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CHUKWU v. AIR FRANCE
September 11, 2002
MONICA O. CHUKWU, PLAINTIFF,
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.
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
Subject Matter Jurisdiction
The parties do not dispute that defendant is properly characterized as
"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,
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 ...