Chey v. Orbitz Worldwide, Inc.

• Decision Date: 21 November 2013
• Docket Number: Civ. No. 13–00139 JMS/KSC.
• Parties: Timothy CHEY, Plaintiff, v. ORBITZ WORLDWIDE, INC., and Air China, Defendants.
• Court: U.S. District Court — District of Hawaii

983 F.Supp.2d 1219

Timothy CHEY, Plaintiff,
v.
ORBITZ WORLDWIDE, INC., and Air China, Defendants.

Civ. No. 13–00139 JMS/KSC.

United States District Court,
D. Hawai‘i.

Nov. 21, 2013.

[983 F.Supp.2d 1223]

Timothy Chey, Ewa Beach, HI, pro se.

Adam G. Lang, Ronald I. Heller, Torkildson Katz Moore Hetherington & Harris, Honolulu, HI, for Defendants.

ORDER (1) GRANTING DEFENDANT AIR CHINA, LTD'S MOTION TO DISMISS, DOC. NO. 26; (2) GRANTING IN PART DEFENDANT ORBITZ WORLDWIDE, INC.'S MOTION TO DISMISS AS TO IMPROPER VENUE, DOC. NO. 28; AND (3) TRANSFERRING ACTION TO THE NORTHERN DISTRICT OF ILLINOIS
J. MICHAEL SEABRIGHT, District Judge.
I. INTRODUCTION

According to pro se Plaintiff Timothy Chey's (“Plaintiff”) July 2, 2013 First

[983 F.Supp.2d 1224]

Amended Complaint (“FAC”), Plaintiff booked a flight on Air China from Spain to Brazil through Orbitz Worldwide, Inc. (“Orbitz”), and was subsequently denied entry on the flight for failure to have a visa. Plaintiff alleges various state law claims against Orbitz and Air China (collectively, “Defendants”) based on their failure to provide him information regarding Brazil's visa requirements and failure to assist him in making alternative travel arrangements. Plaintiff also asserts state law claims against Orbitz based on another incident in which Orbitz provided the wrong gate information for a flight in Tokyo. The FAC asserts that the court has diversity jurisdiction, and Plaintiff seeks “$350,000 minimum damages for each action and punitive damages” against Defendants. Doc. No. 25, FAC ¶ 26.

Currently before the court are Defendants' Motions to Dismiss. Air China argues, among other things, that the court lacks subject matter jurisdiction over the claims against Air China due to the Foreign Sovereign Immunities Act of 1976 (the “FSIA”), 28 U.S.C. § 1602 et seq. Doc. No. 26. Orbitz argues that the court lacks diversity jurisdiction because Plaintiff cannot meet the $75,000 jurisdictional minimum where Plaintiff's damages are limited by Orbitz' Terms and Conditions to which Plaintiff agreed. Doc. No. 28. Orbitz further argues that venue is improper because Orbitz' Terms and Conditions designate the courts in Cook County, Illinois as the exclusive forum for any litigation.

Based on the following, the court finds that the court lacks subject matter jurisdiction over the claims against Air China due to the FSIA, and that venue is improper in this district as to Plaintiff's claims against Orbitz. The court therefore GRANTS Air China's Motion to Dismiss, GRANTS in part Orbitz' Motion to the extent it asserts that venue is improper, and TRANSFERS this action to the Northern District of Illinois.

II. BACKGROUND A. Factual Background
1. Allegations of the FAC

As alleged in the FAC, Plaintiff booked a business class reservation through Orbitz.com for an Air China flight from Spain to Brazil on November 1, 2012. Doc. No. 25, FAC ¶ 10. Despite phone calls and emails, Defendants failed to warn Plaintiff that he needed a visa to travel to Brazil. Id. ¶ 11. When Plaintiff arrived at the airport in Spain, he was told that he would not be permitted to board the flight because he did not have a visa. Id. ¶ 22. Air China refused to help Plaintiff find another flight or otherwise assist Plaintiff, and Plaintiff was unable to find any international customer support telephone number for Defendants. Id. ¶ 24. Plaintiff asserts that Defendants knew that many Americans traveling to Brazil believed that they did not need visas, and that Defendants therefore should have provided warnings to passengers. Id. ¶ 14. Plaintiff further asserts that Orbitz purposefully hides its customer service number so that customers cannot contact it. Id. at 7 ¶ 4.

The FAC alleges that in a separate incident involving a flight from Tokyo to Singapore, Orbitz provided Plaintiff the wrong terminal information for Narita International Airport, which resulted in Plaintiff having to carry six pieces of luggage to a terminal bus and injuring his back while he tried to make his connection. Id. ¶¶ 27–29. Plaintiff asserts that Orbitz knew both of its “horrific and absent customer service” and its misrepresentation regarding the terminals at Narita International Airport, and still failed to take any steps to remedy these issues. Id. ¶ 30.

[983 F.Supp.2d 1225]

Based on these allegations, the FAC asserts state law claims titled (1) Fraud and Deceit (Count 1); (2) Negligence—Breach of Duty of Care (Count 2); (3) Negligent Infliction of Emotional Distress (Count 3); (4) Intentional Misrepresentation (Count 4); (5) Negligent Misrepresentation (Count 5); and (6) Breach of Implied Contract (Count 6).

2. Orbitz' Terms and Conditions

As part of the reservation process on Orbitz.com, the website displays a Flight Reservation page containing a list of warnings regarding conditions that may apply to a passenger's travel, and which the customer must click “Agree and Book” to proceed with the reservation. See Doc. No. 28–3, Stephen Sedlak Decl. ¶ 6. By clicking on “Agree and Book,” the customer acknowledges, among other things, that (1) “Internal trips require special travel documentation for each traveler,” and (2) “You have read and agree to the booking terms and conditions which incorporate the privacy policy.” Id.

The underlined words in the text quoted above provide links to further information. For example, the “travel documentation” link provides:

Travel Documentation

Any time you travel to or connect through a foreign country, you will need to prove your citizenship. It is the traveler's obligation to obtain all required international travel documentation. Failure to do so may result in denied boarding and additional costs.

Orbitz is not responsible for passengers who fail to obtain proper documentation prior to travel.

Id. ¶ 7.

The “ booking terms and conditions ” link provides Orbitz' “Terms and Conditions” for using Orbitz. The Terms and Conditions include an “International Travel” section providing that “Orbitz does not accept liability for damages, losses, or delays that may result from improper documents for entry, exit, length of stay, or from travel to such destinations.” Doc. No. 28–4, Orbitz Ex. A. The Terms and Conditions also include a “Limitation of Liability” section providing:

IN NO EVENT WILL ORBITZ OR ITS PROVIDERS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES FOR ANY USE OF THIS SITE, ANY HYPER LINKED WEB SITE, THE ACTS OR OMISSIONS OF PROVIDERS WHO FURNISH PRODUCTS OR SERVICES THROUGH THIS SITE, OR THE PRODUCTS OR SERVICES OFFERED BY PROVIDERS THROUGH THIS SITE, INCLUDING, WITHOUT LIMITATION, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH (I) ANY USE OF, BROWSING OR DOWNLOADING OF ANY PART OF OUR SITE OR CONTENT, (II) ANY FAILURE OR DELAY (INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE ANY COMPONENT OF THIS SITE FOR RESERVATIONS OR TICKETING), OR (III) THE PERFORMANCE OR NON PERFORMANCE BY U.S. OR ANY PROVIDER, OR (IV) ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, EVEN IF ORBITZ AND

[983 F.Supp.2d 1226]

THE PROVIDER(S) HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES TO SUCH PARTIES OR ANY OTHER PARTY.

If, despite the limitation above, Orbitz or a Provider is found liable for any loss or damage which arises out of or is in any way connected with any of the occurrences described in the limitation above, then Orbitz and the Providers' liability will in no event exceed, in total, the sum of US$250.00. Some states do not allow the limitation of liability, so the limitations above may not apply to you.

Id. Finally, the Terms and Conditions provide, under “Disputes”:

The laws of the State of Illinois (USA), without regard to its conflict of law rules, will govern these Terms. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and Conditions. If you take any legal action relating to your use of our site or these Terms, you agree to file such action only in the state and federal courts located in Cook County, Illinois (USA)....

Id.

B. Procedural Background

Plaintiff filed his Complaint on March 22, 2013, and filed his FAC on July 2, 2013 after the court determined that the Complaint failed to adequately allege diversity jurisdiction. See Doc. Nos. 22, 25. Air China filed its Motion to Dismiss on July 17, 2013, Doc. No. 26, and Orbitz filed its Motion to Dismiss on July 18, 2013. Doc No. 28. Plaintiff filed Oppositions on September 30, 2013, Doc. Nos. 34, 35, and Defendants filed Replies on October 7, 2013. Doc. Nos. 36, 37. A hearing was held on October 28, 2013.

At the October 28, 2013 hearing, the court raised the question of where the ticket for Plaintiff's flight from Spain to Brazil was purchased. On November 13, 2013, Defendants provided supplemental declarations stating that the Internet Protocol address associated with this booking was located in Paris, France. See Doc. Nos. 42, 43.

III. STANDARDS OF REVIEW A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss claims over which it lacks proper subject matter jurisdiction. The court may determine jurisdiction on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1) so long as “the jurisdictional issue is [not] inextricable from the merits of a case.” Kingman Reef Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1195 (9th Cir.2008).

“[U]nlike a Rule 12(b)(6) motion, in a Rule 12(b)(1) motion, the district court is not confined to the four corners of the complaint—it may consider facts and need not assume the truthfulness of the complaint[,]” and the existence of disputed material facts will not preclude the court...