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Chey v. Orbitz Worldwide, Inc.

United States District Court, D. Hawai'i

November 21, 2013

TIMOTHY CHEY, Plaintiff,
v.
ORBITZ WORLDWIDE, INC., and AIR CHINA, Defendants

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Timothy Chey, Plaintiff, Pro se, Ewa Beach, HI.

For Orbitz Worldwide, Inc., Defendant: Adam G Lang, LEAD ATTORNEY, Torkildson Katz Moore Hetherington & Harris, Honolulu, HI; Ronald I. Heller, Torkildson Katz Moore & Hetherington, Honolulu, HI.

For Air China, Defendant: Christine E. Savage, LEAD ATTORNEY, Kawashima Lorusso, LLP, Honolulu, HI.

OPINION

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ORDER (1) GRANTING DEFENDANT AIR CHINA, LTD'S MOTION TO DISMISS, DOC. NO. 26; (2) GRANTING IN PART DEFENDANT ORBITZ WORLDWIDE, INC.'S MOTION TO DISMISS AS TO IMPROPER VENUE, DOC. NO. 28; AND (3) TRANSFERRING ACTION TO THE NORTHERN DISTRICT OF ILLINOIS

J. Michael Seabright, United States District Judge.

I. INTRODUCTION

According to pro se Plaintiff Timothy Chey's (" Plaintiff" ) July 2, 2013 First

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Amended Complaint (" FAC" ), Plaintiff booked a flight on Air China from Spain to Brazil through Orbitz Worldwide, Inc. (" Orbitz" ), and was subsequently denied entry on the flight for failure to have a visa. Plaintiff alleges various state law claims against Orbitz and Air China (collectively, " Defendants" ) based on their failure to provide him information regarding Brazil's visa requirements and failure to assist him in making alternative travel arrangements. Plaintiff also asserts state law claims against Orbitz based on another incident in which Orbitz provided the wrong gate information for a flight in Tokyo. The FAC asserts that the court has diversity jurisdiction, and Plaintiff seeks " $350,000 minimum damages for each action and punitive damages" against Defendants. Doc. No. 25, FAC ¶ 26.

Currently before the court are Defendants' Motions to Dismiss. Air China argues, among other things, that the court lacks subject matter jurisdiction over the claims against Air China due to the Foreign Sovereign Immunities Act of 1976 (the " FSIA" ), 28 U.S.C. § 1602 et seq. Doc. No. 26. Orbitz argues that the court lacks diversity jurisdiction because Plaintiff cannot meet the $75,000 jurisdictional minimum where Plaintiff's damages are limited by Orbitz' Terms and Conditions to which Plaintiff agreed. Doc. No. 28. Orbitz further argues that venue is improper because Orbitz' Terms and Conditions designate the courts in Cook County, Illinois as the exclusive forum for any litigation.

Based on the following, the court finds that the court lacks subject matter jurisdiction over the claims against Air China due to the FSIA, and that venue is improper in this district as to Plaintiff's claims against Orbitz. The court therefore GRANTS Air China's Motion to Dismiss, GRANTS in part Orbitz' Motion to the extent it asserts that venue is improper, and TRANSFERS this action to the Northern District of Illinois.

II. BACKGROUND

A. Factual Background

1. Allegations of the FAC

As alleged in the FAC, Plaintiff booked a business class reservation through Orbitz.com for an Air China flight from Spain to Brazil on November 1, 2012. Doc. No. 25, FAC ¶ 10. Despite phone calls and emails, Defendants failed to warn Plaintiff that he needed a visa to travel to Brazil. Id. ¶ 11. When Plaintiff arrived at the airport in Spain, he was told that he would not be permitted to board the flight because he did not have a visa. Id. ¶ 22. Air China refused to help Plaintiff find another flight or otherwise assist Plaintiff, and Plaintiff was unable to find any international customer support telephone number for Defendants. Id. ¶ 24. Plaintiff asserts that Defendants knew that many Americans traveling to Brazil believed that they did not need visas, and that Defendants therefore should have provided warnings to passengers. Id. ¶ 14. Plaintiff further asserts that Orbitz purposefully hides its customer service number so that customers cannot contact it. Id. at 7 ¶ 4.

The FAC alleges that in a separate incident involving a flight from Tokyo to Singapore, Orbitz provided Plaintiff the wrong terminal information for Narita International Airport, which resulted in Plaintiff having to carry six pieces of luggage to a terminal bus and injuring his back while he tried to make his connection. Id. ¶ ¶ 27-29. Plaintiff asserts that Orbitz knew both of its " horrific and absent customer service" and its misrepresentation regarding the terminals at Narita International Airport, and still failed to take any steps to remedy these issues. Id. ¶ 30.

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Based on these allegations, the FAC asserts state law claims titled (1) Fraud and Deceit (Count 1); (2) Negligence -- Breach of Duty of Care (Count 2); (3) Negligent Infliction of Emotional Distress (Count 3); (4) Intentional Misrepresentation (Count 4); (5) Negligent Misrepresentation (Count 5); and (6) Breach of Implied Contract (Count 6).

2. Orbitz' Terms and Conditions

As part of the reservation process on Orbitz.com, the website displays a Flight Reservation page containing a list of warnings regarding conditions that may apply to a passenger's travel, and which the customer must click " Agree and Book" to proceed with the reservation. See Doc. No. 28-3, Stephen Sedlak Decl. ¶ 6. By clicking on " Agree and Book," the customer acknowledges, among other things, that (1) " Internal trips require special travel documentation for each traveler," and (2) " You have read and agree to the booking terms and conditions which incorporate the privacy policy." Id.

The underlined words in the text quoted above provide links to further information. For example, the " travel documentation" link provides:

Travel Documentation

Any time you travel to or connect through a foreign country, you will need to prove your citizenship. It is the traveler's obligation to obtain all required international travel documentation. Failure to do so may result in denied boarding and additional costs.
Orbitz is not responsible for passengers who fail to obtain proper documentation prior to travel.

Id. ¶ 7.

The " booking terms and conditions" link provides Orbitz' " Terms and Conditions" for using Orbitz. The Terms and Conditions include an " International Travel" section providing that " Orbitz does not accept liability for damages, losses, or delays that may result from improper documents for entry, exit, length of stay, or from travel to such destinations." Doc. No. 28-4, Ortbitz Ex. A. The Terms and Conditions also include a " Limitation of Liability" section providing:

IN NO EVENT WILL ORBITZ OR ITS PROVIDERS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES FOR ANY USE OF THIS SITE, ANY HYPER LINKED WEB SITE, THE ACTS OR OMISSIONS OF PROVIDERS WHO FURNISH PRODUCTS OR SERVICES THROUGH THIS SITE, OR THE PRODUCTS OR SERVICES OFFERED BY PROVIDERS THROUGH THIS SITE, INCLUDING, WITHOUT LIMITATION, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH (I) ANY USE OF, BROWSING OR DOWNLOADING OF ANY PART OF OUR SITE OR CONTENT, (II) ANY FAILURE OR DELAY (INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE ANY COMPONENT OF THIS SITE FOR RESERVATIONS OR TICKETING), OR (III) THE PERFORMANCE OR NON PERFORMANCE BY U.S. OR ANY PROVIDER, OR (IV) ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, ...

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