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CHUKWU v. AIR FRANCE

September 11, 2002

MONICA O. CHUKWU, PLAINTIFF,
V.
AIR FRANCE, A FOREIGN CORPORATION AND UNKNOWN EMPLOYEES OF AIR FRANCE, DEFENDANTS.



The opinion of the court was delivered by: Gettleman, United States District Judge

    MEMORANDUM OPINION AND ORDER

Plaintiff Monica Chukwu filed this suit for monetary relief against defendant Societe Air France ("Air France"), alleging mistreatment by Air France employees during a recent flight between Lagos, Nigeria, and San Francisco, California. Defendant has filed a motion pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to dismiss plaintiffs third amended complaint for lack of subject matter jurisdiction and failure to state a claim, or in the alternative, to dismiss the instant action under the doctrine of forum non conveniens. For the reasons discussed below, the court denies defendant's motions to dismiss and exercises its authority under 28 U.S.C. § 1404 (a) to transfer this case to the Northern District of California for the convenience of witnesses and in the interests of justice.

BACKGROUND*fn1

Plaintiff is a seventy-two year old native of Nigeria and a permanent resident of the United States, currently residing in California. Air France is a foreign corporation with its principal place of business in Paris, France, with a majority of its ownership interest owned by the Republic of France.

On December 16, 2002, Gregory Chukwu purchased a one-way ticket on plaintiffs behalf from defendant's agent in Chicago, Illinois, for air travel between Lagos, Nigeria, and San Francisco, California. In purchasing plaintiffs ticket, Gregory Chukwu explained to defendant's ticket agent that plaintiff could not speak English or French, and that she needed to depart Nigeria on January 7, 2002, so that she could be accompanied by Pius Nwoye.

Plaintiffs ticket was issued for January 7, 2002; however, she was denied a boarding pass for failure to provide proper travel documentation. She returned to Lagos Airport on January 8, 2002, with proper documentation, accompanied by a family member, who explained to defendant's employees that plaintiff could not speak English or French and needed assistance. Plaintiffs family member also informed defendant's employees that plaintiff was ill and needed a wheelchair. Plaintiff ultimately was permitted to board her flight on January 8, 2002.

In her third amended complaint, plaintiff seeks damages for "injuries to her mind and body" caused by the following alleged acts of defendant: (a) failures to provide a wheelchair to plaintiff and forcing her to walk "to and/or from" the boarding gates in Lagos, Paris and San Francisco; (b) failure to provide food and beverages to plaintiff throughout the duration of her flight; (c) failure to allow plaintiff to travel with her companion, Pius Nwoye, on January 7, 2002, the original date on her plane ticket; and (d) failure to provide an interpreter for plaintiff.*fn2

DISCUSSION

Subject Matter Jurisdiction

The parties do not dispute that defendant is properly characterized as a "foreign state" under 28 U.S.C. § 1603 (b)(2) because the Republic of France has a majority ownership interest in defendant. See also Santos v. Compagnie Nationale Air France, 934 F.2d 890, 891 (7th Cir. 1991). Consequently, to determine whether subject matter jurisdiction exists over the instant dispute, the court must look to the Foreign Sovereign Immunitues Act (FSIA), 28 U.S.C. § 1330, 1602 et seq., which provides "the sole basis for obtaining jurisdiction over a foreign state in United States courts." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S.Ct. 683, 693 (1989); 28 U.S.C. § 1330, 1604.

Despite defendant's argument to the contrary, plaintiffs citizenship is immaterial to this court's analysis of subject matter jurisdiction under the FSIA. If an action satisfies the substantive standards of the Act, it may be brought in federal court regardless of the citizenship of the plaintiff. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 490-491, 103 S.Ct. 1962, 1971 (1993).

The FSIA, by its very terms, is "[s]ubject to existing international agreements to which the United States is a party . . ." 28 U.S.C. § 1604. Under the FSIA, "the district courts shall have original jurisdiction . . . of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement." 28 U.S.C. § 1330 (a). Hence, a foreign state is presumptively immune from the jurisdiction of the courts of this country, unless an existing international agreement provides otherwise, or one of the exceptions to immunity enumerated in 28 U.S.C. § 1605-1607 is applicable. Saudi Arabia v. Nelson, 507 U.S. 349, 155, 113 S.Ct. 1471, 1476 (1993); Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. at 493, 103 S.Ct. 1962, 1971; Harris v. Polskie Line Lotnicze, 641 F. Supp. 94, 96 (N.D.Cal. 1986).

Existing International Agreement: Warsaw Convention

Plaintiff has characterized her lawsuit as asserting standard common law negligence claims, consisting of the following elements: duty, breach, causation, and damages. This court is persuaded, however, that plaintiffs claims are governed not by state tort or contract law as alleged by plaintiff,*fn3 but rather fall within the purview of the Warsaw Convention ("the Convention"), 49 U.S.C.A. § 40105, which creates the exclusive cause of action for injuries sustained during international air transportation.*fn4 See El Al Israel Airlines v. Tseng, 525 U.S. 155, 176, 119 S.Ct. 662, 675 (1999). Although the United States was not one of the original contracting parties to the Convention, it announced its intention to adhere to the Convention's provisions in late 1934. Harris v. Polskie Line Lotnicze, at 96. France is a party to the Convention, as well.

As the Supreme Court has observed, the "cardinal purpose" of the Convention was to achieve uniformity of rules governing claims arising from international air transportation. Id. at 169, 119 S.Ct. at 671-672. Moreover, the Convention seeks to balance the interests of air carriers and passengers. To that end, it denies carriers the ability to contractually limit or exclude their liability, and limits both the types of claims and amount of damages that may be sought by passengers. See Article 20 (precluding liability if "carrier proves that he and his agent have taken all necessary measures to avoid the damage or that is was impossible for him or them to take such measures"); Article 22 (limiting carrier liability to $75,000); and Article 25 ...


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