United States District Court, N.D. California
December 23, 2005.
MARICELA RAMIREZ, Plaintiff,
UNITED AIRLINES INC., a foreign corporation; COMPANIA MEXICANA DE AVIACION, S.A. DE C.V., a Mexican Corporation doing business as MEXICANA AIRLINES (an assumed business name), and JOHN DOES 1 THROUGH 10, Defendants.
The opinion of the court was delivered by: WILLIAM ALSUP, District Judge
ORDER GRANTING DEFENDANT UNITED AIRLINES' MOTION TO DISMISS WITH
PREJUDICE AND VACATING HEARING
Defendant United Airlines, Inc. moves to dismiss a passenger's
claim for damages suffered in an international flight. Maricela
Ramirez seeks damages for injuries she allegedly suffered during
a flight from Los Angeles to Mexico City on the basis of the
Warsaw Convention, 49 Stat. 3000, and common-law negligence.
United seeks dismissal on grounds that plaintiff fails to state a
claim under the Convention and that the Convention bars
plaintiff's negligence claim. The Court hereby GRANTS United's
motion without leave to amend.
Ramirez filed a complaint against United and Mexicana Airlines,
seeking to recover damages for injuries she purportedly suffered
during a turbulent flight from Los Angeles to Mexico City. Mexicana answered the complaint and is not a party
to United's current motion to dismiss. On a motion to dismiss
under Rule 12(b)(6), all material allegations of the complaint
are taken as true and construed in the light most favorable to
the nonmoving party. Cahill v. Liberty Mut. Ins. Co.,
80 F.3d 336, 340 (9th Cir. 1996). The Court, therefore, relates the
following facts from plaintiffs' complaint as if they were true.
According to the complaint, United and Mexicana had "a
partnership agreement, a passenger code sharing agreement and/or
a joint venture agreement" (Compl. ¶ 4). Plaintiff admitted that
she did not know the "exact nature and the terms of this
agreement" (ibid.). Nevertheless, plaintiff maintained that at
all relevant times, Mexicana Airlines and its employees were
agents and employees of United Airlines (ibid.).
On October 9, 2003, Ramirez paid United for airline tickets
(id. at ¶ 7). The tickets authorized travel for that same day
beginning in San Francisco, flying to Los Angeles and terminating
in Mexico City (ibid.). Ramirez was booked on United Flight
1415 from San Francisco to Los Angeles (ibid.). The leg from
Los Angeles to Mexico City was listed jointly as United Flight
4747 and Mexicana Flight 905 (ibid.).
Ramirez's flight to Los Angeles apparently passed without
incident (id. at ¶¶ 8, 11). At some point during her journey
between Los Angeles and Mexico City, however, United
4747/Mexicana 905 encountered turbulence (id. at ¶ 11). Ramirez
proceeded into the airplane lavatory, having received no
indication that she should fasten her seat belt or remain seated
from either the "Fasten Seat Belt" sign or from the flight
attendants (ibid.). While in the lavatory, Ramirez was "pitched
up and down, and thrown violently around" (ibid.). The flight
ultimately landed safely in Mexico City (ibid.). Ramirez,
however, apparently suffered "injuries to left hip, left leg,
left foot, left arm, low back, neck, bilateral shoulder pain,
head and TMJ" (id. at ¶ 13).
1. LEGAL STANDARD.
A motion to dismiss under Rule 12(b)(6) tests for legal
sufficiency of the claims alleged in the complaint. A complaint
should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
45-46 (1957). On the other hand, "conclusory allegations of law
and unwarranted inferences are insufficient to defeat a motion to
dismiss for failure to state a claim." Epstein v. Washington
Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996). Dismissal
without leave to amend is proper only if complaint cannot be
cured by amendment. Oki Semiconductor Co. v. Wells Fargo Bank,
Nat'l Ass'n, 298 F.3d 768, 772 (9th Cir. 2002).
2. REQUEST FOR JUDICIAL NOTICE.
Although materials outside of the pleadings ordinarily are not
considered on a motion to dismiss, a court may consider matters
properly subject to judicial notice. See Adibi v. Cal. State Bd.
of Pharmacy, 393 F. Supp. 2d 999, 1003 (N.D. Cal. 2005). Under
FRE 201, a court may take judicial notice of any fact "not
subject to reasonable dispute in that it is . . . capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned."
Defendant seeks judicial notice of records on file with the
United States District Court for the District of Oregon and with
the Circuit Court for the State of Oregon for the County of
Multnomah (United RJN Exhs. A C). These court records are from
purportedly similar actions Ramirez filed in those courts (Br.
1). While the records of other courts may be proper for judicial
notice, such notice is granted "only for the limited purpose of
recognizing the judicial act that the order [or filing]
represents on the subject matter of the litigation." Lee v.
Bender, C 04-2637, 2005 WL 1388968, *8 (N.D. Cal. May 11, 2005)
(internal citations omitted). "[T]he underlying arguments made by
the parties, disputed facts, and conclusions of fact" contained
in the record are not the subject of judicial notice. Cactus
Corner, L.L.C. v. U.S. Dep't of Agric., 346 F. Supp. 2d 1075,
1099 (E.D. Cal. 2004) (internal citations omitted). Here,
defendant does not request notice of the records to show that
Ramirez simply filed two other actions (Br. 3). Instead, United
seeks to use ambiguous statements contained in the records as
determinative proof that Mexicana, not United, was the carrier to
Mexico City (ibid.). The Court will not grant such a request. 3. LIABILITY UNDER THE WARSAW CONVENTION.
The parties both agree that plaintiff primarily alleges an
action under the Warsaw Convention, as modified by the Montreal
Protocol of 1999 (Compl. ¶ 3; Br. 4).
As our Circuit recently explained:
The Warsaw Convention is a comprehensive
international treaty, signed in 1929, governing
liability in all international transportation of
persons, baggage, or goods. . . . The Convention's
purpose is to create a uniform body of law governing
the rights and responsibilities of passengers and air
carriers in international air transportation.
Rodriguez v. Ansett Austl. Ltd., 383 F.3d 914
, 916 (9th Cir.
2004) (internal citations omitted). "Article 17 of the Convention
establishes the liability of international air carriers for harm
to passengers." Ibid. (internal citations omitted). Under
The carrier shall be liable for damage sustained in
the event of the death or wounding of a passenger or
any other bodily injury suffered by a passenger, if
the accident which caused the damage so sustained
took place on board the aircraft or in the course of
any of the operations of embarking or disembarking.
Most importantly for our purposes, the Convention only permits
an injured passenger to obtain relief from the one carrier for
the flight. "[T]he language does not speak of dual or multiple
carriers, but rather `the carrier' suggests that only one entity
the operator of the aircraft bears liability for damages
arising from injuries occurring on the aircraft." In re Air
Crash at Taipei, Taiwan, on October 31, 2000, MDL 1394 GAF, 2002
WL 32155476, *5 (C.D. Cal. May 13, 2002); see also
49 Stat. 3000, Art. 30(2). "Efforts to read the term `carrier' expansively
to include more than the operator of the aircraft have been
rejected by the courts." Air Crash at Taipei, 2002 WL 32155476
at *5. Plaintiff's extensive briefing about whether an accident
occurred under the meaning of the Convention is therefore
inapposite (Oppo. 4-5; Reply Br. 1-2). Instead, as a threshold
matter, plaintiff must demonstrate that United was in fact "the
While the term "carrier" is not defined in the Warsaw
Convention, "the term means what it appears to mean the
operator of the aircraft involved in an accident." Air Crash at
Taipei, 2002 WL 32155476 at *5. The language of the Convention
"makes clear that the Convention's drafters were referring only
to those airlines that actually transport passengers." Id. at *6 (citation omitted). "[I]t cannot reasonably be
concluded that the drafters intended an airline that merely
issues a ticket to face potential liability as `carrier.'"
Ibid. (citation omitted). With respect to injuries sustained on
a flight operated under a "code-sharing" agreement, one court
recently found that "[t]he mere fact that Delta participated in
code sharing with CSA does not reasonably lead to the inference
that Delta was the carrier of the flight at issue." Shirobokova
v. CSA Czech Airlines, Inc., 376 F. Supp. 2d 439, 442 (S.D.N.Y.
2005). "A code sharing agreement is simply `an arrangement
whereby a carrier's designator code is used to identify a flight
operated by another carrier.'" Ibid. (quoting
14 C.F.R. 257.3(c)).
Applying this interpretation of the Warsaw Convention, United
was not the carrier and therefore cannot be liable to plaintiff
thereunder. Plaintiff's ticket indicates that the flight from Los
Angeles to Mexico City was "operated by Mexicana" (Flaherty Decl.
Exh. 1). For this portion of her journey, the ticket instructed
Ramirez to "please check in with Mexicana" (ibid.). "The actual
aircraft which plaintiff boarded in Los Angeles had `MEXICANA'
painted in large letters on the fuselage" (Opp. 2; see also
Flaherty Decl. ¶ 7). Plaintiff argues that her confusion over the
arrangement between Mexicana and United prevents the Court from
finding that United was not the carrier (Oppo. 6). Yet given the
governing law and the uncontested facts, any inference to the
contrary is unwarranted. Plaintiff cannot state a claim against
United under the Convention.
4. NEGLIGENCE CLAIM.
Plaintiff's complaint did not delineate claims, but rather
clumped her claims under the heading "Negligence." Presumably
plaintiff meant to assert a claim under a state-law theory of
negligence, although she partially retreats from this assertion
in her opposition papers (Oppo. 5-6). In any event, such a
claim is preempted by the Warsaw Convention.
"[T]he Convention's preemptive effect is clear: The treaty
precludes passengers from bringing actions under local law when
they cannot establish air carrier liability under the treaty."
Miller v. Cont'l Airlines, 260 F. Supp. 2d 931, 937 (N.D. Cal.
2003) (internal citation omitted). The preemptive effect of the
Convention "extends to all state law claims relating to personal injuries sustained during international passenger air
travel." Shirobokova, 376 F. Supp. 2d at 442 (citation
omitted). Plaintiff's negligence claim against United is so
Based on the foregoing, the Court Grants United's motion to
dismiss as to all of plaintiff's claims against United. Finding
further amendment of the complaint as against United futile, the
Court will not allow plaintiff to do so. Plaintiff's claims
against Mexicana are in no way effected by this order. Finding
oral argument unnecessary, the Court also hereby VACATES
hearing on this motion, originally scheduled for January 5, 2006.
IT IS SO ORDERED.
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