A Class Action Plaintiff Must be a Member of the Class That He or She Seeks to Represent

Rosen v. Continental Airlines, Inc., 430 N.J. Super. 97 (App. Div. 2013).  The holding of this decision affirmed a defense motion to dismiss this putative class action case for failure to state a claim.  Plaintiff had bought a headset from defendant on an airline flight.  Defendant had stated at that time that the headset could be used on a future flight.  When plaintiff took another flight and tried to use the headset, however, he found that the headset was not compatible with the available jack.  As a result, plaintiff had to buy another headset.  Defendant required that headset purchases be made only with a credit or debit card, and defendant would not accept cash for the headset.  Defendant also insisted on cash when plaintiff tried to buy an alcoholic beverage while on board. 

Plaintiff sued, asserting that defendant had violated the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., in representing that the headset would be usable on future flights.  He also claimed that defendant’s “no cash” policy wrongfully discriminated against “low income individuals,” minors, and others who might not have credit cards.  Plaintiff himself did have a credit card, which he had used to pay for a baggage fee and for the headset on the prior flight.

The Law Division granted defendant’s motion to dismiss for failure to state a claim on the grounds that the case was preempted by the federal Airline Deregulation Act, 49 U.S.C. §41713(b)(1).  That court also denied plaintiff’s cross-motion for class certification.  On appeal, the Appellate Division affirmed in an opinion by Judge Kennedy. 

The panel applied the standard of review that, on a motion to dismiss for failure to state a claim under Rule 4:6-2(e), searches the Complaint for “the fundament of a claim,” even one that is presented in “obscure” fashion.  Judge Kennedy found that, even under that very forgiving standard, dismissal was appropriate due to preemption.  He also noted that defendant might have moved to dismiss based on lack of subject matter jurisdiction, which would have implicated Rule 4:6-2(a) rather than Rule 4:6-2(e).  But since defendant had moved under Rule 4:6-2(e), the standards of that Rule applied.

The Airline Deregulation Act preempts any claim “related to a price, route, or service of an air carrier.”  Judge Kennedy determined that the headset and alcoholic beverage issues that plaintiff sought to raise related to “services.”  The panel observed that this broad perception of what is a “service” was the majority view in the federal courts.

Judge Kennedy went on to discuss plaintiff’s cross-motion for class certification.  That discussion was pure dictum since, as he noted, there was no need to address class certification given the panel’s holding that plaintiff’s claims were preempted by the federal law.  Judge Kennedy found a class action improper “because plaintiff himself lacks standing as a member of the putative class.”  The putative class would have consisted of “unaccompanied minors, low income individuals and others who are not in possession of credit cards.”  Plaintiff did not fall into any of those categories since he did have a credit card.  Since he was not himself a member of the class, he lacked standing to bring claims on behalf of those who were class members.