United States District Court, D. Hawaii
ORDER DENYING DEFENDANT HAWAIIAN AIRLINES, INC.'S
MOTION FOR SUMMARY JUDGMENT
C. Kay Sr. United States District Judge
reasons discussed below, Defendant Hawaiian Airlines,
Inc's Motion for Summary Judgment, ECF No. 51, is hereby
March 9, 2018, Plaintiff James Armstrong
(“Plaintiff”), proceeding pro se, filed a
Complaint in the Circuit Court of the Fifth Circuit for the
State of Hawai`i against Defendant Hawaiian Airlines, Inc.
(“Defendant” or “Hawaiian Airlines”)
and numerous Doe Defendants, asserting state law negligence
claims and state and federal law disability discrimination
claims. ECF No. 1-2. On July 17, 2018, now proceeding with
counsel, Plaintiff filed a First Amended Complaint in state
court, ECF No. 1-4, that is substantially identical to
Plaintiff's original Complaint. Defendant timely filed a
Notice of Removal on August 21, 2018, averring that this
Court has original jurisdiction over Plaintiff's claims
under 28 U.S.C. § 1441(a). ECF No. 1 ¶ 24.
Defendant's Notice of Removal asserts that
Plaintiff's state law claims are completely preempted by
federal law, specifically, Article 17 of the Convention for
the Unification of Certain Rules for International Carriage
by Air (the “Montreal Convention”). ECF No. 1
¶ 23. As is discussed more fully infra,
Plaintiff does not dispute that the Montreal Convention
governs his claims.
January 27, 2019, Plaintiff filed a Motion for Leave to File
Second Amended Complaint, ECF No. 27, in which he sought to
add another airline, Qantas Airways Limited, as a
co-defendant. Magistrate Judge Richard L. Puglisi denied
Plaintiff's motion on February 28, 2019, ECF No. 33.
Plaintiff appealed the Magistrate Judge's order, ECF No.
36, but this Court, on April 16, 2019, issued an order
affirming the Magistrate Judge's decision. ECF No. 42. On
April 4, 2019, Plaintiff filed a Motion to Certify Qantas
Airways Limited as Doe Corporation 1 pursuant to Hawai`i Rule
of Civil Procedure 17(d). ECF No. 39. Magistrate Judge Wes R.
Porter issued an order denying that motion on May
14, 2019, ECF No. 48, which Plaintiff did not appeal.
5, 2019, Defendant filed the instant Motion for Summary
Judgment (“Motion”), ECF No. 51, together with a
Concise Statement of Facts (“Def.'s CSF”).
ECF No. 52. On July 9, 2019, Plaintiff filed his Memorandum
in Opposition to Defendant's Motion
(“Opposition”), ECF No. 56, together with a
Concise Counterstatement of Facts (“Pl.'s
CSF”), ECF No. 57, as well as Evidentiary Objections to
one of the declarations attached to Defendant's CSF. ECF
No. 55. Defendant filed its Reply on July 16, 2019. ECF No.
58. The Court held a hearing on Defendant's Motion on
July 30, 2019.
case arises from an incident that occurred at Brisbane
International Airport in Australia in which Plaintiff injured
his arm in the course of retrieving five checked bags from a
baggage carousel. The following facts are undisputed and are
principally drawn from the evidentiary exhibits attached to
the parties' CSFs. Plaintiff has an extensive medical history
involving a number of injuries. Def. CSF ¶ 1;
Defendant's Excerpts of the Deposition of James Armstrong
Vol. 1 (“Def. Exc. of Pl. Dep. 1”), ECF No. 52-3,
at 18:23-25, 19:1-25. In 2013, Plaintiff has suffered from
tendinitis, fibromyalgia, and arthritis throughout his entire
body since at least 2003. Defendant's Excerpts of the
Deposition of James Armstrong Vol. 2 (“Def. Exc. of Pl.
Dep. 2”), ECF No. 52-3, at 152:19-24, 153:5- 8.
Plaintiff and his wife, Jeannette Armstrong (“Mrs.
Armstrong”), were passengers on an international
Hawaiian Airlines flight from Kaua`i, Hawai`i to Brisbane,
Australia on March 12, 2016. Def. CSF ¶ 12; Def. Exc. of
Pl. Dep. 1 at 85:17-19. Plaintiff and Mrs. Armstrong checked
five bags for their trip. Def. CSF ¶¶ 17-18; Def.
Exc. of Pl. Dep. 1 at 66:21-23; 66:6-8. For the last eight to
ten years, Plaintiff has requested wheelchair assistance
within airport facilities while traveling. Def. CSF ¶
10; Def. Exc. of Pl. Dep. 1 at 62:2-5.
requested and was provided wheelchair assistance for his
March 12, 2016 flight to Brisbane. Def. Exc. of Pl. Dep. 1 at
70:14-17. Qantas Airways Limited (“Qantas”)
provides ground services for Defendant's passengers at
Brisbane International Airport on an independent contractor
basis pursuant to a Ground Handling Services
Agreement. Def. CSF ¶ 15; Declaration of Julie
Carter (“Carter Decl.”), ECF No. 52-2, ¶ 2.
Ms. Carter is currently Hawaiian Airlines's
General Manager of Brisbane/Auckland Airport Operations, and
was previously Hawaiian Airlines's Operations Manager of
Brisbane Airport Operations. Carter Decl. ¶ 1. Pursuant
to the Ground Handling Services Agreement, which was in place
in 2016 at the time of Plaintiff's flight to Brisbane,
Qantas provides wheelchair assistance to Hawaiian Airlines
passengers arriving in Brisbane. Def. CSF ¶ 15; Carter
Decl. ¶ 2.
arriving in Brisbane, Plaintiff walked off the plane onto the
jetway where a Qantas employee with a wheelchair awaited him.
Def. Exc. of Pl. Dep. 1 at 70:14-17. Plaintiff walked to the
top of the jetway and sat down in the wheelchair. Def. Exc.
of Pl. Dep. 1 at 70:17-23. The wheelchair attendant pushed
Plaintiff to the baggage claim where his checked bags could
be retrieved, and parked Plaintiff's wheelchair adjacent
to the baggage carousel. Def. Exc. of Pl. Dep. 1 at 70:23-24,
71:6. Plaintiff asked the wheelchair attendant if someone
could help him retrieve his checked bags, and the wheelchair
attendant replied “[t]here isn't anybody,
mate.” Pl. Dep. 1 at 70:23-25, 71:1-1. Plaintiff then
asked the wheelchair attendant if a porter was available to
help him retrieve his checked bags from the carousel, and
also asked if the wheelchair attendant could call somebody to
help. Def. Exc. of Pl. Dep. 1 at 71:1-4. The wheelchair
attended responded that there was no porter available to help
and that there was no one she could call to help Plaintiff
retrieve his bags. Def. Exc. of Pl. Dep. 1 at 71:3-4.
wheelchair attendant stood behind Plaintiff's wheelchair
as the following events unfolded. Def. Exc. of Pl. Dep. 1 at
71:6-8. Mrs. Armstrong retrieved a luggage cart and parked it
next to Plaintiff at the baggage carousel. Def. Exc. of Pl.
Dep. 1 at 71:20-21. Plaintiff stood up and began offloading
his bags from the carousel and placing them onto the luggage
cart. Def. Exc. of Pl. Dep. 1 at 71:20-24.; Plaintiff stated
that his back, knees, shoulders, and arms were
“uncomfortable” as he retrieved the first four
bags. Def. Exc. of Pl. Dep. 1 at 86:3-13. As Plaintiff
retrieved the fifth and final bag, “something snapped
in my forearm, which was my bicep tendon, I now know.”
Def. Exc. of Pl. Dep. 1 at 89:11-20. Upon injuring himself,
Plaintiff cursed and “fell back in the
[wheel]chair.” Def. Exc. of Pl. Dep. 1 at 89:22.
Plaintiff, pushed by the Qantas employee, and Mrs. Armstrong,
who pushed the luggage cart, proceeded through customs. Def.
Exc. of Pl. Dep. at 90:4-9. The Qantas employee left and
Plaintiff and Mrs. Armstrong waited at a coffee shop for
their son to pick them up from the airport. Def. Exc. of Pl.
Dep. 1 at 90:9-12.
principal dispute before the Court is whether an
“accident” caused Plaintiff's arm injury-more
specifically, whether the Qantas employee's rejection of
Plaintiff's requests for assistance constitutes an
“accident” under Article 17 of the Montreal
Convention. Defendant argues that Plaintiff can point to no
evidence indicating that an accident occurred, and has
offered evidence that Qantas (as Defendant's independent
contractor) has never assisted passengers with checked bags
at Brisbane International Airport due to “Occupational
Health and Safety concerns.” Carter Decl. ¶ 3.
Defendant also argues that because federal regulations and
Defendant's own company policy do not mandate such
assistance, the wheelchair attendant's rejection of
Plaintiff's request was usual and expected.
on the other hand, testified at his deposition that he
arranged for “curb-to-curb” service with Hawaiian
Airlines, which, based upon his own experience and what
Hawaiian Airlines employees have told him, includes
wheelchair assistance as well as assistance with
baggage. Def. Exc. of Pl. Dep. 1 at 82:2-5,
83:8-25, 84:1-25, 85:1. Plaintiff also testified that
wheelchair attendants retrieved his checked bags from the
baggage carousel after a Hawaiian Airlines flight to Sydney,
Australia in 2014, and after subsequent Hawaiian Airlines
flights to Brisbane in October 2016 and in April 2019.
Plaintiff's Excerpts of the Deposition of James Armstrong
Vol. 2 (“Pl. Exc. of Pl. Dep. 2”), ECF No. 57-3,
Pl. Exc. of Pl. Dep. 2 at 95:21-25, 97:1-17 (2014 flight),
108:2-23 (October 2016 flight), 120:18-25, 121:1-24 (April
2019 flight). More critically, however, the Ground
Handling Services Agreement between Hawaiian Airlines and
Qantas, as well as emails exchanged by Ms. Carter and another
of Defendant's employees, all indicate that Defendant may
have a policy of providing such assistance to wheelchair
passengers through its independent contractor Qantas.
judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). Rule 56(a) mandates
summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to the party's case, and on which that party
will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also
Broussard v. Univ. of Cal., 192 F.3d 1252, 1258 (9th
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.” Soremekun v. Thrifty Payless,
Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing
Celotex, 477 U.S. at 323); see also Jespersen v.
Harrah's Operating Co., 392 F.3d 1076, 1079 (9th
Cir. 2004). “[T]he burden on the moving party may be
discharged by ‘showing'-that is, pointing out to
the district court-that there is an absence of evidence to
support the nonmoving party's case.”
Celotex, 477 U.S. at 325. “When the moving
party has carried its burden under Rule 56[(a)] its opponent
must do more than simply show that there is some metaphysical
doubt as to the material facts [and] come forward with
specific facts showing that there is a genuine issue for
trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 586-87 (1986) (citation and
internal quotation marks omitted); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
(stating that a party cannot “rest upon the mere
allegations or denials of his pleading” in opposing
issue is ‘genuine' only if there is a sufficient
evidentiary basis on which a reasonable fact finder could
find for the nonmoving party, and a dispute is
‘material' only if it could affect the outcome of
the suit under the governing law.” In re
Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson, 477 U.S. at 248). When considering the
evidence on a motion for summary judgment, the court must
draw all reasonable inferences on behalf of the nonmoving
party. Matsushita Elec. Indus. Co., 475 U.S. at 587;
see also Posey v. Lake Pend Oreille Sch. Dist. No.
84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that
“the evidence of [the nonmovant] is to be believed, and
all justifiable inferences are to be drawn in his
favor” (internal citation and quotation omitted)). The
court may not, however, weigh conflicting evidence or assess
credibility. In re Barboza, 545 F.3d at 707.
Accordingly, if “reasonable minds could differ as to
the import of the evidence, ” summary judgment will be
denied. Anderson, 477 U.S. at 250-51.
argues that the Carter Declaration was made without personal
knowledge and contains inadmissible hearsay statements in
violation of Federal Rules of Evidence 602 and 802. “To
survive summary judgment, a party does not necessarily have
to produce evidence in a form that would be admissible at
trial, as long as the party satisfies the requirements of
Federal Rule of Civil Procedure 56.” Block v.
City of Los Angeles, 253 F.3d 410, 419 (9th Cir. 2001)
(citing Celotex, 477 U.S. at 324). With respect to
evidence submitted by affidavit or declaration, Federal Rule
of Civil Procedure (“FRCP”) 56(c)(4) states the
“affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters
stated.” Fed.R.Civ.P. 56(c)(4). The question is whether
the declarant's statements “lack the requisite
proof of personal knowledge.” Slade v. Baca,
70 Fed. App'x 446, 449 (9th Cir. 2003). Plaintiff's
Objections are difficult to parse because he fails to explain
the bases of his Objections and instead simply directs the
Court to the complete transcript of the Deposition of Julie
Carter (“Carter Dep.”), ECF No. 55-2.
56(e)'s requirements of personal knowledge and competence
to testify” may be inferred from a declaration itself.
Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d
999, 1018 (9th Cir. 1990). “Personal knowledge may be
inferred from a declarant's position” within a
company. In re Kaypro, 218 F.3d 1070, 1075 (9th Cir.
2000) (citing Self-Realization Fellowship Church v.
Ananda Church of Self-Realization, 206 F.3d 1322, 1330
(9th Cir. 2000).
Carter is currently employed by Hawaiian Airlines as the
General Manager of Brisbane/Auckland Airport Operations, and
she was previously employed as Hawaiian Airlines's
Operations Manager of Brisbane Airport Operations. Carter
Decl. ¶ 1. Ms. Carter's employment with Hawaiian
Airlines in Brisbane commenced on March 3, 2015. Carter Dep.
at 3:21-23. The Court finds that Ms. Carter's positions
within Hawaiian Airlines raise an inference that she has
personal knowledge about the nature of Defendant's
operations at Brisbane International Airport, including the
services provided by Defendant's independent contractor,
Qantas. See Edwards v. Toys “R” Us, 527
F.Supp.2d 1197, 1201 (C.D. Cal. 2007) (concluding that a
chief information officer's personal knowledge of payment
card industry standards could be inferred by his position).
review of Ms. Carter's deposition supports the
Court's finding. When asked what Ms. Carter is referring
to when she testified that the information in her declaration
is based on her personal knowledge learned in her capacity
working for Hawaiian Airlines, she responded “My
knowledge that I have been trained as per the procedures and
policies of Hawaiian Airlines and of those of our vendor,
Qantas, as per their contractual obligations” and
“from working at the airport here and my training that
I have received.” Carter Dep. at 25:11-20, 28:14-16.
Ms. Carter also testified that “Qantas do not lift bags
as part of their workplace health and safety, ” Carter
Dep. at 32:17-18, and that a Qantas manager told her this
information after Hawaiian Airlines first started using
Qantas as its vendor. Carter Dep. at 34:20-25, 35:1-7. Ms.
Carter again confirmed that she learned, as part of her
training for operations manager, that Qantas, as Hawaiian
Airlines's vendor, does not retrieve passengers' bags
from the baggage carousel. Carter Dep. at 35:12-18.
Court finds that the foregoing clearly establishes that Ms.
Carter has personal knowledge of the facts that are set forth
in her declaration. Accordingly, the Court concludes that the
Carter Declaration satisfies FRCP 56(c)(4), see
Block, 253 F.3d at 419, and Plaintiff's Evidentiary
Objections are thus overruled.
Montreal Convention governs “all international carriage
of persons, baggage or cargo performed by aircraft for
reward, ” and provides the exclusive remedy for
international passengers seeking damages against airlines.
Convention for the Unification of Certain Rules for
International Carriage by Air art. 1(1), May 28, 1999, S.
Treaty Doc. No. 106-45, 2242 U.N.T.S. 309 [hereinafter
“Montreal Convention”]; Narayanan v. British
Airways, 747 F.3d 1125, 1127 (9th Cir. 2014). Article
17(1) of the Montreal Convention reads in its entirety:
The carrier is liable for damage sustained in case of death
or bodily injury of a passenger upon condition only that the
accident which caused the death or injury took place on board
the aircraft or in the course of ...