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ROMERO v. AEROLINEAS ARGENTINAS

September 27, 1993

ANTONIO ROMERO and CLAUDIA ROMERO, Plaintiffs,
v.
AEROLINEAS ARGENTINAS, Defendant.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 This is an action by plaintiffs Antonio Romero and Claudia Romero (collectively the "Plaintiffs") to recover for injuries sustained in international air travel aboard an aircraft owned and operated by defendant Aerolineas Argentinas ("Aerolineas"). Jurisdiction is alleged pursuant to the Convention for the Unification of Certain Rules Relating to International Transportation by Air (the "Warsaw Convention"), 29 October 1934, 49 Stat. 3000, T.S. No. 876 (1934), reprinted at note to 49 U.S.C. § 1502, and 28 U.S.C. §§ 1331 and 1337.

 Currently before the court is the issue of whether this case should be transferred to the United States District Court for the Southern District of New York. For the reasons set forth below, this matter is transferred to the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1631. *fn1"

 Procedural History

 The Plaintiffs filed a complaint on 16 July 1993 (the "Complaint"). The Complaint sought recovery against Aerolineas under the Warsaw Convention and the Federal Aviation Program, 49 U.S.C. app. § 1301 et seq. Complaint at 1, 3.

 On 5 August 1993, the Plaintiffs filed an amended complaint (the "Amended Complaint"). The Amended Complaint contained substantially the same factual allegations as did the Complaint, but sought recovery only under the Warsaw Convention. Amended Complaint at 1, 3.

 Facts

 Plaintiffs are and were at all relevant times domiciled in the Township of Belleville, New Jersey. Romero Aff., P 2.

 Aerolineas is a corporation engaged in international air transportation under a permit issued by the United States Civil Aeronautics Board. Amended Complaint at 2; Aerolineas Brief at 3. Aerolineas states it is a "foreign corporation organized and existing under the laws of the Argentine Republic with its domicile and principal place of business in Buenos Aires, Argentina." Aerolineas Brief at 3. Aerolineas states it "transacts business within the State of New York." Id. The North American headquarters of Aerolineas is located in New York County, New York. Oroza Aff., P 1. Aerolineas "does not operate and has never operated any flights from New Jersey." Id., P 6.

 Plaintiffs allege Aerolineas is a "corporation duly organized and existing under the law of the State of New York, with its principal office and place of business located at New York, New York." Amended Complaint at 2.

 On 4 November 1991, Claudia Romero visited a travel agent, known as Monica's Travel, located in Newark, New Jersey. Oroza Aff., P 4; Romero Aff., P 2; Charge Form. Claudia Romero requested two roundtrip tickets for transportation to and from Buenos Aires, Argentina aboard a flight operated by Aerolineas. Oroza Aff., P 4; Romero Aff., P 2; R. Romero Cert., P 5. Claudia Romero paid for the requested tickets by Visa credit card. The Charge Form evidencing this transaction was completed and issued by Monica's Travel. Charge Form.

 Monica's Travel did not have Aerolineas "ticket stock," the paper upon which tickets issued by Aerolineas are to be printed. Oroza Aff., P 4. Consequently, the Charge Form was sent by Monica's Travel to the Aerolineas ticket office in New York County, New York (the "Aerolineas Ticket Office"). Id.

 On 7 November 1991, the Aerolineas Ticket Office issued to the Plaintiffs two round trip tickets (the "Tickets") for travel from John F. Kennedy International Airport in Queens County, New York ("JFK") to Buenos Aires, Argentina on 25 December 1991 and from Buenos Aires to JFK on 1 February 1992. Oroza Aff., PP 3-4; A. Romero Ticket; C. Romero Ticket. The Tickets were then sent by the Aerolineas Ticket Office to Monica's Travel for delivery to the Plaintiffs. Oroza Aff., P 4.

 The Amended Complaint alleges that on 1 February 1992, the Plaintiffs boarded Aerolineas flight number 336 ("Flight 336") from Buenos Aires, Argentina to JFK at Ezeiza Airport ("Ezeiza") in Buenos Aires. Amended Complaint at 2, 3. Plaintiffs allege that while Flight 336 was still on the ground at Ezeiza, an emergency arose, requiring the "immediate evacuation of all passengers." Id. at 3. Plaintiffs allege that as a result of this evacuation, they were injured. Id.

 Discussion

 The parties are in agreement that the Warsaw Convention governs the Plaintiffs' claims against Aerolineas. Amended Complaint at 1; Plaintiffs' Brief at 3; Aerolineas Brief at 6.

 The parties, however, disagree as to the effect of the Warsaw Convention on the issues of personal jurisdiction and venue in this case. Plaintiffs contend personal jurisdiction and venue are proper in the District of New Jersey pursuant to Article 28(1) of the Warsaw Convention, 49 U.S.C. § 1502, art. 28(1). Plaintiffs' Brief at 3-4. Aerolineas contends the Warsaw Convention does not speak to issues of personal jurisdiction and venue, and that personal ...


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