Opinion
21-CV-8481 (GHW) (BCM)
07-08-2022
ALIOU BARRY, Plaintiff, v. ROYAL AIR MAROC, Defendant.
REPORT AND RECOMMENDATION TO THE HONORABLE GREGORY H. WOODS
BARBARA MOSES, United States Magistrate Judge.
Plaintiff Aliou Barry, proceeding pro se, commenced this action on August 31, 2021, against defendant Royal Air Maroc (RAM), in the New York City Civil Court, Bronx County, seeking damages for lost luggage. On October 14, 2021, RAM removed the action to this Court. (Dkt. No. 1.) On February 18, 2022, after an unsuccessful Court-ordered mediation (Dkt. No. 12), RAM moved for summary judgment. (Dkt. No. 15.) RAM argues principally that plaintiff's claim is time-barred pursuant to article 35 of the Montreal Convention. Def. Mem. (Dkt. No. 18) at 6-9. In the alternative, RAM asks the Court to limit plaintiff's recovery to 1,288 "Special Drawing Rights" (equivalent to approximately $1800) under article 22(2) of the Montreal Convention. Id. at 9. For the reasons that follow, I recommend, respectfully, that the motion be granted on timeliness grounds and that the case be dismissed.
I. BACKGROUND
A. Facts
The following facts, which are undisputed unless otherwise noted, are taken from the Local Civil Rule 56.1 Statement in Support of Royal Air Maroc's Motion for Summary Judgment (Def. 56.1 St.) (Dkt. No. 19), the Declaration of Zachary Groendyk (Groendyk Decl.) (Dkt. No. 16), and the Affidavit of Nancy Caruso (Caruso Aff.) (Dkt. No. 17).
Plaintiff purchased a round-trip ticket to travel on RAM flights from New York to Cairo, and back, departing April 21, 2019 and returning June 21, 2019. Def. 56.1 St. ¶ 6; Caruso Aff. ¶¶ 8, 10 & Ex. 1; Groendyk Decl. ¶ 3 & Ex. A. The flights he booked had scheduled stopovers in Casablanca. Caruso Aff. ¶¶ 10-11 & Exs. 1, 2; Groendyk Decl. Ex. A. Before boarding his flight in New York, plaintiff checked three pieces of luggage. Def. 56.1 St. ¶ 9; Groendyk Decl. ¶ 2. On the outbound leg of his journey, plaintiff was rerouted onto another carrier, Tunisair, between Casablanca and Cairo. Def. 56.1 St. ¶ 7; Caruso Aff. ¶¶ 10-11 & Ex. 2. Plaintiff arrived in Cairo on the scheduled date, see Caruso Aff. ¶¶ 10-11 & Ex. 2, but asserts that his luggage did not. Def. 56.1 St. ¶ 9; Groendyk Decl. Ex. ¶ 2. Plaintiff returned to New York on his scheduled RAM flight on June 21, 2019, still - he asserts - without his luggage. Def. 56.1 St. ¶ 8; Caruso Aff. ¶¶ 10-11; Groendyk Decl. ¶ 8.
B. Procedural Background
In his state court pleading, plaintiff sought damages of "$9,960.00 with interests [sic] from 04/09/2019" against RAM. Notice of Removal (Not. of Rem.) (Dkt. No. 1) Ex. A. Defendant removed the action to this Court pursuant to 29 U.S.C. §§ 1331 and 1441 on the ground that plaintiffs claim "arises under a treaty of the United States," namely, the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999 (entered into force November 4, 2003), reprinted in S. Treaty Doc. 106-45, 1999 WL 33292834 (1999) (the Montreal Convention). Not. of Rem. ¶ 7. On October 18, 2021, defendant filed its Answer (Dkt. No. 5), denying liability and asserting defenses under, inter alia, articles 22 and 35 of the Montreal Convention. On November 22, 2021, during an initial case management conference, plaintiff confirmed that the damages he seeks are for the three pieces of luggage that were lost on the outbound leg of his journey and never returned to him.
Plaintiff's papers in opposition to RAM's summary judgment motion were originally due on March 18, 2022. (Dkt. No. 14.) After that date came and went, the Court extended his response deadline, sua sponte, to April 28, 2022. (Dkt. No. 21.) However, plaintiff has never filed any papers in opposition to the summary judgment motion.
II. ANALYSIS
A. Summary Judgment Standards
Summary judgment may be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Amaker v. Foley, 274 F.3d 677, 680-81 (2d Cir. 2001). The moving party bears the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine dispute as to any material fact. See Fed.R.Civ.P. 56(c); Celotex Corp., 477 U.S. at 322; Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002). "[T]he district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial." Amaker, 274 F.3d at 681. If not, "summary judgment is inappropriate, for 'no defense to an insufficient showing is required.'" Id. (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 161 (1970)); see also Smith v. Graziano, 2010 WL 1330019, at *5 (N.D.N.Y. Mar. 16, 2010) ("[e]ven in the absence of a response, Defendants are entitled to summary judgment only if the material facts demonstrate their entitlement to judgment as a matter of law"), report and recommendation adopted, 2010 WL 1332503 (N.D.N.Y. Apr. 6, 2010).
Assuming that the moving party meets its initial burden, the burden shifts to the nonmoving party to establish a genuine dispute of material fact. See Celotex Corp., 477 U.S. at 322; Beard v. Banks, 548 U.S. 521, 529 (2006); Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). A fact is "material" if it "might affect the outcome of the suit under the governing law[.]" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At this stage, the non-moving party "cannot rely merely on allegations or denials of the factual assertions of the moving party." US Airways, Inc. v. Sabre Holdings Corp., 105 F.Supp.3d 265, 276 (S.D.N.Y. 2015), aff'd, 938 F.3d 43 (2d Cir. 2019). Rather, he must present admissible evidence in support of his contention that there is a genuine dispute as to the material facts. See Celotex Corp., 477 U.S. at 324; Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d Cir. 2009); Fed.R.Civ.P. 56(c)(4) (affidavits or declarations used to support or oppose a summary judgment motion "must be made on personal knowledge [and] and set out facts that would be admissible in evidence"). The court must construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in the non-moving party's favor. See Anderson, 477 U.S. at 255. However, in order to defeat a summary judgment motion, the evidence adduced by the non-moving party must be sufficient to permit a reasonable jury to return a verdict in that party's favor. Id. at 248; Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001).
In this case, even though defendant's motion is unopposed, I have examined its papers carefully to determine whether it has met its burden of demonstrating that no material issue of fact remains for trial. I conclude that it has. Nor can I find any genuine factual dispute elsewhere in the record that might prevent the entry of judgment in defendant's favor.
B. The Montreal Convention Governs this Action
The Montreal Convention, to which the United States, Morocco and Egypt are parties, "applies to all international carriage of persons, baggage or cargo" where the place of departure and the place of destination are within the territories of two countries that are parties to the treaty. Montreal Convention, art. 1. The Montreal Convention "unifies and replaces the system of liability that derives from the Warsaw Convention." Ehrlich v. Am. Airlines, 360 F.3d 366, 371 n. 4 (2d Cir. 2004); Souza v. Am. Airlines, Inc., 2011 WL 2749086, at *2 (S.D.N.Y. July 7, 2011) (quoting Ehrlich, 360 F.3d at 371 n.4), report and recommendation adopted, 2011 WL 3251575 (S.D.N.Y. July 28, 2011); see also Montreal Convention, art. 55 (stating that its terms "shall prevail over" the Warsaw Convention and its related instruments and amendments).
"As a treaty of the United States, the Montreal Convention 'is the supreme law of the land.'" Mughal v. Pakistan Int'l Airlines Corp., 2018 WL 1135474, at *2 (E.D.N.Y. Feb. 28, 2018) (citing Commercial Union Ins. Co. v. Alitalia Airlines, S.p.A., 347 F.3d 448, 456-57 (2d Cir. 2003)). Thus, like the Warsaw Convention, the Montreal Convention "preempts state law claims falling within its scope." Mughal, 2018 WL 1135474, at *2; see also Mateo v. JetBlue Airways Corp., 847 F.Supp.2d 383, 386-87 (E.D.N.Y. 2012) ("[T]he Montreal Convention is the exclusive means of redressing injuries that fall within its purview."); Souza, 2011 WL 2749086, at *2 ("Given the similarity of the language in the articles, courts in this circuit have determined that the Montreal Convention has the same preemptive effect as the Warsaw Convention"); Ginsberg v. Am. Airlines, 2010 WL 3958843, at *3 (S.D.N.Y. Sept. 27, 2010) ("The Montreal Convention thus provides the exclusive remedies for claims within its scope."); Booker v. BWIA West Indies Airways Ltd., 2007 WL 1351927, at *2 (E.D.N.Y. May 8, 2007) ("Because plaintiff's claims are within the scope of the Montreal Convention her claims are exclusively governed by the Montreal Convention[.]"), aff'd, 307 Fed.Appx. 491 (2d Cir. 2009). Thus, where the Montreal Convention applies, its terms provide the "exclusive mechanism for remedying injuries suffered" by a plaintiff. King v. Am. Airlines, Inc., 284 F.3d 352, 356-57 (2d Cir. 2002).
Here, plaintiff's claims are governed by article 17, which provides that a carrier is "liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier." Montreal Convention, art. 17. Since plaintiff's baggage was under the charge of RAM when it was lost, and since the United States, Egypt and Morocco are all parties to the Montreal Convention, his claims are within the scope of the Montreal Convention, which provides the exclusive remedy against RAM and preempts any state-law cause of action plaintiff may be asserting.
C. Plaintiff's Claim Is Time-Barred
Article 35 of the Montreal Convention provides that "[t]he right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped," and that "[t]he method of calculating that period shall be determined by the law of the court sei[z]ed of the case." Consistent with the language of the treaty, the courts have frequently noted that "the limitation provision in Article 35 creates a condition to suit, rather than a statute of limitations, and is therefore not subject to tolling." Ireland v. AMR Corp., 20 F.Supp.3d 341, 345 (E.D.N.Y. 2014); see also, e.g., Mateo, 847 F.Supp.2d at 388 ("The Convention's time limitation is not subject to tolling."); Am. Home Assur. Co. v. Kuehne & Nagel (AG & Co.) KG, 544 F.Supp.2d 261, 263 (S.D.N.Y. 2008) (The "two-year period of limitation 'constitutes a condition precedent - an absolute bar - to bringing suit.'")
Plaintiff Barry completed his round-trip itinerary on June 21, 2019. Under article 35 of the Montreal Convention, any lost luggage claim resulting from that itinerary was extinguished on June 21, 2021. Plaintiff did not file his state court action until August 31, 2021. By then, his claim was extinguished and his action was barred.
I have considered whether New York State's Executive Order (EO) 202.8 (Mar. 20, 2020), enacted at the start of the COVID-19 pandemic, affords plaintiff any relief. It does not. First, as discussed above, the two-year period set forth in article 35 of the Montreal Convention is not subject to tolling. Second, EO 202.8 applied to "any specific time limit for the commencement, filing, or service of any legal action . . . prescribed by the legal laws of the state" (emphasis added), and temporarily suspended such time limit from March 20 until April 19, 2020. Here, plaintiff's claim arose under the Montreal Convention, rather than state law, and was subject to a limitations period supplied by the convention itself rather than by state law, making EO 202.8 inapplicable. See Rich v. New York, 2022 WL 992885, at *8 (S.D.N.Y. Mar. 31, 2022) (holding that "Executive Order 202.8 tolls the statute of limitations for Plaintiff's §§ 1983 and 1985 claims, which apply New York's three-year limitations period - but not Plaintiff's § 1986 claims, because the applicable statute of limitations for that claim is found in the federal statute itself.")
Third, although EO 202.8 was later extended, through "a series of nine subsequent executive orders," Cruz v. Guaba, 74 Misc.3d 1207(a), 159 N.Y.S.3d 828 (Table) (N.Y. Sup. Ct. Queens Co. 2022), the extensions came to an end on November 3, 2020, id., more than six months before plaintiff's deadline for filing his lost luggage claim under the Montreal Convention. A number of New York courts have held that EO 202.8 "suspended" rather than "tolled" the time periods to which it applied, and thus extended limitations periods that would otherwise have expired between March 3 and November 3, 2020, but did not lengthen periods that expired after November 3, 2020. See id. ("[A]ny period of limitations that expired between March 3, 2020 and November 3, 2020 was extended to November 3, 2020. This toll merely stopped the running of any applicable period of limitations . . . between March 3, 2020 and November 3, 2020," but "did not extend everyone's statute of limitations period for an additional 228 days."); Baker, 74 Misc.3d at 383, 161 N.Y.S.3d at 724 ("Here, the statute of limitations did not run until April 30, 2021, and as such, was not affected in any way by the Governor's Executive Orders.") Thus, even if plaintiff's lost luggage claim was subject to EO 202.8, it would not have relieved him of the obligation to file that claim before June 21, 2021.
As the court explained in Baker v. 40 Wall St. Holdings Corp., 74 Misc.3d 381, 161 N.Y.S.3d 723 (N.Y. Sup. Ct. Kings Co. 2022): "[A] toll stops the running of the applicable period of limitations for a finite time period, and the period of the toll is excluded from the calculation of the relevant limitations period. Unlike a toll, a suspension does not exclude its duration from the calculation of the relevant time period. Rather, it simply delays the expiration of the time period or filing deadline until the end date of the suspension." 74 Misc.3d at 383, 161 N.Y.S.3d at 725. "With a suspension, a party can only benefit from the Executive Orders if his or her statute of limitations or filing deadline fell within the suspension period." Id. at 384, 161 N.Y.S.3d at 725.
Because plaintiff did not file his claim within the period prescribed by the Montreal Convention, I do not reach RAM's alternative argument, which would limit plaintiff's claim but not require its dismissal.
III. CONCLUSION
For the foregoing reasons, I recommend, respectfully, that defendant's motion be GRANTED and that this action be DISMISSED, NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Gregory H. Woods at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Caproni. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).