Ekufu v. Iberia Airlines

Filing 40

Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 1/9/2014. Mailed notice (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Thankgod Ekufu, et al.,

)
)
)
)
)
) Case 12 CV 6669
)
) Hon. Elaine Bucklo
)
)
)
)

Plaintiffs,

v.

Iberia Airlines and Milton Uribe,
Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs Thankgod Ekufu, Loveth Ekufu, and Gladys Agbasi
proceeding pro se, filed a complaint against Iberia Airlines and
Milton

Uribe,

Iberian

Airlines’

station

manager

at

O’Hare

International Airport (“O’Hare”), for damages incurred when a bag
Plaintiff

Agbasi

checked

for

an

Iberia

Airline’s

flight

originating in Lagos, Nigeria arrived one week late to her final
destination,

O’Hare,

and

was

missing

some

of

its

contents.

Defendants moved for summary judgment on Plaintiffs’ claims, or
alternatively, to limit Plaintiffs’ liability as prescribed by
Article 22 (2) of the Convention for the Unification of Certain
Rules for International Carriage by Air (commonly known as “the
Montreal Convention”), which governs this case.

For the reasons

that follow, I deny the motion in part and grant it in part.

1

I.
Local Rule 56.1
Defendants filed a statement of uncontested material facts
pursuant to Local Rule 56.1 (N.D. Ill.). [#31]

In conjunction

with their motion for summary judgment, Defendants included a
“Notice to Pro Se Litigant Opposing Summary Judgment.” [#34]
That notice explained the requirements of the Northern District
of Illinois’ Local Rules and warned Plaintiffs that a party’s
failure to controvert facts as set forth in the moving party’s
statement results in those facts being admitted.
Local

Rule

56.1(b)

requires

a

party

opposing

summary

judgment to file:
(3) a concise response to the movant’s statement that shall
contain
(A) a response to each numbered paragraph in the moving
party’s statement, including, the case of any disagreement,
specific references to the affidavits, parts of the record,
and other supporting materials relied upon, and
(B) a statement, consisting of short numbered paragraphs, of
any additional facts that require denial of summary
judgment, including references to the affidavits, parts of
the record, and other supporting materials relied upon.
L.R. 56.1(b).
Although
standards,

pro

se

compliance

plaintiffs
with

the

are

entitled

procedural

rules

to
is

lenient
required.

Koszola v. Bd. of Educ. of the City of Chicago, 385 F.3d 1104,
1108 (7th Cir. 2004) (“[A] district court is entitled to decide
the motion based on the factual record outlined in the [Local
56.1] statements.” (internal citations omitted)).
2

The Court will

accept Plaintiffs’ factual statements only to the extent that
they could properly testify about the matters asserted.
this

Court

will

not

accept

as

fact

any

matters

That is,
for

which

Plaintiffs have no personal knowledge. Fed. R. Evid. 602.
With this in mind, the Court views Defendants’ Rule 56.1
statements supported by the record and not properly rebutted by
Plaintiffs to be true and uncontested.

The Court notes that some

of Plaintiffs’ proposed factual statements constitute argument or
conclusory assertions.

Where, however, Plaintiff has properly

objected to Defendants’ factual assertions with his own counterfactual assertions with record evidence to support them, the
Court will consider those facts.
Facts
Plaintiff

Agbasi

was

a

passenger

on

Iberia

Airlines

(“Iberia”) flight #3747 from Lagos, Nigeria to Madrid, Spain on
January 17, 2012.

In Madrid, Ms. Agbasi connected to Iberia

flight #6275 and traveled to her final destination, O’Hare, on
January 18, 2012. Plaintiff Agbasi checked two pieces of luggage
at the outset of her journey in Nigeria.

When she arrived at

O’Hare, she found only one of her checked bags.

Ultimately, her

delayed bag was returned to her on January 26, 2012.

Upon

receiving her bag, Ms. Agbasi discovered that some of the items
she had packed and checked were missing.
full

list

of

missing

items,

though

The parties dispute the

both

agree

that

certain

nutritional supplements and dried herbs and spices were among the
3

missing

contents.

Plaintiff

Agbasi

contends

that

pieces

of

traditional Nigerian clothing and jewelry were also missing when
her

bag

was

returned.

Defendants

claim

that

the

herbal

supplements were removed by security forces in Lagos, Nigeria
because

they

are

banned

by

Spanish

regulation.

Plaintiffs

maintain that the contents were stolen while in the custody of
Iberia.
II.
“Summary

judgment

is

proper

where

‘there

is

no

genuine

dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” Collins v. Am. Red Cross, 715 F.3d
994, 997 (7th Cir. 2003) (quoting Fed. R. Civ. P. 56(a)).

When

deciding a motion for summary judgment, I must view all evidence
in the light most favorable to the moving party. Id.

However, I

am not required to draw inferences “that are supported only by
speculation or conjecture.” Harper v. C.R. England, Inc., 687
F.3d 297, 306 (7th Cir. 2012).

“A genuine issue of material fact

exists only where there is enough evidence that a reasonable jury
could return a verdict in favor of the nonmoving party.” Collins,
715 F.3d at 997.
The Montreal Convention
The parties agree that the Montreal Convention, a treaty
concerning international air travel which was adopted in 1999 and
enacted as law in the United States in November 2003, governs
this case. Convention for the Unification of Certain Rules for
4

International Carriage by Air, May 28, 1999, ICAO Doc. 9740,
reprinted in S. TREATY DOC. NO. 106-45, 1999 WL 33292734 (2000)
(hereinafter “Montreal Convention”).

The purpose of the Montreal

Convention is to “unif[y] and replace the system of liability
from the Warsaw Convention,” which previously governed the rights
and liabilities associated with international airline travel.
Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., Ltd., 522
F.3d

776,

780-81

(7th

Cir.

2008).

The

Montreal

Convention

“applies to all international carriage of persons, baggage or
cargo performed by aircraft.” Montreal Convention, Art. 1(1). It
also provides passengers with the right to damages arising from
“any carriage in which, according to the agreement between the
parties, the place of departure and the place of destination …
are situated … within the territory of two State parties.” Id. at
1(2).

The countries involved in this case—Nigeria, Spain, and

the United States—are all signatory countries to the Montreal
Convention.
Standing
Defendants

first

challenge

the

standing

of

Plaintiffs

Thankgod Ekufu and Loveth Ekufu, neither of whom were passengers
on the Iberia Airlines flights.

Defendants argue that the Ekufu

Plaintiffs have no standing since the Montreal Convention governs
only the rights of

passengers

and the airlines arising from

international carriage. See Art. 1(1) (“This Convention applies
to

all

international

carriage

of
5

persons,

baggage,

or

cargo

performed

by

aircraft

for

reward.”).

Plaintiffs

argue

that

because the passenger, Ms. Agbasi, is Thankgod Ekufu’s mother-inlaw and Loveth Ekufu’s mother, and the allegedly stolen items
were purchased with their money, they have standing to raise
these claims.
“Under Article III of the Constitution, a party must
demonstrate standing in order to satisfy the ‘case or
controversy’ requirement necessary to the exercise of our
judicial power.” Sanner v. Bd. of Trade of City of Chicago, 62
F.3d 918, 922 (7th Cir. 1995).

To satisfy the standing

requirement, a putative party must make a three-part showing: (1)
that it has an “‘injury in fact’—an invasion of a legally
protected interest which is … concrete and particularized,” (2)
“that its injury is fairly traceable to the defendant’s conduct”,
and (3) that the injury is “likely to be redressed by the
requested relief.” Edgewood Manor Apartment Homes, LLC v. RSUI
Indem. Co., 733 F.3d 761, 771 (7th Cir. 2013) (internal citation
omitted).

“These are the constitutional minimums for standing to

sue in federal court; there are also ‘prudential’ standing
interests, one of which is that ‘the plaintiff generally must
assert his own legal rights and interests, and cannot rest his
claim to relief on the legal rights or interests of third
parties.’” Id. (quoting Warth v. Seldin, 422 U.S. 490, 499, 95
S.Ct. 2197, 45 L.Ed.2d 343 1975)).
Here, Plaintiff Agbasi was a party to the agreement between
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herself and Iberia Airlines that she entered into when she
purchased her ticket, and she personally suffered when her bag
was searched and its contents were removed.
standing to sue.

Therefore, she has

The Ekufu Plaintiffs, however, were not

passengers, nor parties to the agreement, nor directly harmed by
Iberia.

They cannot demonstrate that they have a legally

protected interest in Plaintiff Agbasi’s luggage arriving with
all of its contents intact, which violates one of the
Constitutional requirements for standing.

See Edgewood Manor,

733 F.3d at 771 (a party must allege “an invasion of a legally
protected interest”).

But even if they could surmount the

Constitutional prerequisites, they cannot clear the prudential
boundaries for standing, because the Ekufu Plaintiffs are not
asserting their own legal rights and interests, but rather those
of Plaintiff Agbasi.1

Therefore, the Ekufu Plaintiffs lack

standing to sue.
Claim for Delayed Baggage and Missing Contents
The parties do not dispute that certain items were removed
from Plaintiff Agbasi’s baggage.

Defendants argue that Plaintiff

Agbasi’s claim for the contents missing from her baggage fails
because they were confiscated due to European Union restrictions
on them.

They argue that Spain prohibits the importation of

1 The Ekufu Plaintiffs do not argue that they have third-party standing to sue
in this case, and given that Plaintiff Agbasi is a party to the suit, this
Court presumes she is capable of protecting her own interests. Shimer v.
Washington, 100 F.3d 506, 508 (7th Cir. 1996) (“We first consider whether
there is some hindrance to the third party’s ability to protect his own
interest.”).

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certain herbal remedies and medicines, including those that were
removed from her bag.

They urge that “[b]y virtue of plaintiff’s

purchase of a ticket on a[n] Iberia flight, she consented to
become a party to the contract of air transport.” Def. Mem. Supp.
Sum. J. [#30] at 3. The “Conditions of Contract” included a
provision requiring passengers to “comply with all governmental
regulations,” and they are claiming that her banned items
violated governmental regulations. Id.

In support of their

argument, Defendants submit a Declaration from Iberia’s Executive
Office Manager who testifies that “[t]he items removed included
herbal medicines and nutritional supplements which are now barred
from importation into Spain,” and “[a]ccordingly, security
personnel” in Lagos “frequently inspect passengers’ baggage and
remove those banned items from passengers’ checked baggage.” Def.
L.R. 56.1 Stmt [#31-1] Dec. of F. Pollan, at ¶ 6. They also
submit a translated copy of Spain’s Royal Decree number 2208/1994
(“Royal Decree”), which bans the importation of certain items, as
proof that the security forces in Lagos, Nigeria confiscated
Plaintiff Agbasi’s items pursuant to government regulation.

Def.

Rule 56.1 Stmt [#31] at ¶¶ 14-16; Exs. D and E [#31-1].2
Plaintiff Agbasi responds that the herbal supplements she
was carrying were “legal and legitimate food, food ingredients,
dried vegetables, spices or other food condiments used and sold
2 Defendants also submit an April 20, 2011 newspaper article that says
European Union regulations will require herbal medicines to be registered and
to meet certain standards before they may be sold. Ex. C to Def. L.R. 56.1
Stmt. [#31-1]. That article, however, is hearsay and will not be considered.

8

in every part of the world, including Spain and the United
States.” Plt. Resp. Br. [#35] at 1.

She argues that while some

of the ingredients may be banned from importation while they are
fresh, no countries ban them when they are dried, as all of hers
were. Id. at 1-2.

She notes that the same items that were

confiscated from her bag were also packed in her other bag, which
made it to her final destination undisturbed. According to the
record, however, that bag was not searched.

She also argues that

Defendants’ list of items taken from her bag is incomplete
because it does not include the missing pieces of Ashoke clothes
and three pieces of traditional jewelry.
While the contract that Plaintiff Agbasi agreed to upon
purchasing her ticket required her to “comply with Government
travel requirements,” it is not clear either that the security
agents in Lagos removed the items because they believed that they
were banned by Spanish law, or that the allegedly contraband
items were actually banned from importation into Spain.

The

Declaration from Iberia’s Executive Office Manager provides
evidence of Iberia’s general policy to confiscate banned items,
but it does not offer personal knowledge that, in this instance,
the items were removed because of security personnel’s belief
that they were banned.

As for the Royal Decree, it too fails to

offer proof that the items in Plaintiff Agbasi’s bag were
actually banned because it merely prohibits generally
“homeopathic medicines” that lack “corresponding authorization
9

from the Ministry of Health and Consumer Affairs.” Def. L.R. 56.1
Stmt [#31-1] Ex. 3.

Nowhere does the Royal Decree offer specific

descriptions of the items banned such that it is possible to
confirm from the record that those removed from Ms. Agbasi’s
baggage were on the list of banned items.
Because Defendants have failed to come forth with sufficient
proof that Plaintiff Agbasi’s items were removed because they
were banned by the Spanish government, they have also failed to
prove that Plaintiff Agbasi violated the Conditions of Contract,
and thus summary judgment is not appropriate.
Limits of Liability
Defendants also argue that Article 22 of the Montreal
Convention governs the limits of Plaintiff’s Agbasi’s damages.
Article 22 provides that
[i]n the carriage of baggage, the liability of the
carrier in the case of destruction, loss, damage or
delay is limited to 1 000 Special Drawing Rights3 for
each passenger unless the passenger has made, at the
time when the checked baggage was handed over to the
carrier, a special declaration of interest in delivery
at destination and has paid a supplementary sum if the
case so requires. In that case the carrier will be
liable to pay a sum not exceeding the declared sum,
unless it proves that the sum is greater than the
passenger’s actual interest in delivery at destination.
Montreal Convention, Art. 22(2).

Defendants urge that Iberia’s

3 “An 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, under the Montreal [Convention],
Art. 23, is determined ‘at the date of judgment.’” Shah v. Kuwait Airways
Corp., No. 08 Civ. 7371, 2012 WL 1631624, at *1 n.6 (S.D.N.Y. 2012) (internal
citations omitted).

10

liability is limited to the amount of the Special Drawing Rights
(“SDR”).4 They argue that because Plaintiff made no “special
declaration of interest” nor did she pay “a supplementary sum” to
Iberia, she is not entitled to more than 1,130 SDRs.

Plaintiff

argues that because the items in her bag were “intentionally
stolen,” this Court has the power to grant “any suitable
judgment” and points to Article 22(5) of the Montreal Convention,
which provides that the limitations on liability
shall not apply if it is proved that damage resulted
from any act or omission of the carrier, its servants
or agents, done with the intent to cause damage or
recklessly and with knowledge that damage would
probably result; provided that, in the case of such an
act or omission of a servant or agent, it is also
proved that such servant or agent was acting within the
scope of its employment.

Montreal Convention, Art. 22(5) (emphasis added).

She urges that

because she alleges that her items were “intentionally stolen” by
employees of Iberia, the limitations in Article 22(2) do not
apply. See Plt. Mem. Opp. Sum. J. [#35] at 2 (“This honorable
court should … hold[] [Defendants] liable

for our stolen

items.”)
Here, Plaintiff Agbasi must not only prove that the Iberia
employees removed the items with the requisite intent, but also
that the alleged theft occurred within the scope of employment.
Montreal Convention, Art. 22(5); see also Shah v. Kuwait Airways
4 The SDR amount was raised from the original 1,000 to 1,130 on December 30,
2009. See Inflation Adjustments To Liability Limits Governed by the Montreal
Convention Effective December 30, 2009, 74 Fed. Register 59017 (Nov. 16,
2009).

11

Corp., No. 09-4734, 2010 WL 2679960, at * 1 (2d Cir. Jul. 7,
2010) (holding that district courts evaluating a claim that theft
by airline employees precluded the operation of liability limits
under Article 22(2) must determine whether theft is considered an
act within the scope of employment).

Plaintiff has offered no

case law in support of her argument that Article 22(5) allows her
to escape the limitations of Article 22(2).

This Court, having

researched the issue on its own, notes that the Seventh Circuit
has not issued an opinion outlining what plaintiffs must prove in
order to be relieved of the limitations of Article 22(2).

Upon

review of our sister Circuits’ decisions, I find the method
employed in Shah, 2010 WL 2679960, at * 1, instructive.

There,

after the district court held that the liability limitations
applied, the Second Circuit remanded the case so the district
court could decide whether the laws of New York, the forum state,
or Kuwait, the law where the alleged theft occurred, applied in
determining the issue of whether an employee’s alleged theft
qualifies as intentional misconduct that could be imputed to the
air carrier under the Montreal Convention. Id. at *1-2.

The

parties in Shah briefed the forum law issues, and the district
court ultimately held that the law of forum state applied. See
Shah v. Kuwait Airways Corp., No. 08 Civ. 7371, 2012 WL 3055652
at *1 (S.D.N.Y. Jul. 26, 2012) (acknowledging that New York law
applied).
Here, neither party has asserted which substantive law
12

should apply to this question; therefore, this Court is entitled
to apply the laws of Illinois.

Mass. Bay Ins. Co. v. Vic Koenig

Leasing, Inc., 136 F.3d 1116, 1120 (7th Cir. 1998) (“Courts do
not worry about conflict of laws unless the parties disagree on
which state’s law applies.” (internal citation omitted)).
Under Illinois law, courts look to the Restatement (Second)
of Agency (“Restatement”) to determine whether an employee’s
action took place outside the scope of his employment. See Rodman
v. CSX Intermodal, Inc., 405 Ill.App.3d 332, 335, 938 N.E.2d
1136, 1139 (Ill.App.Ct. 2010) (“[O]ur supreme court has
reaffirmed that Illinois courts look to the Second Restatement of
Agency (the Restatement) for guidance in determining whether an
employee’s acts are within the scope of employment.”).

Under the

Restatement, “[c]onduct of a servant is within the scope of
employment if, but only if: (a) it is of the kind he is employed
to perform; (b) it occurs substantially within the authorized
time and space limits; © it is actuated, at least in part, by a
purpose to serve the master.”
of Agency § 228 (1958)).

Id. (quoting Restatement (Second)

The Restatement also provides that

“[c]onduct of a servant is not within the scope of employment if
it is different in kind from that authorized, far beyond the
authorized time or space limits, or too little actuated by a
purpose to serve the master.” Id. (internal citations omitted).
Additionally, “[o]nly if no reasonable person could conclude from
the evidence that an employee was acting within the course of
13

employment should a court hold as a matter of law that the
employee was not so acting.” Id. at 336.
Plaintiff has failed to come forth with sufficient proof
that the Iberia employees who allegedly stole the items from her
baggage were acting within the scope of their employment.

No

reasonable juror could conclude that security forces at the
Nigerian airport are employed to steal items from passengers as
part of their service to Iberia.

Nor could a reasonable juror

find that theft of passengers’ personal items serves the goals of
Iberia, who presumably strives to offer customer service that
makes passengers want to become repeat customers.

Having failed

to produce evidence that theft of her personal items falls within
the scope of Iberia’s agents’ employment, the limitations on
liability provided in Article 22(2) will apply.
III.
For the foregoing reasons, Defendants’ motion for summary
judgment is denied in part and granted in part.

Dated: January 9, 2014
ENTER ORDER:

____________________________
Elaine E. Bucklo
United States District Judge

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