Opinion
00 Civ. 2445 (JSM)
May 30, 2001
Edwin Fondo, New York, NY, for plaintiff.
Brian Sexton, Quirk Bakalor, P.C., John MacCrate, III, Bingham, Englar, Jones Houston, New York, NY, for defendants.
OPINION and ORDER
Edwin Fondo, M.D. ("Plaintiff"), who appears pro se, brings this action against Defendants Delta Airlines, Inc. ("Delta") and Air France, Inc. ("Air France") based on their failure to transport him to Brazzaville, Africa, and for various tortious acts. Air France removed the case from state court pursuant to 28 U.S.C. § 1441 (d). Delta moves to dismiss the complaint for failure to state a claim and for summary judgment, and Air France moves for summary judgment. For the reasons stated below, Defendants' motions are granted.
I. BACKGROUND
On or about July 16, 1999, Plaintiff telephoned Delta and requested a reservation for a round-trip, first-class ticket from New York City to Brazzaville, Republic of Congo. Plaintiff's purpose in traveling to Brazzaville was to attend a Pan-African music festival that had hired him as a publicity consultant. (Sexton Aff. Ex. F. at 14-16, 22.) The festival was to take place from August 1 to August 8, 1999. Therefore, plaintiff informed the Delta agent that he needed to arrive before August 1.
On July 28, 1999, Plaintiff paid $4,859.22 to a Delta agent and was issued what he believed to be a round-trip ticket to Brazzaville, connecting through Paris. In fact, the African destination printed on the ticket was Douala, Cameroon, not Brazzaville. (Sexton Aff. Ex. D.) plaintiff observed that Brazzaville did not appear on his itinerary, and when he brought this to the attention of the agent, he claims that she told him that the plane would stop in Douala to pick up passengers and that he would not need a voucher to reboard. (Sexton Aff. Ex. F at 58-66.) plaintiff alleges that the Delta agent inspected his Brazzaville visa and health certificate, and never requested Cameroonian papers. (Sexton Aff. Ex. F at 64.)
On July 30, 1999, plaintiff departed from New York and arrived in Paris, where he was booked on Air France Flight 846 bound for Douala. plaintiff claims that he continued to believe that he was headed for Brazzaville. Upon landing in Cameroon, plaintiff was informed that the Brazzaville airport had been closed for two weeks. Because Plaintiff did not have a Cameroonian visa, Air France booked him on a return flight to Paris. plaintiff alleges that Air France treated him poorly during his brief stop in Douala by detaining and searching him, and that an Air France agent accused him of stealing the flight.
Upon arriving in Paris, a Delta agent advised plaintiff that no flights to Brazzaville were scheduled for the foreseeable future and that he should return to New York. Delta refused to refund Plaintiff's money. On August 1, 1999, plaintiff flew back to New York. Later that day, a Delta agent telephoned Plaintiff and told him to rush to the airport for a 7:00 p.m. flight to Brazzaville on Air Afrique. Once at the airport, Plaintiff was informed that the flight was over-booked, and Plaintiff was rescheduled for a 9:00 p.m. flight later that evening. That flight was cancelled, and Plaintiff once again returned home.
On August 2, 1999, plaintiff again requested a refund, which Delta refused. Delta instead offered to fly plaintiff to Brazzaville for an additional $606.03 as a change-of-destination fee. plaintiff paid the additional money and was issued a ticket to Brazzaville with connections through Paris and Douala. (Sexton Aff. Ex. E.) On August 4, 1999, plaintiff departed for Paris on Delta Flight 8267, which was operated by Air France as Flight 007. (MacCrate Aff. Ex. 6.) Although Plaintiff was booked on Cameroon Airlines Flight 81 out of Paris, that flight was apparently cancelled.
Plaintiff waited in Paris until August 7, 1999, when he was booked on another Air France flight bound for Brazzaville, connecting through Douala. Once again, the airplane landed in Douala and did not proceed to Brazzaville. Plaintiff waited in Douala for two days. On August 9, 1999, Plaintiff boarded Cameroon Airlines Flight 804 bound for Brazzaville. Upon arrival, Plaintiff discovered that he had lost his clients and his business contract. Plaintiff departed Brazzaville on August 13, 1999, and arrived home in New York the next day.
Plaintiff thereafter brought this action, claiming that Defendants willfully and deliberately breached his contract of carriage by failing to fly him to Brazzaville by August 1, 1999. Further, Plaintiff alleges that Air France intentionally humiliated him when its agent accused him of stealing his first flight to Cameroon. As a result of this series of cancelled flights and his exposure to airport noise and humidity, Plaintiff alleges that he suffered from numerous physical ailments, including headaches, insomnia, elevated blood pressure, tinnitis, and an unsteady gait. plaintiff seeks compensatory damages for his lost business contract, the cost of his tickets, and his out-of-pocket money, and he also seeks punitive damages.
II. DISCUSSION A. Delta
The Airline Deregulation Act of 1978 (the "ADA") preempts state laws that purport to regulate the prices, routes, or services of air carriers. See 49 U.S.C. § 41713 (b)(1). Courts are empowered, however, to enforce the terms of a contract between an air carrier and a passenger. See American Airlines, Inc. v. Wolens, 513 U.S. 219, 228-29, 232-33, 115 S.Ct. 817, 824, 826 (1995). This is because private contractual agreements and common law remedies for their breach do not implicate state policies enacted for the purpose of regulating airlines.See id. at 229 n. 5; 115 S.Ct. at 824 n. 5. plaintiff's claims for compensatory damages for Delta's alleged breach of contract are therefore not preempted under the ADA.
In contrast to the claims for compensatory damages, Plaintiff's attempt to recover punitive damages against Delta exceeds the terms of his contract of carriage and is preempted under the ADA. See, e.g., Travel All Over the World. Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1432 n. 8 (7th Cir. 1996); Norman v. Trans World Airlines. Inc., 98 Civ. 7419, 2000 U.S. Dist. LEXIS 14618, at *19 (S.D.N.Y. 2000).
In adjudicating contract disputes between an air carrier and its passenger, the Wolens Court held that courts are confined to enforcement of the terms of the "parties' bargain, with no enlargement or enhancement based on state laws or policies external to the agreement." Id. at 232-33; 115 S.Ct. at 826. Here, plaintiff's breach of contract claim against Delta centers on the first ticket, issued July 28, 1999, and Delta's failure to transport plaintiff to Brazzaville by August 1, 1999. Plaintiff cannot dispute that Delta complied with the terms of the ticket as it was printed and accepted by him. The ticket provided for a round trip to Douala, Cameroon, and that is exactly where plaintiff was flown. As such, plaintiff's sole basis for recovery arises from the existence of an oral assurance by Delta's agent, extrinsic to the written contract, that misled him into thinking that his ticket would take him to a destination other than the one printed on the ticket.
As to the second ticket, plaintiff did arrive in Brazzaville as provided for in his ticket, although he apparently arrived three days later than planned because his connecting flight from Paris on Cameroon Airlines was cancelled.
After Wolens courts have indicated that a contract claim is preempted if reference is required to sources of law outside of the agreement that operate to alter its terms or the parties' obligations.See, e.g., Smith v. Comair. Inc., 134 F.3d 254, 257 (4th Cir. 1998);Travel All Over the World, 73 F.3d at 1432; Breitling U.S.A. Inc. v. Federal Express Corp., 45 F. Supp.2d 179, 184-86 (D. Conn. 1999). Thus, a claim based on an ambiguity contained within the contract was found not to be preempted, see Richmond Capitol Corp. v. Federal Express Corp. No., 29 F. Supp. 2 d 737, 740 (M.D. La. 1998), while a plaintiff's attempt to invoke the equitable doctrine of waiver to void an express condition of the contract was held preempted, see Breitling, 45 F. Supp.2d at 186-87. An overly expansive reading of Wolens might lead to the conclusion that reference to an external agreement that modifies the terms of a written contract is an impermissible reference to a source of law outside of the contract. However, ascertaining whether an oral agreement modified the terms of a written contract of carriage is part and parcel of identifying the parties' intent and allows enforcement of the agreement according to those terms. In this respect, this case differs from cases holding that importation of equitable doctrines and defenses external to the contract amounts to impermissible state regulation. See, e.g., Williams v. Federal Express Corp., No. CV 99-06252, 1999 WL 1276558, at *5 (C.D. Ca. Oct. 6, 1999); Breitling, 45 F. Supp.2d at 186-87.
Plaintiff cannot succeed on his breach of contract claim against Delta. An airline ticket, as supplemented by the carrier's tariff, embodies the contract of carriage between the airline and its passenger.See 14 C.F.R. § 253.4. plaintiff admits that he accepted the ticket with full knowledge that on its face it provided for a trip to Cameroon, not to Brazzaville. In New York, "clear, complete writings should generally be enforced according to their terms." W.W.W. Assocs., Inc. v. Giancontieri, 566 N.E.2d 639, 640 (N.Y. 1990). Evidence extrinsic to the agreement, which is offered for the purpose of varying the agreement's terms, is generally inadmissible where the agreement is complete and contains no ambiguity. See id. at 642. Because the ticket as accepted by Plaintiff objectively manifests the parties' intent that he be flown to Cameroon, plaintiff cannot offer parol evidence to vary its terms. Cf. Clemente v. Philippine Airlines, 614 F. Supp. 1196, 1199 (S.D.N.Y. 1985) (oral assurance by airline's agent could not vary express terms of contract of carriage). See generally Klos v. Polskie Linie Lotnicze, 133 F.3d 164, 168 (2d Cir. 1997).
plaintiff also admits that he is an experienced world-traveler.
Nor can plaintiff succeed on a fraud theory. Under New York law, the prima facie elements of a fraud claim consist of a material false representation, scienter, reliance, and injury. See Bridgestone/Firestone Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 19 (2d Cir. 1996). plaintiff's complaint contains no facts that would substantiate a fraud claim; he states only that he was issued "travel documents" for a round trip to Brazzaville. Not only has plaintiff failed to plead a claim for fraud, but he has failed to plead one with particularity. See Fed.R.Civ.P. 9(b).
In his deposition, plaintiff recounts the incident in which Delta's agent assured him that his ticket was for a direct flight to Brazzaville. (Sexton Aff. Ex. F at 56-68.) Even assuming that Plaintiff has alleged facts that would indicate that the agent acted with fraudulent intent, which would be an extraordinarily generous reading of his account, he cannot use a fraud theory for the purpose of rewriting specific terms of his agreement. See Cougar Audio. Inc. v. Reich, No. 99 Civ. 4498, 2000 WL 420546, at *6 n. 4 (S.D.N.Y. 2000); Meinrath v. Singer Co., 482 F. Supp. 457, 460-61 (S.D.N.Y. 1979), aff'd, 697 F.2d 293 (2d Cir. 1982).
plaintiff also may not recover under a theory that Delta was negligent in carrying out an agreement to take him to Brazzaville. New York law does not provide a cause of action for negligent performance of a contract. See City of New York v. 611 West 152nd St., Inc., 710 N.Y.S.2d 36, 38 (App.Div. 2000).
Finally, although Plaintiff styles his action as one for breach of contract, he also alleges various actions by Delta that could amount to a tort. For example, Plaintiff accuses Delta of intentionally humiliating him in their various interactions concerning his ticket purchases and his attempts to obtain a refund. Even assuming that these claims are not preempted, Delta's actions in no way rise to the level of outrageousness required under New York law to state a claim for intentional infliction of emotional distress. See Norman, 2000 U.S. Dist. LEXIS 14618, at *14.15; Guerrero v. American Airlines. Inc., No. 97 Civ. 1948, 1998 WL 196199, at *3 (S.D.N.Y. Apr. 22, 1998) Moreover, there is no evidence that Delta deliberately or maliciously interfered with Plaintiff's travel plans, nor has Plaintiff substantiated any other claim against Delta.
There is wide disagreement over whether and when tort claims are subject to preemption under the ADA. Cf. Taj Mahal Travel. Inc. v. Delta Airlines Inc., 164 F.3d 186, 192-94 (3d Cir. 1998) (proper inquiry is whether state law amounts to "public utility-style regulation"), with Travel All Over the World, 73 F.3d at 1434-35 (adopting distinction between airline "services" and "operations"); see also Rombom v. United Air Lines, Inc., 867 F. Supp. 214 (S.D.N.Y. 1994) (setting forth three-part test). Because Plaintiff's tort claims fail under state law in any event, the thorny question of preemption need not be addressed.
In his complaint, Plaintiff vaguely alludes to an incident in which Delta security guards forcibly removed him from JFK airport after he requested a refund of his ticket price. In Plaintiff's deposition, it becomes clear that Plaintiff was asked to leave the terminal because it was closing. Although Plaintiff was keeping vigil in order to speak to a supervisor, he voluntarily left after the guards made an attempt to move Plaintiff's luggage outside of the terminal doors. (Sexton Aff. Ex. F. at 167-71.) This incident does not provide a basis for an assault or battery claim. Plaintiff also alleges in his complaint that he suffered from several physical ailments as a result of his travels, but he does not connect these claims to any cause of action.
Accordingly, Plaintiff's claims against Delta are dismissed.
B. Air France
Plaintiff's breach of contract claim against Air France focuses on only two of his flights on that airline, both of which were arranged through Delta. On July 31, 1999, Plaintiff flew from Paris to Douala on Flight 846 as provided for in his first ticket, and on August 4, 1999, Plaintiff flew from JFK to Paris on Flight 007 as provided for in his second ticket. Thus, Air France performed the specific terms of those contracts of carriage. Plaintiff's breach of contact claims against Air France are dismissed.
plaintiff also alleges tortious behavior on the part of Air France, primarily in relation to the incident in Douala in which he was "deported" and forced to reboard a flight for Paris and in which an Air France agent allegedly accused him of stealing or "hijacking" the flight. Even assuming that Plaintiff has stated a claim for intentional infliction of emotional distress or false imprisonment, the Court lacks subject matter jurisdiction over this claim under the Foreign Sovereign Immunities Act (the "FSIA"), 28 U.S.C. § 1602 et seq.
The FSIA is the exclusive source of subject matter jurisdiction over claims against foreign states and their agencies or instrumentalities in United States courts. See Republic of Argentina v. Weltover. Inc., 504 U.S. 607, 610-11, 112 S.Ct. 2160, 2164 (1992). Air France, as an instrumentality of a foreign state, see 28 U.S.C. S 1603(b)(2), is "presumptively immune from suit in federal court unless the plaintiff meets its burden going forward of demonstrating that the claim asserted against that foreign entity falls within one of the statutory exceptions to immunity." Seisay v. Compagnie Nationale Air France, No. 95 Civ. 7660, 1997 WL 431084, at *4 (S.D.N.Y. July 30, 1997). The only relevant exception here is for claims "based upon a commercial activity carried on in the United States by the foreign state." 28 U.S.C. § 1605 (a) (2).
Courts have held that in order to qualify for this exception, a plaintiff's claim must have some identifiable nexus with the commercial activity performed in the United States. See Saudi Arabia v. Nelson, 507 U.S. 349, 357-58, 113 S.Ct. 1471, 1477-78 (1993); Santos v. Compagnie Nationale Air France, 934 F.2d 890, 892-93 (7th Cir. 1991). For example, where a passenger purchases an airline ticket in the United States and is injured when the plane crashes, jurisdiction exists because the foreign airline undertook a duty to safely transport the passenger. See Santos, 934 F.2d at 893-94. On the other hand, the Nelson Court found that even though the commercial activity at issue there, the defendant's recruitment of the plaintiff and the execution of an employment contract, "led to the conduct that eventually injured the Nelsons" in Saudi Arabia, it did not form the basis of their false imprisonment and personal injury claims. Id. at 358, 113 S.Ct. at 1478.
Here, the only nexus between Plaintiff's tort claims and Air France's commercial activity in the United States is that Plaintiff purchased his tickets here. In a similar case, Judge Keenan found that Air France was immune from a passenger's claim that she was falsely imprisoned in a Paris airport even though he bought his ticket in New York. See Seisay, 1997 WL 431084 at *5-6. Judge Keenan found that the plaintiff's purchase of a ticket in New York was irrelevant to proving his cause of action for false imprisonment in Paris. See also Moses v. Air Afrique, No. 99 Civ. 541, 2000 WL 306853, at *3 (S.D.N.Y. Mar. 21, 2000); Nazarian v. Compagnie Nationale Air France, 989 F. Supp. 504, 508-09 (S.D.N.Y. 1998)
Plaintiff does not allege that Air France owed him a duty of care that was violated when he was questioned in close confinement and then sent back to Paris. Rather, he describes actions that could conceivably amount to false imprisonment or intentional infliction of emotional distress, or even perhaps defamation. Although plaintiff's purchase of his airline ticket in New York might be a relevant fact in assessing those claims, that act does not in and of itself form an element of those causes of action. Accordingly, Plaintiff's tort claims are dismissed for lack of subject matter jurisdiction.
III. CONCLUSION
For the foregoing reasons, Defendants' motions to dismiss this action are granted.
SO ORDERED.