20-3426-cv Cohen v. American Airlines, Inc., et al.

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 _________________ 4 5 August Term, 2021 6 7 (Submitted: August 18, 2021 Decided: September 10, 2021) 8 9 Docket No. 20-3426-cv 10 11 _________________ 12 13 14 ARYEH COHEN,

15 Plaintiff‐Appellant,

16 v.

17 AMERICAN AIRLINES, INC., AMERICAN AIRLINES GROUP, INC.,

18 Defendants‐Appellees,

19 JOHN DOES 1–5, JANE DOES 1–5,

20 Defendants.

21 _________________ 22 23 Before: POOLER, CHIN, and LOHIER, Circuit Judges. 24 25 Appeal from a judgment of the United States District Court for the Eastern

26 District of New York (Kuntz, J., Gold, M.J.) dismissing plaintiff‐appellant Aryeh 1 Cohen’s claims as time-barred under the statute of limitations set forth in the

2 Convention for the Unification of Certain Rules for International Carriage by Air,

3 May 28, 1999, S. Treaty Doc. No. 106–45 (2000) (“Montreal Convention”), and

4 denying Cohen’s motion to amend the complaint. Because the Montreal

5 Convention covers Cohen’s claim, we hold that its two-year statute of limitation

6 applies, and the district court did not err in determining that Cohen’s claim was

7 time-barred. The district court also did not abuse its discretion in denying the

8 motion to amend.

9 Affirmed. 10 11 _________________ 12 13 ARYEH COHEN, pro se, New York, NY. 14 15 DAVID S. RUTHERFORD, Rutherford & Christie, 16 LLP, New York, NY, for Defendants-Appellees 17 American Airlines, Inc., American Airlines Group, 18 Inc. 19

20 PER CURIAM: 21 22 Appeal from a judgment of the United States District Court for the Eastern

23 District of New York (Kuntz, J., Gold, M.J.) dismissing plaintiff‐appellant Aryeh

24 Cohen’s claims as time-barred under the statute of limitations set forth in the

25 Convention for the Unification of Certain Rules for International Carriage by Air,

2 1 May 28, 1999, S. Treaty Doc. No. 106–45 (2000) (“Montreal Convention”), and

2 denying Cohen’s motion to amend the complaint. Because the Montreal

3 Convention covers Cohen’s claim, we hold that its two-year statute of limitation

4 applies, and the district court did not err in determining that Cohen’s claim was

5 time-barred. The district court also did not abuse its discretion in denying the

6 motion to amend. Accordingly, we affirm.

7 BACKGROUND

8 Aryeh Cohen, appearing pro se, appeals from the September 10, 2020

9 judgment of the United States District Court for the Eastern District of New York

10 (Kuntz, J., Gold, M.J.) dismissing his complaint and denying his motion to amend.

11 On December 27, 2018, Cohen sued American Airlines, Inc., and the American

12 Airlines Group, Inc. (collectively “American”), and 10 Jane and John Does in New

13 York State court. He alleged that, while boarding a flight from Paris, France, to

14 Dallas, Texas, on December 28, 2015, a flight attendant struck him, causing injury.

15 American removed the case to district court, contending that because the alleged

16 incident took place aboard an airplane, the Convention for the Unification of

17 Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No.

18 106–45 (2000) (“Montreal Convention”) applied, and thus the district court had

3 1 federal question jurisdiction. American then moved to dismiss, arguing that the

2 two-year statute of limitations in the Montreal Convention barred Cohen’s claim

3 because the incident occurred on December 28, 2015, and he did not file his

4 complaint until December 27, 2018. Cohen opposed, arguing, as relevant here, that

5 because the flight attendant’s behavior was “willful,” his claims were not subject

6 to the Montreal Convention’s limitations on liability. Cohen v. American Airlines,

7 Inc., No. 19-CV-653 (WFK) (SMG),

, at *3 (E.D.N.Y. Sept. 9, 2020)

8 (citation omitted). He also moved to amend his complaint to add an allegation that

9 he lost two pairs of sunglasses due to American’s negligence on a January 2018

10 flight from Miami, Florida, to Nassau, The Bahamas. The district court granted the

11 motion to dismiss and denied the motion to amend, reasoning that the Montreal

12 Convention’s statute of limitations barred Cohen’s complaint, and that the request

13 to amend was made in bad faith. See id. at *3-4. Cohen appeals, arguing, inter alia,

14 that the flight attendant’s actions were reckless, which falls under the definition of

15 “willful” in the Montreal Convention, such that the two-year statute of limitations

16 does not apply, and that the district court abused its discretion in denying his

17 motion to amend.

18

4 1 DISCUSSION

2 Because Cohen alleged that he was injured while boarding an international

3 flight, his claims fall under the Montreal Convention, a multilateral treaty that

4 “applies to all international carriage of persons, baggage or cargo performed by

5 aircraft.” Montreal Convention, ch. I, art. 1. It is the successor to the Warsaw

6 Convention of 1929. See Convention for the Unification of Certain Rules Relating

7 to International Transportation by Air (the “Warsaw Convention”), Oct. 12, 1929,

8

, T.S. No. 876 (1934), reprinted in note following

. The

9 Montreal Convention was promulgated to “reform the Warsaw Convention so as

10 to harmonize the hodgepodge of supplementary amendments and intercarrier

11 agreements of which the Warsaw Convention system of liability consists.” Ehrlich

12 v. Am. Airlines, Inc.,

, 371 n.4 (2d Cir. 2004) (internal quotation marks

13 omitted).

14 Under the Montreal Convention, a “carrier is liable for damage sustained in

15 case of death or bodily injury of a passenger upon condition only that the accident

16 which caused the . . . injury took place on board the aircraft or in the course of any

17 of the operations of embarking or disembarking.” Montreal Convention, ch. III,

18 art. 17, § 1. While “accident” is not defined in the Montreal Convention, the

5 1 Supreme Court has interpreted the substantively identical provision of the

2 Warsaw Convention as “an unexpected or unusual event or happening that is

3 external to the passenger.” Air France v. Saks,

(1985); see Warsaw

4 Convention, ch. III, art. 17.

5 Precedent pertaining to the Warsaw Convention is instructive because many

6 provisions of the two Conventions are substantively similar. As the Eleventh

7 Circuit has noted, “the drafters of the Montreal Convention sought to retain as

8 much of the existing language of the Warsaw Convention as possible so as to

9 preserve the substantial body of existing precedent and avoid uncertainty[.]”

10 Underwriters at Lloyds Subscribing to Cover Note B0753PC1308275000 v. Expeditors

11 Korea Ltd.,

(11th Cir. 2018). Similarly, the Senate Foreign

12 Relations Committee report addressed the Montreal Convention’s drafting

13 history, particularly regarding the continued applicability of judicial decisions

14 interpreting the Warsaw Convention, as follows:

15 [W]hile the Montreal Convention provides essential improvements 16 upon the Warsaw Convention and its related protocols, efforts were 17 made in the negotiation and drafting to retain existing language and 18 substance of other provisions to preserve judicial precedent relating 19 to other aspects of the Warsaw Convention, in order to avoid 20 unnecessary litigation over issues already decided by the courts 21 under the Warsaw Convention and its related protocols.

22 S. Exec. Rep. 108–8, at 3 (2003) (citation and alteration omitted).

6 1 In that regard, many other Circuits and district courts in this Circuit have

2 frequently relied on cases interpreting the Warsaw Convention as persuasive

3 authority to interpret corresponding provisions of the Montreal Convention. See,

4 e.g., Dagi v. Delta Airlines,

(1st Cir. 2020) (applying Saks’s definition

5 of “accident” from Warsaw Convention to claim under Montreal Convention); Doe

6 v. Etihad Airways, P.J.S.C.,

(6th Cir. 2017) (same); Phifer v.

7 Icelandair,

(9th Cir. 2011) (same); Campbell v. Air Jam. Ltd.,

8

(11th Cir. 2014) (applying Warsaw Convention precedent

9 to claim for damages due to delay under Article 19 of the Montreal Convention);

10 Best v. BWIA West Indies Airways Ltd.,

(E.D.N.Y. 2008)

11 (utilizing Warsaw Convention precedent in defining “carrier” as that word is used

12 in the Montreal Convention); Baah v. Virgin Atl. Airways Ltd.,

,

13 596-97 (S.D.N.Y. 2007) (interpreting the phrase “place of destination” in Article

14 33(1) of the Montreal Convention in line with previous courts’ interpretation of

15 “place of destination” in Article 28(1) of the Warsaw Convention). We agree with

16 these authorities and hold that Montreal Convention provisions may be analyzed

17 in accordance with case law arising from substantively similar provisions of its

18 predecessor, the Warsaw Convention.

7 1 We now turn to the merits of Cohen’s appeal. We review de novo a district

2 court’s dismissal of a complaint pursuant to Rule 12(b)(6) and its interpretation

3 and application of statutes of limitations and treaties. Chambers v. Time Warner,

4 Inc.,

(2d Cir. 2002) (Rule 12(b)(6) dismissal); City of Pontiac Gen.

5 Emps.’ Ret. Sys. v. MBIA, Inc.,

(2d Cir. 2011) (statute of limitations);

6 Swarna v. Al-Awadi,

(2d. Cir. 2010) (treaty). “When interpreting a

7 treaty, we begin with the text of the treaty and the context in which the written

8 words are used.” Ehrlich,

(citation omitted).

9 France and the United States are signatories to the Montreal Convention and

10 therefore bound by it. 1 Cohen alleges that, upon boarding an international flight

11 from France to Texas, a John Doe flight attendant yelled at him, hit him, and

12 caused him injury. Cohen does not contest that the injury occurred on board the

13 aircraft while embarking, see Montreal Convention, ch. 3, art. 17, § 1, due to an

14 “accident,” as that word is defined in cases interpreting the Montreal and Warsaw

15 Conventions. Therefore, his claims fall under the Montreal Convention, and any

16 remedy must be had pursuant to that Convention. See El Al Israel Airlines, Ltd. v.

1 See International Civil Aviation Organization’s website at: https://www.icao.int/secretariat/legal/List%20of%20Parties/Mtl99_EN.pdf (last visited 8/25/21).

8 1 Tsui Yuan Tseng,

(1999) (“[R]ecovery for a personal injury suffered

2 on board an aircraft or in the course of any of the operations of embarking or

3 disembarking, if not allowed under the Convention, is not available at all.”)

4 (citation, brackets, and internal quotation marks omitted) (discussing Articles 1

5 and 17 of the Warsaw Convention, which are substantively similar to Articles 1

6 and 17 of the Montreal Convention). The Montreal Convention provides that

7 “[t]he right to damages shall be extinguished if an action is not brought within a

8 period of two years, reckoned from the date of arrival at the destination, or from

9 the date on which the aircraft ought to have arrived, or from the date on which the

10 carriage stopped.” Montreal Convention, ch. III, art. 35, § 1. The Warsaw

11 Convention’s Article 29 contains almost identical language. Warsaw Convention,

12 ch. III, art. 29, § 1 (“The right to damages shall be extinguished if an action is not

13 brought within two years, reckoned from the date of arrival at the destination, or

14 from the date on which the aircraft ought to have arrived, or from the date on

15 which the carriage stopped.”); see also King v. Am. Airlines, Inc.,

, 356

16 (2d Cir. 2002) (recognizing that claims under the Warsaw Convention are subject

17 to a two-year statute of limitations); Dagi,

(recognizing the same for

9 1 the Montreal Convention). Cohen alleged that he boarded his nonstop flight to

2 Texas on December 28, 2015.

3 Although Cohen claimed that the “flight was significantly delayed,” Supp.

4 App’x at 4, the two-year limitations period for filing a complaint under the

5 Montreal Convention began on the date on which the aircraft ought to have

6 arrived in Texas—presumably either that same day or December 29, 2015.

7 Therefore, his complaint, filed almost three years after the December 28, 2015

8 accident, was untimely regardless of the flight delay, and the district court did not

9 err in dismissing it on this ground.

10 Cohen argues that the Montreal Convention’s two-year statute of limitations

11 does not apply to his claims because he alleges that the flight attendant’s conduct

12 was willful, and Article 25 of the Warsaw Convention states that, in cases where

13 damage is caused by willful misconduct, “[t]he carrier shall not be entitled to avail

14 himself of the provisions of this Convention which exclude or limit his liability.”

15 Warsaw Convention, ch. III, art. 25, § 1. We reject this argument. While the

16 Montreal Convention incorporated many of the Warsaw Convention’s substantive

17 provisions, there is no substantively identical article in the Montreal Convention

18 that reflects the provisions of Article 25 of the Warsaw Convention governing the

10 1 removal of damage caps for willful misconduct. Indeed, there is no provision in

2 the Montreal Convention regarding “willful misconduct” relating to personal

3 injury claims.

4 Even if we analyze Cohen’s argument under Article 25 of the Warsaw

5 Convention, it fails. Cohen’s argument conflates limitations on the amount of

6 recoverable damages with the statute of limitations, and he provides no authority

7 to suggest that Article 25 of the Warsaw Convention voids the statute of

8 limitations. See In re Air Disaster at Lockerbie, Scotland,

(2d Cir.

9 1991), overruled on other grounds, Zicherman v. Korean Air Lines, Co.,

(1996) (concluding that Article 25 does not “lift Article 29’s statute of limitations”);

11 see also In re Korean Air Lines Disaster of Sept. 1, 1983,

(D.C.

12 Cir. 1991). Therefore, whether the flight attendant’s actions were intentional,

13 “willful,” reckless, or negligent, Cohen cannot circumvent the Montreal

14 Convention’s two-year statute of limitations by way of an unrelated provision of

15 the Warsaw Convention.

16 Cohen also asserts that the Montreal Convention does not preempt local law

17 in cases of willful misconduct. But courts have consistently held that the Warsaw

18 and Montreal Conventions preempt state law and provide the sole avenue for

11 1 damages claims that fall within the scope of the Conventions’ provisions. See

2 Tseng,

(reversing a prior Second Circuit decision that permitted

3 plaintiffs to alternatively sue under local law even if they did not qualify for relief

4 under the Warsaw Convention); Dagi,

(explaining that “the

5 Montreal Convention preempts all local claims that fall within its scope, even if

6 the claims are not cognizable . . . under the Convention”). And even if Cohen’s

7 claim for “willful” misconduct could be brought under New York state law, which

8 the parties agree applies, it would likely still be untimely because the statute of

9 limitations on claims for damages arising from assault or battery in New York is

10 one year. See

(3).

11 Finally, Cohen challenges the district court’s denial of leave to amend. We

12 review denials of leave to amend for abuse of discretion. Anderson News, L.L.C. v.

13 Am. Media, Inc.,

(2d Cir. 2012). “Although [Federal Rule of Civil

14 Procedure] 15(a) provides that leave to amend a complaint shall be freely given

15 when justice so requires,” Zahra v. Town of Southold,

(2d Cir. 1995)

16 (internal quotation marks omitted), district courts may deny leave to amend “for

17 good reason, including futility, bad faith, undue delay, or undue prejudice to the

12 1 opposing party,” TechnoMarine SA v. Giftports, Inc.,

(2d Cir. 2014)

2 (internal quotation marks omitted).

3 We find no abuse of discretion in the district court’s denial of leave to

4 amend. Although Cohen argues on appeal that he should have been given the

5 chance to amend his complaint at least once, he does not address the basis for the

6 district court’s denial: that his motion to amend was made in bad faith.

7 Accordingly, he has waived any challenge to the district court’s ruling. Norton v.

8 Sam’s Club,

(2d Cir. 1998) (“Issues not sufficiently argued in the

9 briefs are considered waived and normally will not be addressed on appeal.”).

10 In any event, Cohen’s proposed amended complaint differed from his

11 original complaint only insofar as it alleged the loss of two pairs of sunglasses on

12 an American flight from Miami to Nassau occurring three years after the events

13 giving rise to his original allegations. The district court did not abuse its discretion

14 in ruling that the new allegation was included solely to avoid the Montreal

15 Convention’s two-year statute of limitations, and thus was made in bad faith. Cf.

16 Ansam Assocs., Inc. v. Cola Petroleum, Ltd.,

, 446 (2d Cir. 1985) (affirming

17 denial of motion to amend when the new proposed claims “concerned a different

18 period of time,” and “allege[d] an entirely new set of operative facts of which it

13 1 cannot be said that the original complaint provided fair notice,” thereby

2 prejudicing defendant (internal quotation marks omitted)).

3 CONCLUSION

4 We have considered Cohen’s remaining arguments and find them to be

5 without merit. Accordingly, the judgment of the district court is AFFIRMED.

14