Kruger et al v. Virgin Atlantic Airways Limited et al

Filing 57

MEMORANDUM & ORDER: Because they identify no new evidence, intervening change in controlling law, clear error, or manifest injustice, Plaintiffs' motion for reconsideration id DENIED. So Ordered by Judge Nicholas G. Garaufis on 12/23/2013. (Lee, Tiffeny)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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LYNNE KRUGER, MA)(WELL KRUGER,
LAWSON KRUGER, and SHELDON KRUGER,
Plaintiffs,

MEMORANDUM & ORDER
11-CV-2954 (NGG) (RER)

-againstVIRGIN ATLANTIC AIRWAYS, LIMITED,
Defendant.

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NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiffs Lynne Kruger ("Mrs. Kruger"), Sheldon Kruger ("Mr. Kruger"), and their adult
sons Maxwell and Lawson Kruger filed this action alleging breach of contract, false arrest,
malicious prosecution, intentional infliction of emotional distress, negligence, and loss of
consortium against Defendant Virgin Atlantic Airways, Limited ("VAA"). Their allegations
relate to two problems they encountered with the airline: (1) one of their flights was cancelled,
and (2) prior to boarding a connecting flight in London, Mrs. Kruger was arrested for allegedly
assaulting a flight attendant, questioned, and released several hours later.
Defendant and Plaintiffs both filed motions for summary judgment, which the court
referred to Magistrate Judge Reyes for a Report and Recommendation ("R&R"). (Dkts. 42-43.)
On August 13, 2013, Magistrate Judge Reyes issued his R&R (Dkts. 48), to which Plaintiffs
objected on August 30, 2013 (Dkt. 49). Having considered Plaintiffs' objections, the court
adopted the R&R with some modification to Judge Reyes's reasoning on specific points. (Sept.
20, 2013, Mem. & Order (Dkt. 53).) In doing so, the court granted Defendant's motion for
summary judgment and dismissed Plaintiffs' motion for partial summary judgment. On October
20, 2013, Plaintiffs moved for reconsideration under Federal Rule of Civil Procedure 59(e).
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(Dkt. 54.) Defendants served their opposition to the motion on November 4, 2013 and Plaintiffs
replied and filed the bundled motion papers on November 13, 2013. (Dkts. 56.) The court
assumes the parties' familiarity with the factual background and earlier procedural history of the
case.
For the reasons explained below, Plaintiffs' motion for reconsideration is DENIED.

I.

STANDARD OF REVIEW
The standards for a motion for reconsideration Rule 59(e) and Local Rule 6.3 are

identical. Regan v. Conway, 768 F. Supp.2d 401, 408 (E.D.N.Y. 2011) (citation omitted).
Under either rule: "A motion for reconsideration should be granted only when the defendant
identifies 'an intervening change of controlling law, the availability of new evidence, or the need
to correct a clear error or prevent manifest injustice."' Kolel Beth Yechiel Mechil of Tartikov,
Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir.,2013) (citing Virgin Atl. Airways, Ltd.
v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)); see also Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995)). "Reconsideration 'is an extraordinary remedy to be
employed sparingly in the interests of finality and conservation of scarce judicial
resources."' Arnold v. Geary, No. 09-CV-7299 (GWG), 2013 WL 5951489, at *2 (S.D.N.Y.
Nov. 7, 2013).
The burden of proof is squarely on the moving party, which must demonstrate that the
court failed to take into account information that "might reasonably be expected to alter the
conclusion reached by the court." Shrader, 70 F.3d at 257. "[A] motion to reconsider should not
be granted where the moving party seeks solely to relitigate an issue already decided." Shrader,
70 F.3d at 257.The court has discretion to decide whether or not it erred, and its ruling will not

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be overturned absent an abuse of that discretion. McCarthy v. Manson, 714 F.2d 234, 237
(1983).

I.

DISCUSSION
Plaintiffs' submissions repeat arguments that they previously raised in their objections

and that the court rejected in its memorandum and order. 1 First, Plaintiffs argue that the court's
decision that Mrs. Kruger was embarking at the time of the alleged tort for purposes of the
Montreal Convention was clearly erroneous and that the court ignored facts and law. (Nov. 13,
2013, Pl. Mem. in Supp. of Mot. for Recons. (Dkt. 56-2) at 2-5.) They then argue that the court
applied the wrong standard ofreview. (Reply at 5.) Finally, they seek to revisit the
applicability of European Community Regulation 261/2004's compensation scheme. (Id.)
Plaintiffs' arguments do not demonstrate that the court overlooked controlling law, nor bring to
light new evidence, nor do they demonstrate that the court's ruling was clearly erroneous or
works a manifest injustice. As a result, reconsideration of these issues is inappropriate.
A. Montreal Convention Arguments

Plaintiffs argue that the Montreal Convention does not apply to the tort or torts arising
from Mrs. Kruger's arrest at the direction of airline personnel. The Montreal Convention applies
to accidents onboard or in the course of boarding of disembarking international flights.
Convention for the Unification of Certain Rules for International Carriage by Air ("Montreal
Convention"), May 28, 1999, 2242 U.N.T.S. 309, S. Treaty Doc. No. 106-45. Ifthe Convention
applies, it limits the damages a plaintiff can recover from an airline, and notably does not allow
recovery for the type of emotional damages claimed by Plaintiffs. (Mem. & Order at 18-20.) As

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Although Plaintiffs' submissions challenge the underlying R&R, the posture of this litigation is a motion for
reconsideration of this court's decision adopting the R&R, thus the court will refer to Plaintiffs as asking for
reconsideration of its Memorandum and Order adopting the R&R.

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Plaintiffs note, their argument about the scope of the Montreal Convention merely repeats the
argument they made regarding this issue in their Objection to the R&R. (Mem. in Supp. at 3).
Although Plaintiffs state that the court's decision "conflicts with every modern Supreme
Court case and Second Circuit case interpreting the Treaty," (id. at 2) they cite the same
arguments and cases the court has already considered (id. at 2-3). To determine whether Mrs.
Kruger was "embarking" her connecting flight at the time of her arrest, the court used the Second
Circuit's four prong test, ultimately concluding that Mrs. Kruger was embarking. (Mem. &
Order, at 14-22.) Other district courts have made similar determinations. See Shen v. Japan
Airlines, 918 F. Supp. 686, 688 (S.D.N.Y. 1994); Singh v. N. Am. Airlines, 426 F. Supp. 2d 38
(E.D.N.Y. 2006).
Plaintiffs state that Mrs. Kruger did not have a boarding card because Defendant's
employees took it from her prior to her arrest. This is not a new fact, but belongs to a fuller
context elucidated by submissions by Plaintiffs in conjunction with their motion for summary
judgment and response to Defendant's motion. (See, e.g., S. Kruger Dep., Ex. 8 to Pl. Mot. for
Summ. J. (Dkt. 43) at 33:13-17, 37:20-24, 38:22-25 (''S. Kruger Dep.").)
Plaintiffs also argue, without case support, that whether Mrs. Kruger was embarking one
of Defendant's planes is "immaterial" to the application of the Convention because many of her
injuries occurred after she was arrested. However, the question of whether or not the alleged
injury results from a tort that occurred when a passenger was on or was embarking or
disembarking an aircraft determines whether the Montreal Convention covers the tort. Montreal
Convention, art. 17 .1.
Finally, Plaintiffs argue that Mrs. Kruger has a malicious prosecution claim against the
airline and that this could not be covered by the Montreal Convention. (Mem. in Supp. at 3.) The

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R&R noted that Defendant could not be held liable for its employee's intentional torts because
"the requisite intent would remove her actions form the scope of her employment and thus
absolve V AA from vicarious liability." (R&R at 22 n.8.) Plaintiffs had an opportunity to object
to this recommendation and failed to do so. Thus, the court reviewed it for clear error and found
none. Even if a motion under Rule 59(e) allowed new de novo review, the claim would fail for
the reasons stated by Judge Reyes and because mere arrest without the institution of further
criminal proceedings does not constitute malicious prosecution under New York law. Carson v.
Lewis, 35 F. Supp. 2d 250, 263 (E.D.N.Y. 1999).
B. Summary Judgment Standard

Plaintiffs argue that the court did not use the correct summary judgment standard because
it did not take all evidence in the light most favorable to Plaintiffs as non-moving party and
because a genuine dispute of material fact existed. (Reply at 3.) In fact, the court explicitly
adhered to this standard. (Mem. & Order at 6-7 (citing Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 149 (2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).) Although the court must consider the
evidence in the light most favorable to non-movant Plaintiffs, the facts asserted by the nonmovant must consist of more than mere conclusions or speculation. See Patterson v. Cnty. of
Onieda, N.Y., 375 F.3d 206, 219 (2d Cir. 2004); Kulak v. City of New York, 88 F.3d 63, 71 (2d
Cir. 1996).
C. European Union Law

Finally, Plaintiffs take issue with the court's decision regarding European Community
Regulation 261/2004, which entitles passengers to compensation for flight delays and
cancellation in certain circumstances. This issue, too, was previously analyzed. (Mem. & Order

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at 10-14.) The court further found that Plaintiffs would not be entitled to compensation under
the regulation because their flight was canceled due to weather conditions regardless of whether
Regulation 261/2004 applies. (Id. at 13-14.) Thus, applying the regulation would not change the
outcome of the case.

II.

CONCLUSION
Because they identify no new evidence, intervening change in controlling law, clear

error, or manifest injustice, Plaintiffs' motion for reconsideration is DENIED.
SO ORDERED.

s/Nicholas G. Garaufis
NieHOLAS G. GARAUFIS
United States District Judge

Dated: Brooklyn, New York
December_l.1, 2013

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