Eldeeb v. Delta Air Lines, Inc et al

Filing 36

ORDER granting 19 Motion to Dismiss (Written Opinion) Signed by Senior Judge David S. Doty on 12/7/2018. (DLO)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 18-1128 (DSD/TNL)
Rehab Eldeeb, as trustee for
the next of kin of Fahmy Eldeeb,
deceased,
Plaintiff,
v.
ORDER
Delta Air Lines, Inc., a
corporation, and Societe
Air France, S.A. d/b/a
Air France, a corporation,
Defendants.
Alexandra M. Wisner, Esq. and Wisner Law Firm, P.C., 514 W.
State Street, Suite 200, Geneva, IL 60134, counsel for
plaintiff.
Sarah G. Passeri, Esq. and Holland & Knight, 31 West 52nd
Street, New York, NY 10019, counsel for defendants.
This matter is before the court upon the motion to dismiss by
defendants Delta Air Lines, Inc. and Société Air France, S.A.
Based on a review of the file, record, and proceedings herein, and
for the following reasons, the court grants the motion on the basis
of forum non conveniens.

BACKGROUND
This

Montreal

Convention

dispute

arises

out

of

injuries

sustained by decedent Fahmy Eldeeb as he traveled from Minnesota to
Egypt.1

1

Mr. Eldeeb had pancreatic cancer and was traveling home

The Montreal Convention governs claims related to injury or
(continued...)

with his wife to “live out his last days.”
4.

Passeri Dec. Ex. A at

Mr. Eldeeb purchased the ticket from Minneapolis to Cairo

through Delta.

Am. Compl. ¶ 6.

Paris, France.

Id. ¶ 7.

The flight included a layover in

When he booked the tickets, Mr. Eldeeb

requested a wheelchair to assist him in disembarking the plane in
Paris and transporting him to the gate of the connecting flight.
Id.
On May 10, 2016, Mr. Eldeeb departed Minneapolis on Air France
flight 673.2

Id. ¶ 7.

When he arrived at Charles de Gaulle

Airport in Paris, he was initially denied the use of a wheelchair.
Id. ¶ 8.

He was eventually provided wheelchair assistance which

enabled him to disembark the airplane, but he was left in the
seating area of the arrival gate rather than taken to the gate for
his connecting flight to Cairo.

Id.

He remained at the arrival

gate for approximately twelve hours and missed the connecting
flight to Cairo.

Id. ¶¶ 8-9.

At some point thereafter, Mr. Eldeeb

received assistance and was re-booked on a later flight to Cairo.
Id. ¶ 9.

When he arrived in Cairo, he learned that his luggage,

which contained his medications, had not yet arrived.
received his luggage one week later.

Id.

He

Eldeeb Aff. ¶ 15.

(...continued)
death during international air carriage.
2

Although Delta was the booking airline, Air France operated
the flight.
2

On June 4, 2016, Mr. Eldeeb died in Egypt of complications
related to pancreatic cancer.

Am. Compl. ¶ 9.

According to

plaintiff Rehab Eldeeb, trustee for the next of kin of Mr. Eldeeb,
Mr. Eldeeb’s death was hastened by the events at the Charles de
Gaulle airport.

Id.

After Mr. Eldeeb’s death, plaintiff learned

that he was denied wheelchair access because the wheelchair vendor
at the airport, Passerelle, was on strike.3

Id. ¶ 10; Casati-

Ollier Decl. ¶¶ 13, Plaintiff commenced this action on April 26,
2018, alleging that the lack of wheelchair assistance proximately
caused Mr. Eldeeb’s injuries and death and that defendants are
strictly liable under the Montreal Convention.
amended complaint on June 4, 2018.

Plaintiff filed an

Defendants now move to dismiss

on the basis of forum non conveniens, failure to join indispensable
parties under Fed. R. Civ. P. 19, and failure to state a claim
under Fed. R. Civ. P. 12(b)(6).

DISCUSSION
Defendants first and foremost argue that this case should be
dismissed on the principle of forum non conveniens because the case
turns on events occurring solely in France and involves French

3

The Aéroports de Paris (ADP) manages Charles de Gaulle
airport and is responsible for providing wheelchair assistance to
passengers.
Casati-Ollier Decl. ¶ 13.
ADP subcontracted with
Passerelle, a private company, to carry out those responsibilities.
Id. ¶ 16. Neither entity is named in this action.
3

parties (ADP and Passerelle) that are not subject to the court’s
jurisdiction or subpoena power.

Defendants note that the only

connections to Minnesota are that plaintiff resides here, that Mr.
Eldeeb’s flight to Paris departed from here, and that Delta, which
issued the tickets but not operate the flight, is located here.
“The principle of forum non conveniens permits a court to
decline jurisdiction even though venue and jurisdiction are proper,
on the theory that for the convenience of the litigants and the
witnesses, the action should be tried in another judicial forum.”
Mizokami Bros. of Ariz., Inc. v. Mobay Chem. Corp., 660 F.2d 712,
717

(8th

omitted).

Cir.

1981)

(citations

and

internal

quotation

marks

“The defendant has the burden of persuasion in proving

all elements necessary for the court to dismiss a claim based on
forum non conveniens.”

K–V Pharm. Co. v. J. Uriach & CIA, S.A.,

648 F.3d 588, 598 (8th Cir. 2011) (citations and internal quotation
marks omitted).
In assessing whether dismissal on this basis is appropriate,
the court must first determine whether an adequate alternative
forum is available to hear the case.

Reid–Walen v. Hansen, 933

F.2d 1390, 1393 n.2 (8th Cir. 1991).

“An alternative forum is

available if all parties are amenable to process and come within
the jurisdiction of the forum.”

Id.

An alternative forum is

considered adequate if “the parties will not be deprived of all
remedies or treated unfairly.”

Id.

4

If the court determines that an adequate, alternative forum
exists it “must then balance factors relative to the convenience of
the litigants, referred to as the private interests, and factors
relative to the convenience of the forum, referred to as the public
interests, to determine which available forum is most appropriate
for trial and resolution.”

De Melo v. Lederle Labs., 801 F.2d

1058, 1060 (8th Cir. 1986).

A plaintiff’s choice of forum,

particularly when plaintiff has chosen the home forum, is entitled
to substantial deference.

Piper Aircraft Co. v. Reyno, 454 U.S.

235, 242, 255 (1981).
A.

Adequate and Available Forum

The most contested aspect of defendants’ forum non conveniens
argument is whether France is an adequate and available forum.
Although plaintiff concedes that France is generally an available
forum,4 she argues that it is not a legally available forum because

4

“[A]n action for damages under the Convention must be brought,
at the plaintiff’s option, in the territory of one of the States
Party to the Convention before a court of the carrier’s domicile or
the carrier’s principal place of business, the place where the
contract was made, or the place of destination of the passenger.”
See Convention for the Unification of Certain Rules for
International Carriage by Air, May 28, 1999, Art. 33 (entered into
force on Nov. 4, 2003) (“Montreal Convention”), reprinted in S.
Treaty Doc. No. 106-45, 1999 WL 33292734 (2000). Air France is
domiciled and has its principal place of business in France and
France was the relevant destination for purposes of this case. See
Casati-Ollier Decl. ¶ 18; Am. Compl. ¶¶ 7-12.

5

the French Supreme Court (Cour de Cassation) has held that French
courts lack jurisdiction over Montreal Convention cases that have
been

dismissed

conveniens.

by

another

court

on

The court is unconvinced.

the

basis

of

forum

non

The Cour de Cassation’s

opinion, as translated, declares “the present lack of availability
of

the

French

venue”

based

on

circumstances not presented here.
added).

complex

facts

and

procedural

See ECF No. 33 at 50 (emphasis

The court did not appear to foreclose French jurisdiction

in any and all Montreal Convention cases initially filed in another
appropriate fora.
An alternative forum is generally considered to be “available”
when the defendant is “amenable to process” there. Piper, 454 U.S.
at 254 n.22.

Defendants here have consented to jurisdiction in

France and have agreed to service of process.
is an available forum.

As a result, France

Defendants have also provided ample

unchallenged facts to establish that the French judicial system is
an adequate forum for this dispute, Casati-Ollier Decl. ¶¶ 20-31,
37-39.

The court therefore also finds that the alternative forum

is adequate.
B.

Private Factors

The court next weighs private factors including access to
sources of proof, availability of witnesses, and enforceability of
the judgment in assessing dismissal under forum non conveniens.
See

K–V

Pharm.,

648

F.3d

at

6

597.

Here,

those

factors

overwhelmingly favor dismissal.

Most if not all of the facts

underlying the case occurred in France:

Mr. Eldeeb flew to Paris

on Air France and he sustained alleged injuries at Charles de
Gaulle airport likely due to the conduct or inaction of ADP and
Passerele - neither of which are likely within the jurisdiction or
subpoena

power

of

this

court.

Under

these

circumstances,

maintaining the case here would not only be inconvenient, it would
substantially prejudice defendants.
In contrast, Minnesota bears little relation to this case.
None of the facts tethered to Minnesota - plaintiff’s state of
residence, the flight’s departure city, and Delta’s place of
business - are materially relevant to the claim raised.

Although

France would be an inconvenient forum for plaintiff, the other
factors

substantially

outweigh

that

inconvenience.

Further,

plaintiff does not argue that a French judgment would somehow be
unenforceable and the court is aware of no impediment in this
regard.
C.

Public Factors

Public

factors

relevant

to

this

matter

include

judicial

economy and the preference of having local controversies decided by
local courts.

See Piper, 454 U.S. at 241 n.6.

Here, again, the

court finds that these factors favor dismissal.

The parties raise

no concerns regarding judicial economy in either this court or in
a French court.

With respect to the locality of the controversy,

7

the court finds that France has a greater connection to and
investment in the case.

As noted, all of the material facts

occurred in France and the responsible entities are based in
France.
As a result, the court concludes that the relevant factors
weigh strongly in favor of dismissal on the basis of forum non
conveniens, even affording due deference to plaintiff’s choice of
forum.

See Kahn v. Delta Airlines, Inc., No. 10-2080, 2010 WL

3210717 (E.D.N.Y. Aug. 12, 2010) (dismissing action in favor of
Canadian venue under materially similar circumstances). Should the
French court conclude that it lacks jurisdiction, however, the
court will allow plaintiff to re-file in this court.5
dismissal

is

appropriate

under

the

principle

of

Because

forum

non

conveniens, it will not address the other grounds for dismissal
raised by defendants.

5

Defendants have informed the court that they will not oppose
jurisdiction in this court under those circumstances and have
further agreed to waive any statute of limitations defense in the
French court or in this court should the French court decline to
exercise jurisdiction.
8

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.

The motion to dismiss [ECF No. 19] is granted; and

2.

The case is dismissed without prejudice for the reasons

stated above.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: December 7, 2018
s/David S. Doty
David S. Doty, Judge
United States District Court

9