Aikpitanhi v. Iberia Airlines of Spain

• Decision Date: 31 March 2008
• Docket Number: Case No. 07-CV-14468.
• Citation: 553 F.Supp.2d 872
• Parties: Jacob AIKPITANHI, et al., Plaintiffs, v. IBERIA AIRLINES OF SPAIN, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

553 F.Supp.2d 872

Jacob AIKPITANHI, et al., Plaintiffs, v. IBERIA AIRLINES OF SPAIN, Defendant.

Case No. 07-CV-14468.

United States District Court, E.D. Michigan, Southern Division.

March 31, 2008.

Benjamin Whitfield, Jr., Benjamin Whitfield, Jr., Assoc., Kayode O. Oladele, Juris International, Detroit, MI, for Plaintiffs.

Mark S. Hayduk, Hayduk, Andrews, Detroit, MI, for Defendant.

OPINION AND ORDER (1) GRANTING DEFENDANT'S MOTION TO DISMISS AND (2) DENYING AS MOOT PLAINTIFFS' MOTION FOR SPECIAL DRAWING RIGHTS

PAUL D. BORMAN, District Judge.

Before the Court is Plaintiffs Jacob Aikpitanhi and Vero Aikpitanhi's ("Plaintiffs") November 13, 2007 Amended Motion for Special Drawing Rights. (Dkt. No. 9). Defendant Iberia Airlines of Spain ("Defendant") filed its Response on December 13, 2007.¹ Also before the Court is Defendant's November 27, 2007 Motion to Dismiss First Amended Complaint. (Dkt. No. 11). Plaintiffs filed their Response on January 4, 2008. A motion hearing was held on February 21, 2007. For the following reasons, the Court GRANTS Defendant's Motion to Dismiss, and DENIES AS MOOT Plaintiffs' Motion for Special Drawing Rights.

I. BACKGROUND

This case arises from allegations surrounding Osamuyia Aikpitanhi's ("Decedent") death aboard Defendant's flight between Madrid, Spain and Lagos, Nigeria on June 9, 2007. (Am. Compl. ¶ 2).

Plaintiffs are the parents of the Decedent and are citizens and residents of Nigeria. (Id. ¶ 24).

Defendant is a Spanish corporation and its principal place of business is in Madrid, Spain. (Id. ¶ 25). Defendant is also a registered in Florida as a "Foreign Profit Corporation." (Id.).

Plaintiffs allege the Decedent was being deported from Spain back to Nigeria by the Spanish Immigration authorities when he died aboard Defendant's aircraft. (Id. ¶ 1).

Plaintiffs assert Spanish law enforcement agents facilitated Decedent's death by giving him tranquilizers, handcuffing him, and chaining him to his seat, having gagged him with industrial strength rubber before he was placing him on the flight. (Id. ¶ 3). Plaintiffs further contend the law enforcement officials took turns beating him. (Id.). Plaintiffs claim that Defendant acted in concert with the law enforcement officials in covering the Decedent with a sack so other passengers on the flight could not see the manner in which he was restrained. (Id. ¶ 5).

On June 9, 2007, shortly after takeoff, Decedent died of suffocation. (Id. ¶ 7).

On October 23, 2007, Plaintiffs filed an Amended Complaint alleging: Count I: Torture; Count II: Cruel, Inhuman, and Degrading Treatment; Count III: False Imprisonment; Count IV: Assault and Battery; Count V: Negligent Infliction of Emotional Distress; Count VI: Intentional Infliction of Emotional Distress; Count VII: Negligence, and Count VIII: Gross Negligence.

II. ANALYSIS

A. Legal Standards

Defendant pursues its motion under Fed.R.Civ.P. 12(h)(3), which states, "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." However, the Court finds the proper basis for this Motion to Dismiss based on lack of subject matter jurisdiction is Fed.R.Civ.P. 12(b)(1). "The objection that a federal court lacks subject-matter jurisdiction, see Fed.R.Civ.P. 12(b)(1), may be raised at any stage in the litigation, even after trial and the entry of judgment, Rule 12(h)(3)." Arbaugh v. Y & H Corp., 546 U.S. 500, 505, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (internal citations omitted). The Sixth Circuit has recognized that a court may consider subject-matter jurisdiction sua sponte Rule 12(h)(3), Franzel v. Kerr Mfg. Co., 959 F.2d 628, 630 n. 1 (6th Cir.1992), or a challenge to subject-matter jurisdiction may be raised by a party in a motion pursuant to 12(b)(1).

In the present Defendant has properly raised the issue of subject-matter jurisdiction in a Motion to Dismiss, the Court finds the Motion should be properly reviewed under Rule 12(b)(1).²

When evaluating a motion to dismiss pursuant to Rule 12(b)(1), the United States Court of Appeals for the Sixth Circuit has instructed:

When a defendant moves to dismiss on grounds of lack of subject matter jurisdiction "the plaintiff has the burden of proving jurisdiction in order to survive the motion." In reviewing a 12(b) (1) motion, the court may consider evidence outside the pleadings to resolve factual disputes concerning jurisdiction, and both parties are free to supplement the record by affidavits. However, where a defendant argues that the plaintiff has not alleged sufficient facts in her complaint to create subject matter jurisdiction, the trial court takes the allegations in the complaint as true.

Nichols v. Muskingum College, 318 F.3d 674, 677 (6th Cir.2003) (internal citations omitted).

B. The Montreal Convention

Defendant contends that Article 33 of the Montreal Convention bars the instant action in this Court.³ See Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999 (entered into force on Nov. 4, 2003) ("Montreal Convention"), reprinted in S. Treaty Doc. No. 106-45, 1999 WL 33292734 (2000). Plaintiffs contend that the intentional torts alleged in their Amended Complaint are outside the scope of the Montreal Convention and subject matter jurisdiction can be predicated upon the Alien Tort Claim Act ("ATCA"), 28 U.S.C. § 1350.

1. Scope

The Montreal Convention applies to "all international carriage by air of persons, baggage, or cargo, whether for reward or performed gratuitously by an `air transport undertaking.'" Art. 1(1). International carriage is defined in the Montreal Convention as "that which originates in the territory of one of the States Party to the Convention and terminates in that of another. ..." Art. 1(2). The Supreme Court has recognized that, "a treaty ratified by the United States is not only the law of this land, see U.S. Const., Art. II, § 2, but also an agreement among sovereign powers." El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167, 119 S.Ct. 662,142 L.Ed.2d 576 (1999) (citations omitted).

It is undisputed that the Decedent began his flight in Spain and was destined for Nigeria, and that both of these countries are signatories to the Montreal Convention. (See Def. Br. Ex. 2, List of Signatories to Convention). Further, Plaintiffs admit that the Montreal Convention applies to their action. Plaintiffs are currently seeking Special Drawing Rights pursuant to the Montreal Convention, and contend that "Defendant is strictly liable under the Convention regardless of Defendant's fault" and "[t]hat Decedent's death falls within the judicial interpretation and analysis of the scope of Article 17 of the [Montreal] Convention." (Plf. Br. at ¶¶ 18, 20).

In light of these facts, the Court finds Plaintiffs' claims fall within the scope of the Montreal Convention.⁴

2. Jurisdiction

The Montreal Convention sets forth its jurisdictional requirements in Article 33, "stating in relevant part:

1. An action for damages must be brought, at the option of the plaintiff, in the territory of one of the State Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.

2. In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier's aircraft pursuant to a commercial agreement.

Therefore, pursuant to the Montreal Convention there are five different forums in which Plaintiffs could bring their claims against Defendant for the death of the Decedent: (1) in the territory of the State Parties; (2) the domicile or principal place of business of Defendant; (3) the place where the ticket was bought; (4) the place of destination; or (5) the principal and permanent place of residence of the Decedent.⁵

In the instant case, it is undisputed the contract was formed in Spain and the flight was destined for Nigeria. The Decedent and the Plaintiffs are permanent residents and citizens of Nigeria. The State Parties involved are Spain and Nigeria. Finally, Defendant's principal place of business is Madrid, Spain. (Def. Br. Ex. 1, Jimenez Decl. ¶ 1).

Plaintiffs argue that this Court enjoys proper subject matter jurisdiction because Defendant was "incorporated" in Florida in 1966 as a "Foreign Profit Company." (Plfs. Br. Ex. A). Plaintiffs contend the fact Defendant is incorporated in Florida evidences that Defendant's is domiciled in the United States. Defendant argues that it is a Spanish company, organized and existing under the laws of Spain, and as a result, Spain should be considered its domicile under the Montreal Convention. (Jimenez Decl. ¶ 1).

Given its recent enactment, there is a dearth of law regarding the interpretation of the Montreal Convention. Therefore, the Court looks to case law examining the nearly exact provision of the Warsaw Convention and relies upon cases which have examined the question of what constitutes the "domicile" of a carrier under the Warsaw Convention.⁶

Both the Second Circuit and the Fifth Circuit have found that pursuant to the Warsaw Convention "there can be only one principal place of business for an air carrier and this is normally where the air carrier is incorporated." Swaminathan v. Swiss Air Trans. Co., Ltd., 962 F.2d 387, 390 (5th Cir.1992); Smith v. Canadian Pacific Airways, 452 F.2d 798, 800 (2d Cir.1971); In re Air Disaster Near Cove Neck, New York, 774 F.Supp. 718, 720 (E.D.N.Y.1991). In the...