Yun v. Korean Air Lines Co Ltd

Brief/Memorandum in Support

N.D. Tex.July 11, 2016

PLAINTIFF’S MEMORANDUM IN SUPPOR OF MOTION FOR VOLUNTARY DISMISSAL Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION PYONGHAE HELEN YUN, § § Plaintiffs, § CIVIL ACTION NO. 3:15-cv-2516 § vs. § § KOREAN AIR LINES CO., LTD., § § Defendant. § PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR VOLUNTARY DISMISSAL Plaintiff asks the Court to dismiss her suit against defendant, as authorized by Federal Rule of Civil Procedure 41(a)(2). A. INTRODUCTION 1. Plaintiff is Pyonghae Helen Yun and Defendant is Korean Air Lines Co., LTD. 2. On July 30, 2015, plaintiff sued defendant under Article 33 of the Montreal Convention. 3. On August 3-4, 2014, Plaintiff was a passenger onboard Korean Air Flight KE082 from New York JFK to Seoul Incheon, Korea. 4. Through no fault of her own Plaintiff was severely burned when a cup of hot tea slid off the tray table in front of her into her lap. 5. Her injuries include, bodily injury of second and third degree burns to her right and left thighs, resulting in pain and suffering, disability, mental anguish, loss of capacity for the enjoyment of life, medical treatment, past and future medical expenses. B. ARGUMENT 6. A Court should freely grant a motion for voluntary dismissal as long as the non-movant will not be prejudiced. Versa Prods., Inc. v. Home Depot, USA, Inc., 387 F.3d 1325, 1327 (11th Case 3:15-cv-02516-B Document 20 Filed 07/11/16 Page 1 of 3 PageID 73 PLAINTIFF’S MEMORANDUM IN SUPPOR OF MOTION FOR VOLUNTARY DISMISSAL Page 2 Cir. 2004); see FED. R. CIV. P. 41(a)(2); Cone v. W. Va. Pulp & Paper Co., 330 U.S. 212, 217 (1947). 7. Defendant claims there is no subject matter jurisdiction under the Montreal Convention in the United States. Rather than litigate the issue of subject matter jurisdiction, Plaintiff wishes to dismiss her case in the United States and proceed in Korea. 8. Defendant will not be prejudiced by the dismissal as it is consistent with pleadings that the case should be dismissed and pursued in Korea. 9. Plaintiff requests that the dismissal be without prejudice to refiling the suit because she plans to refile the suit in Korea prior to the two-year statute of limitations on August 4, 2016. 10. Defendant has not filed a counterclaim. C. CONCLUSION 11. For these reasons, plaintiff asks the Court to dismiss the suit without prejudice for refiling of same in Korea. Respectfully submitted, SLACK & DAVIS, L.L.P. Ladd C. Sanger Texas State Bar No. 00797378 2911 Turtle Creek Boulevard, Suite 1400 Dallas, Texas 75219 Tel: (214) 528-8686 Fax: (214) 528-6989 lsanger@slackdavis.com s/ Ladd C. Sanger___________________________ LADD C. SANGER ATTORNEYS FOR PLAINTIFF Case 3:15-cv-02516-B Document 20 Filed 07/11/16 Page 2 of 3 PageID 74 PLAINTIFF’S MEMORANDUM IN SUPPOR OF MOTION FOR VOLUNTARY DISMISSAL Page 3 CERTIFICATE OF SERVICE I hereby certify that the foregoing document shall be served via ECF on this 11th day of July, 2016, on the following: Geffrey W. Anderson Anderson & Riddle, LLP 1604 8th Avenue Fort Worth, Texas 76104 ganderson@andersonriddle.com Andrew J. Harakas Clyde & Co. US LLP The Chrysler Building 405 Lexington Avenue, 16th Floor New York, NY 10174 andrew.harakas@clydeco.us /s/ Ladd C. Sanger __________________________ LADD C. SANGER Case 3:15-cv-02516-B Document 20 Filed 07/11/16 Page 3 of 3 PageID 75