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Dordieski v. Austrian Airlines, AG

United States District Court, N.D. Indiana, Hammond Division

August 23, 2016




         Mary Dordieski alleges that she suffered a horrible injury at the hands of agents of Austrian Airlines when they broke her leg by forcibly stuffing her into an airplane seat when the leg was rigid and unbendable due to spina bifida. Ms. Dordieski lives in Crown Point, Indiana. Austrian Airlines is incorporated in Austria and conducts substantial and continuous business within the United States, including in Indiana and Illinois. The injury occurred in Canada. The airline has moved to dismiss the action on forum non conveniens grounds.

         I’ll start with the facts as they are detailed in the second amended complaint which I will accept as true at this point. Dordieski is an adult who suffers from spina bifida, as a result of which her right leg is deformed and has always been outstretched and rigid since birth. Mary is confined to a wheelchair and incapable of any self- support. Mary’s mother and caregiver Svetlana Dordieski purchased airline tickets for herself and Mary for an Austrian Airlines flight leaving Chicago, Illinois and bound for Vienna with a final destination of Skopje, Macedonia. To accommodate Mary’s disability, Svetlana purchased two tickets in the bulkhead section of the plane - a section that provides more space for passengers.

         Mary and Svetlana boarded the flight without incident. But on the way to Austria, the airplane encountered mechanical difficulties and made an emergency landing in Toronto, Canada. The passengers were transported to a Toronto hotel and asked to return to the airport the following day to complete the trip. Mary and Svetlana returned to the airport the next morning to continue their adventure.

         For the new flight leaving Toronto, Austrian Airlines did not assign Mary and Svetlana the same seats in the bulkhead section. Instead, the airline issued them boarding passes for regular seats that did not accommodate Mary’s disability. This posed a problem given Mary’s condition. Svetlana protested that Mary could not be seated in the newly assigned seat given the deformity of her leg. Mary claims that, despite her protests, the airline’s employees or agents forced Mary’s outstretched leg into the inadequate space, causing it to break.

         It is undisputed that Mary’s claims for damages are governed by the Convention for the Unification of Certain Rules for International Carriage by Air, known as the Montreal Convention. It is also undisputed that Article 33 of the Convention governs where plaintiffs can bring claims. The Montreal Convention states that an action for damages “must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.” Convention for the Unification of Certain Rules for International Carriage by Air, Art. 33, ¶1 (May 28, 1999), S. Treaty Doc. No. 106-45 at 27, 2242 U.N.T.S. 350. Paragraph 2 of Article 33 also identifies a fifth jurisdiction, applicable only for passenger death or injury claims, permitting an action to be brought “in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air....” Id. at ¶2. It is this latter provision that authorizes Dordieski to bring her claim in this court because she lives here in the Northern District of Indiana.

         Austrian Airlines moves to dismiss Mary’s complaint based on forum non conveniens. The doctrine of forum non conveniens applies equally to claims under the Montreal Convention brought in U.S. courts as it does to cases brought in U.S. courts under U.S. laws. See, e.g., In re Caribbean Airways, S.A., 619 F.Supp.2d 1299, 1316-17 (S.D. Fla. 2007), aff’d sub nom. Pierre-Louis v. Newyac Corp., 584 F.3d 1052 (11th Cir. 2009). Dismissal under forum non conveniens is appropriate if: (1) there is an adequate alternative forum in which the case can be tried, and (2) the relevant private and public interests favor dismissal. See Fischer v. Magyar Allamvasutak Zrt., 777 F.3d 847 (7th Cir. 2015); see also Kamel v. Hill-Rom Co., Inc., 108 F.3d 799, 802 (7th Cir. 1997). Austrian Airlines argues that Canada is adequate alternative forum and that the private and public interests favor dismissal.

         The first issue is whether the motion to dismiss is untimely, as it was filed more than three months after the airline filed its answer to the second amended complaint. It is true that Rule 12(b) provides a list of defenses requiring motions to be “made before pleading if a responsive pleading is allowed, ” and dismissal on forum non conveniens grounds is a species of the defense of improper venue, which appears as Rule 12(b)(3) in the list. Deb v. SIRVA, Inc., __F.3d __, 2016 WL 4245497, *2 (7th Cir. Aug. 11, 2016) (“Subsumed within this last category [improper venue] were the common law principles of forum non conveniens and abstention.”).

         But Rule 12(b) also says that “[n]o defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.” This reluctance to find waiver is underscored in Rule 12(h)(1)(B), which provides that a party waives a defense listed in Rule 12(b)(2)-(5) by failing to either assert the defense by motion or to include it in a responsive pleading. In this case, the airline’s forum non conveniens challenge was clearly articulated in its answer and, in particular, in its second affirmative defense. Here’s what the airline said in that responsive filing: “This action should be dismissed for the convenience of the parties and/or witnesses and in the interests of justice.” [DE 69 at 22.] What’s more, in response to Dordieski’s venue allegations, the airline answered that it lacked knowledge or information sufficient to form a belief as to the truth or falsity of the allegations, and so denied them. [Id. at 3.] In the face of these timely challenges to Dordieski’s venue selection in the airline’s answer, and in view of the airline’s earlier assertion of a forum non conveniens motion in response to each of Dordieski’s two previous pleadings [DE 14, DE 37], I am not persuaded that the timing of the current motion can be viewed as a waiver.

         So it’s on to the forum non conveniens determination. Here’s the broad outline of the doctrine as explained by the Supreme Court:

A federal court has discretion to dismiss a case on the ground of forum non conveniens when an alternative forum has jurisdiction to hear the case, and trial in the chosen forum would establish oppressiveness and vexation to a defendant out of all proportion to plaintiff’s convenience, or the chosen forum [is] inappropriate because of considerations affecting the court’s own administrative and legal problems.

Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 429 (2007) (internal citations omitted). As the Seventh Circuit reminded us a couple weeks ago, a plaintiff’s choice of forum should seldom be disturbed, unless the balance of convenience falls strongly in defendant’s favor. Deb, 2016 WL 4245497, *2, citing Gulf Oil v. Gilbert, 330 U.S 501, 504 (1947). A dismissal under the doctrine of forum non conveniens is characterized as an “exceptional one” that should be used “sparingly.” Id. It is for this reason that defendants who invoke forum non conveniens bear a heavy burden, particularly when the plaintiff’s choice is his home forum. Id. at *3. The defendant’s heavy burden takes into consideration the fact that granting such a motion usually launches a plaintiff into a foreign court and the logistical hassles that come with it.

         The Seventh Circuit breaks down an adequate alternative forum into a “two-part inquiry: availability and adequacy.” Kamel, 108 F.3d at 802. Availability is when “all parties are amenable to process and are within the forum’s jurisdiction.” Stroitelstvo Bulgaria Ltd. v. Bulgarian-American Enterprise Fund, 589 F.3d 417, 419 (7th Cir. 2009). Adequacy requires that a forum provide the plaintiff with a “fair hearing to obtain some remedy for the alleged wrong.” Id.

         As I indicated, Article 33 of the Montreal Convention governs where the plaintiff can bring her claims. Article 33 identifies five forums that ...

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