Arif Naqvi v. Turkish Airlines, Inc. ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
SYED M. ARIF NAQVI, )
)
Plaintiff, )
)
v. ) Civil Case No. 14—01066 (RJL)
)
TURKISH AIRLINES, INC, ) F I L E D
)
Defendant. ) FEB 23 2015
) Clerk. U.S. District at Bankruptcy
w Courts terms District of Columbia
MEMORAND OPINION
(Februaryfl 2015) [Dkt #10]
Pro se plaintiff Syed M. Arif Naqvi (“plaintiff”) commenced this action against
defendant Turk Hava Yollaril (“defendant”) on June 4, 2014 in the District of Columbia
Superior Court, seeking damages for breach of contract and discrimination. See Notice
of Filing Am. Exh., Exh. A (Superior Court Compl.) (“CompL”) [Dkt. #4-1]. Defendant
removed the action to this Court on June 25, 2014. See Notice of Removal [Dkt. #1].
Now before the Court is defendant’s Motion to Dismiss Plaintiff’s Complaint. See Turk
Hava Yollari A.O.’s Mot. to Dismiss Pl.’s Comp]. ("'Def.’s Mot”) [Dkt #10]. Upon
consideration of the parties’ pleadings, relevant law, and the entire record herein, the
Court GRANTS defendant’s Motion to Dismiss and DISMISSES this action.
1 Defendant contends that it was incorrectly named as “Turkish Airlines, Inc.” in plaintiff’s suit.
Turk Hava Yollari A.O.‘s Mot. to Dismiss Pl.’s Compl. (“Def’s Mot”) [Dkt. #10]
l
BACKGROUND
On February 13, 2014, plaintiff and his wife traveled from Washington Dulles
International Airport to Istanbul, Turkey on a flight operated by defendant. See Compl. 1]
7. During check-in, plaintiff requested exit row seating. See Compl. 11 7. Mr. Oyat
(“Oyat”)fl—a representative of defendant~informed plaintiff that all of the exit row seats,
which were reserved for “Elite Class” passengers, had already been assigned. See
Comp]. "ll 8. Oyat also allegedly explained that only passengers taller than six feet were
assigned to exit rows, and that plaintiff, at six feet tail, was ineligible for such seating.
See Compl. ‘ll 8. Plaintiff initially reSponded by demanding the return of his luggage,
however——afier being offered a seat with “leg space”——plaintiff agreed to board the
plane. See Compl. 1i 9. When plaintiff boarded the plane, he noticed that all of the exit
row seats were occupied by passengers who appeared to be of Turkish descent, six of
whom were women under six feet. See Comp]. 1",. 10. Once seated, plaintiff realized that
his seat was not, as Oyat had allegedly promised, a “leg space seat,” causing plaintiff
great distress. See Comp]. 1] 10. This distress was intensified when the crew allegedly
violated airline “safety requirements,“ by failing to both “provide any information
regarding safety” and to “illuminate the seat belt signs before landing.” See Comp]. 'J 12.
Plaintiff claims that defendant’s denial of an exit row and “leg space” seat,
coupled with the flight staff‘s purported failure to follow safety protocols, caused him
“extreme emotional” distress that manifest in physical malaise and a loss of appetite
during the flight. See Compl. 1H] 1 1—12. Plaintiff commenced the instant action in DC.
Superior Court on June 4, 2014, alleging breach of contract and discrimination under a
2
his flight experience, but they are not compensable harms under Article 17, and as such,
his claims must fail. '0
CONCLUSION
Thus, for all the foregoing reasons, the Court GRANTS defendant‘s Motion to
Dismiss and DISMISSES this action with prejudice. An Order consistent with this
decision accompanies this Memorandum Opinion.
[0 Plaintiff also demands punitive damages. This demand must, however, fail because Article 29
of the Montreal Convention explicitly precludes recovery for “punitive, exemplary or any other
non—compensatory damages.” See Montreal Convention, art. 29.
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kaleidoscope of federal statutes, including 42 U.S.C. § 1981 and sections 413 1 0(a) and
40127(a) of the Airline Deregulation Act of 1978 (“ADA”). See Compl. 111115—22.
Defendant removed this action to federal court on June 25, 2014. See generally Notice of
Removal. Now before the Court is defendant’s Motion to Dismiss.
STANDARD OF REVIEW
The Court may dismiss a complaint for failure to state a claim upon which relief
may be granted. See Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss under
Rule 12(b)(6), the court must “liberally” construe the complaint “in favor of the plaintiff,
who must be granted the benefit of all inferences that can be derived from the facts
alleged.” Schuler v. United States, 617 F.2d 605, 608 (DC. Cir. 1979) (internal citation
and quotation marks omitted). However, in considering the pleadings, the Court is not
required to “accept legal conclusions cast in the form of factual allegations,” or to rely on
inferences “unsupported by the facts set out in the complaint.” Kowal v. MCI Commc ’ns
Corp, 16 F.3d 1271, 1276 (DC. Cir. 1994). Thus, to withstand dismissal, the
allegations, when read in a light most favorable to the plaintiff, must “raise a right to
relief above the speculative level.” Be]! All. Corp. v. Twombly, 550 US. 544, 555 (2007).
The same holds true for pro se litigants. Although held to “less stringent” standards than
licensed attorneys, pro se litigants must nonetheless articulate a cognizable claim for
relief in order to avoid dismissal. See Haines v. Kerner, 404 U.S. 519, S20 (1972).
ANALYSIS
1. Preemption Under The Montreal Convention
The touchstone of this Court’s analysis must be, and is, the Montreal Convention,
a multinational treaty governing the "international carriage” of passengers. See
Convention for the Unification of Certain Rules for International Carriage by Air
Concluded at Montreal art. 1, opened for signature May 28, 1999, 2242 U.N.T.S. 309, S.
Treaty Doc. No. 106-45 (“Montreal Convention” or “Convention”). The Montreal
Convention, which entered into force in the United States on November 4, 2003, updated
and replaced “the uniform system of liability for international air carriers previously
established by the Warsaw Convention.” 2 In re Nigeria Charter Flights Contract Litig,
520 F. Supp. 2d 447, 452 (E.D.N.Y. 2007) (citing Ehrlich v. Am. Airlines Inc, 360 F.3d
366, 371 n.4 (2d Cir. 2004)). Like its predecessor, the “cardinal purpose” of the Montreal
Convention is to establish uniform “rules governing the claims arising from international
air transportation.” See El Al Isr. Airlines, Ltd. v. Tseng, 525 U.S. 155, 169 (1999); see
also Trans World Airlines, Inc. v. Franklin Mint Corp, 466 US. 243, 256 (1984) (noting
that the overriding purpose of the Warsaw Convention was to establish a “stable,
predictable, and internationally uniform” system of carrier liability).3 Article 29 of the
2 The “Warsaw Convention“ is a reference to the Convention for the Unification of Certain Rules
Relating to International Transportation by Air, October 12, 1929, 49 Stat. 3000, 137 L.N.T.S.
11 (1934).
3 Because “efforts were made in the negotiations and drafting [of the Montreal Convention] to
retain existing language and substance of other provisions to preserve judicial precedent relating
to other aspects of the Warsaw Convention,“ the case law interpreting the Warsaw Convention
applies with equal force to comparable provisions in the Montreal Convention. See Bank v.
Virgin Atl. Airways Lth 473 F. Supp. 2d 591, 596-97 (S.D.N.Y. 200?) (quoting S. Exec. Rep.
108-8, at 3 (2003)).
Montreal Convention facilitates this objective by requiring that “any action for damages,
however founded . . . can only be brought subject to the conditions and such limits of
liability as are set out in this Convention.” Montreal ConventiOn, art. 29. Courts
applying the Montreal Convention hew to this dictate and routinely find that the
Convention, where applicable, preempts state law remedies for claims within its
“substantive scope.” See Tseng, 525 US. at 161 (“[R]ecovery for a personal injury
suffered ‘on board [an] aircraft or in the course of any of the operations of embarking or
disembarking,’ . . . if not allowed under the Convention, is not available at all.”)4; In re
Nigeria Charter Flights Contract Litig, 520 F. Supp. 2d at 453 (“[T]he Montreal
Convention preempts state law claims falling within its scope”).S
The threshold question then, is whether the Montreal Convention applies here. It
most assuredly does. The Convention applies to all claims arising from “international
carriage,“ broadly defined as “any carriage in which . . . the place of departure and the
place of destination . . . are situated either within the territOries of two State Parties, or
within the territory of a single State Party if there is an agreed stopping place within the
territory of another State.” Montreal Convention, art. 1 1| 2. Plaintiff’s journey falls
4 Although the Supreme Court in Tseng was construing the Warsaw Convention, because the
Warsaw and Montreal Conventions share substantially similar language, courts have construed
them as having “substantially the same preemptive effect.” Paradis v. Ghana Airways Ltd. , 348
F. Supp. 2d 106, 111 (S.D.N.Y. 2004).
5 Plaintiff contends that “the preemptive effect of the Montreal Convention is not so clear.” Pl.’s
Resp. To Def.’s Mot. To Dismiss Pl.’s Compl. at 3 [DkL #1 I]. Plaintiffis correct that courts are
split as to whether the Montreal Convention completely prcempts state law for the purposes of
establishing federal question jurisdiction under 28 U.S.C. § 1331. However, that is not the issue
here. Federal jurisdiction in this action is premised on diversity, and this Court need not evaluate
the narrower question of whether the Montreal Convention provides a basis for federal question
jurisdiction under 28 U.S.C. § 1331.
within this ambit. He purchased a ticket for a flight originating in the United States—a
State Party to the Montreal Convention—with stops in other territories, including Turkey,
Egypt, and Pakistan. See Dec]. of Handan Corekci 1] 5 [DkL #10-2]. His was ajoumey
marked by the prototypical features ot"‘intemational carriage.” Having determined that
the Montreal Convention applies, this Court next inquires whether plaintiff’s specific
claims are preempted by the Convention.
To determine whether a particular claim is preempted by the Montreal
Convention’s “substantive scope,” courts “are directed to look to the Convention’s
liability provisions.” See King v. Am. Airlines, Inc, 284 F.3d 352, 358 (2d Cir. 2002)
(citing Tsertg, 525 US. at 171-72). The Convention imposes three categories of strict
liability, and where one of these categories applies, it “preempts the remedies of a
signatory’s domestic law." See Best v. BWIA W. Indies Airways Ltd, 581 F. Supp. 2d
359, 362 (E.D.N.Y. 2008). Compensation for the type of personal injury alleged here is
governed by Article 17, which imposes liability for “bodily injury” caused by an
“accident” that transpired “on board the aircraft or in the course of any of the operations
of embarking or disembarking.”6 See Montreal Convention, art. 1? 1| 1.
More Specifically, numerous courts have held that Article 17 preempts federal
discrimination claims. This Court, mindful of the Convention’s “cardinal” dictate of
uniformity, agrees. See Aria v. Delta Airlines, 692 F. Supp. 2d 693, 702—03 (ED. Ky.
6 Although Article 17 limits recovery to passengers that have sustained “bodily injury,” the
Supreme Court made clear that this restriction does not obviate the Convention’s preemptive
effect. See Tseng, 525 U.S. at 161 (holding that the analogous Article 17 of the Warsaw
Convention preempts any action for injury suffered onboard an aircraft regardless of whether
bodily injury is alleged).
2010) (holding that plaintiff’s discrimination claim was preempted by the Montreal
Convention); Moleje v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 494-95
(S.D.N.Y. 2009) (same); see also Kaiantar v. Lufiansa German Airlines, 276 F. Supp. 2d
5, 9-10 (D.D.C. 2003) (“While Article 17 does not mention federal statutory or civil
rights claims . . . when applicable, the Warsaw Convention preempts statutory
discrimination claims”); Gibbs v. Am. Airlines Inc, 191 F. Supp. 2d 144, 148 (D.D.C.
2002) (finding that the Warsaw Convention preempted plaintiff‘s federal discrimination
claims). Plaintiff is thus foreclosed from the profusion of federal discrimination law
invoked in his complaint and must seek redress for discrimination under Article 17. 7
The same is true for plaintiff’s breach of contract claim. Although some courts
have held that the Montreal Convention does not preempt claims of contractual non-
performance,8 other courts, wary of attempts to circumvent the Convention through artful
pleading, allow preemption of common law contract claims that are indistinct from
7 Even if the Montreal Convention did not preempt plaintiff‘s discrimination claims under
sections 41310(a) and 40127(a) of the ADA, these claims fail for the separate reason that the
ADA does not confer a private right of action. See Casas v. Am. Airlines. Inc, 304 F.3d 517,
522 n.8 (5th Cir. 2002) (stating that because section 40127 of the ADA does not “expressly
identify domestic air passengers as a class the Congress intended to benefit,” the plaintiff airline
passengers could not bring a private right of action against the airline carrier); see also Dennis v.
Delta Airlines, Inc, No. lO-CV-973 (DI.I)(LB), 2011 WL 4543487, at *5 (E.D.N.Y. Sept. 29,
201 1) (noting that section 40127(a) of the ADA “does not confer a private right of action”);
Gibbs v. Am. Airlines. Inc, 191 F. Supp. 2d 144, 146 (D.D.C. 2002) (noting that “[s]ection
41310 [of the ADA] does not provide a private cause of action”). But see Aiasady v. NW.
Airiines Carp, No. 02~CV—3669 (RHKXAJB), 2003 WL 1565944, at *10 11.13 (D. Minn. Mar. 3,
2003) (“[A] private cause of action might exist for violations of § 40127(a).”).
3 See, e.g., Nankin v. Cont '1 A irlines, Inc, No. CV—09—07851 (MMM)(RZx), 2010 WL 342632,
at *7 (CD. Cal. Jan. 29, 2010) (refusing to preempt plaintiff’s contract claims where defendant
altogether failed to perform on the contract); Weiss v. E! A! Isr. Airlines, Ltd, 433 F. Supp. 2d
361, 369 (S.D.N.Y. 2006), afl'd, 309 F. App’x 483 (2d Cir. 2009) (same).
plaintiffs’ tortious theories of harm. See Dogbe v. Delta Airlines, Inc, 969 F. Supp. 2d
261, 275 (E.D.N.Y. 2013) (finding that plaintiff’s breach of contract claim, which was
rooted in identical facts as his tort claim, was preempted by the Convention); see also
Carey v. United Airlines, 255 F.3d 1044, 1052-53 (9th Cir. 2001) (finding that the
Warsaw Convention governed, and preempted, claims for emotional distress and breach
of contract arising from the same incident). I find the pro-preemption line of cases
persuasive in this context. Plaintiff’ s breach of contract claim is premised on the same
discrete set of allegations giving rise to his discrimination claim: (1) defendant‘s failure
to assign him an exit row seat and (2) the misrepresentation that he would be given extra
legroom. See Compl. 1H 14, 16. These breaches resulted, moreover, in the same injuries
caused by plaintiffs alleged discrimination: severe emotional distress, malaise, and loss
of appetite. See Compl. W 10-12. Nowhere does plaintiff allege—nor can lie—that
defendant altogether failed to perform on the contract. Rather, the gravamen of his
contract claim is the purported harm he sustained from how the contract was performed.
Plaintiff’s contract claim is, to put it bluntly, a tort masquerading as a contractual dispute.
Stripped of this guise, plaintiff’s contract claim is indistinct from his discrimination
claims, and must be brought “under the terms of the Convention or not at all.” See King,
284 F.3d at 357 (citing Tseng, 525 US. at 161).
II. Failure To Plead A Claim For Relief
Thus, to survive dismissal, plaintiff must state a cognizable claim for relief under
Article 1? of the Montreal Convention. To shoehorn his allegations into an actionable
claim, plaintiff must Show that: (1) an accident (2) caused him bodily injury (3) either “on
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board the aircraft or in the course of any of the operations of embarking or
disembarking.” Montreal Convention, art. 17 1] 1. Given that plaintiff‘s discrimination
and breach of contract claims flow from the same factual nexus, I consider them together
and conclude that plaintiff has not sustained his burden under Article 17. How so?
The crux of plaintiff“ s complaint is that he suffered “extreme emotional and
physical distress” after defendant refused to assign him either an exit row or a “leg space”
seat. See Comp]. 1] I 1. There is no question, and defendant does not dispute, that these
incidents occurred on board the aircraft.9 Neither of the alleged incidents, however, is an
“accident” within the meaning of Article 17. By definition, Article 17 accidents are
“unexpected or unusual” events. See Air France v. Saks, 470 U.S. 392, 405-06 (1985)
(interpreting an analogous provision of the Warsaw Convention). When the alleged
injury “results from the passenger’s own internal reaction to the usual, normal, and
expected operation of the aircraft, it has not been caused by an accident, and Article 17”
does not apply. Id. at 406. Disputes over airline seat assignments are “neither
unexpected nor unusual” and an airline’s refusal to reassign a passenger’s seat is
unequivocally not an Article 17 “accident.” See Sewer v. L1AT(1974) Ltd, Civ. A. No.
04-76, 2011 WL 635292, at *3 (D.V.I. Feb. 16, 201 1) (holding that a seating dispute is
not an “accident” under Article 17 of the Montreal Convention); Dogbe, 969 F. Supp. 2d
9 Courts deciding whether a passenger’s injury occurred “on board the aircraft” or during “any
operations of embarking” for the purposes of Article 1? look to “(1) the passenger’s location at
the time of injury; (2) the passenger’s activity at the time of the injury; and (3) the degree of
control exercised by the airline over the passenger.” See Kalamar, 276 F. Supp. 2d at 11
(analyzing an analogous provision of the Warsaw Convention). Although the events leading up
to plaintiff’s denial of a requested seat assignment began at the airline ticket counter prior to
boarding, the locus of plaintiff asserted injuries—“extreme emotional and physical distress”—
manifest on board the airline itself. See Compl. 111 1. Article 17 therefore governs.
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at 272 (holding that an airline’s refusal to switch a passenger’s seat is not an Article 17
“‘accident”). As such, plaintiff has not pled a cognizable accident under the Montreal
Convention.
Nor, for that matter, does plaintiff allege that an actionable “bodily injury”
resulted from defendant’s purported transgressions. See Montreal Convention, art. 17 1] 1.
Plaintiff claims that defendant‘s failure to assign him the seat of his choice wrought
“extreme emotional and physical distress” that caused plaintiff appetite loss and general
malaise. Compl. 1| 11. This “anxiety” was compounded by defendant’s failure to follow
certain safety protocols. Compl. 11 12. Article 17, however, precludes recovery for
standalone mental injuries that do not flow directly from the passenger’s physical injury.
See Ehrlich, 360 F.3d at 376 (“[R]ecovery for mental injuries is permitted only to the
extent the [emotional] distress is caused by the physical injuries sustained”) (citations and
internal quotation marks omitted). Similarly, Article 17 precludes compensation for
physical manifestations ofmcntal injuries. To prevail, a plaintiff’s “mental injury must
proximately flow from physical injuries caused by the accident.” See In re Aircrash at
Little Rock, Ark, on June I, 1999 (Lloyd), 291 F.3d 503, 510 (8th Cir. 2002) (interpreting
an analogous provision of the Warsaw Convention). Unfortunately for plaintiff, the
“indignity, humiliation, and extreme stress” he alleges may well have adversely impacted
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