MEMORANDUM OPINION AND ORDER

RICHARD H. KYLE, United States District Judge

Introduction

On September 20, 2001, employees of Northwest Airlines refused to permit Plaintiffs Kareem Alasady, Akram Alasady, and Raheem Alkiani (collectively "Plaintiffs") — three Muslim men of Middle Eastern descent — to board a flight from Minneapolis to Salt Lake City. Plaintiffs have sued Northwest, asserting violations of 42 U.S.C. § 1981, Title VI of the Civil Rights Act of 1964, and the Minnesota Human Rights Act ("MHRA"), as well as tort claims for negligent and intentional infliction of emotional distress. Before the Court is Northwest's Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Northwest contends that federal aviation laws preempt Plaintiffs' state law claims and that Plaintiffs' federal claims under 42 U.S.C. § 1981 and Title VI of the Civil Rights Act of 1964 are deficient as a matter of law. Northwest also asserts that Plaintiffs have failed to plead claims of either negligent or intentional infliction of emotional distress upon which relief can be granted. For the reasons set forth below, the motion will be granted with respect to the negligent and intentional infliction of emotional distress claims and, in all other respects, denied.

Background

Kareem Alasady is thirty-seven years old and a United States citizen who, at all times relevant to this matter, worked as a taxi driver. He currently resides in Salt Lake County, Utah, and has been in the United States since 1994. Akram Alasady is Kareem's younger brother. He is twenty-four years old and has resided in Salt Lake County, Utah, since coming to the United States in 2000. At all times relevant to this matter, he was a student at Salt Lake Community College. Akram is seeking asylum in the United States. Raheem Alkiani is thirty-eight years old. He has applied for United States citizenship and is a resident alien. Raheem has lived in Salt Lake County, Utah, since coming to the United States in 1996 and, at all times relevant to this matter, was working at Sports Center, a business in Sandy, Utah. All three men are Muslim, and have brown skin, dark eyes, and dark hair.

On August 25, 2001, Plaintiffs bought round-trip tickets from Continental Airlines for travel from Salt Lake City to Philadelphia. They were to fly from Salt Lake City on September 10, 2001, on Continental Airlines. They would return to Salt Lake City on September 20, 2001, on Northwest Airlines with a lay-over at the Minneapolis/ Saint Paul International Airport. The three men were traveling to Philadelphia to visit a friend whose wife had just had a baby. Plaintiffs were in Philadelphia when the terrorist attacks of September 11th occurred.

On September 20, 2001, Plaintiffs went to the Philadelphia airport to begin their return flight to Salt Lake City on Northwest Airlines. Their flight was scheduled to depart at 8:00 a.m.; Plaintiffs arrived at the airport at approximately 4:30 a.m. because they had heard news reports of long delays for travelers at airports around the country. Airline personnel at the Northwest ticketing counter questioned Plaintiffs, as did a Northwest supervisor. Plaintiffs gave Northwest personnel permission to hand-search all of their luggage. After the searches had been completed, Northwest personnel gave each Plaintiff his boarding pass. The three proceeded down the concourse to their gate.

After spending some time in the waiting area, Raheem went to the restroom. FBI agents approached and questioned him. FBI agents also questioned Kareem and Akram, who had stayed in the waiting area. The agents took Plaintiffs aside and questioned them extensively about where they had been, where they were going, where they were from, and why they were in the United States. Kareem had to translate for his brother Akram, who had not been in the country long enough to become fluent in English. After at least thirty minutes of questioning, the FBI agents "cleared" Plaintiffs. They boarded their flight and arrived in Minneapolis at about 10:10 a.m., central time.

Plaintiffs' flight from Minneapolis to Salt Lake City was scheduled to leave Minneapolis shortly after noon. Plaintiffs proceeded to the gate area to wait. A few minutes before noon, three police officers, two in uniform and one in civilian clothing, approached Plaintiffs. The officers showed Plaintiffs badges indicating that they were with the Airport Police. The officers questioned Plaintiffs in the waiting area, in front of the gate at which the plane was to board; they asked each Plaintiff for identification, phone numbers, and work information. A few minutes later, three or four other individuals arrived who appeared to be officials from the United States Immigration and Naturalization Service ("INS").

After about twenty minutes of questioning, the law enforcement officials asked Plaintiffs to accompany then onto the ramp that led to the plane. At least four law enforcement personnel went with Plaintiffs onto the ramp and physically surrounded them. Patricia Hardy, a Northwest Manager of Customer Ground Operations and the supervisor on duty, was also present. She told Plaintiffs that she was talking to the pilot, crew, and passengers on the plane. Periodically, she returned to where Plaintiffs stood and asked the law enforcement officers about what they had learned.

The officers informed Hardy, within earshot of other Northwest personnel and Plaintiffs, "They're clean," meaning that Plaintiffs did not pose a security risk. Nonetheless, Hardy told Plaintiffs that the passengers and crew refused to fly with them on board. Although Plaintiffs possessed valid tickets and boarding passes, and Hardy had received direct confirmation from federal and local law enforcement that they posed no security threat, she did not allow them to board the flight to Salt Lake City. Plaintiffs were escorted back to the waiting area.

After Plaintiffs returned to the waiting area, an individual who may or may not have been with Northwest suggested that Plaintiffs rent a car and drive back to Salt Lake City. Hardy told Plaintiffs that she would put them on another Northwest flight that left at 8:00 p.m. Plaintiffs asked her if Northwest would be responsible for the "losses" they would incur due to having been prevented from taking the noon hour flight from Minneapolis. Hardy stated that Northwest would not be responsible for such losses.

While Hardy spoke with an airport security officer, two other security officers remained with Plaintiffs. Hardy told Plaintiffs that she would put them on a Delta Airlines flight leaving at 3:50 p.m. She took their boarding passes and walked them to the Delta check-in counter at the front of the terminal. Plaintiffs again went through security, boarded the Delta flight, and arrived that evening in Salt Lake City.

Analysis

I. Standard of Decision

"Dismissal under Rule 12(b)(6) serves to eliminate actions which are fatally flawed in their legal premises and destined to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity." Young v. City of St. Charles, Mo., 244 F.3d 623, 627 (8th Cir. 2001). A cause of action "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d 736, 740 (8th Cir. 2002) (internal citations omitted) (citing Kohl v. Casson, 5 F.3d 1141, 1148 (8th Cir. 1993)). In analyzing the adequacy of a complaint's allegations under Rule 12(b)(6), the Court must construe the complaint liberally and afford the plaintiff all reasonable inferences to be drawn from those facts. See Turner v. Holbrook, 278 F.3d 754, 757 (8th Cir. 2002); Meyer, 281 F.3d at 760.

II. Preemption of Plaintiffs' State Law Claims

Northwest argues that Plaintiffs' state law claims, including their claim under the MHRA for discrimination in public accommodation, are preempted by federal aviation law. The doctrine of preemption derives from the Supremacy Clause of Article VI of the United States Constitution. "Pre-emption may be either express or implied, and is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." Fidelity Fed. Sav. Loan Ass'n v. De La Cuesta, 458 U.S. 141, 152-53 (1982) (internal quotations omitted).

Northwest contends that the Federal Aviation Act ("FAA") of 1958, 49 U.S.C. § 40101 et seq., as amended by the Airline Deregulation Act of 1978 ("ADA"), expressly preempts Plaintiffs' state law claims. Alternatively, Northwest asserts that the federal government's complete occupation of the field of aviation security, including statutes and regulations that give airlines the discretion to refuse to transport passengers and property, implies that Congress intended to preempt state regulation in that field.

A. Express Preemption

The preemption provision of the ADA states, in pertinent part, that "a State, . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart." 49 U.S.C. § 41713(b)(1). In response to Northwest's express preemption argument, Plaintiffs respond that state laws prohibiting discrimination in public accommodations and state common law tort claims do not "relate to a price, route, or service of an air carrier." Plaintiffs argue that, under the Supreme Court cases construing § 41713(b)(1), their state civil rights and tort claims have virtually no relationship to airline competition.

1. Binding precedent construing § 41713(b)(1)

a. Morales v. Trans World Airlines, Inc.

The United States Supreme Court first construed the ADA's preemption provision in Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), a case involving the States' efforts, through the National Association of Attorneys General ("NAAG"), to govern the content and format of airline fare advertisements through the enforcement of their general consumer protection statutes. Justice Scalia, writing for the Court, began and ended the inquiry into "statutory intent" with the language of § 41713. Morales, 504 U.S. at 383. The Court observed that the ordinary meaning of "related to" is broad, "and the words thus express a broad pre-emptive purpose." Id. Looking to cases construing the preemption provision of the Employee Retirement Income Security Act of 1974 ("ERISA"), which preempts state laws "insofar as they . . . relate to any employee benefit plan," 29 U.S.C. § 1144(a) (emphasis added), the Court observed that "a state law `relates to' an employee benefit plan . . . `if it has a connection with, or reference to such a plan.'" Morales, 504 U.S. at 384 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983)). The Court analogized the "related to" language in § 41713(b)(1) to the comparable language in ERISA and determined that a law is "related to a price, route, or service of an air carrier," 49 U.S.C. § 41713(b)(1), where it has "a connection with or reference to airline rates, routes, or services." Morales, 504 U.S. at 384 (internal quotation marks omitted).

In light of its construction, the Court scrutinized the NAAG guidelines on advertisements and concluded that they "related to" fares. Id. at 387-90. Rejecting the argument that the States were "merely preventing the market distortion caused by `false' advertising," id. at 389, the Court determined that

the dynamics of the air transportation industry cause the guidelines to curtail the airlines' ability to communicate fares to their customers. The expenses involved in operating an airline flight are almost entirely fixed costs; they increase very little with each additional passenger. The market for these flights is divided between consumers whose volume of purchases is relatively insensitive to price (primarily business travelers) and consumers whose demand is very price sensitive (primarily pleasure travelers). Accordingly, airlines try to sell as many seats per flight as possible at the higher prices to the first group, and then to fill up the flight by selling seats at much lower prices to the second group (since almost all the costs are fixed, even a passenger paying far below average cost is preferable to an empty seat). In order for this marketing process to work, and for it ultimately to redound to the benefit of price-conscious travelers, the airlines must be able to place substantial restrictions on the availability of the lower priced seats (so as to sell as many seats as possible at the higher rate), and must be able to advertise the lower fares. The guidelines severely burden their ability to do both at the same time . . . .

Id. Justice Scalia cautioned that federal preemption of the NAAG guidelines did not "give the airlines carte blanche to lie to and deceive customers; the [Department of Transportation] retains the power to prohibit advertisements which in its opinion do not further competitive pricing." Id. at 390-91.

b. American Airlines v. Wolens

The Supreme Court again addressed § 41713(b)(1)'s scope in American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995). At issue in Wolens was whether and to what extent § 41713(b)(1) preempted a state court suit, brought by participants in American Airline's frequent flyer program, challenging the airline's retroactive changes to terms and conditions of the program. Wolens, 513 U.S. at 222. The Illinois Supreme Court had concluded that American's frequent flyer program was not "essential" to the operations of the airline, merely "peripheral"; hence, Plaintiffs' claims were only "tangentially" or "tenuously" related to the airline's rates, routes and services. Id. at 226.

The Supreme Court rejected the state supreme court's analysis, concluding that its holding in Morales

does not countenance the Illinois Supreme Court's separation of matters "essential" from matters unessential to airline operations. Plaintiffs' claims relate to "rates," i.e., American's charges in the form of mileage credits for free tickets and upgrades, and to "services," i.e., access to flights and class of service upgrades unlimited by retrospectively applied capacity controls and blackout dates.

Id. The Court determined that the Illinois Consumer Fraud Act, like all state consumer protection legislation, presented "the potential for intrusive regulation of airline business practices" and did not "simply give effect to bargains offered by the airlines and accepted by airline customers." Id. at 227-28. Accordingly, it held that the ADA preempted Plaintiffs' claims under the Illinois Consumer Fraud Act. Id. at 228.

Turning to Plaintiffs' breach of contract claim, however, the Supreme Court indicated that the Act did not "shelter airlines from suits alleging no violation of state-imposed obligations, but seeking recovery solely for the airline's alleged breach of its own, self-imposed undertakings." Id. The Court observed that the terms and conditions an airline offers, and which its passengers accept, are "privately ordered obligations and thus do not amount to a State's enactment or enforcement of any law, rule, regulation, standard, or other provision having the force and effect of law within the meaning of [§ 41713(b)(1)]." Id. at 228-29 (internal quotation marks and brackets omitted). The Court further noted that the Department of Transportation lacked the authority and the resources to administer a contract dispute resolution apparatus. Id. at 232. The Court concluded that the class's claim for breach of contract was not preempted by the ADA.

c. Botz v. Omni Air International

In addition to the Supreme Court's decisions in Morales and Wolens, the Eighth Circuit has also addressed the scope of the ADA's preemption clause, resolving whether the ADA, as amended by the Whistleblower Protection Program of the 2000 Wendell F. Ford Aviation Investment and Reform Act, expressly preempted a former airline employee's claim of retaliatory discharge under Minnesota's whistleblower statute. Botz v. Omni Air Int'l, 286 F.3d 488, 491 (8th Cir. 2002). The court of appeals' concerns arose from the fact that, even if an air carrier were to adhere to every law, rule, and regulation — federal and state — affecting its operations, a flight attendant could nevertheless exercise rights under Minnesota's whistleblower statute and refuse an assignment based on his or her reasonable belief that the assignment would be unlawful. Id. at 495. Because federal aviation regulations require a minimum number of flight attendants for various classes of passenger aircraft, an attendant's refusal to fly could jeopardize an air carrier's ability to complete a scheduled flight. Id. at 494. Thus, the "authorization to refuse assignments, and the protections that [Minnesota's] whistleblower statute provides, have a forbidden connection with an air carrier's service under any reasonable interpretation of Congress's use of the word `service.'" Id. The Eighth Circuit concluded, "When applied to the facts surrounding Botz's discharge, the Minnesota whistleblower statute has a forbidden connection with air-carrier services." Id. at 494.

2. Application of the Preemption Clause to Plaintiffs' State Law Claims

Northwest's motion presents the issue of whether the ADA preempts (a) a state statute that prohibits persons providing public accommodations from denying anyone the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, or national origin, and (b) obligations imposed on persons by state common law that they not inflict emotional distress on an individual. Put another way, the Court must decide whether those state laws "relate to a price, route, or service of an air carrier," as that phrase has been construed by the Supreme Court.

Northwest contends that the MHRA and tort claims all impact the "services of an air carrier" under § 41713(b)(1). It is imprecise, however, in defining the "service" at issue. Northwest contends that its boarding procedures are, in and of themselves, a "service." (See Defs.' Mem. Supp. Mot. to Dismiss at 8-10; Defs.' Reply Mem. at 4.) It also argues that the decision as to whether to allow a passenger to board an aircraft pertains to passenger safety and aviation security, and these "security procedures" attendant to boarding a flight are "directly related" to the "service of an air carrier." (Defs.' Reply Mem. at 1, 3, 5.) To resolve Northwest's motion, the Court must construe the statutory term "service."

Neither the Supreme Court nor the Eighth Circuit has addressed the meaning of the phrase "service of an air carrier" in § 41713(b)(1). On one side of the issue is an en banc decision of the Ninth Circuit holding that Congress used the term "service" in § 41713(b)(1) in "the public utility sense — i.e., to refer to the provision of air transportation to and from various markets at various times." Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1266 (9th Cir. 1998) (en banc). Construing "services" together with its companion nouns — "rates" and "routes" — the Ninth Circuit determined that "services" referred to "such things as the frequency and scheduling of transportation, and the selection of markets to or from which transportation is provided." Id. at 1265-66. In the Ninth Circuit's view, Congress did not intend "services" to include "an airline's provision of in-flight beverages, personal assistance to passengers, the handling of luggage, and similar amenities." Id. at 1261. The Third Circuit has agreed with the approach taken and construction reached in Charas. See Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 194 (3rd Cir. 1998) (indicating that "the proper inquiry is whether a common law tort remedy frustrates deregulation by interfering with competition through public utility-style regulation" and observing that "where a state law does not have a regulatory effect, it is `too tenuous, remote, or peripheral' to be preempted").

By contrast, other courts of appeals have construed "service" more broadly. In Hodges v. Delta Airlines, Inc., 44 F.3d 334 (5th Cir. 1995) (en banc), a majority of the Fifth Circuit decided to adhere to the panel's earlier definition of "services":

"Services" generally represent a bargained-for or anticipated provision of labor from one party to another. If the element of bargain or agreement is incorporated in our understanding of services, it leads to a concern with the contractual arrangement between the airline and the user of the service. Elements of the air carrier service bargain include items such as ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself. These matters are all appurtenant and necessarily included with the contract of carriage between the passenger or shipper and the airline. It is these [contractual] features of air transportation that we believe Congress intended to de-regulate as "services" and broadly to protect from state regulation.

Hodges, 44 F.3d at 336 (emphasis added). The Seventh Circuit has expressly adopted the Fifth Circuit's definition of "services." Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996).

From its review of these appellate decisions, this Court concludes that "services of an air carrier" is best construed as the Fifth Circuit has done in Hodges. The procedures used to move passengers from the terminal onto the plane in an orderly fashion are an integral part of the customer's experience of air travel and are considered in evaluating the quality of their flight. Boarding procedures are relevant to competition in the airline industry. The Court therefore concludes that the term "service" in § 41713(b)(1) encompasses boarding procedures.

The second part of the preemption analysis under the ADA involves determining whether enforcement of the state law causes of action has "a connection with or reference to airline . . . services." Morales, 504 U.S. at 384. The application of § 41713(b)(1) is not limited to laws that directly and explicitly prescribe or regulate an airline's rates, routes, or services. Id. at 385-86. Justice Scalia expressly rejected arguments that "only state laws specifically addressed to the airline industry are preempted" and that "the ADA imposes no constraints on laws of general applicability." Id. at 386.

Besides creating an utterly irrational loophole (there is little reason why state impairment of the federal scheme should be deemed acceptable so long as it is effected by the particularized application of a general statute), this notion similarly ignores the sweep of the "relating to" language. We have consistently rejected this precise argument in our ERISA cases: "[A] state law may `relate to' a benefit plan, and thereby be preempted, even if the law is not specifically designed to affect such plans, or the effect is only indirect."

Id. (quoting Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139 (1990)).

Nevertheless, Morales acknowledged some prudential limits to the scope of ADA preemption, indicating that some state laws may affect airline rates, routes, or services "in too tenuous, remote, or peripheral a manner to have pre-emptive effect." 504 U.S. at 390. Plaintiffs point out that several circuits have held that employment discrimination cases brought against airlines are not preempted by the ADA. See Wellons v. Northwest Airlines, Inc., 165 F.3d 493 (6th Cir. 1999); Parise v. Delta Airlines, Inc., 141 F.3d 1463 (11th Cir. 1998); Aloha Islandair v. Tseu, 128 F.3d 1301 (9th Cir. 1997); Abdu-Brisson v. Delta Airlines, Inc., 128 F.3d 77 (2nd Cir. 1997). From these cases, Plaintiffs argue that state laws prohibiting discrimination against passengers based on membership in a protected class are too tenuously connected to a rate, route or service to warrant preemption.

States have historically governed employment relationships as a subset of contractual relations. Thus, courts have held that employment law falls within the traditional police powers of the States and is subject to the strong assumption that the States' historic police powers should not be superseded by the doctrine of federal preemption. See Botz, 286 F.3d at 493. Plaintiffs have presented no authority suggesting that access to public accommodations is similarly within the States' traditional police powers. Employment discrimination cases do not provide the most compelling analogy for the issue presented by Northwest's motion.

In support of preemption, Northwest relies heavily on Smith v. Comair, Inc., 134 F.3d 254 (4th Cir. 1998), which held that § 41713(b)(1) preempted a passenger's claims for breach of contract, false imprisonment, and intentional infliction of emotional distress arising from the airline's refusal to permit him to board a flight. Comair had refused to fly Smith from Cincinnati to Minneapolis after the airline's representatives at Roanoke, Virginia, where Smith's flight had originated, failed to ask for photo identification. Smith, 134 F.3d at 256.

The court of appeals distinguished Smith's breach of contract claim from the claim in Wolens that had not been preempted on the grounds that, in order to adjudicate Smith's claim, one would have to refer to federal law and policies external to the parties' contractual bargain. Id. at 258. The Fourth Circuit concluded that, because Smith's contract claim implicated a Federal Aviation Administration ("FAA") directive regarding boarding procedures and 49 U.S.C. § 44902(b), the breach of contract claim was preempted. As for the tort claims of false imprisonment and intentional infliction of emotional distress, the court looked to whether the claims were premised on the airline's refusal to allow him to board his flight or on conduct distinct from the decision not to allow him to board. "To the extent Smith's claims are based upon Comair's boarding practices, they clearly relate to an airline service and are preempted under the ADA." Id. at 259 (internal citations omitted).

Smith is distinguishable from the instant case in at least two regards. Comair's decision not to board Smith arose from Smith's inability to comply with a specific and objective FAA-mandated boarding requirement. The FAA required all passengers to present, prior to boarding any flight, either an official photo identification issued by a government authority or two forms of identification, one of which had to be issued by a governmental agency. Smith indisputably did not have the identification needed to board his flight. Had Comair let Smith board without proper identification, it would have violated federal aviation regulations. No objective federal boarding requirement has been alleged to have been involved in Northwest's decision not to board Plaintiffs on their flight to Salt Lake City. Taking as true the allegations in the Complaint, Plaintiffs had been cleared to fly by federal and local law enforcement.

Furthermore, the Fourth Circuit's emphasis on security as the impetus for preemption appears to be a questionable extension of ADA preemption doctrine. Congress' intent in enacting the ADA and its express preemption provision did not embrace issues of aviation safety.

In 1978 . . . Congress, determining that "maximum reliance on competitive market forces" would best further "efficiency, innovation, and low prices" as well as "variety [and] quality . . . of air transportation services," enacted the Airline Deregulation Act. . . . . To ensure that the states would not undo federal deregulation with regulation of their own, the ADA included a preemption provision, prohibiting the states from enforcing any law "relating to rates, routes, or services" of any air carrier.

Morales, 504 U.S. at 378-79; see 49 U.S.C. § 40101(a)(6), 40101(a)(12)(A), and 40101(a)(12)(B); see also Wolens, 513 U.S. at 229, n. 5 (stating that "the ban on enacting or enforcing any law `relating to rates, routes, or services' is most sensibly read, in light of the ADA's overarching deregulatory purpose, to mean States may not seek to impose their own public policies or theories of competition or regulation on the operations of an air carrier"). Section 40101 of Title 49 sets out, inter alia, the policies Justice Scalia identified as those Congress sought to further through airline deregulation. It begins as follows: "In carrying out subpart II of this part and those provisions of subpart IV applicable in carrying out subpart II, the Secretary of Transportation shall consider the following matters, among others, as being in the public interest and consistent with public convenience and necessity . . . ." 49 U.S.C. § 40101(a). Subpart II is entitled "Economic Regulation." The ADA's preemption provision is codified in subpart II. By contrast, the provisions addressing aviation security, including § 44902 (which both the Smith opinion and Northwest cite) are codified in subpart III. Safety is a separate issue from economic regulation.

The Morales Court rejected the argument of the Attorneys General that the Court's construction of the preemption clause would "set out on a road that leads to preemption of state laws against gambling and prostitution as applied to airlines." Morales, 504 U.S. at 390.

Nor need we address whether state regulation of the nonprice aspects of fare advertising (for example, state laws preventing obscene depictions) would similarly "relat[e] to" rates; the connection would obviously be far more tenuous. To adapt to this case our language in Shaw, "[s]ome state actions may affect [airline fares] in too tenuous, remote, or peripheral a manner" to have pre-emptive effect.

Id. (quoting Shaw, 463 U.S. at 100, n. 21).

The preemption of state laws that ensure equal access to public accommodations would do nothing to further the purposes of the ADA — namely, the fostering of "maximum reliance on competitive market forces." Just as the vices of gambling, prostitution, and obscenity can have no legitimate relationship to "competitive market forces," neither can intentional discrimination on the basis of race, creed, color, national origin, gender, or religion. Enforcement of the MHRA does not impose a theory of competition on the airline industry; refraining from the violation of individuals' civil rights is not a theory of competition. Similarly, the preemption of state law claims for the wrongful infliction of emotional distress does not advance the purpose of increasing competition between airlines where such claims arise from conduct that is alleged to be the product of a discriminatory animus. This Court concludes that the state laws Plaintiffs have invoked in their Complaint have a connection with Northwest's boarding procedures that is too tenuous to warrant preemption under the ADA. Northwest's motion to dismiss the state law claims as expressly preempted by the ADA will be denied.

B. Implied Preemption

The Eighth Circuit has indicated that, ordinarily, courts "do not consider theories of implied preemption where, as here, Congress has considered the issue of preemption and has included in the enacted legislation a provision explicitly addressing that issue." Botz, 286 F.3d at 493 (internal quotation marks and citation omitted). Having addressed express preemption above, the Court will not consider Northwest's implied preemption arguments.

III. Section 1981

Northwest challenges the legal sufficiency of Plaintiffs' § 1981 claim on the grounds that (1) the Complaint fails to show that Northwest intended to discriminate against Plaintiffs on the basis of race, and (2) the Complaint does not allege facts supporting an inference that Northwest interfered with Plaintiffs' rights to "make and enforce contracts" because of their race. (Defs.' Mem. Supp. Mot. to Dismiss at 14.)

Section 1981 provides in pertinent part that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts." 42 U.S.C. § 1981(a). The phrase "make and enforce contracts" includes the "making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Id. § 1981(b). "To recover damages under section 1981, a plaintiff must establish that: (1) the plaintiff is a member of a racial minority; (2) defendant intended to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in the statute, e.g., to make and enforce contracts." Smith v. DataCard Corp., 9 F. Supp.2d 1067, 1078 (D.Minn. 1998) (Magnuson, J.).

The Complaint alleges that Northwest engaged in intentional discrimination in that the airline refused to permit Plaintiffs to fly Northwest Airlines Flight 5673 on September 20, 2001, because of their "race, color, religion, ancestry, and/or national origin." (Compl. ¶ 49.) Northwest argues that one cannot infer racial discrimination from the facts alleged in the Complaint because Plaintiffs were not "similarly situated in all material respects" to the non-Middle Eastern passengers permitted to board the flight. The airline contends that, whereas Plaintiffs had been approached and questioned by law enforcement officials "in front of the gate where the plane was to board," it has not been alleged that other passengers received such intense official scrutiny. Northwest's argument ignores the allegations in the Complaint that the law enforcement officers ultimately "cleared" Plaintiffs for travel not once, but twice — the first time in Philadelphia, and the second time in Minneapolis. Plaintiffs thus could indeed be described as similarly situated to the non-Middle Eastern passengers who had also been cleared by security for airline travel.

As for interference with Plaintiff's right to make and enforce contracts, Northwest argues that the facts alleged in the Complaint are inconsistent with the existence of a "sufficiently adverse interference with Plaintiffs' contract rights" to warrant relief under § 1981. Northwest contends that, because it only delayed Plaintiffs' departure from Minneapolis by approximately four hours and ultimately found them seats on another flight on another airline bound for the same city, it "substantially provided the service for which Plaintiffs contracted." (Defs.' Mem. Supp. Mot. to Dismiss at 17.) The Court does not agree.

Plaintiffs allege in their Complaint that they had contracted for a specific service with Northwest — namely, seats on a specific flight that would arrive in Salt Lake City in the late afternoon of September 20, 2001 — and the airline did not provide that service. Northwest has not presented compelling authority establishing that one can avoid liability under § 1981 by making arrangements for another person to provide a service similar to that which the defendant refused to provide. Northwest has not demonstrated, as a matter of law, that no set of facts exists consistent with the allegations in the Complaint upon which relief could be granted under § 1981. The Court will deny the Defendants' motion to dismiss the § 1981 claim.

IV. Title VI of the Civil Rights Act of 1964

Plaintiffs' Complaint also alleges that Northwest "acted intentionally, maliciously, and with willful, callous, wanton, and reckless disregard for Plaintiffs' federally protected rights," (Compl. ¶ 56), in violation of Title VI of the Civil Rights Act of 1964, by discriminating against them on the basis of race, color, or national origin. Under Title VI, "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d.

The two elements for establishing a cause of action pursuant to Title VI are (1) that the entity involved is engaging in racial or national origin discrimination and (2) the entity involved is receiving federal financial aid. As in Title VII cases, discriminatory effect alone is sufficient to satisfy the first element, intent to discriminate need not be proven.

Jackson v. Conway, 476 F. Supp. 896, 903 (E.D.Mo. 1979), aff'd 620 F.2d 680 (8th Cir. 1980). Northwest's arguments for dismissal are leveled at the second essential element of the Title VI claim and Plaintiffs' standing to assert such a claim.

Northwest argues that it did not receive general federal financial assistance at the time of the discrimination alleged in the Complaint. Plaintiffs have alleged in their Complaint that "Defendants are the recipient of federal financial assistance, and [are] thus covered by Title VI of the Civil Rights Act of 1964," (Compl. ¶ 55), and, more specifically, that

[s]ince September 2001, Northwest Airlines Corp. and its subsidiary Northwest Airlines, Inc., have received at least $405 million dollars in federal financial assistance, including $249 million prior to September 30, 2001, pursuant to the Air Transportation Safety and System Stabilization Act. Northwest Airlines Corp. and Northwest Airlines, Inc. are therefore required to abide by the terms of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and its implementing regulations.

(Id. ¶ 9.) Northwest contends that the Air Transportation Safety and System Stabilization Act was not signed into law until September 22, 2001 — two days after the events out of which Plaintiffs' claims arise. Therefore, it had not received federal funds at the time the incident at the Minneapolis/St. Paul Airport occurred.

As the Supreme Court has observed,

Under the program-specific statutes, Title VI, Title IX, and § 504 [of the Rehabilitation Act], Congress enters into an arrangement in the nature of a contract with the recipients of the funds: the recipient's acceptance of the funds triggers coverage under the nondiscrimination provision. See Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2nd Cir. 1983) ("This emphasis upon the contractual nature of the receipt of federal moneys in exchange for a promise not to discriminate is still another reason to conclude that Title VI does not cover direct benefit programs since these programs do not entail any such contractual relationship") . . . .

United States Dep't of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 605-06 (1986). The Complaints' factual allegations are not inconsistent with facts that could establish that Northwest received federal financial assistance prior to the incident on September 20, 2001. Of the $405 million Northwest allegedly received from the federal government "since September 2001," only $249 million are allegedly attributable to passage of the Air Transportation Safety and System Stabilization Act. Accepting as true Plaintiffs' allegation that the remaining $156 million was also received "since September 2001," and giving Plaintiffs all beneficial inferences, the Court cannot conclude that Plaintiffs have failed to plead an essential element of their Title VI claim.

Northwest also contends that Plaintiffs' Title VI claim must be dismissed because it fails to allege that Plaintiffs were the "intended beneficiaries" of any federal funds that the airline had received at the time of the September 20, 2001 incident. This contention is another way of stating the argument that Plaintiffs lack standing to sue under Title VI. See Scelsa v. City Univ. of New York, 806 F. Supp. 1126, 1140 (S.D.N.Y. 1992) (holding that, to have standing to bring a Title VI claim, the plaintiffs must be the intended beneficiaries of the federal spending program).

Neither the Eighth Circuit nor this Court has addressed the "standing" necessary to maintain a Title VI claim; other jurisdictions disagree as to whether the requirement articulated in Scelsa is too narrow. See, e.g., Farm Labor Organizing Ctte. v. Ohio State Highway Patrol, 95 F. Supp.2d 723, 742 (N.D.Ohio. 2000) (criticizing Scelsa for reading Title VI too narrowly); Bryant v. New Jersey Dep't of Transp., 998 F. Supp. 438 (D.N.J. 1998) (reconsidering dismissal of plaintiffs' claims in light of National Credit Union Admin. v. First Nat'l Bank Trust Co., 522 U.S. 479 (1998), and concluding that the "`intended beneficiary' doctrine was no longer a valid interpretation of the zone of interests protected by Title VI"); Fobbs v. Holy Cross Health System Corp., 29 F.3d 1439, 1447 (9th Cir. 1994) (holding there was "no requirement that plaintiff plead that he was an intended beneficiary of the federally funded program in which defendants are alleged to have participated" for a Title VI claim), overruled on other grounds by Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131 (9th Cir. 2001). The Court concludes that, as Title VI is a remedial statute, the "zone of interests" to be protected by Title VI must be construed broadly. Plaintiffs need not plead or prove that they were "intended beneficiaries" of any federal financial aid Northwest received. Accordingly, Northwest's motion to dismiss the Title VI claim will be denied.

V. Negligent and Intentional Infliction of Emotional Distress

In their fourth cause of action, Plaintiffs complain that Northwest's conduct on September 20, 2001, was extreme and outrageous, intentional, and done with conscious disregard of their rights, causing them humiliation, mental pain, emotional distress, and suffering. (Compl. ¶ 65.) In their fifth cause of action, Plaintiffs claim that Northwest Airlines, as a common carrier, owed them a duty of care to ensure that it did not cause them unnecessary or unjustified harm, and breached that duty by discriminating against them, thereby negligently inflicting emotional distress. (Compl. ¶¶ 70, 71.) Plaintiffs describe the extent of their injury as follows:

Plaintiffs have suffered and continue to suffer fear, emotional distress, embarrassment, and humiliation. Since being subjected to Northwest's discriminatory acts, Plaintiffs have avoided flying where possible and have driven instead. They have experienced anxiety each time they have had to fly based on the fear that they will have a similar humiliating and distressing experience. Plaintiffs' experience with Northwest causes them additional distress because Northwest has failed to take any steps to prevent airline employees on future flights from ignoring security determinations and refusing to let them fly. Plaintiffs have experienced still further fear and distress because Northwest blatantly violated their firmly recognized civil rights and has at all times refused to acknowledge or apologize for this.

(Compl. ¶ 45.)

Northwest moves to dismiss the common law counts on the grounds that they fail to state a claim under Minnesota law. "To sustain a claim for intentional infliction of emotional distress, plaintiff must establish: (1) the conduct was extreme and outrageous; (2) the conduct was intentional or reckless; (3) it caused emotional distress; and (4) the distress was severe." K.A.C. v. Benson, 527 N.W.2d 553, 560 (Minn. 1995) (citation omitted). Furthermore, the defendant "must intend to cause severe emotional distress or proceed with the knowledge that it is substantially certain, or at least highly probable, that severe emotional distress will occur." Id. Northwest Airlines argues that the Complaint fails to allege "extreme or outrageous conduct" — that is, conduct "so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community." Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 439 (Minn. 1983). Plaintiffs respond that discrimination based on race and national origin is "outrageous conduct," relying on Moysis v. DTG Datanet, 278 F.3d 819 (8th Cir. 2002).

Moysis is not relevant to this Court's analysis of Minnesota law. Moysis involved a claim for intentional infliction of emotional distress under South Dakota law, which differs from Minnesota law in an important respect:

Although in South Dakota the tort of intentional infliction of emotional distress includes extreme and outrageous conduct . . . the tort also includes reckless conduct resulting in emotional distress. To establish reckless conduct, a plaintiff must show that a defendant recklessly acted in a manner which would create an unreasonable risk of harm to him, and that [defendant] knew or had reason to know of facts which would lead a reasonable man to realize that such actions would create the harm that occurred.

Moysis, 278 F.3d at 827 (emphasis added) (internal quotation marks and citations omitted). The Eighth Circuit found sufficient evidence to support a finding of reckless conduct resulting in emotional distress, including the fact that the defendants knew that the plaintiff had a vulnerability to emotional distress. Minnesota's tort has no comparable provision. Plaintiffs have offered no case in which race or national origin discrimination of the scope and nature alleged here has been deemed "so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community."

"An independent claim of negligent infliction of emotional distress arises only where the plaintiff was within a `zone of danger' created by defendant's negligent conduct and as a result suffered `severe emotional distress with resultant physical injury.'" Neppl v. Signature Flight Support Corp., 234 F. Supp.2d 1016, 1025 (D.Minn. 2002) (Doty, J.). Minnesota courts recognize an exception to the "zone of danger" requirement, however, for mental anguish or suffering due to a direct invasion of an individual's rights, such as defamation, malicious prosecution, or other willful, wanton or malicious conduct. See State Farm Mut. Auto. Ins. Co. v. Village of Isle, 122 N.W.2d 36, 41 (Minn. 1963). Plaintiffs argue that discrimination of the type alleged here is "willful, wanton and malicious conduct," and it has certainly been pled as such.

The Complaint, however, lacks allegations of any physical manifestations of emotional distress. "Because emotional distress is highly subjective, often transient, and easily alleged, our tort law . . . requires physical manifestation of the distress as proof of the genuineness and gravity of the emotional suffering." Soucek v. Banham, 503 N.W.2d 153, 164 (Minn.Ct.App. 1993); see also Neppl, 234 F. Supp.2d at 1026. Plaintiffs have alleged only generalized complaints of fear, emotional distress, embarrassment, humiliation, and anxiety. They have alleged no physical manifestations of distress. The Complaint's allegations are insufficient as a matter of law to state a claim for negligent infliction of emotional distress. Accordingly, Counts Four and Five will be dismissed.

Conclusion

Based on the foregoing, and all of the files, records, and proceedings herein, IT IS ORDERED that Defendants Northwest Airlines Corporation and Northwest Airlines, Inc.'s Motion to Dismiss (Doc. No. 8) is GRANTED IN PART. Plaintiffs' Fourth and Fifth Causes of Action are DISMISSED WITH PREJUDICE.