Dagi v. Delta Airlines, Inc.

United States Court of Appeals
For the First Circuit
No. 19-1056
T. FORCHT DAGI, M.D.,
Plaintiff, Appellant,
v.
DELTA AIRLINES, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
Henry Herrmann for appellant.
Christopher A. Duggan, with whom H. Reed Witherby, Pauline A.
Jauquet, and Smith Duggan Buell & Rufo LLP, were on brief, for
appellee.
June 2, 2020
THOMPSON, Circuit Judge. When an airline passenger
suffers "bodily injury . . . on board [an] aircraft or in the
course of any of the operations of embarking or disembarking," his
or her only legal recourse is to sue the airline for recovery under
the Montreal Convention (a multilateral treaty -- more on that in
a minute) that preempts any other local law claims the passenger
could bring. See Convention for the Unification of Certain Rules
for International Carriage by Air, May 28, 1999, S. Treaty Doc.
No. 106-45 (2000) (the "Montreal Convention" or the "Convention"),
ch. I, art. 1, §1; art. 17. The Convention also requires that the
passenger bring any such suit within two years of "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." Id. at ch. III, art. 35, §1.
Appellant, Dr. T. Forcht Dagi, M.D. ("Dagi"), is one
such passenger who, having missed the Montreal Convention's two-
year deadline to sue for injury that occurred in connection with
his 2015 Delta Airlines flight to London, wishes now to convince
us that his injury actually occurred after his disembarkation and
therefore outside the preemptive scope of the Montreal Convention,
and is actionable under local law. Our (legal and factual)
crosscheck complete, we find that Dagi has failed to show that his
injury did not begin inflight and therefore falls within the scope
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of the Convention and is, as a result, time-barred. Seatbelts
fastened with chairs in the upright position, we explain.
BACKGROUND
Dagi, an American citizen and resident of Massachusetts,
was a passenger on Delta Flight No. 63 that departed Boston's Logan
Airport on March 30, 2015 and arrived at London's Heathrow Airport
the next morning. As the plane was descending, Dagi was accused
of stealing a crew member's bag. With Dagi's consent, the airlines
searched Dagi's carry-on luggage, but came up dry. Later inflight
the bag was found elsewhere on the plane, but Dagi was accused of
having thrown the bag to the spot of discovery (presumably to avoid
being caught). Upon landing, the airline prevented Dagi from
deplaning until all other passengers had done so.
Quoting the relevant portions of Dagi's complaint:
 Once the Aircraft landed, the Attendant
prevented the Plaintiff from leaving the
Aircraft before the other passengers had done
so.
 The Attendant on the Jetway directed the Delta
Ground Employee to detain the Plaintiff and to
turn him over to the "authorities."
 Thereafter, accordingly, prior to the
Plaintiff having disembarked from the Jetway,
the Attendant ordered the Plaintiff to "follow
that woman" and to "not go anywhere else."
 The Attendant had transferred custody of the
Plaintiff to Delta Ground Employee, who
ordered the Plaintiff to follow her away off
the Jetway to another location in the terminal
to wait "until the police arrived."
 Thereupon, the Plaintiff was marched, under
duress, to another location in the terminal
(the "Second Location"). This involved a walk
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of ten to fifteen minutes duration to a
distance of approximately four hundred yards
from the Aircraft and Jetway.
 The Plaintiff, who is older, had at that time
not fully recovered from leg surgery. He was
forced to carry and move his two pieces of
carry on luggage with no help. Accordingly, he
was callously and unnecessarily subjected by
Delta to significant pain and discomfort,
exhaustion, and dangerous stress.
 The Plaintiff, at the Second Location, was
kept standing and was not afforded an
opportunity to sit down.
 After being detained at the Second Location
for approximately fifteen minutes, the
Plaintiff, without receiving any explanation,
was marched, under duress, for ten to fifteen
minutes, limping all the way back to the
terminal in the vicinity of the Aircraft.
 Again, it was readily apparent that the
Plaintiff, in being marched back to the
Aircraft, was limping in pain, and was labored
in carrying and moving luggage.
 Upon arriving back at the vicinity of the
Aircraft, Delta Ground Employee turned over
custody of the Plaintiff to a Delta employee
identified as a "Delta supervisor."
 At this time, the Plaintiff again denied the
accusations against him, and demanded to
either be released or to speak to the police.
In response, he was told that he was not
allowed to leave.
 During the entirety of Plaintiff's detention
by Delta, its personnel adamantly refused to
respond to any of Plaintiff's reasonable
questions, such as, without limitation: "Where
are you taking me?"; "Have the police really
been called?"; ["]What happens next?"; ["]How
long will I be held here?"; and "Why am I being
marched back to the plane?"
 The Plaintiff, once again, was kept standing
and was not afforded an opportunity to sit
down while waiting at the second location.
 Thereafter, in the terminal near the Aircraft,
the Delta Supervisor detained the Plaintiff
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for a considerable amount of time, and held
several telephone conversations.
 The caller was a British police officer, who,
after interviewing the Plaintiff, told the
Plaintiff he was free to go and ordered his
immediate release.
 The Plaintiff thereafter departed by passing
through British immigration and customs, which
are not a function of Delta Airlines.
The British police officer who ordered Dagi's release
suggested to him that he file a complaint against Delta. The
entire incident, from landing to Dagi's procession towards
immigration and customs, lasted at least one hour.
Dagi had no further interaction with Delta until March
28, 2018 -- almost three years after his ill-fated flight -- when
he packaged his ordeal into a suit filed against Delta in
Massachusetts Superior Court in Middlesex County, alleging Delta
had falsely arrested and wrongfully imprisoned him. On July 10,
2018, Delta removed the action to the United States District Court
for the District of Massachusetts; Dagi filed his Amended Complaint
there on July 13, 2018.1
Delta moved to dismiss the complaint under Federal Rule
of Civil Procedure 12(b)(6), arguing that 1) the Montreal
Convention exclusively governed Dagi's alleged injury because it
"[b]egan on the [p]lane and [c]ontinued [w]hile [d]isembarking,"
1
We will refer to this as Dagi's complaint. See Amended
Compl., Dagi v. Delta (No. 18-CV-11432-DPW) (D. Mass. July 13,
2018).
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as defined by the First Circuit in McCarthy v. Northwest Airlines,
Inc., 56 F.3d 313 (1st Cir. 1995),2 through an "unbroken string of
events," thereby preempting Dagi's local3 law claims; and 2)
because the statute of limitations under the Convention had already
expired, Dagi was out of luck, warranting the suit's dismissal.
In response, Dagi pivoted from the broad strokes in his
complaint to narrowly focus on what he described as his injury at
the Second Location, arguing that an application of the tripartite
test from McCarthy there would render that injury to have occurred
after he had "fully disembarked," and therefore outside the scope
of the Convention and its statute of limitations. To that end, he
additionally argued that the facts giving rise to this "fresh cause
of action" at the Second Location substantiated, separately, a
cause of action under British law for the "unlawful delay in
surrendering him to the British police." Finally, he raised a
public policy red flag, claiming that the district court should
refrain from giving Delta's "control" over him -- one of the test's
factors -- determinative effect, since the "control" Delta had at
2 It is left to the courts to determine whether an injury
occurred during "disembarkation" under the Convention. McCarthy,
56 F.3d at 316-17 (adopting a tripartite test to determine whether
an injury occurs "in the course of any of the operations of
embarking or disembarking"). In making such a determination,
McCarthy instructs courts to examine "(1) the passenger's activity
at the time of injury, (2) his or her whereabouts when injured,
and (3) the extent to which the carrier was exercising control at
the moment of injury." Id.
3 We use "local" instead of "state" because Dagi's
complaint alleges injury under both Massachusetts and British law.
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the Second Location was "unlawful," and not the type contemplated
by the Convention. Preempting this type of action under the
Montreal Convention, he stressed, would lead to the "pernicious"
result of giving airlines the unchecked ability to indefinitely
detain passengers.
After considering all arguments, the district court
agreed with Delta and dismissed Dagi's case, concluding that the
Montreal Convention preempted and time-barred Dagi's claims. See
Dagi v. Delta Air Lines, Inc., 352 F. Supp. 3d 116, 125 (D. Mass.
2018). In doing so, it applied this circuit's McCarthy test and
explained that 1) Dagi's location, 2) his activity, and 3) Delta's
control over Dagi, all begged the conclusion that Dagi was
disembarking at all times during his false imprisonment. Id. at
124-25. "[T]he relevant events began on and continued seamlessly
at Delta's direction directly from the aircraft and then back to
its vicinity during the process of disembarkation," "in an unbroken
chain until the [British Police] terminated the airline's
direction and control." Id. at 121. According to the district
court, "Dagi's effort to transmute his claims into more than one
cause of action [pre- and post-Second Location] . . . distorts
beyond recognition the gravamen of the single tort by a single
defendant alleged" in the complaint. Id. at 121 n.4. Continuing,
it declined to adopt Dagi's definition of "control" as different
from its ordinary meaning, and found that Dagi overstated any
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"pernicious" result that might arise from doing so. It added, in
all likelihood, that Dagi's damages, had he timely filed suit,
would have been more lucrative under the Montreal Convention than
under the laws of Massachusetts or England.
Dagi now appeals the district court's decision. Because
we, like the district court, find Dagi's claims time-barred, we
affirm.
STANDARD OF REVIEW
This court reviews an appeal of a Rule 12(b)(6) dismissal
de novo -- that is, with fresh eyes and no deference to the
decision-making below. Newman v. Krintzman, 723 F.3d 308, 309
(1st Cir. 2013); Schatz v. Republican State Leadership Comm., 669
F.3d 50, 55 (1st Cir. 2012). In doing so, we look to the complaint
and draw all inferences in favor of the plaintiff-appellant.
Abdallah v. Bain Capital LLC, 752 F.3d 114, 117 (1st Cir. 2014).
Although "a complaint does not need 'detailed factual allegations'
to survive a motion to dismiss, a plaintiff's factual allegations
'must be enough to raise a right to relief above the speculative
level.'" Gorelik v. Costin, 605 F.3d 118, 121 (1st Cir. 2010)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
If the plaintiff adequately pleads his claim for relief, he
"receives the benefit of imagination, so long as the hypotheses
are consistent with the complaint." Twombly, 550 U.S. at 563
(citation omitted).
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When the district court's dismissal is based on expiry
of a statute of limitations, this court "will affirm when the
pleader's allegations 'leave no doubt that an asserted claim is
time-barred.'" Gorelik, 605 F.3d at 121 (quoting LaChapelle v.
Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir. 1998)).
Moreover, we "may affirm on any basis made manifest by
the record." See Matalon v. Hynnes, 806 F.3d 627, 632 (1st Cir.
2015) (citing Peguero–Moronta v. Santiago, 464 F.3d 29, 34 (1st
Cir. 2006) and InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir.
2003)).
ANALYSIS
The Montreal Convention4 is a multilateral treaty, to
which the United States and the United Kingdom are signatories,5
which governs international travel and limits liability for
carriers such as appellee Delta Airlines. See Convention, ch. I,
art. 1, §1; ch. III, art. 17. If an action for damages falls
4 The Montreal Convention superseded the Warsaw
Convention, The Convention for the Unification of Certain Rules
Relating to International Transportation by Air, Oct. 12, 1929, 49
Stat. 3000, T.S. No. 876 (1934). As a result, courts rely on case
law arising from the Warsaw Convention in interpreting the Montreal
Convention when the provisions of the two Conventions are
essentially the same. See, e.g., Narayanan v. British Airways,
747 F.3d 1125, 1127 n.2 (9th Cir. 2014).
5 The United States Senate ratified this treaty on July
31, 2003. See 149 Cong. Rec. S10,870 (daily ed. July 31, 2003).
It entered into force in the United States on November 4, 2003,
and in the United Kingdom on June 28, 2004. See Baah v. Virgin
Atlantic Airways Ltd., 473 F. Supp. 2d 591, 593 n.5 (S.D.N.Y.
2007).
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within one of the Convention's damages provisions, then the treaty
provides the sole avenue for relief -- that is, the Montreal
Convention preempts all local claims that fall within its scope,
even if the claims are not cognizable (i.e., even if they do not
satisfy the conditions for liability) under the Convention. See
El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 161
(1999).
Under Article 17, and as relevant to our facts here, a
carrier is strictly liable for damages sustained when an "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." Convention, art. 17. To allege an "accident," the
claim must allege an occurrence which "arises from some
inappropriate or unintended happenstance in the operation of the
aircraft or airline." Fishman v. Delta Air Lines, Inc., 132 F.3d
138, 143 (2d Cir. 1998). Additionally, a carrier's Article 17
liability is triggered only when "a passenger's injury is caused
by an unexpected or unusual event or happening that is external to
the passenger" as the "Convention does not cover claim[s] for
personal injuries not arising from an accident." Id. at 141
(quoting Air France v. Saks, 470 U.S. 392, 405 (1985) and citing
Tseng v. El Al Israel Airlines, Ltd., 122 F.3d 99, 103 (2d Cir.
1997), rev'd on other grounds, 525 U.S. 155 (1999)). And as we've
mentioned, plaintiffs seeking to recover damages under the
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Montreal Convention must bring their claims within two years of
"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." Convention at ch. III, art. 35, §1.
Our Take
On appeal, Dagi presses the same claims he advanced
below. After careful review, we arrive at the same destination as
the district court, but by a different flightpath. Rather than
delving into what of Dagi's story constitutes "disembarkation," we
back up and examine the nature of the accident Dagi alleges --
false imprisonment. Interestingly, both litigants agree that
false imprisonment falls within the purview of the continuous tort
doctrine and each argues that this classification favors their
respective position. However, because we find that Dagi's argument
relies on a construction of the tort that we do not find
persuasive, he presents us with no basis to conclude that the
conduct at issue does not fall within the confines of the Montreal
Convention. We thus start and stop the inquiry there.6
6
Now, had Dagi pleaded that his false imprisonment
started only at the Second Location, we would have been required
to apply the McCarthy test to determine whether his activity,
location, and Delta's control over him there amounted to
disembarkation. McCarthy, 56 F.3d at 316-17. But as you'll soon
see, Dagi's complaint counsels otherwise. Similarly, had Dagi
raised other arguments for why the tort did not fall within the
confines of the Montreal Convention, we may have been required to
apply the McCarthy test. But, again, Dagi raised only the "fresh
cause of action" argument to us.
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The Accident
The parties do not dispute that an "accident" occurred:
false imprisonment.7 What they dispute is when it began. Dagi
concedes that certain parts of his story occurred within the
Convention's scope and are therefore preempted and time-barred:
anything that happened aboard Flight No. 63, on the jetway leaving
the plane, and for the time he was being "marched" from the jetway
to the Second Location. In that vein, he points out that he made
"no pleading whatsoever that [he], during flight, was 'held,' or
restricted in his movements in any fashion as a passenger on [the]
Aircraft." Rather, it's at the Second Location where his
actionable false imprisonment started. Contending that because
"wrongful imprisonment is a continuing tort," "each moment of such
[alleged] post-disembarkation detention" -- that is, each moment
after arrival to the Second Location that he remained detained --
"constituted a continuous new tort and a 'fresh cause of action'
not preempted by the Convention." (Emphasis in original.) As he
tells it, once he was far enough away and enough time had passed
at the Second Location, new causes of action matured and became
actionable under local law. Moreover, he repeats his control-is-
7
Dagi alleges both false arrest and false imprisonment
by Delta. But as "the former is a species of the latter," Wallace
v. Kato, 549 U.S. 384, 388 (2007), we refer to both claims when we
speak of false imprisonment. See also Nuon v. City of Lowell, 768
F. Supp. 2d 323, 336 (D. Mass. 2011); J. Clerk & W. Lindsell, The
Law of Torts, ch. 15 § 5 (22d ed. 2018) ("An unlawful arrest is a
false imprisonment.").
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not-control argument, urging that the "unlawful" control Delta
exercised over him at the Second Location was distinct, and not
the type of control "contemplated" by the Convention. Rather, he
contends, the definition of "control" when analyzing
"disembarkation" under the Convention relates to "the control of
an airline in the ordinary course of events," and differs from the
"control" exerted in the false imprisonment context.8
Delta responds, as before, that such slicing and dicing
of a continuous tort like false imprisonment is impermissible, and
that the accident that led to Dagi's injury of false imprisonment
began on the airplane, as explained in Dagi's own words (in his
pleading): "[o]nce the Aircraft landed, [Delta's] Attendant
prevented [Dagi] from leaving the Aircraft before the other
passengers had done so." So Delta argues that because the
"accident which caused the . . . injury took place on board the
aircraft," Convention, art. 17, and continued uninterrupted until
Dagi left of his own accord for immigration and customs, the
Convention covers the accident and preempts any recovery under
local law for the resultant injury.
We take off with the basics. In general, and as the
Supreme Court has noted, false imprisonment involves taking a
8
Dagi also spends many pages arguing on appeal that the
district court erred in its analysis of the different damages
provisions under Massachusetts and British law. Because we find
Dagi's local law claims preempted, we bypass this issue.
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person into custody: "[e]very confinement of the person is an
imprisonment, whether it be in a common prison or in a private
house, or in the stocks, or even by forcibly detaining one in the
public streets; and when a man is lawfully in a house, it is
imprisonment to prevent him from leaving the room in which he is."
Wallace v. Kato, 549 U.S. 384, 388-89 (2007) (quoting M. Newell,
Law of Malicious Prosecution, False Imprisonment, and Abuse of
Legal Process § 2, p. 57 (1892)). Turning to Massachusetts law
which Dagi invokes, "[f]alse imprisonment consists of '(1)
intentional and (2) unjustified (3) confinement of a person, (4)
directly or indirectly (5) of which the person confined is
conscious or is harmed by such confinement.'" Sietins v. Joseph,
238 F. Supp. 2d 366, 381 (D. Mass. 2003) (citation omitted); see
Restatement (Second) of Torts § 35 (1965). The analysis under
British law is substantially the same. See J. Clerk & W. Lindsell,
The Law of Torts, ch. 15 § 5 (22d ed. 2018) ("False imprisonment
is 'the unlawful imposition of constraint on another's freedom of
movement from a particular place.' The tort is established on
proof of: (1) the fact of imprisonment; and (2) the absence of
lawful authority to justify that imprisonment." (quoting Collins
v. Wilcock [1984] 1 W.L.R. 1172)).
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We have previously found false imprisonment to be a
continuing tort9 under Massachusetts common law, see Santiago v.
Fenton, 891 F.2d 373, 383 n.3 (1st Cir. 1989) (citing Wax v.
McGrath, 255 Mass. 340, 151 N.E. 317 (1926)); see also Noel v.
Town of Plymouth, Mass., 895 F. Supp. 346, 354 (D. Mass. 1995),10
and to qualify as such "there must be recurring [tortious] or
unlawful conduct[;] a continuing tort is not established by the
continuation of harm caused by previous but terminated tortious or
unlawful conduct." Tomaselli v. Beaulieu, 967 F. Supp. 2d 423,
9 The idea behind the continuing tort doctrine is that
if a tort began outside a limitations period but continued into
it, redress may be available for injuries caused by actions that
would otherwise have been barred by the statute of limitations.
See, e.g., 54 C.J.S. Limitations of Actions § 222.
10 But cf. Bettencourt v. Town of Mendon, 334 F. Supp.
3d 468, 492 (D. Mass. 2018) ("The continuing tort doctrine has
been applied to a limited number of torts in Massachusetts, and it
is not clear that [a] Massachusetts court would apply it to a false
imprisonment claim." (citation omitted)). There is also British
authority that places false imprisonment into the category of
"[t]orts actionable per se," whose "cause of action accrues upon
the commission of the wrong," as opposed to "[c]ontinuing torts
(such as a continuing trespass to land or continuing breach of
statutory duty)," where "a fresh cause of action accrues every
day, but the right of action is restricted to that part of the
wrong committed in the past six years." O'Hara v. ACC Bank Plc
[2011] IEHC 367; [2012] P.N.L.R. 3 (Eng.). But for our purposes
here, this is a distinction without a difference: even if we were
to consider the cause of action of Dagi's false imprisonment to
have "accrue[d] upon the commission of the wrong," id., Dagi gives
us no reason to find that the wrong was not "committed" on the
just-landed plane, when he was first prevented from leaving Delta's
custody. And since neither party has fleshed out the concept of
false imprisonment as a continuous tort (or not) under British
Law, "we refrain from [further] delving into the issue without the
benefit of either briefing or developed argumentation." Pollard
v. Law Office of Mandy L. Spaulding, 766 F.3d 98, 103 n.3 (1st
Cir. 2014).
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443 (D. Mass. 2013), aff'd (Dec. 16, 2014) (internal quotations
and citation omitted). And we look to the recurring nature of the
tort to determine its endpoint, which triggers the running of the
statute of limitations. See Maslauskas v. United States, 583 F.
Supp. 349, 351 (D. Mass. 1984). Applying this to false
imprisonment, we find that "[f]alse imprisonment ends, as
affecting recovery" and triggering the statute of limitations,
"when the release of the plaintiff's person occurs under reasonable
circumstances." 35 C.J.S. False Imprisonment § 84; see also
Wallace, 549 U.S. at 389 ("false imprisonment is subject to a
distinctive rule[] dictated, perhaps, by the reality that the
victim may not be able to sue while he is still imprisoned:
'[l]imitations begin to run against an action for false
imprisonment when the alleged false imprisonment ends.'") (citing
2 H. Wood, Limitation of Actions § 187d(4), p. 878 (rev. 4th ed.
1916); 4 Restatement (Second) of Torts § 899, cmt. c (1977); A.
Underhill, Principles of Law of Torts 202 (1881)); Decarvalho v.
McKeon, No. CV 17-11224, 2019 WL 569829, at *2 (D. Mass. Feb. 12,
2019) ("For a claim of false imprisonment, the date of accrual is
'when the alleged false imprisonment ends.'" (citation omitted)).
Dagi seems to think that false imprisonment's
characterization as a continuous tort alone supports his
contention that a newly actionable, "fresh cause of action" arises
moment to moment and therefore what happened at the Second Location
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until his release would evade the Montreal Convention's scope.11
But Dagi provides us with no authority (and we have found none)
under Massachusetts law or otherwise of a single instance wherein
the continuous tort of false imprisonment has been divided into
multiple claims or has been found to give rise to segmented "fresh
cause[s] of action," such that each is separately actionable.
After all, "[f]or false imprisonment, the statute [of limitations]
begins to run only when the imprisonment ends," because "the period
of imprisonment is treated as a unit." Restatement (Second) of
Torts § 899, cmt. c (1979) (emphasis added). In other words, as
this tort is defined, liability is measured by the entire unit of
unjustifiable confinement from seizure to either release or
placement in legal process. See Wallace, 549 U.S. at 389-90 ("If
there is a false arrest claim, damages for that claim cover the
time of detention up until issuance of process or arraignment, but
not more." (quoting W. Keeton et al., Prosser and Keeton on Law of
Torts § 118, at 888 (5th ed. 1984) and citing Heck v. Humphrey,
512 U.S. 477, 484 (1994)); 35 C.J.S. False Imprisonment § 84; see
also Wilson v. Town of Fairhaven, No. CV 18-11099-PBS, 2019 WL
11 Dagi explains: "Since wrongful imprisonment is a
continuing tort, and a continuing cause of action, and since Dr.
Dagi was wrongfully imprisoned by Delta subsequent to his
disembarkation, that duration of his detention did not constitute
mere harm or damage resulting from a pre-disembarkation tort by
Delta; rather, each moment of such post-disembarkation detention
constituted a continuous new tort and a 'fresh cause of action'
not preempted by the Convention, and therefore actionable under
local law."
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1757780, at *10 (D. Mass. Mar. 4, 2019), R. & R. adopted, No. 1:18-
CV-11099, 2019 WL 1760591, at *10 (D. Mass. Mar. 19, 2019) (citing
Wallace, 549 U.S. at 389); Decarvalho, 2019 WL 569829, at *2;
Williams v. City of Boston, 771 F. Supp. 2d 190, 201 (D. Mass.
2011); Gore v. Walpole (1866) 176 Eng. Rep. 751, 752, n.1; 4 Foster
and Finlason 694, 696, n.1 (Eng.) (explaining that liability "for
defendant's wrongful arrest or imprisonment" ends when the
defendant is taken into lawful custody). Accordingly, because
Article 17 covers claims that "allege an 'accident' if it arises
from some inappropriate or unintended happenstance in the
operation of the aircraft or airlines," Fishman, 132 F.3d at 143,
and because the only argument that Dagi has raised for why we may
not look to where the tort began is one that we have rejected, we
conclude that the Montreal Convention embraces Dagi's false
imprisonment claim when the tort is properly understood.12 The
12
Dagi also argues that what he pleaded in his complaint
as to the Second Location supplies enough ammo to violate,
separately, British law's prohibition against an "unlawful delay
in surrendering him to the British police," which, according to
Dagi, had "no direct relevance as to [his] purported transgression
on the Aircraft." Dagi misses, however, that this alleged British
tort occurred entirely during Dagi's false imprisonment that
spanned his time on the airplane to when he left for immigration
and customs. Therefore, because we find his false imprisonment
preempted, we find too that any other injury that took place during
his false imprisonment, such as Delta's alleged "delay in
surrendering [Dagi] to the British police," is also preempted under
the Montreal Convention. See Tseng, 525 U.S. at 161 (1999)
(holding "that recovery for a personal injury suffered 'on board
[an] aircraft or in the course of any of the operations of
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fact that Dagi remained in Delta's control at and beyond the Second
Location does not disassociate his cause of action from its point
of origin.13 Indeed, Dagi's complaint itself connects the dots:
[T]he unlawful imprisonment of [Dagi] was a
direct consequence of a false accusation
against him by a Delta flight attendant during
the flight, and this continuing tort of
unlawful imprisonment began (prior to [Dagi's]
disembarkation14) by said flight attendant
instructing Delta ground personnel to detain
[Dagi] prior to and subsequent to, his
disembarkation at the London air terminal.15
embarking or disembarking,' . . . if not allowed under the
Convention, is not available at all." (citation omitted)).
13 In his complaint, Dagi relayed a saga that started
aboard the plane and ended only when he was released to immigration
and customs, and he only asked for damages in connection with "his
unlawful imprisonment by Delta." When confronted with Delta's
motion to dismiss, Dagi tried, in his opposition and on appeal, to
explain that the "different ground why Delta's detention was
unlawful and actionable first arose in the terminal, and was based
solely on Delta's actions [i.e., Delta's delay in surrendering
Dagi to British police], with no direct relevance as to Dr. Dagi's
purported transgression on the Aircraft." (Emphasis added.) But
arguing that his Second Location injury had "no direct relevance
to [Dagi's] purported transgression on the Aircraft" does not make
it so. Reading Dagi's complaint to "assume the truth of all well-
pleaded facts and indulge all reasonable inferences therefrom that
fit the plaintiff's stated theory of liability," Arruda v. Sears,
Roebuck & Co., 310 F.3d 13, 18 (1st Cir. 2002), we still find that
Dagi's false imprisonment cannot be so segmented.
14 Remember that Dagi's legal conclusion that his
"disembarkation" ended once he was at the Second Location has no
impact on our analysis. See Bruns v. Mayhew, 750 F.3d 61, 71 (1st
Cir. 2014) ("[A] court is 'not bound to accept as true a legal
conclusion [in a complaint] couched as a factual allegation.'"
(quoting Twombly, 550 U.S. at 555)).
15 He does us a similar favor later in the complaint:
During the entire duration of time in which
[Dagi] was confined and falsely imprisoned by
the Attendant, by the Delta Ground Employee
and by the Delta Supervisor, [Dagi] believed
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In an effort to give lift to his fresh cause of action
theory, Dagi relies on two out-of-circuit cases in support of his
view that his false imprisonment at the Second Location can be
severed from what started on the plane. First Thede v. United
Airlines, Inc., where a kerfuffle arising from Thede's repeated
requests for food from the United staff before and during the
delayed flight led the flight to be diverted to Belfast, Northern
Ireland, where armed officers boarded the plane to remove Thede.
Thede v. United Airlines, Inc., No. 17-CV-03528-PJH, 2018 WL
1569836, at *1 (N.D. Cal. Mar. 30, 2018), rev'd and remanded, 796
F. App'x 386 (9th Cir. 2020). "Based on the accusations of the
flight crew, [Thede] was charged with assault and endangering an
aircraft," remained on house arrest for ten months after landing,
and after a seven-day trial, was found not guilty. Id. This string
of events led Thede himself to bring suit against United for
manifold reasons, including the one important for our purposes,
malicious prosecution. Id. at *2. Thede's claim had rested on two
sets of statements from United: first, those "made by the captain
or flight crew during the flight or to officers when they were in
or near the gate," Thede v. United Airlines, Inc., 796 F. App'x
386, 389 (9th Cir. 2020), and second, those "based on events that
took place during and following [Thede's] ten-month confinement to
that they had the legal authority to detain
him and to physically restrain him if he
attempted to leave. (Emphases added.)
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house arrest while" awaiting trial. Id. The district court found
Thede's claim for malicious prosecution "preempted by the Montreal
Convention," Thede, 2018 WL 1569836, at *6, and for that Thede
appealed. The Ninth Circuit reversed and remanded, holding that
while Thede's malicious prosecution claim based on the first set
of statements was preempted by the Convention, the allegations made
in connection with the second set of statements were "spatially and
temporally distinct from when Thede was" on the plane and,
therefore, not preempted by the Convention. Thede, 796 F. App'x
at 389.
Next, Elnajjar v. Northwest Airlines, Inc., where
plaintiff's claims arose from allegedly hostile treatment by
airline staff during check-in, aboard the plane, and when forcibly
removed from the plane. No. 04-CV-680, 2005 WL 1949545, at *1-2
(S.D. Tex. Aug. 15, 2005). The district court found certain
claims, such as negligence and conspiracy, that arose on the plane,
preempted by the Warsaw Convention, but the claims of intentional
infliction of emotional distress, invasion of privacy, and
defamation arising from the encounter at check-in "not clearly
preempted by [the Convention]." Id. at *3-4. The district court
specifically found Elnajjar's false imprisonment claim, "based on
incidents that occurred after [plaintiff] had fully disembarked,"
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was not preempted.16 Id. at *4. The district court read this
allegation of the false imprisonment as starting after Elnajjar
left the airplane into the airport, "some distance from the
boarding area and entail[ing] the direction of law enforcement
officials, not just Defendants' agent," and therefore outside the
scope of the Convention. Id.
These cases are of no help to Dagi. Both allege a
distinct injury connected to distinct events that took place
outside the scope of the Convention: in Thede, malicious
prosecution based on statements made long after the flight's
arrival and during Thede's ten-month house arrest, and in Elnajjar,
false imprisonment that plaintiff alleged started once he was off
the plane and marshalled by law enforcement. In neither case was
the allegation based on a continuous tort that began on the plane,
and that the plaintiff tried to partition into distinct torts. In
contrast, Dagi's allegation of false imprisonment explicitly
started "on board the aircraft," Convention, art. 17, by his own
admission, and, as we have explained, there is no merit to his
argument that a "fresh cause of action" arose at the Second
Location.
16
Elnajjar's complaint alleged that he "was removed,
against his will, from the airplane by armed agents, Defendants
and a combat soldier. [He] was not allowed to leave the custody
of the Defendants' agents at any time. [He] was prevented from
moving about the airport freely." Compl. at ¶10, Elnajjar v.
Northwest Airlines, Inc., No. 04-CV-680, 2005 WL 1949545 (S.D.
Tex. 2004).
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And so we arrive at our final destination. No need for
a stopover to analyze if any part of Dagi's story happened "post-
disembarkation" to dislodge it from the Convention's scope,
because Dagi's false imprisonment was a continuing tort that
started, by his own admission, on the plane and then continued
uninterrupted, by the tenets of tort law, until Dagi was free to
leave of his own accord for immigration and customs. We therefore
find that, based on the arguments that he makes to us, any claim
of injury that Dagi brought related to his false imprisonment falls
solely within the scope of the Montreal Convention, and because
Dagi filed his complaint almost a full year after the expiration
of the Convention's two-year statute of limitations, we affirm the
district court's dismissal of his complaint.17
Each side shall bear its own costs.
17 We also dispose of Dagi's policy arguments, that: 1)
permitting his injury to fall within the scope of the Montreal
Convention would lead to a "pernicious" result, in that as long as
an airline maintains control over a passenger, it could detain a
passenger indefinitely and at whatever location it so pleases; and
2) such a "pernicious" result is all the more pronounced because
absent a physical injury, such a detention by the airline would
have no cognizable remedy under the Convention. Neither of these
arguments hold water. First, he forgets that the passenger could
always bring a cause of action under the Montreal Convention -- it
would just have to be before the two-year deadline. Second, the
Supreme Court in Tseng relied on the Convention's narrow scope to
justify its holding that an injury may fall within the scope of
the Convention for preemption purposes, but nonetheless receive no
remedy under it. See Tseng, 525 U.S. at 171-72 (explaining that
"the Convention addresses and concerns, only and exclusively, the
airline's liability for passenger injuries occurring 'on board the
aircraft or in the course of any of the operations of embarking or
disembarking.'" (quoting Convention, art. 17) (emphasis added)).
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