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O'HERN v. DELTA AIRLINES

November 18, 1993

GERALD O'HERN, Plaintiff,
v.
DELTA AIRLINES, INC., Defendant.


Kocoras


The opinion of the court was delivered by: CHARLES P. KOCORAS

CHARLES P. KOCORAS, District Judge:

 This matter is before the Court on Defendant's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the defendant's motion is denied.

 BACKGROUND

 The plaintiff, Gerald R. O'Hern ("O'Hern"), filed a one count complaint against the defendant, Delta Airlines, Inc. ("Delta"), seeking compensatory damages for injuries he allegedly sustained during an April 19, 1985 Delta flight from Chicago O'Hare International Airport to Memphis, Tennessee. O'Hern claims that as a direct and proximate result of the negligent acts or omissions *fn1" of Delta O'Hern sustained "severe and permanent hearing loss" when the defendant, through its agents, allowed the airplane to ascend too rapidly.

 In the motion presently before this Court, Delta moves to dismiss the Complaint on preemption grounds. Delta states that all of the claims in the plaintiff's Complaint are based upon common law theories of negligence and that pursuant to the Federal Aviation Act, 42 U.S.C. § 1305 ("§ 1305"), these claims are preempted. Accordingly, Delta maintains that O'Hern has failed to state a claim upon which relief can be granted. O'Hern, however, contests Delta's motion, arguing that § 1305 does not preempt his personal injury claims. Before we consider the merits of the defendant's motion, we first examine the principles that guide our determination under Federal Rule of Civil Procedure 12(b)(6).

 LEGAL STANDARD

 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the sufficiency of the complaint, not to decide the merits of the case. Defendants must meet a high standard in order to have a complaint dismissed for failure to state a claim upon which relief may be granted since, in ruling on a motion to dismiss, the court must construe the complaint's allegations in the light most favorable to the plaintiff and all well-pleaded facts and allegations in the plaintiff's complaint must be taken as true. Ed Miniat, Inc. v. Globe Life Ins. Group Inc., 805 F.2d 732, 733 (7th Cir. 1986), cert. denied, 482 U.S. 915, 96 L. Ed. 2d 676, 107 S. Ct. 3188 (1987). The allegations of a complaint should not be dismissed for failure to state a claim "unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). See also Hishon v. King & Spalding, 467 U.S. 69, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Doe on Behalf of Doe v. St. Joseph's Hospital, 788 F.2d 411 (7th Cir. 1986). Nonetheless, in order to withstand a motion to dismiss, a complaint must allege facts sufficiently setting forth the essential elements of the cause of action. Gray v. County of Dane, 854 F.2d 179, 182 (7th Cir. 1988). We turn to the motion before us with these principles in mind.

 DISCUSSION

 Delta maintains that the by enacting § 1305 of the Federal Aviation Act ("the Act") Congress expressly preempted state law claims such as the plaintiff's. Section 1305 of the Act provides in relevant part:

 § 1305. Federal preemption

 
(a) Preemption
 
(1) . . . no State or political subdivision thereof . . . shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier having authority under Title IV of this chapter to provide air transportation.

 49 U.S.C.App. § 1305(a)(1). Delta argues that the state common law theories of negligence upon which O'Hern asserts his claim relate to "services" provided by the ...


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