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April 4, 1990


The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.


This is a motion by defendant and a cross-motion by a pro se plaintiff*fn1 for summary judgment pursuant to Federal Rule of Civil Procedure 56.


Plaintiff seeks damages based on allegations of misconduct by Swiss Air Transport Co., Ltd., (Swissair) in transporting her from Geneva to New York against her will on July 4, 1985.*fn2 Prior to that date, plaintiff, a citizen and native of the United States, had been working for the United Nations in Geneva, Switzerland. Plaintiff also contends that she has been a domiciliary of France since August 1983.

The uncontested events which led to plaintiff's departure from Switzerland began in early 1985 when the Daniel family of Switzerland filed criminal charges against plaintiff for harassment. On May 6, 1985, the Swiss police arrested plaintiff for allegedly harassing the Daniel family. After spending two weeks in prison, plaintiff was released because of an understanding that she would leave Switzerland. She departed Switzerland and then returned two days later to reside in Switzerland once again. Manfrini Aff. Ex. 43 (Nov. 28, 1989) [hereinafter all references to exhibits to a Manfrini affidavit are to his November 28, 1989 affidavit, unless otherwise noted]. On July 1, 1985, subsequent to her return, plaintiff obtained employment with the United Nations. On the morning of July 4, 1985, the Geneva Department of Justice and Police ordered the expulsion of plaintiff due to her "inability to adapt to the law and order established in our country." Pl. Mem. of Law, Ex. 1 (Sept. 8, 1989).

Later during the day of July 4, 1985, two female police officers, of the Canton of Geneva, purchased three tickets for a Swissair flight to New York and then forcefully placed plaintiff on board a Swissair plane bound for New York. After her arrival in New York, plaintiff again returned to Switzerland and brought actions challenging the timing of her expulsion and the validity of the expulsion order. Plaintiff also filed criminal charges against the police officers. In addition, she brought this action in the Southern District of New York seeking damages from Swissair.

On August 7, 1985, the Chancellor of State for the Canton of Geneva issued an opinion on the timing of the expulsion. That opinion affirmed the decision to carry out the expulsion immediately and held that under the circumstances plaintiff had not been entitled to a stay of the expulsion pending an appellate process. Manfrini Aff. Ex. 54. On December 17, 1985, the Swiss Federal Court affirmed the Chancellor of State's ruling. Manfrini Aff. Ex. 60.

With respect to plaintiff's criminal charges against the police officers, the Accusation Chamber ruled on October 29, 1986 that the acts of the police officers did not constitute an infraction or an abuse of authority and that the Swiss Prosecutor General had made the correct decision in dismissing the criminal charges filed by plaintiff.

With respect to plaintiff's challenge to the validity of the expulsion order, the Swiss Federal Court issued a decision on April 2, 1987 upholding the expulsion order as legally valid. Manfrini Aff. Ex. 71(b).

On July 20, 1987, the Honorable Charles S. Haight, District Judge for the Southern District of New York, dismissed plaintiff's claims in this action which related to defendant's liability for her forced removal from Switzerland. The basis for Judge Haight's decision was the act of state doctrine. At trial, plaintiff's claim that defendant was liable for events during the flight to New York City was resolved by a jury in favor of Swissair.*fn3

Plaintiff also appealed the results of the trial in the Southern District of New York. On appeal, the Second Circuit affirmed the judgment in the district court "to the extent it rejects Galu's claims for actions occurring during the flight to New York City." Galu v. Swissair, 873 F.2d at 655. The Second Circuit, however, vacated Judge Haight's dismissal of plaintiff's "claim for forceable removal to the United States," because the record before the district court was insufficient for a determination of the scope of Swiss law and therefore the district court's application of the act of state doctrine was unsupported. Id. at 654. Judge Newman, writing for the Second Circuit panel, instructed this Court to determine on remand whether the act of state doctrine or Swiss law tort defenses insulate Swissair from liability.

On October 19, 1989, both parties submitted motions for summary judgment and presented oral argument. After hearing argument and reviewing the expert affidavits on Swiss law, the Court found the submissions to be inadequate for a foreign law determination. Pursuant to Federal Rule of Civil Procedure 44.1, the Court ordered each party to make a more complete presentation at a hearing. See Twohy v. First National Bank of Chicago, 758 F.2d 1185 (7th Cir. 1985) ("appropriate for the court to demand a more `complete presentation by counsel' on the issue" of determination of foreign law); Bassis v. Universal Line, S.A., 436 F.2d 64, 68 (2d Cir. 1970) (Rule 44.1 applies to determinations of foreign law on summary judgment motions). The Court also informed the parties of the subject areas which needed clarification:

  (1) The precise meaning of Swiss Immigration Act
    Article 16, paragraph 8, which according to the
    Swiss Federal Court Decision of April 2, 1987:
      requires that the Canton grant the alien an
    appropriate period of time within which to leave
    Switzerland unless, on an exceptional basis, it is
    imperative that he or she be removed immediately.
    873 F.2d at 652 (quoting Decision of April 2,
  (2) An explanation of the authority of the Swiss
    police officers to resort to force.
  (3) The nature of the proceeding which led to the
    Order of the Accusation Chamber on October 29,
    1986, holding that Deborah Ann Galu's criminal
    complaint against the police officers was without
  (4) An explanation of the "principle of personal
    freedom" discussed in a Swiss Federal High Court
    Decision of October 2, 1984, X v. Department of
    Justice of the Canton of Ticino, and ...

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