           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 10, 2008

                                     No. 08-50373                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


ANJUM MALIK

                                                  Plaintiff - Appellant
v.

CONTINENTAL AIRLINES INC

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:06-CV-695


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       During a flight from Texas to New Jersey, Anjum Malik lost her luggage
after a flight attendant removed it from an overhead bin and sent it to the
plane’s under-cabin compartment. Malik sued Continental Airlines, asserting
various federal discrimination claims, as well as state and federal claims arising
from the loss of her luggage. The district court dismissed Malik’s complaint in
its entirety, finding her state law claims preempted by federal law and her


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                         No. 08-50373

federal discrimination claims unsupported by sufficiently definite factual
allegations. The district court did not, however, specifically address Malik’s
federal common law claim for lost luggage.1 Thus, while we affirm the dismissal
of Malik’s state law claims and federal discrimination claims, we reverse the
dismissal of her federal common law claim for lost luggage and remand that
claim to the district court for further proceedings consistent with this opinion.
                                           I. FACTS
       In her second amended complaint and attached affidavit,2 Malik alleges
the following facts which we must take as true in ruling on Continental’s motion
to dismiss for failure to state a claim. Malik boarded a Continental flight from
Austin to Rhode Island via New Jersey, bringing her only luggage on board. A
flight attendant helped Malik place her luggage in an overhead compartment
over another seat, since the compartment over her seat was full. Because
Malik’s luggage contained various valuables, including antique and exotic
jewelry, she never intended to transport it in the plane’s under-cabin
compartment.
       While the plane was taxiing, another flight attendant called Malik’s name
over the intercom and told her that the overhead compartment was reaching full
capacity and her luggage had been moved to the under-cabin compartment.


       1
          Indeed, Continental’s motion to dismiss did not address the federal claim for lost
luggage. Instead, Continental addressed that claim in its summary judgment motion, which
the district court did not reach. Even there, the summary judgment motion focused on
Continental’s defense of loss limitation, conceding that some amount may be owed.
Continental did not claim in the district court that airlines can lose luggage with complete
impunity.
       2
          Malik attached her affidavit to her complaint and incorporated it by reference in
paragraph 6. We properly consider the affidavit in ruling on Continental’s motion to dismiss
for failure to state a claim. See Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th
Cir. 1996) (“[I]n deciding a motion to dismiss for failure to state a claim, courts must limit their
inquiry to the facts stated in the complaint and the documents either attached to or
incorporated in the complaint.”).


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                                  No. 08-50373

Because the outside of Malik’s luggage contained no identification, she asked the
flight attendant how he knew the luggage was hers. The flight attendant
explained that he had to go into her luggage to learn her identity and provided
her a handwritten baggage claim number. Another flight attendant suggested
that Malik’s bag was moved because it must have been “on the larger side.”
      At Malik’s first stop in New Jersey, she was informed that her luggage had
been checked all the way to her final destination, Rhode Island. The luggage did
not appear in Rhode Island, however, and was not located during Malik’s stay
in Providence or thereafter. Accordingly, Malik filed a claim with Continental.
Continental informed her that she would need to provide receipts for any items
worth more than $100. Although she produced some receipts, Continental
refused to compensate her for her losses. Rather, Continental stated that they
were not liable for the lost luggage and that the contract of carriage placed its
maximum liability at $2800.
      Malik filed this lawsuit, alleging that Continental’s actions constituted
conversion and invasion of privacy, and seeking damages under the Texas
Deceptive Trade Practices Act (DTPA), TEX. BUS. & COM. CODE ANN. § 17.46
(2007). Malik also brought racial and religious discrimination claims under a
host of federal statutes. See 42 U.S.C. §§ 1981 (1991), 1982 (1978), 2000d et seq.;
49 U.S.C. § 40127 (2000). In support of her discrimination claims, Malik alleged
that she is an “Indian-secular Muslim” with “the racial traits of people from the
northern parts of the Indian sub-continent and ethno-cultural background from
the Muslim communities of the northern-Indian state of Uttar Prudesh;” that,
to her knowledge, no other person on the flight was identifiable, by name or
otherwise, as Muslim or from the Indian sub-continent; and that Continental’s
unusual actions and resulting loss of her luggage may never have occurred if she
was not a racial and ethnic minority.



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       The district court dismissed Malik’s complaint in its entirety, finding her
state law claims preempted by the Airline Deregulation Act (ADA), 49 U.S.C. §
41713 (1997), and her federal discrimination claims unsupported by sufficient
factual allegations. Malik’s claims are now before this Court.
                                   II. DISCUSSION
       Malik maintains that the ADA does not preempt her state law claims and
that her complaint adequately states claims for racial and religious
discrimination. We review de novo the district court’s dismissal of Malik’s
claims under FED. R. CIV. P. 12(b)(6). Abraham v. Singh, 480 F.3d 351, 354 (5th
Cir. 2007). In so doing, we accept all well-pleaded facts as true and view them
in the light most favorable to Malik. Id. To survive a Rule 12(b)(6) motion, the
allegations must be sufficient “to raise a right to relief above speculative level .
. . on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007)
(citation and footnote omitted).          If Malik’s complaint fails to allege facts
sufficient to “nudge[ ] [her] claims across the line from conceivable to plausible,
[her] complaint must be dismissed.” Id. at 1974.
A. Preemption
       In pertinent part, 49 U.S.C. § 41713(b)(1) provides:
       [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.3
       As we have previously recognized, the scope of preemption under
§41713(b)(1) must be evaluated with reference to its origins in the ADA, a
statute intended to deregulate the airline industry. Hodges v. Delta Airlines,

       3
         This provision was originally codified at 49 U.S.C. § 1305(a). In 1994, Congress
recodified the provision at § 41713(b)(1) and made stylistic changes that were not intended to
substantively change existing law. Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282,
286 n.4 (5th Cir. 2002).

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Inc., 44 F.3d 334, 335 (5th Cir. 1995) (en banc). Congress enacted § 41713(b)(1)
“[t]o prevent states from frustrating the goals of deregulation by establishing or
maintaining economic regulations of their own.” Id.
      In construing § 41713(b)(1)’s use of the phrase “related to,” the Supreme
Court has drawn on the broad construction of that phrase in ERISA cases,
recognizing that the language expresses “a broad pre-emptive purpose.” Morales
v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992). In Morales, the Court
defined the phrase as “to stand in some relation; to have bearing or concern; to
pertain; refer; to bring into association with or connection with.” Id. (quoting
BLACK’S LAW DICTIONARY 1158 (5th ed. 1979)).              In adopting this broad
construction, the Court rejected arguments that § 41713(b)(1) preemption does
not extend to “laws of general applicability,” such as state consumer protection
laws, or state laws that are “consistent” with federal laws. Id. at 386-87.
Rather, § 41713(b)(1) preempts “[s]tate enforcement actions having a connection
with, or reference to, airline ‘rates, routes or services.’” Id. at 384.
      Although the Supreme Court has not defined the term “services,” this
Court, relying in part on Morales, subsequently made clear that the term
includes “items such as ticketing, boarding procedures, provision of food and
drink, and baggage handling, in addition to the transportation itself.” Hodges,
44 F.3d at 336. In Hodges we concluded that:
      “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


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      intended to de-regulate as “services” and broadly to protect from
      state regulation.
Id.
      Accordingly, under Morales and Hodges, state law claims having a
“connection” with an airline’s baggage handling services are preempted by §
41713(b)(1). See Casas v. Am. Airlines, Inc., 304 F.3d 517, 525 (5th Cir. 2002)
(noting that Hodges requires the conclusion that a passenger’s claims under
state law for the loss of checked baggage are preempted by § 41713(b)(1)); cf.
Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 931 (5th Cir. 1997) (holding
that ADA preempts claim under Texas DTPA arising from loss of shipped goods).
      We have little trouble concluding that Malik’s state law claims have a
connection with Continental’s baggage handling services. Indeed, each of those
claims attempts to hold Continental liable for the manner in which it handled
and ultimately lost Malik’s luggage.
      Nonetheless, Malik contends that her state tort claims do not relate to a
Continental “service” in this particular case because she neither bargained for
nor anticipated Continental’s actions in converting her carry-on luggage into
checked luggage. We disagree. Regardless of how Continental performed the
services or Malik’s expectations, these are precisely the types of “services” that
Hodges determined come within the scope of § 41713(b)(1) preemption.
      Malik further contends that her state tort actions “affect [baggage
handling services] in too tenuous, remote, or peripheral a manner to have
preemptive effect.” Morales, 504 U.S. at 390 (citation omitted). But we fail to
see how permitting airline passengers to bring state tort claims based on lost
luggage (however it came to be lost) can be characterized as “remotely”
connected to baggage handling services. Such claims strike at the very heart of
a “service” that Congress intended to protect from state regulation. See Hodges,
44 F.3d at 336; see also Casas, 304 F.3d at 525 (noting that Hodges requires the


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conclusion that a passenger’s claims under state law for the loss of checked
baggage are preempted by § 41713(b)(1)).
       Malik also argues that her claims, like the personal injury claims in
Hodges, are not preempted by § 41713(b)(1) because they relate to the “operation
and maintenance of aircraft” rather than the “service” of baggage handling. Id.
at 336 (noting that “federal preemption of state laws, even certain common law
actions ‘related to services’ of an air carrier, does not displace state tort actions
for personal physical injuries or property damages caused by operation and
maintenance of aircraft”). If Malik’s bags had caught on fire during a plane
crash, her contention might have merit. But her claims are centered on airline
personnel’s alleged mishandling of her bags, not damage from the way in which
the plane was flown.4
       Finally, because the ADA preempts all of Malik’s state law claims, her
claim for attorney’s fees under state law must also be dismissed. See Green Int’l
v. Solis, 951 S.W.2d 384, 390 (Tex. 1997) (to recover attorney’s fees under the
Texas Civil Remedies and Practice Code, a party must first “prevail on a cause
of action for which attorney’s fees are recoverable.”).
B. Federal Discrimination Claims
       We also conclude that the district court properly dismissed Malik’s federal
claims for racial and religious discrimination. Malik asserts claims for violation
of 42 U.S.C. §§ 1981, 1982, 2000d et seq., and 49 U.S.C. § 40127. Each of these
statutes requires a litigant to plead facts in support of intentional
discrimination. 49 U.S.C. § 40127 (mandating air carrier not subject person in
air travel to discrimination on basis of race, color or national origin); Alexander
v. Sandoval, 532 U.S. 275, 281 (2001) (Title VI prohibits intentional


       4
          We also note that Malik waived this argument by failing to raise it in her original
brief. United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005) (“Arguments raised for
the first time in a reply brief . . . are waived.”).

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discrimination); Green v. State Bar of Tex., 27 F.3d 1083, 1086 (5th Cir. 1994)
(noting that plaintiff must allege facts showing intent to discriminate to state a
claim under § 1981); Vaughner v. Pulito, 804 F.2d 873, 877 (5th Cir. 1986) (“A
cause of action based upon section 1982 . . . requires an intentional act of racial
discrimination.”).
      To state claims for intentional discrimination, Malik’s complaint must
allege “more than labels and conclusions;” rather her “[f]actual allegations must
be enough to raise a right to relief above the speculative level.” Twombly, 127
S. Ct. at 1965. Malik’s complaint falls well short of these standards. She simply
alleges that, to her knowledge, she was the only Indian-secular Muslim on a
flight where her luggage was removed from an overhead compartment; opened
so she could be identified; sent to the plane’s under-cabin compartment; and
ultimately lost. She alleges that Continental never compensated her. Based on
this “outrageous conduct,” Malik concludes that “she was singled out, subjected
to different standards, deprived of her property, and denied compensation
because she was a member of a racial, ethnic, and religious group.” As the
district court explained, Malik has failed to allege any facts establishing a
connection between Continental’s actions and her racial and religious
background. Rather, Malik’s complaint is rife with speculation that she feels
“she [has] cause to wonder what the source of this disparate treatment could be.”
Such unsupported speculation is insufficient to support a claim for intentional
discrimination.
      Finally, Malik’s complaint alleges that Continental failed to compensate
her for the loss of her luggage. Although the district court dismissed Malik’s
complaint with prejudice, it failed to address her ability to recover for lost
luggage under federal law.5 On appeal, Malik continues to press this claim by


      5
        Continental acknowledged that Malik’s complaint pleaded a cause of action for lost
luggage under federal law by moving for summary judgment that the liability limitations in

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arguing that the liability limitations for loss of luggage contained in
Continental’s contract of carriage are unenforceable. We have recognized that
the federal common law provides airline passenger’s with a cause of action for
lost luggage. Casas, 304 F.3d at 521. Accordingly, we reverse the district court’s
dismissal of Malik’s federal claim for lost luggage and remand the cause for the
limited purpose of adjudicating that claim. Because the district court did not
address the enforceability of the liability limitations for loss of luggage contained
in Continental’s contract of carriage or the scope of same, we decline to do so for
the first time on appeal.
                                   III. CONCLUSION
       For the foregoing reasons, the dismissal of Malik’s state law claims and
federal discrimination claims is AFFIRMED. The dismissal of Malik’s federal
common law claim for lost luggage is REVERSED, and the cause is REMANDED
for further proceedings consistent with this opinion.




its contract for carriage were enforceable as to that action.

                                               9
