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ORNSTEIN v. PAKISTAN INTL. AIRLINES CORP.

May 31, 1995

BRUCE ORNSTEIN, Plaintiff, against PAKISTAN INTERNATIONAL AIRLINES CORPORATION, Defendant.

Peter K. Leisure, U.S.D.J.


The opinion of the court was delivered by: PETER K. LEISURE

LEISURE, District Judge:

 This is an action brought by Bruce Ornstein ("Ornstein") against Pakistan International Airlines Corporation ("PIA"), seeking recovery for breach of contract and intentional infliction of emotional distress. Plaintiff asserts that defendant failed to use its best efforts to carry plaintiff and his baggage with reasonable dispatch, as it contracted to do, and that defendant acted with the intent to cause, or with knowledge that it would cause, severe mental distress to plaintiff. Defendant now moves this Court for an order dismissing the action, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. For the reasons stated below, defendant's motion is granted in part and denied in part.

 BACKGROUND

 It is well established that, in considering a motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b), the Court must accept as true all material factual allegations in the complaint. See, e.g., Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). Applying this standard, the facts of this case are as follows.

 On or about May 13, 1992, plaintiff purchased three business class tickets for passage on defendant's flight 711 from Paris, France to New York, U.S.A. *fn1" Upon boarding the plane, plaintiff found the interior cabin in disrepair. Numerous panels were taped or glued back into position throughout the interior of the business class section, some of the panels were hanging loosely from the interior fuselage, one of the panels above plaintiff's seat as well as a panel immediately behind his seat were hanging precariously and exposing wires.

 Plaintiff requested a transfer to the first class section of the plane, but his request was refused. Plaintiff, his girlfriend, and their infant daughter then disembarked and were forced to stand outside the plane awaiting their luggage for forty-five minutes. Upon receiving their luggage, they returned to the terminal, purchased two business class tickets on the next available flight, *fn2" traveled to a different airport, and waited four and one-half hours to board their new flight. When plaintiff attempted to obtain a refund of the ticket price from defendant, his request was refused. Plaintiff then brought the instant action.

 DISCUSSION

 A. Undue Delay

 Defendant contends that the instant action is barred by the two-year limitations period of the Warsaw Convention. *fn3" Defendant observes that the instant action arises from the conduct of PIA on May 23, 1992, and that the complaint is dated July 11, 1993 [sic], and the summons is dated July 13, 1993 [sic]. See Memorandum of Law of Defendant Pakistan International Airlines ("Defendant Mem.") at 4. *fn4" Defendant argues that any allegation of the complaint governed by the Warsaw Convention must be dismissed. *fn5"

 Defendant next asserts that to the extent that plaintiff seeks to recover damages for a delay in his transportation, the Warsaw Convention applies. *fn6" Plaintiff does not dispute this point. Rather, he explicitly states that he "does not seek damages because his arrival time in New York was delayed beyond what was originally scheduled." See Plaintiff's Memorandum of Law ("Plaintiff Mem.") at 2. *fn7"

 Defendant proceeds to argue that the entirety of plaintiff's action is nothing more than a claim for delay, and consequently that the whole action should be dismissed as time-barred. Defendant focuses on the allegation in plaintiff's complaint which states that the carrier failed to use its best efforts to carry the passenger and baggage with reasonable dispatch. Particularly, defendant concentrates on the term, "with reasonable dispatch."

 Defendant's interpretation of the complaint, however, is not the only one possible. The complaint can reasonably be read to assert that defendant failed to use best efforts to carry the passenger. If so read, the complaint adequately states a claim against defendant without alleging undue delay. If plaintiff's allegation is true, defendant would have breached its contract in a manner that does not implicate Article 19 of the Warsaw Convention.

 This Court will not narrowly construe plaintiff's complaint to state only a cause of action for undue delay. Consequently, this Court must deny defendant's motion to dismiss the entire claim as ...


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