Laila Benamar et al v. Societe Air France

Filing 20

MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: The Court GRANTS IN PART and DENIES IN PART Defendant Societe Air France's Motion to Dismiss 7 . Specifically, the Court grants the motion insofar as it seeks to dismiss the state law claims a lleged against Socit Air France in Counts I and III of the complaint. The motion is otherwise denied. If plaintiff wishes to file a First Amended Complaint adding negligence allegations to her Montreal Convention claim, she is directed to do so no later than 6/11/2015. Court Reporter: Not Present. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:15-CV-02444-CAS(JPRx)

Title

LAILA BENAMAR v. AIR FRANCE-KLM, ET AL.

Present: The Honorable

Date

May 7, 2015

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(IN CHAMBERS): DEFENDANT SOCIÉTÉ AIR FRANCE’S
MOTION TO DISMISS (Dkt. No. 7, filed April 9, 2015)

The Court finds this motion appropriate for decision without oral argument. See
Fed. R. Civ. P. 78; C.D. Cal. Local Rule 7-15. Accordingly, the hearing date of May 11,
2015, is vacated, and the matter is hereby taken under submission.
I.

INTRODUCTION AND BACKGROUND

On or about December 3, 2014, plaintiff Laila Benamar filed this action against
defendants Air France-KLM, Société Air France (“SAF”), Servair, Inc. (“Servair”), and
Does 1 through 50. SAF removed the action to this Court on April 2, 2015, on the bases
of federal question and diversity jurisdiction. Dkt. No. 1. Plaintiff alleges that on
December 4, 2012, she suffered food poisoning on an Air France flight from Paris to Los
Angeles. Compl. ¶ 2. This food poisoning led to a sustained and debilitating illness that
rendered plaintiff unable to work or care for her family for many months. Id. ¶ 3.
Physicians later determined that plaintiff had been infected with the bacteria known as “H
Pylori,” which can be spread through food or water contaminated with human waste. Id.
¶¶ 4–5. Plaintiff alleges claims against all defendants for (1) common law strict liability,
(2) strict liability under the Montreal Convention,1 and (3) negligence. She also asserts
claims for breach of implied warranty and violations of California’s Unfair Competition

1

The Montreal Convention is an international treaty to which the United States is a
signatory. See Convention for the Unification of Certain Rules for International Carriage
by Air, May 28, 1999, S. Treaty Doc. No. 106-45, 1999 WL 33292734 [hereinafter
“Montreal Convention”].
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-CV-02444-CAS(JPRx)

Date

Title

‘O’

May 7, 2015

LAILA BENAMAR v. AIR FRANCE-KLM, ET AL.

Law against Servair (the caterer that allegedly prepared the meal which caused plaintiff’s
illness) and Does 1 through 50.
On April 9, 2015, SAF filed a motion to dismiss most of plaintiffs’ claims pursuant
to Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 7. Plaintiff filed an opposition on
April 20, 2015, and SAF replied on April 27, 2015. Dkt. Nos. 11, 13. After considering
the parties’ arguments, the Court finds and concludes as follows.
II.

LEGAL STANDARD

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims asserted in a complaint. Under this Rule, a district court
properly dismisses a claim if “there is a ‘lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.’ ” Conservation Force v.
Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balisteri v. Pacifica Polic Dep’t,
901 F.2d 696, 699 (9th Cir. 1988)). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[F]actual allegations must
be enough to raise a right to relief above the speculative level.” Id.
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the complaint, as well as all reasonable inferences to be drawn
from them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be
read in the light most favorable to the nonmoving party. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, “[i]n keeping with these
principles a court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth. While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (“[F]or a
complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and
reasonable inferences from that content, must be plausibly suggestive of a claim entitling
the plaintiff to relief.”). Ultimately, “[d]etermining whether a complaint states a plausible
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-CV-02444-CAS(JPRx)

Date

Title

‘O’

May 7, 2015

LAILA BENAMAR v. AIR FRANCE-KLM, ET AL.

claim for relief will . . . be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Unless a court converts a Rule 12(b)(6) motion into a motion for summary
judgment, a court cannot consider material outside of the complaint (e.g., facts presented
in briefs, affidavits, or discovery materials). In re American Cont’l Corp./Lincoln Sav. &
Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court
may, however, consider exhibits submitted with or alleged in the complaint and matters
that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon
Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999).
As a general rule, leave to amend a complaint which has been dismissed should be
freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the
court determines that the allegation of other facts consistent with the challenged pleading
could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture
Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
III.

ANALYSIS

The Montreal Convention “governs ‘all international carriage of persons, baggage
or cargo performed by aircraft for reward,’ ” and “provides the exclusive remedy for
international passengers seeking damages against aircraft carriers.” Narayanan v. British
Airways, 747 F.3d 1125, 1127 (9th Cir. 2014) (quoting Montreal Convention art. 1(1)).
The Convention “establishes a unified system of rules regarding passenger claims for
personal injury arising out of an accident, wrongful death, loss or damage to baggage or
cargo, and damages resulting from a transportation delay.” Seshadri v. British Airways
PLC, No. 3:14-cv-00833-BAS (WVG), 2014 WL 5606542, at *5 (S.D. Cal. Nov. 4,
2014). Article 17(1) of the Convention provides that a carrier is “liable for damage
sustained in case of death or bodily injury of a passenger upon condition only that the
accident which caused the death or injury took place on board the aircraft or in the course
of any of the operations of embarking or disembarking.” For purposes of Article 17,
“accident” means “an unexpected or unusual event or happening that is external to the
passenger.” Phifer v. Icelandair, 652 F.3d 1222, 1223 (9th Cir. 2011).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-CV-02444-CAS(JPRx)

Date

Title

‘O’

May 7, 2015

LAILA BENAMAR v. AIR FRANCE-KLM, ET AL.

The Montreal Convention applies here because the complaint alleges that plaintiff
was injured on an Air France flight from Paris to Los Angeles, and that her case of food
poisoning “was an accident within the meaning of the Montreal Convention.” Compl. ¶¶
2, 23. Arguing that the Convention provides plaintiff’s sole and exclusive remedy, SAF
moves for an order dismissing plaintiff’s non-Montreal Convention claims and limiting
her potential damages. The Court addresses each argument in turn.
A.

The Montreal Convention Preempts Plaintiff’s State Law Claims
Against SAF.

As noted, the Montreal Convention “provides the exclusive remedy for
international passengers seeking damages against airline carriers.” Narayanan, 747 F.3d
at 1127. Article 29 of the Convention provides: “In the carriage of passengers, baggage
and cargo, any action for damages, however founded, whether upon this Convention 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.” Considering similar language in the predecessor
Warsaw Convention, the Supreme Court has held that “recovery for a personal injury
suffered on board an aircraft . . . if not allowed under the Convention, is not available at
all.” El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 161 (1999) (internal
quotation marks and brackets omitted). The Ninth Circuit has held this language to
preempt state law causes of action within the Convention’s scope. See Motorola, Inc. v.
Fed. Exp. Corp., 308 F.3d 995, 999 (9th Cir. 2002) (“The [Warsaw] Convention preempts
state and federal claims falling within its scope.”); Carey v. United Airlines, 255 F.3d
1044, 10 (9th Cir. 2001) (holding a plaintiff could not maintain state law claims against
an airline where the Warsaw Convention governed).2 Courts have interpreted the
Montreal Convention to have the same preemptive effect. See Smith v. Am. Airlines,
Inc., No. C 09-02903 WHA, 2009 WL 3072449, at *2 (N.D. Cal. Sept. 22, 2009)
(collecting cases). Thus, the Montreal Convention “completely preempts all state tort law
claims that fall within the Convention’s ‘substantive scope,’ ” including “all personal

2

“Although designed to replace the Warsaw Convention, the Montreal Convention
incorporates many of its substantive provisions. Accordingly, in interpreting the
Montreal Convention, courts have routinely relied upon Warsaw Convention precedent
where the equivalent provision in the Montreal Convention is substantively the same.”
Narayanan, 747 F.3d at 1127 n.2.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-CV-02444-CAS(JPRx)

Date

Title

‘O’

May 7, 2015

LAILA BENAMAR v. AIR FRANCE-KLM, ET AL.

injury claims suffered onboard an aircraft” in international travel. Id. at *3 (emphasis in
original).
Based on this exclusivity, SAF argues that the Court must dismiss plaintiff’s state
law claims for strict liability (Count I), negligence (Count III), breach of implied
warranty (Count IV), and unfair competition (Count V). The Court agrees that plaintiff
may not maintain state law strict liability and negligence claims for personal injuries she
sustained as a passenger on an international flight, as several courts within this circuit
have recently held. See Schoenebeck v. Koninklijke Luchtvaart Maatschappij N.V., No.
CV 13-04992 SI, 2014 WL 1867001, at *1, 3 (N.D. Cal. May 8, 2014) (finding state law
claims including strict liability and negligence preempted where injury occurred onboard
international flight); Fadhliah v. Societe Air France, 987 F. Supp. 2d 1057, 1059–64
(C.D. Cal. 2013) (concluding state law claims were completely preempted by the
Montreal Convention); Smith, 2009 WL 3072449, at *4 (dismissing state law negligence
claims for personal injury on international flight); Kruger v. United Airlines, Inc., 481 F.
Supp. 2d 1005, 1009 (N.D. Cal. 2007) (holding “state law tort claims, including those
sounding in negligence,” to be “preempted by the Montreal Convention”).
Plaintiff makes no attempt to address or distinguish cases applying this preemption
rule cited in SAF’s motion, and cites no case in which similar claims have been held not
to be preempted, let alone any such case in the Ninth Circuit. Plaintiff does, however,
argue that her state law negligence claim should survive the motion to dismiss because of
Article 21 of the Convention, which caps an air carrier’s damages if it proves that the
damages were not caused by the negligence or wrongful acts or omissions of the carrier,
its servants or agents. But this language applies to “damages arising under paragraph 1 of
Article 17" of the Convention, and merely limits damages; it provides no support for
allowing a state law negligence action within the Montreal Convention’s substantive
scope. Plaintiff also contends that the language of Article 29 permits state law negligence
claims. But as shown above, the Ninth Circuit and its district courts have rejected such
an interpretation. Therefore, the Court GRANTS SAF’s motion to dismiss plaintiff’s
state law claims for negligence and strict liability.
As to Counts IV and V, however, the complaint does not allege those claims
against SAF. See Compl. at 6, 7 (alleging these claims only against “Defendants Servair
and Does 1 through 50"). Servair has not filed a motion to dismiss or joined in SAF’s
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-CV-02444-CAS(JPRx)

Date

Title

‘O’

May 7, 2015

LAILA BENAMAR v. AIR FRANCE-KLM, ET AL.

motion. Therefore, to the extent SAF moves to dismiss these claims, the motion is
DENIED as moot.3
B.

Plaintiff Is Granted Leave to Amend Her Complaint to Allege that
Defendants Were Negligent Under the Montreal Convention.

Plaintiff requests that, if the Court dismisses her state law negligence claim, the
Court grant her leave to amend her Montreal Convention claim to include allegations that
SAF was negligent. Opp’n at 4. SAF opposes this request, reasoning that because the
relevant flight occurred on December 4, 2012, an amended complaint alleging negligence
under the Convention would be time-barred under its two-year limitations period. SAF’s
argument is unpersuasive.
Article 35(1) of the Montreal Convention states: “The 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.” Thus, a “claim for damages
under the Convention must be filed within two years of the date upon which the aircraft
arrived, or ought to have arrived, at its destination.” Narayanan, 747 F.3d at 1128. This
limitations period “operates as a condition precedent to suit and, as such, is not subject to
equitable tolling.” Id. at 1132. Citing this bar on tolling, SAF argues that any amended
complaint would be untimely.
However, Federal Rule of Procedure 15(c) provides that an amended pleading
“relates back to the date of the original pleading” when “the amendment asserts a claim
or defense that arose out of the conduct, transaction, or occurrence set out—or attempted

3

See Ellis-Sallie v. City of Chicago, No. 12-cv-6451, 2013 WL 500840, at *3 (N.D.
Ill. Feb. 7, 2013) (“Count 4 of the Amended Complaint was not alleged against Sallustio;
therefore, Defendants’ apparent attempt to dismiss Count 4 as it is alleged against
Sallustio is denied as moot.”); Velasco v. Sec. Nat’l Mortg. Co., 823 F. Supp. 2d 1061,
1069 n.5 (D. Haw. 2011) (“It is self-evident that this Court need not dismiss Count I as
against Security since Count I is not alleged against Security.”). The Court does not
address the parties’ arguments directed at claims brought only against Servair and the
Doe defendants. See Opp’n at 5–6; Reply at 5–6.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-CV-02444-CAS(JPRx)

Date

Title

‘O’

May 7, 2015

LAILA BENAMAR v. AIR FRANCE-KLM, ET AL.

to be set out—in the original pleading.” And “[m]ultiple federal courts have held that the
relation back doctrine applies to cases brought under the Warsaw and, by extension,
Montreal Convention.” QBE Ins. (Int’l) Ltd. v. Eva Airways Corp., 943 F. Supp. 2d
1022, 1027 n.2 (N.D. Cal. 2013) (collecting cases). For example, in Pennington v.
British Airways, 275 F. Supp. 2d 601 (E.D. Pa. 2003), the court expressly rejected an
argument that plaintiffs who filed suit within the Warsaw Convention’s similar
limitations period could not be granted leave to amend their complaint to conform with
that Convention more than two years after the relevant flight. Id. at 606–07. Citing, inter
alia, Pennington, the Eleventh Circuit recently “agree[d] with the consensus of courts that
the Montreal Convention permits the application of Rule 15(c) relation back, at least
when the amending plaintiff identifies the same defendants named in the original
complaint.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1177 (11th Cir. 2014). SAF
cites no authority for a contrary rule,4 which would be especially inequitable where, as
here, the plaintiff timely pleaded both a Montreal Convention claim and allegations of
negligence, and simply wishes to combine the two in an amended complaint.
This Court agrees with this consensus that the Montreal Convention’s limitations
period poses no bar to the filing of an amended complaint adding allegations against the
same defendants, where the original complaint was filed within the Convention’s twoyear period and Rule 15(c)’s relation back standard is satisfied. Here, plaintiff’s request
to add an already-pleaded theory of liability (negligence), pertaining to the same accident
referenced in her existing Montreal Convention claim, clearly concerns the same
“conduct, transaction, or occurrence” set forth in the original complaint. Further, it is

4

In fact, one case cited in SAF’s motion allowed a similar amendment. In Yahya v.
Yemenia-Yemen Airways, No. 08-14789, 2009 WL 3424192 (E.D. Mich. Oct. 20, 2009),
the estate of a man who died on a flight from Detroit to Yemen brought state law claims
including negligence against the airline that operated that flight. Id. *1–2. The complaint
did not specifically allege any claim under the Convention, but noted that its claims “may
be governed, ‘in whole or in part,’ by the Montreal Convention.” Id. at *7. The court
reasoned that this reference to the Convention, “coupled with the underlying facts pled . .
. placed [defendant] on notice of a possible Montreal Convention claim before the
Convention’s two-year statute of limitations expired.” Id. Accordingly, the court granted
leave to amend the complaint “to comport with the Montreal Convention” almost three
years after the flight in question. Id.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-CV-02444-CAS(JPRx)

Date

Title

‘O’

May 7, 2015

LAILA BENAMAR v. AIR FRANCE-KLM, ET AL.

well-settled that “requests for leave should be granted with ‘extreme liberality.’ ” Moss,
572 F.3d at 972 (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712
(9th Cir. 2001)). For these reasons, plaintiff is granted leave to amend her complaint to
allege negligence under the Montreal Convention.
C.

SAF’s Request to Limit Plaintiff’s Damages Is Denied.

Article 21 of the Montreal Convention provides:
1. For damages arising under paragraph 1 of Article 17 not
exceeding 100,000 Special Drawing Rights for each passenger,
the carrier shall not be able to exclude or limit its liability.
2. The carrier shall not be liable for damages arising under
paragraph 1 of Article 17 to the extent that they exceed for each
passenger 100,000 Special Drawing Rights if the carrier proves
that:
(a) such damage was not due to the negligence or other
wrongful act or omission of the carrier or its servants or
agents; or
(b) such damage was solely due to the negligence or
other wrongful act or omission of a third party.
A Special Drawing Right, or SDR, “is an artificial currency, the exchange rate for which
is published daily by the International Monetary Fund. The value of an SDR fluctuates
based on the global currency market, and . . . is determined at the date of the judgment.”
Shah v. Kuwait Airways Corp., No. 08 Civ. 7371(LAP)(JCF), 2012 WL 1631624, at *1
n.6 (S.D.N.Y. May 7, 2012) (internal quotation marks omitted). The Convention’s
liability limits are periodically adjusted for inflation; the strict liability limit is now
113,100 SDRs. See Inflation Adjustments to Liability Limits Governed by the Montreal
Convention Effective December 30, 2009, 74 Fed. Reg. 59,017 (Nov. 16, 2009).
The complaint alleges that the defendants “are strictly liable for damage caused by
the food poisoning outbreak in an amount not to exceed the applicable limit of Special
Drawing Rights per injured passenger (approximately $175,000).” Compl. ¶ 24. Based
on this language, SAF requests an order limiting plaintiff’s recovery to “provable
damages up to 113,100 SDRs.” However, plaintiff has also alleged that SAF was
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-CV-02444-CAS(JPRx)

Date

Title

‘O’

May 7, 2015

LAILA BENAMAR v. AIR FRANCE-KLM, ET AL.

negligent, and has requested and received leave to amend her complaint to add
negligence allegations to her Montreal Convention claims against SAF. By the
Convention’s terms, plaintiff’s damages will only be limited to 113,100 SDRs if SAF can
prove that it was not negligent or otherwise at fault. Therefore, the Court finds that an
order limiting plaintiff’s damages to that amount would be premature given the early
stage of the litigation and plaintiff’s anticipated amended complaint, and DENIES SAF’s
motion to the extent it seeks such an order.5
IV.

CONCLUSION

In accordance with the foregoing, the Court GRANTS IN PART and DENIES IN
PART the motion to dismiss. Specifically, the Court grants the motion insofar as it seeks
to dismiss the state law claims alleged against Société Air France in Counts I and III of
the complaint. The motion is otherwise denied. If plaintiff wishes to file a First
Amended Complaint adding negligence allegations to her Montreal Convention claim,
she is directed to do so no later than June 11, 2015.
IT IS SO ORDERED.
00
Initials of Preparer

:

00

CMJ

5

SAF also seeks to dismiss plaintiff’s claims against it for exemplary damages.
Article 29 of the Montreal Convention expressly provides that “punitive, exemplary or
any other non-compensatory damages shall not be recoverable” in an action governed by
the Convention. But the complaint seeks “[e]xemplary damages against defendants not
covered by the Montreal Convention.” Compl. at 8 (emphasis added). All non-Montreal
Convention claims brought against SAF have been dismissed. Additionally, plaintiff
states in her opposition that she “does not seek punitive damages against [SAF], but
instead only against [Servair].” Opp’n at 5 (emphasis in original). Accordingly, SAF’s
motion to dismiss claims for exemplary damages against it is DENIED as moot.
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