Opinion
Civil No. 07-1103 (AET).
August 30, 2007
MEMORANDUM ORDER
This matter comes before the Court on pro se Plaintiff Ronald J. Small's Motion to Remand and Defendants America West Airlines and US Airways, Inc.'s Motion to Dismiss Plaintiff's Complaint. The Court has decided these motions after considering the written submissions of the parties and without oral argument pursuant to Fed.R.Civ.P. 78. For the reasons stated below, Plaintiff's Motion to Remand is initially denied. The Court grants Defendants' Motion to Dismiss, however, regarding those claims in Plaintiff's Complaint over which this Court has original, federal question jurisdiction. Therefore, the Court declines to continue to exercise supplemental jurisdiction over the remaining claims, which arise under state law. Thus, the Court grants Plaintiff's Motion to Remand as to those remaining state claims.
Although Plaintiff named "US Airlines Inc." as a Defendant, it appears the correct name of that Defendant is "US Airways, Inc." (Def.'s Br. 2.)
BACKGROUND
Plaintiff's Complaint is based on two separate incidents. First, on March 24, 2004, Plaintiff flew from Philadelphia, Pennsylvania, to London, England, on a flight operated by Defendant US Airways ("Defendant"). Plaintiff was not reunited with his checked baggage, however, and he claims he filed a lost baggage report at the London Heathrow airport. Plaintiff asserts that disagreements ensued between him and Defendant over whether his baggage was actually lost at all. (Compl. ¶¶ 2-6.) Plaintiff claims that, on November 8, 2006, Defendant acknowledged that the baggage could not be found and promised to pay Plaintiff a certain amount in settlement under "the Montreal Convention." (Compl. ¶ 12.) As of the filing of the Complaint, Plaintiff contends that Defendant had not paid him. (Id.) The second incident occurred on July 8, 2004, when Plaintiff checked into Defendant's "club" or "lounge" in the Charles de Gaulle Airport in Paris, France. Plaintiff asserts that he was asked to leave the club by an attendant, notwithstanding his card-carrying lifetime membership in the US Airways club that he had purchased in 2000. (Compl. ¶¶ 15, 19.)Based on these incidents, Plaintiff filed a Complaint on January 31, 2007, in the Superior Court of New Jersey, Law Division, Special Civil Part, in Mercer County. Plaintiff alleges that Defendant is "(a) in breach of contract under both the UCC and Montreal Convention (b) is in violation of the [New Jersey] Consumer Fraud Act and (c) by its actions has damaged Plaintiff in other manners as specified. . . ." (Compl. at p. 1.) Plaintiff alleges four counts regarding his lost baggage, claiming that Defendant was "grossly negligent in its responsibility to properly investigate lost baggage claims," causing him damages in the lost baggage itself, long-distance phone calls placed to attempt to locate the baggage, lost opportunity to submit homeowners or credit card insurance claims, and incidental expenses for fourteen days spent abroad without his baggage. (Compl. at pp. 2-3.) Plaintiff then alleges a fifth count for "considerable embarrassment" in his removal from the US Airways club. Plaintiff's sixth count alleges that Defendant fraudulently induced Plaintiff to purchase the lifetime membership with assurances that he could use the club at Charles de Gaulle International Airport.
On March 8, 2007, Defendant removed the case to this Court based upon Plaintiff's allegations under the "Montreal Convention," more properly named the Warsaw Convention as Amended at the Hague, 1955, and by Protocol No. 4 of Montreal, 1975 ("the Convention"). On March 16, 2007, Plaintiff filed a Motion to Remand, arguing that the removal was both improper and untimely. Next, Defendant filed a Motion to Dismiss Plaintiff's Complaint for failure to state a claim upon which relief may be granted. The Court will address each Motion in turn.
DISCUSSION
I. Plaintiff's Motion to Remand
Addressing the timeliness issue first, 28 U.S.C. § 1446(b) provides that a defendant has thirty days to file a notice of removal after service of the complaint. If it is unclear from the complaint whether the case is removable, then the defendant has thirty days to remove a case to federal court after it first becomes clear, by way of "amended pleading, motion, order or other paper," that the case is removable. 28 U.S.C. § 1446(b). In this case, Plaintiffs' Complaint was originally filed in the Superior Court of New Jersey on January 31, 2007. Defendant was served with the Complaint on February 6, 2007. Defendant removed the case to this Court on March 8, 2007, the thirtieth day after service of the Complaint. Thus, Defendant timely filed the notice of removal.
Defendant also properly filed the notice of removal. As Plaintiff's Complaint explicitly invokes the Convention in Count Three of his Complaint, this Court has original, federal question jurisdiction over this claim. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.") Pursuant to 28 U.S.C. § 1441(b), an action wherein a district court has original jurisdiction founded on a claim or right arising under the treaties of the United States is "removable without regard to the citizenship or residence of the parties."
Further, although Plaintiff's Complaint joins his Convention claim with other state claims, Defendant properly removed the entire case, under 28 U.S.C. § 1441(c), and this Court has discretion to determine all the issues herein. As provided by 28 U.S.C. § 1367(a), the Court exercises supplemental jurisdiction over Plaintiff's other claims, at this point, as they are "so related to claims in the action within [the Court's] original jurisdiction that they form part of the same case or controversy. . . ." 28 U.S.C. § 1367(a). Defendant's removal was timely and proper, and therefore, Plaintiff's Motion to Remand is initially denied.
II. Defendant's Motion to Dismiss
Defendant argues that Plaintiff's Complaint must be dismissed for failure to state a claim upon which relief may be granted. Among other alternative arguments, Defendant contends that Counts One through Five of Plaintiff's Complaint must be dismissed because they are preempted and/or time-barred by the Convention. Defendant further argues that Counts Four and Six of Plaintiff's Complaint must be dismissed for failure to plead fraud with particularity. The Court agrees with Defendant that Counts One through Four of Plaintiff's Complaint are preempted and/or time-barred by the Convention. Therefore, in light of the dismissal of Plaintiff's federal claims, the Court declines to exercise supplemental jurisdiction over the remaining state law claims contained in Counts Five and Six.
A. Motion to Dismiss Standard
Under Fed.R.Civ.P. 12(b)(6), the Court may grant a motion to dismiss for failure to state a claim upon which relief can be granted if, "accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to the plaintiff, plaintiff is not entitled to relief." Oatway v. Am. Int'l Group, Inc., 325 F.3d 184, 187 (3d Cir. 2003). Further, "[t]he issue is not whether a plaintiff will ultimately prevail but whether he or she is entitled to offer evidence to support the claims." Id. In setting forth a valid claim, a plaintiff is required only to plead a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). "[A] complaint should not be dismissed 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 which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
B. Counts One Through Four 1. Preemption
Plaintiff specifically invokes the Convention in his Third Count for Defendant's liability for his lost baggage. (Compl. ¶ 12.) Thus, the parties agree that the Convention applies to at least this Count. Plaintiff's First, Second, and Fourth Counts attempt to articulate state common law and statutory causes of action. Plaintiff's First Count alleges that: Defendant was "grossly negligent in its responsibility to properly investigate lost baggage claims"; Defendant's negligence "exacerbated [Plaintiff's] lost baggage problems"; and Plaintiff incurred "numerous charges for long distance calls" in attempting to locate his baggage. (Compl. ¶¶ 6-7.) Plaintiff's Second Count asserts "numerous expenses connected with delayed bagged for which he was not able to submit a proper claim to his [homeowners or credit card] insurance companies. . . ." (Compl. ¶ 11.) Plaintiff's Fourth Count asserts "violation of the New Jersey Consumer Fraud Statute" in Defendant's alleged failure to investigate his lost baggage claim. (Compl. ¶ 13.)
By its terms, the Convention applies to "all international transportation of persons, baggage, or goods performed by aircraft for hire." Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 3014, T.S. No. 876 (1934), note following 49 U.S.C. § 40105 ("Warsaw Convention"). "[W]here the contract of the parties provides for international carriage between designated termini, the provisions of the Convention govern the carriage." See Jahanger v. Purolator Sky Courier, 615 F. Supp. 29, 31-32 (E.D. Pa. 1985). Further, Article 29 of the Convention provides that:
[i]n 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 without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights.
Warsaw Convention, art. 29. When the carriage is international, as defined by the Convention, "the provisions of the Warsaw Convention exclusively govern the rights of the parties to an action for damages and preempt all other causes of action."Waters v. Port Auth. of N.Y. and N.J., 158 F. Supp. 2d 415, 424 (D.N.J. 2001) (citing El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999)).
Here, Plaintiff traveled between the United States and England, both signatories to the Convention. Plaintiff's baggage was allegedly lost by Defendant during that international carriage. Therefore, as Plaintiff's Counts One, Two, and Four all allege damages flowing from the loss of his baggage by Defendant, the Convention applies and his claims are preempted. Plaintiff argues that the Convention does not apply because "the bag was not lost during international travel but rather was lost by an improperly assigned land delivery contractor in London." (Pl.'s Opp'n 1.) The Convention specifically provides, however, that a carrier is liable for damage resulting from the loss of checked baggage "during any period within which the checked baggage was in the charge of the carrier." Warsaw Convention, art. 17, para. 2. In the next article, regarding lost cargo, the Convention provides that:
The period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport. If, however, such carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air.
Warsaw Convention, art. 18, para. 4 (emphasis added). Thus, even though the loss may have occurred while in the hands of Defendant's delivery agent in London, as Plaintiff alleges, the baggage was still "in the charge" of Defendant as contemplated by the Convention. See Wells v. Am. Airlines, Inc., No. 93-55032, 1993 U.S. App. LEXIS 16990, at *6 (9th Cir. June 21, 1993) (holding that the Convention applied to alleged loss of luggage during land delivery by the air carrier's agent); Fuller v. Amerijet Int'l, Inc., 273 F. Supp. 2d 902, 903 (S.D. Tex. 2003) (stating that the air carrier was in charge of allegedly lost goods, and the Convention applied, during the time that the goods were moved on land by the surface carrier as the air carrier's sub-bailee). The Convention applies here and preempts Plaintiff's state law claims for damages from the loss of his baggage, contained in Counts One, Two, and Four of the Complaint. As such, the Court will grant Defendant's Motion to Dismiss as to these Counts.
2. Statute of Limitations
When the Convention applies, Article 35 requires that any claim be brought within a two-year period computed from either the date of arrival, the date of intended arrival, or the date that carriage ceased. Warsaw Convention, art. 35. Here, Plaintiff arrived in London on March 24, 2004. (Compl. at p. 2.) Thus, his baggage was also intended to arrive on that date. Plaintiff did not file his Complaint, however, until January 31, 2007, more than two years later. Therefore, Counts One through Four of Plaintiff's Complaint are time-barred by the Convention. As such, the Court will grant Defendant's Motion to Dismiss as to these Counts.
C. Counts Five and Six
Defendant appears to argue that the Convention also governs Plaintiff's claims regarding his treatment in the airline's lounge in the Paris airport. (Def.'s Br. 10-11.) The Court, however, is not persuaded that the Convention applies to these claims, as Plaintiff's claims are not for "bodily injury" resulting from an "accident" that "took place on board the aircraft or in the course of any of the operations of embarking or disembarking." Warsaw Convention, art. 17, para. 1. Rather, Plaintiff's alleged emotional and financial injuries occurred due to his removal from the airline's lounge, before he embarked for his destination. (Compl. ¶¶ 18-19.) See, e.g., Beaudet v. British Airways, PLC, 853 F. Supp. 1062, 1067 (N.D. Ill. 1994) (holding that the Convention did not apply to a passenger injured while waiting in an airline's lounge after check-in but before embarkation). Plaintiff's last two claims are more properly characterized as state law claims for infliction of emotional distress and common law fraud. (Compl. ¶¶ 15-26.) Because the Court has dismissed all of Plaintiff's other claims, no federal question remains, and, under 28 U.S.C. § 1367(c)(3), the Court declines to exercise supplemental jurisdiction over these last-remaining state law claims. Therefore, the Court will remand these remaining claims to state court.
CONCLUSION
For the foregoing reasons, and for good cause shown,
It is on this 30th day of August, 2007,
ORDERED that Defendants America West Airlines and US Airways, Inc.'s Motion to Dismiss [5] is GRANTED IN PART as to Counts One through Four of Plaintiff's Complaint; and it is further
ORDERED that Plaintiff Ronald J. Small's Motion to Remand [4] is GRANTED IN PART as to Counts Five and Six of his Complaint; and it is further
ORDERED that this case is hereby REMANDED to the Superior Court of New Jersey, Mercer County, for all further proceedings.