United States District Court, S.D. New York
OPINION AND ORDER
PAUL OETKEN UNITED STATES DISTRICT JUDGE.
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.
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
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 Expedia.com 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 Expedia.com. (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
Expedia.com 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 Expedia.com, 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.)
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.)
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 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. (Dkt. No. 15 at 4-5.)
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.)
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).
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)).
contends that it is entitled to summary judgment based on
lack of personal jurisdiction,  among other
reasons. (Dkt. No. 21 at 6.)
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 ...