.”).
Contrary to United’s suggestion, however, bodily injury is not required to state a claim for
negligence. Rather, if “the emotional distress due to the tortious conduct is manifested objectively,
the emotional distress is deemed genuine and compensable even though the tortious conduct did
not cause bodily harm.” Albright, 433 Md. at 350–51, 71 A.3d at 59; see Ng-Wagner v. Hotchkiss,
No. 413, Sept. Term, 2016, 2018 WL 2277803, at *15 (Md. Ct. Spec. App. May 18, 2018); Bragg
v. Harco Distributors, Inc., WDQ-13-1950, 2014 WL 509524, at *3 (D. Md. Feb. 6, 2014); see
also Hoffman v. Stamper, 155 Md. App. 247, 318, 843 A.2d 153, 195 (2004) (“[A] plaintiff can
recover damages for emotional distress in a negligence action, in the absence of a physical impact,
when the emotional distress has ‘result[ed] in some clearly apparent and substantial physical
injury, as manifested by an external condition or by symptoms clearly indicat[ive] of a resultant
pathological, physiological, or mental state.”’) (quoting Vance, 286 Md. at 500, 408 A.2d at 733
(alterations in original)), aff'd in part, rev'd in part and remanded, 385 Md. 1, 867 A.2d 276 (2005).
The element of physical manifestation is born out of concern that allowing claimants to
recover for “mental distress alone” would open the door to plaintiffs who may “feign[]” emotional
distress. Albright, 433 Md. at 350, 71 A.3d at 59; see Hoffman, 385 Md. at 34, 867 A.2d at 296;
see also Ross v. F.D.I.C., 625 F.3d 808, 818 (4th Cir. 2010) (“[B]ecause emotional distress is
fraught with vagueness and speculation, it is easily susceptible to fictitious and trivial claims. And
this is precisely why conclusory statements that the plaintiff suffered emotional distress do not
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support an award of compensatory damages.”) (cleaned up) (internal citation omitted). “Physical
injury provides ‘the objective manifestation of the alleged emotional injury,’ and serves ‘as the
yardstick by which a tort victim's emotional harm may be measured.’” Bragg, 2014 WL 509524,
at *3 (quoting Beynon v. Montgomery Cablevision Ltd. P'ship, 351 Md. 460, 507, 718 A.2d 1161,
1184 (1998)).
However, “the term ‘physical’ [is] not used in its ordinary dictionary sense, but instead ‘is
used to represent that the injury for which recovery is sought is capable of objective
determination.’” Hoffman, 385 Md. at 34, 867 A.2d at 733–34 (quoting Vance, 286 Md. at 500,
408 A.2d at 733). Objective manifestations of emotional distress can include “‘depression,
inability to work or perform household chores, loss of appetite, insomnia, nightmares, loss of
weight, extreme nervousness and irritability, withdrawal from socialization, fainting, chest pains,
headaches, and upset stomachs.’” Wolff v. Magal, No. 819, Sept. Term, 2021, 2022 WL 2282682,
at *7 (Md. Ct. Spec. App. June 23, 2022) (quoting Wheeling, 473 Md. at 395, 250 A.3d at 220);
see Bragg, 2014 WL 509524, at *3.
Of import, “for an injury to be capable of objective determination, the evidence must
contain more than mere conclusory statements, such as, ‘He was afraid,’ or, ‘I could see that he
was afraid.’” Hunt v. Mercy Med. Ctr., 121 Md. App. 516, 531, 710 A.2d 362, 369 (1998); see
also Hoffman, 385 Md. at 34, 867 A.2d at 296 (“[R]ecovery for emotional injury would not be
allowed based on the plaintiff simply saying, ‘This made me feel bad; this upset me.’”). But,
“under Maryland law, an individual need not seek compensation for medical treatment to justify a
compensatory noneconomic damages award.” Nicholson, 162 F.4th at 428 (citing Brooks v.
Jenkins, 220 Md. App. 444, 476, 104 A.3d 899, 917–18 (2014) and Francis v. Johnson, 219 Md.
App. 531, 562, 101 A.3d 494, 512 (2014)).
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Both parties rely on cases decided by the Maryland Court of Appeals8 and the Maryland
Court of Special Appeals: Vance, 286 Md. 490, 408 A.2d 728, and New Summit Assocs. Ltd. P'ship
v. Nistle, 73 Md. App. 351, 533 A.2d 1350 (1987). See ECF 39 at 7; ECF 40 at 4–6. These cases
are instructive in considering the type of physical manifestations of emotional distress that
Maryland courts consider necessary to proceed with a negligence claim.
In Vance, 286 Md. at 492, 408 A.2d at 729, the plaintiff, Muriel Vance,9 discovered that
her ostensible marriage of eighteen years to Arnold Vance had never actually taken place. At the
time of the wedding ceremony, Arnold erroneously believed that his divorce decree from his
previous marriage had taken effect. Id. at 493, 408 A.2d at 729. He discovered the truth about the
legal status of his marriage to Muriel one month after their wedding ceremony but did nothing to
rectify the situation. Nor did he share this information with Muriel. Id. at 493, 408 A.2d at
729–30.
Arnold and Muriel lived together as husband and wife for eighteen years and had two
children together. Then, Arnold left Muriel for another woman. When Muriel sought a divorce,
Arnold attempted to “annul the marriage on the ground that the marriage was void because he was
not divorced from his first wife at the time he purported to marry Muriel.” Id. at 492, 408 A.2d at
729.
8 In the general election held in Maryland in November 2022, the voters of Maryland
approved a constitutional amendment to change the name of the Maryland Court of Appeals to the
Supreme Court of Maryland. And, the voters also approved a change in the name of the State’s
intermediate appellate court, from the Maryland Court of Special Appeals to the Appellate Court
of Maryland. These changes went into effect on December 14, 2022. See Press Release, Maryland
Courts, Voter-approved constitutional change renames high courts to Supreme and Appellate
Court of Maryland (Dec. 14, 2022), https://perma.cc/TL89-QFKR. But, I shall refer to the courts
by the names that were in effect when the cited decisions were issued.
9 Because the parties in Vance share the same last name, I will refer to them by their first
names.
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Muriel initiated suit against Arnold for “compensatory damages for emotional distress
which she claimed to have suffered as a consequence of [Arnold’s] negligent misrepresentation
concerning his marital status at the time of their ostensible marriage[.]” Id. at 492–93, 408 A.2d
at 729. She testified at trial that after Arnold sought to annul their marriage, she “‘couldn’t
function’” and ‘“couldn’t sleep’” and was so embarrassed that she could not “‘go out and socialize
with people that tried to be kind to”’ her. Id. at 493, 408 A.2d at 730. Muriel thought she “‘was
going to have a nervous breakdown’” and, at the time of trial, had “‘symptoms of an ulcer.’” Id.
The Vances’ son testified about his mother’s deterioration after she discovered the truth
regarding her marital status. Id. at 494, 408 A.2d at 730. He recounted that he had trouble
“communicating with his mother” because “she appeared detached, unaware of her own presence,
and spent long periods of time crying and sobbing” and that he feared “that his mother would end
up in an asylum.” Id. Moreover, he said his mother “changed from that of a woman of beauty to
a person who looked ‘a wreck,’ with unkempt hair, sunken cheeks, and dark eyes.” Id.
During trial, “[n]o medical evidence” was introduced “to substantiate Muriel’s claim of
emotional distress.” Id. Nor did plaintiff produce any evidence that she “took any medication for
her condition.” Id.
The jury returned a verdict in favor of Muriel on the claim of negligent misrepresentation.
Id. But, the trial court entered a judgment N.O.V. for Arnold. Id. The Court of Special Appeals
reversed, finding that “‘the evidence’” at trial supported “‘a finding by the jury of physical injury
from (Muriel’s) ‘external condition.’ (Muriel’s) nervousness, spontaneous crying, hollowed
appearance, and inability to relate to the present, all constituted evidence of an external
condition.’” Id. at 495, 408 A.2d at 730 (quoting Vance, 41 Md. App. at 137, 396 A.2d at 301)
(alternations in original).
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The Maryland Court of Appeals agreed, concluding that the evidence was “legally
sufficient to establish symptoms of a mental state evidencing a physical injury” for Muriel’s
negligent misrepresentation claim. Id., 286 Md. at 501, 408 A.2d at 734. The court determined
that the “evidence showed that Muriel suffered an objectively manifested, definite nervous
disorder”, citing her “spontaneous crying”, appearing “detached and unaware of her own
presence”, her inability “to function normally”, her inability “to sleep”, and her crippling
embarrassment that left her “too embarrassed to socialize.” Id. The court also noted the physical
manifestation of Muriel’s suffering: she experienced symptoms of an ulcer and her physical
appearance “significantly deteriorated[.]” Id.
In Nistle, 73 Md. App. 351, 533 A.2d 1350, the Maryland Court of Special Appeals
engaged in a thorough analysis of the harm required to recover for emotional injuries under a
negligence theory. The plaintiff, Sylvia Nistle, was a tenant in an apartment complex when various
apartments were undergoing renovations. Id. at 356, 533 A.2d at 1352. Shortly after Nistle moved
into her apartment, the apartment next door began renovations. Id., 73 Md. App. at 357, 533 A.2d
at 1353. Nistle’s apartment “shared a common partition wall with the bathroom of an adjacent
apartment on her floor.” Id. During these renovations, “workers removed the mirror from” the
apartment adjacent to Nistle’s unit, “exposing the rear” of Nistle’s “bathroom mirror.” Id. Nistle
discovered that two peepholes had been scratched into the rear of her bathroom mirror, allowing
people in the adjacent apartment to peer into her bathroom. Id.
This discovery caused Nistle “great anxiety.” Id., 73 Md. App. at 358, 533 A.2d at 1353.
Nistle “vacated her apartment and moved into her parents’ house[.]” Id. at 359, 533 A.2d at 1354.
She “experienced nausea, diarrhea, and an inability to sleep for several weeks following her
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discovery of the probable invasion of the privacy of her bathroom” and underwent “psychiatric
counseling.” Id.
Nistle sued her former landlord for negligence and other claims. Id. at 355, 533 A.2d at
1352. The jury awarded damages. Id. On appeal, the landlord challenged the verdict on the basis
that there was “insufficient evidence of negligence to warrant submission of” Nistle’s “negligence
claim to the jury.” Id. at 356, 533 A.2d at 1352. The court affirmed, concluding that Nistle’s
negligence claim was “properly submitted to the jury.” Id. at 363, 533 A.2d at 1355. In its view,
Nistle’s “nervous shock, resulting in nausea, diarrhea, and an inability to sleep, was . . . a
compensable injury caused by” her landlord’s negligence. Id. at 362–63, 533 A.2d at 1355.
Here, plaintiffs claim that they “endured considerably more” emotional suffering than the
plaintiffs in Vance and Nistle. ECF 39 at 7. They assert, inter alia, that they were forcibly led out
of the airport by armed police officers, which was traumatic and humiliating. ECF 25, ¶ 10.
Defendant argues that, unlike the plaintiffs in Vance and Nistle, plaintiffs’ allegations of emotional
distress “are all subjective feelings that the Plaintiffs do not claim manifested into external
conditions and are not capable of objective determination.” ECF 40 at 5. Moreover, United seems
to overlook that the evidence as to emotional injuries adduced in Vance and Thistle took place at
trial. To survive a Rule 12(b)(6) motion, however, plaintiffs need not allege the quantum of facts
that may be necessary to prove a claim at a trial. See, e.g., ECF 25, ¶¶ 64, 81.
The court’s analysis in Wheeling, 473 Md. 356, 250 A.3d 197, illustrates this point. In
Wheeling, the plaintiffs sued a mortgage servicer and real estate broker, claiming that the
defendants “posted eviction notices on” the plaintiffs’ “properties, attempting to gain possession
of the properties through self-help measures without a court order.” Id. at 364, 250 A.3d at 202.
In their complaint, the plaintiffs alleged that they “incurred legal expenses by seeking legal advice
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to understand their rights as tenants on the property” and suffered “emotional distress with physical
manifestations” because of the mortgage servicer’s actions. Id. at 368, 250 A.3d at 204; see also
id. at 399, 250 A.3d at 222 (plaintiffs claiming in their Amended Complaint that they suffer
‘“emotional damages and losses with physical manifestations’” because of defendants’ actions).
The circuit court granted defendants’ motion to dismiss the amended complaint for failure
to state claim, without leave to amend. Id. at 370–71, 250 A.3d at 205. Among defendants’
grounds to dismiss this case was that plaintiffs “did not sufficiently plead damages in their
complaint and could not show any accompanying physical manifestations of their emotional
distress.” Id. at 371, 250 A.3d at 205. The Court of Special Appeals affirmed the dismissal of
plaintiffs’ claims. Id. But, the Maryland Court of Appeals reversed. It concluded that the plaintiffs
had “sufficiently pleaded damages for emotional injury.” Id., at 366, 398, 250 A.3d at 203, 222.
The court, citing cases involving plaintiffs seeking to recover in negligence actions where
they sustained emotional injuries, reiterated: “In Maryland, a right to recovery exists for emotional
distress ‘if it results in physical injury.’” Id. at 393, 250 A.3d at 219. It explained, id. at 399, 250
A.3d at 222 (emphasis and alterations in original) (quoting Hoffman, 385 Md. at 35, 867 A.2d
296):
Although the plaintiffs will be required to prove that their emotional injuries are
accompanied by physical injuries that are capable of objective determination, the
specifics of such objective manifestations have ‘more to do with proving, rather
than defining, this kind of injury.’ We note, however, that pleading emotional
damages with physical manifestations is a much different hurdle than proving the
same.
As to Kim, plaintiffs allege that she “was in tears” after United refused to allow her to
reboard the aircraft. Id. ¶ 51. This is sufficient to constitute a physical manifestation of emotional
injury.
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The remaining plaintiffs allege, inter alia, that they were forcibly removed from the
terminal by armed law enforcement officers and experienced embarrassment and humiliation as a
result. ECF 25, ¶¶ 71, 82, 88. However, they do not allege in the Complaint that they experienced
any physical manifestations of harm. Rather, they assert: “The behavior and actions of the
Defendant’s agents caused the Plaintiffs a great deal of hardship, embarrassment and suffering,
causing their mental and emotional suffering.” Id. ¶ 81.
In my view, these assertions are insufficient to withstand dismissal. See Hobson v. Transit
Emps. Health & Welfare Fund, LLC, PX-25-00146, 2025 WL 2444158, at *5–6 (D. Md. Aug. 25,
2025) (finding allegations were too “vague and conclusory” to sustain a negligence claim when
plaintiff merely alleged that “because of ‘Defendants’ negligence and/or negligent handling,’
[plaintiff] has ‘suffered or will suffer damages, including embarrassment, humiliation, frustration,
anxiety, emotional distress, and fear’ alongside an ‘increased risk’ of being denied housing and
jobs”) (quoting plaintiff’s complaint); Coleman v. Immaculate Heart of Mary Sch., CCB-11-
02917, 2012 WL 75323, at *1 (D. Md. Jan. 9, 2012) (dismissing plaintiff’s negligence claim
because his allegations did not meet the standard under Maryland law to “recover damages for
emotional injury”; plaintiff had claimed only that defendant’s actions “‘caused harm to his
reputation, undue mental anguish and personal humiliation’”) (quoting plaintiff’s complaint).
Accordingly, on this basis, as to Chiao, Parvanova, and Simmons, I will dismiss the
negligence claim, without prejudice, and with leave to amend.
B. The ADA and Preemption
United also urges dismissal of plaintiffs’ negligence claim on preemption grounds. It
contends that the suit is “based on United’s boarding practices” and is therefore preempted by the
ADA, 49 U.S.C. § 41713(b)(1). See ECF 36-1 at 25; see also id. at 23. In particular, United claims
that “the ADA preempts claims against commercial air carriers when the claim references or
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connects to the airlines rates, routes, or services.” Id. at 8. According to United, this preemption
extends to “an airline’s boarding practices and procedures” and “claims for denied boarding or
requests for involvement of law enforcement to remove passengers from the boarding process[.]”
Id.
I decline to address this complex issue because I have granted defendant’s Motion on other
grounds. Cf. Abdu-Brisson v. Delta Airlines, Inc., 128 F.3d 77, 81 (2d Cir. 1997) (describing how
the ADA’s preemption standard in “its practical application in particular circumstances is
difficult[.]”); Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751, 770 (4th Cir. 2018) (“The balance
of state and federal responsibility created by the ADA is a complex balance[.]”).
IV. Conclusion
For the foregoing reasons, I shall grant United’s Motion, without prejudice and with leave
to amend.
An Order follows, consistent with this Memorandum Opinion.
Date: January 30, 2026 /s/
Ellen Lipton Hollander
United States District Judge
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