Free Answer to Complaint - District Court of California - California

Case 3:08-cv-01135-DMS-LSP

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M. CORY BROWN, ESQ. (Bar No. 115472) [email protected] HIGGS, FLETCHER & MACK LLP 401 West "A" Street, Suite 2600 San Diego, CA 92101-7913 TEL: 619.236.1551 FAX: 619.696.1410 Attorneys for Defendant AMERICAN AIRLINES, INC.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ART MORGENSTEIN, Plaintiff, v. AMERICAN AIRLINES, INC., a Delaware corporation, Defendant. CASE NO. 08 CV 1135 DMS LSP AMERICAN AIRLINES, INC.'S ANSWER TO COMPLAINT

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H IGGS , F LETCHER & M ACK LLP
ATTORNEYS AT LAW SAN DIEGO

COMES NOW defendant, AMERICAN AIRLINES, INC., severing itself from all other co-defendants, answering for itself alone, answers Plaintiff's Complaint as follows: I. JURISDICTION AND VENUE 1. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 1, and on that basis, denies each and every allegation contained therein. 2. 3. /// /// /// ///
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This answering Defendant admits the averments in Paragraph 2. This answering Defendant admits the averments in Paragraph 3.

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II. PARTIES 4. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 4, and on that basis, denies each and every allegation contained therein. 5. 6. This answering Defendant admits the averments in Paragraph 5. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 6, and on that basis, denies each and every allegation contained therein. III. FACTUAL ALLEGATIONS 7. This answering Defendant admits that it is an airline carrier for passengers. This

answering Defendant has insufficient information or belief to either admit or deny the balance of the averments in Paragraph 7, and on that basis, denies each and every allegation contained therein. 8. 9. This answering Defendant admits the averments in Paragraph 8. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 9, and on that basis, denies each and every allegation contained therein. 10. This answering Defendant admits the averments in Paragraph 10, except as to the

time of Plaintiff's boarding, upon which this answering Defendant has insufficient information or belief to either admit or deny the averments in Paragraph 10, and on that basis, denies each and every allegation contained therein. 11. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 11, and on that basis, denies each and every allegation contained therein. /// ///
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12.

This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 12, and on that basis, denies each and every allegation contained therein. 13. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 13, and on that basis, denies each and every allegation contained therein. 14. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 14, and on that basis, denies each and every allegation contained therein. 15. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 15, and on that basis, denies each and every allegation contained therein. 16. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 16, and on that basis, denies each and every allegation contained therein. 17. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 17, given the incomplete nature thereof and, on that basis, denies each and every allegation contained therein. 18. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 181, and on that basis, denies each and every allegation contained therein. 19. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 19, and on that basis, denies each and every allegation contained therein. 20. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 20, and on that basis, denies each and every allegation contained therein. ///
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21.

This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 21, and on that basis, denies each and every allegation contained therein. 22. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 22, and on that basis, denies each and every allegation contained therein. 23. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 23, and on that basis, denies each and every allegation contained therein. 24. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 24, and on that basis, denies each and every allegation contained therein. 25. This answering Defendant admits that there are many airports in the continental

United States. As to the balance of the averments in Paragraph 25, this answering Defendant has insufficient information or belief to either admit or deny, and on that basis, denies each and every allegation contained therein. 26. 27. This answering Defendant denies the averments contained therein. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 27, and on that basis, denies each and every allegation contained therein. 28. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 28, and on that basis, denies each and every allegation contained therein. 29. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 29, and on that basis, denies each and every allegation contained therein. 30. ///
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This answering Defendant admits the averments in Paragraph 30.

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31.

This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 31, and on that basis, denies each and every allegation contained therein. 32. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 32, and on that basis, denies each and every allegation contained therein. 33. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 33, and on that basis, denies each and every allegation contained therein. 34. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 34, and on that basis, denies each and every allegation contained therein. 35. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 35, and on that basis, denies each and every allegation contained therein. 36. This answering Defendant denies that the flight attendant acted abrasively or

insensitively towards Plaintiff. As to the balance of the averments in Paragraph 36, this answering Defendant lacks sufficient information and belief to either admit or deny those averments and, on that basis, denies each and every allegation contained therein. 37. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 37, and on that basis, denies each and every allegation contained therein. 38. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 38 and on that basis, denies each and every allegation contained therein. 39. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 39, and on that basis, denies each and every allegation contained therein.
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40.

This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 40, and on that basis, denies each and every allegation contained therein. 41. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 41, and on that basis, denies each and every allegation contained therein. 42. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 42, and on that basis, denies each and every allegation contained therein. 43. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 43, and on that basis, denies each and every allegation contained therein. 44. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 44, and on that basis, denies each and every allegation contained therein. 45. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 45, and on that basis, denies each and every allegation contained therein. 46. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 46, and on that basis, denies each and every allegation contained therein. 47. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 47, and on that basis, denies each and every allegation contained therein. 48. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 48, and on that basis, denies each and every allegation contained therein. ///
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49.

This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 49, and on that basis, denies each and every allegation contained therein. 50. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 50, and on that basis, denies each and every allegation contained therein. 51. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 51, and on that basis, denies each and every allegation contained therein. 52. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 52, and on that basis, denies each and every allegation contained therein. 53. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 53, and on that basis, denies each and every allegation contained therein. 54. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 54, and on that basis, denies each and every allegation contained therein. 55. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 55, and on that basis, denies each and every allegation contained therein. 56. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 56, and on that basis, denies each and every allegation contained therein. 57. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 57 and on that basis, denies each and every allegation contained therein. ///
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58.

This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 58, and on that basis, denies each and every allegation contained therein. 59. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 59, and on that basis, denies each and every allegation contained therein. 60. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 60, and on that basis, denies each and every allegation contained therein. 61. 62. This answering Defendant denies the averments contained in Paragraph 61. This answering Defendant admits the averments in Paragraph 62, with the

exception of the allegation of Defendant being a "common air carrier," in that that term is not defined. 63. This answering Defendant admits the averments in Paragraph 63, with the

exception of the allegation of Defendant being a "common carrier," in that that term is not defined. 64. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 64, and on that basis, denies each and every allegation contained therein. 65. 66. This answering Defendant admits the averments contained in Paragraph 65. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 66, and on that basis, denies each and every allegation contained therein. 67. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 67, and on that basis, denies each and every allegation contained therein. 68. ///
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This answering Defendant admits the averments contained in Paragraph 68.

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69.

This answering Defendant denies that its conduct was unusual, unexpected,

inadequate, or inappropriate or that it failed to respond adequately to Plaintiff. As to the balance of the averments in Paragraph 69, this answering Defendant has insufficient information or belief to either admit or deny, and on that basis, denies each and every allegation contained therein. 70. This answering Defendant denies the averments contained in Paragraph 70. IV. FIRST CAUSE OF ACTION 71. Answering Paragraph 71, this answering Defendant re-alleges and incorporates by

reference its answers to Paragraphs 1-70, inclusive. 72. 73. 74. This answering Defendant denies the averments contained in Paragraph 72. This answering Defendant denies the averments contained in Paragraph 73. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 74, and on that basis, denies each and every allegation contained therein. 75. 76. 77. This answering Defendant denies the averments contained in Paragraph 75. This answering Defendant denies the averments contained in Paragraph 76. This answering Defendant denies the averments contained in Paragraph 77. V. SECOND CAUSE OF ACTION 78. Answering Paragraph 78, this answering Defendant re-alleges and incorporates by

reference its answers to Paragraphs 1-77, inclusive. 79. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 79, and on that basis, denies each and every allegation contained therein. 80. 81. 82. 83.
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This answering Defendant denies the averments contained in Paragraph 80. This answering Defendant denies the averments contained in Paragraph 81. This answering Defendant denies the averments contained in Paragraph 82. This answering Defendant denies the averments contained in Paragraph 83. 9
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84. 85.

This answering Defendant denies the averments contained in Paragraph 84. This answering Defendant denies the averments contained in Paragraph 85. VI. THIRD CAUSE OF ACTION

86.

Answering Paragraph 86, this answering Defendant re-alleges and incorporates by

reference its answers to Paragraphs 1-85, inclusive. 87. 88. 89. 90. 91. 92. 93. This answering Defendant denies the averments contained in Paragraph 87. This answering Defendant denies the averments contained in Paragraph 88. This answering Defendant denies the averments contained in Paragraph 89. This answering Defendant denies the averments contained in Paragraph 90. This answering Defendant denies the averments contained in Paragraph 91. This answering Defendant denies the averments contained in Paragraph 92. This answering Defendant denies the averments contained in Paragraph 93. VII. FOURTH CAUSE OF ACTION 94. Answering Paragraph 94, this answering Defendant re-alleges and incorporates by

reference its answers to Paragraphs 1-93, inclusive. 95. This answering Defendant admits that it is obligated to follow all federal aviation

standards, rules and regulations, including operation and control of the subject aircraft, on the ground and in the air. This answering Defendant has insufficient information or belief to deny the balance of the averments in Paragraph 95 and, on that basis, denies each and every allegation contained therein. 96. 97. /// /// /// ///
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This answering Defendant denies the averments in Paragraph 96. This answering Defendant denies the averments in Paragraph 97.

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ATTORNEYS AT LAW SAN DIEGO

VIII. FIFTH CAUSE OF ACTION 98. Answering Paragraph 98, this answering Defendant re-alleges and incorporates by

reference its answers to Paragraphs 1-97, inclusive. 99. 100. 101. This answering Defendant denies the averments contained in Paragraph 99. This answering Defendant denies the averments contained in Paragraph 100. This answering Defendant denies the averments contained in Paragraph 101. IX. SIXTH CAUSE OF ACTION 102. Answering Paragraph 102, this answering Defendant re-alleges and incorporates

by reference its answers to Paragraphs 1-101, inclusive. 103. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 103, given the undefined language contained therein and, on that basis, denies each and every allegation contained therein. 104. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 104, based on the undefined terms contained therein and, on that basis, denies each and every allegation contained therein. 105. 106. This answering Defendant denies the averments contained in Paragraph 105. This answering Defendant denies the averments contained in Paragraph 106. X. SEVENTH CAUSE OF ACTION 107. Answering Paragraph 107, this answering Defendant re-alleges and incorporates

by reference its answers to Paragraphs 1-106, inclusive. 108. This answering Defendant has insufficient information or belief to either admit or

deny the averments in Paragraph 108, given the undefined terms contained therein and, on that basis, denies each and every allegation contained therein. This answering Defendant admits that it had an obligation to comply with federal rules and regulations. ///
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109. 110. 111. 112.

This answering Defendant denies the averments contained in Paragraph 109. This answering Defendant denies the averments contained in Paragraph 110. This answering Defendant denies the averments contained in Paragraph 111. This answering Defendant admits that it had a duty toward Plaintiff. This

answering Defendant has insufficient information or belief to either admit or deny the balance of the averments in Paragraph 112, given the undefined terms contained therein and, on that basis, denies the balance of the allegations contained therein. 113. This answering Defendant denies the averments contained in Paragraph 113. AFFIRMATIVE DEFENSES The following affirmative defenses are alleged on information and belief by this answering Defendant as to the Plaintiff so as not to be waived at trial. This answering Defendant reserves the right to amend or withdraw any or all defenses or to raise additional defenses as or after they may become known during the course of investigation and discovery. FIRST AFFIRMATIVE DEFENSE Plaintiff's Complaint, and each and every cause of action therein, fails to state facts sufficient to constitute a cause of action against this answering defendant. SECOND AFFIRMATIVE DEFENSE This answering defendant alleges that any and all events and happenings in connection with the allegations contained in plaintiff's Complaint, and the resulting injuries and damages, if any, referred to therein, were proximately caused and contributed to by the negligence of plaintiff in that he did not exercise ordinary care or reasonable care on his own behalf at the time and place referred to. THIRD AFFIRMATIVE DEFENSE This answering defendant alleges that any and all of the events and happenings in connection with the allegations contained in plaintiff's Complaint and the resulting injuries and damages, if any, referred to therein, were proximately caused and contributed to by the negligence and other conduct of persons named and not named as defendants herein in that they did not exercise ordinary or reasonable care on behalf of and toward the plaintiff and pursuant to
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the Fair Responsibility Act of 1986 (Proposition 51), incorporated in California Civil Code section 1431.2, the plaintiff's injuries and damages, if any, shall be reduced by the percentage of fault of each such person. FOURTH AFFIRMATIVE DEFENSE This answering defendant alleges that the plaintiff's causes of action are barred by the doctrine of Unclean Hands. FIFTH AFFIRMATIVE DEFENSE This answering defendant alleges that plaintiff's causes of action, and all of them, are barred by the applicable statute of limitations, as set forth in California Code of Civil Procedure sections 340 and/or 335.1. SIXTH AFFIRMATIVE DEFENSE This answering Defendant is informed and believes, and thereon alleges, that Plaintiff's claims are barred by the doctrine of reasonable implied assumption of the risk. SEVENTH AFFIRMATIVE DEFENSE As a further, separate and affirmative defense, this answering Defendant alleges that Plaintiff's recovery against this answering Defendant is barred, diminished, or reduced in that Plaintiff expressly or impliedly waived any rights Plaintiff may have had by virtue of Plaintiff's acts, conduct, and/or omissions. EIGHTH AFFIRMATIVE DEFENSE As a further, separate and affirmative defense, this answering Defendant alleges that Plaintiff's recovery against this answering Defendant is barred, diminished, or reduced in that Plaintiff engaged in conduct with respect to the activities that are the subject of the complaint herein, and by reason of such activities and conduct is estopped from asserting the claims in the complaint herein. NINTH AFFIRMATIVE DEFENSE This answering Defendant reserves the right to amend this answer and assert such further affirmative defenses as it deems necessary. ///
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TENTH AFFIRMATIVE DEFENSE Plaintiff's recovery against this answering Defendant is barred, diminished, or reduced in that Plaintiff lacks the capacity to sue as purported in the Complaint. ELEVENTH AFFIRMATIVE DEFENSE As a further, separate and affirmative defense, this answering Defendant contends that Plaintiff's recovery against this answering Defendant is barred, diminished, or reduced to the extent Plaintiff's alleged loss or damages are attributable to Plaintiff's careless, reckless, or negligent actions and Plaintiff's own failure to act reasonably. TWELFTH AFFIRMATIVE DEFENSE As a further, separate and affirmative defense, this answering Defendant alleges that Plaintiff's recovery against this answering defendant is barred, diminished, or reduced to the extent that Defendants did not owe a duty to Plaintiff and, if such a duty did exist, Defendant did not breach said duty to Plaintiff. THIRTEENTH AFFIRMATIVE DEFENSE As a further, separate and affirmative defense, this answering Defendant alleges that Plaintiff's recovery against this answering Defendant is barred, diminished, or reduced in that this answering Defendant provided an adequate warning of any alleged danger, if any existed, and any alleged injury was sustained as a direct and proximate result of the failure of Plaintiff to follow or adhere to such warning. FOURTEENTH AFFIRMATIVE DEFENSE As a further, separate and affirmative defense, this answering Defendant alleges that Plaintiff's recovery against said answering Defendant is barred, diminished, or reduced to the extent Plaintiff failed to take reasonable actions to avoid or mitigate Plaintiff's alleged damages. FIFTEENTH AFFIRMATIVE DEFENSE This answering Defendant alleges that some or all of Plaintiff's causes of actions and claims are pre-empted by federal law, and are barred by the doctrine of federal preemption, either express or implied. ///
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SIXTEENTH AFFIRMATIVE DEFENSE Plaintiff's recovery against this answering Defendant is barred, diminished, or reduced in that the Complaint, as contended contains a defect (non-joinder or mis-joinder of parties). SEVENTEENTH AFFIRMATIVE DEFENSE As a further, separate and affirmative defense, this answering Defendant alleges that Plaintiff's recovery against this answering Defendant is barred, diminished, or reduced to the extent that Plaintiff's alleged damages were caused by unforeseen acts and/or omissions and that this answering Defendant exercised due care with respect to foreseeable acts and/or omissions. EIGHTEENTH AFFIRMATIVE DEFENSE As a further, separate and affirmative defense, this answering Defendant alleges that Plaintiff's recovery against this answering Defendant is barred, diminished, or reduced to the extent the damages alleged in the complaint were unavoidable. NINETEENTH AFFIRMATIVE DEFENSE As a further, separate and affirmative defense, this answering Defendant alleges that Plaintiff's recovery against this answering Defendant is barred, diminished, or reduced, to the extent the loss or injury suffered by Plaintiff, if any, was caused by an idiosyncratic condition for which Defendant could not have taken any reasonable steps to avoid. TWENTIETH AFFIRMATIVE DEFENSE As a further, separate and affirmative defense, this answering Defendant alleges that Plaintiff's recovery against this answering Defendant is barred, diminished, or reduced in that Plaintiff has failed to join all indispensable parties and, therefore, complete relief cannot be accorded to the parties in this action and will result in prejudice in any future litigation. TWENTY-FIRST AFFIRMATIVE DEFENSE As a further, separate and affirmative defense, this answering Defendant alleges that Plaintiff's recovery against this answering Defendant is barred, diminished, or reduced to the extent the damages were proximately caused by an act of God. /// ///
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TWENTY-SECOND AFFIRMATIVE DEFENSE As a further, separate and affirmative defense, this answering Defendant alleges that Plaintiff's recovery against this answering Defendant is barred, by the Doctrine of Issue or Claim Preclusion. TWENTY-THIRD AFFIRMATIVE DEFENSE As a further, and separate affirmative defense, this answering Defendant alleges that the Complaint herein fails to allege facts sufficient to constitute a recovery for exemplary damages and, therefore, violates the guaranties of due process of law and equal protection of the laws guaranteed by the United States Constitution and California Constitution, and such violations bar Plaintiff's recovery or judgment against this answering Defendant. TWENTY-FOURTH AFFIRMATIVE DEFENSE As a further, separate and affirmative defense, this answering Defendant alleges that Plaintiff's recovery against this answering Defendant is barred, diminished, or reduced because any alleged conduct of malice or oppression was not ratified by this answering Defendant's highest ranking officers, directors or managing agents. TWENTY-FIFTH AFFIRMATIVE DEFENSE As a further, separate and affirmative defense, this answering Defendant alleges that some, or all, of Plaintiff's causes of action are barred by the law of the jurisdictions whose law governs the subject incident, by that the State of Florida, the State of New York, or elsewhere. TWENTY-SIXTH AFFIRMATIVE DEFENSE As a further, separate and affirmative defense, this answering Defendant alleges that some, or all, of the Plaintiff's causes of action are barred by the applicable statutes of limitations of the State of Florida, the State of New York, or other jurisdiction whose law applies to this litigation. WHEREFORE, this answering defendant prays: 1. That plaintiff takes nothing by virtue of his complaint and that it be dismissed,

with prejudice; 2.
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For costs of suit incurred herein; and 16
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3.

For such other and further relief as the Court may deem just and proper.

DATED: August 11, 2008

HIGGS, FLETCHER & MACK LLP

By: s/M. Cory Brown M. CORY BROWN, ESQ. Attorneys for Defendant AMERICAN AIRLINES, INC.

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