OKEKE v. NORTHWEST AIRLINES, INC.

Filing 48

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE P. TREVOR SHARP on 2/26/2010, that Defendant's Motion for Summary Judgment (Docket No. 42 ) is GRANTED and that this action be dismissed with prejudice. A separate judgment will be entered contemporaneously with this Memorandum Opinion and Order. (Lloyd, Donna)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF NORTH CAROLINA

J O Y OKEKE, P l a i n t i f f, v. N O R T H W E S T AIRLINES, INC., D efe n d a n t.

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M E M O R A N D U M OPINION AND ORDER S H A R P , Magistrate Judge T h is matter comes before the Court on the Motion for Summary Judgment filed by D e f en d a n t Northwest Airlines, Inc. (Docket No. 42.) Plaintiff has responded to this motion, a n d Defendant filed a reply brief. (Docket Nos. 46, 47.) For the reasons stated herein, D e f en d a n t's motion will be granted, and this action will be dismissed. F A C T U A L AND PROCEDURAL BACKGROUND P la in tif f is an African-American female who purchased airfare tickets for herself and h e r daughter to travel from Raleigh-Durham International Airport (RDU) to Lagos, Nigeria o n May 11, 2005. (Docket No. 25, Amended Complaint ("Am. Compl.") at 1-2.) They p la n n e d to attend a memorial service for Plaintiff's mother and a wedding in which daughter C h ris tic e l Okeke was in the wedding party and Plaintiff was "Mother of the Day" and

S p o n s o r. (Id. at 2.) Plaintiff, her daughter, and her husband, Dr. Jim Okeke, arrived at the R D U Northwest Airlines ticket counter on May 11, 2005 where they expected to be charged f o r three excess checked bags. (Id.) However, the Northwest ticket agent charged them for a fourth excess bag. (Id.) A disagreement over the fees ensued, and a Northwest employee a s k e d Plaintiff's husband to leave the airport. (Id. at 3.) Dr. Okeke left the airport, and P la in tif f paid $160 for the disputed excess bag. (Id.) Plaintiff and her daughter left the ticket c o u n te r, passed through the security checkpoint, but then realized that she did not have the g a te number for the flight. (Id.) Plaintiff returned to the ticket counter for the gate in f o rm a tio n . (Id.) She was then informed by the Northwest employee that she would miss the flight and needed to retrieve her luggage. (Id.) Plaintiff suffered a panic attack and e m e rg e n c y medical services were called to assist her. (Id.) P la in tif f made arrangements to travel the next day on May 12, 2005. (Id. at 4.) On M ay 12, Plaintiff and her daughter checked in at the airport and proceeded to the gate where th e y were "fourth in line to board the plane." (Id.) While they were in line, a Northwest e m p lo ye e responsible for boarding the plane informed Plaintiff that she had too many carryo n bags. (Id.) Plaintiff asked for the Northwest ticket counter employee with whom she had c h e c k e d in to be called to the gate. (Id.) When that employee arrived at the gate, she in f o rm e d Plaintiff that she did not see an extra bag that Plaintiff had with her. (Id.) Plaintiff w a s informed that she needed to pay $160 as an excess luggage fee. (Id.) Plaintiff asked to

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s e e manager Jay Chapel who informed her that she would have to pay the fee. (Id.) P la in tif f 's offer to throw away the bag was rejected, and she was told that she would have to pay the fee or not board the flight. (Id. at 5.) Plaintiff tendered her credit card for the fee a n d asked for a camera to photograph the bag for which she was being charged $160. (Id.) M a n a g er Chapel then informed Plaintiff that neither she nor her daughter would be traveling w ith Northwest Airlines. (Id.) P la in tif f attempted to enter the plane but was blocked by Northwest employees. (Id.) T h e police were called to the gate. (Id.) Plaintiff fainted and was taken to Durham Regional H o s p ita l. (Id.) The following week, Plaintiff traveled to Nigeria via British Airways. (Id.) A s a result of these events, Plaintiff and her daughter missed the wedding which was held o n May 14, 2005. (Id. at 6.) Plaintiff now believes that she was placed on Defendant's "nof ly" list. (Id.) P la in tif f 's Amended Complaint raises two causes of action: (1) a violation of 42 U .S .C . § 1981 due to racial discrimination (id. at 6-8); and (2) breach of the airfare contract a n d the duty of good faith and fair dealing by Defendant terminating the ability of Plaintiff a n d her daughter to travel to Nigeria (id. at 8-9). Plaintiff seeks damages as relief as well as a tto rn e y's fees and costs. (Id. at 9.) O n March 30, 2009, Judge James A. Beaty entered an order granting Defendant's m o tio n to dismiss Plaintiff's claim based on 42 U.S.C. § 1981. (Docket No. 33.) Therefore,

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P la in tif f 's "only remaining claim in the present case is a claim for breach of contract, based o n Defendant's alleged breach of the airfare agreement by refusing [Plaintiff's] travel to N ig e ria ." (Id. at 4.) The court denied Defendant's motion to dismiss the contract claim w ith o u t prejudice to Defendant raising its defenses as part of a motion for summary ju d g m e n t. (Id. at 5.) P lain tiff originally filed a Complaint regarding these events on April 25, 2006 in state c o u rt. (Docket No. 46, Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J., at 1.) On J u n e 6, 2006, Plaintiff dismissed that action voluntarily without prejudice because Defendant h a d filed for bankruptcy protection on September 14, 2005. (Id.) On October 23, 2006, P la in tif f obtained through Defendant's bankruptcy counsel a stipulation. (Id., Ex. B.) By th is stipulation, Plaintiff released her claims for intentional misconduct by the Defendant as w e ll as her claims for punitive or exemplary damages. In exchange, the S tip u la tio n lifted the Bankruptcy stay to allow Plaintiff to assert her claims for " p re -p e titio n breach of contract and related injuries," but limited Plaintiff to re c o v ery "solely from the insurance coverage, if any, available under an in s u r a n c e policy" issued to Defendant to satisfy such claims. (Docket No. 33 at 2.) On June 21, 2007, Plaintiff filed her original Complaint in this action in state court which Defendant removed to this Court on July 18, 2007. (Docket No. 1.) In the present motion, Defendant argues that Plaintiff's breach of contract claim (in c lu d in g her associated claim of breach of the duty of good faith and fair dealing) should b e dismissed on several bases. (Docket No. 43, Def.'s Mem. in Supp. of Mot. for Summ. J.) -4-

D e f e n d a n t first contends that this action is controlled by the Montreal Convention on air tra v e l which provides for a two-year statute of limitation, and Plaintiff did not file this action w ith in the limitation period. (Id. at 5-11.) The other bases for dismissal are that Plaintiff re lea se d Defendant from the breach of contract claim by the stipulation she entered into in B a n k ru p tc y Court, that Defendant cannot be in breach of the airfare agreement because P la in tif f admits that she was carrying too many bags on the Northwest flight, and that, even if the breach of contract claim survives summary judgment, Plaintiff's claims for medical e x p e n s e s , pain and suffering, and mental anguish must fail because such damages are not a llo w e d in breach of contract cases. (Id. at 1.) P la in tif f responds with argument that the Montreal Convention does not apply to her c a se because she never boarded the aircraft. (Docket No. 46 at 5.) Plaintiff also contends th a t, even if the Montreal Convention's two-year statute of limitation does apply to her claim, D e f e n d a n t's bankruptcy tolled the limitation period. (Id. at 7-8.) Plaintiff further contends th a t the stipulation she signed does not bar her contract claim, that she did not have too many b a g s to board the plane, and that she should be allowed to recover beyond the contract price f o r mental anguish and physical injury. (Id. at 9-10.)

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D IS C U S S IO N A. S u m m a r y Judgment Standard S u m m a r y judgment is appropriate only when no genuine issue of material fact exists. S h e a ly v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). A genuine issue of fact exists if the e v id e n c e presented could lead a reasonable fact-finder to return a verdict in favor of the nonm o v ing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A court c o n sid e rin g a motion for summary judgment must view all facts and draw all reasonable in f e re n c e s from the evidence before it in a light most favorable to the non-moving party. Id. a t 255. The proponent of summary judgment "bears the initial burden of pointing to the a b se n c e of a genuine issue of material fact." Temkin v. Frederick County Comm'rs, 945 F.2d 7 1 6 , 718 (4th Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). If the m o v an t carries this burden, then the burden "shifts to the non-moving party to come forward w ith facts sufficient to create a triable issue of fact." Id. at 718-19 (citing Anderson, 477 U . S . at 247-48.) A mere scintilla of evidence supporting the non-moving party's case is in s u f f ic ie n t to defeat a motion for summary judgment. See, e.g., Shaw v. Stroud, 13 F.3d 7 9 1 , 798 (4th Cir. 1994); see also Anderson, 477 U.S. at 248 (non-moving party may not rest u p o n mere allegations or denials.)

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B.

A n a ly sis 1. A p p l ic a tio n of the Montreal Convention

T h e first issue to be determined is whether the Montreal Convention (the " C o n v e n tio n " ) applies to Plaintiff's breach of contract claim. Plaintiff relies upon Wolgel v . Mexicana Airlines, 821 F.2d 442 (7th Cir. 1987) to support her contention that because she n e v e r boarded the Northwest aircraft, Article 19 of the Convention does not apply to her c la im s . (Docket No. 46 at 4-6.) In Wolgel, the plaintiffs planned to travel from Chicago to A ca p u lco, Mexico, but when they "presented their tickets and baggage to Mexicana's p a ss e n g e r agent, they were informed that no seats were available on their flight." Wolgel, 8 2 1 F.2d at 443. Plaintiffs filed suit in state court raising claims of breach of contract, to rtio u s breach of a contractual relationship, and discriminatory bumping in violation of a f e d e ra l statute. Id. Defendant removed the case to federal court and argued that the c o m p lain t should be dismissed based on the two-year statute of limitation contained in A rtic le 29 of the Warsaw Convention. Id. The district court dismissed on that basis. Id. T h e Seventh Circuit, however, reversed after finding that the drafters of the Convention "did n o t intend the word `delay' in Article 19 to extend to claims, such as the Wolgels', that arise f ro m the total nonperformance of a contract." Id. at 444. Article 19 provided at the time that " [ t]h e carrier shall be liable for damage occasioned by delay in the transportation by air of

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p a ss e n g e rs , baggage, or goods." Id. Thus, the two-year statute of limitation did not bar the p la in tif f s ' claim. S im ila rly, in Weiss v. El Al Israel Airlines, Ltd., 433 F. Supp. 2d 361 (S.D.N.Y. 2006), a ff'd , 309 Fed. App'x 483 (2nd Cir. 2009), the plaintiffs were to fly from New York to Jeru salem and arrived at the airport "a little more than one hour before the flight and were c le a r e d by airline security, but were involuntarily denied boarding because the flight had b e e n oversold by the airline." Id. at 363. Plaintiffs remained at the airport for two days on s ta n d -b y status before flying on a different airline. Id. During this time, plaintiffs allegedly s u f f e re d emotional stress, worry, and anxiety. Id. They sued under federal regulations and s ta te tort and contract law. Id. at 362. The Weiss court recognized that Article 29 of the Montreal Convention "means that f o r all air transportation to which the Convention applies, if an action for damages, however f o u n d e d , falls within one of the Convention's three damage provisions, the Convention p ro v id e s the sole cause of action under which a claimant may seek redress for his injuries." Id . at 365; accord El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 176 (1999) (substantially s a m e provision of Warsaw Convention, Article 24, "precludes a passenger from maintaining a n action for personal injury damages under local law when her claim does not satisfy the c o n d itio n s for liability under the Convention"). The three damage provisions of the

C o n v e n tio n are: (1) Article 17 which provides for carrier liability for the death or bodily

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in ju ry of a passenger or the destruction, loss of or damage to her baggage; (2) Article 18 w h ic h provides for damage to cargo; and (3) Article 19 which, as set out above, provides for c a rrie r liability occasioned by "delay" in the carriage of passengers, baggage, or cargo. W e is s, 433 F. Supp. 2d at 365. Following the reasoning of Wolgel with regard to Article 19, th e Weiss court found that "plaintiffs' bumping claims should be read as grounded in a cause o f action for non-performance of contract and not delay. They are, therefore, not preempted b y the Montreal Convention." Id. at 369. N o n e th e le ss , Defendant does not argue that Article 19 applies to Plaintiff's contract c la im . Rather, Defendant relies upon cases finding that the plaintiffs' claims were preempted b y Article 17 of the Convention. See Docket No. 43 at 8; Tseng, 525 U.S. at 161 ("We th e re f o re hold that recovery for a personal injury suffered `on board [an] aircraft or in the c o u rs e of any of the operations of embarking or disembarking,' Art. 17, 49 Stat. 3018, if not a llo w e d under the Convention, is not available at all."); Marotte v. American Airlines, Inc., 2 9 6 F.3d 1255, 1260-61 (11th Cir. 2002) (finding that Convention's two-year limitation p e rio d applied because plaintiffs were in process of embarking aircraft ­ boarding passes in h a n d , at gate, attempting to board ­ when attacked); King v. American Airlines, Inc., 284 F .3 d 352, 355 (2nd Cir. 2002) (discrimination claims that arise in course of embarking (p lain tiff s boarded bus transporting them from terminal to aircraft) are preempted by Article 1 7 ).

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A rtic le 17 of the Convention provides that a carrier "is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which c a u se d the death or injury took place on board the aircraft or in the course of any of the o p e ra tio n s of embarking or disembarking." Convention for the Unification of Certain Rules R e la tin g to International Transportation by Air Done at Montreal on 28 May 1999, reprinted in S. Treaty Doc. No. 106-45, available at 1999 WL 33292734; see Weiss, 433 F. Supp. 2d a t 362 n.2. If Plaintiff Okeke's cause of action falls within the substantive scope of Article 1 7 , regardless of whether liability may be established, any relief must come under the terms o f the Convention. See King, 284 F.3d at 358-59. "Although by its terms Article 17 limits re c o v ery to passengers who have sustained `bodily injury,' the Supreme Court in Tseng made c le a r that this restriction on liability affects neither the analysis of the substantive scope of th e provision nor its preemptive effect." Id. at 359. Ultimately, Plaintiff Okeke's claims fall w ith in the substantive scope of Article 17 if Plaintiff's injury "arose from events that took p la c e during embarkation." 1 Id.

In attempting to distinguish Tseng, Plaintiff mistakenly conflates the scope inquiry a n d the liability inquiry. (Docket No. 46 at 6; see Acevedo-Reinoso v. Iberia Lineas Aereas d e Espana, S.A., 449 F.3d 7, 13 (1st Cir. 2006) (district court erroneously conflated the ap p lica b ility of the Convention with liability under the Convention; Convention's a p p lic a b ility rests on determination of whether passenger's injury occurred on board aircraft o r in course of embarking or disembarking).) Plaintiff alleges in her Amended Complaint t h a t she suffered "severe and painful physical and emotional injuries," and therefore her c la im is for "bodily injury" and falls within the scope of Article 17. (Docket No. 25 at 8.) -10-

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P la in tif f Okeke's injury arose, according to her deposition testimony, when she was a t the gate ready to board the aircraft. (Docket No. 43, Ex. A, Deposition of Joy N. Okeke, at 31.) When Defendant's agent told Plaintiff that she was not going to travel on Defendant's a irlin e , Plaintiff picked up her luggage, told her daughter "let's go," and "started heading to w a rd s the aircraft." (Id. at 32.) Plaintiff says that she got "in there" but "the captain or one o f them was standing in front of the aircraft" to block her from entering the aircraft. (Id.) C o u rts consider four factors to determine whether a passenger is "in the course of any o f the operations of embarking." King, 284 F.3d at 359. These factors are: (1) the activity o f the passengers at the time of the accident; (2) the restrictions, if any, on their movements; (3 ) the imminence of actual boarding; and (4) the physical proximity of the passengers to the g a te . Id. "Applying this test, courts have previously held that passengers who had not yet le f t the terminal were nonetheless engaged in an operation of embarkation when they had g a th e re d at the departure gate in order to board the bus that would take them to the plane." Id . (citing cases). According to Plaintiff's testimony, she was at the gate ready to board the p la n e and only failed to board the plane because she was physically blocked by someone e ith e r in the gateway or at the aircraft door. She was in the course of embarking when she w a s injured. See id. Plaintiff must therefore bring her claim under the Convention, in full

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c o m p lian c e with its two-year statute of limitation period, or not at all.2 See id. at 360; see a ls o Tseng, 525 U.S. at 161. 2. C o m p lia n c e with Statute of Limitation

P la in tif f does not dispute that if the Convention covers her claim, she is subject to a tw o -ye a r statute of limitation. (Docket No. 46 at 7.) This two-year period runs from the date o f arrival at the destination, or from the date on which the aircraft ought to have arrived, or f ro m the date on which the carriage stopped. Marotte, 296 F.3d at 1258 n.1. Plaintiff's f lig h t should have arrived on or before May 14, 2005. (Docket No. 43, Ex. A at 18.) Two ye a rs from that date was May 14, 2007. Plaintiff filed her original Complaint in this action (in state court) on June 21, 2007, beyond the limitation period. (Docket No. 1, Ex. A.) 3. E x te n s io n or Tolling of Limitation Period

P la in tif f does not contest Defendant's showing that the majority of circuits have c o n c lu d e d that a filing in violation of a stay is void rather than voidable. (Docket No. 46 at 7 .) Therefore, Plaintiff's filing of her initial action when the bankruptcy stay was in place

The Wolgel and Weiss plaintiffs apparently never progressed beyond the airline tic k e t counter before they were told that they had been bumped. Those courts did not discuss th e possible application of Article 17 presumably because those plaintiffs' injuries did not a ris e in an operation of embarkation. See Tseng, 525 U.S. at 171-72 (pointing out that c a rrie rs are liable under local law for injuries arising outside scope of Convention, such as if passenger is injured by malfunctioning escalator in the airline's terminal). Plaintiff alleges th a t Defendant breached the airfare contract by terminating her ability to travel to Nigeria. (D o c k e t No. 25 at 9.) This "termination" occurred when Plaintiff was at the gate on May 12, 2 0 0 5 and not the day before on May 11, 2005. -12-

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h a d no effect on the running of the limitation period. In addition, Plaintiff does not contest th a t the voluntary dismissal of her original Complaint did not toll the limitation period. (Id.) P lain tiff 's only argument that her limitation period should be extended is that "Defendant's b a n k ru p tc y tolled the applicable statute of limitations." (Id.) Plaintiff relies upon Person Earth Movers, Inc. v. Buckland, 136 N.C. App. 658, 525 S .E .2 d 239 (2000). In that case, the state court applied 11 U.S.C. § 108(c) in concluding that th e "statute of limitations for a state law claim therefore expires at the end of the limitations p e rio d described by the appropriate state law, and is extended only by that amount of time th e debtor is in bankruptcy." Id. at 240. Section 108(c) provides that a limitation period w h ic h has not expired at the time a bankruptcy petition is filed, expires at the later of the end o f such period, "including any suspension of such period occurring on or after the c o m m e n c em e n t of the case," or 30 days after the notice of the termination or expiration of th e stay. 11 U.S.C. § 108(c). The Buckland court fails to explain, however, why the time the d e b to r is in bankruptcy qualifies as a "suspension" period under this section. The section itse lf does not so state, and the legislative history of that provision "makes evident that § 1 0 8 (c )(1 ) refers to only `special suspensions' that are found in non-bankruptcy provisions s u c h as the Internal Revenue Code." Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1073 (2nd C ir. 1993). Therefore, Plaintiff Okeke may only avail herself of the 30-day extension of the lim ita tio n period which began to run upon expiration of the automatic stay ­ if that extension

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is helpful to her. See New Pentax Film, Inc. v. Trans World Airlines, Inc., 936 F. Supp. 142, 1 4 8 (S.D.N.Y. 1996) (plaintiff's filing was timely under section 108(c) when filed same day as lifting of automatic stay). P la in tif f 's two-year limitation period began to run on May 14, 2005, when her flight sh o u ld have arrived, and would have expired on May 14, 2007. The bankruptcy automatic s ta y in this case expired on October 23, 2006, upon entry of the stipulation which lifted the s ta y as to Plaintiff's claims. (Docket No. 43, Ex. B.) The "later date" between November 2 3 , 2006 (30 days after the lifting of the stay) and May 14, 2007, is May 14, 2007. T h e re f o re , section 108(c) does not serve to extend Plaintiff's limitation period. The statute ra n as to Plaintiff Okeke on May 14, 2007, and her filing of this action on June 21, 2007 falls o u ts id e the limitation period. 4. D efe n d a n t's Remaining Arguments

B e c au s e Plaintiff's filing is barred by the two-year statute of limitation period of the M o n tre a l Convention, Defendant's remaining arguments for summary judgment need not be a d d re ss e d .

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C o n c lu s io n F o r the foregoing reasons, IT IS ORDERED that Defendant's Motion for Summary J u d g m e n t (Docket No. 42) is GRANTED and that this action be dismissed with prejudice. A separate judgment will be entered contemporaneously with this Memorandum Opinion and O rde r.

/s/ P. Trevor Sharp United States Magistrate Judge

D a te : February 26, 2010

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