United States District Court, N.D. California
ORDER DISMISSING CASE WITH PREJUDICE AND DENYING
MOTION FOR SANCTIONS RE: DKT. NOS. 13, 19
PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE
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.
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).
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.
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.
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 Lufthansa.com in Austria. Id. at
¶ 9, Ex. A.
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.
Subject Matter Jurisdiction
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”).
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).