ACEVEDO et al v. AMERICAN AIRLINES, INC. et al

Filing 14

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 7/23/2015. (drw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ALBA I. ACEVEDO and JOSEPH
ACEVEDO
Plaintiffs,

HONORABLE JEROME B. SIMANDLE

Civil Action
No. 11-3830 (JBS/AMD)

v.
AMERICAN AIRLINES, INC., XYZ
CORPORATION,

MEMORANDUM OPINION

Defendants.

SIMANDLE, Chief Judge:
This matter comes before the Court on Defendant American
Airlines, Inc.’s (“American Airlines”) motion to dismiss [Docket
Item 12] the Complaint filed by Plaintiffs Alba I. Acevedo and
Joseph Acevedo [Docket Item 1], for failure to prosecute.
Plaintiffs filed an action in June of 2011 against American
Airlines, seeking damages for an injury that Alba Acevedo
suffered while on board an American Airlines flight arriving
into Philadelphia International Airport. (Compl. ¶¶ 6-10.) In
December of 2011, American Airlines notified the Court that it
had filed a voluntary petition under Chapter 11 of the
Bankruptcy Code, and the Court stayed all proceedings in this
case shortly thereafter. (Dec. 5, 2011 Order [Docket Item 11].)
The case remained inactive for over three years until January
2015, when Defendant moved dismiss this case for failure to

prosecute under Fed. R. Civ. P. 41(b). Over five months have
passed, and Plaintiffs have filed no response.
For the reasons set forth below, the Court will dismiss
this action under Rule 41(b) unless Plaintiffs, within fifteen
(15) days from the entry of this Opinion, file an opposition to
Defendant’s motion to dismiss and demonstrate good cause for
their failure to prosecute. The Court finds as follows:
1.

On June 30, 2011, Plaintiffs, New Jersey residents

Alba I. Acevedo and Joseph Acevedo, filed a Complaint against
American Airlines, Inc., and unnamed XYZ Corporation after
Plaintiff Alba Acevedo “was severely, painfully, and permanently
injured as a direct and proximate result of the negligence” of
Defendants while on board an American Airlines flight arriving
into Philadelphia International Airport. (Compl. ¶ 10.) The
Complaint alleges that Defendant American Airlines’ employees
were negligent in keeping the aircraft equipment in safe
condition, failing to warn Plaintiff Alba Acevedo of
malfunctioning equipment, and failing to maintain a safe
environment. (Compl. ¶ 11.) The Complaint alleged counts of
negligence with respect to Alba Acevedo (Counts One and Two) and
loss of consortium with respect to Joseph Acevedo (Count Three).1
2.

Defendants answered the Complaint on August 5, 2011,

and shortly thereafter, on September 20, 2011, by the consent of

1

Because Plaintiffs alleged that Defendant was incorporated in
Texas and the amount-in-controversy exceeded $75,000,
jurisdiction was proper under 28 U.S.C. § 1332.
2

both parties, the Honorable Ann M. Donio, United States
Magistrate Judge, entered an Order placing the case into
arbitration. [Docket Item 7.] However, on December 2, Defendant
American Airlines filed a Notice of Suggestion of Bankruptcy,
notifying the Court that Defendant had filed a voluntary
petition under Chapter 11 of the Bankruptcy Code in the United
States Bankruptcy Court for the Southern District of New York.
[Docket Item 10.]

The Court subsequently stayed all proceedings

and administratively terminated the case on the docket. [Docket
Item 11.]
3.

This case remained inactive until January 30, 2015,

when Defendant American Airlines moved to dismiss the case for
lack of prosecution under Fed. R. Civ. P. 41(b). (Mot. to
Dismiss [Docket Item 12].) In a certification filed by
Defendant’s attorney, John V. Mallon, Esq., Mr. Mallon states
that Plaintiff’s claims against Defendant are covered by an
insurance policy, the proceeds of which are not subject to the
bankruptcy proceeding, but that to date, Plaintiff has not
sought to modify the bankruptcy stay in order to pursue recovery
against the proceeds of the insurance policy, despite
communicating in 2012 and 2013 with Defendant’s counsel about
doing so. (Mallon Cert. to Mot. to Dismiss [Docket Item 12-1] ¶¶
7-8.)
4.

Defendant included several letters in an exhibit

attached to their motion to dismiss. In a letter to Defendant

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dated June 19, 2012, signed by a “Joe Greble”2 at John A. Klamo,
Esq., P.C., the office which represents Plaintiffs, Mr. Greble
referenced a discussion that he had with Mr. Mallon that day and
wrote, “It is our belief that the bankruptcy your insured,
American Airlines, Inc. went through has been sufficiently
resolved and therefore we believe ample time has passed to
settle this matter. At this time I am requesting a status on the
above captioned claim.” (June 19, 2012 Letter, Ex. C to Mot. to
Dismiss [Docket Item 12-2].) The letter indicated that
Plaintiffs were demanding $17,500.00 to settle the claim, which
was the amount owed on Plaintiff’s outstanding medical bills.
(Id.) Mr. Mallon wrote back on July 6, 2012, saying that Mr.
Greble’s letter had been forwarded to Defendant and that “you
will be contacted by American’s bankruptcy counsel with
information on a procedure to request that the bankruptcy stay
to be lifted.” (July 6, 2012 Letter, Ex. C to Mot. to Dismiss.)
5.

The next correspondence attached to Defendant’s motion

is a letter dated April 17, 2013, from Mr. Mallon to Mr. Klamo.
In this letter, Mr. Mallon references a modification of the
bankruptcy stay:
You had previously inquired as to the procedure for
requesting a modification of the bankruptcy stay. Kindly
advise if you have taken any steps to request a
modification of the stay, in order to proceed with your
client’s lawsuit. You should have received information
from American’s bankruptcy counsel regarding the
2

Mr. Greble is identified in the letter as the Office Manager at
John A. Klamo, Esq., P.C. (See June 19, 2012 Letter, Ex. C to
Mot. to Dismiss [Docket Item 12-2].)
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procedure to request a modification of the bankruptcy
stay.
(April 17, 2013 Letter, Ex. C to Mot. to Dismiss.) The final
letter from Mr. Mallon to Mr. Klamo is dated July 1, 2013,
stating that Defendant had not received a response to their
April 17, 2013 letter, and requesting that Mr. Klamo provide
Defendant with an update as to the status of Plaintiffs’ attempt
to modify the bankruptcy stay. (July 1, 2013 Letter, Ex. C to
Mot. to Dismiss.) Mr. Klamo did not appear to respond to either
the April 17th or July 1st letter.
6.

Defendants filed the present motion to dismiss for

failure to prosecute on January 30, 2015, which was served
electronically upon Plaintiffs’ counsel, Mr. Klamo. (Cert. of
Mailing, Mot. to Dismiss [Docket Item 12-4].) No opposition has
been filed to date.
7.

Failure to prosecute an action may warrant dismissal

under Fed. R. Civ. P. 41(b), which in pertinent part, provides:
For failure of the plaintiff to prosecute or to comply
with these rules or any order of court, a defendant may
move for dismissal of an action or of any claim against
the defendant. Unless the court in its order for
dismissal otherwise specifies, a dismissal under this
subdivision . . . operates as an adjudication on the
merits.
8.

Courts in this district consider six factors when

determining whether or not to dismiss under Rule 41(b): (1) the
extent of the party's personal responsibility; (2) the prejudice
to the adversary caused by the failure to meet scheduling orders
and respond to discovery; (3) a history of dilatoriness; (4)
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whether the conduct of the party or the attorney was willful or
in bad faith; (5) the effectiveness of sanctions other than
dismissal; and (6) the meritoriousness of the claim or defense.
Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002) (citing
Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d
Cir. 1984)). “While the appropriateness of dismissal is not
contingent upon the satisfaction of all six factors in a given
case, ‘the resolution of any doubts [must be] in favor of
adjudication on the merits.’” Bowers v. National Collegiate
Athletic Ass'n, 564 F. Supp. 2d 322, 334 (D.N.J. 2008) (quoting
United States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141,
162 (3d Cir. 2003)).
9.

The failure of Plaintiffs’ counsel to take advantage

of the several opportunities he has had to pursue Plaintiffs’
claims weighs in favor of dismissal. The case was stayed in
December 2011, and although Mr. Klamo’s letter indicated that he
initially spoke to counsel for Defendant by phone in June 2012
about the procedure for lifting or modifying the bankruptcy
stay, subsequent letters from Defendant’s counsel, Mr. Mallon,
suggest that Mr. Klamo did not follow up, despite several
letters from Mr. Mallon asking for an update on whether
Plaintiffs were still intending to modify the stay. The April
17, 2013 letter indicates that at some point, Defendant’s
bankruptcy counsel provided Mr. Klamo with specific instructions
on the procedure for requesting a stay modification, but Mr.

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Klamo appeared to have ignored this letter as well as the
subsequent one, and has never moved to lift the stay put in
place more than three and a half years ago. It appears that Mr.
Klamo’s last communication to defense counsel was a little over
three years ago. According to Defendant, Plaintiffs have given
no indication since then that they still intend to modify the
stay in order to pursue a recovery against the proceeds of the
insurance policy, as they suggested they would. Thus, the
continued failure to prosecute this case lies solely with
Plaintiff’s counsel, and the first and third factors weigh in
favor of dismissal.
10.

Plaintiffs have also ignored a filing deadline in this

case. Defendant filed its motion to dismiss on January 30, 2015,
which was duly served upon Mr. Klamo. A response to Defendant’s
motion was due on February 17, 2015. Mr. Klamo, who continues to
be listed as counsel of record, never filed an opposition to the
motion, nor has he ever sought an extension of time to respond.
Plaintiffs have now ignored their responsibility in this case
for five months. Because nothing before the Court indicates that
Plaintiffs are unable to respond, the inference of Plaintiffs’
willfulness in failing to meet this obligation is inescapable.
See Local Union No. 98 Int’l Bhd. of Elec. Workers v. E. Elec.
Corp. of N.J., 2009 WL 3075358, at *3 (D.N.J. Sept. 25, 2009)
(finding that defendants’ failure to respond to a complaint for
one year constituted “blatant, or at a minimum, reckless

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disregard of the rules” and constituted behavior that was
willful and in bad faith). Continuing to adjourn this action
would also prejudice Defendant, who has already waited three
years for Plaintiffs to modify the stay and resolve this case.
11.

Although Plaintiffs’ claims appear to be facially

meritorious,3 Plaintiffs’ consistent failure to respond to

3

Plaintiff Alba Acevedo asserts that she was severely injured
while on board an American Airlines flight due to the negligence
of Defendant’s employees in keeping the aircraft equipment in
safe condition and failing to warn of malfunctioning equipment.
Among other things, Defendant asserts that Plaintiffs’ claims
are barred by the statute of limitations and the Warsaw
Convention. New Jersey provides a two-year statute of
limitations for a negligence action for injury to a person, see
N.J.S.A. 2A:14-2, and Plaintiffs’ Complaint, filed on June 30,
2011, for an injury that Plaintiffs allege occurred on June 30,
2009, therefore appears on its face to be timely. Plaintiffs’
claims also appear to be permitted under the Warsaw Convention.
The liability of an airline to its passengers is delineated in
Article 17 of the Warsaw Convention, which states,
The carrier shall be liable for damage sustained in the
event of the death or wounding of a passenger or any
other bodily injury suffered by a passenger, if the
accident which caused the damage so sustained took place
on board the aircraft or in the course of any of the
operations of embarking or disembarking.
DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1196 (3d
Cir. 1978). Plaintiff has alleged that she suffered severe
injuries while on board an American Airlines flight flying into
the Philadelphia International Airport; and that her injuries
were due a malfunction of equipment in the aircraft. (See Compl.
¶ 11 (“Defendant’s employees, attendants, co-pilots and/or
pilots failed to warn plaintiff of any malfunction of equipment
in the aircraft.”)). Thus, the allegations on their face
sufficiently allege that Plaintiff’s injuries were due to an
accident on board an aircraft carrier, placing it under Article
17. See Warshaw v. Trans World Airlines, Inc., 442 F. Supp. 400
(E.D. Pa. 1977) (holding that plaintiff was barred from recovery
under the Warsaw Convention because he failed to establish that
the cabin repressurization was an “accident,” since the evidence
did not “establish[] abnormality or malfunction in the operation
of the aircraft.”).
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Defendant’s letters, failure to take any action to modify the
bankruptcy stay for over three years, failure to respond to
Defendant’s motion to dismiss, and indeed, failure to reopen the
case or file anything at all in three and a half years, weigh
heavily in favor of dismissal under Rule 41(b). It is sufficient
to dismiss for failure to prosecute if plaintiff “does nothing,
knowing that until something is done there will be no trial.”
Bendix v. Aviation Corp. v. Glass, 32 F.R.D. 375, 377 (E.D. Pa.
1962), aff’d, 314 F.2d 944, 944 (3d Cir. 1963); see also
Villanueva v. United Parcel Serv., Inc., 2013 WL 1844769, at *2
(D.N.J. Mar. 26, 2013) (dismissing for failure to prosecute
because plaintiff failed to take any action in almost three
years to prosecute his claims and failed to respond to Order to
Show Cause); Adams v. Trustees of N.J. Brwery Empl. Pension
Trust Fund, 29 F.3d 836, 875 (3d Cir. 1994) (“We agree the
failure to prosecute for more than four years amounts to a
history of dilatoriness” and “could constitute grounds for
dismissal under Rule 41(b).”). Such is the case here.
12.

Having carefully reviewed these factors, the Court

concludes that they weigh in favor of dismissal. Nevertheless,

As Plaintiffs’ Complaint is devoid of any detail about the
specific manner in which Alba Acevedo was injured, the Court
does not have sufficient information to evaluate the merits of
certain other defenses raised in Defendant’s Answer, such as
that Plaintiffs’ claims are barred by the terms and conditions
of the contract of carriage and ticket limitations; that the
accident was the result of the negligence of third parties over
whom American had no control; and that the negligence of
Plaintiff was greater than any negligence of Defendant.
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the Court, considering the availability of alternative sanctions
to dismissal, will permit Plaintiffs one last opportunity to
respond to Defendant’s motion. Plaintiffs’ counsel shall have
fifteen (15) days from the entry of this Order to oppose
Defendant’s dismissal motion. Should counsel fail to comply, the
Court will deem Defendant’s motion unopposed and dismiss the
Complaint with prejudice under Rule 41(b) without an additional
merits analysis. An accompanying Order to Show Cause will be
entered.

July 23, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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