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.
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
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
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 ...