Duay v. Cont'l Airlines Inc
| Decision Date | 21 December 2010 |
| Docket Number | CIVIL ACTION NO. H-10-cv-1454 |
| Parties | PHILIPPE DUAY, Plaintiff, v. CONTINENTAL AIRLINES, INC., Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court is the defendant's, Continental Airlines, Inc. ("Continental"), motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 10). The plaintiff, Philippe Duay ("Duay"), has filed a response in opposition to Continental's motion to dismiss (Dkt. No. 11), and Continental has filed a reply in support of its motion (Dkt. No. 12). After having considered the parties' written submissions, the pleadings, and the applicable law, the Court is of the opinion that Continental's motion to dismiss should be GRANTED.
The following factual background is derived largely from Duay's complaint. Duay, a Swiss citizen, is a paraplegic who travels with a custom-fitted wheelchair. On December 2, 2007, Duay arrived in Dallas on an international Continental flight while en route from Geneva, Switzerland to Las Vegas, Nevada. During the flight, he entrusted his wheelchair to Continental's staff. Upon retrieving his wheelchair at baggage claim in Dallas, 1 Duay found it damaged and unusable. After being notified of the damage sustained to his wheelchair, Continental provided Duay with a replacement wheelchair for use for the remainder of his trip. Duay, nevertheless, contends that the replacement wheelchair did not fit his body properly and caused him skin irritation.
On December 17, 2007, after having returned to Switzerland, Duay attended a doctor's appointment. Upon examination, he learned that he had sustained a skin irritation injury that would ultimately require hospitalization and surgery. For several months thereafter, Duay endured treatment for left side sacaral and preineal-ischiatic scabs. In June of 2008, he underwent surgery to treat his injuries. Despite surgery, Duay contends that he continues to suffer from a recurring perineal scab.
On December 18, 2009, he instituted the instant action against Continental in the 234th Judicial District Court of Harris County, Texas, identified as Cause No. 2009-80396. In his First Amended Petition, Duay alleges that Continental's ill-fitting replacement wheelchair caused his skin irritation and ultimate injury. As a consequence, he alleges claims against Continental for negligence, bailment, and breach of contract. He also seeks to recover damages for: past and future physical pain and mental anguish; past and future medical expenses; lost wages; injury to personal property; past and future physical impairment and disability; attorneys' fees; and court costs.
On April 28, 2010, Continental timely removed the state-court action to this Court pursuant to 28 U.S.C. § 1441, asserting that Duay's claims are preempted by the Montreal Convention and that this Court has original jurisdiction over such claims pursuant to 28 U.S.C. § 1331. Continental now moves to dismiss Duay's action for failure to state a claim.
Continental contends that Duay's claims are barred by the Montreal Convention's two-year statute of limitations. It also argues that Duay cannot avail himself of the Texas discovery rule because the Montreal Convention specifically defines when a cause of action accrues. Continental further asserts that the discovery rule is inapplicable to Duay's case because his injury was not inherently indiscoverable. Finally, Continental avers that even if the discovery rule is applicable in this case, Duay's claims are barred by the two-year limitations period because he filed his lawsuit more than two years after discovering his injuries. Accordingly, Continental argues that Duay's lawsuit should be dismissed for failure to state a claim.
Duay argues that Continental's motion to dismiss must be denied. Although he acknowledges that the Montreal Convention's two-year limitations period governs this lawsuit, he, nevertheless, argues that the method of calculating the limitations period is determined by Texas law. Thus, he contends that the Texas discovery rule tolled the accrual of the limitations period on his claims until the time he visited his doctor and discovered his injuries. He further asserts that under Texas law, the specific day on which a cause of action accrues is not included in computing the applicable limitations period. As a consequence, he avers that he timely filed his lawsuit within the Montreal Convention's two-year limitations period.
Federal Rule of Civil Procedure 12(b)(6) authorizes a defendant to move to dismiss for "failure to state a claim upon which relief may be granted." Fed. R. Civ. P. 12(b)(6). Under the demanding strictures of a Rule 12(b)(6) motion, "[t]he plaintiff's complaint is to be construed ina light most favorable to the plaintiff, and the allegations contained therein are to be taken as true." Oppenheimer v. Prudential Sec., Inc., 94 F.3d 189, 194 (5th Cir. 1996) (citing Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir. 1991)). Dismissal is appropriate only if, the "[f]actual allegations [are not] enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). Moreover, in light of Federal Rule of Civil Procedure 8(a)(2), "[s]pecific facts are not necessary; the [factual allegations] need only 'give the defendant fair notice of what the... claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 1964. Even so, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S. Ct. at 1964-65 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L.Ed.2d 209 (1986).
More recently, in Ashcroft v. Iqbal, the Supreme Court expounded upon the Twombly standard, reasoning that "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, ---U.S. 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S. Ct. at 1974). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft, ---U.S.----, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. at 1955). "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show [n]'-'that thepleader is entitled to relief.'" Ashcroft, ---U.S. —, 129 S. Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)). Nevertheless, when considering a 12(b)(6) motion to dismiss, the Court's task is limited to deciding whether the plaintiff is entitled to offer evidence in support of his or her claims, not whether the plaintiff will eventually prevail. Twombly, 550 U.S. at 563, 1969 n.8 (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed.2d 90 (1974)); see also Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999).
Continental moves to dismiss Duay's suit on grounds that the two-year limitations period contained in Article 35(1) of the Montreal Convention acts as a strict condition precedent to his lawsuit. As such, it contends that because Duay's flight arrived in Dallas on December 2, 2007, and he filed his complaint in state court on December 18, 2009, his lawsuit is time-barred. Duay, in contrast, argues that his claims are not time-barred because Article 35(2) of the Convention permits tolling in accordance with Texas law and the Texas discovery rule operated to toll the statute of limitations on his claim.
In this case, both parties concede that Duay's claim is governed by the Montreal Convention and that it acts as Duay's sole remedy.2 The Montreal Convention governs "all international carriage of persons, baggage and cargo performed by aircraft for reward." Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45, Art. 1(1), 1999 WL 33292734 [hereinafter "Montreal Convention"]. It provides the exclusive remedy for international passengers seeking damages against their airline carriers. Bassam v. Am. Airlines, Inc., No. 07-30958, 2008 WL 2725228, *2 (5th Cir. July 14, 2008). For purposes of the instant discussion, only four articles of the Montreal Convention are pertinent. Article 17 sets forth the conditions for imposing liability upon an airline carrier for accidental death or bodily injury to passengers and loss or damage to checked baggage. Montreal Convention, art. 17. Article 17(1) provides that a "carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking." Id. Article 17(2) provides that a "carrier is liable for damage sustained in [the] case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier." Id. Article 18 delineates the conditions for imposing liability upon an airline carrier in the event of damage to cargo. It provides, in relevant...
To continue reading
Request your trial