Nwokeji v. Arik Air et al

Filing 71

Judge Mark L. Wolf: ORDER entered granting 42 Motion for Summary Judgment; granting 43 Motion for Summary Judgment; denying 59 Motion to Strike ; adopting Report and Recommendations re 70 Report and Recommendations. (Bono, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ANTHONY NWOKEJI,

Plaintiff,
V.

C.A. No. 15-10802-MLW

ARIK AIR, AMERICAN AIRLINES,
Defendants.

MEMORANDUM AND ORDER

WOLF, D.J.

September 20, 2017

Plaintiff Anthony Nwokeji brought claims against American
Airlines ("American") and Arik Air ("Arik") for breach of contract

and intentional and negligent infliction of emotional distress

arising from his round-trip flight between Boston, Massachusetts
and Lagos, Nigeria, First, he claims that defendants breached their
contract with him when they caused his luggage to be delayed 19

days and damaged when it finally arrived in Lagos. Second, he

alleges

that

defendants

breached

the

contract

again,

and

intentionally or negligently inflicted emotional distress, when

they delayed his return flight to Boston, requiring him to wait in
"unbearable" and unsanitary conditions at the Lagos airport and to
miss his connection in New York.

The court referred the case to Magistrate Judge Jennifer Boal

for

pretrial

purposes

and

a

Report

and

Recommendation

on

dispositive motions. On January 30, 2017, the defendants filed

motions for summary judgment. In addition, American moved to strike

paragraphs 14, 19, and 21 of Nwokeji's affidavit and statements of
fact that rely on those paragraphs. American argued that the
statements clearly contradicted Nwokeji's deposition testimony and
should

be

disregarded

for

purposes

of

summary

judgment.

See

Colantuoni v. Alfred Galcaqni & Sons, Inc., 44 F.3d 1, 4-5 (1st
Cir. 1994).

After

a

hearing,

the

Magistrate

Judge

issued

a

report

recommending that the court allow the motions for summary judgment.
First, she concluded that the motion to strike should be allowed

in part and denied in part. In particular, she found that Nwokeji's
deposition testimony contradicted statements in his affidavit that
he communicated with American more than once regarding his delayed

bags after he arrived in Nigeria. She found, however, that the
other challenged

statements in

Nwokeji's affidavit

were

not

clearly contradicted in his deposition and, therefore, considered
them in deciding the motions for summary judgment.

Second, she recommended that the motions for summary judgment
be allowed. She found that to the extent that Nwokeji's claims

rely on state law, they are preempted by the Convention for
Unification of Certain Rules Relating to International Carriage by

Air, done at Montreal on May 28, 1999, ICAO Doc. 9740, reprinted
in S. Treaty Doc. No. 106-45, 1999 WL 33292734 (2000) (Treaty)
(the "Montreal Convention") because they allege damage to baggage

and

unreasonable

delays

during

"international

carriage,"

as

defined in Article 1 of the treaty. Such claims are within the

scope of Articles 17 and 19 of the treaty and are, therefore,

preempted pursuant to Article 29, which expressly "preempts the
remedies

of a

signatory's domestic law,

whether

or

not the

application of the Convention will result in recovery in a
particular case." R&R at 14-20 (quoting Gustafson v. Am. Airlines,
Inc., 658 F. Supp. 2d 276, 280 (D. Mass. 2009)).

The Magistrate Judge found that even if Nwokeji's claims were

properly brought under the Montreal Convention, no material facts
would be in genuine dispute. First, Nwokeji did not notify American

of any damage to his baggage within seven days of the date he
received it and, therefore. Article 31 of the Montreal Convention
bars count 1. Second, Arik took all reasonable measures to minimize

the delay of Nwokeji's flight from Lagos to Boston and avoid any

resulting harm to Nwokeji—including by providing him meals and
hotel

accommodations

during

the

delay

and

offering

him

rescheduling, cancellation with a full refund, or a 50 percent
discount on future travel. Therefore, no reasonable jury could

find for Nwokeji on count 2. Third, Nwokeji did not suffer physical

injury. Therefore, he cannot, under the Montreal Convention,
recover the emotional distress damages sought in counts 3 and 4.

Accordingly, the Magistrate Judge concluded that there are no

genuine disputes of material fact that would entitle a reasonable
jury to find the defendants liable. See Fed. R. Civ. P. 56(a).
The

time

Recommendation

period
has

for

expired.

objections
No

to

the

objections

have

Report
been

and

filed.

Therefore, the parties are not entitled to review of the Report
and Recommendation. Borden v. Sec'y of Health & Human Servs., 836

F. 2d 4, 6 (1st Cir. 1987); Thomas v. Arn, 474 U.S. 140, 149-50

(1985). In any event, the court has reviewed the Magistrate Judge's

reasoning and finds it to be thorough, thoughtful, and persuasive.
Therefore, the Report and Recommendation is being adopted.
In view of the foregoing, it is hereby ORDERED that:

1.

The Magistrate Judge's Report and Recommendation (Docket

No. 70) is ADOPTED and INCORPORATED pursuant to 28 U.S.C. §636.
2.

American's Motion to Strike (Docket No. 59) is ALLOWED

in part and DENIED in part as described Report and Recommendation
at 2-4.

3.

For the reasons stated in the Report and Recommendation,

the defendants' Motions for Summary Judgment (Docket Nos. 42 & 43)
are ALLOWED. Judgment shall enter for defendants.

UNITED STATES DISTRICT JUDGE

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 1 of 27

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS

ANTHONY NWOKEJI,
Plaintiff,
Civil Action No. 1:15-10802-MLW
V.

ARIK AIR,

aL,
Defendants.

REPORT AND RECOMMENDATION ON DEFENDANTS'
MOTIONS FOR SUMMARY JUDGMENT AND AMERICAN'S MOTION TO STRIKE

[Docket Nos. 42,43,59]
August 17, 2017
BOAL,M.J.

Plaintiff Anthony Nwokeji asserts claims for breach ofcontract as well as intentional and

negligent infliction of emotional distress against defendants Arik Air("Ank")and American
Airlines("American")' as a result of a delayed and damaged bag and a delayed flight. The
defendants have moved for summary judgment. Docket Nos.42,43. American has also moved

to strike certain portions ofthe summary judgment record. Docket No. 59. For the following
reasons, the Court recommends^ that the District Judge assigned to this case grant the motions

for summaryjudgment and grant in part and deny in part American's motion to strike.

'Nwokeji named American Airlines as a defendant. Defendant American Airlines asserts that
its proper name is American Airlines, Inc. In any event, in this opinion, the Court refers to this
defendant as "American."

^ On June 7, 2016, the District Court referred this case to the undersigned for full pretrial

proceedings, including a report and recommendation on dispositive motions. Docket No. 19.

Case l:15-cv-10802-I\/lLW Document 70 Filed 08/17/17 Page 2 of 27

I.

PROCEDURAL BACKGROUND

On January 30,2017, Arik and American filed motions for summary judgment. Docket
Nos. 42,43. Nwokeji opposed both motions for summaryjudgment. Docket Nos. 49,50,56,
57. The defendants each filed a reply brief on March 7,2017. Docket Nos. 51, 52.

Nwokeji initially did not respond to the defendants' statements offacts. This Court
ordered him to do so. Docket No. 55, and Nwokeji in turn filed both a response to each
defendant's statement of facts as well as his own statement offacts. Docket Nos. 56-1, 56-2, 56-

3. Both defendants responded to Nwokeji's statement offacts. Docket Nos. 58,69. In addition,
American filed a motion to strike portions of Nwokeji's affidavit, statement offacts and

responses to American's own statement offacts. Docket No. 59. Nwokeji did not oppose the
motion to strike. The Court heard oral argument on July 27,2017.
XL

FACTUAL BACKGROUND
A.

Scone Of The Record

In order to determine which materials are properly before the Court for purposes of

deciding the summaryjudgment motions,the Court must first decide American s motion to
strike. For the following reasons, this Court grants in part and denies in part the motion.
American moves to strike paragraphs 14, 19 and 21 of Nwokeji's affidavit(Docket No.

57-1) as contradictory to his deposition testimony. Docket No. 59 at 6-8. American also moves
to strike Nwokeji's statements offact that rely on these paragraphs in the affidavit. Id at 3-4.
"When an interested witness has given clear answers to unambiguous questions, he cannot create

a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does

not give a satisfactory explanation of why the testimony is changed. Colantuoni v. Alfred
Galcagui & Sons. Inc.. 44 F.3d 1, 4-5 (1st Cir. 1994)(citations omitted). "The purpose ofthis

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 3 of 27

sham affidavit rule is to protect the procedural integrity ofsummaryjudgment." Mahan v. Bos.
Water & Sewer Common. 179 F.R.D. 49, 53(D. Mass. 1998). "If a party simply could offer a

contradictory, post-deposition affidavit to defeat summary judgment without providing a

'satisfactory explanation' for the contradiction, the purpose ofsummary judgment would be
defeated." Id (citing Perma Research & Dev. Co. v. Singer Co.,410 F.2d 572,578(2d Cir.
1969)).

A party moving to strike an affidavit must specify the objectionable portions ofthe
affidavit and the specific grounds for objection. Facev v. Dickhaut 91 F. Supp. 3d 12,19(D.

Mass. 2014). The Court will disregard only those portions ofthe affidavit that are inadmissible
and consider the rest of it. Id

This Court has reviewed the subject documents and agrees that paragraph 14 of

Nwokeji's affidavit is contradictory to his deposition testimony. In paragraph 14, Nwokeji states
that"[o]n each trip to the Airport, Defendants continued to tell me to come the subsequent

following days." Docket No. 57-1 at 2. At his deposition, Nwokeji testified that upon arriving

in Lagos, Nigeria, he called American Airlines. Docket No.47-2 at 21-22. Otherwise, his only
communications regarding the delayed bag were with individuals not employed by the
defendants. Id Rather, they worked for British Airways("BA")or for Lagos' airport warehouse
and were unaffiliated with an airline. Id His deposition testimony therefore contradicts the
affidavit's statement that Nwokeji spoke to American or Arik employees every day.

Accordingly,the Court will not consider paragraph 14 in deciding the summary judgment

motions. Because paragraph 11 of Nwokeji's statement offacts. Docket No. 56-3 at 2,relies on

paragraph 14 of his affidavit. Docket No. 57-1 at 2, American moves to strike paragraph 11. For
the above stated reasons, the Court will not consider that paragraph as well.

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 4 of 27

Paragraphs 19 and 21 of the affidavit, Docket No. 57-1 at 2, on the contrary, do not

clearly contradict Nwokeji's deposition testimony and/or interrogatory responses. In paragraph
19, Nwokeji states that on July 18, 2014, he "decided to go back to Lagos in search of[his]

luggage." Docket No. 57-1 at 2. At his deposition, Nwokeji testified that he returned to Lagos
after receiving a text message from BA that his luggage had arrived. Docket No.47-2 at 25.
The difference between returning to Lagos to search for his luggage and returning in response to

a text message that the luggage was found is not so contradictory as to mandate its exclusion
from the record. Similarly, in paragraph 21, Nwokeji states that"most" ofthe items in his

luggage were missing. Docket No. 57-1 at 2. Despite being vague, such statements do not
necessarily contradict testimony that the bag weighed fifty pounds. Docket No.47-2 at 16, or an

interrogatory response delineating which items were allegedly missing. Docket No. 59-5 at 2-3.
Accordingly, the Court will consider paragraphs 19 and 21 of Nwokeji's affidavit. For these
reasons, the Court will also consider paragraph 16 of Nwokeji's statement offacts. Docket No.
56-3 at 3, that is based on paragraph 19 ofthe affidavit.

In addition, American moves to strike paragraph 8 of Nwokeji's statement offacts which

provides'"But he was asked to come back the next [sic] Ank flight to Lagos,for his luggage.
Docket No. 56-3 at 2. In support of paragraph 8, Nwokeji cites to his deposition testimony that
describes conversations with BA regarding the location of his missing bag. Docket No.47-2 at

21. The Court agrees that paragraph 8 is not supported by the cited portions ofthe record in
violation of Local Rule 56.1. It should therefore not be considered in deciding the motions for
summary judgment.

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 5 of 27

To the extent Nwokeji's own statements and responses to American's statement of facts
do not otherwise comply with Local Rule 56.1, the Court addresses such arguments in
connection with the recitation of the facts below.

B.

Facts^

On May 22,2014, Nwokeji purchased a single round trip ticket for flights on American
Airlines and Arik Air from Adam Travel, with the following scheduled travel itinerary:'^
Carriage

Date

Jime 26,2014

Flight No.

Boston (Logan Airport) to American flight AA 1165

New York (JFK)^
June 26, 2014

August 3,2014
August 4,2014

New York (JFK) to Lagos Arik flight W3 108
(Murtala Muhammad Airport)
Arik flight W3 107
Lagos to New York
American flight AA 84
New York to Boston
1. Denartme Lee And Delaved Baggage

On June 26, 2014, Nwokeji checked two bags at the American Airlines counter at

Boston's Logan Airport for flight AA 1165.^ That flight left Boston at 6.20 a.m. and arrived at

^ Because this case is before the Court on a motion for summaryjudgment, the Court sets out any

disputed facts in the light most favorable to Nwokeji, the non-moving party.

DeNovellis v.

Shalala, 124 F.3d 298,302(1st Cir. 1997). The facts are taken from American Airlines Statement

of Material Facts in Support of its Motion for Summary Judgment(Docket No. 45)("American

SOF"); Plaintiffs Objections and Responses to Defendant American Airlines' Statements of
Material Facts(Docket No.56-1)("American PL Resp."); Defendant Arik Air Limited's Rule 56.1
Statement of Material Facts(Docket No. 47)("Arik SOF"); Plaintiffs Objections and Responses
to Defendant Arik Air's Statements of Material Facts (Docket No. 56-2)("Ank PI. Resp. );

Plaintiff Anthony Nwokeji's Statements of Material Facts (Docket No. 56-3) ("PI. SOF");
Defendant American Airlines,Inc.'s Response to Anthony Nwokeji's Statements ofMaterial Facts

(Docket No. 58)("American Resp."); and Defendant Arik Air Limited's Response to Plaintiff
Anthony Nwokeji's Statements Material Facts(Docket No.69)("Ank Resp.').
^ Arik SOF ^ 2; Arik PI. Resp. H 2.

^ Arik's statement offact asserts that the first leg of Nwokeji's journey was from Boston Logan

Airport to New York"MK Airport", Arik SOF H 2, which appears to be a typographical error.
See American SOF ^ 9; American PI. Resp. H 9.
^ Arik SOF ^ 3; Arik PI. Resp.^ 3.

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 6 of 27

New York's JFK Airport at 7:30 a.m7 American does not fly to Nigeria.^ American also is not
party to an interline agreement with Arik or any other agreement regarding the transfer or

carriage of baggage from one carrier to another.^ As a result, at JFK,Nwokeji was required to
claim the bags he checked on flight AA 1165 and then re-check those bags with Arik prior to
boarding Arik flight W3 108.^°

Upon arrival in New York, Nwokeji went to retrieve his luggage at the baggage carousel,
but could only find one of his two checked bags.^' As a result, Nwokeji spoke with Monica, a

person working for or on behalf of American. Nwokeji did not speak with any Arik employee
about his missing bag.

Monica informed Nwokeji that his second bag was found in Boston.

She provided Nwokeji with her contact information and advised him that he should continue on
to Lagos.

'
American SOF ^ 9; American PI. Resp. 9.

^ American SOF ^ 69; American PI. Resp. H 69. Nwokeji does not dispute this fact but claims
that it is immaterial.

^ Arik SOF ^ 5. Nwokeji disputes this fact because Monica "promis[ed] to forward the delayed

bag with the next available flight in Lagos." Arik PL Resp.^ 5. However,this statement is not
responsive to the existence of an interline agreement between the parties.
American SOF ^15; American PI. Resp.^15.
'' Arik SOF ^ 7; Arik PI. Resp.^ 7.

American SOF ^ 16; American PI. Resp.^ 16. Arik SOF H 8; Arik PI. Resp.^ 8.

Arik SOF H 14; Arik PI. Resp. H 14. Nwokeji disputes this fact as being unsupported by his
deposition testimony. However, Nwokeji testified at his deposition that he did not communicate
with anyone at JFK except for Monica. Docket No.47-2 at 20-21.
Arik SOF H 10; Arik PI. Resp. H 10.
Arik SOF ^ 11; Arik PI. Resp.^ 11.

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 7 of 27

Nwokeji gave Monica his contact information in Lagos and agreed to pick up his bag
there. He did not fill out any forms, list what was in the missing bag or inform American that
his ultimate destination was in eastem Nigeria, which is a significant distance from Lagos.

American made arrangements with BA (with whom American has a baggage

agreement)'^ to forward Nwokeji's bag from New York to Lagos. The baggage transfer from
American to BA,which was marked urgent, was completed on June 27,2014.^°
Nwokeji checked only one bag with Arik for flight W3 108 and that bag arrived with him

at Murtala Muhammed International Airport("MMIA")in Lagos. The missing bag did not.^^

Nwokeji first asked an individual whom Nwokeji thought to be affiliated with or an employee of
Arik about the status of his missing bag.^^ That person informed him that the bag did not amve

with flight W3 108, but Nwokeji should check back later when the next Arik flight arrived from

New York.^"^ After speaking with this individual, Nwokeji contacted Monica by telephone.^^
She informed him that American forwarded his bag to Lagos via a BA flight and provided

Nwokeji with the flight number,scheduled time of arrival and baggage claim number.^^ After

American SOF U 17; American PI. Resp. H 17.

American SOF Iffl 18, 20; American PI. Resp. Iffl 18, 20. Nwokeji disputes these statements by

stating that Monica did not request the information and that American did not provide any forms.
However,these statements are not properly supported pursuant to Local Rule 56.1.
American SOF ^ 27; American PI. Resp.^ 27.
Arik SOF H 12; Arik PI. Resp.^ 12.
20 American SOF 31, 32; American PI. Resp.^31, 32.
21 Arik SOF 15-16; Arik PI. Resp. Vi 15-16.
22 Arik SOF ^ 16; Arik PI. Resp.^ 16.

23 American SOF ^ 25; American PI. Resp.^ 25 (citing Docket No.47-2 at 21).

24 American SOF ^ 25; American PI. Resp.^ 25 (citing Docket No.47-2 at 21).
23 American SOF ^ 26; American PI. Resp. i| 26.
26 American SOF ^ 26; American PI. Resp.^ 26.

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 8 of 27

this conversation with Monica,for the rest of his stay in Nigeria, the only air carrier Nwokeji

spoke with about his delayed bag was BA.^^
Nwokeji waited at the Lagos airport for his bag to arrive, but when the BA flight landed,

his bag was not on it.^^ Nwokeji gave BA his name and contact number. BA informed him
that they would "log in" the arrival of his bag in Lagos. Instead of travelling to eastern

Nigeria, he made the decision to wait for his bag at a hotel in Lagos and take a taxi daily from his
hotel to the airport to check for it.^' After spending 14 days at the hotel, Nwokeji left Lagos for
eastern Nigeria.

Two to three days later, Nwokeji received a text message from BA that his bag had

arrived in Lagos, and so he traveled back to Lagos to claim the bag.^^ He collected his bag from
a warehouse at MMIA on July 19, 2014.^"^ Nwokeji alleges that it was damaged and items were

missing. He informed individuals working at the warehouse ofthe missing items. These
individuals were unassociated with any air carrier. They told Nwokeji that he would have to

consult the airline.^^ After collecting his bag from the warehouse, Nwokeji did not raise any

American SOF ^ 33; American PI. Resp.^ 33.
American SOF ^ 34; American PI. Resp.^ 34.
29 Arik SOF H 23; Arik PI. Resp. H 23.

Arik SOF i 23; Arik PI. Resp. 23.
American SOF H 37. In his response, Nwokeji claims that Arik Air and/or Monica of American
Airlines and/or BA told him each day that the bag would be on the next flight. American PI. Resp.

II 37. However, Nwokeji's deposition testimony does not support this response. ^Docket No.
47-2 at 21-22.

22 American SOF H 39; American PI. Resp. 1| 39.
22 American SOF 1|1| 42-43; American PI. Resp. 1|1j 42-43.

2"* American SOF ^ 45; American PI. Resp. H 45.
25 Arik SOF Iffl 29-30; Arik PI. Resp. Iffl 29-30.

2^ American SOF H 47. Nwokeji has not specifically responded to this statement and,therefore, it
is deemed admitted.

22 Id

2^ American SOF H 48; American PI. Resp. H 48.
8

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 9 of 27

issues regarding the bag with any air carrier until he returned to New York on August 5, 2014,
where he spoke in person with an American ticket agent. Other than the instant lawsuit,
American maintains that Nwokeji never filed a written missing items report or claim with

American.''® Nwokeji maintains that he filled out a lost baggage log with BA."'
Arik has no access to American's or BA's records and so could not check on the status of

Nwokeji's missing bag.''^ Nwokeji never submitted a notice of claim to Arik.''^ In fact,
Nwokeji's missing bag was never in the possession of nor handled by Arik.''''
2. Return Leg And Delaved Flight

On August 3, 2014,Nwokeji arrived at MMIA around 8:00 p.m. for Arik flight W3 107
which was scheduled to depart at 11:20 p.m."^ He went to an airport security checkpoint at

approximately 10:00 p.m. when he heard an announcement instructing flight W3 107 passengers
to head to the departure gate.''® He reached the departure gate waiting area at approximately

10:30 p.m.""^ Flight W3 107 did not board as scheduled and Nwokeji claims that he remained in
the waiting area from approximately 10:30 p.m. on August 3,2014 to 10.00 a.m. on August 4,
2014."^ Nwokeji described the waiting area as a "glass enclosure with [an] opening to go in the

Arik SOF132; Arik PI. Resp. H 32.
''® American SOF 64.

'" American PI. Resp.^64.

.

''^ Arik SOF T| 21. Nwokeji disputes paragraph 21 with statements that are nonresponsive and

deposition testimony that neither contradicts the fact nor supports his assertions. Ank PI. Resp. H
21.

''3 Arik SOF ^ 33. Nwokeji disputes paragraph 33,but his response does not address the statement
offact at issue and instead contains legal conclusions. Arik PI. Resp.^ 33.
Arik SOF H 35; Arik PI. Resp. H 35.
"3 Arik SOF U 36; Arik PI. Resp.^ 36.
Arik SOF H 37; Arik PI. Resp. H 37.

'''^ Arik SOF ^ 39. Nwokeji did not respond to paragraph 39 and so it is deemed admitted.
Arik SOF H 44; Arik PI. Resp. 1| 44.

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 10 of 27

plane" with a "few chairs," no stores, restaurants or windows and no air conditioning.

Nwokeji claims that the restroom on the lower level had urine and feces on the floor, no toilet

paper and no running water. Nwokeji claims also that the conditions led to verbal and physical
fighting between some passengers and Arik staff. Nwokeji did not personally discuss the
conditions ofthe waiting area with airport personnel because he claims "others were already

doing that."^^ He did not sustain bodily injury as a result ofthe experience. He also did not
see a doctor, therapist or any other medical professional or take medication for his alleged
emotional distress.^"*

Flight W3 107 was delayed due to an unforeseen fuel shortage with respect to Jet A-1
aviation fuel in Lagos. During the delay, Arik worked towards obtaining the fuel necessary for

the flight. At approximately 3:00 a.m. or 4:00 a.m., an individual who identified himself as the

night manager or supervisor arrived in the waiting area and informed passengers that the flight
was not at the gate and was delayed due to fuel issues. Nevertheless, Nwokeji states that he
58

remained in the waiting area overnight out of concern that he would miss his flight.

Arik SOF nil 43,45-46; Arik PI. Resp. HH 43,46.
50 Arik SOF H 47; Arik PI. Resp. 1j 47.

5' PL SOF n 33; American Resp. 1j 33; Arik Resp. 1| 33.
52 Arik SOF 1| 52; Arik PI. Resp. H 52.
55 Arik SOF n 65; Arik PI. Resp. 1| 65.
54 Arik SOF ^ 66; Arik PI. Resp. n 66.

55 Arik SOF ^ 69. Nwokeji disputes that the fuel shortage was "unforeseen" and cites to
"Credible Newspaper Article". However,the newspaper article appears to be dated February
2017, does not address fuel shortages that may have taken place in August 2014, and in any
event, is not admissible evidence. See United States v. Prvor,960 F.2d 1,3 (1st Cir. 1992).
5^ Arik SOF 1| 70. Nwokeji disputes paragraph 70, but his statement is not responsive and is not
supported by any evidence.
52 Arik SOF 1| 54; Arik PI. Resp. 1| 54.
58 Arik SOF 1| 50; Arik PI. Resp. 1| 50.
10

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 11 of 27

On the morning of August 4,2014, Arik provided Nwokeji and the other flight W3 107

passengers with hotel accommodations and food near MMIA.^^ While at the hotel, Nwokeji ate
lunch, took a shower and watched television.^® Later that day, Nwokeji returned to the airport
where he spoke with Arik about his connecting American flight from New York to Boston.

Arik told Nwokeji that he would need to "deal with American."^^

Flight W3 107 departed Lagos at 11:50 p.m. on August 4,2014.^^ As a result ofthe
delay, Arik provided passengers with a letter that offered:(1)a 50% discount on their next travel
with Arik, valid until August 2015;(2)no date change fees for those opting to reschedule their

carriage on flight W3 107; and(3)a full refund for those wishing to cancel their reservation
altogether.^ Nwokeji rejected Arik's offers because he thought they were insulting.

After landing at New York's JFK airport, Nwokeji missed his American flight back to

Boston. His ticket was only valid for the specified flight and date of travel.^"^ Neither Nwokeji
nor his travel agent notified American prior to the ticket's expiration that Nwokeji would not be
able to make the flight due to delays getting out of Nigeria.^® He purchased a new $270 ticket
for a later flight from New York to Boston.

59 Arik SOF155; Arik PI. Resp. H 55.

Arik SOF ^ 57; Arik PI. Resp. H 57.
Arik SOF ^ 59; Arik PI. Resp.^ 59. Docket No.47-2 at 41-42.
Arik SOF ^ 73; Arik PI. Resp.^ 73.
63 Arik SOF H 62; Arik PI. Resp.^ 62.
64 Arik SOF ^ 60; Arik PI. Resp.^ 60.
65 Arik SOF H 61; Arik PI. Resp. H 61.

66 PI. SOF H 37; American Resp. 11 37; Arik Resp. H 37.

62 American SOF H 67. Although Nwokeji disputes paragraph 67, his statement is
nonresponsive.

6® American SOF H 68. Although Nwokeji disputes paragraph 68, his statement is nonresponsive.
69 PI. SOF II39; American Resp. H 39; Arik Resp. 1| 39.
11

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 12 of 27

III.

STANDARD OF REVIEW

Summaryjudgment is appropriate "if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.

56(a). "A dispute is 'genuine' if the evidence about the fact is such that a reasonable jury could
resolve the point in the favor ofthe non-moving party." Sanchez v. Alvarado, 101 F.3d 223,227

(1st Cir. 1996)(quotations and citations omitted). A material fact is one which has "the potential
to affect the outcome of the suit under the applicable law." Id (quotations and citations
omitted).

The moving party bears the initial burden of establishing that there is no genuine issue of
material fact. See Celotex Com,v. Catrett. 477 U.S. 317,323(1986). Ifthat burden is met, the

opposing party can avoid summary judgment only by providing properly supported evidence of
disputed material facts that would require trial.

id at 324. "[T]he non-moving party'may

not rest upon mere allegation or denials of his pleading,'" but must set forth specific facts

showing that there is a genuine issue for trial. LeBlanc v. Great Am.Ins. Co.,6 F.3d 836, 841
(1st Cir. 1993)(quoting Anderson v. Libertv Lobbv,Inc., 477 U.S. 242,256(1986)).
The court must view the record in the light most favorable to the non-moving party and

indulge all reasonable inferences in that party's favor. ^O'Connor v. Steeves,994 F.2d 905,
907(1st Cir. 1993). However,"[a]s to any essential factual element of its claim on which the
nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient

evidence to generate a trialworthy issue warrants summaryjudgment to the moving party."
McRorv V. Snigel (In re Soigel). 260 F.3d 27, 31 (1st Cir. 2001)(citation omitted). "If, after

viewing the record in the non-moving party's favor, the Court determines that no genuine issue
of material fact exists and the moving party is entitled to judgment as a matter oflaw,summary

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judgment is appropriate." Walsh v. Town of Lakeville. 431 F. Supp. 2d 134,143(D. Mass.
2006).
IV.

DISCUSSION

Nwokeji brings state law claims against American and Arik for breach of contract as a

result of delayed and damaged baggage(Count 1); breach of contract arising from the return leg

of his trip(Count 2); and intentional and negligent infliction of emotional distress as a result of
the unsanitary MMIA waiting area(Counts 3 and 4). Amended Compl. 33-59. Although
*

70

Nwokeji asserts that the instant action is brought pursuant to the Warsaw Convention as

amended by the 1999 Montreal Convention, jd at ^128, he brings no claims pursuant to either
Convention.

In their summary judgment motions,the defendants contend that each count is preempted

by an international treaty, namely, the Montreal Convention. Docket Nos. 44,46,51,52.
Alternatively, Arik argues that even if Nwokeji had properly brought his claims under the

relevant provisions ofthe Montreal Convention rather than under state law,they would still fail.
Docket Nos. 46, 52. This Court agrees with both arguments for granting summaryjudgment.

The treaty is formally known as the Convention for the Unification of Certain Rules Relating
to International Transportation by Air, done at Warsaw on Oct. 12, 1949,49 Stat. 3000, T.S. 876
(1934)reprinted 1934 WL 29042(hereinafter "Warsaw Convention").
The treaty is formally known as the Convention for Unification of Certain Rules Relating to
International Carriage by Air, done at Montreal on May 28, 1999,ICAO Doc. 9740,reprinted in
S. Treaty Doc. No. 106-45, 1999 WL 33292734(2000)(Treaty)(hereinafter "Montreal
Convention").
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Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 14 of 27

A. The Montreal Convention Affords The Exclusive Remedy
1. Background

The Montreal Convention entered into force on November 4,2003 and succeeded the

Warsaw Convention.''^ The purpose of the Montreal Convention is as follows:
The Montreal Convention "was the product of a United Nations effort to reform
the Warsaw Convention 'so as to harmonize the hodgepodge ofsupplementary

amendments and intercarrier agreements of which the Warsaw Convention system

of liability consists.'"Somno Japan Insurance. Inc. v. Nippon Cargo Airlines Co.,
Ltd.. 522 F.3d 776, 780(7th Cir.2008)(quoting Ehrlich v. American Airlines,
Inc.. 360 F.3d 366, 371 n. 4(2nd Cir.2004)). The Montreal Convention, which

'Wifies and replaces" the Warsaw Convention, attempts to "balance the interests
of air carriers and potential plaintiffs." Id. at 789. It achieves this purpose by
limiting air carriers' potential liability to predictable, non-catastrophic damages
and also by preserving a plaintiffs right to recover its losses up to a certain
amount." Id at 776 & 780. The preamble expressly recognizes"'the importance

of ensuring protection ofthe interests of consumers in international carriage by air
and the need for equitable compensation based on the principle ofrestitution.'"
Id at 781 (quoting preamble).

Goodwin v. British Airwavs PLC.No.09-10463-MBB,2011 WL 3475420, at *3(D, Mass. Aug.
8, 2011).

Although the Montreal Convention is undeniably a new treaty, a number of the

provisions ofthe Montreal Convention are taken directly from the Warsaw Convention and the
many amendments thereto. Gustafson v. Am. Airlines. Inc., 658 F. Supp. 2d 276,282(D. Mass.

2009). In particular, courts have found the provisions of Articles 19,17 and 1(3)ofthe Montreal
Convention to be substantively similar to the corresponding articles in the Warsaw Convention.
See, e.g., Shabotinskv v. Deutsche Lufthansa AG,No. 16 C 4865,2017 WL 1134475, at *3 n.3

(N.D. 111. Mar. 27,2017)(Article 19); Jacob v. Korean Air Lines Co., No. 12-62384-CIV,2014
In his opposition memorandum,Nwokeji focuses on the Warsaw Convention.

Docket No.

56 at 5. However,the alleged incidents occurred between June 26,2014 and August 4,2014. Arik

SOF U 2; Arik PI. Resp. H 2. Accordingly, the Montreal Convention, rather than the Warsaw
Convention, applies to the instant dispute.
14

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 15 of 27

WL 243150, at *7(S.D. Fla. Jan. 13, 2014)(Article 17); Kruger v. United Air Lines. Inc.. No. C
06-04907 MHP,2007 WL 3232443, at *4(N.D. Gal. Nov. 1,2007)(Article 1(3)). In addition.
Article 29 of the Montreal Convention and Article 24, Section 1 ofthe Warsaw Convention

utilize substantively similar language and have "identical preemptive effect." Jacob, 2014 WL

243150, at *7(quoting TJgaz v. Am. Airlines. Inc., 576 F. Supp. 2d 1354, 1360(S.D. Fla. 2008)).
Moreover, courts interpreting Article 31 ofthe Montreal Convention have relied on cases

discussing Article 26 ofthe Warsaw Convention because "there is no meaningful difference
between" the two. UPS SuddIv Chain Sols.. Inc. v. Am. Airlines. Inc., 646 F. Supp. 2d 1011,

1014 n.l (N.D. 111. 2009)(citing Meteor AG v. Fed. Express Corp.. No.08 Civ. 3773,2009 WL
222329, at *3(S.D.N.Y. Jan. 30,2009)(intemal quotation marks omitted)). Therefore, case law

interpreting provisions ofthe Warsaw Convention applies to cases interpreting substantively
similar" provisions of the Montreal Convention. Gustafson,658 F. Supp. 2d at 282(collecting
cases).

The Montreal Convention governs international air carriage of passengers, baggage and

cargo. Eke v. Deutsche Lufthansa, No. 13-11099-GAO,2013 WL 12201891, at *7(D. Mass.
Oct. 2,2013). It defines "intemational carriage" as:

any carriage in which, according to the agreement between the parties, the place
ofdeparture and the place of destination, whether or not there be a break in the
carriage or a transshipment, are situated either within the territories oftwo State
Parties, or within the territory of a single State Party if there is an agreed stopping
place within the territory of another State, even if that State is not a State Party.
Carriage between two points within the territory of a single State Party without an
agreed stopping place within the territory of another State is not intemational
carriage for purposes ofthis Convention.

Montreal Convention, art. 1(2). The United States is a "State Party" under the Montreal
Convention. Gustafson,658 F. Supp. 2d at 286.

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Article 29 ofthe Montreal Convention provides that"any action for damages [in the

carriage of passengers, baggage and cargo], 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." Montreal Convention, art. 29. Thus, the
determinative issue is whether the Montreal Convention applies in a given situation. However,

the Montreal Convention preempts state law causes of action only "to the extent they fall within

its substantive scope." Bridgeman v. United ContT Holdings, Inc., 552 Fed. Appx. 294,296(5th

Cir. 2013)(citing El A1 Isr. Airlines Ltd. v. Tseng. 525 U.S. 155,172(1999)). If applicable, it

"preempts the remedies of a signatory's domestic law, whether or not the application ofthe
Convention will result in recovery in a particular case." Gustafson, 658 F. Supp. 2d at 280

(collecting cases). A passenger whose claim implicates, but is not compensable under the
Montreal Convention, has no recourse to an alternate remedy. See Tseng, 525 U.S. at 171-72.

The applicability of the Montreal Convention is a "question oflaw to be decided by the
court on the basis ofthe pertinent facts of each case." See Eke,2013 WL 12201891, at *11. "In

determining whether a claim is preempted because it falls within what the Supreme Court has
termed the 'substantive scope' ofthe treaty,[courts] are directed to look to the Convention's

liability provisions." King v. Am. Airlines. Inc., 284 F.3d 352,358(2d Cir. 2002)(citing Tseng,
525 U.S. at 171-72).
2. Application To Trios Involving Successive Carriers

"International carriage may involve multiple successive air carriers, even when a carrier

only provides carriage within a single country, so long as the carriage has been regarded by the
parties as a single operation, whether it had been agreed upon under the form of a single contract
or of a series of contracts." Lin Zhang v. Air China Ltd., 866 F. Supp. 2d 1162,1167(N.D. Cal.

16

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 17 of 27

2012)(internal quotation marks omitted);^Montreal Convention, art. 1(3).'^^ To determine
whether international travel involving successive carriers is undivided carriage "regarded by the

parties as a single operation", Montreal Convention, art. 1(3), courts focus on objective evidence,
rather than any subjective intent.

Robertson v. Am. Airlines, Inc., 277 F. Supp. 2d 91,98-

99,99 n.l 1 (D.D.C. 2003), affd,401 F.3d 499(D.C. Cir. 2005). Courts have found the
simultaneous issuance of tickets at one place sufficient to establish the "single operation"

required by Article 1(3) even where some legs of a trip are wholly domestic and/or on separate
airlines. Haldimann v. Delta Airlines. Inc.. 168 F.3d 1324, 1325-26(D.C. Cir. 1999)(collecting

cases). Another relevant fact is the length of a passenger's layover. ^Robertson,401 F.3d at
502-03.

Article 36 of the Montreal Convention governs the liability of successive carriers.

Montreal Convention, art. 36; see Gustafson,658 F. Supp. 2d at 285 (citation omitted). It states

that a passenger entitled to compensation can take action "only against the earner which

performed the carriage during which the accident or the delay occurred ...[unless], by express
agreement, the first carrier has assumed liability for the whole journey." Montreal Convention,
art. 36(2). Similarly,"[a]s regards baggage", a passenger"may take action against the carrier
which performed the carriage during which the destruction, loss, damage or delay took place."
Id. at art. 36(3).

Article 1(3)ofthe Montreal Convention provides that "[c]arriage to be performed by several
successive carriers is deemed,for the purposes of this Convention, to be one undivided carnage

if it has been regarded by the parties as a single operation, whether it had been agreed upon
under the form of a single contract or of a series ofcontracts, and it does not lose its intemational
character merely because one contract or a series of contracts is to be performed entirely within
the territory ofthe same State." Montreal Convention, art. 1(3).
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Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 18 of 27

Nwokeji's trip is subject to the Montreal Convention. His place of departure (Boston)

and place of ultimate destination(Boston) were both within the territory of a single state party
(the United States), with an agreed stopping place within the territory of another state

(Nigeria). He booked his entire trip with Adam Travel.''^ His layover at New York's JFK
airport was only five hours. Therefore, the objective evidence indicates Nwokeji's travel,

including the flights on American Airlines, qualifies as international carriage under the Montreal
Convention.

3. Relevant Liabilitv Provisions Of Montreal Convention

The Montreal Convention's liability provisions include two at issue here:(1) Article

17(2) which creates the possibility ofliability for loss of, or damage to, baggage,''^ and(2)
Article 19 which creates the possibility of liability for damage occasioned by delay in the

carriage of passengers or baggage.^^ See Montreal Convention, arts. 17(2), 19. A state law
claim, however founded, that implicates either liability provision is preempted by the
Convention.

Mikerina v. Delta Air Lines. Inc., 834 F. Supp. 2d 54,57(D. Mass. 2011).

When the Montreal Convention applies, it governs all claims within its scope and

preempts any state law claims. Nwokeji's breach of contract claim arising from delayed and
Arik SOF ^ 2; Arik PI. Resp. H 2.

Arik SOF ^ 2; Arik PI. Resp.% 2. Docket No.45-1.
Docket No. 47-2 at 15.

Article 17(2) provides in pertinent part as follows:"The carrier is liable for damage sustained
in case of destruction or loss of, or of damage to, checked baggage upon condition only that the
event which caused the destruction, loss or damage took place on board the aircraft or during any

period within which the checked baggage was in the charge of the carrier. Montreal
Convention, art. 17(2).

.

Article 19 provides in pertinent part as follows:"The carrier is liable for damage occasioned

by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the earner shall not
be liable for damage occasioned by delay if it proves that it and its servants and agents took all
measures that could reasonably be required to avoid the damage or that it was impossible for it or
them to take such measures." Montreal Convention, art. 19.
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Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 19 of 27

damaged baggage(Count 1)falls squarely within Articles 17(2) and 19 ofthe Montreal
Convention, respectively. See Eke,2013 WL 12201891, at *7 n.9, *8(claims based on delayed
and damaged baggage are preempted). Therefore, Count 1 is preempted by the Montreal
Convention.

Similarly, Nwokeji's breach of contract claim arising from the return leg of his trip

(Count 2)is within the scope of Article 19 of the Montreal Convention. ^Helge Mgmt.,Inc.
V. Delta Air Lines. Inc.. No. 11-10299-RBC,2012 WL 2990728, at *3(D. Mass. July 19,2012)

(analyzing claims arising from twenty-four hour flight delay under Article 19). Therefore, it is
preempted by the Montreal Convention.

Finally, the emotional distress claims(Counts 3 and 4)fall within the scope of Article 19
because the "need" for Nwokeji to remain in the MMIA waiting area was only occasioned by his

delayed flight. S^ Lee v. Am. Airlines. Inc., No. Civ, A 301CV1179P,2002 WL 1461920, at
*3-4(N.D. Tex. July 2,2002), affd, 355 F.3d 386(5th Cir. 2004)(analyzing emotional distress

claim arising from flight delay and attendant wait at departure gate under Article 19). Therefore,
Counts 3 and 4 are preempted by the Montreal Convention.

Nwokeji contends that preemption only affects state law causes of action based on
incidents that occurred on board the aircraft or in the course of embarking and disembarking.

See Docket No. 56 at 5. Nwokeji is correct that there is such a limitation, but it only applies to

bodily injury. This limiting language is only included in Article 17(1)ofthe Convention, which
describes air carrier liability for injury to a person.

Montreal Convention, art. 17(1) for
(

carrier liability for death or bodily injury of a passenger caused by an accident on board the
aircraft or in the course of embarking or disembarking"). For baggage damage and/or delay
actionable under Article 17(2)ofthe Montreal Convention, there is no such limitation. ^

19

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 20 of 27

Montreal Convention, art. 17(2)("for destruction, loss, or damage to checked baggage caused by

an event taking place on board the aircraft or while the baggage was in the charge ofthe
carrier").

Accordingly, this Court recommends that the District Judge grant summary judgment in
favor of the defendants on the basis that all of Nwokeji's state claims are preempted.

B.

Even If Properly Brought Under The Montreal Convention,
Nwokeii's Claims Would Still Fail

In the instant case, even if Nwokeji had brought his claims xmder the relevant provisions
of the Montreal Convention,they would have failed.
1. Article 19: Emotional Distress Claims

Nwokeji argues that he suffered emotional distress as a result of his prolonged wait in the
MMIA gate departure area. Amended Compl. 45-59. The Montreal Convention does not

provide for emotional distress or mental anguish damages except where a passenger suffered a
physical injury. See Bassam v. Am. Airlines, 287 Fed. Appx. 309,318 (5th Cir. 2008)
(emotional distress damages not recoverable); Seshadri v. British Airwavs PLC,No. 3:14-cv00833-BAS(WVG),2014 WL 5606542, at *10(S.D. Cal. Nov.4,2014)(same);

2013 WL

12201891, at *11 (inconvenience and mental anguish damages not recoverable).

Courts have repeatedly dismissed claims for purely emotional injuries arising from

delayed flights. ^Rubin v. Air China Ltd.. No. 5:10-cv-05110-LHK,2011 WL 2463271, at
*2-4(N.D. Cal. June 21, 2011); L^,2002 WL 1461920, at *3. Here, Nwokeji suffered no
'

79

physical injury and never saw a medical professional as a result ofthe experience.

Arik SOF HH 65-66; Arik PI. Resp.

65-66.
20

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 21 of 27

Accordingly, Counts 3 and 4 are subject to dismissal even if properly brought under the Montreal
Convention.

2. Articles 17(2^ And 19: Baggage Delav And Damage

Nwokeji alleges that the defendants caused his luggage to be delayed for a period of 19

days^° and as a result, breached their respective contracts with him. Amended Compl. 33-37.
He also alleges that the bag he retrieved at the MMIA warehouse was damaged and missing
items.^^ Article 17(2) expressly provides for liability in the case ofthe loss of, or damage to,

checked baggage "during any period within which the checked baggage was in the charge ofthe
carrier". Montreal Convention, art. 17(2). Article 19 provides the "exclusive remedy for

damages in instances of delay." Helge Memt.. Inc., 2012 WL 2990728, at *3.
a.

Arik Airlines

Arik had no relationship with Nwokeji's missing bag so as to implicate liability for

baggage delay. Nwokeji checked two bags with American for flight AA 1165 from Boston to
New York.^^ One bag did not arrive in New York with Nwokeji,so he was unable to check it on

his Arik flight. Therefore, American arranged for the missing bag to be sent to Lagos with
BA.^^ Arik never handled nor was in possession of Nwokeji s second bag.

Under Article 36, in the context ofsuccessive carriers, liability is limited to the carrier

who performed the carriage. ^Montreal Convention, art. 36; see also Best v. BWIA W.Indies
PI. SOFII17; American Resp. H 17; Arik Resp. H 17. Arik disputes this fact but not as to the
period oftime. At oral argument, Nwokeji claimed for the first time that his luggage was

delayed for 22 days. This argument is contradicted by his own statement offacts and affidavit.
See PI. SOF H 17("A full 19 days delay."); Docket No. 57-1 at ^ 20(same).
Arik SOF Iffl 29-30; Arik PI. Resp. Vl 29-30.
Arik SOF ^ 3; Arik PI. Resp.^ 3.

Arik SOF^ 7, 15; Arik PI. Resp. Ti 7, 15.
Arik SOF ^ 12; Arik PI. Resp. H 12.

Arik SOF i 35; Arik PI. Resp. 1| 35.
21

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 22 of 27

Airways Ltd.. 581 F. Supp. 2d 359, 364-65(E.D.N.Y. 2008)(foreclosing plaintiffs from seeking

compensation from successive carrier for what occurred onboard different carrier during separate

segment of plaintiffs trip). Accordingly, Arik, as a successive carrier, is not liable for the delay
and damage that occurred aboard another carrier. In addition, Nwokeji admits that "all parties

agree" that his baggage was delayed by either American or BA. Docket No. 56 at 3. Thus, Arik
may not be held liable for the delayed and damaged bag under any theory,
b.

American Airlines

Nwokeji's claims against American fail even ifthey were brought under the Montreal
Convention because he did not follow the proper procedure for notifying American of his
baggage-related claims.

Article 31 ofthe Montreal Convention imposes conditions on any claim conceming
baggage. It states:

(1) Receipt by the person entitled to delivery of checked baggage or cargo
without complaint is prima facie evidence that the same has been delivered in
good condition and in accordance with the document of carriage ...

(2) In the case of damage,the person entitled to delivery must complain to the
carrier forthwith after the discovery of the damage, and, at the latest, within

seven days from the date of receipt in the case of checked baggage ...In the
case of delay, the complaint must be made at the latest within twenty-one days
from the date on which the baggage or cargo have been placed at his or her
disposal.

(3) Every complaint must be made in writing and given or dispatched within the
times aforesaid.

(4) If no complaint is made within the times aforesaid, no action shall lie against
the carrier, save in the case of fraud on its part.
Montreal Convention, art. 31.

Thus, Article 31 bars certain claims against a carrier if there has been no timely notice of

damage. Montreal Convention, art. 31. Article 31(3) expressly requires that notice be given in
22

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 23 of 27

writing. Id. at art. 31(3). Verbal or actual notice is insufficient as a matter oflaw. Molefe v.
KLM Roval Dutch Airlines. 602 F. Supp. 2d 485,495(S.D.N.Y. 2009)(collecting cases). "The

purpose of Article 31 is to place the carrier on notice that it may be held liable for reimbursement
and to provide it with an opportunity to investigate claims

[N]otice need not be in any

particular form; as long as it gives the carrier notice of possible liability, and the information it
needs to investigate, it is sufficient." Zurich Am.Ins. Co. v. Lan Cargo S.A., No. 12 Civ. 9227

(CM),2013 WL 7963678, at *2(S.D.N.Y. Dec. 9,2013). Failure to provide an air carrier with

proper notice of a claim relating to baggage may be fatal to that claim save in the case offraud
on part ofthe carrier. Montreal Convention, art. 31(4).

The extent of Nwokeji's written communications regarding his baggage were as follows.

After discovering that his second bag was missing, but before retrieving it, Nwokeji claims he

wrote his name on a BA register. He provided BA with nothing else in writing.®"^ Indeed,
Nwokeji first notified American ofthe missing contents of his bag during discovery in this
case.^^

Nwokeji did not submit written notice to American regarding the alleged damage to his

checked bag within 7 days from the date he received it, or by July 26,2014, as required under
Article 31 ofthe Montreal Convention. ^Montreal Convention, art. 31. He also did not

complain to American about his delayed bag by August 16,2014(within 21 days after the bag
was placed at his disposal). ^i± Indeed, Nwokeji did not lodge a written complaint with
American SOF ^ 44; American PI. Resp.II44.

American SOF ^ 46; American PI. Resp.^ 46. At his deposition, Nwokeji was asked the

question "[b]ut you did not provide anything in writing". Docket No.47-2 at 22. He testified:
"Why would I provide it in writing?" Id. At oral argument, Nwokeji's counsel suggested that he
had a demand letter. However, he did not provide such letter as part of his response to the
defendants' statements of facts.

American SOF^40,46,51; American PI. Resp. Vi 40,46,51.
23

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 24 of 27

American until he brought the present action. Thus, under the Montreal Convention no action

may be brought against American. Therefore, the allegations underlying Count 1 would
similarly be subject to dismissal against American even if properly brought under the Montreal
Convention.

3. Article 19: Flight Delav

Nwokeji also brings a breach of contract claim in connection with the return leg of his

trip. Amended Compl. Iffl 38-44. Nwokeji alleges that the defendants breached the

"understanding" that passengers be given food and accommodation within "a reasonable period
of waiting or delay.

Id

Under Article 19, a carrier's liability for damage occasioned by delay is circumscribed if

the carrier can prove that it took all measures that could reasonably be required to avoid damage
or that it was impossible to take such measures. Montreal Convention, art. 19. The Helge court
has explained this standard as follows:

In order to satisfy the standard of undertaking reasonable measures,the defendant
carrier need only show that it took all precautions that in sum are appropriate to
the risk, i.e., measures reasonably available to defendant and reasonably
calculated, in cumulation, to prevent the subject loss ... The failure to take any

particular precaution that mi^t have prevented the loss does not necessarily
prevent the carrier from relying on this defense; not every possible precaution
must be taken.

American SOF H 64. Nwokeji maintains that he signed the lost baggage log with BA.
American PI. Resp.% 64. At oral argument, Nwokeji appeared to argue that this was sufficient to

satisfy American's written complaint requirements because BA was an agent of American.
However,Nwokeji has offered no factual or legal foundation for his argument that such actions
were sufficient. Accordingly, that argument is waived.^Redondo-Borges v. U.S. Dep't of
Hniis. & Urban Dev.. 421 F.3d U 6(1st Cir. 2005).

To the extent Nwokeji seeks inconvenience or mental anguish damages as a result of his
delayed flight, such damages are not recoverable under the Montreal Convention. ^Bassam,

287 Fed. Appx. at 318; Seshadri. 2014 WL 5606542, at *10; Eke,2013

12201891, at *11. It

is not clear what economic damages Nwokeji is seeking in connection with the delay offlight

W3 107. He appears to claim only $270 in monetary losses, which is the cost of his new flight
from New York to Boston. Amended Compl.^ 27.
24

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 25 of 27

Helge Mgmt.. Inc.. 2012 WL 2990728, at *4(internal citations omitted). Courts routinely

dismiss claims arising from delayed flights that result in prolonged waiting periods. See, e.g.,
Rubin, 2011 WL 2463271, at *2-4(dismissing claim as a result of plaintiff being trapped in a

"freezing" airport for 13.5 hours);

2002 WL 1461920, at *3(dismissing claim as a result of

plaintiff being trapped in a holding area for several hours "without adequate food, water,
restroom facilities, and information regarding the status of the flight).
a.

American Airlines

Nwokeji has not demonstrated that American was in any way responsible for the delay of

Arik flight W3 107. American does not fly to Nigeria.^^ In this action, American is only a
successive carrier under Article 36 ofthe Montreal Convention. As a result, it is liable only if it

was the carrier that performed the carriage when the accident or delay occurred." Montreal
Convention, art. 36;^Selke v. Germanwings GmbH, l:17-cv-00121-GBL-TCB,2017 WL

3114443, at *9(E.D. Va. July 20, 2017). Because American was not the actual carrier when the
delay occurred, it cannot be held liable.
b.

Arik Airlines

Arik is the appropriate defendant carrier for these allegations. To show that it took

reasonable measures, Arik has produced evidence of its actions on August 3,2014 and August 4,

2014. Flight W3 107 was delayed because of a fuel shortage in Lagos. As a result, the aircraft
used for flight W3 107 was on the ground standing by while Arik undertook efforts to obtain the
aviation fuel necessary for the journey. Arik provided meals and hotel accommodations to the

American SOF H 69; American PI. Resp.^ 69.
92 Arik SOF 1169.

93 Arik SOF 1| 70; Arik PI. Resp. H 70.
25

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 26 of 27

passengers offlight W3 107 on the morning of August 4, 2014.^'* Arik also offered passengers
(1)a 50% discount on their next travel with Arik;(2)no date change fees for those opting to
reschedule their carriage on flight W3 107; and(3)a full refund for those choosing to cancel
their reservation altogether.

Nwokeji provides no relevant or admissible evidence^^ to controvert Ank's assertion that
the fuel shortage was unforeseen nor does he identify any reasonable measure that Arik could
have taken, but failed to take, in order to avoid or minimize the delay in his travel. Nwokeji
chose to remain in the MMIA waiting area overnight after being told that the flight was

experiencing fuel issues and was not at the gate.^^ He availed himself of the food and hotel
accommodations provided by Arik.^^ He rejected the airline's overture for rescheduling,
cancellation and/or future travel.^^

In addition, Arik told Nwokeji that he would need to speak with American Airlines

regarding his connecting flight in New York.'®® However,Nwokeji did not reach out to
American until after he arrived in New York and his flight to Boston had departed.'®' Under the

relevant legal standard, Arik took measures reasonably required to prevent damage to Nwokeji.
Accordingly,the allegations underlying Count 2 would be subject to dismissal even ifplead
under the Montreal Convention.

94 Arik SOF H 55; Arik PI. Resp. H 50.
95 Arik SOF H 60; Arik PI. Resp. H 60.
9^
supra note 55.
97 Arik SOF H 50; Arik PI. Resp. H 50.
98 Arik SOF

55, 57; Arik PI. Resp. Vi 55, 57.

99 Arik SOF ^61; Arik PI. Resp. H 61.
'®® Arik SOF H 73; Arik PI. Resp. H 73.

'®' American SOF H 68. Arik SOF ^ 73; Arik PI. Resp.^ 73.
26

Case l:15-cv-10802-MLW Document 70 Filed 08/17/17 Page 27 of 27

V.

RECOMMENDATION

For all of the foregoing reasons, the Court recommends that the District Judge assigned to

this case grant the defendants' motions for summary judgment and grant in part and deny in part
American's motion to strike.

VI.

REVIEW BY DISTRICT JUDGE

The parties are hereby advised that under the provisions of Fed. R. Civ. P. 72(b), any

party who objects to these proposed findings and recommendations must file specific written

objections thereto with the Clerk ofthis Court within 14 days ofthe party's receipt ofthis Report
and Recommendation. The written objections must specifically identify the portion ofthe

proposed findings, recommendations, or report to which objection is made,and the basis for such
objections.^Fed. R. Civ. P. 72. The parties are further advised that the United States Court
of Appeals for this Circuit has repeatedly indicated that failure to comply with Fed. R. Civ. P.
72(b) will preclude further appellate review ofthe District Court's order based on this Report
and Recommendation. See Phinnev v. Wentworth Douglas Hosp.,199 F.3d 1 (IstCir. 1999),
Sunview Condo. Ass'n v. Flexel Int'L Ltd.. 116 F.3d 962(1st Cir. 1997); Paganov. Frank,983
F.2d 343 (1st Cir.1993).
/s/ Jennifer C. Boal
JENNIFER C. BOAL

United States Magistrate Judge

27