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noting that "rais[ing] entirely new issues on reply . . . deprives the non-moving party of the opportunity to respond"
Summary of this case from Simon v. City of N.Y.Opinion
07 CV 364 (CBA).
September 10, 2008
MEMORANDUM ORDER
Plaintiff Kingsley Nwankwo filed this pro se action against defendants Delta Air Lines, Inc. ("Delta") and Carol Williams seeking damages for lost baggage valued at approximately $12,000. Defendants have moved for summary judgment on the grounds that plaintiff's claims were discharged by the United States Bankruptcy Court. For the following reasons, defendants' motion for summary judgment is denied. Because plaintiff does not allege any facts to support his claims against Carol Williams, however, those claims are dismissed.
I. Background
On September 14, 2005 (the "Petition Date"), Delta and certain of its subsidiaries commenced voluntary Chapter 11 proceedings in the United States Bankruptcy Court for the Southern District of New York. On June 5, 2006, the Bankruptcy Court issued an Order setting a deadline of August 21, 2006 (the "Bar Date") for filing all proofs of claim that arose prior to the Petition Date. The Bankruptcy Court further ordered Delta to give notice of the Bar Date to all persons or entities that had already filed claims by first-class mail at least 35 days in advance, and to publish notice of the Bar Date at least 25 days prior in each of The New York Times (national edition), The Wall Street Journal (national edition) and USA Today (worldwide). Delta was also ordered to post notice on the web site www.deltadocket.com. Delta represents that it published notice of the Bar Date as required by the Bankruptcy Court.
On April 29, 2005 (several months prior to the Petition Date), plaintiff was arrested by United States Customs and Postal Inspection Services officers upon his arrival at J.F.K. Airport on a Delta Airlines flight from Athens, Greece. Upon his arrest, Customs officials retrieved his luggage in order to search it for contraband. The search turned up negative. Postal Inspection agents then took plaintiff into custody and subsequently transferred him from New York to Houston, Texas. According to plaintiff, government officials told him that Postal Inspection Services maintained possession of his luggage, but several letters to the government seeking return of his property went unanswered. Plaintiff claims that among the luggage that was confiscated were two suitcases, the contents of which have value in excess of $12,000.
On or about July 14, 2006, plaintiff filed an action against the United States for the return of his property. See Nwankwo v. United States, No. 06 Civ. 4076 (ARR). On November 3, 2006 (several months after the Bar Date), the government advised the Court that some of plaintiff's property was in the possession of a United States Postal Inspector, including plaintiff's passport, a diamond bracelet watch, a pocket Bible, and several other items, but that the government did not possess any other items of Plaintiff's property. Plaintiff's Opp. Br. Ex. B at 2-3. The government stated that, according to an incident report issued by the Bureau of Customs and Border Protection, plaintiff's luggage was searched and no contraband was found. Id. at 3. After the search, the luggage was returned to Delta for storage. Id. Plaintiff claims that this November 3, 2006 letter was the first time he was advised that Delta, not the government, might have possession of his luggage.
On December 6, 2006, the United States moved for summary judgment, stating that it was willing to return to plaintiff any of his property that it had in its possession, but that it did not have the two suitcases or their contents. The government provided a declaration of defendant Carol Williams, an analyst in the Investigation Unit of Delta's Corporate Security Department. Plaintiff's Opp. Br. Ex. D, Decl. of Carol Williams. Williams investigated plaintiff's complaint and determined that plaintiff had "checked two pieces of luggage on his flight from Athens to New York," but that "Delta has no other information about Plaintiff's luggage." Id. ¶ 4. Williams further explained that "it is standard policy for Delta to hold luggage at JFK Airport for no more than 5 days, after which it is sent to Delta's headquarters in Atlanta, where it is kept no more than 90 days. After 90 days, the luggage is sent to `salvage.'" Id. at 5. Regarding the luggage's current whereabouts, Williams stated: "Assuming Delta was in possession of Plaintiff's luggage following the April 2005 incident, the luggage no longer can be located or recovered." Id. Williams concluded, based upon her investigation, that Delta was not in possession of plaintiff's luggage, nor did it have any information as to its existence or whereabouts. Id. ¶ 6.
On May 8, 2007, the Court granted the government's motion for summary judgment. The Court ordered the government to turn over to plaintiff any of his belongings that it had in its possession, but concluded that the government could not be ordered to return plaintiff's suitcases or their contents because it had returned the suitcases to Delta. The Court further concluded that sovereign immunity barred plaintiff's recovery against the United States for money damages. Nwankwo v. United States, No. 06 Civ. 4076 (ARR), DE 19 (Opinion and Order of Ross, J.).
On January 9, 2007, plaintiff filed the instant action against Delta and Carol Williams, alleging that defendants are jointly liable for sending his luggage to salvage without proper notification either to him or to the government such that he might have retrieved his luggage. Plaintiff seeks money damages in the amount of $12,285.00, plus an unspecified amount for the loss of family portraits that were contained in the luggage.
On December 28, 2007, defendants moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendants argue that plaintiff's claims are barred because they accrued prior to the filing of Delta's Chapter 11 proceedings and plaintiff failed to file a proof of claim in advance of the Bar Date. Plaintiff responds that his claims are not barred because he had no knowledge of a claim against defendants until months after the Bar Date, on November 3, 2006, when the government first informed him that his luggage had been returned to Delta for storage. He argues that his claim could not reasonably have been discovered prior to the Bar Date because he had been led to believe that the government, not Delta, had his possessions. In reply, defendants raise the additional arguments that they are entitled to summary judgment because Delta fully complied with its obligations under the Montreal Convention, which governs airlines' international carriage of baggage, and because plaintiff has alleged no facts to support a claim against Carol Williams.
Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999 (entered into force on Nov. 4, 2003), S. Treaty Doc. No. 106-45 (2000), reprinted in 1999 WL 33292734.
The Court has reviewed the parties submissions and, for both procedural and substantive reasons, denies defendants' motion for summary judgment without prejudice.
II. Discussion
A. Defendants' Motion for Summary Judgment
Several procedural defects in defendants' summary judgment papers render this Court unable to grant them summary judgment. First, defendants failed to comply with Local Civil Rule 56.1, which requires any party moving for summary judgment to annex "a separate, short and concise statement, in numbered paragraphs , of the material facts as to which the moving party contends there is no issue to be tried." E.D.N.Y. Civil R. 56.1. Local Rule 56.1 states that "[f]ailure to submit such a statement may constitute grounds for denial of the motion." Id.
Second, defendants failed to comply with Local Civil Rule 7.1(a), which requires that all motions filed with this Court "be supported by a memorandum of law, setting forth the points and authorities relied upon in support of or in opposition to the motion." E.D.N.Y. Civil R. 7.1(a). Defendants submitted no memorandum of law in support of their motion for summary judgment. The motion is supported only by an affidavit of their attorney, which cites no cases as authority in support of their position.
Finally, defendants' reply memorandum of law raises an independent basis for summary judgment, which was not raised in its initial motion papers, namely that Delta has fully complied with its obligations under the Montreal Convention. It is not appropriate to raise entirely new issues on reply, which deprives the non-moving party of the opportunity to respond. See In re Harris, 464 F.3d 263, 268 n. 3 (2d Cir. 2006).
Should defendants choose to move again for summary judgment, they should address several substantive issues, some of which plaintiff raises in his papers, but which defendants fail to address in theirs. First, defendants should address the effect, if any, of plaintiff's position that he was not aware of the existence of a claim against Delta prior to the Bar Date because of arguably faulty information provided by the United States Government. Second, defendants should provide further authority in support of the argument that their obligations under the Montreal Convention ended when the government seized plaintiff's baggage upon his arrest at the airport. Plaintiff contends that, after the government seized it, the luggage was returned to Delta and was subsequently lost. Accordingly, his claim appears to be for conversion, not for violation of the Montreal Convention. Finally, defendants should address whether this Court has subject matter jurisdiction over plaintiff's claims if they do not arise under the Montreal Convention.
B. Plaintiffs' Claims Against Carol Williams
Even construing his complaint liberally, as this Court must,see, e.g., Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007), plaintiff has not made any allegations that would sustain a claim against Carol Williams. Williams's sole involvement in this matter was to investigate plaintiff's claims in connection with his lawsuit against the United States. The investigation took place approximately one and a half years after plaintiff's luggage was allegedly confiscated. There is no allegation that Williams was involved in disposing of plaintiff's possessions, nor is there any suggestion that in her position at Delta she personally had a duty to inform plaintiff about his luggage's whereabouts. Regardless of the deficiencies of defendants' summary judgment motion, the absence of sufficient factual allegations against Williams is apparent on the face of the complaint. Accordingly, plaintiff's claims against Carol Williams are dismissed.
III. Conclusion
For the foregoing reasons, defendants' motion for summary judgment is denied without prejudice. All claims against Carol Williams are dismissed.
SO ORDERED