Ojide et al. v. Air France et al
OPINION & ORDER re: 20 MOTION to Dismiss, filed by Delta Airlines, Inc., Air France. Because neither dehydration nor food deprivation are bodily injuries, the emotional distress alleged did not arise from a qualifying injury. Furtherm ore, even if plaintiffs plausibly claimed an injury, nowhere do they allege that it was caused "on board the aircraft or in the course of any of the operations of embarking or disembarking," as required to establish liability under the C onvention. Montreal Convention, art. 17, § 1. As such, this claim is DISMISSED. For the reasons stated above, the Court hereby GRANTS defendants' partial motion to dismiss at ECF No. 20. Plaintiffs' second claim is DISMISSED. The pa rties are to inform the Court within fourteen days of the issuance of this Opinion of the status of defendant Air France's offer of judgment on Claim 1, and as further set forth herein. (Signed by Judge Katherine B. Forrest on 10/2/2017) (ras)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANGELA I. OJIDE, JOSHUA E. OJIDE, PPA :
ANGELA I. OJIDE,
AIR FRANCE, DELTA AIRLINES, INC.,
DOC #: _________________
DATE FILED: October 2, 2017
OPINION & ORDER
KATHERINE B. FORREST, District Judge:
On May 2, 2017, plaintiffs Angela I. Ojide and Joshua E. Ojide (PPA Angela
I. Ojide) (together, “plaintiffs”) commenced this action under Articles 17 and 19of
the Warsaw Convention, 49 U.S.C. §§ 40104-05, as amended by the Montreal
Convention. Plaintiffs filed an Amended Complaint on May 30, 2017. (ECF No.
10.) Pending before the Court is defendants’ partial motion to dismiss plaintiffs’
Amended Complaint. For the reasons set forth below, that motion is GRANTED.
The factual allegations below are drawn from plaintiffs’ Amended Complaint,
(ECF No. 10), and presumed true for purposes of this motion.
On May 23-24, 2016, Plaintiffs, Angelia Ojide and her son, Joshua, traveled
from John F. Kennedy International Airport (“JFK”) to Port Harcourt, Nigeria, with
a layover in Charles De Gaulle International Airport (“Charles De Gaulle”) in Paris,
France. (Am. Compl. ¶¶ 9-10.) Plaintiffs checked four bags at the check-in counter
at JFK, one of which contained Joshua’s medically prescribed nutrition. (Id. ¶¶ 12,
14.) At Charles De Gaulle, Defendant Air France compelled plaintiffs to check a
carry-on bag that contained a smaller amount of Joshua’s medically prescribed
nutrition. (Id. ¶ 17.)
Upon plaintiffs’ arrival in Nigeria, all five bags were missing; because
plaintiffs had none of Joshua’s medication, Joshua subsequently suffered from
dehydration. (Id. ¶ 22.) The bags did not arrive for at least three days; as a result,
on May 27, Angela “had to hurriedly depart Nigeria and return to the United
States,” causing plaintiffs to miss Angela’s father’s—and Joshua’s grandfather’s—
burial. (Id. ¶¶ 21-22.) The bags never arrived in Nigeria, and they were delivered
to Angela’s home on May 31, 2016, allegedly in “severely damaged condition.” (Id. ¶
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, 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 to dismiss, a
plaintiff must provide grounds upon which their 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 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 that standard, the court accepts as true all well-pled factual
allegations, but it does not credit “mere conclusory statements” or “threadbare
recitals of the elements of a cause of action.” Id. Furthermore, 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). 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.
The Convention for the Unification of Certain Rules for International
Carriage by Air, Art. 1 et seq., May 28, 1999, S. Treaty Doc. No. 106-45 (2000) (the
“Montreal Convention”) “applies to all international carriage of persons, baggage, or
cargo performed by aircraft for rewards.” Montreal Convention, art. 1, § 1. The
Montreal Convention supersedes the Convention for the Unification of Certain
Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000,
137 L.N.T.S. 16 (the “Warsaw Convention”). The United States, France, and
Nigeria are all signatories to the Montreal Convention. See Uniting Aviation,
Current Lists of Parties to Multilateral Air Law Treaties, Int’l Civil Aviation Org.,
.aspx. An action for damages that occurs “in the carriage of passengers, baggage,
and cargo” must be brought subject to the Montreal Convention. Montreal
Convention, art. 29; see also Booker v. BWIA W. Indies Airways Ltd., 307 F. App’x
491, 493 (2d Cir. 2009) (holding that the Montreal Convention, rather than the
Warsaw Convention, in an action where plaintiff sought damages for stolen and
Under the Montreal Convention, an airline “carrier is liable for death or
bodily injury of a passenger upon condition only that the accident which caused
the death or injury took place on board the aircraft or in the course of any of the
operations of embarking or disembarking.” Montreal Convention, art. 17, § 1. To
bring a claim alleging liability under Article 17, a plaintiff must establish that “(i)
there has been an ‘accident’; (ii) resulting in ‘bodily injury’; and (iii) the incident
took place while on board the aircraft or during the operations of embarking or
disembarking.” Sobol v. Cont’l Airlines, No. 05-cv-8992, 2006 WL 2742051, at *3
(S.D.N.Y. Sept. 26, 2006) (citing Montreal Convention, art. 17).
Article 19 of the Montreal Convention establishes carrier liability for “delay
in the carriage by air of passengers, baggage or cargo.” Montreal Convention, art.
19. Damages under this provision are limited to 1,000 Special Drawing Rights per
passenger. Id. art. 22, § 2.
A. First Cause of Action
Plaintiffs’ first claim focuses on their lost and delayed baggage. Defendant
Air France does not challenge that it is liable under Article 19 of the Montreal
Convention. Air France has made an offer of judgment, (Defendants’ Memorandum
of Law in Support of Their Partial Motion to Dismiss the Amended Complaint
Under Federal Rule of Civil Procedure 12(b)(6) at 1 n.2), so this claim remains
B. Second Cause of Action
Plaintiffs’ alleged injuries in their second claim include dehydration,
deprivation of food, and various forms of emotional distress. None of these is a
“bodily injury” as defined under Article 17 of the Montreal Convention. Neither
dehydration nor food deprivation are “bodily injuries” under the Convention.
Vumbaca v. Terminal One Grp. Ass’n L.P., 859 F. Supp. 2d 343, 372 (E.D.N.Y. 2012)
(holding that no physical injury was alleged when the plaintiff claimed she suffered
from “dehydration, headache, nausea, disgust, hunger, thirst, and discomfort”). Nor
may plaintiffs recover for emotional distress under the Convention. See E. Airlines,
Inc. v. Floyd, 499 U.S. 530, 552 (1991) (holding that “an air carrier cannot be held
liable under Article 17 when an accident has not caused a passenger to suffer death,
physical injury, or physical manifestation of injury”); Ehrlich v. Am. Airlines, Inc.,
The Court dismisses this claim as it pertains to defendant Delta Airlines as plaintiffs’ Amended
Complaint does not allege facts to support Delta’s involvement. See Twombly, 550 U.S. 544.
360 F.3d 366, 401 (2d Cir. 2004) (holding that “mental injuries that are not caused
by bodily injuries are not damage sustained in the event of . . . bodily injury”
(internal quotation omitted)). And because neither dehydration nor food
deprivation are bodily injuries, the emotional distress alleged did not arise from a
qualifying injury. Furthermore, even if plaintiffs plausibly claimed an injury,
nowhere do they allege that it was caused “on board the aircraft or in the course of
any of the operations of embarking or disembarking,” as required to establish
liability under the Convention. Montreal Convention, art. 17, § 1. As such, this
claim is DISMISSED.
For the reasons stated above, the Court hereby GRANTS defendants’ partial
motion to dismiss at ECF No. 20. Plaintiffs’ second claim is DISMISSED. The
parties are to inform the Court within fourteen days of the issuance of this Opinion
of the status of defendant Air France’s offer of judgment on Claim 1.
New York, New York
October 2, 2017
KATHERINE B. FORREST
United States District Judge
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