Walker v. Transportes Aereos Portugueses, S.A.

• Court: District Court, N.D. California
• Decided: September 27, 2024
• Docket: 3:24-cv-06226
• Status: Unknown

Opinion

1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 CHRISTIAN WALKER, as Guardian Ad Case No. 24-cv-06226-MMC Litem of S.W., I.W., and T.W., 8 Plaintiff, ORDER RE: DEFENDANT'S MOTION 9 TO DISMISS; DIRECTING v. DEFENDANT TO SUPPLEMENT 10 RECORD; VACATING HEARING TAP AIR PORTUGAL, 11 Defendant.

13 Before the Court is defendant Transportes Aereos Portugueses, S.A.'s1 Motion to 14 Dismiss, filed September 11, 2024, whereby it seeks dismissal of the claims asserted in 15 plaintiff's First Amended Complaint ("FAC"). Plaintiff Christian Walker, who is the mother 16 and guardian ad litem of three minor children plaintiffs, has not filed opposition.2 Having 17 read and considered the papers filed in support of the motion, the Court, for the reasons 18 stated below, will afford defendant an opportunity to supplement the record and plaintiffs 19 an opportunity to respond to any such supplementation. 20 Where, as here, "international passengers seek[ ] damages against an airline 21 carrier,"3 the claims are governed "exclusive[ly]" by the terms of the "Montreal 22 23 1 Said defendant asserts it has been incorrectly sued as "TAP Air Portugal." 24 2 Under the Local Rules of this District, any opposition or response was due no 25 later than September 25, 2024. See Civil L.R. 7-3(a)-(b) (providing opposition to motion must be filed "not more than 14 days after the motion was filed"). 26 3 Plaintiffs' claims arise from an alleged personal injury incurred by minor S.W. 27 while the minor was, along with her mother and two siblings, a passenger on an 1 Convention." See Narayanan v. British Airlines, 747 F.3d 1125, 1127 (9th Cir. 2016). 2 Under the Montreal Convention, "[t]he right to damages shall be extinguished if an action 3 is not brought within a period of two years, reckoned from the date of arrival at the 4 || destination ...." See id. (quoting Montreal Convention art. 35(a); emphasis in original).) 5 Plaintiffs allege that the international flight on which the injuries were incurred 6 arrived at the scheduled destination on August 19, 2019. (See FAC 7 8, 11, 14.) 7 Defendant argues the claims are barred by the above-quoted provision in the Montreal 8 || Convention, for the asserted reason that plaintiffs filed the initial complaint in state court 9 || on January 11, 2024, i.e., a date significantly more than two years after the date on which 10 the flight arrived at its destination. Defendant, however, has not supported the instant 11 motion with a copy of the initial complaint, and the initial complaint is not otherwise in the 12 || record.’

£ 13 Under such circumstances, defendant is hereby DIRECTED to supplement the 14 record by filing, no later than October 4, 2024, a copy of the initial complaint. See 28 8 15 || U.S.C. § 1447(b) (providing district court "may require the removing party to file with its é 16 || clerk copies of all records and proceedings in [the] State court"). Plaintiffs may, no later G 17 than October 11, 2024, file a response to any such supplement. As of October 11, 2024, 5 18 || the Court will take the matter under submission.° 19 IT IS SO ORDERED. 20 21 || Dated: September 27, 2024 fal lf Chat INE M. CHESNEY 22 United States District Judge 23 24 25 26 4 When it removed the instant action from state court, defendant attached thereto the FAC, the pleading with which defendant states it was served. 23 > The hearing scheduled for October 18, 2024, is hereby VACATED.