Gupta v. Austrian Airlines

• Decision Date: 18 July 2002
• Docket Number: No. 01 C 5169.,01 C 5169.
• Citation: 211 F.Supp.2d 1078
• Court: U.S. District Court — Northern District of Illinois
• Parties: Lalit K. GUPTA, Administrator of the Estate of Om Parkash Gupta, deceased, and Parveen Kumari Gupta, surviving spouse of the decedent, Om Parkash Gupta, Plaintiffs, v. AUSTRIAN AIRLINES, and Austrian Airlines—U.S. Subsidiary, Defendants.

Page 1078

211 F.Supp.2d 1078

Lalit K. GUPTA, Administrator of the Estate of Om Parkash Gupta, deceased, and Parveen Kumari Gupta, surviving spouse of the decedent, Om Parkash Gupta, Plaintiffs, v. AUSTRIAN AIRLINES, and Austrian Airlines—U.S. Subsidiary, Defendants.

No. 01 C 5169.

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

July 18, 2002.

Donald J. Nolan, Floyd A. Wisner, Chicago, IL, Jerome L. Skinner, Stanley M. Chesley, Waite, Schneider, Bayless & Chesley, Cincinnati, OH, for plaintiffs.

Alan L. Farkas, Brandt Randall Madsen, Madsen, Farkas & Powen, L.L.C., Chicago, IL, Andrew Harakas, Condon & Forsyth, LLP, New York City, for defendants.

MEMORANDUM OPINION AND ORDER

ALESIA, District Judge.

Currently before the court are: (1) plaintiffs' motion to strike, and (2) defendants' motion for summary judgment. For the reasons set forth below, the court (1) denies plaintiffs' motion to strike, and (2) denies defendants' motion for summary judgment.

I. BACKGROUND¹

On August 21, 2000, Om Parkash Gupta (the "decedent") became ill and died while a passenger on Austrian Airlines Flight 542, a non-stop flight from New Delhi, India to Vienna, Austria. The decedent's ultimate destination was Chicago, Illinois. Parveen Kumari Gupta, the decedent's surviving spouse, along with Lalit K. Gupta, the decedent's brother and the administrator of his estate, are the plaintiffs in this suit. The complaint alleges the decedent's death was caused in part by inadequate medical equipment on the airplane and improper training of the flight crew in the handling of in-flight medical emergencies.

Plaintiff Parveen Kumari Gupta is a legal immigrant of the United States and a resident of Ohio. Plaintiff Lalit K. Gupta is a citizen of the United States and a resident of Ohio. Defendant Austrian Airlines is a foreign air carrier engaged in the business of international carriage by air of passenger, baggage, and cargo, and operates flights within the Republic of Austria and between the Republic of Austria and other countries, including the United States and India. Austrian Airlines is a corporation organized and existing under the laws of the Republic of Austria with its corporate headquarters and principal place of business in Vienna, Austria.

This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, as the plaintiffs' claims arise under the Warsaw Convention ("Convention").² Venue is proper here because Austrian Airlines is subject to personal jurisdiction in the Northern District of Illinois. Also, Article 28 of the Convention provides that an action for damages may be brought, at the plaintiff's option, "either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination." 49 Stat. at 3020 (emphasis added). Because decedent's ultimate destination was Chicago, this action was properly brought in federal district court in Chicago.

This court ordered the parties to file motions on the pleadings addressing the applicability of the Convention, jurisdiction and venue. (Ct. Orders dated Oct. 9, 2001 & Jan. 31, 2002.) When the court ordered this briefing, it gave parties leave to take limited discovery on only these limited issues. (Ct. Order dated Oct. 9, 2001.) At the request of the parties, the court clarified its order, again limiting discovery to the issues of applicability of the Convention, jurisdiction and venue. (Ct. Order dated Apr. 2, 2002.) In response, defendants filed a motion for summary judgment, arguing that (1) defendants are entitled to summary judgment because the decedent's death was not caused by an "accident" within the meaning of the Convention because neither inadequate medical equipment nor negligent crew response constitutes an Article 17 accident, and (2) plaintiffs' complaint should be dismissed under the doctrine of forum non conveniens. Also, plaintiffs have filed a motion to strike certain affidavits and, in the alternative, to strike defendants' reply memorandum.

II. DISCUSSION

A. Plaintiffs' motion to strike

As a threshold issue, the court will dispose of plaintiffs' motion to strike, to establish what evidence is admissible and, therefore, properly before this court in support of the summary judgment motion. Plaintiffs are moving to strike (1) certain affidavits filed by the defendants in support of their summary judgment motion and, in the alternative, (2) defendants' reply memorandum. The court will address each portion of the plaintiffs' motion in turn.

First, plaintiffs argue that on May 23, 2002, ten days after defendants filed their reply brief, defendants filed two affidavits in further support of their summary judgment motion. Plaintiffs argue that these affidavits should be stricken because they are outside the briefing contemplated by Federal Rule of Civil Procedure 12(f). Plaintiffs do not identify which two affidavits they are moving to strike, but defendants' response identifies them as the declarations of Ursula Rumler, a purser and flight attendant for the airlines, and Thomas Heinrich, the head of flight safety and security training for the airlines.

The Rumler and Heinrich affidavits detail the events that transpired on the airplane as well as the adequacy of the medical equipment and flight attendant training. Although these facts are relevant to the defendants' liability under the Convention, they go beyond the limited discovery this court allowed regarding the applicability of the Convention. Because no discovery has been allowed on the liability issues, the court cannot assess liability under summary judgment standards. See Graham v. Sauk Prairie Police Comm'n, 915 F.2d 1085, 1100 n. 10 (7th Cir.1990) (finding that the district court erred in assessing municipal liability claims under summary judgment standards rather than under standards applicable to judgment on the pleadings when no discovery had been allowed on the municipal liability issue). Therefore, in addressing defendants' motion for summary judgment, the court did not consider the Rumler and Heinrich affidavits that plaintiffs move to strike. Accordingly, the court denies as moot plaintiffs' motion to strike these affidavits.

Second, plaintiffs argue that defendants served local counsel with their reply brief on May 24, 2002, eleven days after filing it with the court on May 13, 2002, and that they never served the reply brief upon plaintiffs' Ohio counsel. Plaintiffs cite to Local Rule 7.1(c) to support their argument that the reply brief should be stricken because it was outside the ten-day limitation for service of responsive pleadings. The Northern District of Illinois does not have a Local Rule 7.1(c). Local Rule 7.1 sets forth the page limits for briefs filed with the court, but does not have a part (c) or set forth any rules regarding a time limitation for service of responsive pleadings. In fact, the court is unaware of any local rule containing this requirement. Further, Federal Rule of Civil Procedure 5(b)(2) authorizes service of all papers by mail and expressly provides that "[s]ervice by mail is complete upon mailing." FED. R. CIV. P. 5(b)(2). Here, as evidenced by the Notice of Filing and Certificate of Service, the reply brief was served by defendants' counsel on May 13, 2002, when the papers were deposited into U.S. mail, postage prepaid, addressed to the plaintiffs' counsel. Therefore, defendants properly executed service of the reply brief on May 13, 2002. Accordingly, the court denies plaintiffs' motion to strike defendants' reply brief.

B. Defendants' motion for summary judgment

Having decided the evidentiary issues raised in plaintiffs' motion to strike, the court now proceeds to the defendants' motion for summary judgment.

1. Summary judgment standard

A motion for summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn therefrom in a light most favorable to the non-moving party, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Smith v. Severn, 129 F.3d 419, 425 (7th Cir.1997).

The burden is on the moving party to show that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Once the moving party presents a prima facie showing that it is entitled to judgment as a matter of law, the non-moving party may not rest upon the mere allegations or denials in its pleadings but must set forth specific facts showing that a genuine issue for trial exists. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 256-57, 106 S.Ct 2505; Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir.1989).

Defendants argue (1) they are entitled to summary judgment because the decedent's death was not caused by an "accident" within the meaning of the Convention because neither inadequate medical equipment nor negligent crew response constitutes an Article 17 accident, and (2) plaintiffs' complaint should be dismissed under the doctrine of forum non conveniens. Because this court cannot decline jurisdiction under forum non conveniens unless it legitimately has jurisdiction in the first place, the court first will address whether it has jurisdiction under the Convention.

2. Applicability of the Convention

The Convention is an international treaty making airlines liable up to $75,000 for injuries arising out of accidents on board...