Donkor v. British Airways Corp.

• Decision Date: 12 August 1999
• Docket Number: Civ. A. No. 97-CV-3949(DGT).
• Citation: 62 F.Supp.2d 963
• Parties: Nana Serwaa DONKOR, Plaintiff, v. BRITISH AIRWAYS, CORP. and VLJ Travel Service, Defendants.
• Court: U.S. District Court — Eastern District of New York

62 F.Supp.2d 963

Nana Serwaa DONKOR, Plaintiff, v. BRITISH AIRWAYS, CORP. and VLJ Travel Service, Defendants.

Civ. A. No. 97-CV-3949(DGT).

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

August 12, 1999.

Kamal Rostogi, New York, NY, for Nana Serwaa Donkor, Plaintiff.

Stephen J. Fearon, James G. Hnat, Richard B. Marrin, Condon & Forsyth, LLP, New York, NY, for British Airways, Defendants.

Jason Paris, Law Office of Mark Sietelman, New York, NY, For VLJ Travel Service, Defendants.

MEMORANDUM AND ORDER

TRAGER, District Judge:

Plaintiff, Nana Serwaa Donkor ("Donkor"), brought an action in New York State Civil Court, County of Queens alleging that defendants, British Airways, Corp. ("British Airways"), and VLJ Travel Service ("VLJ"), bore liability under theories of tort and contract for the harms Donkor suffered as a result of her having been detained and deported by the British Immigration Office during an unexpectedly long layover in England while she was flying from the United States to France. British Airways removed the case to federal court and now moves that its case be severed from VLJ's. Defendants have also jointly moved for summary judgment on Donkor's claims. Although none of the parties disputed jurisdiction, the court raised the issue sua sponte. Because the parties have not established that there was a basis for removal, the action is remanded.

Background

On May 23, 1997, Donkor, a citizen of Ghana traveling on a passport from Ghana, purchased a round trip ticket from VLJ for a flight on British Airways from John F. Kennedy airport in New York to Charles De Gaulle Airport in Paris, France. The ticket required that Donkor land at the Birmingham, U.K. airport in order to connect with another British Airways flight making the last leg of the flight to France. Donkor alleges that she was told by VLJ that she would not need a transit visa in order to make the connection which was to leave Birmingham airport "shortly" after Donkor's arrival. Pl. Mem. at 2. See Ans. to Inter. at ¶ 5, R.56.1, Ex. B ("Ans. to Inter.").

The flight from JFK was scheduled to arrive at Birmingham at 9:50 A.M. on June 8, 1997. Because of passenger illness, however, the pilot of that flight was forced to land the plane in Gander, Newfoundland, thereby delaying Donkor's flight by nearly seventeen hours and causing her to miss her connection to Paris, France. Upon arrival at Birmingham airport, Donkor was held by British Immigration and then deported. Donkor blames British Airways for the damages she suffered. There was no representative from the airline upon Donkor's arrival, and Donkor was given no assistance. Specifically, Donkor alleges that she was "never escorted nor advised by British Airways staff to go to the Transit Lounge. Rather, both my baggage and myself were ushered before the Immigration Official instead of being routed to Paris." Donkor Aff. at ¶ 7. She asserts that she was "abandoned" by British Airways and "left [at] the mercy of Immigration." Donkor Aff. at ¶ 10; Ans. to Inter. at ¶ 6. British Immigration officials then refused Donkor admission into the United Kingdom because she did not have the proper visa. They prevented her from transferring to a flight to Paris, detained her for seven hours, confiscated 486 items of clothing which were determined by British immigration officials to be "counterfeit," see British Customs Form, Ans. to Inter., Ex B, and deported her to the United States on board another British Airways flight.

Discussion

(1)

Plaintiff characterizes her claim as one "based in negligence, breach of contract, personal injury, wrongful detention, assault and loss of personal belongings." Def. Mem. at 1. Her original complaint asserted that:

the defendants represented that NO [sic] transit visas were required to land in Birmingham, UK [sic]. However, plaintiff was detained for (7) hrs and deported back to the USA [sic] without accomplishing her purp[o]se, resulting in loss of her belongings in the amount of $5,000, psychological injury, put into detention, and assaulted, demeaned, and confined/detained by the UK [sic] authorities as a result of the defendan[t]s' failure to advise plaintiff to obtain a transit visa. WHEREFORE, plaintiff demands judgment for plaintiff in the sum of $25,000.00 with cost and attorneys fees.

Endorsed Complaint.

In response to an interrogatory, Donkor asserted that British Airways' negligence was constituted in part by the facts that Donkor "was not properly advised for the next flight and was left on [sic] the mercy of [the] Immigration Officer." Ans. to Inter. at ¶ 6.

Donkor originally brought this action against British Airways and VLJ in the New York State Civil Court. Donkor did not assert a federal cause of action in her complaint. Nevertheless, British Airways subsequently removed the action to the Federal District Court for the Eastern District of New York pursuant to 28 U.S.C. § 1441 and 28 U.S.C. § 1331 (federal question jurisdiction) on the ground that plaintiff's claims arose out of international transportation and were, therefore, governed by the provisions of the Convention for the Unification of Certain Rules Relating to International Transportation by Air, App. 49 U.S.C. § 40105 ("the Warsaw Convention" or "the Convention"). Interestingly, despite the fact that British Airways removed the action to federal court on the ground that the claims were governed by the Warsaw Convention, it then proceeded to ignore the federal basis for removal it had asserted, and moved for summary judgment entirely on the alleged preemption of Donkor's state law claims by the Airline Deregulation Act of 1978.

Beyond the bald assertion by defendant British Airways that federal subject matter jurisdiction may be found in the Warsaw Convention, neither party discussed federal subject matter jurisdiction until requested to do so. See Memo from Court, dated 5/13/99. In a memorandum from the court, the parties were requested to answer the following pertinent questions: which of plaintiff's claims were preempted by the substantive scope of the Warsaw Convention and which were not? See Memo dated 5/13/99. The parties did not significantly clarify the issues in response to that memo. Oral argument was heard on the motion on July 15, 1999. At that point, in response to the court's questions involving its jurisdiction to hear the matter, British Airways requested that they be allowed to further brief the matter. The parties were granted additional time in which to supplement the record with letter briefs. However, as shall become evident, the grant of additional time did not result in further clarification of the issues.

(2)

Under the Warsaw Convention, a court must have both "treaty" and "domestic" jurisdiction. See Smith v. Canadian Pac. Airways, Ltd., 452 F.2d 798, 799-800 (2d Cir.1971); Malik v. Butta, No. 92 CIV 8703, 1993 WL 410168, at *3 (S.D.N.Y. Oct.14, 1993). Treaty jurisdiction is governed by Article 28 of the Convention which supplies four fora in which suit may be brought based on where tickets were bought, who the parties are, and what travel was contemplated.¹ Domestic jurisdiction refers to the rules of the forum's courts.

In this case, because the ticket was bought within the United States and contemplated a round trip beginning and ending in the United States, the requirements of treaty jurisdiction are clearly fulfilled. See Arts. 1(2), 28(1). Whether the requirements of domestic jurisdiction are satisfied, however, is a more complicated question.

A case brought in state court may be removed by the defendant to federal court if the case originally could have been brought in federal court pursuant to 28 U.S.C. § 1331 because a federal question was presented on the face of the complaint. See 28 U.S.C. § 1441. Furthermore, even if there is no federal cause of action presented on the face of the complaint, a defendant may still remove a cause of action to federal court if the state claims are completely preempted by a federal statute. See Caterpillar, Inc. v Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 2430, 96 L.Ed.2d 318 (1987); Fax Telecommunicaciones, Inc. v. AT & T, 138 F.3d 479, 486 (2d Cir.1998); 14B Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure §§ 3722, 3722.1 ("Wright & Miller"). The common presumption is that a federal court lacks subject matter jurisdiction until that jurisdiction is established. See Benjamins v. British European Airways, 572 F.2d 913, 915 (2d Cir.1978) (plaintiff asserting jurisdiction under the Warsaw Convention must establish that case is covered by the convention); United Food & Commercial Workers Union, Local 919, AFL-CIO v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir.1994); 13 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, at § 3522. If a district court finds that it does not have subject matter jurisdiction over a case, it must remand that case to state court. See 28 U.S.C. § 1447(c).

Although it is now generally accepted that the Warsaw Convention creates its own cause of action, see Benjamins v. British European Airways, 572 F.2d 913, 919 (2d Cir.1978) (ruling that Articles 17 and 18 of the Warsaw Convention — personal injury and loss of baggage — do create a cause of action for wrongful death and loss of baggage), Donkor did not mention the Warsaw Convention on the face of her complaint. Thus, removal could only have been proper if the Warsaw Convention completely preempted all state law claims — a conclusion defendants originally attempted to reach via the assertion that the claim arose out of international travel. In the letter replying to the court's request for further discussion of the preemption issue, defendants stated:

Article 24 of the Convention provides that actions for damages, however founded, can only be brought subject to the conditions and limitations set forth in the Convention. Article 24 precludes a passenger from...