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Robert Rubin v. Air China Limited and United Airlines Incorporated

June 21, 2011


The opinion of the court was delivered by: Lucy H. Koh United States District Judge


Defendants Air China Limited (Air China) and United Airlines, Incorporated (United) (together, Defendants) have moved for judgment on the pleadings against Plaintiff Robert Rubin (Plaintiff). After considering Defendants' motion, the Court finds this matter suitable for decision without oral argument. See Civil Local Rule 7-1(b). Accordingly, the hearing on this motion, set for June 23, 2011, is hereby VACATED. For the reasons set forth below, the Court GRANTS in part and DENIES in part Defendants' motion for judgment on the pleadings.


On September 30, 2010, Plaintiff Robert Rubin filed a claim against Defendants Air China Limited and United Airlines, Inc. in the Small Claims Division of the Santa Clara County Superior Court ("Small Claims Court"). In his state-court complaint, Plaintiff alleges that he experienced 27 pain and suffering and incurred monetary damages due to a thirteen and one-half hour delay on Air 28 China Flight 985 from Beijing, China, to San Francisco, California.*fn1 United Airlines was the 2 contracting carrier for the flight. Plaintiff seeks $4,233 in damages under the "Passenger 3

Plaintiff served Air China and United Airlines on October 11, 2010, and the case was set for trial in Small Claims Court on November 18, 2010. However, on November 10, 2010,

Defendant Air China removed the case to federal court under 28 U.S.C. § 1441(d), which permits foreign sovereigns to remove any civil action to federal court, and under 28 U.S.C. § 1441(a)-(b), which permits removal of actions arising under the treaties of the United States. See Dkt. No. 1. Plaintiff moved to remand the action to state court; as the removal statute granted Defendants the 9 right to have a federal forum hear Plaintiff's claims, this motion was denied. See Dkt. Nos. 4, 30. 10

Compensation Rights for International Flights" provision of the Montreal Convention of 1999.

Defendants Air China and United Airlines now move for judgment on the pleadings.

Specifically, Defendants seek a judgment limiting Plaintiff's claim to the out-of-pocket expenses 12 incurred or paid by Plaintiff as a result of the delay in the departure of Air China Flight 985 on 13

November 1, 2009. Plaintiff opposes the motion.


This Court may grant judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), which allows Defendants to challenge the sufficiency of Plaintiff's complaint.

New.Net, Inc. v. Lavasoft, 356 F. Supp. 2d 1090, 1115 (C.D. Cal. 2004). A 12(c) motion "is a 18 vehicle for summary adjudication, but the standard is like that of a motion to dismiss." Id. 19

Accordingly, a 12(c) motion may only be granted "when, taking all the allegations in the non-20 moving party's pleadings as true, the moving party is entitled to judgment as a matter of law." 21

Fajardo v. County of Los Angeles, 179 F.3d 698, 699 (9th Cir. 1999). In evaluating Defendants' 22 motion, the Court must "construe the complaint, and resolve all doubts, in the light most favorable 23 to the plaintiff," and may grant the motion only if "it appears beyond a doubt that the plaintiff can 24 prove no set of facts in support of its claim which would entitle him to relief." New.Net, 356 F. 25

Supp. 2d at 1115; see also Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 26 (9th Cir. 1989). "Courts have discretion to grant leave to amend in conjunction with 12(c) 2 motions, and may dismiss causes of action rather than grant judgment." Moran v. Peralta 3

Community College Dist., 825 F. Supp. 891, 893 (N.D. Cal. 1993). As with a 12(b)(6) motion to 4 dismiss, the Court should grant leave to amend unless it is clear that amendment would be futile. 5 (mem.). 7

Pacific West Group, Inc. v. Real Time Solutions, Inc.,321 F. App'x 566, 569 (9th Cir. 2008) 6


In this case, Plaintiff alleges that the delay of his flight resulted in the following damages:

(1) pain and suffering; (2) lost work;*fn2 (3) physical illness with attendant medical treatment costs; 10

(4) "being trapped in a freezing Beijing airport that was worse than a prisoner would be treated";

(5) the cost of Plaintiff's round-trip ticket from San Francisco to Beijing; and (6) the cost of a late-night taxi from the San Francisco airport. Compl. The parties agree that Plaintiff's damages 13 claims are governed by Article 19 of the Montreal Convention,*fn3 which reads, damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999 45, 1999 WL 33292734 (2000), Sept. 23, 1971, 24 U.S.T. 565, T.I.A.S. No. 7570. On this motion, Defendants do not attempt to assert the ...

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