Weiss v. El al Israel Airlines, Ltd.

• Decision Date: 22 May 2006
• Docket Number: No. 04 Civ. 9803(GEL).,04 Civ. 9803(GEL).
• Citation: 433 F.Supp.2d 361
• Parties: Tobias WEISS and Gertrude O. Weiss, Plaintiffs, v. EL AL ISRAEL AIRLINES, LTD., Defendant.
• Court: U.S. District Court — Southern District of New York

433 F.Supp.2d 361

Tobias WEISS and Gertrude O. Weiss, Plaintiffs, v.EL AL ISRAEL AIRLINES, LTD., Defendant.

No. 04 Civ. 9803(GEL).

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

May 22, 2006.

Tobias Weiss, Stamford, CT, for plaintiffs.

Lawrence Mentz, Kaplan, von Ohlen & Massamillo, LLC, New York, NY, for defendant.

OPINION AND ORDER

LYNCH, District Judge.

Plaintiffs Tobias and Gertrude Weiss bring this action against El Al Israel Airlines ("El Al") to recover losses that they incurred as a result of their being involuntarily denied boarding, or "bumped," from a flight from New York to Jerusalem.They bring this action under regulations promulgated under the Federal Aviation Act, 14 C.F.R. § 250.1 et seq.("Federal Regulations"), and under state tort and contract law.¹El Al has moved to dismiss the complaint, contending that plaintiffs' claims are preempted by the Montreal Convention² and the Airline Deregulation Act("ADA"), and that plaintiffs have no cause of action under the Federal Regulations.Plaintiffs in response have submitted a motion to strike, which for the most part simply opposes El Al's motion to dismiss but also raises certain issues of service and jurisdiction that the Court separately addresses.For the reasons set forth below, El Al's motion to dismiss will be denied in part and granted in part, and plaintiffs' motion to strike will be denied.

BACKGROUND

The facts as alleged in the Complaint are as follows: Plaintiffs purchased tickets at a combined price of $2,434 from El Al for round-trip transportation between New York Kennedy airport and Jerusalem Ben — Gurion airport, departing New York on March 31, 2004, at 6:30 p.m.(Compl. ¶¶ 6-7.)They arrived at Kennedy airport on the scheduled date of departure a little more than one hour before the flight and were cleared by airline security, but were involuntarily denied boarding because the flight had been oversold by the airline and, as a result, their reserved seats given to other passengers.(Id.¶ 8.)Plaintiffs, in a manner familiar to any regular flyer, had been "bumped."³

El Al subsequently placed the bumped passengers, including plaintiffs, on a standby list to enable them to obtain seats on future El Al flights in the coming days in the event that seats opened up.(Id.¶ 11.)El Al also took an extra $100 from plaintiffs in order to upgrade their seats, should they get seats, to business class.(Id.)

As a result of their standby status, plaintiffs were induced to remain at the airport for two days in the hope of obtaining seats on a subsequent flight.(Id.¶ 21.)They spent the time moving about the airport attempting to comply with the airline's procedures for standby passengers.(Id.)During that period, plaintiffs allege that they suffered physical fatigue and exhaustion from all the activity.(Id.¶ 22.)Plaintiffs also allege that they were treated in a "wanton, oppressive, indifferent, and uncaring" manner by the airline's employees, who "shunt[ed] the passengers around from place to place."(Id.¶ 23.)Finally, plaintiffs allege that they suffered "emotional stress, and worry and anxiety, and great inconvenience in being denied the transportation on which they depended."(Id.¶ 24.)

However, plaintiffs' and the airline's efforts were of no avail and, after two days without obtaining seats on any subsequent flight, plaintiffs decided to fly to Jerusalem on a different airline.(Id.¶ 12.)Consequently, plaintiffs were unable to make use of the round-trip tickets they had purchased from El Al.To date, plaintiffs have not received a refund for the cost of these tickets nor have they received any compensation for being "bumped" from their reserved seats on the March 31 flight.(Id.¶¶ 17-18.)

DISCUSSION

I.Subject Matter Jurisdiction

An issue that is addressed solely (and only barely) in connection with plaintiffs' motion to strike, and which the Court has an independent obligation to address at the outset, is subject-matter jurisdiction.This issue can be addressed in short order, as there is clearly jurisdiction over the case, both under the diversity jurisdiction statute, 28 U.S.C. § 1332,⁴ and under sections 1331and1367.There is federal question jurisdiction, under section 1331, over plaintiffs' claim arising under the Federal Regulations.That being the case, the Court has jurisdiction over plaintiffs' remaining state law claims under the supplemental jurisdiction statute, section 1367.⁵

II.El Al's Motion to Dismiss

El Al moves to dismiss pursuant to Fed. R.Civ.P. 12(b)(6), contending that plaintiffs' claims are preempted by the Montreal Convention and the ADA, and that there is no right of action under the Federal Regulations.

On a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6), the Court must accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the plaintiff.Leeds v. Meltz,85 F.3d 51, 53(2d Cir.1996).The Court will not dismiss a complaint for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief."Conley v. Gibson,355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80(1957).Beyond the facts in the complaint, the Court may consider, inter alia, "any written instrument attached to [the complaint] as an exhibit or any statements or documents incorporated in it by reference."Cortec Indus., Inc. v. Sum Holding, L.P.,949 F.2d 42, 47(2d Cir.1991).

A.The Montreal Convention

El Al's first contention is that the Montreal Convention preempts plaintiffs' federal and state law claims.The Montreal Convention, which came into force in the United States in November 2003, but which has not been ratified by Israel, is the successor of the Warsaw Convention.⁶The Warsaw Convention was an international treaty created in the early days of air travel, which sought to create the conditions under which the then extremely fragile airline industry could grow, by limiting airline accident liability.SeeAndreas Lowenfeld and Allan Mendelsohn, The United States and the Warsaw Convention,80 Harv. L.Rev. 497, 498-502(1967).The "cardinal purpose of the Warsaw Convention [was] to `achieve [international] uniformity of rules governing claims arising from international air transportation.'"El Al Israel Airlines v. Tseng,525 U.S. 155, 169, 119 S.Ct. 662, 142 L.Ed.2d 576(1999), quotingEastern Airlines, Inc. v. Floyd,499 U.S. 530, 552, 111 S.Ct. 1489, 113 L.Ed.2d 569(1990).

The Montreal Convention is "an entirely new treaty that unifies and replaces the system of liability that derives from the Warsaw Convention."Ehrlich v. American Airlines, Inc.,360 F.3d 366, 371 n. 4(2d Cir.2004).The primary aim of its drafters was to "`harmonize the hodgepodge of supplementary amendments and intercarrier agreements'" that made up the Warsaw Convention.Id.,quotingCarl E. Fumarola, Note, Stratospheric Recovery: Recent and Forthcoming Changes in International Air Disaster Law and Its Effect on Air Terrorism Recovery, 36 SuffolkU.L.Rev. 821, 835(2003).In addition,

whereas the primary aim of the contracting. parties to the [Warsaw] Convention was to limit the liability of air carriers in order to foster the growth of the ... commercial aviation industry, the contracting parties to the Montreal Convention expressly approved that treaty because, among other reasons, they recognized the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution.

Id.(internal citations and quotation marks omitted).Thus, the Montreal Convention represents a significant shift away from a treaty that primarily favored airlines to one that continues to protect airlines from crippling liability, but shows increased concern for the rights of passengers and shippers.

Despite its newly aligned purpose, many of the provisions of the Montreal Convention closely resemble those of the Warsaw Convention.For instance, the Montreal Convention, like the Warsaw Convention, provides strict carrier liability for the following three categories of damages arising out of the international carriage of passengers or goods by airlines.Article 17 provides for carrier liability for the death or bodily injury of a passenger or the destruction, loss of or damage to her baggage, provided that the harm occurred onboard the aircraft or in the process of embarking or disembarking.Article 18 provides for damage to cargo sustained during carriage by air, subject to certain exclusions.Finally, Article 19 provides for carrier liability occasioned by delay in the carriage of passengers, baggage or cargo unless the carrier can prove that it and its servants and agents "took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures."

A key provision of the Convention is its statement of preemptive effect in Article 29:

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention.

It is well settled that this provision means that for all air transportation to which the Convention applies, if an action for damages, however founded, falls within one the Convention's three damage provisions, the Convention provides the sole cause of action under which a claimant may seek redress for his injuries.SeeTseng,525 U.S. at 176, 119 S.Ct. 662(interpreting Warsaw Convention);Shah v. Pan Am. World Servs., Inc.,148 F.3d 84, 97-98(2d Cir.1998)(same);Paradis v. Ghana Airways Ltd.,348 F.Supp.2d 106, 111(S.D.N.Y.2004)(noting preemptive effect of Montreal Convention is "substantially the same" as that of Warsaw Convention)....