Diaz Aguasviva v. Iberia Lineas Aereas de Espana

• Citation: 902 F. Supp. 314
• Decision Date: 27 September 1995
• Docket Number: Civ. No. 93-2795 (HL).
• Parties: Ana Magalis DIAZ AGUASVIVA, Plaintiff, v. IBERIA LINEAS AEREAS de ESPANA and Insurance Co. X, Y, Z, Defendants.
• Court: U.S. District Court — District of Puerto Rico

902 F. Supp. 314

Ana Magalis DIAZ AGUASVIVA, Plaintiff, v. IBERIA LINEAS AEREAS de ESPANA and Insurance Co. X, Y, Z, Defendants.

Civ. No. 93-2795 (HL).

United States District Court, D. Puerto Rico.

September 27, 1995.

John E. Mudd, Ortiz Toro & Ortiz Brunet, Howard Charles, San Juan, PR, for plaintiff.

Juan R. Marchand-Quintero, Rivera Cestero & Marchand Quintero, San Juan, PR, for Iberia Lineas Aereas de Espana.

OPINION AND ORDER

LAFFITTE, District Judge.

Defendant, Iberia Lineas Aereas de Espana ("Iberia"), moved for (1) dismissal of the Plaintiff's complaint on the grounds that this Court lacks subject matter jurisdiction under 28 U.S.C. § 1332(a) (1995) and (2) summary judgment on the grounds that Iberia's passenger ticket and tariffs filed with the Department of Transportation absolve Iberia of all liability. (Dkt. Nos. 6, 11, 16.) Plaintiff, Ana Magalis Diaz Aguasviva ("Diaz"), opposed Iberia's motion. (Dkt. Nos. 9, 12, 15.)

The Court hereby denies Iberia's motion to dismiss the complaint because there is subject matter jurisdiction over this case under 28 U.S.C. § 1330 (1995). Pursuant to section 1330, the Court hereby strikes the Plaintiffs request for a jury trial. In addition, the Court hereby grants Iberia's motion for summary judgment on the Plaintiff's contractual claim but denies Iberia's motion for summary judgment on the Plaintiff's claim of negligence within the meaning of § 1802 of Puerto Rico's Civil Code. See P.R. Laws Ann. tit. 31, § 5141 (1991).

I. BACKGROUND¹

Diaz is a citizen of the Dominican Republic and permanent resident of Puerto Rico. On July 8, 1993, Diaz and a group of parishioners from her Church departed from San Juan, Puerto Rico on the Defendant's airline, Iberia Lineas Aereas de Espana. Iberia is a corporation organized and existing under the laws of the Republic of Spain and majority owned by a political subdivision of Spain, the Instituto Nacional de Industria.

Diaz' first stop was Madrid, Spain where she stayed for two days. Thereafter, on July 10, 1993, she boarded a new Iberian airline bound for her final destination, Israel. Before reaching her destination, however, Diaz endured several unfortunate experiences that form the basis of this lawsuit.

On the way to Israel, Iberia made a stop in Istanbul, Turkey. When the Turkish authorities discovered that Diaz did not have the necessary visa to enter the country, Turkish immigration officials arrested her and imprisoned her in a temporary holding area. Separated for one hour from her companions, Diaz feared for her safety. Without a visa, Turkish authorities forced Diaz to return to Spain aboard one of Iberia's air carriers.

During her return flight to Barcelona, Spain, Iberia's employees reported Diaz as an illegal alien to the immigration officials. Upon her arrival in Barcelona, a uniformed police officer boarded the airplane asking about the illegal alien. An Iberian employee identified Diaz as the alien. Subsequently, the officer forced Diaz to leave the airplane. The officer held Diaz in a temporary holding area before forcing her to return to her seat on the same airplane now bound for Madrid, Spain. During this ordeal, the employees of Iberia did not assist Diaz or answer any of her questions.

In Madrid, uniformed police officers again boarded the airplane and asked where the illegal alien was sitting. Once again, Iberia's employees identified Diaz. Immediately thereafter, the officers forced Diaz to leave the airplane and pushed Diaz to move along faster while the other passengers watched. Finally, at one o'clock in the morning, the officers released her.

As a result of this traumatic experience, on December 30, 1993, Diaz filed a complaint against Iberia airlines. Diaz alleged that Iberia violated a contractual obligation when it did not inform her that she needed a visa to enter Turkey. In addition, Diaz claimed that Iberia's employees were negligent within the meaning of § 1802 of the Civil Code of Puerto Rico. See P.R. Laws Ann. tit. 31, § 5141 (1991). Diaz stated that the Court had subject matter jurisdiction over these claims based on diversity jurisdiction.

II. DISCUSSION

A. IBERIA'S MOTION TO DISMISS

Iberia moved to dismiss Diaz' complaint on the grounds that the Court lacked subject matter jurisdiction under 28 U.S.C. § 1332(a) (1995). As a result, both Iberia and Diaz presented arguments over the constitutionality of a permanent resident such as Diaz suing a non-resident alien like Iberia in federal court. It is unnecessary to reach this constitutional question because the parties overlooked this Court's subject matter jurisdiction under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1330 (1995).

Section 1330(a) states: "The district courts shall have original jurisdiction without regard to amount in controversy of any non-jury civil action against a foreign state." 28 U.S.C. § 1330(a) (1995). In Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 688, 102 L.Ed.2d 818 (1989), the Supreme Court declared that section 1330 is the exclusive source of a federal court's jurisdiction over a "foreign state." Since Iberia is a "foreign state" within the meaning of 28 U.S.C. § 1330 (1995) and 28 U.S.C. § 1603 (1995), section 1330 is the sole means by which this Court has jurisdiction over Iberia. See Iberia, Lineas Aereas de Espana, S.A. v. Secretario de Hacienda, 94 J.T.S. 8 (1994); Tote v. Iberia Int'l Airlines, 649 F.Supp. 41 (E.D.Pa.1986); Greene Air Int'l, Inc. v. Iberia Airlines of Spain, Inc., No. 91 C 348, 1991 WL 70900, 1991 U.S.Dist. LEXIS 5601 (E.D.Ill. April 26, 1991).

As a general rule, under the FSIA, "foreign states" are presumptively immune from the jurisdiction of this Court. Saudi Arabia v. Nelson, 507 U.S. 349, ___, 113 S.Ct. 1471, 1476, 123 L.Ed.2d 47 (1993). However, Diaz can sue Iberia in this Court under one of the exceptions to this rule of immunity. See 28 U.S.C. § 1605 (1995). Under section 1605(a)(2), actions that are "based upon a commercial activity carried on in the United States by the foreign state" are not immune from suit. Id. In other words, Iberia is immune when it acts as a sovereign entity but is subject to suit when it acts as a commercial entity. See Santos v. Compagnie Nationale Air France, 934 F.2d 890, 893 (7th Cir.1991). Clearly, Iberia was acting as a commercial entity when it flew Diaz from San Juan, Puerto Rico to Israel while making stops in Madrid, Spain and Istanbul, Turkey. Consequently, Iberia is not immune from Diaz' suit and this Court has subject matter jurisdiction to hear her claims.

Finally, pursuant to the FSIA, the Court hereby strikes the Plaintiff's demand for a jury trial. The Seventh Amendment does not guarantee the Plaintiff a jury trial because suits against "foreign states" were nonexistent at common law. Consequently, it is well-settled that section 1330 does not allow jury trials against "foreign states." See Universal Consol. Cos., Inc. v. Bank of China, 35 F.3d 243 (6th Cir.1994); Ruggiero v. Compania Peruana De Vapores "Inca Capac Yupanqui", 639 F.2d 872 (2d Cir.1981); Burke v. Compagnie Nationale Air France, 699 F.Supp. 1016 (D.P.R.1988).

B. IBERIA'S MOTION FOR SUMMARY JUDGMENT

I. STANDARD

Failing to dismiss the complaint, Iberia moved alternatively for summary judgment. Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial responsibility of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The opposing party must then designate specific facts that show that there is a genuine triable issue. Id. at 324, 106 S.Ct. at 2553; Fed.R.Civ.P. 56(e).

The nonmoving party cannot rest upon mere conclusory allegations, improbable inferences and unsupported speculation. Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993). Moreover, the nonmoving party cannot rest on the pleadings but should set forward specific facts showing that there are genuine triable issues. Id. Supporting and opposing affidavits shall be based upon personal knowledge and set forth facts that would be admissible into evidence at trial. Fed.R.Civ.P. 56(e). All material facts set forth in the movant's statement of uncontested facts will be deemed to be admitted unless controverted by the nonmovant in a separate, short, concise statement of material facts at issue. Local Rule 311.12. See also, Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 930 (1st Cir.1983).

A fact is material, if under applicable substantive law, it may affect the result of the case. Ortega-Rosario v. Alvarado-Ortiz, 917 F.2d 71, 73 (1st Cir.1990). A dispute is genuine only if there is conflicting evidence that requires a trial to resolve the discrepancy. Id. In determining whether summary judgment is warranted, the court views the facts alleged in the light most favorable to the non-moving party and must indulge all inferences in favor of that party. Rossy v. Roche Products, Inc., 880 F.2d 621, 624 (1st Cir.1989); John & Kostas Serv. Station, Inc. v. Cumberland Farms, Inc., 948 F.2d 821, 822 (1st Cir.1991).

II. APPLICATION

Plaintiff has two distinct claims against Iberia airlines: (1) a contractual claim stemming from Iberia's failure to notify Diaz about a visa to enter Turkey; and (2) a claim under § 1802 of the Puerto Rico Civil Code including but not limited to allegations of defamation, false imprisonment, false arrest, assault, and negligence. See P.R.Laws Ann. tit. 31, § 5141 (1991).

Before gleaning the record for genuine issues of material fact, the Court must first determine whether the Airline Deregulation Act of 1978 ("ADA") preempts any or all of the Plaintiff's claims. See 49 U.S.C. § 41713(b)(1) (1995).² Cong...