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FARMILANT v. SINGAPORE AIRLINES

April 15, 1983

EUGENE FARMILANT, PLAINTIFF,
v.
SINGAPORE AIRLINES, LTD., DEFENDANT.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Eugene Farmilant ("Farmilant") sues Singapore Airlines, Ltd. ("Airline"), alleging fraudulent misrepresentation, "tortious breach of contract," negligence and willful and wanton conduct in connection with Airline's failure to furnish him passage on flights from Singapore to Madras, India and from Madras back to the United States. Airline has moved for summary judgment. For the reasons stated in this memorandum opinion and order:

1. Airline's motion is denied.

    2. This Court finds (a) certain "material facts exist without
  substantial controversy" (Fed.R.Civ.P. ("Rule") 56(d)) and
  (b) those facts show Farmilant cannot prove damages in excess
  of $10,000 as required by 28 U.S.C. § 1332.

This action is therefore dismissed for want of subject matter jurisdiction under Rule 12(h)(3).

Summary Judgment Principles

Summary judgment under Rule 56(c) may be granted only if "the record reveals the absence of any genuine issue of material fact." Sahadi v. Continental Illinois National Bank and Trust Co. of Chicago, No. 82-1767, 706 F.2d 193 at 196. (7th Cir. 1983). But Rule 56(d) contemplates the situation where, on summary judgment motion, the court finds certain "material facts exist without substantial controversy" and other "material facts are actually and in good faith controverted." Although the summary judgment motion must then be denied, the uncontroverted facts are "deemed established" in any "further proceedings." Id.

In ascertaining the uncontroverted and controverted facts this Court must grant Farmilant all inferences in his favor from the record, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), including inferences drawn from Airline's submissions, Thornton v. Evans, 692 F.2d 1064, 1074-75 (7th Cir. 1982). Those favorable inferences, however, must derive from record facts, not from Farmilant's unsupported allegations or suspicions. See Menefee v. General Electric Co., 548 F. Supp. 619, 621 (N.D.Ill. 1982).

Uncontroverted Facts

In accordance with Rule 56(d) this Court specifies the following "facts . . . appear without substantial controversy" and are "deemed established":

1. On November 12, 1981*fn1 Farmilant went to Airline's office in Chicago and purchased a ticket for travel as follows: Los Angeles to Tokyo; Tokyo to Singapore; Singapore to Madras; Madras to Singapore; Singapore to Honolulu; and Honolulu to Los Angeles. Complaint Ex. A. Farmilant's ticket allowed a stopover in Tokyo on the outward journey and a stopover in Honolulu on the return trip. Although Farmilant purchased a ticket for the entire trip, he booked a reservation for only the first leg, the December 3 flight from Los Angeles to Tokyo (that was the earliest date on which the applicable fare basis permitted travel). All the rest of the journey was left "open" at Farmilant's request. Farmilant Dep. ("Dep.") 65-67.

3. On December 9 Farmilant flew from Tokyo to Hong Kong. Id. at 79. Once more he changed his plans and decided not to travel into China. Id. at 79-80. On December 11 Farmilant visited Airline's office in Hong Kong to make travel arrangements to Madras. He was booked for a December 13 flight to Singapore. Id. at 83, 86. Airline, however, could not make a reservation for Farmilant on the connecting flight from Singapore to Madras. Farmilant was waitlisted on the flight from Singapore. February 1, 1983 Affidavit of Adriaan Arends ¶ 2(c) and (d).

4. Upon arriving in Singapore the evening of December 13 Farmilant tried to get passage on that night's flight to Madras. He was told no seats were available and flights from Singapore to Madras were booked for the next three weeks. Airline made alternative arrangements for Farmilant to ...


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