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Wendelberger v. Deutsche Lufthansa Ag

United States District Court, N.D. California

May 25, 2018

IRIS WENDELBERGER, et al., Plaintiffs,



         Before the court are defendant Deutsche Lufthansa AG's (“Lufthansa”) motions to dismiss (Dkt. 13) and for sanctions (Dkt. 19). The matters are fully briefed and suitable for decision without oral argument. Accordingly, the hearing set for May 30, 2018 is VACATED. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby rules as follows.


         Considering the motion to dismiss, the court recounts the facts as pled by plaintiffs. Plaintiffs Iris Wendelberger (“Iris”) and Rüdiger Wendelberger (“Rüdiger”) are husband and wife. Compl. ¶ 1. On September 5, 2017, plaintiffs were ticketed passengers aboard Lufthansa Flight 422 (the “Flight”), operated by Lufthansa, which departed Frankfurt Airport in Germany on that date and landed in Boston, Massachusetts. Compl. ¶ 3; Dkt. 13 at 1. Plaintiffs allege that Iris was injured on that flight, and they bring a claim against defendant under the Convention for the Unification of Certain Rules for International Carriage by Air Done at Montreal on 28 May 1999 (the “Montreal Convention”). Compl. at 1 (citing ICAO Doc. No. 9740 (entered into force November 4, 2003), reprinted in S. Treaty Doc. 106-45, 1999 WL 33292734).

         Lufthansa is a corporation with its principal business offices in Germany, and it operates an airline that makes regularly-scheduled flights between the United States and numerous international airports pursuant to a license issued by the Foreign Air Carrier Licensing Division of the United States Department of Transportation. Compl. ¶ 2.

         During the course of the Flight, a cup containing scalding hot liquid that had been served to Iris by a flight attendant slid off of a seatback tray and onto Iris's abdomen, where its contents spilled onto her clothing and skin, causing serious burn injuries. Compl. ¶ 5. The spill was caused by a seatback tray that had been rendered defective by improper maintenance, such that it slanted toward the passenger using it and did not present a level surface. Compl. ¶ 6. As a result of those injuries, Iris now has permanent scarring on her body that has caused her mental distress and embarrassment. Compl. ¶ 7. As a result of the burn injuries suffered by Iris, Rüdiger has suffered loss of companionship, loss of spousal services and loss of consortium. Compl. ¶ 10.

         Defendant shows, and plaintiffs do not dispute, that plaintiffs were traveling pursuant to contracts of carriage with Lufthansa that provided for round-trip carriage from Vienna, Austria, to Boston, Massachusetts, and back to Vienna, with layovers in Frankfurt, Germany. Dkt. 13-1 (“Russo Decl.”) ¶ 10, Ex. A. Plaintiffs were scheduled to travel on Lufthansa Flight LH 1233 on September 5, 2017 from Vienna to Frankfurt; Lufthansa Flight LH 422 on September 5, 2017 from Frankfurt to Boston; Lufthansa Flight LH 423 on September 20, 2017 from Boston to Frankfurt; and Lufthansa Flight LH 6332 on September 21, 2017 from Frankfurt to Vienna. Id. Lufthansa's records indicate that plaintiffs purchased their tickets on in Austria. Id. at ¶ 9, Ex. A.

         Plaintiffs filed their complaint in the Northern District of California. After the filing, defendant's counsel asked plaintiffs' counsel to explain plaintiffs' jurisdictional basis to bring the claims in the United States. Dkt. 20 (“Cunningham Decl.”) ¶ 6, Ex. A. Plaintiffs' counsel replied stating that a Sixth Circuit case questioned the applicability of Warsaw Convention case law to the Montreal Convention and that if this court rejected plaintiffs' arguments, plaintiffs would appeal unless the parties settled. Id. at ¶ 7, Ex. B. The parties exchanged subsequent letters.


         A. Legal Standard

         1. Subject Matter Jurisdiction

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) tests the subject matter jurisdiction of the court. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039-40 (9th Cir. 2003). Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). As such, federal courts are presumed to lack jurisdiction in a particular case “unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). Although lack of subject matter jurisdiction is an affirmative defense, the burden of proof in a 12(b)(1) motion is on the party asserting jurisdiction, and the court will presume a lack of jurisdiction until the pleader proves otherwise. Kokkonen, 511 U.S. at 377; Stock West, 873 F.2d at 1225; Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986). Federal district courts can adjudicate only those cases which the Constitution and Congress authorize them to adjudicate. Mims v. Arrow Financial Services, LLC, 565 U.S. 368, 376-77 (2012); see also Chen-Cheng Wang ex rel. United States v. FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992) (“[f]ederal courts have no power to consider claims for which they lack subject-matter jurisdiction”).

         A jurisdictional challenge may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where the attack is facial, the court determines whether the allegations contained in the complaint are sufficient on their face to invoke federal jurisdiction, accepting all material allegations in the complaint as true and construing them in favor of the party asserting jurisdiction. Id.; see also Warth v. Seldin, 422 U.S. 490, 501 (1975).

         2. ...

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