Chukwu v. Air France, 02 C 2190.

• Decision Date: 11 September 2002
• Docket Number: No. 02 C 2190.,02 C 2190.
• Citation: Chukwu v. Air France, 218 F.Supp.2d 979 (N.D. Ill. 2002)
• Parties: Monica O. CHUKWU, Plaintiff, v. AIR FRANCE, a foreign corporation and Unknown Employees of Air France, Defendants.
• Court: U.S. District Court — Northern District of Illinois

218 F.Supp.2d 979

Monica O. CHUKWU, Plaintiff, v. AIR FRANCE, a foreign corporation and Unknown Employees of Air France, Defendants.

No. 02 C 2190.

United States District Court, N.D. Illinois, Eastern Division.

September 11, 2002.

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Benjamin Obi Nwoye, Mendoza & Nwoye, P.C., Chicago, IL, for Plaintiff.

Mark Clarke Fedota, Jason William Fura, Fedota, Childers & Rocca, P.C., Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

GETTLEMAN, District Judge.

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 plaintiff's 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.

BACKGROUND¹

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 plaintiff's behalf from defendant's agent in Chicago, Illinois, for air travel between Lagos, Nigeria, and San Francisco, California. In purchasing plaintiff's 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.

Plaintiff's 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. Plaintiff's 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) failure 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.²

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 Immunities 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, 102 L.Ed.2d 818 (1989); 28 U.S.C. §§ 1330, 1604.

Despite defendant's argument to the contrary, plaintiff's 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, 76 L.Ed.2d 81 (1983).

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, 355, 113 S.Ct. 1471, 1476, 123 L.Ed.2d 47 (1993); Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. at 493, 103 S.Ct. 1962, 1971, 76 L.Ed.2d 81; Harris v. Polskie Linie 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 plaintiff's claims are governed not by state tort or contract law as alleged by plaintiff,³ 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.⁴ See El Al Israel Airlines v. Tseng, 525 U.S. 155, 176, 119 S.Ct. 662, 675, 142 L.Ed.2d 576 (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 Linie 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. 662, 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 (providing that "the carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his willful misconduct....").

Article 17 of the Convention, which governs the instant dispute, provides that a carrier shall be liable "for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by the passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."⁵ According to Article 28 of the Convention, suits for damages under Article 17 may be brought before a court in the territory of any of the following: (1) the domicile of the carrier, (2) the carrier's principal place of business, (3) the carrier's place of business through which the contract for travel was made, or (4) the place of destination.

The parties do not dispute that plaintiff was engaged in international travel, as defined by the Convention. See Article 1 (defining "international transportation"). The parties further agree that the contract for travel was made in Chicago, Illinois, and that plaintiff's flight was bound for San Francisco, California. Therefore, this court finds that the instant case is governed by the Warsaw Convention and that this court has subject matter jurisdiction pursuant to the FSIA, 28 U.S.C. §§ 1330, 1604.

Exceptions to Immunity under FSIA

Even if the Warsaw Convention did not, by its own force, confer subject matter jurisdiction over the instant dispute, the court finds that the FSIA's commercial activity exception, supra note 3, would suffice. The court notes at the outset that plaintiff alleges, as a part of her injury, that defendant denied her a wheelchair to disembark the plane upon her arrival in San Francisco. This most certainly qualifies as commercial activity within the United States under the FSIA, regardless of plaintiff's theory of recovery.

To prevail on a claim under the Convention, a plaintiff must prove that: (1) there has been an "accident," from which (2) the plaintiff suffered an "injury," and that (3) the accident "took place on board the aircraft or in the course of any of the operations of embarking or disembarking." See Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 535-536, 111 S.Ct. 1489, 1494, 113 L.Ed.2d 569 (1991). An "accident," as used in the Convention, refers to any "unexpected or unusual event or happening that is external to the passenger." Air France v. Saks, 470 U.S. 392, 405, 105 S.Ct. 1338, 1345, 84 L.Ed.2d 289 (1985). This definition is to be flexibly applied after an assessment of all of the circumstances surrounding the plaintiff's injury. Id.

To determine the extent to which the treatment plaintiff received onboard her flight was unusual or unexpected, and hence constitutes an "...