Flyersrights.org V Delta

Case 4:09-cv-03305

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION COALITION FOR AN AIRLINE PASSENGERS’ BILL OF RIGHTS, a/k/a FLYERSRIGHTS.ORG and KATHLEEN HANNI, Individually

§ § § § § § § § § § § §

v.

DELTA AIR LINES, INC., and METRON AVIATION, INC.

CIVIL ACTION NO. ________________ (JURY)

PLAINTIFFS’ ORIGINAL COMPLAINT TO THE HONORABLE JUDGE OF SAID COURT: COALITION FOR AN AIRLINE PASSENGERS’ BILL OF RIGHTS, a/k/a FLYERSRIGHTS.ORG, and KATHLEEN HANNI, Individually, (sometimes referred to as “Plaintiffs”), bring this lawsuit complaining of DELTA AIR LINES, INC. and METRON AVIATION, INC. (sometimes referred to as “Defendants”), and would respectfully show the following: I. PARTIES 1.

Plaintiff COALITION FOR AN AIRLINE PASSENGERS’ BILL OF RIGHTS, a/k/a

FLYERSRIGHTS.ORG is a registered non-profit organization with its principal place of business in Napa, Napa County, California. 2.

Plaintiff KATHLEEN HANNI is a resident of Napa, Napa County, California.

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3.

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Defendant, DELTA AIR LINES, INC., is a foreign corporation organized and existing

under the laws of the State of Delaware and with its principal office in Atlanta, Georgia. Defendant may be served with citation by serving its registered agent for service of process in Texas: Corporation Service Company, 701 Brazos Street, Suite 1050, Austin, TX 78701. 4.

Defendant, METRON AVIATION, INC., is a foreign corporation organized and

existing under the laws of the State of Virginia and with its principal office in Dulles, Virginia. Defendant does not maintain a regular place of business or a designated agent for service of process in Texas. Defendant has sufficient contacts with Texas under the Texas LongArm Statute, and therefore may be served with process by serving the Texas Secretary of State, 1019 Brazos Street, Austin, Texas 78701. Defendant’s home office is: 45300 Catalina Court, Suite 101, Dulles, VA 20166. II. JURISDICTION 5.

This Court has jurisdiction over the lawsuit under 28 U.S.C. § 1332(a) because it

involves a suit between citizens of different states, in which no Defendant is a citizen of the same state as Plaintiff. III. VENUE 6.

Venue is proper in this district under 28 U.S.C. § 1391(a)(2) because a substantial

part of the events or omissions giving rise to the claim occurred in this judicial district.

2

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IV. FACTS 7.

Kathleen Hanni (“Hanni”), executive director of the Coalition for an Airline

Passengers’ Bill of Rights, a/k/a Flyersrights.org, had her privacy invaded when her AOL e-mail account and personal files on her computer were hacked, copied and then corrupted. Specifically, private e-mails and sensitive files were obtained by Delta Air Lines, Inc. (“Delta”) and subsequently used to sabotage Flyersrights’ efforts to pass the “Airline Passenger’s Bill of Rights of 2009” through Congress. 8.

Hanni is the founder and executive director of Flyersrights, a non-profit organization

dedicated to protecting the rights of airline passengers. First established in January 2007, Flyersrights has been aggressively advocating for Congress to pass legislation that would require airlines to recognize airline passengers’ rights during tarmac delays. As a result of Hanni and the organization’s efforts, there are currently four airline-passenger’s-rights bills before Congress. 9.

California Congressman Mike Thompson and Senator Barbara Boxer currently have

bills before Congress to establish the “Airline Passenger Bill of Rights of 2009.”1 The bills would require airlines to provide food, water, access to restrooms, clean air and access to medical treatment during flight delays on the tarmac. 10.

More importantly, the bills would require airlines to provide passengers the option

to deplane if they have been delayed on the tarmac for over three hours. If the bills are passed, airlines stand to lose over $40,000,000.00 in lost revenues and millions more in accommodations for flyers deplaned during delays.

1

Exhibits “A” & “B,” H.R. 624, “Airline Passenger Bill of Rights Act of 2009" & S. 213, “Airline Passenger Bill of Rights Act of 2009"

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Beginning in February 2009, Hanni exchanged information with Frederick J.

Foreman, PhD (“Foreman”), an MIT graduate working for Metron Aviation, Inc. (“Metron”). Foreman was hired by the FAA to analyze airline surface delays.

During their

correspondence, Foreman, with explicit permission from Metron, updated Hanni with public information and statistics from his research and analysis. Hanni, in return, provided Foreman with data and information she acquired about surface delays. In his final report, Foreman pinpoints Delta as an airline experiencing excessive surface delays.2 12.

During the time Hanni was sharing information with Foreman, Hanni’s personal

computer files and Flyersrights e-mail accounts were hacked. America Online (“AOL”), Hanni’s e-mail service provider, confirmed the e-mail accounts were hacked. As a result of the hacking, spreadsheets, lists of donors, e-mails, Department of Transportation statistics and Hanni’s personal files were redirected to an unknown location. Additionally, all of the information on Hanni’s personal laptop was corrupted and rendered useless. 13.

On September 25, 2009, Metron executives confronted Foreman with the stolen e-

mails and claimed Delta, a client of Metron, was angry about Hanni getting information that would help pass the Airline Passenger Bill of Rights.3 Metron had the stolen e-mails and files from AOL and Hanni’s personal computer in its possession.

2

Exhibit “C”, Excessive Surface Delay Final Report

3

Exhibit “D”, Affidavit of Frederick J. Foreman

4

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When Foreman asked Metron how Metron obtained the information, Metron

claimed that Delta had provided them with the stolen e-mails.4 Confirming Metron’s claims, the screenshots of the stolen e-mails presented to Foreman were from Delta. Foreman was fired by Metron the same day. V. EXHIBITS 15.

Plaintiffs attach and incorporate the following: Exhibit A:

H.R. 624, “Airline Passenger Bill of Rights Act of 2009;”

Exhibit B:

S. 213, “Airline Passenger Bill of Rights Act of 2009;”

Exhibit C:

Excessive Surface Delay Final Report; and

Exhibit D:

Affidavit of Frederick J. Foreman, PhD. VI. CONSPIRACY

16.

Defendants conspired to accomplish an unlawful purpose or a lawful purposed by

an unlawful means. Defendants had a meeting of the minds in their course of action and one or all committed an unlawful, overt act to further the object or their course of action. 17.

Specifically, Delta conspired with Metron (or others) to obtain Plaintiffs’ emails and

computer files. Delta then provided Metron with the illegally obtained emails and files from Plaintiffs’ computer and AOL account. 18.

Defendants conspired to hack or obtain hacked information from Plaintiffs’ computer

and AOL account, with the purpose of derailing the “Airline Passenger Bill of Rights of 2009." As a result, Plaintiffs suffered injury as a proximate cause of such wrongful acts.

4

Id.

5

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VII. INVASION OF PRIVACY 19.

Defendants intentionally intruded upon Hanni’s solitude, seclusion or private affairs

and concerns. Defendants’ intrusion would be highly offensive to a reasonable person and was unwarranted and unjustified. 20.

Specifically, Delta hacked Hanni’s computer and accessed Hanni’s personal e-mail

and files without authorization. Delta illegally obtained personal and private information that they later gave to Metron. 21.

Defendants invaded Hanni’s privacy, with the purpose of derailing the “Airline

Passenger Bill of Rights of 2009." As a result, Plaintiffs suffered injury as a proximate cause of such the intrusion. VIII. DAMAGES 22.

Plaintiffs respectfully request the following damages to be considered separately and

individually for the purpose of determining the sum of money that will fairly and reasonably compensate Plaintiffs:

23.

a.

All compensatory and economic damages;

b.

Mental anguish suffered by Hanni, for the past and future;

c.

All reasonable expenses incurred by Plaintiffs, including court costs and reasonable and necessary attorney fees; and

d.

Pre-judgment and post-judgment interest.

Plaintiffs are requesting at least $1,000,000.00 in actual damages.

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IX. EXEMPLARY DAMAGES 24.

Defendants’ malicious conduct, when viewed from the standpoint of the actor at the

time of the occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others. Furthermore, Defendants’ conduct was willful, intentional and malicious. Defendants’ conduct illustrates not only an attitude of conscious indifference for the rights, safety and welfare of others, but also shows Defendants’ actual and subjective awareness of the dangers of such conduct. 25.

Nevertheless, Defendants proceeded intentionally or with a conscious indifference

to the rights, safety or welfare of others, including Plaintiffs. Therefore, Defendants are liable for exemplary/punitive damages. As punishment for Defendants’ actions and to deter such actions in the future, Plaintiffs are requesting at least $10,000,000.00 in exemplary/punitive damages. X. CONDITIONS PRECEDENT 26.

All conditions precedent have been performed or have occurred as required by

Federal Rule of Civil Procedure 9(c). XI. JURY DEMAND 27.

Plaintiffs assert their rights under the Seventh Amendment to the United States

Constitution and demands, in accordance with Federal Rule of Civil Procedure 38, a trial by jury on all issues.

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XII. PRAYER 28.

For the above reasons, Plaintiffs pray they have judgment against Defendants, with

interest on the judgment at the legal rate, pre-judgment interest, costs of court and for such other relief, both in law and equity, to which Plaintiffs may show themselves justly entitled. Respectfully Submitted,

THE GIBSON LAW FIRM

Jason A. Gibson State Bar No. 24000606 The Lyric Centre 440 Louisiana, Suite 2050 Houston, Texas 77002 Ph: (713) 650-1010 Fax: (713) 650-1011 ATTORNEY FOR PLAINTIFF

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION CIVIL ACTION NO. 4:09−cv−03305 Coalition for an Airline Passengers' Bill of Rights, et al v. Delta Air Lines, Inc et al

1.

ORDER FOR CONFERENCE AND DISCLOSURE OF INTERESTED PARTIES Counsel and all parties appearing pro se shall appear for an initial pretrial and scheduling conference before JUDGE SIM LAKE on March 5, 2010 at 03:00 PM at United States Courthouse Courtroom 9B, 9th Floor 515 Rusk Avenue Houston, Texas 77002

2.

Counsel shall file with the clerk within fifteen days from receipt of this order a certificate listing all persons, associations of persons, firms, partnerships, corporations, affiliates, parent corporations, or other entities that are financially interested in the outcome of this litigation. If a group can be specified by a general description, individual listing is not necessary. Underline the name of each corporation whose securities are publicly traded . If new parties are added or if additional persons or entities that are financially interested in the outcome of the litigation are identified at any time during the pendency of this litigation, then each counsel shall promptly file an amended certificate with the clerk.

3.

After the parties confer as required by Fed. R. Civ. P. 26(f), counsel and all parties appearing pro se shall prepare and file not less than 10 days before the conference a joint discovery/case management plan containing the information required on the attached form as required by Fed. R. Civ. P. 26(f).

4.

The court will enter a Docket Control Order and may rule on any pending motions at the conference.

5.

Counsel and all parties appearing pro se who file or remove an action must serve a copy of this order with the summons and complaint or with the notice of removal.

6.

Attendance by an attorney who has authority to bind each represented party is required at the conference.

7.

Counsel and all parties appearing pro se shall discuss whether alternative dispute resolution is appropriate and at the conference advise the court of the results of their discussions.

8.

Counsel and all parties appearing pro se will deliver to chambers copies of all instruments filed within 7 days of the conference and within 7 days of any future

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court hearing or conference. Unless this rule is complied with the court will not consider any instrument filed within 7 days of any court appearance. 9.

Fed. R. Civ. P. 4(m) requires defendant(s) to be served within 120 days after the filing of the complaint. The failure of plaintiff(s) to file proof of service within 120 days after the filing of the complaint may result in dismissal of this action by the court on its own initiative.

10.

Counsel will deliver to chambers copies of all instruments filed electronically that exceed 15 pages and copies of all instruments filed under seal regardless of their length.

11.

Failure to comply with this order may result in sanctions, including dismissal of the action and assessment of fees and costs. By Order of the Court

Court Procedures: Information on the court's practices and procedures and how to reach court personnel may be obtained at the Clerk's website at http://www.txs.uscourts.gov or from the intake desk of the Clerk's office.

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Coalition for An Airline Passengers' Bill of Rights a/k/a Flyersrights.org, et al. Plaintiff v.

Civil Action No. 4:09−cv−03305

Delta Air Lines, Inc, et al. Defendant JOINT DISCOVERY/CASE MANAGEMENT PLAN UNDER RULE 26(f) FEDERAL RULES OF CIVIL PROCEDURE Please restate the instruction before furnishing the information. 1.

State when the conference of the parties required by Rule 26(f) was held, and identify the counsel who represented each party.

2.

List the cases related to this one that are pending in any state or federal court with the case number and court.

3.

Specify the allegation of federal jurisdiction.

4.

Name the parties who disagree and the reasons.

5.

List anticipated additional parties that should be included, when they can be added, and by whom they are wanted.

6.

List anticipated interventions.

7.

Describe class−action issues.

8.

State whether each party represents that it has made the initial disclosures required by Rule 26(a). If not, describe the arrangements that have been made to complete the disclosures.

9.

Describe the proposed agreed discovery plan, including: A.

Responses to all the matters raised in Rule 26(f).

B.

When and to whom the plaintiff anticipates it may send interrogatories.

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C.

When and to whom the defendant anticipates it may send interrogatories.

D.

Of Whom and by when the plaintiff anticipates taking oral depositions.

E.

Of Whom and by when the defendant anticipates taking oral depositions.

F.

When the plaintiff (or the party with the burden of proof on an issue) will be able to designate experts and provide the reports required by Rule 26(a)(2)(B), and when the opposing party will be able to designate responsive experts and provide their reports.

G.

List expert depositions the plaintiff (or the party with the burden of proof on an issue) anticipates taking and their anticipated completion date. See Rule 26(a)(2)(B) (expert report).

H.

List expert depositions the opposing party anticipates taking and their anticipated completion date. See Rule26(a)(2)(B) (export report).

10.

If the parties are not agreed on a part of the discovery plan, describe the separate view and proposals of each party.

11.

Specify the discovery beyond initial disclosures that has been undertaken to date.

12.

State the date the planned discovery can reasonably be completed.

13.

Describe the possibilities for a prompt settlement or resolution of the case that were discussed in your Rule 26(f) meeting.

14.

Describe what each party has done or agreed to do to bring about a prompt resolution.

15.

From the attorneys' discussion with the client, state the alternative dispute resolution techniques that are reasonably suitable.

16.

Magistrate judges may now hear jury and non−jury trials. Indicate the parties' joint position on a trial before a magistrate judge.

17.

State whether a jury demand has been made and if it was made on time.

18.

Specify the number of hours it will take to present the evidence in this case.

19.

List pending motions that could be ruled on at the initial pretrial and scheduling conference.

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20.

List other motions pending.

21.

Indicate other matters peculiar to this case, including discovery, that deserve the special attention of the court at the conference.

22.

List the names, bar numbers, addresses, and telephone numbers of all counsel.

____________________________________ Counsel for Plaintiff(s)

________________________ Date

____________________________________ Counsel for Defendant(s)

________________________ Date