The opinion of the court was delivered by: JOSE LINARES, District Judge
This matter comes before the Court on the motion of Defendant
Continental Airlines, Inc. ("Continental") for an Order granting
partial summary judgment. This motion is resolved without oral
argument pursuant to Rule 78 of the Federal Rules of Civil
Procedure. For the reasons stated herein, Defendant's motion
shall be GRANTED, in toto.
A detailed factual background of this case was set forth in
this Court's February 28, 2005 Opinion, and will not be repeated
here, except where necessary to provide context for the pending
motion for partial summary judgment. The underlying action arises
in connection with pro se Plaintiff Tosin Adegbuji's
(hereinafter "Plaintiff") removal from the United States by the
United States Bureau of Immigration and Customs Enforcement. In
connection with the removal, on or about July 15, 2002,
Continental's employees attempted to board Plaintiff onto a
Continental Airlines flight from Newark Liberty International
Airport to London, England. Plaintiff admits that he resisted
being escorted onto the airplane. He alleges, however, that he
suffered minor injuries after crew members sought to accompany
him to his seat.
On April 23, 2004, Plaintiff filed the instant action.
Following a review of the Complaint pursuant to 28 U.S.C. § 1915,
this Court issued an Opinion and accompanying Order both dated
February 28, 2005, dismissing Plaintiff's claims alleging
violations of his Fourth, Fifth and Fourteenth Amendment rights
under Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971), as well as Plaintiff's
conspiracy claim under 42 U.S.C. § 1985, his false imprisonment
claim, his personal injury claim under the Warsaw Convention*fn1 and his claim for intentional infliction of
emotional distress. The Court also dismissed, in its entirety,
Plaintiff's Complaint against Continental's C.E.O., Gordon
Presently, Continental moves for partial summary judgment,
seeking dismissal of Plaintiff's common law negligence and
assault claims. Continental further moves for partial summary
judgment limiting Plaintiff's loss of property claims with
respect to the two bags allegedly checked by Plaintiff, in
accordance with Article 22(2) of the Warsaw Convention.
A. Summary Judgment Standard
To prevail on a motion for summary judgment, the moving party
must establish that "there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(c); Gleason v. Norwest
Mortgage, Inc., 243 F.3d 130, 138 (3d Cir. 2001). "A `genuine'
issue is one where a reasonable jury, based on the evidence
presented, could hold in the movant's favor with regard to that
issue." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). When considering a motion for summary judgment, all
evidence must be reviewed and all inferences drawn therefrom must
be in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
Once the moving party files a properly supported motion, the
burden shifts to the nonmoving party to demonstrate the existence
of a genuine dispute of material fact. Fed.R.Civ.P. 56(e);
Anderson, 477 U.S. at 256. "The mere existence of a scintilla
of evidence in support of the [nonmovant]'s position will be
insufficient; there must be evidence of which the jury could
reasonably find for the [nonmovant]." Id. at 252. Furthermore,
conclusory statements and arguments do not raise triable issues
which preclude summary judgment. Ridgewood Board of Educ. v.
N.E., 172 F.3d 238, 252 (3d Cir. 1999). Instead, the nonmoving
party must "present affirmative evidence in order to defeat a
properly supported motion for summary judgment." Anderson,
477 U.S. at 257 (citation omitted). If the opponent fails to make a
sufficient showing regarding an essential element of his or her
case upon which he or she will bear the burden of proof at trial,
all other facts are necessarily immaterial and summary judgment
must be granted. Celotex Corp. v. Catrett, 477 U.S. 317, 321
(1986).*fn2 B. Preemption by the Warsaw Convention
Continental maintains that Plaintiff's common law assault and
negligence claims are preempted by the Warsaw Convention, which
governs air carrier liability with respect to all international
transportation. El Al Israel Airlines, Inc. v. Tseng,
525 U.S. 155
, 160 (1999). The essential purpose of the Warsaw Convention
is to "achiev[e] uniformity of rules governing claims arising
from international air transportation." Eastern Airlines, Inc.
v. Floyd, 499 U.S. 530
, 552 (1991). Continental invokes Article
24 of the Convention which, as amended by Montreal Protocol No.
In the carriage of passengers and baggage, any action
for damages, however founded, can only be brought
subject to the conditions and limits set out in this
Convention, without prejudice to the question as to
who are the persons who have the right to bring suit
and what are their respective rights.
Tseng, 525 U.S. at 175. As such, state causes of action are
thereby preempted when the state claims allegedly come within the
scope of the Convention. Fishman v. Delta Air Lines,
132 F.3d 138 (2d Cir. 1998); see also Brandt v. American Airlines,
2000 WL 288393, *4 (N.D.Cal. Mar. 13, 2000) ("[I]f plaintiffs'
claims are governed by the Convention, they may not also bring
state law claims based upon the same allegations.").
Article 17 of the Warsaw Convention creates a cause of action
for personal injuries resulting from an "accident . . . in the
course of any of the operations of embarking or disembarking."
Tseng v. El Al Israel Airlines, Ltd., 919 F. Supp. 155, 157
(S.D.N.Y. 1996). That Article provides:
The carrier shall be liable for damage sustained in
the event of the death or wounding of a passenger or
any other bodily injury suffered by a passenger, if
the accident which caused the damage so sustained
took place on board the aircraft or in the course of
any of the operations of embarking or disembarking.
Id. Under Article 17, liability for passenger injury attaches
only when three conditions are satisfied: (1) there has been an
"accident"; (2) a passenger has been killed, wounded or suffered
bodily injury; and (3) the accident occurred while on board the
aircraft or in the course of embarking or disembarking. Eastern
Airlines v. Floyd, 499 U.S. 530
, 535-36 (1991). For purposes of
the instant motion, Continental concedes that Plaintiff was on an
international flight. (Br. in Supp. at 9). However, as this Court
already held in the February 2005 decision, Plaintiff's claims
herein do not arise from an "accident," and as such, his claims
for personal injuries are not compensable under Article 17. (Op.
at 21, Feb. 28, 2005). Consequently, this Court concluded that
Plaintiff's damages claim for personal injuries pursuant to the
Warsaw Convention was dismissed for failure to state a claim.
(Id. at 22).
Turning to the facts at bar, Plaintiff's remaining claims for
negligence and assault seek tort damages for personal injury.
These claims are therefore covered by Article 17 and may only be
founded on the Warsaw Convention. See e.g., Fishman by Fishman
v. Delta Air Lines, 132 F.3d 138 (2d Cir. 1998) (holding that
negligence and intentional tort actions were within the scope of
the Convention). As the Supreme Court in Tseng noted, however,
"[u]nder amended Article 24 . . . the Convention's preemptive
effect is clear: The treaty precludes passengers from bringing
actions under local law when they cannot establish air carrier
liability under the treaty." Tseng, 525 U.S. at 159. Here,
there is no liability under the Convention. Therefore,
Plaintiff's claims for negligence and assault should be dismissed
as preempted by Article 24. Hence, Continental is granted summary
judgment as to said claims.
C. Claims for Loss of Baggage
Continental also moves for partial summary judgment limiting
Plaintiff's loss of property claims in accordance with Article
22(2) of the Warsaw Convention. This Article provides, in
In the transportation of checked baggage and of
goods, the liability of the carrier shall be limited
to a sum of 250 francs per kilogram, unless the
consignor has made, at the time when the package was
handed over to the carrier, a special declaration of
the value at delivery and has paid a supplementary
sum if the case so requires. In that case the carrier
will be liable to pay a sum not exceeding the
declared sum, unless he proves that that sum is
greater than the actual value to the consignor at
Warsaw Convention, Ch. III, Art. 22(2). The Convention limits
liability for baggage to $9.07 per pound.
14 C.F.R. § 221.106(a)(1) (2002); see also Trans World Airlines, Inc. v.
Franklin Mint Corp., 466 U.S. 243
, 255 (1984); Fujitsu Ltd. v.
Federal Express Corp., 247 F.3d 423
, 428 (2d Cir. 2001).
Moreover, the federally restricted limit has been set at seventy
pounds. See, e.g., Ijedinma v. Northwest Airlines, 2001 WL