Abdel-Karim v. Egyptair Airlines

• Decision Date: 31 July 2015
• Docket Number: No. 12 Cv. 5614(JGK).,12 Cv. 5614(JGK).
• Citation: 116 F.Supp.3d 389
• Parties: Ayman ABDEL–KARIM, Plaintiff, v. EGYPTAIR AIRLINES, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

116 F.Supp.3d 389

Ayman ABDEL–KARIM, Plaintiff,

v.EGYPTAIR AIRLINES, et al., Defendants.

No. 12 Cv. 5614(JGK).

United States District Court, S.D. New York.

Signed July 31, 2015.

Lauren M. Reiff, Mark H. Bierman, Bierman & Palitz LLP, New York, NY, for Plaintiff.

Christopher Carlsen, Nicholas Lawrence Magali, Clyde & Co U.S. LLP, New York, NY, for Defendants.

OPINION AND ORDER

JOHN G. KOELTL, District Judge.

The plaintiff, Ayman Abdel–Karim, flew from New York City to Cairo with several weapon-like items in his checked baggage. When he arrived in Cairo, he was detained, arrested, and charged for bringing weapons into Egypt. The charges were eventually dismissed. The plaintiff now brings suit against EgyptAir Airlines ("EgyptAir"), the airline in which he flew to Egypt, and EgyptAir Holding Company ("EHC"), a related company, claiming that their negligence, among other things, led to his arrest and detention in Egypt.

The plaintiff brought this action in New York state court and the defendants properly removed it to this Court under § 1441(a) on the basis of diversity of citizenship and § 1441(d) on the basis that EHC is an instrumentality of a foreign state. The Complaint alleges thirteen different state law claims, including breach of contract, negligence, fraud, and discrimination claims. The Complaint also names the Arab Republic of Egypt as a defendant, but the Republic of Egypt has never appeared in this action.¹ EHC and EgyptAir now move for summary judgment dismissing all claims against them pursuant to Rule 56 of the Federal Rules of Civil Procedure. EHC argues that this Court does not have personal jurisdiction over it, and both defendants argue that the plaintiff's claims are preempted by the Airline Deregulation Act ("ADA"), 49 U.S.C. § 41713(b)(1), and, in any event, are all without merit.

The Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§ 1330(a) and 1332. For the reasons that follow, the defendants' motion for summary judgment is granted.

I.

The standard for granting summary judgment is well established. "The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Gallo v. Prudential Residential Servs., LP, 22 F.3d 1219, 1223 (2d Cir.1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive law governing the case will identify those facts which are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) ). Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the non-moving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994). If the moving party meets its burden, the non-moving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible...." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993) ; see also Scotto v. Almenas, 143 F.3d 105, 114–15 (2d Cir.1998) (collecting cases).

II.

The following facts are taken from the record and are undisputed, unless otherwise noted.

A.

The defendant EgyptAir operates commercial flights between JFK International Airport in New York ("JFK") and Cairo International Airport in Cairo, Egypt. Carlsen Decl. Ex. F (El Morsy Decl.) ¶ 2. The flight between JFK and Cairo is the only flight that EgyptAir operates in the United States. Id. EgyptAir is owned by the defendant EHC. Carlsen Decl. Ex. L (El Mahmoudy Decl.) ¶ 6. Both EHC and EgyptAir are corporations organized under Egyptian law, with their principal places of business in Cairo, Egypt. Id. ¶¶ 7–8. EHC is wholly owned by the Arab Republic of Egypt. Id. ¶ 6.

The parties dispute the extent of EHC's contacts with New York. According to EHC, it is merely a holding company for its subsidiaries, is not involved in EgyptAir's operations, and has not carried on any business activities in New York or anywhere in the United States. El Mahmoudy Decl. ¶¶ 8–10. EHC represents that it does not have any employees present in New York, except when EHC employees are temporarily seconded to EgyptAir. Id. ¶¶ 10–11. During those times, EgyptAir decides where it will send the EHC employees, controls their duties, and pays the employees a salary.Id. ¶ 11.

The plaintiff contends that EgyptAir and EHC operate as a single entity. In support of this argument, the plaintiff cites two copies of EgyptAir's permit renewals issued by the United States Department of Transportation. See Bierman Decl. ¶¶ 44–45, Exs. RR, SS. In those renewals, EgyptAir is listed as "EgyptAir," which the plaintiff contends could refer to either EgyptAir Airlines Company or EgyptAir Holding Company.

The plaintiff also claims that EHC does have contacts in New York. The plaintiff points to a cooperation agreement entered into by United Airlines and EHC in 2008. Id. Ex. H. In that agreement, EHC is listed as headquartered in Egypt, and the agreement purports to "increase each Carrier's opportunities to offer competitive and cost effective air transportation services between points in and beyond the United States and Egypt." Id. The plaintiff also contends that two EHC employees—Ayman El Aydy and Osman Ahmed—had been seconded to work for EgyptAir at JFK and were directly involved in the events described below, which form the basis of the plaintiff's claims.

B.

The plaintiff, Ayman Abdel–Karim, was born in Egypt, moved to the United States in 1987, and has dual United States and Egyptian citizenship. Abdel–Karim Dep. 6. Abdel–Karim is the President and Chief Executive Officer of three companies with offices in the United States and Egypt: a health care services company, an antiques trading and Egyptian rug company, and a food production company. Id. at 8–13. The food company's main product is olive oil, produced on an olive tree farm in Egypt. Id. at 13.

In March 2011, Abdel–Karim purchased a ticket from EgyptAir for travel from JFK to Cairo. Defs. 56.1 Stmt. ¶ 1. He was flying to Egypt to file a complaint with the Egyptian government and to check on his various businesses, including his olive tree farm. Id. ¶¶ 3–4. Abdel–Karim intended to take several weapon-like items to Egypt for the maintenance and protection of his farm and he sought to carry them in his checked baggage with EgyptAir. The items included: four "sound revolvers," which did not fire any projectiles but only made loud noise to scare away attackers; one pellet gun with pellets; two large machete-like instruments (termed "swords" in the Complaint) and two smaller knife-like instruments to be used for clearing brush and fending off wild animals; binoculars; and an archery bow with arrows, which was a gift for a relative. Id. ¶¶ 5–9; Pl. 56.1 Resp. ¶¶ 5–9; Abdel–Karim Dep. 25–27. The parties refer to these items as the "special items."

Prior to the flight, Abdel–Karim instructed his New York-based employees to contact EgyptAir and the Transportation and Security Administration ("TSA") to determine what procedures he had to comply with in order to bring the special items in his checked luggage. Defs. 56.1 Stmt. ¶ 12; Pl. 56.1 Resp. ¶ 12. One employee, Pamela Cooper–Czarnecki, called EgyptAir, and EgyptAir advised her to contact the TSA. Carlsen Decl. Ex. G (Cooper–Czarnecki Decl.) ¶ 3. The plaintiff contends that EgyptAir advised that compliance with TSA rules is all that was required, and points to separate affidavits by Cooper–Czarnecki. See Bierman Decl. Exs. EE, FF. However, those affidavits also say that Cooper–Czarnecki was only advised to contact the TSA, and nothing else. At his deposition, the plaintiff also testified that EgyptAir personnel did not provide his assistant with any information on Egyptian law or as to any requirements for bringing the special items into Egypt. Abdel–Karim Dep. 153–54.

Another assistant, Lisa Algammaz, contacted the TSA. Defs. 56.1 Stmt. ¶ 16. Algammaz relayed the pertinent information from the TSA to Abdel–Karim in a memorandum dated March 21, 2011. The memorandum only mentions "firearms" and the archery equipment. Carlsen Decl. Ex. I. The memorandum states, among other things, that firearms should be unloaded, enclosed in a single container, and that the airline would place a "Declaration Tag" on the container before it is further inspected by the TSA. Id. The memorandum also stated that all sharp parts of the archery equipment should be securely wrapped. Id.

EgyptAir's Conditions of Carriage were incorporated into the contract between Abdel–Karim and EgyptAir. Defs. 56.1 Stmt. ¶ 10; Pl. 56.1 Resp. ¶ 10. The Conditions of Carriage has several provisions that relate to passenger baggage. Article 7.1,...