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Gleissner v. Anonim Ortakligi

United States District Court, S.D. New York

January 17, 2018




         Plaintiff Michael Gleissner brings this suit against Defendant Turk Hava Yollari Anonim Ortakligi (the Turkish air carrier that does business as Turkish Airlines) (“THY”), alleging negligent infliction of emotional distress under New York law in connection with a cancelled airline flight. THY moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 17.) For the reasons that follow, the motion is granted.

         I. Background

         The following facts are taken from the Complaint and the parties' respective statements of undisputed material facts and are not subject to a genuine dispute except where otherwise noted.

         Gleissner is a film producer, director, screenwriter, and actor. (Dkt. No. 18-1 (“Compl.”) ¶ 6.) When the events at issue here occurred, Gleissner was allegedly involved in producing a television series called “RoboGirls.” (Id. ¶ 8.) On August 25, 2016, while in Hong Kong, Gleissner purchased tickets through for himself and his family to travel on THY from Singapore to Catania, Italy, on August 25, 2016, and then from Catania to Hong Kong on August 28, 2016. (Dkt. No. 27 (“Pl.'s SUF”) ¶ 4; Compl. ¶ 7-9; Dkt. No. 18-5 at 7.) On August 28, 2016, the same day he was scheduled to fly to Hong Kong, Gleissner decided to extend his family's vacation in Italy and attempted to change his return flight using (Id. ¶ 7; Compl. ¶ 7-9; Dkt. No. 18-5 at 7.) The modified itinerary would have provided for Gleissner to depart Catania for Hong Kong on September 1, 2016. (Id.) However, THY claims that was unable to cancel Gleissner's original ticket to fly from Catania to Hong Kong on August 28, 2016, and as a result he was listed as a “no show” for his initial reservation. (Dkt. No. 19 ¶ 6.) Several hours after attempting to change his reservation, Gleissner received an email from, notifying him that his reservations to travel from Catania to Hong Kong on September 1, 2016, had been cancelled. (Pl.'s SUF ¶ 9.) The cancellation was ultimately reversed, and Gleissner and his family traveled to Hong Kong on THY on September 1, 2016, as Gleissner intended when he first modified his itinerary. (Pl.'s SUF ¶ 12.)

         Nonetheless, Gleissner alleges that THY “did not offer to remedy the situation for an unreasonable period of time.” (Compl. ¶ 25.) He further alleges that the initial cancellation email caused him to suffer “severe anxiety and emotional distress, when faced with the possibility of substantial economic loss as a result of not being able to return to Hong Kong in time to oversee production of RoboGirls” (Id. ¶ 21), and that he suffered emotional distress because he feared that “any delay in his return would have resulted in tremendous economic loss.” (Id. ¶ 17.)

         Gleissner filed this suit in September 2016 in New York state court, alleging negligent infliction of emotional distress and nuisance under New York law. (Compl. ¶ 1.) However, Gleissner has since withdrawn his nuisance claim. (Dkt. No. 25 at 20.) THY[1] removed the case to this Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. (Dkt. No. 1 at 1.) At the time of removal, THY believed Gleissner to be a U.S. citizen and a resident of the state of New York. Id. at 2. At an initial pretrial conference on December 7, 2016, it became clear that Gleissner is a citizen of Germany and a permanent resident of Hong Kong, and neither a U.S. citizen nor a resident of New York. (See Pl.'s SUF ¶¶ 1-2; Dkt. No. 15 at 4.) Based on this revelation, the Court ordered THY to demonstrate a different basis for subject matter jurisdiction. (Dkt. No. 14 at 4.) In response, THY argued that the Court has federal question jurisdiction based on the Montreal Convention.[2] (Dkt. No. 15 at 4-5.)

         In a status report dated April 13, 2017, THY then notified the Court that it intended to file a motion to dismiss for lack of personal jurisdiction and for improper forum under the Montreal Convention. (Dkt. No. 16 at 2-3.) THY never filed a motion to dismiss, but on June 5, 2017, THY filed this motion for summary judgement. (Dkt. No. 17.)

         II. Legal Standard

         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if, considering the record as a whole, a rational jury could find in favor of the non-moving party. Ricci v. DeStefano, 557 U.S. 557, 586 (2009).

         On summary judgment, the party bearing the burden of proof at trial must provide evidence on each element of its claim or defense. Celotex Corp. v. Catrett, 477 U.S. 317, 322- 23 (1986). “If the party with the burden of proof makes the requisite initial showing, the burden shifts to the opposing party to identify specific facts demonstrating a genuine issue for trial, i.e., that reasonable jurors could differ about the evidence.” Clopay Plastic Prods. Co. v. Excelsior Packaging Grp., Inc., No. 12 Civ. 5262, 2014 WL 4652548, at *3 (S.D.N.Y. Sept. 18, 2014) (citing Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 250-51). The court views all “evidence in the light most favorable to the non-moving party, ” and summary judgment may be granted only if “no reasonable trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (second quoting Lunds, Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d Cir. 1989)).

         III. Discussion

         THY contends that it is entitled to summary judgment based on lack of personal jurisdiction, [3] among other reasons.[4] (Dkt. No. 21 at 6.)

         Personal jurisdiction over a foreign defendant is proper only if (1) the laws of the forum state authorize personal jurisdiction over the defendant; and (2) the exercise of personal jurisdiction would comport with the Due Process Clause of the United States Constitution. Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 224 (2d Cir. 2014). Courts may exercise either specific or general personal jurisdiction over a defendant. See, e.g., Daimler AG v. Bauman, 134 S.Ct. 746, 754 (2014). “General jurisdiction renders a defendant amenable to suit on all claims.” Cortlandt St. Recovery Corp. v. Deutsche Bank AG, London Branch, No. 14 Civ. 1568, 2015 WL 5091170, at *2 (S.D.N.Y. Aug. 28, 2015). Specific jurisdiction subjects a defendant to ...

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