Opinion
00 CIV. 5976 (DLC).
March 21, 2001.
Cheol I. Kim, Sullivan Papain Block McGrath Cannavo P.C., New York, NY, For Plaintiffs.
Christopher R. Christensen, Condon Forsyth LLP, New York, NY, For Defendant.
OPINION AND ORDER
In this tort action, plaintiffs Maria Ryba ("Ryba") and Boleslaw Ryba assert that Ryba was injured after she fell in the entranceway of a facility owned by Lot Polish Airlines ("Lot") in Rzeszow, Poland. Defendants move to dismiss under Rule 12(b)(1), Fed.R.Civ.P., on the grounds that this Court does not have subject matter jurisdiction over this action pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1610(c) ("FSIA"). For the following reasons, defendant's motion to dismiss for lack of subject matter jurisdiction is granted.
BACKGROUND
The following facts are undisputed. Plaintiffs are residents of New Jersey. Lot Polish Airlines ("Lot") is a foreign corporation that exists and operates under the laws of Poland. At all times relevant to this action, the Republic of Poland has owned all or a majority of Lot's shares. Lot maintains offices and tickets passengers in the United States, and transports passengers to and from the United States.
On October 9, 1997, plaintiffs were passengers on a Lot airplane that flew from Newark, New Jersey, to Warsaw, Poland. Upon her arrival in Warsaw, Ryba could not locate a piece of her checked luggage and was directed to a Lot facility in Rzeszow, Poland. Ryba tripped and fell on a piece of carpet in the entranceway of the Lot facility in Rzeszow. Ryba asserts that she suffered injuries to her leg as a result of Lot's negligence in maintaining its Rzeszow facility, and Boleslaw Ryba has brought suit for loss of consortium and related damages. Plaintiffs brought this action in the New York County Supreme Court and defendants removed this action to this Court on August 11, 2000.
DISCUSSION
The FSIA "provides the sole basis for obtaining jurisdiction over a foreign state in federal court." Reiss v. Societe Centrale du Groupe des Assurances Nationales, 235 F.3d 738, 746 (2d Cir. 2000) (citation omitted). Lot is a "foreign state" under the FSIA because a majority of its shares are owned by the Republic of Poland. See 28 U.S.C. § 1603(b) (the FSIA's definition of "foreign state" includes an "entity . . . a majority of whose shares or other ownership interest is owned by a foreign state"). Although the FSIA provides that "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States," 28 U.S.C. § 1604, it "allow[s] for the exercise of such jurisdiction in cases that fall within several statutorily defined exceptions," Reiss, 235 F.3d at 747.
Plaintiffs assert that this action falls within the "commercial activity" exception to the FSIA which provides, in relevant part, that a foreign state is not immune from jurisdiction in a case 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 of 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)(2) (emphasis supplied). A "foreign state" is engaged in "commercial activity" under the FSIA "when it acts not in its governmental or public role, but rather as a private player in the marketplace." United States Fidelity and Guaranty Co. v. Braspetro Oil Services, Co., 199 F.3d 94, 98 (2d Cir. 1999) (per curiam). Lot does not dispute that it engages in "commercial activity" as it is defined in the FSIA.
Plaintiffs do not allege that their claims fall under the second clause of the commercial activity exception.
Plaintiffs assert that this action falls under the first clause of the "commercial activity" exception because it is based on a commercial activity carried on in the United States by Lot. In order to establish that a action is "based on a commercial activity carried on in the United States by the foreign state," there must be "a significant nexus between the commercial activity in this country upon which the exception is based and a plaintiff's cause of action." Reiss, 235 F.3d at 747 (citation omitted). Indeed, that commercial activity must involve "`elements of a claim that, if proven, would entitle a plaintiff to relief under his theory of the case.'" Transatlantic Shiffahrtskontor GMBH v. Shanghai Foreign Trade Corp., 204 F.3d 384, 389 (2d Cir. 2000) (quoting Saudi Arabia v. Nelson, 507 U.S. 349, 357 (1993)). In order to plead a prima facie case of negligence, a plaintiff must assert that: (1) the defendant owed the plaintiff a cognizable duty of care; (2) the defendant breached that duty; and (3) the plaintiff suffered damage as a proximate result of that breach. See Stagl v. Delta Airlines, Inc., 52 F.3d 463, 467 (2d Cir. 1995).
Ryba asserts that because she fell while claiming her luggage, and Lot's commercial activities in the United States include transporting luggage, her negligence claim is "based upon" Lot's commercial activity. The fact that Lot transports luggage from the United States is, however, irrelevant to the proof of plaintiffs' negligence and loss of consortium claims, and plaintiffs have pointed to no other commercial activity in which Lot engages that would be relevant to the proof of these claims. See, e.g., Sun v. Taiwan, 201 F.3d 1105, 1109-1110 (9th Cir. 1997) (tour promotion and application management in the United States is irrelevant to proof of negligence that led to drowning in Taiwan); Moses v. Air Afrique, No. 99 Civ. 541 (JG), 2000 WL 306853, at *3 (E.D.N.Y. Mar. 21, 2000) (sale of airline tickets and provision of air travel in the United States is irrelevant to proof of intentional torts committed by Air Afrique employees in Senegal); Seisay v. Compagnie Nationale Air France, No. 95 Civ. 7660 (JFK), 1997 WL 431084, at *6 (S.D.N.Y. July 30, 1997) (Air France's commercial activity in the United States is irrelevant to proof of false imprisonment claim in France). The first clause of the "commercial activity" exception does not, therefore, provide this Court with subject matter jurisdiction over this action.
Plaintiffs assert, in the alternative, that this action falls under the third clause of the commercial activity exception because it is based on an act in Poland that was taken "in connection with" Lot's commercial activity, and that act caused a "direct effect" in the United States. In order for an action to fall under the third clause of the commercial activity exception, there must be "(1) an act outside the United States in connection with a commercial activity of the foreign state that causes a direct effect in the United States and (2) the plaintiff's suit must be based upon that act." Transatlantic Shiffahrtskontor GMBH, 204 F.3d at 388. An action is "in connection with" a commercial activity "when there is a substantive connection or a causal link between the acts and the commercial activity." United States Fidelity and Guaranty Co., 199 F.3d at 98. An effect is "direct" if "it follows as an immediate consequence of the defendants activity" although "the effect need not be substantial or forseeable." Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 931 (2d Cir. 1998) (citation omitted).
Courts have uniformly rejected claims for "personal injuries sustained in a foreign state when the plaintiff asserted that the `direct effect in the United States' was the continued physical suffering and consequential damages that persisted once the plaintiff returned." Martin v. Republic of South Africa, 836 F.2d 91, 95 (2d Cir. 1987) (emphasis in original) (damages resulting from automobile accident in South Africa is not a "direct effect" in the United States). See also Antares Aircraft, L.P. v. Federal Republic of Nigeria, 999 F.2d 33, 36 (2d Cir. 1993) (damages resulting from unlawful detention of aircraft in Nigeria is not a "direct effect" in the United States); Sudano v. Federal Airports Corp., 699 F. Supp. 824, 827 (D.Hawaii 1988) (damages from a slip and fall accident in airport is not a "direct effect" in the United States). Plaintiffs have not asserted that this action has any "direct effect" in the United States beyond Ryba's continued pain and suffering and plaintiffs' consequential damages. This Court does not, therefore, have subject matter jurisdiction under the third clause of the commercial activity exception.
CONCLUSION
The defendant's motion to dismiss for lack of subject matter jurisdiction is granted. The Clerk of Court shall close this case.
SO ORDERED: