Fuondjing et al v. American Airlines, Inc.
Filing
24
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 4/12/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
FANGBENG FUONDJING, et al.
:
v.
:
Civil Action No. DKC 10-1169
:
AMERICAN AIRLINES, INC.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this case is
a motion to dismiss filed by Defendant American Airlines, Inc.
(ECF No. 20).
The issues are fully briefed and the court now
rules pursuant to Local Rule 105.6, no hearing being deemed
necessary.
For the reasons that follow, Defendant’s motion will
be granted.
I.
Background
The factual background of this case was set forth in a
prior memorandum opinion and need not be repeated here.
See
Fuondjing, et al. v. American Airlines, Inc., Civ. No. DKC 101169, 2011 U.S. Dist. LEXIS 5123 (D.Md. Jan. 19, 2011).
March
8,
2010,
Plaintiffs
Fangbeng
Fuondjing,
Nicole
On
Nwafor,
Amietee Fuondjing, Wafeu Fuondjing, Junior Nguti, and Ryan Nguti
filed suit against Defendant American Airlines, Inc., in the
Circuit Court for Montgomery County, Maryland.
(ECF No. 2).
The complaint alleged contract and tort claims under Maryland
law
arising
from
delay
in
international
air
transportation
provided by Defendant from Washington, DC, to Douala, Cameroon.
Defendant timely removed to this court (ECF No. 1) and, shortly
thereafter,
filed
Plaintiffs’
claims
a
were
motion
to
preempted
dismiss,
by
the
asserting
Convention
for
that
the
Unification of Certain Rules for International Carriage by Air,
May 28, 1999, reprinted in S. Treaty Doc. No. 106-45, 1999 WL
33292734 (2000) (“Montreal Convention”) (ECF No. 10).
On January 19, 2011, this court issued a memorandum opinion
and order granting Defendant’s motion.
(ECF Nos. 14, 15).
The
court found that Plaintiffs’ state law claims were preempted by
the Montreal Convention, but granted leave for Plaintiffs to
file an amended complaint asserting claims under the treaty.
to damages, the court cautioned:
Plaintiffs may assert in their amended
complaint
that
American’s
conduct
was
intentional – and, therefore, that the
liability
limits
of
the
[Montreal]
Convention do not apply – but they may not
raise claims for punitive or other damages
related to non-physical injury.
As noted
above, Article 29 stipulates that “any
action for damages, however founded, . . .
can
only
be
brought
subject
to
the
conditions and . . . limits of liability as
are set out in this Convention,” and “[i]n
any such action, punitive, exemplary or any
other non-compensatory damages shall not be
recoverable.”
(ECF No. 14, at 19-20).
2
As
Plaintiffs filed their amended complaint on February 22,
2011.
that
(ECF No. 19).
only
claims
Despite the court’s explicit instruction
under
the
Montreal
Convention
could
be
asserted, Plaintiffs have failed to plead a cause of action
under the treaty.
Instead, they attempt to revive previously
dismissed state law counts for breach of contract, negligence,
negligent
misrepresentation,
and
fraudulent
misrepresentation;
to raise new federal claims of racial and/or national origin
discrimination under 42 U.S.C. § 1981 and the Federal Aviation
Act
of
1958;
and
to
reassert
their
discredited
claims
for
punitive and compensatory damages.
On March 8, Defendant filed the pending motion to dismiss,
again
arguing
that
Montreal Convention.
II.
Plaintiffs’
claims
are
preempted
by
the
(ECF No. 20).
Standard of Review
The purpose of a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6)
is
to
test
the
sufficiency
of
the
plaintiff’s
complaint.
See Edwards v. City of Goldsboro, 178 F.3d 231, 243
(4th
1999).
Cir.
Except
in
certain
specified
cases,
a
plaintiff’s complaint need only satisfy the “simplified pleading
standard” of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S.
506, 513 (2002), which requires a “short and plain statement of
the
claim
showing
Fed.R.Civ.P.
that
8(a)(2).
the
pleader
is
Nevertheless,
3
entitled
“Rule
to
relief,”
8(a)(2)
still
requires
a
‘showing,’
rather
entitlement to relief.”
544, 555 n. 3 (2007).
than
a
blanket
assertion,
of
Bell Atl. Corp. v. Twombly, 550 U.S.
That showing must consist of more than “a
formulaic recitation of the elements of a cause of action” or
“naked
assertion[s]
devoid
of
further
factual
enhancement.”
Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949
(2009) (internal citations omitted).
In its determination, the court must consider all well-pled
allegations in a complaint as true, Albright v. Oliver, 510 U.S.
266, 268 (1994), and must construe all factual allegations in
the light most favorable to the plaintiff.
See Harrison v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th
Cir.
1993)).
The
court
need
not,
however,
accept
unsupported legal allegations, Revene v. Charles County Comm’rs,
882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as
factual allegations, Iqbal, 129 S.Ct. at 1950, or conclusory
factual allegations devoid of any reference to actual events,
United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir.
1979).
See also Francis v. Giacomelli, 588 F.3d 186, 193 (4th
Cir. 2009).
“[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the
complaint has alleged, but it has not ‘show[n] . . . that the
pleader
is
entitled
to
relief.’”
4
Iqbal,
129
S.Ct.
at
1950
(quoting Fed.R.Civ.P. 8(a)(2)).
Thus, “[d]etermining whether a
complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.”
Id.
III. Analysis
As the court explained in its prior memorandum opinion:
[T]he
Montreal
Convention
prescribes
liability for three categories of damages
arising from the international carriage of
passengers, baggage, or cargo by airlines.
Article 17 of the Convention establishes
carrier liability for death or bodily injury
of a passenger or the destruction, loss of,
or damage to baggage occurring on board a
flight or in the process of embarking or
disembarking; Article 18 provides for damage
to cargo, subject to certain exclusions; and
Article 19 applies to claims for damages
occasioned by delay in the carriage of
passengers, baggage, or cargo. See Weiss v.
El Al Israel Airlines, Ltd., 433 F.Supp.2d
361, 365 (S.D.N.Y. 2006).
As
relevant
to
the
instant
case,
Article 22 of the Convention limits airline
liability in relation to delay in the
carriage of passengers, baggage, or cargo.
Specifically,
it
limits
liability
for
damages caused by delay in the carriage of
passengers to 4,150 Special Drawing Rights
(“SDR”) and damages caused by delay in the
carriage of baggage to 1,000 SDR per
passenger, unless the passenger declares a
higher value.
See Montreal Convention,
Art., 22(1) and (2).
The Convention also
contains an exclusivity provision, which
sets forth the governing conditions and
liability limits of any case falling within
its scope:
5
In 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.
In any
such action, punitive, exemplary or any
other non-compensatory damages shall
not be recoverable.
Id. at Art. 29.
(ECF
No.
14,
at
8-9)
(footnote
omitted).
In
granting
Defendant’s initial motion to dismiss, the court determined that
“Plaintiffs’ claims, which arise from a four-day delay in their
arrival to Cameroon, fall squarely within the substantive scope
of Article 19.”
(Id. at 15).
In their amended complaint, Plaintiffs present essentially
the same facts as in the original, but alter certain language in
an attempt to bypass the liability limitations of the Montreal
Convention.
Whereas the original complaint sounded in delay,
the amended version asserts that Plaintiffs were “bumped” from
the first flight in their itinerary, which resulted in “nonperformance”
of
their
contract.
(ECF
No.
19,
¶¶
10,
46).
Plaintiffs state in their opposition papers that “bumping claims
[are] properly understood not as claims for delay, but as claims
for
complete
nonperformance
of
6
the
contract
between
the
passenger and the airline.”
argue
that
amended
the
state
complaint
are
(ECF No. 21, at 10).
and
federal
claims
not
subject
to
Thus, they
asserted
preemption
in
under
their
the
Montreal Convention.
The court expressly addressed this argument in its initial
memorandum
opinion,
conceivable
argument
observing
in
Plaintiffs
a
footnote
could
have
that
raised”
“the
only
for
their
claims to fall outside the scope of the Montreal Convention was
that
“American’s
conduct
constituted
nonperformance
of
the
contract, rather than delay, and therefore was not governed by
Article 19 of the Convention.”
(Id. at 16-17 n. 6).
While
Plaintiffs failed to make this argument in their papers opposing
Defendant’s initial motion to dismiss, the court explained that
“even if they had, such an argument would have been unavailing”:
Courts finding that the Convention does not
apply because there was nonperformance,
rather than delay, have considered facts in
which the airline “simply refused to fly
[the plaintiffs], without offering alternate
transportation.”
[In re Nigeria Flights
Contract Litigation, 520 F.Supp.2d 447, 454
(E.D.N.Y.
2007)];
see
also
Nankin
v.
Continental Airlines, No. 09-07851, 2010 WL
342632, at *7 (C.D.Cal. Jan. 29, 2010)
(nonperformance where airline “refused to
perform the contract”); Weiss, 433 F.Supp.2d
at 366 (nonperformance where the plaintiffs
“never
left
the
airport”).
Here,
Plaintiffs’ alleged damages stem from the
fact that their arrival in Cameroon was
delayed past the date of the memorial
services they hoped to attend. See KamanouGoune v. Swiss International Airlines, No.
7
08 Civ. 7153 (SCR)(GAY), 2009 WL 874600, at
*4 (S.D.N.Y. Mar. 27, 2009) (“Courts have
construed nonperformance claims as sounding
in delay where plaintiff was initially
refused
boarding
but
the
defendant
ultimately transported plaintiff on a later
flight.”).
(Id.).
Here, the critical fact relevant to the preemption issue is
that Defendant did ultimately transport Plaintiffs to Cameroon,
albeit later than Plaintiffs had planned.
Thus, the instant
case is unlike cases cited by Plaintiffs, such as Wolgel v.
Mexicana Airlines, 821 F.2d 442, 445 (7th
Cir. 1987),
In re
Nigeria, 520 F.Supp.2d at 455, and Weiss, 433 F.Supp.2d at 369,
where passengers “bumped” from their flights were offered no
alternative accommodations by the airline.
case
that
scheduled
Plaintiffs
outgoing
were
flight
“bumped”
to
While it may be the
from
another
their
originally
flight,
departing
approximately two hours later, that event, in and of itself,
does not take their claims outside the scope of the Montreal
Convention.
Rather, it is the failure to provide alternative
transportation that gives rise to nonperformance of the contract
such
that
triggered.
the
exclusivity
clause
of
the
Convention
is
not
Where a plaintiff asserts total nonperformance of
the contract, courts must “scrutinize the facts to determine
whether the claim, however founded, actually arose out of a
delay in transportation.”
Kamanou-Goune, 2009 WL 874600, at *4.
8
In doing so here, it is clear that Plaintiffs’ claims arise from
delay, not nonperformance.
Accordingly, their exclusive remedy,
as the court explained in its prior opinion, is under Article 19
of the Montreal Convention.
Assuming,
arguendo,
that
Plaintiffs’
federal
claims
of
racial and/or national origin discrimination are not subject to
preemption, the amended complaint nevertheless fails to state a
claim upon which relief may be granted.
Plaintiffs appear to
argue that the rescheduling of the first leg of their itinerary,
approximately
four
and
one-half
months
in
advance,
from
a
departure time of 1:55 p.m. to 4:00 p.m., was motivated by a
discriminatory animus toward them based on their race and/or
national origin.
They seem to acknowledge that this alleged
discrimination occurred, sight unseen, through a communication
between Defendant and their travel agent.
(ECF No. 19, ¶ 10).
Nevertheless, Plaintiffs assert, Defendant “should have known
that the bumping would make it highly improbable that the[ir]
arrival in Cameroon would be timely and that [Plaintiffs] were
discriminated [against] on the basis of race and or national
origin.”
(Id. at ¶ 32).
Section
1981
provides,
in
pertinent
part,
that
“[a]ll
persons within the jurisdiction of the United States shall have
the same right in every State and Territory to make and enforce
contracts . . . as is enjoyed by white citizens[.]”
9
42 U.S.C. §
1981(a).
The statute broadly defines the term “make and enforce
contracts”
as
“the
making,
performance,
modification,
and
termination of contracts, and the enjoyment of all benefits,
privileges,
terms,
relationship.”
under
§
and
conditions
42 U.S.C. § 1981(b).
1981
discriminatory
“must
be
actions
founded
that
of
the
contractual
Thus, a cause of action
on
affect
purposeful,
at
contractual aspects listed in § 1981(b).”
least
racially
one
of
the
Spriggs v. Diamond
Auto Glass, 165 F.3d 1015, 1018 (4th Cir. 1999).
To state a
cause of action under § 1981, a plaintiff must show that: “(1)
he or she is a member of a racial minority; (2) the defendant
intended
to
discriminate
on
the
basis
of
race;
and
(3)
the
discrimination concerned one or more of the activities protected
by the statute.”
Baltimore-Clark v. Kinko’s Inc., 270 F.Supp.2d
695, 699 (D.Md. 2003) (citing Buchanan v. Consolidated Stores
Corp., 125 F.Supp.2d 730, 734 (D.Md. 2001)).
Here, it is undisputed that Plaintiffs, “as black persons,
are members of a protected class.”
(ECF No. 19, ¶ 30).
Beyond
that, however, the amended complaint is utterly devoid of any
allegation
giving
rise
to
even
a
remote
inference
that
the
rescheduling of Plaintiffs’ flight was based on discriminatory
animus.
Indeed, it is unclear how Defendant could have been
aware of Plaintiffs’ protected status at the time the flight was
rescheduled.
In sum, Plaintiffs’ bald assertions of racial and
10
national origin discrimination are “nothing more than the sort
of
unadorned
allegations
Iqbal are directed.”
of
wrongdoing
to
which
Francis, 588 F.3d at 195-96.
Twombly
and
Accordingly,
their § 1981 claim cannot be sustained.
Plaintiffs have also failed to state a claim under the
Federal
Aviation
repealed long ago.
Act,
the
relevant
provisions
of
which
were
As the United States District Court for the
Eastern District of New York explained in Puckett v. Northwest
Airlines, Inc., 131 F.Supp.2d 379, 383 (E.D.N.Y. 2001):
Before Congress repealed it on January
1, 1983, § 404(b) of the Federal Aviation
Act, then codified at 49 U.S.C. app. §
1374(b), prohibited, in part, “. . .
subject[ing] any particular person, port,
locality, or description of traffic in air
transportation to any unjust discrimination
or any undue or unreasonable prejudice or
disadvantage in any respect whatsoever.”
The Airline Deregulation Act, Pub.L. 95-504,
92 Stat 1705, repealed all of § 404(b)
except
that
the
section
required
air
carriers to provide “safe and adequate
service.”
49 U.S.C. app. § 1551(a)(2)(B)
(recodified at 49 U.S.C. § 41702). As Judge
Gleeson of this court has previously held, a
claim for discrimination under the Federal
Aviation Act is no longer available and thus
a private right of action may not lie to
enforce a non-existent statute.
Fields v.
BWIA Int’l Airways, Ltd., No. 99 CV 2493,
2000 WL 1091129, at *4 (E.D.N.Y. July 7,
2000).
Plaintiffs’ claim in this regard fails for the same reason.1
1
In opposing Defendant’s motion to dismiss the amended
complaint, Plaintiffs reiterate several unsuccessful arguments
11
IV.
Conclusion
For the foregoing reasons, Defendant’s motion to dismiss
will be granted.
A separate order will follow.2
________/s/_________________
DEBORAH K. CHASANOW
United States District Judge
they raised in their papers opposing the initial motion to
dismiss, i.e., that “the Defendant did not take reasonable
measures to avoid damage,” that “[t]he underlying purpose of the
Montreal Convention was undermined by the Defendant,” and that
the “delay in reaching their [destination] constituted willful
misconduct.” (ECF No. 21, at 13-14). The court addressed these
arguments in its prior memorandum, finding them to be based on a
misunderstanding of the relevant law. Those findings apply with
equal force here.
2
Plaintiffs were alerted to the only viable claims that
could be brought under the Convention, but have chosen instead
to replead the rejected claims along with others that fail. The
only mention in their opposition memorandum of possible
additional amendment concerns the status of the minors.
They
have not sought leave to amend to plead any viable claim.
Accordingly, this dismissal is with prejudice.
12
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