The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Plaintiff Chetna Harish Shah commenced this pro se action against Kuwait Airways Corporation ("KAC") to recover for the alleged theft of items from her luggage as she traveled from Ahmedabad, India, to New York. KAC now moves for partial summary judgment limiting its liability to $460, the maximum recoverable under the international treaty commonly known as the Warsaw Convention. Shah raises two principal objections to KAC's motion. First, she argues that her luggage should not be subject to the Convention's liability limits for checked baggage since she intended to carry it on the plane. Second, she argues that the theft of items from her bag was not the isolated act of individual employees, but rather that it is KAC's general practice to steal valuables from passengers. For these reasons, Shah asserts, KAC should not be allowed to avail itself of the liability limitations of the Convention.
For the reasons set forth below, KAC's motion for partial summary judgment is granted. KAC has failed, however, to provide evidence sufficient to obviate factual questions as to whether the liability limits of the Warsaw Convention, or the higher limits of the subsequent international treaty commonly known as the Montreal Convention, apply to this case.
The following facts are either undisputed or construed in the light most favorable to the plaintiff.*fn1
Plaintiff, Chetna Harish Shah, is a resident of the Bronx. (Def. Ex. B.) On March 21, 2008, Shah flew from Ahmedabad, India, to New York's John F. Kennedy International Airport aboard Kuwait Airways. (Def.'s R. 56.1 Statement ¶ 1.) Her itinerary involved changing planes in Kuwait City. (Id.) Shah traveled with three pieces of luggage, two of which she checked through from Ahmedabad to New York. (Pl.'s Aff. ¶ 2.) She carried the third piece with her. (Id.) When Shah arrived in Kuwait, she passed through a security checkpoint. (Id. ¶ 5.) Shah alleges that at this checkpoint a KAC employee saw that her carry-on bag contained valuable jewelry. (Id. ¶¶ 5, 7.) Shah infers from certain observations that this KAC employee then conspired with a KAC flight attendant to steal the contents of the bag. (Id. ¶ 7.) As Shah was about to board her second plane from Kuwait to New York, the flight attendant took the bag from her over her objection and checked it. (Id. ¶¶ 5, 7.) The airline provided her with baggage checks. (Decl. of John Varughese, Def.'s Ex. A.)
When Shah arrived in New York, she discovered that her bag had been ripped and that her valuables were missing. (Pl.'s Aff. ¶ 7.) Shah complained to the airline and promptly filed a damage report. (Decl. of John Varughese, Def.'s Ex. A.) She subsequently sent multiple letters to KAC demanding compensation for her loss. (Def.'s Exs. C, E.) When KAC refused to compensate her in an amount she found adequate, she filed this suit in the Civil Court of Bronx County, claiming $25,000 in damages.
KAC removed the action to this Court and filed an answer. The case was then referred to the Honorable James C. Francis IV, United States Magistrate Judge, for general pretrial management. Following a pretrial conference with the parties on November 17, 2008, Judge Francis ordered a period of discovery, to be completed by January 30, 2009. On February 27, 2009, KAC filed a motion for partial summary judgment, arguing that Shah's claim for damages exceeded the liability limits of the Warsaw Convention, and, accordingly, that her claim should be dismissed to the extent that it exceeded $460.
I. Summary Judgment Standard
Summary judgment is appropriate where the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). An issue is material if it "might affect the outcome of the suit under the governing law." Id.
The moving party bears the burden of showing that he or she is entitled to summary judgment. Huminski v. Corsones, 386 F.3d 116, 132 (2d Cir. 2004.) "When the burden of proof at trial would fall on the nonmoving party, it is ordinarily sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non-movant's claim." Jaramillo v. Weyerhauser Co., 536 F.3d 140, 145 (2d Cir. 2008). The burden then shifts to the non-movant to put forth admissible evidence sufficient to create a genuine issue of material fact for trial. Id. A court must draw all "justifiable inferences" in the non-movant's favor, and construe all of the facts in the light most favorable to the non-movant. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). In the case of Shah, who is pro se, the Court is further obliged to "read [her] supporting papers liberally, and... [to] interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Even a pro se party, however, "may not rely simply on conclusory allegations or speculation to avoid summary judgment, but instead must offer evidence to show that its version of the events is not wholly fanciful." Auguste v. New York Presbyterian Medical Center, 593 F. Supp. 2d 659, 663 (S.D.N.Y. 2009), quoting Morris v. Lindau, 196 F.3d 102, 109 (2d Cir. 1999).
II. The Warsaw and the Montreal Conventions
KAC raises the affirmative defense that its liability for the loss of Shah's luggage is limited by the Warsaw Convention, a multilateral treaty governing international air travel. See Distribuidora Dimsa v. Linea Aerea Del Cobre S.A., 976 F.2d 90, 93 (2d Cir. 1992) (referring to the liability limitations in the Warsaw Convention as an affirmative defense); see also Narkiewicz-Laine v. Scandinavian Airlines Systems, 587 F. Supp. 2d 888, 890 (N.D. Ill. 2008) (characterizing the liability limits of the Montreal Convention as an affirmative defense). It is not clear, however, ...