Musekiwa v. American Airlines

2013 DNH 099

• Court: District Court, D. New Hampshire
• Decided: July 18, 2013
• Docket: 12-CV-120-SM
• Status: Published

Opinion

Musekiwa v . American Airlines 12-CV-120-SM 7/18/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Joachim S . Musekiwa, Plaintiff

v. Case N o . 12-cv-120-SM Opinion N o . 2013 DNH 099 American Airlines, Inc., Defendant

O R D E R

Pro se plaintiff, Joachim Musekiwa, brings this defamation

action against American Airlines, seeking $3 Million in

compensatory damages. He says that when American denied his

claim for compensation arising out of an allegedly lost piece of

luggage, it wrongfully and maliciously suggested he was “a

criminal who is connected to an illegal criminal scheme to

falsify baggage [loss] claims.” Complaint (document n o . 1-1) at

1. American denies any liability and moves for summary judgment.

For the reasons discussed, that motion is granted.

Standard of Review

When ruling on a motion for summary judgment, the court must

“view the entire record in the light most hospitable to the party

opposing summary judgment, indulging all reasonable inferences in

that party’s favor.” Griggs-Ryan v . Smith, 904 F.2d 1 1 2 , 115

(1st Cir. 1990). Summary judgment is appropriate when the record reveals “no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). In this context, “a fact is ‘material’ if it

potentially affects the outcome of the suit and a dispute over it

is ‘genuine’ if the parties’ positions on the issue are supported

by conflicting evidence.” Int’l Ass’n of Machinists & Aerospace

Workers v . Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st

Cir. 1996) (citations omitted). Nevertheless, if the non-moving

party’s “evidence is merely colorable, or is not significantly

probative,” no genuine dispute as to a material fact has been

proved, and “summary judgment may be granted.” Anderson v .

Liberty Lobby, Inc., 477 U.S. 2 4 2 , 249-50 (1986) (citations

omitted).

The key, then, to defeating a properly supported motion for

summary judgment is the non-movant’s ability to support his or

her claims concerning disputed material facts with evidence that

conflicts with that proffered by the moving party. See generally

Fed. R. Civ. P. 56(c). It naturally follows that while a

reviewing court must take into account all properly documented

facts, it may ignore a party’s bald assertions, unsupported

conclusions, and mere speculation. See Serapion v . Martinez, 119

F.3d 9 8 2 , 987 (1st Cir. 1997). See also Scott v . Harris, 550

U.S. 3 7 2 , 380 (2007) (“When opposing parties tell two different

2 stories, one of which is blatantly contradicted by the record, so

that no reasonable jury could believe i t , a court should not

adopt that version of the facts for purposes of ruling on a

motion for summary judgment.”).

Background

On July 1 7 , 2011, Musekiwa flew from London to Boston on a

flight operated by American. When he arrived in Boston, he

reported to the airline that he was unable to locate a piece of

checked luggage. On August 8 , 2011, he completed and submitted

to American a “Property Questionnaire” (document n o . 1 1 - 1 ) ,

seeking compensation for approximately $1,300 in lost personal

belongings. Among other things, that form asked: “Have you, or

any member of your household, had a previous baggage claim with

AA or any other airline?” Id. at 5 (emphasis supplied).

Musekiwa replied, “yes,” and reported that approximately 18

months earlier he made a claim with South African Airlines for

lost baggage. He neglected, however, to disclose the fact that,

only three months earlier, his daughter made a lost-baggage claim

with Southwest Airlines for nearly $9,000.1

1 On the claim form she submitted to Southwest Airlines, Musekiwa’s daughter reported that her home address was the same as Musekiwa’s - that is to say, they lived in the same “household.”

3 During the course of its investigation, American discovered

the daughter’s claim with Southwest and realized that Musekiwa

had not disclosed i t . Based on the fact that Musekiwa and

another member of his household had made three claims for lost

baggage within the prior 18 months, American decided to deny his

claim, explaining:

In our evaluation of this claim, it has been noted that there have been multiple instances of reported baggage problems with American and/or other airlines. Some of these claims may have been reported by members of your family or others who reside in the same household.

Since our experience has proved that multiple baggage losses or other problems which occur repeatedly to one individual or among members of the same household are extremely rare, we must respectfully decline to honor this current claim. Like all claims adjustment agencies, we must carefully weigh all aspects of the validity of every claim submitted.

Letter from T . Townsend to M r . Musekiwa, dated December 8 , 2011

(document n o . 11-1) at 11 (the “Denial Letter”).

Musekiwa responded in a sternly-worded letter dated December

2 1 , 2011. In i t , he took issue with American’s decision to deny

his claim, accused the airline of racial discrimination, and

threatened litigation. Id. at 12-13. He also sent copies of

that letter to the United States Department of Transportation,

the Federal Aviation Administration, the Texas Attorney General,

and the Better Business Bureau (“BBB”) (it i s , however, unclear

4 if he also provided those parties with copies of American’s

Denial Letter).

Shortly after receiving Musekiwa’s letter, a representative

of American contacted the BBB, explaining that its baggage policy

was not influenced by racial or discriminatory preferences of any

kind and noting that it would file a formal response to

Musekiwa’s allegations in due course. That response came on

January 2 4 , 2012, in a letter addressed to Musekiwa (a copy of

which was provided to the B B B ) . In i t , American said:

Our manager in the American Airlines Central Baggage Service office has reviewed your suggestion that racism was a motive in the decision to deny your baggage claim. He has concluded that your claim was denied because you failed to disclose previous baggage related claims with American and other carriers on the Property Questionnaire. As you may recall, you signed our form specifically indicating that you had no prior baggage claims with American, however we discovered otherwise. As such, your failure to disclose previous claim activity was the sole reason for our denial. We are confident that discrimination played no part in our decision and we must emphatically deny the presence of any discriminatory intent in this matter.

Id. at 1 6 . Three days later, American sent Musekiwa a revised

letter, correcting a factual misstatement in the original. In

relevant part, the revised letter provided:

[The manager in the American Airlines Central Baggage Service office] has concluded however that your claim was initially denied because there was a failure to disclose a previous baggage related claim with a

5 particular carrier. The claim with another carrier appears to have been reported by another member of your family or someone who lives in your household.

Id. at 1 8 . Despite its initial decision to deny Musekiwa’s

claim, American says that in the interest of maintaining good

customer relations, it reversed course and decided to pay the

claim in full. It notified him of that decision in the revised

letter. He was issued a check for the full amount claimed

($1,297.94), which he acknowledges having cashed.2

Subsequently, it appears the BBB “closed” its file on this

matter and removed any related materials that had been published

to its website and available for public viewing - including

Musekiwa’s “complaint” in which he accused American of racial

discrimination, as well as American’s letters in response.

Neither Musekiwa nor American obtained copies of those documents

before the BBB removed them from public access.3

2 In his various filings Musekiwa claims that, despite having received the full amount sought on his claim form, he is still owed nearly $800. But, the record is devoid of any evidence to support that claim. Musekiwa does, however, allude to a separate state court action he filed against American to recover the additional money he claims to be owed. 3 Musekiwa’s pro se filings are not entirely clear on this point, but it is possible he is claiming that, in addition to the letters it sent to him, American also authored some additional materials that were published on the BBB website. If such materials exist, he has failed to describe them, neglected to state how they might be construed as defamatory, and failed to provide copies of them. See Musekiwa deposition at 105, 109.

6 In February of 2012, Musekiwa filed a one-count writ in

state court, alleging that American defamed him. American

removed the action to this forum. Given Musekiwa’s pro se

status, it is not surprising that his complaint fails to

articulate the precise basis for his claim. But, when asked at

his deposition to explain why he believed American had defamed

him, Musekiwa said:

The fact that American Airlines said that I did not disclose [my daughter’s prior lost baggage claim] on their property questionnaire. So the fact that I did not disclose it means that I was hiding something so that I could get some money from American Airlines. I would defraud the airline. I was hiding something.

Deposition of Joachim Musekiwa (document n o . 11-2) at 112.

Discussion

To prevail on his defamation claim, Musekiwa must

demonstrate that American “failed to exercise reasonable care in

publishing a false and defamatory statement of fact about the

plaintiff to a third party, assuming no valid privilege applies

to the communication.” Pierson v . Hubbard, 147 N.H. 7 6 0 , 763-64

(2002) (emphasis supplied). See also Independent Mechanical

Contractors v . Gordon T . Burke & Sons, 138 N.H. 1 1 0 , 118 (1993).

A statement of fact is “defamatory” if it tends “to lower the

plaintiff in the esteem of any substantial and respectable group,

7 even though it may be quite a small minority.” Touma v . S t .

Mary’s Bank, 142 N.H. 7 6 2 , 765 (1998).

Importantly, however, “[a] statement is not actionable if it

is substantially true.” Simpkins v . Snow, 139 N.H. 735, 740

(1995). Moreover, under New Hampshire law, a conditional

privilege exists “if the facts, although untrue, were published

on a lawful occasion, in good faith, for a justifiable purpose,

and with a belief, founded on reasonable grounds of its truth,

provided that the statements are not made with actual malice.”

Id. (citations and internal punctuation omitted).

Here, the record establishes that Musekiwa simply cannot

prevail on his defamation claim. First, the allegedly offensive

statements made by American were all substantially true. In

fact, Musekiwa concedes that he neglected to disclose the lost-

baggage claim filed by his daughter. See Deposition of Joachim

Musekiwa (document n o . 11-2) at 2 9 , 6 1 , and 6 3 . He also concedes

that he should have disclosed that claim. Id. at 3 1 . That

Musekiwa has an explanation or even an excuse for having failed

to share that information with American is immaterial to his

defamation claim. The critical fact is this: American accurately

stated that he failed to disclose a lost baggage claim filed by a

8 member of his household. As a matter of law, then, that

statement of fact is not actionable.

Nor does the implication of American’s decision to deny

Musekiwa’s claim give rise to a viable defamation claim.

Reasonably construed, American’s statements to Musekiwa amount to

something like the following: “based upon the number of claims

made by you and members of your household in the recent past, and

based upon our experience suggesting that such repeated claims

are rare, we do not believe you.” The facts forming the basis of

American’s credibility determination are fully disclosed (and

accurate). Consequently, its view that Musekiwa’s claim was

invalid, even false, is an expression of opinion that is not

actionable.

The First Amendment does not inoculate all opinions against the ravages of defamation suits. A statement couched as an opinion that presents or implies the existence of facts which are capable of being proven true or false can be actionable. See Milkovich v . Lorain Journal Co., 497 U.S. 1 , 18-19 (1990); see also Restatement (Second) of Torts § 566 (1977) (“A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.”). Thus, a statement normally is not actionable unless it contains an objectively verifiable assertion. Chief Judge Posner has captured the distinction between statements that are actionable and those that are not:

A statement of fact is not shielded from an action for defamation by being prefaced with

9 the words ‘in my opinion,’ but if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.

Levinsky’s, Inc. v . Wal-Mart Stores, Inc., 127 F.3d 1 2 2 , 127-28

(1st Cir. 1997) (quoting Haynes v . Alfred A . Knopf, Inc., 8 F.3d

1222, 1227 (7th Cir. 1993)) (footnotes omitted). See also

Southern Ins. C o . of VA v Advanced Coatings, Inc., 2009 WL

4730495 (W.D.N.C. Dec. 4 , 2009) (holding that insurer’s claim

denial letter, in which it informed insured that it was

“investigating the possibility of misrepresentation on [its]

original policy application” was an accurate statement of fact

and, therefore, not defamatory); U.S.A. United Staffing Alliance

v . Workers’ Comp. Fund, 213 P.3d 20 (Utah App. 2009) (holding

that insurer’s statement that insured no longer had coverage

because it had failed to pay premiums was an accurate statement

of fact and, therefore, not defamatory).

Moreover, even if American’s statements about the

undisclosed claim filed by Musekiwa’s daughter had been false,

they likely would have been conditionally privileged, given the

circumstances under which those statements were made and the fact

that Musekiwa has pointed to nothing in the record which even

remotely suggests that American acted with malice toward him.

10 See Simpkins, 139 N.H. at 740. See generally Caouette v .

OfficeMax, Inc., 352 F. Supp. 2d 1 3 4 , 143 (D.N.H. 2005). See

also Guzhagin v . State Farm Mut. Auto. Ins. Co., 556 F. Supp. 2d

962 (D.Minn. 2008) (concluding, under governing state law, that

an insurer’s explanation for why it had denied insured’s claim

was subject to a qualified privilege and, therefore, not the

basis of a viable defamation action).

Conclusion

For the foregoing reasons, as well as those set forth in

American’s memoranda (documents n o . 11 and 1 5 ) , defendant’s

Motion for Summary Judgment (document n o . 10) is granted. To the

extent plaintiff’s pleading captioned “Motion to Dismiss

Affidavit of Robert Fraga” (document n o . 13) may properly be

deemed a motion (rather than simply an objection to summary

judgment), it is denied.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

___________ c ^'^^"^ Steven J./McAuliffe Jnited States District Judge

July 1 8 , 2013

11 cc: Joachim S . Musekiwa, pro se Edward P. O’Leary, Esq.