Sarah Fadhliah et al v. Soiete Air France et al, No. 2:2013cv06142 - Document 26 (C.D. Cal. 2013)
Court Description: ORDER DENYING MOTION FOR RECONSIDERATION 16 AND DENYING MOTION PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 60(b), 59(e), AND 52(b) 17 by Judge Otis D. Wright, II. (lc). Modified on 11/25/2013 (lc).
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Sarah Fadhliah et al v. Soiete Air France et al Doc. 26 O 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 SARAH FADHLIAH; ALJOHARAH ALSHAIKH; MANSOUR ALSHAIKH; ALANOUD ALSHAIKH; SULTAN ALSHAIKH; ABDULLAH ALSHAIKH, v. Plaintiffs, SOCIÉTÉ AIR FRANCE dba AIR FRANCE; RUDOLPH VAN DER SCHRAAF; DOES 1–50, Case No. 2:13-cv-06142-ODW(AJWx) ORDER DENYING MOTION FOR RECONSIDERATION [16] AND DENYING MOTION PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 60(b), 59(e), AND 52(b) [17] Defendants. I. 17 INTRODUCTION 18 This case initially presented an unsettled area of law: whether the Montreal 19 Convention completely preempted Plaintiffs’ state-law tort claims against Defendant 20 Société Air France and some of its crew members arising from an incident that 21 occurred on one of Air France’s flights. See Convention for the Unification of Certain 22 Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45, 23 2242 U.N.T.S. 309 [hereinafter Montreal Convention]. After considering all relevant 24 sources, the Court determined that it did—and therefore that Air France properly 25 removed the case to this Court under federal-question jurisdiction. The Court also 26 found that under Article 33 of the treaty, the United States was not a proper venue for 27 Plaintiffs’ action and consequently dismissed Plaintiffs’ Complaint without prejudice 28 but without leave to amend. Dockets.Justia.com 1 Plaintiffs then filed two kitchen-sink Motions and a Notice of Appeal, arguing 2 that the Court “failed to consider the material facts before it.” They suddenly adduced 3 new, yet preexisting, evidence regarding their principal and permanent residence. 4 After considering these Motions, the Court finds that Plaintiffs’ evidence is untimely 5 and still fails to establish that their principal and permanent residence is anywhere but 6 in Saudi Arabia. The Court therefore DENIES Plaintiffs’ Motions.1 II. 7 FACTUAL BACKGROUND 8 In the interest of judicial economy, the Court incorporates the factual 9 background contained in the October 1, 2013 Order Granting Defendant’s Motion to 10 Dismiss. (ECF No. 15.) In that Order, the Court found that the Montreal Convention 11 completely preempted Plaintiffs’ state-law tort claims, thereby establishing federal- 12 question jurisdiction under the treaty and making Air France’s removal proper under 13 28 U.S.C. § 1441. 14 Air France then moved to dismiss Plaintiffs’ claims, arguing that under 15 Montreal Convention Article 33, the United States was not a proper venue to hear the 16 dispute. Air France submitted evidence establishing where Plaintiffs purchased their 17 plane tickets, where Air France is incorporated and has its principal place of business, 18 and the place of Plaintiffs’ destination. 19 “principal and permanent residence” is Saudi Arabia based on admissions in 20 Plaintiffs’ Complaint. Air France also asserted that Plaintiffs’ 21 Opposing the Motion, Plaintiffs did not rebut Air France’s factual assertions. 22 Rather, Plaintiffs stated, “Notwithstanding the inaccuracy of Air France’s assertions, 23 Plaintiffs need not reach the facts in this response, as Air France is not entitled to 24 dismissal as a matter of law.” (ECF No. 8, 5 n.1.) 25 Based on the evidence before it, the Court found that the United States is not a 26 permissible venue for Plaintiffs’ case under Article 33; indeed, no court in the United 27 28 1 After carefully considering the papers filed with respect to these Motion, the Court deems the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. 2 1 States may hear Plaintiffs’ case. The Court consequently dismissed Plaintiffs’ case 2 without prejudice but without leave to amend. 3 On October 22, 2013, Plaintiffs filed a Motion for Reconsideration. (ECF 4 No. 16.) One week later, Plaintiffs filed another Motion—this time under Federal 5 Rules of Civil Procedure 60(b), 59(e), and 52(b). Perfecting their trifecta, Plaintiffs 6 filed a Notice of Appeal on October 31, 2013. (ECF No. 18.) Air France timely 7 opposed both Motions. Given the identity of Plaintiffs’ arguments, the Court resolves 8 both Motions here together. III. 9 LEGAL STANDARD Federal Rule of Civil Procedure 60(b) permits a court to relieve a party of an 10 11 order for, among others, “any other reason that justifies relief.” 12 Fed. R. Civ. P. 60(b)(6). Under Ninth Circuit case law, a party may only seek relief 13 under this catchall provision when the party demonstrates “extraordinary 14 circumstances” warranting the court’s favorable exercise of discretion. Cmty. Dental 15 Servs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002). To satisfy its burden under this 16 lofty standard, a party must prove both (1) an injury and (2) circumstances beyond its 17 control. Id. 18 Under Rule 59(e), a party may move to alter or amend a judgment. Rule 52(b) 19 allows a court to amend its findings and alter judgment accordingly on a party’s 20 motion. 21 22 The Central District of California Local Rules further elucidate the proper bases for which a party may seek reconsideration: 23 (a) a material difference in fact or law from that presented to the Court 24 before such decision that in the exercise of reasonable diligence could not 25 have been known to the party moving for reconsideration at the time of 26 such decision, or (b) the emergence of new material facts or a change of 27 law occurring after the time of such decision, or (c) a manifest showing 28 /// 3 1 of a failure to consider material facts presented to the Court before such 2 decision. 3 [L.R. 7-18.] 4 Additionally, “[n]o motion for reconsideration shall in any manner repeat any oral or 5 written argument made in support of or in opposition to the original motion.” Id. IV. 6 DISCUSSION 7 In both of their Motions, Plaintiffs contend that there is no factual support for 8 the Court’s finding that Plaintiffs are principal and permanent residents of Saudi 9 Arabia, no factual support for the Court’s finding that amendment would be futile, and 10 remand—not dismissal—was the proper remedy in this case. Air France disagrees, 11 arguing that the Court properly determined that no court in the United States could 12 hear the Plaintiffs’ case under the Montreal Convention. 13 Plaintiffs have not identified any valid basis for reconsideration and therefore denies 14 their Motions. 15 A. The Court finds that Plaintiffs’ “principal and permanent residence” 16 Plaintiffs’ chiefly argue that “this Court failed to consider material facts already 17 before it.” (ECF No. 16, at 7.) They contend that Air France erroneously established 18 Plaintiffs’ “principal and permanent” residence for Article 33 purposes based on the 19 declaration of one of Air France’s own employees, even though that employee would 20 have no personal knowledge of Plaintiffs’ residency. Plaintiffs also assert that they 21 contested Air France’s factual assertions. They argued that four out of five of the 22 Plaintiffs had arrived in California in November 2010 and remained there until June 23 2011, and Mansour Alshaikh’s travel originated in the United States, not Saudi 24 Arabia. Plaintiffs also “reserved their rights to provide additional facts as needed if 25 the Court concluded that it did need to make factual findings with regard to 26 residency.” 27 demonstrating that Plaintiffs have maintained their “primary residence” in California 28 since 2007 and intend to remain in California “for the foreseeable future.” (Id. at 3.) Finally, Plaintiffs submitted three new declarations 4 1 In response, Air France asserts that Plaintiffs have not established any 2 appropriate basis for reconsideration under Local Rule 7-18. Air France avers that it 3 is impermissible to raise new facts via a reconsideration motion that could have been 4 raised previously. Defendant correctly notes that it “defies logic that plaintiffs did not 5 know where they resided at the time that they filed the opposition, but now suddenly 6 remember.” (ECF No. 19, at 2.) And even if the Court considers Plaintiffs’ new 7 declarations, Air France argues that Plaintiffs have still failed to establish that their 8 principal and permanent residence is in the United States. The Court agrees. 9 Plaintiffs’ declarations have surfaced for the first time now after the Court 10 already granted Air France’s dismissal Motion and closed the case. The law is clear: 11 “A motion for reconsideration may not be used to raise arguments or present evidence 12 for the first time when they could reasonably have been raised earlier in the 13 litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 14 873, 880 (9th Cir. 2009) (internal quotation marks omitted). Plaintiffs astonishingly 15 contend that they were not given a chance to respond to Air France’s factual assertions 16 and establish their principal and permanent residence. This argument is peculiar 17 considering that Plaintiffs filed a 10-page opposition to Air France’s Motion. 18 Plaintiffs also accepted the Court’s invitation to brief the issue of whether the Court 19 has subject-matter jurisdiction over this case. 20 submitted nary a single declaration or other evidence to demonstrate their principal 21 and permanent residence. Their declarations now come too late. In all of their papers, Plaintiffs 22 Even if the Court were to consider Plaintiffs’ declarations, the Court is still not 23 convinced that Plaintiffs have established that their principal and permanent 24 residence—or “fixed and permanent abode”—is in the United States instead of Saudi 25 Arabia. First, Plaintiffs admitted in their Complaint that they are Saudi citizens. 26 These statements constituted judicial admissions. Am. Title Ins. Co. v. Lacelaw Corp., 27 861 F.2d 224, 226 (9th Cir. 1988). The Court took Plaintiffs at their word and found 28 that they were Saudi citizens. 5 1 Second, Plaintiffs misinterpret Article 33. That provision allows a plaintiff to 2 bring suit in one of five enumerated fora, one of which is in the jurisdiction where the 3 plaintiff has her “principal and permanent residence.” Montreal Convention, art. 33. 4 Despite that fact that the Montreal Convention is a multilateral agreement among 104 5 countries, Plaintiffs construe the terms of the Convention based solely on American 6 law. The Montreal Convention drafters made clear in their discussions that “principal 7 and permanent residence” is akin to the American concept of “domicile.” George N. 8 Tompkins, Jr., Liability Rules Applicable to International Air Transportation as 9 Developed by the Courts in the United States 66–67 (2010). They did not use the 10 word domicile, because in civil-law countries a person can have more than one 11 domicile—something the drafters did not want. Id. 12 One must interpret Article 33’s principal-and-permanent-residence provision 13 similar to U.S. law regarding domicile and citizenship. See Hornsby v. Lufthansa 14 German Airlines, 593 F. Supp. 2d 1132, 1139 (C.D. Cal. 2009) (finding that the term 15 “does incorporate an element of intent”). Plaintiffs admit that they are Saudi citizens, 16 and their other evidence shows that they are only residing in California as that term is 17 understood under domestic law. They indicate that they have lived in California since 18 2007 and stay in this state nine months out of the year. The fact that Mansour and 19 Aljoharah have diplomatic driver’s licenses demonstrates as Air France argues that 20 they likely came to the United States for diplomatic purposes. Indeed, they admit that 21 their father is a Saudi diplomat. Further, that Mansour, Aljoharah, and Fadhliah’s 22 children attend school in California does not indicate domicile; people frequently 23 attend school away from home. 24 The Court finds that Plaintiffs’ evidence is untimely, and—even if considered— 25 does not rebut Plaintiffs’ own admissions that they are Saudi citizens. The Court 26 therefore DENIES Plaintiffs’ Motions on this ground. 27 /// 28 /// 6 1 B. Futility of amendment 2 Plaintiffs’ arguments regarding futility of amendment largely echo their 3 previous arguments. They assert that “Plaintiffs were . . . not afforded the opportunity 4 to rebut Air France’s assertions regarding their residency, despite the fact that these 5 assertions were completely unsupported by evidence.” (ECF No. 16, at 4.) As the 6 Court noted above, Plaintiff had every chance to submit their evidence with their 7 previous briefs but failed to do so. The Court was left with Plaintiffs’ own admissions 8 of their Saudi citizenship along with the inferences that Air France could muster. 9 Plaintiffs seem to equate “amendment” with a misplaced notion of their 10 ostensibly, ever-shifting principal and permanent residence. One wonders how a 11 plaintiff can amend a complaint to divest herself of admitted citizenship in one 12 country and suddenly invest herself with citizenship in another. This evanescent pick- 13 your-citizenship idea is hardly what the Montreal Convention drafters envisioned in 14 inditing Article 33’s “fixed and permanent abode” provision. See Tompkins, Jr., 15 supra, at 66–67; see also Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001) 16 (dismissal without leave to amend is proper if it clear that the complaint could not be 17 saved by any amendment). Neither is this provision an “airline-friendly trap” crafted 18 by Air France (Reply 6); rather, it is the Convention’s blackletter law. 19 C. Dismissal versus remand Plaintiffs’ last argument fairs no better. 20 Plaintiffs again misconstrue the 21 Montreal Convention and the Court’s dismissal Order. They make much of the 22 United States Supreme Court’s decision in International Primate Protection League v. 23 Administrators of Tulane Education Fund, 500 U.S. 72 (1991). In that case, the Court 24 held that “the literal words of § 1447(c) . . . give no discretion to dismiss rather than 25 remand an action.” Id. at 89 (internal quotation marks omitted); see also 28 U.S.C. 26 § 1447(c) (“If at any time before final judgment it appears that the district court lacks 27 subject matter jurisdiction, the case shall be remanded.”). 28 /// 7 1 But the problem with Plaintiffs’ argument is that this Court found that it did 2 have subject-matter jurisdiction. (See ECF No. 15, at 10 (finding that “the Court thus 3 has federal-question jurisdiction”).) 4 complete-preemption issue under the Montreal Convention—i.e., whether Air France 5 properly removed this case to this Court. After considering those submissions and 6 relevant law, the Court found “that the Montreal Convention does provide the 7 exclusive cause of action against Air France and that the Court thus has federal- 8 question jurisdiction under the complete-preemption doctrine.” (ECF No. 15, at 10.) Indeed, both parties extensively briefed the 9 Finding that it had jurisdiction, this Court had nothing to remand. Rather, it 10 was only after the Court found that the United States was not a proper venue under 11 Article 33 to hear this dispute that the Court dismissed the action. While “Plaintiffs 12 seek to have this Court . . . overturn its dismissal with prejudice of the substantive 13 case,” nothing of the sort occurred. The Court did not dismiss Plaintiffs’ case with 14 prejudice, i.e., on the merits. In re Marino, 181 F.3d 1142, 1144 (9th Cir. 1999). The 15 Court simply found that amendment of Plaintiffs’ Complaint would not change the 16 words of Article 33’s venue provisions, which preclude the United States as a proper 17 place to hear Plaintiffs’ dispute. 18 D. Rules 60(b), 59(e), and 52(b) 19 Neither do Plaintiffs find much success under their second—though identical— 20 Motion under Federal Rules of Civil Procedure 60(b), 59(e), and 52(b). For the same 21 reasons as stated above, the Court finds that Plaintiffs have not established any valid 22 ground for relief from the Court’s order under Rule 60(b). And there was never any 23 “judgment” or trial in this case, so Rules 59(e) and 52(b) are simply inapposite. Balla 24 v. Idaho State Bd. of Corr., 869 F.2d 461, 467 (9th Cir. 1989) (holding that a Rule 25 56(e) motion was not proper, because the plaintiffs were appealing an order that did 26 not end the litigation on the merits and leave nothing for the court to do but execute 27 the judgment); Fed. R. Civ. P. 52(b) (“the court may . . . amend the judgment 28 accordingly” (emphasis added)). 8 V. 1 2 3 4 CONCLUSION Finding no valid basis for reconsidering its prior dismissal Order, the Court DENIES Plaintiffs’ Motions. (ECF Nos. 16, 17.) IT IS SO ORDERED. 5 6 November 25, 2013 7 8 9 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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