Gathaiya et al v. United Airlines

Filing 18

ORDER - The court DIRECTS the clerk to designate the document filed September 7, 2017, 16 , as a motion for extension of time or, in the alternative, motion for voluntary dismissal without prejudice. The court DIRECTS the cle rk to file the letters delivered September 13, 2017, combined, as a motion for extension of time or, in the alternative, motion for voluntary dismissal without prejudice. So construed, plaintiffs motions for extension are DENIED and plaintiffs motion s for voluntary dismissal without prejudice are GRANTED. This action is DISMISSED WITHOUT PREJUDICE, and the clerk is DIRECTED to close this case. Accordingly, defendants motion to dismiss 7 is DENIED AS MOOT. Signed by District Judge Louise Wood Flanagan on 10/4/2017. (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:17-CV-264-FL
JOHN KIMIRI GATHAIYA and SALLY
NJOKI NGUGI,
Plaintiffs,
v.
UNITED AIRLINES
Defendant.

)
)
)
)
)
)
)
)
)
)
)

ORDER

This matter is before the court upon defendant’s motion to dismiss (DE 7), and upon
plaintiff’s correspondence directed to the court, including document filed September 7, 2017,
requesting extension of time or in the alternative voluntary dismissal without prejudice (DE 16).
BACKGROUND
Plaintiffs commenced this action pro se asserting that defendant violated “federal law” based
upon the following allegations:
Plaintiffs purchased roundtrip to Kenya from Raleigh NC. Plaintiffs were early for
flight and were checked in and issued boarding passes and bags checked in.
Mechanical failures cause significant delays thereby the plaintiffs missed their
connecting flights and bags were lost. Plaintiffs had limited time in Kenya and the
delay ruined the trip for the plaintiffs who only had One week scheduled in Kenya.
Plaintiffs were on vacation at work which was wasted in transit. Defendants failed
to adequately accommodate and compensate the plaintiffs. Plaintiffs did not have
access to their bags during the short stay in Kenya. Plaintiffs incurred unnecessary
and unplanned expenses due to defendants actions. Plaintiffs suffered emotional
distress due to Defendants actions. Defendants actions have not been excused.
(Compl. at 2). Plaintiffs seek the following relief:

Entry of judgment for plaintiff for damages to recover for expenses incurred for
transportation costs, accommodation costs, food expenses, luggage expenses costs
to replace clothes, costs for transportation, wasted vacation pay and lost wages.
Recover damages for emotional distress.
(Id. at 3). Defendant moves to dismiss on multiple grounds: 1) plaintiffs do not plead any basis for
federal jurisdiction; 2) there is no mention of the legal basis for their claim; 3) any claim based upon
the facts alleged is substantially limited by the Convention for the Unification of Certain Rules for
International Carriage by Air, Done at Montreal, opened for signature May 28, 1999, S. Treaty Doc.
No. 106-45, at 27 (2000), 2242 U.N.T.S. 350 (the “Montreal Convention”), and plaintiffs have not
pleaded a claim under the terms of that convention.
Plaintiffs sought, and the court granted, two extensions of time to file a response to the
instant motion to dismiss, with latest response due September 13, 2017. On September 7, 2017,
plaintiffs filed a document expressing appreciation for extensions of time, asking for advice on
whether they can represent themselves as they have not been able to obtain or afford a lawyer, and,
in the event dismissal is required, asking for dismissal without prejudice so that they can refile in
a small claims court. On September 13, 2017, plaintiffs delivered to the court, but the court has not
filed, an additional letter requesting extension of time and an additional letter requesting voluntary
dismissal without prejudice.
COURT’S DISCUSSION
The court does not reach at this juncture the merits of defendant’s motion to dismiss, in light
of plaintiffs’ requests for extension of time and for voluntary dismissal without prejudice. Due to
the nature of the documents plaintiffs filed and delivered to the court, the court DIRECTS the clerk
to designate the document filed September 7, 2017, as a motion for extension of time or, in the
alternative, motion for voluntary dismissal without prejudice. The court DIRECTS the clerk to file
2

the letters delivered September 13, 2017, combined, as a motion for extension of time or, in the
alternative, motion for voluntary dismissal without prejudice.
In light of all the circumstances presented, including the nature and form of the complaint,
the arguments raised by defendant in moving to dismiss, and plaintiffs’ expressed inability to gather
a response thereto, the court in its discretion DENIES plaintiffs’ motions for further extension of
time. However, voluntary dismissal without prejudice is appropriate under the circumstances.
Federal Rule of Civil Procedure 41 permits a plaintiff to voluntarily dismiss an action by filing “a
notice of dismissal before the opposing party serves either an answer or a motion for summary
judgment,” as is the case here. Fed. R. Civ. P. 41(a)(1)(A)(i). Such a dismissal is without prejudice.
Id. 41(a)(1)(B). Accordingly, plaintiffs’ alternative motion for voluntary dismissal without prejudice
is GRANTED.
CONCLUSION
Based on the foregoing, the court DIRECTS the clerk to designate the document filed
September 7, 2017, (DE 16), as a motion for extension of time or, in the alternative, motion for
voluntary dismissal without prejudice. The court DIRECTS the clerk to file the letters delivered
September 13, 2017, combined, as a motion for extension of time or, in the alternative, motion for
voluntary dismissal without prejudice. So construed, plaintiffs’ motions for extension are DENIED
and plaintiffs’ motions for voluntary dismissal without prejudice are GRANTED. This action is
DISMISSED WITHOUT PREJUDICE, and the clerk is DIRECTED to close this case. Accordingly,
defendant’s motion to dismiss (DE 7) is DENIED AS MOOT.
SO ORDERED, this the 4th day of October, 2017.
_________________________
LOUISE W. FLANAGAN
United States District Judge

3