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NAZARIAN v. COMPAGNIE NAT'L AIR FRANCE

January 9, 1998

KAMRAN NAZARIAN and FARANAK NAZARIAN, Plaintiffs, against COMPAGNIE NATIONAL AIR FRANCE, HOMERIC TOURS, INC., M.B. FRANZETTI, THE REPUBLIC OF FRANCE, SERVICE CENTRAL DE LA POLICE DE L'AIR E DES FRONTIERES and "JOHN DOE" and "JACQUES DOE" being police officers of the defendant SERVICE CENTRAL DE LA POLICE DE L'AIR ET DES FRONTIERES whose names are unknown to plaintiffs, Defendants.


The opinion of the court was delivered by: LEISURE

 LEISURE, District Judge :

 Defendant Compagnie Nationale Air France ("Air France" or "defendant") moves for dismissal of this action pursuant to Rules 12(b)(1), (2), and (6) of the Federal Rules of Civil Procedure, asserting a lack of subject matter jurisdiction, a lack of personal jurisdiction over the defendant, and plaintiffs' failure to state a claim upon which relief can be granted. Plaintiffs oppose the motion of Air France, but move the Court, in the event that Air France's motion is granted, to stay the proceedings until the plaintiffs have the opportunity to challenge the terms of Air France's filed tariff with the United States Department of Transportation. For the reasons stated below, the defendant's motion is granted in part and denied in part, and the plaintiffs' motion is denied.

 BACKGROUND

 The following facts are taken from the allegations in the Complaint, *fn1" which must, for the purposes of this motion, be taken as true. On or before September 10, 1995, plaintiffs, Iranian nationals residing as permanent resident aliens in the United States, purchased two round-trip tickets from Air France for travel between New York City and Athens, Greece, connecting through Paris, France. Plaintiffs purchased the tickets from a travel agent on Long Island, New York, and planned the trip as their honeymoon.

 Following their visit to Greece, plaintiffs intended to return to New York on September 22, 1995. Their flight from Greece was delayed, and they missed their connection in Paris. At the Charles De Gaulle Airport in Paris, M.B. Franzetti, *fn2" a manager for Air France, met the plaintiffs and informed them that the next flight to New York was the following afternoon. Franzetti then told the plaintiffs that Air France would pay for one night's accommodation in a luxury hotel in Paris, since the plaintiffs were newlyweds and their flight schedule was disrupted.

 After plaintiffs agreed to this arrangement, Franzetti took their passports and return tickets in order to obtain temporary visas for the couple. Franzetti then had the Nazarians taken to an area of the airport where French immigration officials issue temporary visas. He left the couple alone in line even though they do not speak French.

 The French officials denied the application for temporary visas because the Nazarians are Iranians, and arrested them. Officers of the Service Central de la Police de L'Air et des Frontieres (the "Police") then transported the plaintiffs in an armored truck to a locked holding room and denied them food, drink, and the use of a telephone. In the holding room, two male Police officers searched the plaintiffs. When Kamran Nazarian protested that a female officer should search his wife, the officers assaulted him in front of his wife by throwing him against a wall. The Police also pushed a chair into Faranak Nazarian, causing injury and distress.

 The Police officers then moved the plaintiffs to a different cell, where they went without food, drink, and the use of a bathroom for the entire night. The Police transported the Nazarians to the airport the next morning, released them at the Air France ticket counter, and returned their tickets, passports, and green cards. The Nazarians then returned to New York on an Air France flight that afternoon.

 DISCUSSION

 I. Foreign Sovereign Immunities Act

 The Foreign Sovereign Immunities Act ("FSIA") provides the exclusive source of subject matter jurisdiction over claims in United States courts against foreign states and their agencies or instrumentalities. See Republic of Argentina v. Weltover, 504 U.S. 607, 610-11, 119 L. Ed. 2d 394, 112 S. Ct. 2160 (1992). Title 28, United States Code ("U.S.C."), Section 1330 provides:

 
The district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.

 Thus, a foreign state, its agents, and its instrumentalities are presumptively immune from suits in the federal courts unless a plaintiff demonstrates that the claim falls within a statutory exception to immunity. See 28 U.S.C. § 1604; see also Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488-89, 76 L. Ed. 2d 81, 103 S. Ct. 1962 (1993); Seisay v. Compagnie Nationale ...


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