Nazarian v. Compagnie Nationale Air France, 96 Civ. 7173 (PKL).
| Citation | 989 F.Supp. 504 |
| Decision Date | 09 January 1998 |
| Docket Number | No. 96 Civ. 7173 (PKL).,96 Civ. 7173 (PKL). |
| Parties | Kamran NAZARIAN and Faranak Nazarian, Plaintiffs, v. COMPAGNIE NATIONALE AIR FRANCE, Homeric Tours, Inc., M.B. Franzetti, The Republic of France, Service Central de la Police de L'Air e des Frontieres and "John Doe" and "Jacques Doe" being police officers of the defendant Service Central de la Police de L'Air et des Frontieres whose names are unknown to plaintiffs, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Andrew J. Spinnell, New York City, for Plaintiffs.
Haight Gardner Holland & Knight, a Law Office of Holland & Knight, LLP, New York City (Randal R. Craft, of counsel), for Defendant Compagnie Nationale Air France.
Defendant Compagnie Nationale Air France ("Air France" or "defendant") moves for dismissal of this action pursuant to Rules 12(b)(1), (2), and (6) of the Federal Rules of Civil Procedure, asserting a lack of subject matter jurisdiction, a lack of personal jurisdiction over the defendant, and plaintiffs' failure to state a claim upon which relief can be granted. Plaintiffs oppose the motion of Air France, but move the Court, in the event that Air France's motion is granted, to stay the proceedings until the plaintiffs have the opportunity to challenge the terms of Air France's filed tariff with the United States Department of Transportation. For the reasons stated below, the defendant's motion is granted in part and denied in part, and the plaintiffs' motion is denied.
The following facts are taken from the allegations in the Complaint,1 which must, for the purposes of this motion, be taken as true. On or before September 10, 1995, plaintiffs, Iranian nationals residing as permanent resident aliens in the United States, purchased two round-trip tickets from Air France for travel between New York City and Athens, Greece, connecting through Paris, France. Plaintiffs purchased the tickets from a travel agent on Long Island, New York, and planned the trip as their honeymoon.
Following their visit to Greece, plaintiffs intended to return to New York on September 22, 1995. Their flight from Greece was delayed, and they missed their connection in Paris. At the Charles De Gaulle Airport in Paris, M.B. Franzetti,2 a manager for Air France, met the plaintiffs and informed them that the next flight to New York was the following afternoon. Franzetti then told the plaintiffs that Air France would pay for one night's accommodation in a luxury hotel in Paris, since the plaintiffs were newlyweds and their flight schedule was disrupted.
After plaintiffs agreed to this arrangement, Franzetti took their passports and return tickets in order to obtain temporary visas for the couple. Franzetti then had the Nazarians taken to an area of the airport where French immigration officials issue temporary visas. He left the couple alone in line even though they do not speak French.
The French officials denied the application for temporary visas because the Nazarians are Iranians, and arrested them. Officers of the Service Central de la Police de L'Air et des Frontieres (the "Police") then transported the plaintiffs in an armored truck to a locked holding room and denied them food, drink, and the use of a telephone. In the holding room, two male Police officers searched the plaintiffs. When Kamran Nazarian protested that a female officer should search his wife, the officers assaulted him in front of his wife by throwing him against a wall. The Police also pushed a chair into Faranak Nazarian, causing injury and distress.
The Police officers then moved the plaintiffs to a different cell, where they went without food, drink, and the use of a bathroom for the entire night. The Police transported the Nazarians to the airport the next morning, released them at the Air France ticket counter, and returned their tickets, passports, and green cards. The Nazarians then returned to New York on an Air France flight that afternoon.
Plaintiffs assert several claims in their Complaint against a number of defendants. Plaintiffs claim that Air France acted negligently by taking their tickets and passports and leaving them at the immigration area particularly because they do not speak French. Plaintiffs argue that this conduct by Air France breached its duty of care in providing safe passage. The plaintiffs also contend that Air France breached an express promise made by Franzetti, its employee, that Air France would secure temporary visas and provide for overnight lodging and meals. Each plaintiff also seeks damages for false imprisonment, false arrest, intentional infliction of emotional distress, and loss of consortium against Air France, the Republic of France, the Police, and John Doe and Jacques Doe, unknown Police officers.
The Foreign Sovereign Immunities Act ("FSIA") provides the exclusive source of subject matter jurisdiction over claims in United States courts against foreign states and their agencies or instrumentalities. See Republic of Argentina v. Weltover, 504 U.S. 607, 610-11, 112 S.Ct. 2160, 2163-64, 119 L.Ed.2d 394 (1992). Title 28, United States Code ("U.S.C."), Section 1330 provides:
The district courts shall have original jurisdiction without regard to amount in controversy 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.
Thus, a foreign state, its agents, and its instrumentalities are presumptively immune from suits in the federal courts unless a plaintiff demonstrates that the claim falls within a statutory exception to immunity. See 28 U.S.C. § 1604; see also Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488-89, 103 S.Ct. 1962, 1968-69, 76 L.Ed.2d 81 (1983); Seisay v. Compagnie Nationale Air France, 1997 WL 431084, *4 (S.D.N.Y. July 30, 1997) (Keenan, J.).
The Republic of France owns the majority of the shares of Air France, making Air France an instrumentality of a foreign state under 28 U.S.C. § 1603(b)(2). See Seisay, 1997 WL 431084 at *4. Air France therefore is entitled to sovereign immunity to the same extent as is France itself. See id. The parties agree that if any exception to sovereign immunity is applicable, it is the commercial activity exception, 28 U.S.C. § 1605(a)(2), which provides:
(a) A foreign state shall not be immune from the jurisdiction of the courts of the United States or of the states in any case —
(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States; ....
The parties disagree, however, as to whether Air France falls into the commercial activity exception to the FSIA.
Plaintiffs argue that the Court has jurisdiction over Air France pursuant to the first clause of § 1605(a)(2), which provides that a foreign state is not immune from the jurisdiction of the federal courts where "the action is based upon a commercial activity carried on in the United States by the foreign state." "Commercial activity," as used in § 1605(a)(2) means "activity carried on by such state and having substantial contact with the United States." 28 U.S.C. § 1603(e). Commercial activity may be "either a regular course of commercial conduct or a particular commercial transaction or act." 28 U.S.C. § 1603(d). Certainly, Air France conducts business in the United States, and more importantly, the Nazarians purchased their Air France tickets in the United States. So, this Court has jurisdiction over those claims that are "based upon" the commercial activity of Air France in the United States.
The Supreme Court explained the meaning of "based upon" in Saudi Arabia v. Nelson, 507 U.S. 349, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993). In that case, Nelson was an American recruited in the United States to work in a Saudi hospital. After Nelson advised hospital workers of certain unsafe conditions, the Saudi government arrested and tortured him. Nelson and his wife then sued Saudi Arabia in a United States district court for the injuries suffered as a result of the arrest and torture, claiming that the court had jurisdiction under the first clause of § 1605(a)(2).
The Supreme Court held that "based upon" is "read most naturally to mean those elements of a claim that, if proven, would entitle a plaintiff to relief under his theory of the case." Nelson, 507 U.S. at 357, 113 S.Ct. at 1477; see also Santos v. Compagnie Nationale Air France, 934 F.2d 890, 893 (7th Cir.1991) ( ) The Supreme Court then determined that none of Nelson's tort claims were "based upon" the alleged commercial activity in the United States, (i.e., the recruitment of Nelson in this country). See id. at 358, 113 S.Ct. at 1477. The Court further stated that although the commercial activity in the United States "led to the conduct that eventually injured the Nelsons," it did not form the basis of the plaintiffs' claims. Id.
In sum, this Court has subject-matter jurisdiction over any claims made by the plaintiffs in which the elements of the claim require proof of Air France's commercial activity in the United States. See Seisay, 1997 WL...
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