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
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).
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 ...