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Von Schoenebeck v. Koninklijke Luchtvaart Maatschappij NV.

United States District Court, N.D. California

May 8, 2014



SUSAN ILLSTON, District Judge.

A motion by defendant Koninklijke Luchtvaart Maatschappij N.V., doing business as KLM Royal Dutch Airlines ("KLM"), to dismiss plaintiffs Johanna and Andre von Schoenebeck's complaint is scheduled for a hearing on May 9, 2014. Docket No. 13. Pursuant to Civil Local Rule 7-1(b), the Court determines that this matter is appropriate for resolution without oral argument and VACATES the hearing. For the reasons set forth below, the Court GRANTS defendant's motion to dismiss.


On or about August 21, 2008, plaintiffs booked several flights with KLM to fly from Johannesburg, South Africa to Amsterdam, Netherlands; then from Amsterdam to San Francisco, California; then from Seattle, Washington to Amsterdam; and finally from Amsterdam back to Johannesburg. Docket No. 1, Compl. ¶ 15; Docket No. 14, Plug-Schiltmeijer Decl. Exs. A, B. Plaintiffs allege that they sought to relocate from South Africa to California to invest in and manage an aviation company. Compl. ¶ 17.

On or about August 25, 2008, plaintiffs boarded KLM flight number KL605, flying from Amsterdam to San Francisco. Id. ¶¶ 7, 15. When the flight was about an hour away from landing in San Francisco, Ms. Schoenebeck bent forward to pick up her lipstick and comb from her handbag. Id. ¶ 19. Plaintiffs allege that at that time, the passenger who was seated in front of Ms. Schoenebeck pushed down on the headrest of his seat, causing the seat backrest to collapse on her, crushing her head, neck, and back. Id. ¶¶ 7, 19-21. Plaintiffs allege that the accident resulted in Ms. Schoenebeck suffering serious neck and back injuries that required immediate medical attention. Id. ¶¶ 7, 23, 28, 45-55. Plaintiffs further allege that following the incident, KLM failed to provide Ms. Schoenebeck with adequate assistance and medical treatment. Id. ¶¶ 8, 25-32.

On August 4, 2010, Ms. Schoenebeck filed an action in the High Court of South Africa against KLM for personal injury damages arising from the incident. Docket No. 23-2, Marcus Decl. Ex. A; Docket No. 21-1, Von Schoenebeck Decl. ¶ 4. That action currently remains pending in the North Gauteng High Court, Pretoria, Republic of South Africa. Docket No. 21-1, Von Schoenebeck Decl. ¶ 5; Docket No. 14, Plug-Schiltmeijer Decl. ¶ 19.

On October 25, 2013, plaintiffs filed the present action against KLM in this district, alleging causes of action for: (1) strict liability and liability of air carriers under the Montreal Convention[1]; (2) breach of contract and negligence; (3) failure to provide adequate assistance; (4) infliction of emotional distress; and (5) loss of consortium. Docket No. 1, Compl. By the present motion, KLM moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Docket No. 13, Def.'s Mot.


I. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) allows a party to challenge a federal court's jurisdiction over the subject matter of the complaint. See Fed. R. Civ. Pro. 12(b)(1). The party invoking the jurisdiction of the federal court bears the burden of establishing that the court has the requisite subject matter jurisdiction to grant the relief requested. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (citation omitted). A complaint will be dismissed if, looking at the complaint as a whole, it appears to lack federal jurisdiction either "facially" or "factually." Thornhill Pub'g Co., Inc. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). When the complaint is challenged for lack of subject matter jurisdiction on its face, all material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Indus. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In deciding a Rule 12(b)(1) motion which mounts a factual attack on jurisdiction, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist." Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

Federal courts have a duty to raise and decide issues of subject matter jurisdiction sua sponte at any time it appears that subject matter jurisdiction may be lacking. See Fed. R. Civ. Proc. 12(h)(3); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). If the Court determines that subject matter jurisdiction is lacking, it must dismiss the case. Id.

II. Rule 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "facial plausibility" standard requires the plaintiff to allege facts that add up to "more than a sheer possibility that a Defendant has acted unlawfully." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). While courts do not require "heightened fact pleading of specifics, " a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 544, 555. "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id.

In reviewing a Rule 12(b)(6) motion, a district court must accept as true all facts alleged in the complaint, and draw all reasonable inferences in favor of the plaintiff. See al -Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). However, a district court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Moreover, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. In considering a motion to dismiss, the court may take judicial notice of matters of public record outside the pleadings. See MGIC Indemn. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). If the Court dismisses a complaint, it must decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district court should grant leave to amend ...

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