Reers v. Deutsche Bahn Ag

• Decision Date: 03 June 2004
• Docket Number: No. 03 Civ. 5360(MGC).,03 Civ. 5360(MGC).
• Citation: 320 F.Supp.2d 140
• Parties: Carolyn REERS, in her capacity as Personal Representative of the Estates of Susanne Amore, deceased, and Salvatore Michael Amore, deceased, Kathryn Meyers-Tonucci, Individually and in her capacity as Personal Representative of the Estate of Jeanne Meyers Amore, deceased, and George Guertin, in his capacity as Personal Representative of the Estates of Emily Jeanne Amore, deceased, and Michael B. Amore, deceased, Plaintiffs, v. DEUTSCHE BAHN AG, a Republic of Germany Corporation, Deutsche Bahn Reise & Touristik AG, a Republic of Germany Corporation, Deutsche Bahn Autozug AG, a Republic of Germany Corporation, Deutsche Bahn Nachtzug AG, a Republic of Germany Corporation, Mr. Volker, an Individual, Accor SA, a Republic of France Corporation, Compagnie Internationale Des Wagons-Lits, a Republic of France Corporation, and ISD-DSG GmbH, a Republic of Germany Corporation, Defendants.
• Court: U.S. District Court — Southern District of New York

320 F.Supp.2d 140

Carolyn REERS, in her capacity as Personal Representative of the Estates of Susanne Amore, deceased, and Salvatore Michael Amore, deceased, Kathryn Meyers-Tonucci, Individually and in her capacity as Personal Representative of the Estate of Jeanne Meyers Amore, deceased, and George Guertin, in his capacity as Personal Representative of the Estates of Emily Jeanne Amore, deceased, and Michael B. Amore, deceased, Plaintiffs, v. DEUTSCHE BAHN AG, a Republic of Germany Corporation, Deutsche Bahn Reise & Touristik AG, a Republic of Germany Corporation, Deutsche Bahn Autozug AG, a Republic of Germany Corporation, Deutsche Bahn Nachtzug AG, a Republic of Germany Corporation, Mr. Volker, an Individual, Accor SA, a Republic of France Corporation, Compagnie Internationale Des Wagons-Lits, a Republic of France Corporation, and ISD-DSG GmbH, a Republic of Germany Corporation, Defendants.

No. 03 Civ. 5360(MGC).

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

June 3, 2004.

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Kreindler & Kreindler LLP, New York, NY, By: James Kreindler, Andrew J. Maloney, III, Vincent I. Parrett, Kristina Lingstaedt, for Plaintiffs.

Patton Boggs LLP, Washington, DC, By: Read McCaffrey, Christopher W. Hellmich, for Plaintiffs.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, NY, By: Thomas A. Leghorn, Brett Scher, for Defendants Accor S.A. and Compagnie, Internationale des Wagons-Lits.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, NY, By: Thomas R. Cherry, Richard Lerner, for Defendants Deutsche Bahn AG, Deutsche Bahn, AutoZug AG, Deutsche Bahn Reise & Touristik AG ("R & T"), and Janz Volker.

OPINION

CEDARBAUM, District Judge.

Defendants Deutsche Bahn AG ("Deutsche Bahn"), Deutsche Bahn AutoZug AG ("AutoZug"), Deutsche Bahn Reise & Touristik AG ("R & T"), Janz Volker, Accor S.A. ("Accor"), and Compagnie Internationale des Wagons-Lits ("CIWLT"), move to dismiss the complaint on various grounds, including sovereign immunity, lack of personal jurisdiction, and forum non conveniens. For the following reasons, the motions are granted.

BACKGROUND

This case arises from the death of five members of the Amore family in a train accident in France. According to the allegations of the complaint, which are accepted as true for the purposes of this motion, the Amores embarked in Paris on an overnight train to Munich on November 6, 2002. The train was operated by the French national railway, Societe Nationale Chemins de Fer Francais ("SNCF"), but the railcar to which the Amores were assigned, Railcar 120, was owned and operated by AutoZug, a subsidiary of defendant Deutsche Bahn, the nationally owned rail operator of Germany.

Shortly before two in the morning, the kitchenette of Railcar 120 caught fire. According to plaintiffs, defendant Volker, an employee of defendant R & T and the attendant assigned to Railcar 120 that night, started the fire and, failing to extinguish it, abandoned his post without warning the sleeping passengers in Railcar 120. The complaint further alleges that employees of Accor and CIWLT, who were working in cars adjacent to Railcar 120, failed to timely warn and evacuate the Amores after defendant Volker fled.

The fire quickly raged out of control, blocking the railcar's interior exits and preventing twelve passengers, including the Amores, from escaping. Although the fire was soon detected and the train stopped, rescue workers were unable to enter Railcar 120 because Volker had locked the exterior doors of the railcar from the inside. The passengers trapped inside their individual compartments were unable to break the windows. By the time firefighters arrived and gained access to Railcar 120, the twelve passengers inside were dead.

Plaintiffs, one of whom is suing individually and all of whom are suing as representatives of the estates of the Amore family, filed this wrongful death and survival action against Volker and a number of corporate defendants connected either directly or through their subsidiaries to the operation of the train on which the Amores were traveling in France. Plaintiffs assert claims of negligence, product liability, and breach of implied warranty. Plaintiffs also seek punitive damages.

On December 11, 2003, plaintiffs consented to the dismissal of two corporate defendants, Accor North America and Stinnes Corporation. Plaintiffs have agreed to dismiss Deutsche Bahn Nachzug, a defendant named in the caption and discussed in the complaint, but whom plaintiffs concede does not exist. Plaintiffs have also agreed to dismiss ISD-DSG GmbH, which did not exist at the time of the accident and is in liquidation. The remaining defendants now move to dismiss the complaint.

DISCUSSION

The Deutsche Bahn defendants move to dismiss based on sovereign immunity, lack of personal jurisdiction, forum non conveniens, and the principle of abstention. The Accor defendants move to dismiss the complaint for lack of personal jurisdiction, forum non conveniens, and failure to state a claim.

I. Sovereign Immunity

Deutsche Bahn argues that this court has no subject matter jurisdiction over the claims against it, because it is an agency or instrumentality of a foreign sovereign and therefore immune from suit pursuant to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1603-10. As previously noted, Deutsche Bahn is the national rail operator of Germany, wholly owned by the German government.

The FSIA provides foreign states with immunity from suits in American courts, subject to certain exceptions. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 489, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). Section 1603 states that immunity extends not only to political subdivisions, but also to agencies and instrumentalities of a foreign state, defined as:

[A]ny entity ... (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States ... nor created under the laws of any third country.

28 U.S.C. § 1603(b). Once a defendant makes a prima facie showing that it is an agency or instrumentality of a foreign state, the plaintiff must demonstrate that a statutory exception to immunity applies. See Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir.1993).

Plaintiffs concede that Deutsche Bahn is an instrumentality of the Republic of Germany. They argue, however, that two of the FSIA's exceptions remove the cloak of immunity from Deutsche Bahn in this case.

The FSIA provides, in relevant part:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case —

(1) in which the foreign state has waived its immunity either explicitly or by implication ...; [or]

(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....

28 U.S.C. § 1605(a).

Plaintiffs argue that Deutsche Bahn waived its immunity pursuant to § 1605(a)(1) when Germany signed the Convention Concerning International Carriage by Rail ("COTIF"), a treaty that regulates litigation arising from railway transportation in signatory countries. Plaintiffs claim, and defendants concede, that each signatory of COTIF, including Germany, has waived its sovereign immunity with respect to damage claims arising from its railway transportation activities in other signatory countries. Each signatory nation has also agreed that personal injury actions arising from railway accidents can be filed only in the country in which the injury occurred. See Convention Concerning International Carriage by Rail (May 9, 1980), app. A, art. 52, § 1. Plaintiffs recognize that the United States is not a signatory of this treaty, but argue that this explicit waiver of immunity from suit in signatory countries is an implied waiver of immunity from suit in the United States within the meaning of the FSIA.

Plaintiffs' reading of § 1605(a)(1) is too broad. The Second Circuit has stated that the FSIA's implied waiver provision should be construed narrowly, see Transatlantic Shiffahrtskontor GmbH v. Shanghai Foreign Trade Corp., 204 F.3d 384, 391 (2d Cir.2000), and that such waivers should not be found absent a showing of the sovereign defendant's intention to waive immunity, see, e.g., Cargill, 991 F.2d at 1017. Here, Germany's ratification of COTIF constitutes a very narrow waiver of sovereign immunity: signatory nations have not consented to suit in any signatory nation, but only in the courts of the country in which the injury giving rise to the suit occurred. Plaintiffs provide no justification for finding that through such a limited waiver, Germany and its instrumentalities have impliedly waived sovereign immunity for lawsuits arising in nonsignatory jurisdictions and in countries other than the country in which the injury giving rise to the suits occurred.

Plaintiffs also contend that this suit falls under § 1605(a)(2), the commercial activities exception to sovereign immunity. Because it is undisputed that the Amores purchased their train tickets in Europe, and that all of the wrongdoing alleged in the complaint occurred in Europe, the only subcategory of the commercial activities exception potentially applicable here is the third, which removes sovereign immunity when an action is based upon "an act outside the territory of the United States in connection with a commercial...