court finds that the
FSIA's commercial activity exception, super note 3, would suffice. The
court notes at the outset that plaintiff alleges, as a part of her
injury, that defendant denied her a wheelchair to disembark the plane
upon her arrival in San Francisco. This most certainly qualifies as
commercial activity within the United States under the FSIA, regardless
of plaintiffs theory of recovery.
To prevail on a claim under the Convention, a plaintiff must prove
that: (1) there has been an "accident," from which (2) the plaintiff
suffered an "injury," and that (3) the accident "took place on board the
aircraft or in the course of any of the operations of embarking or
disembarking." See Eastern Airlines, Inc. v. Floyd, 499 U.S. 530
535-536, 111 S.Ct. 1489. 1494 (1991). An "accident," as used in the
Convention, refers to am' "unexpected or unusual event or happening that
is external to the passenger." Air France v. Saks, 470 U.S. 392, 405, 105
S.Ct. 1338, 1345 (1985). This definition is to be flexibly applied after
in assessment of all of the circumstances surrounding the plaintiffs
To determine the extent to which the treatment plaintiff received
onboard her flight was unusual or unexpected, and hence constitutes an
"accident" under the Convention, this court would look to the contract
between the parties and the duties arising therefrom. See. e.g., Husain
v. Olympic Airways, 116 F. Supp.2d 1121, 1132 (N.D.Cal. 2000) (explaining
that the court heard "extensive testimony on the standard of care for
flight attendants" in order to determine whether flight attendant's
refusal to move passenger away from the smoking section constituted an
"accident"). Consequently, the court finds that there is an "identifiable
nexus" between defendant's sale of plaintiffs plane ticket in Chicago and
plaintiff's claims of mistreatment, such that plaintiffs claim under the
Warsaw Convention is based upon defendant's commercial activity in the
Having determined that plaintiffs claims of "injury to her mind and
body" under the Convention implicate the commercial activity engaged in
by defendant in Chicago and San Francisco, the court finds that the
requirements of section 1605(a)(2) have been met, and defendant is
therefore subject to the subject matter jurisdiction of the federal
courts under the FSIA. Accordingly, defendant's motion to dismiss for
lack of subject matter jurisdiction is denied.
Failure to State a Claim under he Warsaw Convention
Defendant concedes that if subject matter jurisdiction exists over the
instant dispute, then it must be governed by the Warsaw Convention. To
prevail on a claim under Article 17 of the Convention, a plaintiff must
prove that: (1) there has been an "accident," from which (2) the plaintiff
suffered an "injury," and that (3) the accident "took place on board the
aircraft or in the course of any of the operations of embarking or
disembarking." See Eastern Airlines. Inc. v. Floyd,, 499 U.S. 530,
535-536, 111 S.Ct. 1489, 1494 (1991).
Defendant does not dispute that plaintiff has sufficiently alleged an
accident, or that the acts complained of occurred during embarking and
disembarking or during her flights. Rather, the thrust of defendant's
argument is that plaintiff has failed to allege a physical injury that is
compensable under the Convention.
The court finds that plaintiffs third amended complaint, which asserts
"injuries of pecuniary nature in both her mind and body," minimally
satisfies the requirement that plaintiff allege a physical
Notwithstanding plaintiffs ultimate ability to offer sufficient proof of
her allegations to withstand a motion for summary judgment, the court
finds that her cursory allegation of physical injury at this stage in the
proceedings is adequate, especially considering the alleged deprivation of
food and beverages and access to a wheelchair to accommodate an apparent
physical disability. Defendant's motion to dismiss for failure to state a
claim is therefore denied.
Forum Non Conveniens
Defendant has moved this court to "dismiss [the instant case] in equity
and good conscience due to the lack of significant contacts with the
United States and the inability of defendant to reasonably present a
defense." In support of its motion, defendant maintains that none of the
culpable acts occurred in this district or in the United States, and that
defendant is not incorporated anywhere in the United States. Moreover,
defendant emphasizes that there are only two potential witnesses located
in the United States: the purchaser of plaintiffs ticket, who resides in
this district, and the Plaintiff herself, who resides in (California.
Defendant contends that, should this court dismiss the instant case,
plaintiff has an adequate remedy in Nigeria.
In a motion to dismiss for forum non conveniens, the defendant must
show that (1) there is an adequate, available forum elsewhere, and (2)
the balance of private and public interests favors dismissal. Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252 (1981). An alternative
forum is available if all parties are amenable to process and are within
the forum s jurisdiction. Kamel, 108 F.3d 799, 803 (7th Cir. 1997).
Further, an adequate forum mandates that the parties will not be deprived
of all remedies or treated unfairly. Id. ISI Intern., Inc. v. Borden
Ladner Gervais, LLP, 2001 WL 1382572, *3 (N.D.Ill., 2001).
In the instant case, defendant has merely asserted that "Nigeria is a
republic and the most populous country on the African continent. Nigeria
has an elected government based on English common law including
executive, legislative and judicial branches." These allegations,
standing alone, are insufficient to convince this court that Nigeria is
either available or adequate as an alternative forum.
Moreover, defendant has not met its burden of demonstrating that the
balance of private and public interests favors dismissal, either. Private
interest factors considered in ruling on a forum non conveniens motion
include: (1) ease of access to sources of proof; (2) the availability of
compulsory process for hostile witnesses and the cost of obtaining the
attendance of willing witnesses; (3) the possibility of viewing the
premises, if appropriate; and (4) all other practical problems that make
trial of the case easy, efficient, and economical. Kamel, 108 F.3d at
803. The pertinent public interest factors are: (1) the court's own
docket congestion; (2) the preference for having a forum apply law with
which it is familiar; (3) the local interest in resolving the
controversy; and (4) the unfairness of burdening citizens in an unrelated
forum with jury duty. Piper, 454 U.S. at 241 n. 6, 102 S.Ct. at 258 n.
6; Kamel, 108 F.3d at 803. A district court has "substantial flexibility"
in considering the relative importance of these factors. Wilson v.
Humphreys (Cayman) Ltd., 916 F.2d 1239, 1245 (7th Cir. 1990).
Again, defendant has provided scant evidence to demonstrate that the
public and private factors outlined above merit a dismissal on grounds of
forum non conveniens. At most, defendant has asserted that it will be
unable to initiate a third-party action and to obtain process and
jurisdiction, should plaintiff want to hold defendant liable for the acts
of independent entities that allegedly handle airport security and
passport control in Lagos, Nigeria. Considering that the gravamen of
plaintiffs complaint involves acts that occurred while embarking and
disembarking and during her flight, the court does not find defendant's
Moreover, while the attendant costs of transporting witnesses and
documents are indeed significant, in the absence of evidence to the
contrary, the court concludes that defendant airline is better equipped
to confront that challenge than plaintiff. Further, this court affords
significant weight to plaintiffs choice of the United States as a forum,
considering that she resides in California, rather than Nigeria.
Because defendant has failed to demonstrate both that Nigeria is
available and adequate as an alternative forum, and that the private and
public factors favor Nigeria, defendant's motion to dismiss on grounds of
forum non conveniens is denied.
1404(a) Transfer of Venue to the Northern District of California
28 U.S.C. § 1404 (a) provides in relevant part: "for the
convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district or
division where it might have been brought." Pursuant to Section
1404(a), a court may transfer a civil action to another district when: (1)
venue is proper in both the transferor and transferee courts; (2)
transfer is for the convenience of the parties and witnesses; and (3)
transfer is in the interest of justice. Symons Corp. v. Southern Forming
and Supply, Inc., 954 F. Supp. 184, 186 (N.D.Ill. 1997). for the reasons
that follow, the court transfers the instant action to the Northern
District of California.
With regard to the first factor, the court notes that venue in proper
in the Northern District of Illinois. 28 U.S.C. § 1391 (f) provides
that a civil action against a foreign state, as defined under
28 U.S.C. § 1603 (a), may be brought:
(1) in any judicial district in which a substantial
part of the events or omissions giving rise to the
claim occurred, or a substantial part of property that
is the subject of the action is situated; (2) in any
judicial district in which the vessel or cargo of a
foreign state is situated, if the claim is asserted
under § 1605(b) of this tile; (3) in any judicial
district in which the agency or instrumentality is
licensed to do business or is doing business, if the
action is brought against an agency or instrumentality
of. a foreign state as defined in section 1603(b) of
this title; or (4) in the United States District Court
for the District of Columbia if the action is brought
against a foreign state or political subdivision
Defendant does not dispute that venue is proper in this district under
28 U.S.C. § 1391 (f)(3) because it is doing business in Chicago.
Further, because plaintiff's flight was destined for San Francisco, and
at least part of plaintiffs claims derive from defendant's activity in
San Francisco, this court finds that venue is proper under §
1391(f)(3) in the Northern District of California, as well. Therefore, the
court has the power to transfer the case if to do so is in the interest
of justice and for the convenience of parties and witnesses.
In evaluating the convenience and fairness of a transfer, the court
considers relevant private and public interests. The
include: 1) plaintiffs initial choice of forum; 2) the situs of material
events; 3) ease of access to sources of proof, 4) the availability of
compulsory process for the attendance of unwilling witnesses and the cost
of obtaining the attendance of the witnesses; and 5) the convenience to
the parties. specifically their respective residences and their ability
to bear the expense of litigation in a particular forum. Georgouses v.
NaTec Resources, Inc., 963 F. Supp. 728, 730 (ND. Ill. 1997).
Plaintiffs choice of forum is entitled to substantial weight,
particularly when it is also her home forum. Vandeveld v. Christoph,
877 F. Supp. 1160, 1167 (N.D. Ill. 1995). Plaintiff's choice is not,
however, conclusive. When "the conduct and events giving rise to the
cause of action did not take place in the plaintiffs selected forum, the
plaintiff's preference has minimal value" even if it is the plaintiffs
home forum. Dunn v. Soo Line R. Co., 864 F. Supp. 64, 65 (N.D.) Ill.
1994). "The weight given to plaintiffs choice of forum is lessened if the
chosen forum has relatively weak connections with the operative facts
giving rise to the claim." Von Holdt v. Husky Injection Molding Systems,
Limited, 887 F. Supp. 185, 188 (N.D. Ill. 1995). Thus, the court must
consider the situs of material events to determine how much weight to
assign to plaintiffs choice of forum.
The instant case arises out of defendant's alleged mistreatment of
plaintiff during her flight from Nigeria to San Francisco, as well as
during the processes of embarking and disembarking. Although the ticket
for travel was purchased in Illinois, none of the acts that form the
gravamen of plaintiffs complaint occurred in Illinois. The first two
private interest factors thus favor transfer.
The third factor, ease of access to evidence and sources of' proof,
also slightly favor transfer. The core allegations of the complaint are
not substantially connected to Illinois, but rather involve defendant's
acts (luring its San Francisco-bound flight from Nigeria. Hence, the
court concludes that the ease of access to proof favors transfer to
The court finds that the fourth and fifth factors, convenience of
witnesses and parties, also favor transfer. Plaintiff resides in
California, and the only potential witness residing in Illinois is
Gregory Chukwu, who purchased plaintiffs ticket (a fact that is not
contested). Further, defendant's financial burden of securing its
witnesses' attendance in California rather than Illinois is indeed
In addition to the private interest factors, the court must also
consider certain public interest factors that may warrant transfer: 1)
the relationship of the community to the issue of the litigation and the
desirability of resolving controversies in their locale; 2) the court's
familiarity with applicable law; and 3) the congestion of the respective
court dockets and the prospects for an earlier trial. See Hughes v.
Cargill, Inc., 1994 WL 142994 at *2 (N.D. Ill. April 14, 1994).
The first factor favors transfer. Although many of the alleged acts by
defendant occurred on board the flight from Nigeria to San Francisco,
California, plaintiff has alleged the denial of a wheelchair when
disembarking in California. Plaintiff has not alleged that any of her
injuries arose in Illinois, however.
The second factor, the court's familiarity with applicable law, is
neutral. Assuming that the Warsaw Convention governs the instant
dispute, its provisions will preempt state common law. This court and the
Northern District of California are equally familiar with its
The final factor, the speed at which the trial will progress, is
neutral. The median
time interval between the filing of a civil case and
trial in the Northern District of Illinois is 25.5 months, compared with
25 months in the Northern District of California. This .5 month
difference is negligible and neither favors nor disfavors transfer.
Consideration of the foregoing public and private interest convinces
this court that, in the interest of justice and for the convenience of
parties and witnesses, a transfer of venue to the Northern District of
California pursuant to 28 U.S.C. § 1404 (a) is proper.
For the foregoing reasons, defendant's motion to dismiss for lack of
subject matter jurisdiction and failure to state a claim pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) is denied, and
defendant's motion to dismiss for forum non conveniens is also denied.
The court exercises its authority, sua sponte, to transfer venue to the
Northern District of California pursuant to 28 U.S.C. § 1404 (a).