in bankruptcy court was May 15, 1992. On July 30, 1992, the bankruptcy court entered an order establishing the procedure for processing requests to modify the automatic stay against defendant with respect to litigation of insured claims (the "July lift-stay order").
In March 1992, after defendant filed for bankruptcy but before the deadline for filing proofs of claim, plaintiff wrote defendant and informed it that plaintiff had incurred damages as a result of defendant's temporary loss of La Ballata. Defendant responded on May 11, 1992, four days before the proof of claims deadline, by requesting further information from plaintiff. Defendant's letter did not mention defendant's bankruptcy or the proof of claim deadline. After plaintiff provided the requested information, followed several months later by a letter requesting a response from defendant, defendant's insurance representatives made a December 1992 settlement offer of $ 634.90 to plaintiff. In that letter offer, defendant informed plaintiff that TWA had filed for bankruptcy and that any settlement was thus subject to approval by the bankruptcy court.
In June 1993, defendant informed plaintiff about the bankruptcy court's July lift-stay order and told plaintiff that it would stipulate to a lifting of the automatic stay in accordance with that order. On August 30, 1993, after the parties negotiated the wording of the stipulation, plaintiff's counsel sent signed copies to defendant for its signature. However, in August 1993 the bankruptcy court had confirmed defendant's Second Amended Plan of Reorganization and, on September 22, 1993, had entered an order establishing the procedure concerning post-confirmation litigation of pre-petition fully insured claims (the "September lift-stay order"), thereby necessitating a new stipulation between plaintiff and defendant before the automatic stay could be lifted to allow plaintiff to file its claim.
On October 20, 1993, defendant forwarded a copy of the September lift-stay order to plaintiff so that the parties could enter into a new stipulation. On November 22, 1993, plaintiff returned a signed copy of the stipulation to defendant for defendant's signature. After defendant signed, plaintiff submitted the stipulation to this Court, and the Court signed it on December 17, 1993, thereby lifting the bankruptcy stay and allowing plaintiff's to file this action. Plaintiff did so on the same day.
The complaint seeks damages caused by defendant's temporary loss of the film. In its answer, defendant asserted various affirmative defenses. These included the arguments that: 1) defendant's liability is limited by applicable provisions of the Warsaw Convention; 2) this action is time-barred by the two-year statute of limitations in the Warsaw Convention and by plaintiff's failure to file a proof of claim in defendant's bankruptcy proceeding before the bar date; and 3) plaintiff failed to file a timely notice of claim with defendant as required by the Warsaw Convention.
Plaintiff now moves for summary judgment on the issues of limited liability and statute of limitations. Defendant moves to dismiss plaintiff's complaint for failure to file a proof of claim in bankruptcy court and failure to provide proper written notice of claim as required by the Warsaw Convention.
Federal Rule of Civil Procedure 56 provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
In a motion for summary judgment, all inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 993, 8 L. Ed. 2d 176 (1962). In order to defeat a motion for summary judgment, the nonmoving party must demonstrate that there is a genuine dispute of material fact. Thus, the party opposing the motion may not rest on the allegations or denials of its pleadings but must set forth specific facts, by affidavit or otherwise, showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). These facts must go to a material matter, and must be sufficient to satisfy the Court that enough evidence exists so that the finder of fact could reasonably find for the party opposing the motion. Anderson v. Liberty Lobby, 477 U.S. 242, 248-52, 106 S. Ct. 2505, 2510-12, 91 L. Ed. 2d 202 (1986).
A. Statute of Limitations
The parties agree that the Warsaw Convention, which governs the international transport of good by air, see Distribuidora Dimsa v. Linea Aerea Del Cobre, 976 F.2d 90, 93 (2d Cir. 1992), generally applies to plaintiff's delayed luggage claim. It is also undisputed that the Warsaw Convention contains a two-year statute of limitations for damages actions. Article 29, which sets the limitations period, states:
(1) The right to damages shall be extinguished if an action is not brought within 2 years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the transportation stopped.