AIG Property Casualty Company v. Federal Express Corp., et al
Filing
32
OPINION & ORDER re: 24 MOTION to Dismiss . filed by Federal Express Corporation. For the reasons set forth above, FedEx's motion to dismiss the First Amended Complaint pursuant to Rule 12(b)(6) is GRANTED. Defendants Federal E xpress Corporation, FedEx Corp., FedEx Corporate Services, Inc., and FedEx Ground Package System, Inc. are DISMISSED WITH PREJUDICE. Defendant Il Pellicano Hotel, which has not been served or appeared in this action, is dismissed without prejudice. The Clerk of Court is directed to close the motion at ECF No. 24 and to terminate this action. (As further set forth in this Order) (Signed by Judge Katherine B. Forrest on 1/25/2016) (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
AIG PROPERTY AND CASUALTY, CO., as
:
subrogee of LARRY and JANE SCHEINFELD,
:
:
Plaintiff,
:
:
-v:
:
FEDERAL EXPRESS CORPORATION, FEDEX :
CORP., FEDEX CORPORATE SERVICES, INC., :
FEDEX GROUND PACKAGE SYSTEM, INC., and :
IL PELLICANO HOTEL,
:
:
Defendants.
:
:
---------------------------------------------------------------------- X
KATHERINE B. FORREST, District Judge:
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: January 25, 2016
15-cv-6316 (KBF)
OPINION & ORDER
Plaintiff AIG Property and Casualty, Co. (“AIG”) brought this action, as
subrogee of Larry and Jane Scheinfeld, against Federal Express Corporation, FedEx
Corp., FedEx Corporate Services, Inc., and FedEx Ground Package System, Inc.
(collectively, “FedEx”) and Il Pellicano Hotel seeking to hold defendants liable for
negligently losing the Scheinfelds’ three bags of luggage and other goods while the
Scheinfelds were traveling in Italy.
Pending before the Court is FedEx’s motion to dismiss AIG’s amended
complaint pursuant to Rule 12(b)(6). FedEx’s primary ground for dismissal is that
AIG’s claim is barred by the two-year limitation provision of the Montreal
Convention, the international treaty that governs the liability of air carriers in the
international carriage of baggage and cargo. FedEx also raises several other
alternative grounds for dismissal, including that: AIG’s claim is preempted by the
Airline Deregulation Act, 49 U.S.C. § 41713, AIG fails to allege sufficient factual
content to allow the court to draw a reasonable inference of liability, and, finally,
dismissal is appropriate on forum non conveniens grounds. For the reasons set
forth below, the Court concludes that AIG’s claim is barred by the two-year
limitation provision of the Montreal Convention and therefore need not reach
FedEx’s other grounds for dismissal. FedEx’s motion is GRANTED, and the action
is DISMISSED WITH PREJUDICE against the moving defendants.1
I.
BACKGROUND
On July 6, 2015, AIG filed this action in the New York Supreme Court, New
York County, alleging that in July 2012, Larry and Jane Scheinfeld, while guests at
the Il Pellicano Hotel, entrusted the defendants with certain luggage and other
goods (worth in excess of $41,628.36), which were lost while in the custody and
control of FedEx as a result of FedEx’s negligence. (Compl. ¶¶ 3, 6, 10, 11, ECF No.
1-1.) On August 11, 2015, FedEx removed this action to this Court, arguing that
this Court has subject matter jurisdiction under the Montreal Convention, a treaty
of the United States, because the action involves an air shipment of cargo from
Milan, Italy, to New York, New York. (Notice of Removal ¶ 2, ECF No. 1.)
On August 18, 2015, FedEx moved to dismiss the complaint under Rule
12(b)(6) on the ground that AIG’s claim is barred by Article 35 of the Montreal
Convention. (ECF No. 5.) Specifically, FedEx asserted that the Montreal
1 Plaintiff also named “Il Pellicano Hotel” as a defendant, but stated in its opposition to FedEx’s
motion that it has not served Il Pellicano Hotel, which has not appeared in this action. (Decl. in Opp.
and Mem. of Law at 5.) Plaintiff has not indicated any intention to effect service on Il Pellicano
Hotel and has not requested an extension of time to serve this defendant. Therefore, solely as to Il
Pellicano Hotel, this action is dismissed without prejudice.
2
Convention is a treaty that provides the exclusive remedy for actions against air
carriers for loss or damage to cargo shipments and that AIG’s claim is barred by the
Montreal Convention’s two-year “limitation of actions” provision that serves as a
condition precedent to suit. (ECF No. 7.) On September 14, 2015, at the parties’
request, this Court stayed all discovery pending resolution of FedEx’s motion. (ECF
No. 17.)
In its September 29, 2015 opposition to FedEx’s motion, AIG argued that
FedEx failed to establish strict compliance with the Montreal Convention, and
supplemented its argument with facts extraneous to the complaint. (ECF No. 19.)
AIG further argued, in the alternative, that the Court should allow it one more
opportunity to amend its complaint. (ECF No. 19.) In light of AIG’s reliance on
facts outside the complaint in its opposition, on October 1, 2015, the Court granted
AIG’s request to amend and denied FedEx’s motion as moot. (ECF No. 20.) AIG
filed its First Amended Complaint on October 15, 2015 (ECF No. 21); FedEx again
moved to dismiss that complaint on November 5, 2015 (ECF No. 23).2
The First Amended Complaint supplemented AIG’s original bare-bones
complaint by adding the following allegations. The First Amended Complaint
alleges that FedEx took possession of the Scheinfelds’ three bags of luggage
pursuant to Tracking # 86191607044, but canceled the shipment because the bags
contained perfumes that could not be shipped from Italy to New York. (Am. Compl.
¶¶ 4-7, 10, ECF No. 22.) AIG alleges that the bags were lost while FedEx was in
2 Because AIG’s filing was initially rejected, it re-filed its First Amended Complaint on October 16,
2015. (ECF No. 22.) FedEx’s motion to dismiss the First Amended Complaint was also initially
rejected; FedEx re-filed that motion on November 10, 2015. (ECF No. 24.)
3
the process of shipping them by ground back to the Il Pellicano Hotel, after the air
transaction to New York was canceled. (Am. Compl. ¶¶ 11-12.) AIG alleges that
the bags were last known to be at a FedEx facility in Lonate Pozzolo, Italy, where
they were lost, stolen or destroyed while in the custody of one of the FedEx
defendants or another FedEx member company. (Am. Compl. ¶ 13.)
AIG further alleges that if the bags were subsequently shipped to another
location, they were shipped “without a proper airway bill or bill of lading,” and/or
they were lost, stolen or destroyed “after a cancelled air shipment request” and/or
were lost “during a new ground transaction while being sent back to the Il Pellicano
Hotel.” (Am. Compl. ¶¶ 14-16.) AIG also alleges that FedEx “failed to issue an
airway bill, receipt or any bill of lading for shipment back to the Il Pellicano Hotel.”
(Am. Compl. ¶ 17.) Finally, the First Amended Complaint attaches various
documentary materials relating to the events at issue, including an air waybill that
is crossed out and marked “returned”, screenshots of FedEx tracking documents for
the lost bags, and emails between various individuals (including Mrs. Scheinfeld,
her personal assistant, and employees of the Il Pellicano Hotel) discussing the lost
property. (See Am. Compl., Ex. 1.)
As stated above, FedEx moved to dismiss the First Amended Complaint on
several grounds, including that: (1) AIG’s claim is barred by the two-year limitation
period established in Article 35 of the Montreal Convention, (2) AIG’s claim is
preempted by the Airline Deregulation Act, 49 U.S.C. § 41713, (3) the allegations
lack factual content sufficient to establish a plausible inference of liability, and (4)
4
the action should be dismissed on forum non conveniens grounds because all of the
events giving rise to the suit took place in Italy.
AIG opposed the motion on December 9, 2015, again arguing that FedEx
failed to establish strict compliance with the Montreal Convention, and that neither
the Montreal Convention nor the Airline Deregulation Act apply because the air
component of the transaction was canceled before the luggage was lost. (ECF No.
30.) AIG also argues that the motion should be treated as one for summary
judgment because FedEx attached factual materials extraneous to the complaint to
its motion papers, and that such a motion is premature because no discovery has
yet occurred. (ECF No. 30.)3 AIG’s opposition does not respond to FedEx’s forum
non conveniens argument.
The motion became fully briefed when FedEx filed a reply on December 17,
2015. (ECF No. 31.)
II.
LEGAL STANDARDS
A.
Motion to Dismiss
Under Rule 12(b)(6), a defendant may move to dismiss a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
To survive a Rule 12(b)(6) motion, a plaintiff must provide grounds upon which his
claim rests through “factual allegations sufficient ‘to raise a right to relief above the
speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d
As explained below, the Court is able to resolve the pending motion in defendants’ favor without
need to look beyond the allegations of the First Amended Complaint or documents appended to it.
The Court may therefore appropriately consider defendants’ motion under Rule 12(b)(6), and need
not consider it as a motion for summary judgment.
3
5
Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other
words, the complaint must allege “enough facts to state a claim to relief that is
plausible on its face.” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir.
2010) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
In applying this standard, the Court accepts as true all well-pled factual
allegations, but does not credit “mere conclusory statements” or “[t]hreadbare
recitals of the elements of a cause of action.” Id. The Court will give “no effect to
legal conclusions couched as factual allegations.” Port Dock & Stone Corp. v.
Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Twomblv, 550 U.S. at
555). A plaintiff may plead facts alleged upon information and belief “where the
facts are peculiarly within the possession and control of the defendant.” Arista
Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010). But, if the Court can infer
no more than the mere possibility of misconduct from the factual averments—in
other words, if the well-pled allegations of the complaint have not “nudged
[plaintiff's] claims across the line from conceivable to plausible”—dismissal is
appropriate. Twombly, 550 U.S. at 570; Starr, 592 F.3d at 321 (quoting Iqbal, 556
U.S. at 679). Where necessary, the Court may supplement the allegations in the
complaint with facts from documents either referenced therein or relied upon in
6
framing the complaint. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d
Cir. 2010).
B.
Montreal Convention
“The Montreal Convention governs the liability of air carriers in the
‘international carriage of persons, baggage or cargo.’” Chubb Ins. Co. of Europe S.A.
v. Menlo Worldwide Forwarding, Inc., 634 F.3d 1023, 1026 (9th Cir. 2011) (quoting
Convention for the Unification of Certain Rules for International Carriage by Air,
May 28, 1999, S. Treaty Doc. No. 106–45, 1999 WL 33292734 (2000) (“Montreal
Convention”)); see Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 371 n.4 (2d Cir. 2004)
(stating that the Montreal Convention unifies and replaces the system of liability
that derived from the earlier Warsaw Convention). The Montreal Convention
entered force in 2003 “as the treaty exclusively governing the rights and liabilities
of passengers and carriers in international air transportation.” Bassam v. Am.
Airlines, 287 F. App’x 309, 312 (5th Cir. 2008).
Numerous courts have concluded that, like the earlier Warsaw Convention,
the Montreal Convention completely preempts claims brought under state law.
Paradis v. Ghana Airways Ltd., 348 F. Supp. 2d 106, 111 (S.D.N.Y. 2004) aff'd, 194
F. App’x 5 (2d Cir. 2006); Mateo v. JetBlue Airways Corp., 847 F. Supp. 2d 383, 38687 (E.D.N.Y. 2012); see also Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co.,
522 F.3d 776, 781 (7th Cir. 2008) (Enactment of the Montreal Convention “did not
alter the original Warsaw Convention goal of maintaining limited and predictable
damages amounts for airlines.”). Thus, claims falling within the treaty’s scope must
comply with its terms for bringing a claim. Weiss v. El Al Israel Airlines, Ltd., 433
7
F. Supp. 2d 361, 365 (S.D.N.Y. 2006) (“[F]or all air transportation to which the
Convention applies, if an action for damages, however founded, falls within one the
Convention’s three damage provisions, the Convention provides the sole cause of
action under which a claimant may seek redress for his injuries.”); Paradis, 348 F.
Supp. 2d at 110-11.
Article 18 of the Montreal Convention provides for carrier liability for
damage to cargo, subject to certain exclusions. Weiss, 433 F. Supp. 2d at 365. It
provides that a “carrier is liable for damage sustained in the event of the
destruction or loss of, or damage to, cargo upon condition only that the event which
caused the damage so sustained took place during the carriage by air.” Montreal
Convention, Ch. III, Art. 18 ¶ 1. Article 18 further states that the “carriage by air . .
. comprises the period during which the cargo is in the charge of the
carrier.” Montreal Convention, Ch. III, Art. 18 ¶ 3 (emphasis added).4 Article 18
goes on to state:
The period of the carriage by air does not extend to any
carriage by land, by sea or by inland waterway performed
outside an airport. If, however, such carriage takes place
in the performance of a contract for carriage by air, for the
purpose of loading, delivery or transhipment, any damage
is presumed, subject to proof to the contrary, to have been
the result of an event which took place during the
carriage by air. If a carrier, without the consent of the
4 Paragraph 3 of the Montreal Convention differs significantly from the analogous provision of the
Warsaw Convention, which was much longer. The Warsaw Convention defined transportation by air
as “the period during which the baggage or goods are in charge of the carrier, whether in an airport
or on board an aircraft, or, in the case of a landing outside an airport, in any place whatsoever.”
Commercial Union Ins. Co. v. Alitalia Airlines, S.p.A., 347 F.3d 448, 464 (2d Cir. 2003) (emphasis
added). The Explanatory Note to Article 18 of the Montreal Convention states that the purpose of
this modification was to “make clear that the Convention applies whenever and wherever the cargo
is in the possession custody or charge of the carrier, whether on or off airport premises.” Montreal
Convention Explanatory Note, Ch. III, Art. 18, ¶ 3 (quotation marks omitted).
8
consignor, substitutes carriage by another mode of
transport for the whole or part of a carriage intended by
the agreement between the parties to be carriage by air,
such carriage by another mode of transport is deemed to
be within the period of carriage by air.
Montreal Convention, Ch. III, Art. 18 ¶ 4. The Montreal Convention does not itself
define the scope of the term “performance of a contract for carriage by air.”
Article 35 of the Montreal Convention, which is titled “Limitation of Actions”,
states:
The right to damages shall be extinguished if an action is
not brought within a period of two years, reckoned from
the date of arrival at the destination, or from the date on
which the aircraft ought to have arrived, or from the date
on which the carriage stopped.
Montreal Convention, Ch. III, Art. 35 ¶ 1. Article 35 further states that the
“method of calculating that period shall be determined by the law of the court seised
of the case.” Montreal Convention, Ch. III, Art. 35 ¶ 2. By its terms, Article 35
extinguishes the right to damages. Chubb Ins., 634 F.3d at 1026. Relying for the
most part on cases interpreting an identical provision contained in Article 29(1) of
the Warsaw Convention, a number of courts have ruled that the two-year limitation
period constitutes a condition precedent that absolutely bars suit, including thirdparty actions, not commenced within two years. Am. Home Assur. Co. v. Kuehne &
Nagel (AG & Co.) KG, 544 F. Supp. 2d 261, 263 (S.D.N.Y. 2008); Ireland v. AMR
Corp., 20 F. Supp. 3d 341, 348 (E.D.N.Y. 2014); Mateo, 847 F. Supp. 2d at 387; see
also Fishman by Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 143 (2d Cir. 1998)
9
(stating that time limitation in Article 29 of the Warsaw Convention “is best termed
a condition precedent to suit”).
III.
DISCUSSION
FedEx’s motion raises the issues of whether, based on the allegations
contained in the First Amended Complaint, the Montreal Convention applies to
AIG’s negligence claim and, if so, whether FedEx may benefit from the treaty’s twoyear limitation provision. If the Montreal Convention applies, AIG does not dispute
that it failed to bring its claim within the two year period—the First Amended
Complaint alleges that the Scheinfelds’ luggage was lost in July 2012, while AIG
did not bring this action until approximately three years later in July 2015. For the
reasons set forth below, the Court concludes that AIG’s state law negligence claim is
covered by the Montreal Convention. The Court further concludes that AIG is
entitled to rely on the Montreal Convention’s two-year limitation provision, which
serves as a condition precedent to suit. As a result, AIG’s damages claim against
FedEx has been extinguished and this suit must be dismissed.
At the outset, AIG broadly contends that FedEx’s motion should be treated as
one for summary judgment and be denied as premature because FedEx has not
answered the complaint or provided any discovery. That argument is meritless.
Although FedEx filed a short declaration pertaining to the nature of the various
defendants’ operations (Decl. of Clement E. Klank III, ECF No. 26), the Court is, for
the reasons set forth below, able to rely solely on allegations within the First
Amended Complaint or documents appended to it to resolve this motion. There is
thus no need to convert FedEx’s motion to one for summary judgment. With respect
10
to AIG’s request for discovery, AIG has failed to show how permitting discovery to
proceed could lead to a different outcome. See Fed. R. Civ. P. 56(d); Kazolias v.
IBEWLU 363, 806 F.3d 45, 54 (2d Cir. 2015). Where the allegations in a complaint
do not plausibly state a claim, dismissal at the motion to dismiss stage is
appropriate. Twombly, 550 U.S. at 570.
Based on the allegations in the First Amended Complaint and the
documentation appended to it, AIG’s claim is clearly covered by the Montreal
Convention because it arises from the loss of an international air shipment of cargo
from Milan, Italy to New York, New York. The First Amended Complaint alleges
that the Scheinfelds entrusted FedEx with certain luggage at the Il Pellicano Hotel
and that the luggage was lost while FedEx was shipping it back to the Il Pellicano
Hotel because the luggage contained perfumes that could not be shipped. (Am.
Compl. ¶¶ 3, 11.)5 The First Amended Complaint further alleges that the bags were
lost, stolen or destroyed “while in the custody of one of the Fedex defendants or a
Fedex member company.” (Am. Compl. ¶ 13.) AIG also attaches to the First
Amendment Complaint a FedEx “International Air Waybill” for three pieces of
cargo to be shipped from the Il Pellicano Hotel to the Scheinfelds’ address in New
York. (Am. Compl., Ex. 1.)6 In short, the First Amended Complaint contains ample
Notably, the First Amendment Complaint never alleges (and AIG never argues) that FedEx
breached its contractual arrangement by making the decision to return the luggage to the Il
Pellicano Hotel. Even when viewing the allegations in the light most favorable to AIG, no inference
may be drawn that FedEx acted outside the scope of its contract by canceling the air transaction
with the intention to return the luggage to the Il Pellicano Hotel.
5
6 A “waybill” is a “document acknowledging the receipt of goods by a carrier or by the shipper’s agent
and the contract for the transportation of those goods.” WAYBILL, Black’s Law Dictionary (10th ed.
2014). An “air waybill” is a “waybill for transportation of cargo by air.” Id.
11
allegations showing that the transaction underlying the dispute was intended to
involve an international air shipment of cargo and that the luggage was lost while
FedEx was in the performance of its carrier duties.
AIG argues that the Montreal Convention does not apply based on its
allegations that “[w]hen the bags were lost, [FedEx was] in the process of shipping
them by ground back to the Il Pellicano Hotel,” and that the “bags were lost after
the air transaction to New York was canceled.” (Am. Compl. ¶¶ 11-12.) Those
allegations are, however, irrelevant to whether the claimed injury falls within the
scope of the Montreal Convention, as Article 18 provides for broader coverage than
AIG’s argument suggests.
Article 18 states that “carriage by air . . . comprises the period during which
the cargo is in the charge of the carrier.” Montreal Convention, Ch. III, Art. 18 ¶ 3.
Because AIG alleges that the luggage was lost while in the charge of FedEx (and
there is no allegation that FedEx had ceased to serve as a carrier), its claim falls
within the plain terms of paragraph 3 of Article 18. Unlike the prior language used
in Article 18 of the Warsaw Convention, the Montreal Convention does not limit the
scope of coverage of paragraph 3 to the period during which the carrier is in
possession of the cargo at an airport or on board an aircraft. The Explanatory Note
to paragraph 3 (which expounds on the reasons for the changes adopted from the
Warsaw Convention), shows that Article 18 is intended to cover damage to cargo
“whenever and wherever the cargo is in the possession custody or charge of the
carrier.” Based on AIG’s allegations, that condition is met here. Montreal
12
Convention Explanatory Note, Ch. III, Art. 18, ¶ 3. AIG’s state law claims are
therefore preempted, and AIG’s claim must comply with the Montreal Convention’s
terms to remain viable. Weiss, 433 F. Supp. 2d at 365; Paradis, 348 F. Supp. 2d at
110-11.
AIG argues that even if its claim is otherwise covered by the Montreal
Convention, defendants may not benefit from Article 35’s two-year limitation
provision because defendants have not established strict compliance with the
treaty’s terms. Specifically, AIG argues that FedEx did not follow necessary
procedures, and may not avail itself of Article 35, because FedEx failed to issue
separate air waybills as to each piece of luggage, and also failed to issue a separate
bill of lading, receipt or air waybill for its attempted return of the luggage to the Il
Pellicano Hotel. AIG cites Fujitsu Limited v. Federal Express Corporation, 247
F.3d 423 (2d Cir. 2001), in support of this argument. That case is inapposite.
Fujitsu involved a shipment of cargo from Narita, Japan to Austin, Texas
that FedEx (the shipper), sent back from Austin to Narita (on the order of the
consignee) by way of FedEx’s hub in Memphis, Tennessee. Id. at 426-27. Although
FedEx had provided a proper air waybill for the initial shipment as specified in
Article 8 of the Warsaw Convention (which was then still in effect), the shipment
from Austin to Memphis did not include an air waybill, and the shipment from
Memphis to Narita only included an air waybill that lacked certain required
information. Id. Faced with the question whether FedEx could benefit from the
Warsaw Convention’s limitation of liability to $9.07 per pound of cargo damaged in
13
the shipment back to Japan, the Second Circuit determined that, pursuant to
Article 9 of the Warsaw Convention, FedEx could not rely on the damages
limitation because FedEx did not strictly comply with the air waybill requirement.
Id. at 429.
The above recitation of the facts in Fujitsu shows that it is clearly
distinguishable from this case. Whereas Fujitsu involved three distinct shipments
of cargo (with only one shipment containing a compliant air waybill), this case
involves one shipment of three pieces of luggage that were all covered by the single
air waybill that AIG appended to the First Amended Complaint. (Am. Compl., Ex.
1.)7 Notably, AIG does not argue that this single air waybill was deficient in any
way. Fujitsu, furthermore, involved an entirely different limitation of liability
provision contained in Article 9 of the Warsaw Convention, the predecessor of the
Montreal Convention. In contrast to Article 9 of the Warsaw Convention, Article 9
of the Montreal Convention directly contradicts AIG’s argument. That provision
states that non-compliance with the Montreal Convention’s air waybill
requirements does “not affect the existence or the validity of the contract of
carriage, which shall, nonetheless, be subject to the rules of this Convention
including those relating to limitation of liability.” Montreal Convention, Ch. II, Art.
9; see Vigilant Ins. Co. v. World Courier, Inc., No. 07 CV 194 (CM), 2008 WL
7 AIG’s allegation that the luggage was lost while being returned to the Il Pellicano Hotel, instead of
while en route to its intended destination, is of no consequence. AIG cites no authority for the
proposition that a separate air waybill was required for the return of the Scheinfelds’ luggage under
these circumstances.
14
2332343, at *5 (S.D.N.Y. June 4, 2008). Thus, regardless of FedEx’s failure to
comply with air waybill requirements, the two-year limitation provision applies.
Finally, AIG argues that “plaintiffs should not be bound as AIG stands in the
shoes of its insured the Scheinfelds and they were not a party to the airway bill.”
(Decl. in Opp. and Mem. of Law at 8.) The Court does not perceive how this
statement bears on the viability of plaintiff’s claim, as plaintiff alleges only a claim
sounding in negligence, not breach of contract. The Court therefore rejects this
argument.
Having concluded that the Montreal Convention governs AIG’s claim and
that FedEx is entitled to the treaty’s limitation provision, AIG’s claim is
extinguished for failure to comply with Article 35.
IV.
CONCLUSION
For the reasons set forth above, FedEx’s motion to dismiss the First Amended
Complaint pursuant to Rule 12(b)(6) is GRANTED. Defendants Federal Express
Corporation, FedEx Corp., FedEx Corporate Services, Inc., and FedEx Ground
Package System, Inc. are DISMISSED WITH PREJUDICE. Defendant Il Pellicano
Hotel, which has not been served or appeared in this action, is dismissed without
prejudice.
15
The Clerk of Court is directed to close the motion at ECF No. 24 and to
terminate this action.
SO ORDERED.
Dated:
New York, New York
January 25, 2016
KATHERINE B. FORREST
United States District Judge
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?