Nicoline Ambe et al v. Air France, SA

Filing 54

ORDER by Judge Dean D. Pregerson: GRANTING IN PART AND DENYING IN PART 44 Defendants MOTION to Dismiss. Defendant Air Frances Motion to Dismiss Second Amended Complaint is GRANTED, in part and DENIED, in part. Plaintiffs state law claims, and acc ompanying claims for non-compensatory and punitive damages, are dismissed, with prejudice. Plaintiffs claims against newly-named Doe defendantsare dismissed, with leave to amend. Should Plaintiffs seek to amend their Montreal Convention claims against Doe defendants, any such amended complaint shall be filed within fourteen days of the date of this Order. (shb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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NICOLINE AMBE,individually,
and THE ESTATE OF THE
DECEDENT NDIFORCHU ALFRED
TAMUNANG, by administrator
NICOLINE AMBE; SUZY ANJIM
NDIFORCHU; BLAFANWI
NDIFORCHU; BOBBI AMANG
NDIFORCHU; CHO MOFOR
NDIFORCHU; SARAH NGWE GEH

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Case No. 2:17-CV-08719 DDP-Ex
ORDER RE: DEFENDANT’S MOTION TO
DISMISS
[Dkt. 44]

Plaintiffs,

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v.
AIR FRANCE, S.A., a French
public limited company; and
DOES 1-50.
Defendant.
___________________________

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Presently before the court is defendant Air France, S.A. (“Air

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France”)’s Motion to Dismiss Second Amended Complaint. Having

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reviewed the papers submitted by the parties and heard oral

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argument, the court GRANTS the motion in part, DENIES the motion in

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part, and adopts the following Order.1

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I.

Background

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Plaintiffs’ counsel did not appear at oral argument.

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Ndiforchu Alfred Tamunang (“Decedent”) purchased a round-trip

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ticket on Air France from Los Angeles to Douala, Cameroon by way of

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Paris.

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to Paris due to accidental asphyxiation.

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(SAC p ¶¶ 22, 24.)

Decedent died en route from Los Angeles
(SAC ¶ 23.)

In the wake of Decedent’s death, Decedent’s wife, Plaintiff

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Nicoline Ambe (“Ambe”), attempted to contact Defendant, but her

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calls and emails went unanswered.

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59.

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were not properly trained to address medical emergencies and that

(SAC ¶¶ 55, 57.)

Id. at 11-12 ¶

The instant suit alleges that Defendant’s flight crew members

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the airplane was not outfitted with proper emergency medical

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equipment.

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not take potentially life-saving measures, such as landing the

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plane, elevating Decedent’s legs “to restore blood flow to the

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brain,” or conducting CPR.

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that Defendant owed a duty of care to Decedent to take emergency

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medical action and that the lack of equipment and training indicate

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a breach of that duty.

(SAC ¶¶ 75, 76.)

Plaintiffs allege that Defendant did

(Id. ¶ 45.)

Plaintiffs further allege

(Id. ¶¶ 74, 75.)

Plaintiffs’ Second Amended Complaint alleges two causes of

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action under the Montreal Convention2, as well as state claims for

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breach of contract and breach of the implied covenant of good faith

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and fair dealing.

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Plaintiffs’ state law claims, all claims against all Doe

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Defendants, and all claims asserted by certain Plaintiffs.

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II.

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Defendant Air France now seeks to dismiss

Legal Standard
A complaint will survive a motion to dismiss when it

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Convention for the Unification of Certain Rules Relating to
International Carriage by Air, May 28, 1999, S. Treaty Doc. No.
106–45.
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“contain[s] sufficient factual matter, accepted as true, to state a

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claim to relief that is plausible on its face.”

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129 S. Ct. 1937, 1949(2009)(quoting Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 570 (2007)). When considering a Rule 12(b)(6) motion, a

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court must “accept as true all allegations of material fact and

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must construe those facts in the light most favorable to the

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plaintiff.”

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Although a complaint need not include "detailed factual

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allegations," it must offer "more than an unadorned,

Ashcroft v. Iqbal,

Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

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the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct.

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at 1949. Conclusory allegations or allegations that are no more

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than a statement of a legal conclusion "are not entitled to the

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assumption of truth." Id. at 1950. In other words, a pleading that

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merely offers "labels and conclusions," a "formulaic recitation of

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the elements," or "naked assertions" will not be sufficient to

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state a claim upon which relief can be granted. Id. at 1949

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(citations and internal quotation marks omitted).

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“When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they

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plausibly give rise to an entitlement of relief.” Id. at 1950.

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Plaintiffs must allege "plausible grounds to infer" that their

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claims rise "above the speculative level." Twombly, 550 U.S. at

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555-56. "Determining whether a complaint states a plausible claim

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for relief" is "a context-specific task that requires the reviewing

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court to draw on its judicial experience and common sense." Iqbal,

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129 S. Ct. at 1950.

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III.

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Discussion
A.

Montreal Convention Preemption of State Law Claims
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Defendant Air France argues that Plaintiffs’ state law causes

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of action are preempted by the Convention for the Unification of

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Certain Rules Relating to International Carriage by Air, known as

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the Montreal Convention.

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states

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Article 17 of the Montreal Convention

The 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.
Montreal Convention, art. 17.

Article 29 states that

any action for damages, however founded, whether under
this Convention or otherwise, can only be brought subject
to the conditions and such limits of liability as are set
out in this Convention...In any such action, punitive,
exemplary or any other non-compensatory damages shall not
be recoverable.
Montreal Convention, art. 29.

Thus, the Montreal Convention

“provides the exclusive remedy for international passengers
seeking damages against airline carriers” for damages
sustained on board an aircraft or while boarding or debarking.
Narayanan v. British Airways, 747 F.3d 1125, 1127 (9th Cir.
2014).

Nevertheless, “[t]he Convention’s preemptive effect on

local law . . . extends no further than the Convention’s own
substantive scope.”

El Al Israel Airlines, Ltd. v. Tsui Yuan

Tseng, 525 U.S. 155, 158(1999) (discussing similar language in
the Warsaw Convention, the predecessor to Montreal
Convention).3

An airline’s complete nonperformance of a

contract, for example, falls outside of the Montreal
Convention’s purview, and may support state law claims.

See,

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Courts regularly apply Warsaw Convention precedent to
Montreal Convention cases. See Narayanan, 747 F.3d at 1127 n.2.
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e.g., Lathigra v. British Airways PLC, 41 F.3d 535, 538 (9th

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Cir. 1994); Nankin v. Continental Airlines, Inc., No. CV

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09-07851 MMM RZX, 2010 WL 342632, at *6 (C.D. Cal. Jan. 29,

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2010).

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In Lathigra, the defendant airline confirmed the

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plaintiffs’ one-stop flight from the United States to

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Madagascar several days before the plaintiffs’ trip began.

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Lathigra, 41 F.3d at 536.

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however, that service for the second leg of the flight, from

The airline neglected to mention,

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Nairobi to Madagascar, had been discontinued.

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result, the plaintiffs were stranded in Nairobi.

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plaintiffs brought a negligence claim under state law and the

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airline sought summary judgment, arguing that the Warsaw

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Convention and its statute of limitations applied to the

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plaintiffs’ negligence claim.

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Circuit disagreed, observing that the negligent act took place

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well before the plaintiffs’ departure and, thus, outside the

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scope of the Convention.

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Serrano v. Am. Airlines, Inc., No. CV08-2256 AHM (FFMX), 2008

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WL 2117239, at *1 (C.D. Cal. May 15, 2008) (finding Convention

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inapplicable to contract, discrimination, defamation, and

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intentional infliction of emotional distress claims where

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airline employees refused to allow plaintiffs to fly and told

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other airline’s agent that plaintiffs were liars who should

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not be allowed to purchase tickets).

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Id.

Id. at 536-37.

As a

Id.

The

The Ninth

Id. at 539; see also

Courts regularly, however, dismiss state law claims that

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fall within the Montreal Convention’s scope.

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a personal injury suffered on board an aircraft or in the
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“[R]ecovery for

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course of any of the operations of embarking or disembarking,

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if not allowed under the Convention, is not available at all.”

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Tseng, 525 U.S. at 161 (internal quotation, alteration, and

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citation omitted).

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the plaintiff brought common law strict liability, negligence,

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and other state law claims against an airline after suffering

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from food poisoning on an international flight.

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Air France-KLM, No. 2:15-CV-02444-CAS, 2015 WL 2153440, at *1

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(C.D. Cal. May 7, 2015).

In Benamar v. Air France-KLM, for example,

Benamar v.

The district court found those

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claims to lie within the Montreal Convention’s substantive

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scope, and dismissed the state claims accordingly.

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see also Seshadri v. British Airways PLC, No.

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3:14-CV-00833-BAS, 2014 WL 5606542, at *9 (S.D. Cal. Nov. 4,

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2014) (finding intentional infliction of emotional distress

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claim based upon damage to musical instrument during flight to

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fall within the scope of the Montreal Convention).

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Id. at *3;

Here, Plaintiffs concede that any claims arising from

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Decedent’s accidental death on board Defendant’s aircraft must

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be brought under the Montreal Convention.

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Indeed, Plaintiffs bring their first two causes of action

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under the Montreal Convention.

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that their two state law causes of action arise independently

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of any midair accident involving Decedent, and are based upon

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from Air France’s nonperformance of a contract of carriage and

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“misconduct.”

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Indeed, other courts have rejected similar arguments put forth

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in similar, albeit far less tragic, circumstances.

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(Opp. at 5.)

(Opposition at 3.)

Plaintiffs contend, however,

This argument is not persuasive.

In Wysotski v. Air Canada, plaintiffs brought negligence,
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negligent infliction of emotional distress, fraud, and other

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state law claims, as well as a Warsaw Convention claim, after

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the defendant airline allegedly mishandled and damaged the

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plaintiffs’ pet crate, causing the plaintiffs’ cat to escape

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and disappear.

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2006 WL 581093, at *1 (N.D. Cal. Mar. 6, 2006).

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there was no dispute that the cat disappeared during air

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transportation, the plaintiffs argued that their state claims

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fell outside the Warsaw convention because (1) the airline

Wysotski v. Air Canada, No. C 02-04952 CRB,
Although

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misrepresented that the cat would be handled with care before

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the transportation ever began, and (2) the airline refused to

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allow plaintiffs to adequately search for the cat after its

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empty crate was discovered.

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the plaintiffs’ arguments, observing that when state law

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claims are “so closely related to the loss . . . itself as to

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be, in a sense, indistinguishable from it, those claims are

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preempted even though they may be ancillary to the event that

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proximately caused the damage.”

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marks omitted).

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Id. at *3.

The court rejected

Id. at *3 (internal quotation

The Wysotski court relied upon the D.C. Circuit’s

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decision in Cruz v. Am. Airlines, Inc., 193 F.3d 526, 531

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(D.C. Cir. 1999).

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luggage, then improperly rejected the plaintiffs’ claims for

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redress, contending, inaccurately, that the plaintiffs had

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failed to follow the airline’s rules regarding luggage claim

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paperwork. Cruz, 193 F.3d at 527.

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alleging a Warsaw Convention claim and state law claims for

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fraud and deceit.

There, the airline lost plaintiffs’

Id.

The plaintiffs filed suit,

The plaintiffs argued that their state
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law claims fell outside the Convention because the fraud

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claims were based not upon the loss of the luggage, but rather

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upon the intentional misapplication of rules regarding the

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paperwork.

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the “relationship between the occurrence that the [plaintiffs]

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claim ‘caused’ their injuries . . . is so closely related to

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the loss of the luggage itself as to be, in a sense,

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indistinguishable from it.”

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different, the court explained, if an airline employee had

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assaulted or slandered the plaintiffs in the course of the

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claims process.

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airline “had simply asserted no reason for denying the

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[plaintiffs’] lost-luggage claim, and just refused to pay, it

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is clear that the . . . only remedy would be to sue under the

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Convention . . . .

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refusing to pay . . . does not alter the legal situation.”

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Id.

Id. at 531.

Id.

The court disagreed, reasoning that

Id.

The situation would be

But, the court further observed, if the

It follows . . . that a bad reason for

The argument here is essentially the same as that

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asserted in Cruz and Wysotski.

Plaintiffs’ breach of contract

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claim alleges that Air France promised to follow the Montreal

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Convention (SAC ¶ 88) and breached that promise “by failing to

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timely compensate plaintiffs for the accidental death of the

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[Decedent] which occurred on board during the flight.”4

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90.)

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state law claims are inextricably intertwined with an alleged

(SAC ¶

Just as in Wysotski and Cruz, however, Plaintiffs’s

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The SAC also alleges that Air France breached the implied
covenant of good faith and fair dealing by refusing to communicate
with Plaintiffs or “accept liability for the accidental death of
[Decedent].” (SAC ¶¶ 99-100.)
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on-board accident that undoubtedly falls within the Montreal

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Convention’s scope.

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“Convention . . . would cease to be an exclusive remedy . . .

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if plaintiffs who could not assert state-law claims for the

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act itself were nonetheless permitted to sue under state law

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for ex ante representations that the act would not occur or ex

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post failure to redress the harm.”

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claims here are premised on precisely such factual

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allegations.

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As the Wysotski court explained, the

Id.

Plaintiffs’ state law

Because those claims fall under the Montreal

Convention, they are preempted, and must be dismissed.5

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B.

Relation Back

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The original Complaint in this matter alleged claims on

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behalf of two Plaintiffs, Nicoline Ambe and the Decedent’s

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estate, against a single defendant, Defendant Air France.

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SAC alleges claims on behalf of several additional Plaintiffs,

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including Decedent’s children and mother, against not only

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Defendant Air France, but 50 additional unnamed Doe defendants

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as well.

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initial Complaint was timely filed, the Montreal Convention’s

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two-year statue of limitations had expired by the time

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Plaintiffs filed the SAC.

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Plaintiffs’ claims, and the claims against new Defendants, are

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time-barred.

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The

There appears to be no dispute that, although the

Thus, Defendant argues, the new

Plaintiffs contend that the new claims are timely because
they relate back to the original filing date.

(Opp. at 18-

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Plaintiffs concede that their claims for non-compensatory
and punitive damages are dependent upon the state law claims.
(Opp. at 14.) Accordingly, those claims are also dismissed with
prejudice.
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19.)

An amendment adding a plaintiff relates back “only when:

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1) the original complaint gave the defendant adequate notice

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of the claims of the newly proposed plaintiff; 2) the relation

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back does not unfairly prejudice the defendant; and 3) there

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is an identity of interests between the original and newly

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proposed plaintiff.”

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922, 935 (9th Cir. 1996).

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the addition of new plaintiffs are not well developed, Air

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France contends that it is “patently unreasonable to place to

In re Syntex Corp. Sec. Litig., 95 F.3d
Although the arguments regarding

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the burden on Air France to figure out that there are

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additional parties that may have a claim against it.”

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at 9:25-26.)

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Complaint provided no indication whether Decedent had any

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other dependents, that lack of information is not dispositive.

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None of the newly named Plaintiffs alleges a claim in the SAC

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that was not alleged by the Plaintiffs in the original

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Complaint.

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prior complaint has given adequate notice of the facts

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supporting a claim.

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an amendment restates a claim with no new facts.”

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Dolphin Boating & Swimming Club, 683 F.2d 1271, 1278 (9th Cir.

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1982).

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in a new plaintiff’s identity may be a new fact that can

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prejudice a defendant.

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changing plaintiffs may relate back when the relief sought in

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the amended complaint is identical to that demanded

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originally.

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defendant is not prejudiced because his response to the action

(Reply

Although Air France is correct that the original

“An amendment equitably may relate back when the

Relation back imposes no prejudice when
Besig v.

As the Ninth Circuit recognized, the very difference

Id.

Nevertheless, “an amendment

In such a case, despite a lack of notice, the

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requires no revision.”

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Police Dep't, No. CV161292PHXDJHDMF, 2017 WL 4856871, at *5

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(D. Ariz. Oct. 27, 2017), True Health Chiropractic Inc. v.

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McKesson Corp., No. 13-CV-02219-JST, 2014 WL 2860318, at *3

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(N.D. Cal. June 23, 2014).

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new plaintiffs to claims previously alleged does not warrant

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dismissal of the new Plaintiffs’ claims.

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Id.; see also

Ross v. Glendale

Here, therefore, the addition of

Under Federal Rule of Civil Procedure 15(c), an amendment
naming a new defendant must satisfy the following conditions:
(1) the basic claim must have arisen out of the conduct set
forth in the original pleading; (2) the party to be brought
in must have received such notice that it will not be
prejudiced in maintaining its defense; (3) that party must
or should have known that, but for a mistake concerning
identity, the action would have been brought against it;
and (4) the second and third requirements must have been
fulfilled within the prescribed limitations period.

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Kilkenny v. Arco Marine Inc., 800 F.2d 853, 856 (9th Cir. 1986)

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(citing Schiavone v. Fortune, 477 U.S. 21, 28, 106 S. Ct. 2379,

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2384 (1986); see also Immigrant Assistance Project of Los Angeles

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Cty. Fed'n of Labor (AFL-CIO) v. I.N.S., 306 F.3d 842, 857 (9th

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Cir. 2002).

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“what the party to be added knew or should have known, not on the

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amending party’s knowledge . . . .”

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p. A., 560 U.S. 538, 541, 130 S. Ct. 2485, 2490 (2010).

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however, it is impossible for the court to determine whether the

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newly named defendants knew or should have known that claims would

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have been brought against them because the newly named Defendants

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are all fictitious “Doe” defendants whose acts or omissions are not

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specified in the SAC.

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naming of a “Doe” is “immaterial to the application of Rule 15(c)”

The emphasis regarding notice and knowledge is on

Krupski v. Costa Crociere S.
Here,

Indeed, some courts have concluded that the

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in the first instance.

In re Zicam Cold Remedy Mktg., Sales

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Practices, & Prod. Liab. Litig., No. 09-MD-02096-PHX-FJM, 2010 WL

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2308388, at *2 (D. Ariz. June 9, 2010) (citing Craig v. United

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States, 413 F.2d 854, 857 (9th Cir. 1969)).

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speculates that the proposed Doe Defendants are Air France

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employees, the SAC does not allege that any Doe Defendant took, or

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failed to take, any particular action, aside from alleging that the

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Doe Defendants “are in a manner responsible for acts, occurrences,

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and transactions” set forth within the SAC.

Although Air France

(SAC ¶ 16.)

Even

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putting aside the question whether the addition of a Doe defendant

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can ever relate back under Rule 15(c), the SAC’s lack of detail

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regarding the newly-named Doe Defendants will not only complicate

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later attempts to identify any particular Doe, but also makes it

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difficult for Plaintiffs to demonstrate at this stage that any Doe

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Defendant knew or should have known that an action would be brought

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against him or her.

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v. Gen. Motors Corp., 697 F.2d 1328, 1332 (9th Cir. 1983)

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(substitution of named defendant for Doe defendant did not relate

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back where description of Doe defendants was insufficient to

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identify anyone).

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otherwise untimely claims against the newly-named Doe Defendants

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satisfy Rule 15(c), those claims must be dismissed.

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IV.

See Krupski, 560 U.S. at 541; see also Lopez

Because Plaintiffs cannot show that their

Conclusion

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For the reasons stated above, defendant Air France’s Motion to

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Dismiss Second Amended Complaint is GRANTED, in part and DENIED, in

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part.

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non-compensatory and punitive damages, are dismissed, with

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prejudice.

Plaintiffs’ state law claims, and accompanying claims for

Plaintiffs’ claims against newly-named Doe defendants
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are dismissed, with leave to amend.

Should Plaintiffs seek to

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amend their Montreal Convention claims against Doe defendants, any

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such amended complaint shall be filed within fourteen days of the

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date of this Order.6

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IT IS SO ORDERED.

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Dated:December 7, 2018

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DEAN D. PREGERSON

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United States District Judge

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Although Defendant’s Motion asks that “all of Plaintiff’s
Second Amended Complaint” be dismissed with prejudice, Defendant
has not fairly raised any argument why Plaintiffs’ Montreal
Convention claims fail under Rule 12(b)(6). Defendant does state
that “Plaintiffs have no basis for recovery unless and until they
prove an ‘accident,’” and assert that, “In plenty of cases with
similar facts, plaintiffs could not meet this burden.” (Motion at
9:11-14.) That brief assertion, however, is raised in the context
of Defendant’s argument that the Montreal Convention preempts
Plaintiffs’ state law claims. (Mot. at 7.)
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