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Armstrong v. Hawaiian Airlines, Inc.

United States District Court, D. Hawaii

August 2, 2019



          Alan C. Kay Sr. United States District Judge

         For the reasons discussed below, Defendant Hawaiian Airlines, Inc's Motion for Summary Judgment, ECF No. 51, is hereby DENIED.


         On 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.

         On 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[1] issued an order denying that motion on May 14, 2019, ECF No. 48, which Plaintiff did not appeal.

         On June 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.


         This 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.[2] Plaintiff has an extensive medical history involving a number of injuries.[3] 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.

         Plaintiff 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.[4] Def. CSF ¶ 15; Declaration of Julie Carter (“Carter Decl.”), ECF No. 52-2, ¶ 2. Ms. Carter[5] 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.

         Upon 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.

         The 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.

         The 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.

         Plaintiff, 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.[6] 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).[7] 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.


         Summary 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 Cir. 1999).

         “A 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 summary judgment).

         “An 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.


         I. Evidentiary Objections

         Plaintiff 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.

         “Rule 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).[8] “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).

         Ms. 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).

         Further 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.

         The 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.

         II. Defendant's Motion

         The 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 ...

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