Opinion
Case No. CV 11-2175-JFW (CWx).
May 6, 2011
CIVIL MINUTES — GENERAL
PROCEEDINGS (IN CHAMBERS): ORDER GRANTING MOTION TO DISMISS OF DEFENDANT BRITISH AIRWAYS [filed 4/4/11; Docket No. 11]
On April 4, 2011, Defendant British Airways, PLC ("Defendant") filed a Motion to Dismiss ("Motion"). On April 15, 2011, Plaintiffs Susheela Narayanan, individually and as successor-in-interest to Papanasam Narayanan, deceased, on behalf of the Heirs and Estate of Papanasam Narayanan; Tara Castro Narayanan; and Ranjit Narayanan (collectively, "Plaintiffs") filed their Opposition. On April 25, 2011, Defendant filed a Reply. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds that this matter is appropriate for decision without oral argument. The hearing calendared for May 9, 2011 is hereby vacated and the matter taken off calendar. After considering the moving, opposing, and reply papers and the arguments therein, the Court rules as follows:I. Factual and Procedural Background
On March 7, 2011, Plaintiffs filed a Complaint against Defendant in Los Angeles Superior Court. In their Complaint, Plaintiffs allege that the decedent, Papanasam Narayanan ("Mr. Narayanan"), traveled on a British Airways flight on December 26, 2008, from Los Angeles, California to London, United Kingdom, which was the first leg of a round-trip flight from and to Los Angeles with intermediate stops in London and Bangalore, India. At the time of the flight, Mr. Narayanan was ill with lung disease and chronic respiratory failure due pulmonary fibrosis. Plaintiffs allege that British Airways was advised prior to Mr. Narayanan boarding the aircraft in Los Angeles that he would need supplemental oxygen on board to support his condition. Mr. Narayanan was allegedly denied access to supplemental oxygen during the flight and became ill. Mr. Narayanan received medical attention while in India and upon returning to the United States. Mr. Narayanan died six months later on June 11, 2009. In addition to seeking general damages for economic and non-economic loss for wrongful death, Plaintiffs are also seeking special and survival damages.
On March 14, 2011, Defendant removed this action to this Court, alleging diversity jurisdiction and federal question jurisdiction because Plaintiffs' claims for relief arise under the Montreal Convention.
II. Legal Standard
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. "A Rule 12(b)(6) dismissal is proper only where there is either a `lack of a cognizable legal theory' or `the absence of sufficient facts alleged under a cognizable legal theory.'" Summit Technology, Inc. v. High-Line Medical Instruments Co., Inc., 922 F. Supp. 299, 304 (C.D. Cal. 1996) (quoting Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988)). However, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and alterations omitted). "[F]actual allegations must be enough to raise a right to relief above the speculative level." Id.
In deciding a motion to dismiss, a court must accept as true the allegations of the complaint and must construe those allegations in the light most favorable to the nonmoving party. See, e.g., Wyler Summit Partnership v. Turner Broadcasting System, Inc., 135 F.3d 658, 661 (9th Cir. 1998). "However, a court need not accept as true unreasonable inferences, unwarranted deductions of fact, or conclusory legal allegations cast in the form of factual allegations." Summit Technology, 922 F. Supp. at 304 (citing Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981) cert. denied, 454 U.S. 1031 (1981)).
"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Hal Roach Studios, Inc. v. Richard Feiner Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990) (citations omitted). However, a court may consider material which is properly submitted as part of the complaint and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201 without converting the motion to dismiss into a motion for summary judgment. See, e.g., id.; Branch v. Tunnel, 14 F.3d 449, 454 (9th Cir. 1994). Where a motion to dismiss is granted, a district court should provide leave to amend unless it is clear that the complaint could not be saved by any amendment. See Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996).
III. Discussion
Defendant moves to dismiss Plaintiffs' Complaint on the grounds that the two-year statute of limitations period contained in Article 35(1) of the Montreal Convention bars their action. Specifically, Defendant argues that because Mr. Narayanan's flight arrived in London on December 26, 2008, and Plaintiffs filed their Complaint in state court on March 7, 2011, their lawsuit is time-barred. While Plaintiffs agree that the Montreal Convention contains a two-year statute of limitations that cannot be extended or "tolled" for any purpose, Plaintiffs argue that their claims are not time-barred. Opposition, 4:14-17.
In their Opposition, Plaintiffs "concede that any personal cause of action of [Mr. Narayanan] for economic damages that might have survived did arise at the time and commensurate with the original incident would have been extinguished as of December 26 or 27, 2010. Plaintiffs will not oppose the motion of defendant British Airways with respect to any survival cause of action pleaded." Opposition, 17:12-25. Therefore, the only claim remaining at issue is Plaintiffs' wrongful death claim.
The Montreal Convention governs "all international carriage of persons, baggage and cargo performed by aircraft for reward." Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45, Art. 1(1), 1999 WL 33292734 ("Montreal Convention"). It provides the exclusive remedy for international passengers seeking damages against their airline carriers. Bassam v. Am. Airlines, Inc., 2008 WL 2725228, *2 (5th Cir. July 14, 2008). Article 17(1) 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 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. In addition, Article 29 of the Montreal Convention, entitled "Basis of Claims," outlines the parameters under which a claim for damages against an airline carrier may be initiated. Article 29 provides:
In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.
Montreal Convention, art. 29. Article 35(1) of the Montreal Convention, entitled "Limitation of Actions," provides:
The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ough[t] to have arrived, or from the date on which the carriage stopped.
Id., art. 35. Thus, the Montreal Convention expressly provides that a two-year limitations period governs all applicable claims for damages and accrues on the date of a plane's arrival at its destination or the date on which the aircraft ought to have arrived.
In this case, Plaintiffs admit that the alleged denial of the use of supplemental oxygen on Mr. Narayanan's British Airways flight from Los Angeles to London forms the basis of Defendant's purported liability. Opposition, 11:5-11. Therefore, it was this incident that caused Mr. Narayanan injury and eventual death. Plaintiffs had two years from the date Mr. Narayanan's flight arrived in London on December 26, 2008 to file their Complaint. Because Plaintiffs' Complaint was not filed until March 7, 2011, which is after the December 26, 2010 deadline, this action is time-barred.
Plaintiffs had two years from December 26, 2008 to file their Complaint, regardless of when they realized the full extent of injuries to Mr. Narayanan. See El Al Isreal Airlines, Ltd. v. Tseng, 525 U.S. 155, 161 (1999) (holding that the Convention "precludes passengers from bringing actions under local law," even when they are unable to establish liability under the Convention); see, also, Duay v. Continental Airlines, Inc., 2010 WL 5342824 (S.D. Tex. Dec. 21, 2010) (where plaintiff filed action outside of the two year statute of limitations period under Article 35 but asserted that he was timely because he had filed within two years of the date he discovered he would need hospitalization and surgery due to the injury allegedly caused him by the airline, the court found plaintiff was completely barred from bringing action because to conclude otherwise "would be contrary to the unambiguous policy goals of both the Warsaw and Montreal Conventions.").
Plaintiffs attempt to save their Complaint by arguing that Article 35(2) of the Montreal Convention allows the Court to apply the California wrongful death statute of limitations in this case. However, Article 35(2) simply allows a court to apply local law to determine when the court "is seised" of a case, or, in other words, when an action is deemed "brought." See Second International Conference on Private Aeronautical Law, at 111 (a French delegate commented that the predecessor to Article 35(2), Article 29(2) of the Warsaw Convention, permitted the law of the forum court to determine when, during the two years, "the court will be seized, because in all the countries of the world, suits are not brought in the same way.").
Plaintiffs also misinterpret Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996). In Zicherman, the Supreme Court permitted the application of local law under the Convention in limited and narrowly defined circumstances, which the Court concludes do not apply in this case. In addition, the Supreme Court has held that, when interpreting a treaty, it is proper to consult the drafting history "to elucidate a text that is ambiguous." Chan v. Korean Air Line, Ltd., 490 U.S. 122, 134 (1989). However, Plaintiffs have failed to cite to any drafting history supporting their assertion that "it is clear it was the intention of the drafters of Montreal, as with Warsaw, to allow a full two years to perfect any death claim, but the language employed falls short of that goal." Opposition, 15:5-8. In fact, the drafting history of the Warsaw Convention and Montreal Convention contradicts Plaintiffs' contention. See Second International Conference on Private Aeronautical Law, October 4-12, 1929, Warsaw, at 110 (Robert Horner Didier Legrez, trans., Fred B. Rothman Co. 1975) (in discussing the proposal that eventually became Article 29 of the Warsaw Convention, the head of the Italian delegation stated that "the system which we have proposed becomes very simple; if two years after the accident no action has been brought, all actions are extinguished"); and 1 International Civil Aviation Organization, International Conference on Air Law, Montreal 10-28 May 1999, at 236 (2001) (considering and rejecting an amendment to Article 35 of the Montreal Convention that stated "[n]otwithstanding the provisions of paragraph 1 hereof a Court seised of a case may, on good cause shown, condone non-compliance with the time-limit referred to herein" and, instead, adopting Article 35 which is identical to its predecessor, Article 29 of the Warsaw Convention).
Accordingly, Plaintiffs' action is time-barred, and their Complaint must be dismissed.
IV. Conclusion
For all the foregoing reasons, Defendant's Motion is GRANTED. Plaintiffs' Complaint is DISMISSED without leave to amend , and this action is DISMISSED with prejudice.
Although the Court recognizes that this Circuit has a liberal policy favoring amendments and that leave to amend should be freely granted, the Court is not required to grant leave to amend if the Court determines that permitting Plaintiff to amend would be an exercise in futility. See, e.g., Rutman Wine Co. v. E. J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) ("Denial of leave to amend is not an abuse of discretion where the pleadings before the court demonstrate that further amendment would be futile."). Because the facts of this case are not in dispute, it would be futile to give Plaintiffs leave to amend their Complaint.
IT IS SO ORDERED.