Kumar et al. v. China Airlines Ltd. et al, No. 1:2008cv01044 - Document 45 (E.D. Cal. 2009)
Court Description: MEMORANDUM DECISION and ORDER GRANTING Plaintiffs' Request for Continuance 38 , VACATING Hearings Set for February 9, 2009, and CONTINUING Hearing on Plaintiffs' Motion to Withdraw Automatic Admissions to March 23, 2009 and on Defendant� 39;s Motion to Dismiss for Lack of Subject Matter Jurisdiction to April 4, 2009, signed by Judge Oliver W. Wanger on 2/2/09: 30 , 36 MOTIONS to withdraw the automatic admission resulting from lack of response CONTINUED to 3/23/2009 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger; 14 MOTION to Dismiss CONTINUED to 4/4/2009 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Hellings, J)
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 9 NARENDRA KUMAR, et al., 10 Plaintiffs, 11 12 vs. 13 CHINA AIRLINES, et al., 14 15 16 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-F-08-1044 OWW/GSA MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFFS' REQUEST FOR CONTINUANCE (Doc. 38), VACATING HEARINGS SET FOR FEBRUARY 9, 2009, AND CONTINUING HEARING ON PLAINTIFFS MOTION TO WITHDRAW AUTOMATIC ADMISSIONS TO MARCH 23, 2009 AND ON DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION TO APRIL 4, 2009 17 18 19 Plaintiffs Narendra Kumar, Manish Kumar, Monica Kumar and 20 Savitri Srivastava, then proceeding in pro per, filed a Complaint 21 against Defendant China Airlines ( CAL ) and Does 1-10 in the 22 Stansilaus County Superior Court, arising out of the alleged 23 denial of their boarding a China Airlines flight from New Delhi, 24 India, to San Francisco, California, despite having received 25 boarding passes and clearing airport security and immigration. 26 The action was removed to this Court on July 21, 2008. 1 1 On August 13, 2008, CAL filed a motion to dismiss for lack 2 of subject matter jurisdiction, contending that Plaintiffs 3 claims are governed exclusively by the Warsaw Convention, and 4 that the only places where Plaintiffs can bring suit against CAL 5 are Taiwan or India. 6 27, 2008. 7 November 11, 2008 and again, at the request of CAL, to December 8 1, 2008. 9 continued by the Court to February 9, 2009. 10 CAL set the motion for hearing on October The motion to dismiss was continued by the Court to The hearing on the motion to dismiss was again On December 4, 2008, Plaintiffs filed a motion to withdraw 11 automatic admissions, noticing the motion for hearing on February 12 9, 2009. 13 On January 16, 2009, the Law Offices of Jeffrey D. Bohn was 14 substituted as counsel for Plaintiffs and moved for continuance 15 of the hearing on the motion to withdraw automatic admissions to 16 a date beyond March 9, 2009 and on the motion to dismiss to a 17 date beyond March 23, 2009. 18 of the hearings is supported by the Declaration of Teresa B. 19 Petty, counsel for Plaintiffs: 20 21 22 23 24 25 26 Plaintiffs request for continuance 4. That it became apparent after a review of the pleadings and facts in this matter that this office needs additional time to adequately prepare for the current motions on the courts [sic] calendar in this matter. 5. That PLAINTIFFS Motion to Withdraw the Automatic Admissions Resulting From Lack of Response should be heard first, because facts to support PLAINTIFFS opposition are directly at issue in this motion and the Courts [sic] decision will shape the formation of PLAINTIFFS [sic] factual and 2 legal arguments opposing Defendant s motion dramatically. 1 2 CAL does not oppose Plaintiffs request for continuance. 3 However, CAL objects to continuance of its motion to dismiss 4 until after resolution of Plaintiffs motion to withdraw 5 admissions. CAL asserts that Plaintiffs do not articulate 6 exactly why the two motions cannot be heard on the same date, 7 noting that Plaintiffs initially set their motion to withdraw 8 admissions for the same date as the motion to dismiss. CAL 9 contends that its motion to dismiss stands on its own and CAL 10 has yet to rely upon or incorporate any of plaintiffs default 11 admissions in its motion, although, CAL anticipates doing so in 12 its reply brief. CAL further contends that hearing the two 13 motions on different dates will prejudice CAL because CAL will be 14 required to twice incur attorneys fees for its counsel to travel 15 to Fresno from Los Angeles to hear the motions. 16 CAL s objection to continuing the hearing on the motion to 17 dismiss until after Plaintiffs motion to withdraw admissions is 18 misplaced. Plaintiffs were proceeding in pro per when they 19 noticed their motion for the same date as the motion to dismiss. 20 Plaintiffs, through their counsel, have stated that resolution of 21 their motion is necessary to their opposition to the motion to 22 dismiss. CAL s contention that it will be prejudiced by two 23 different hearing dates is baseless. CAL requested telephonic 24 appearance for its motion to dismiss and can do so for the 25 hearing on Plaintiffs motion. 26 3 1 For the reasons stated: 2 1. Plaintiffs request for continuance is GRANTED. 3 Plaintiffs motion to withdraw admissions is continued from 4 February 9, 2009 to Monday, March 23, 2009 at 10:00 a.m. 5 motion to dismiss is continued to Monday, April 4, 2009 at 10:00 6 a.m. 7 IT IS SO ORDERED. 8 Dated: 668554 February 2, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4 CAL s
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