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James H. Hunter v. Deutsche Lufthansa Ag

February 26, 2013

JAMES H. HUNTER, PLAINTIFF,
v.
DEUTSCHE LUFTHANSA AG, ETIHAD AIRWAYS P.J.S.C., AND UNITED AIRLINES INC., DEFENDANTS.
ETIHAD AIRWAYS P.J.S.C, THIRD-PARTY PLAINTIFF,
v.
UNITED AIRLINES, INC., THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Dearie, District Judge.

MEMORANDUM & ORDER

Plaintiff was traveling to a security job in Baghdad with firearms in his checked baggage when a flight cancellation forced him to reroute mid-journey. He was imprisoned in Abu Dhabi for weapons trafficking after airline representatives led him to believe that his firearms would not pose a problem with authorities. By Memorandum & Order dated March 28, 2012, this Court dismissed all of plaintiff's federal and state law claims against Etihad Airways P.J.S.C. ("Etihad") and Deutsche Lufthansa AG ("Lufthansa"), except for the state law negligence cause of action.

Plaintiff now amends his complaint to add claims against United Airlines, with whom he originally booked his flights. He argues that United was negligent and breached its contract of carriage by failing to document the presence of his firearms in his passenger name record, the electronic means of notifying other carriers. Etihad had previously filed a third-party complaint against United seeking indemnity or contribution.

United moves to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. For the reasons that follow, we dismiss plaintiff's complaint against United in its entirety, but permit Etihad's contribution claim to go forward.

I. BACKGROUND

A. Facts and Procedural History

The following facts are taken from the allegations of the complaint and are assumed to be true for the purposes of this motion. Plaintiff, a United States Air Force veteran and former Aviation Security Inspector with the Department of Homeland Security, was traveling on business from his residence in Spokane, Washington to Baghdad, Iraq. He had accepted a job as a security consultant for a Middle Eastern company and was transporting firearms needed for work. Plaintiff's travel arrangements, which he made through United Airlines, included several domestic and international flights. Plaintiff flew from Spokane, Washington, through Denver, Colorado, to Washington Dulles Airport in Virginia. From there, plaintiff was booked on a United flight to Frankfurt, a Lufthansa flight from Frankfurt to Dubai, and an Iraq Airlines flight from Dubai to Baghdad. Prior to traveling, plaintiff contacted each airline "to confirm the status of checking his firearms as baggage and transporting his firearms." Compl. ¶ 26. He also made a trip to the Spokane, Washington airport and spoke to United representatives "about the propriety of taking his firearms with him to Iraq on his reserved itinerary." Compl. ¶ 27. According to plaintiff, United representatives explained that "so long as his arrival at his destination with his firearms was approved and lawful," United and the other carriers would be "pleased to carry his firearms on the rest of his journey, provided he complied with all TSA and FAA regulations." Compl. ¶ 28. Representatives of Lufthansa told him the same when he contacted them by phone. Id.

Plaintiff's flight plans were derailed in Frankfurt when his connecting flight to Dubai was cancelled. With assurances from Lufthansa and Etihad representatives that the weapons would pose no problems, plaintiff decided to take an Etihad Airlines flight to Abu Dhabi, and then a Lufthansa chartered "shuttle" to Dubai to catch his connecting flight to Baghdad. Compl. ¶ 34-38. Unbeknownst to him, this route involved officially entering the United Arab Emirates ("UAE"), where he was arrested upon arrival, eventually convicted of gun trafficking, and imprisoned for over one month under harsh conditions. Compl. ¶ 43, 50, 52-59.

In July 2009, plaintiff commenced an action against Lufthansa Airlines and Etihad Airlines, bringing an assortment of claims including state law negligence, breach of contract, false arrest and false imprisonment, intentional infliction of emotional distress, and a federal discrimination claim. On March 28, 2012, we granted defendants' motion to dismiss all of the claims except for the negligence cause of action. Hunter v. Deutsche Lufthansa AG, 863 F.Supp.2d 190 (E.D.N.Y. 2012).

B.Allegations Against United

On August 8, 2011, Etihad Airlines filed a third party complaint against United Airlines, seeking indemnification or contribution. Etihad's discovery revealed that United failed to document plaintiff's weapons when he checked in at the airport in Spokane on July 29, 2008. Specifically, after TSA agents inspected plaintiff's firearms, tagged his checked baggage with a "red tag," and informed United of a satisfactory inspection, United recorded the presence of the weapons in their own computerized system, but did not document it in plaintiff's Passenger Name Record ("PNR"). Compl. ¶ 30, 32, 92; Amended Third-Party Complaint ¶ 16. As a result, neither Lufthansa nor Etihad were made aware of the weapons in plaintiff's checked baggage at the outset of his trip. Compl. ¶ 32. Plaintiff alleges that proper documentation of weapons requires a special service request ("SSR") coding the firearms as "WEAP," which would have rendered plaintiff's ticket "subject to acceptance" by each of the carriers before a seat would be confirmed. Compl. ¶ 32.

On January 18, 2012, plaintiff filed an amended complaint adding United Airlines as a defendant. In light of this Court's earlier decision with respect to the other airline defendants, plaintiff now asserts only claims for negligence and breach of contract against United. Plaintiff's Memorandum in Opposition to United Airlines' Motion to Dismiss ("Plaintiff's Mem.") at 8.

II. DISCUSSION

A. Motion to Dismiss Standard

When a court evaluates a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), it must "accept all well-pleaded facts as true and consider those facts in the light most favorable to the plaintiff." Chapman v. N.Y. State Div. for Youth, 546 F.3d 230, 235 (2d Cir. 2008). "[A] complaint is insufficient as a matter of law unless it pleads specific facts that 'allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 188 (2d Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)) (modification in original). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 58-59 (2d Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1950). "In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration 'to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'"*fn1 Leonard F. v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991)).

B.Plaintiff's Claims

1.Negligence

First we address the issue of the timeliness of plaintiff's negligence claim against United. Under New York law, which applies in this diversity case, plaintiff's negligence claim is governed by a three-year statute of limitations. See N.Y. Civ. Prac. L. & R. ("CPLR") §§ 214(4), 214-a, 214-b, 214-c, 215 (McKinney 1990). CPLR § 203 states that "the time within which an action must be commenced . . . shall be computed from the time the cause of action accrued to the time ...


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