“For all air transportation to which the Montreal Convention applies, if an action for damages falls within one [of] the treaty’s damage provisions, then the treaty provides the sole cause of action under which a claimant may seek redress for his injuries.”
How later courts described this case
- “For all air transportation to which the Montreal Convention applies, if an action for damages falls within one [of] the treaty’s damage provisions, then the treaty provides the sole cause of action under which a claimant may seek redress for his injuries.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 1:22-23941-CV-GAYLES
REGINALD D. HICKS,
Plaintiff,
v.
AVIANCA INC.,
Defendant.
_____________________________/
ORDER
THIS CAUSE comes before the Court on Defendant Avianca’s Motion to Dismiss
Plaintiff’s Complaint (the “Motion”). [ECF No. 5]. The Court has reviewed the Motion and the
record and is otherwise fully advised. For the reasons set forth below, the Motion shall be granted.
BACKGROUND1
On March 2, 2022, Plaintiff purchased two round-trip business class tickets on Defendant
Avianca Inc.’s airline for travel from Miami, Florida to Rio De Janeiro, Brazil. [ECF No. 1-1 ¶ 6].
Plaintiff was traveling with his minor son and booked adjoining seats for each leg of the flights.
Id. ¶ 7. Plaintiff and his son are African American. Id. ¶ 8.
On one leg of their return flight, from Bogota, Columbia to Miami, Florida, Plaintiff and
his son were forced to fly coach despite having confirmed business class seats. Id. ¶ 10. There
were no African American passengers in business class. Id. Plaintiff was not offered a refund and
was required to pay additional fees for luggage. Id. ¶¶ 9, 11. Plaintiff contends that sitting in coach
class seats aggravated pre-existing injuries to his knees and back. Id. ¶ 15, 16 On another leg of
1 Because the Court is proceeding on a motion to dismiss, it takes the facts as alleged in the Complaint as true.
the flight, Plaintiff and his son were not offered refreshments until all other passengers were served
and Plaintiff personally requested service. Id. ¶ 14. Plaintiff and his son were the only African
American passengers in business class on that leg of the flight. Id.
On October 6, 2022, Plaintiff filed this action against Defendant in the Circuit Court of the
Eleventh Judicial Circuit, in and for Miami-Dade County, Florida. [ECF No. 1-1]. The Complaint
does not specifically designate a cause of action. Plaintiff alleges that Defendant “owed to the
Plaintiff a duty of reasonable care and obligation to provide services that the Plaintiff not only paid
to experience, but confirmed and had a reasonable expectation to receive, which was not provided”
and that the “acts of breach and blatant neglect on the parts of the Defendant were the proximate
cause of the aggravation of physical injuries sustained by the Plaintiff” Id. ¶ 13, 15. Plaintiff’s
alleged damages include medical expenses, financial loss, humiliation, and mental anguish. Id. ¶
16.
On December 2, 2022, Defendant removed the action to this Court based on original
jurisdiction. Specifically, Defendant alleges that Plaintiff’s claims are exclusively governed by the
Convention for the Unification of Certain Rules for International Carriage by Air concluded at
Montreal, Canada, on May 28, 1999 (the “Montreal Convention”). [ECF No. 1]. Defendant now
moves to dismiss the Complaint arguing that (1) the Montreal Convention preempts Plaintiff’s
claims and (2) any amendment to include claims under the Montreal Convention would be futile.
[ECF No. 5].2
2 Plaintiff’s response to the Motion generally fails to address Defendant’s arguments. Moreover, Plaintiff did not
timely file the response. However, for purposes of this Order, the Court accepts the filing as timely.
STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Pleadings must
contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). Indeed, “only a complaint that
states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679 (citing
Twombly, 550 U.S. at 556). To meet this “plausibility standard,” a plaintiff must “plead[ ] factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678 (alteration added) (citing Twombly, 550 U.S. at 556).
DISCUSSION
I. Shotgun Pleading
Although not discussed in the Motion, the Complaint is a shotgun pleading. “Complaints
that violate either Rule 8(a)(2) or Rule 10(b), or both, are often disparagingly referred to as shotgun
pleadings.” Weiland v. Palm Beach Cty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015)
(internal quotation marks omitted). The Eleventh Circuit generally considers a complaint to be a
shotgun pleading if it: (1) “contain[s] multiple counts where each count adopts the allegations of
all preceding counts, causing each successive count to carry all that came before and the last count
to be a combination of the entire complaint,” id. at 1321; (2) is “replete with conclusory, vague,
and immaterial facts not obviously connected to any particular cause of action,” id. at 1321–22;
(3) fails to “separate[e] into a different count each cause of action or claim for relief,” id. at 1322–
23; or (4) “assert[s] multiple claims against multiple defendants without specifying which of the
defendants are responsible for which acts or omissions, or which of the defendants the claim is
brought against,” id. at 1323. Shotgun pleadings “fail to give the defendants adequate notice of the
claims against them and the grounds upon which each claim rests . . . [and] waste scarce judicial
resources, inexorably broaden the scope of discovery, wreak havoc on appellate court dockets, and
undermine the public’s respect for the courts.” Arrington v. Green, 757 F. App’x 796, 797 (11th
Cir. 2018) (internal quotations and citations omitted).
Here, the Complaint fails to identify any particular cause of action or claim for relief. By
failing to do so, the Court cannot discern whether Plaintiff alleges two distinct causes of action.
Based on the allegations, Plaintiff appears to assert claims for breach of contract and negligence.
But, because Plaintiff does not assert any specific causes of action, the Court cannot determine
whether Plaintiff has stated any claims upon which relief can be granted. For this reason alone, the
Complaint must be dismissed.
II. Preemption Under the Montreal Convention
While the Complaint is subject to dismissal as a shotgun pleading, the Court also addresses
Defendant’s argument that Plaintiff’s claims are preempted by the Montreal Convention. The
Montreal Convention is a treaty that governs international travel and limits liability for carriers.3
Accordingly, “when the Montreal Convention applies, it provides the exclusive means for
passengers to seek damages.” Pettaway v. Miami Air Int’l, 624 F. Supp. 3d 1268, 1276 (M.D. Fla.
2002). Specifically, the Montreal Convention provides:
In the carriage of passengers, baggage and cargo, any action for damages, however
founded, whether under this Convention or in contract or in tort or otherwise, can
only be brought subject to the conditions and such limits as are set out in this
3 The Montreal Convention entered into force on November 4, 2003. It superseded the Warsaw Convention, another
international treaty which originated in 1929 “to aid and assist the then-fledgling commercial airline industry” and
create “uniform rules for claims that arise out of incidents that occur during international air transportation. Marotte
v. Am. Airlines, Inc., 296 F.3d 1255, 1258-59 (11th Cir. 2022). When interpreting the Montreal Convention, courts
may rely on authority interpreting the Warsaw Convention where provisions of both conventions are substantially
similar. Jacob v. Korean Air Lines Co., 606 F. App'x 478, 482 n.2 (11th Cir. 2015).
Convention without prejudice as to who are the persons who have the right to bring
suit and what are their respective rights.
Montreal Convention, art. 29. Accordingly, “the Montreal Convention preempts state law claims
falling within its scope.” Hedetniemi v. American Airlines, Inc., No. 18-CV- 21822, 2018 WL
7824483, at * 2 (S.D. Fla. Nov. 7, 2018). If a plaintiff’s claim “falls within the treaty’s ambit, the
treaty provides the sole cause of action for redress.” Id. See also Ugaz v. American Airlines, 576
F. Supp. 2d 1354, 1360 (S.D. Fla. 2008) (“For all air transportation to which the Montreal
Convention applies, if an action for damages falls within one [of] the treaty’s damage provisions,
then the treaty provides the sole cause of action under which a claimant may seek redress for his
injuries.”).
The Montreal Convention applies to “all international carriage of persons, baggage, or
cargo performed by an aircraft for reward.” Montreal Convention, art. 1. Here, Plaintiff’s alleged
injuries occurred on board an international flight. Therefore, the Montreal Convention governs
whether Plaintiff can maintain a claim against Defendant for his alleged injuries.4
As set forth in Article 29, “any action for damages” relating to the carriage of passengers
must be brought under one of the Montreal Convention’s damages provisions. Montreal
Convention, art. 29 (emphasis added). Plaintiff’s claims—whether those claims are for breach of
contract or negligence—have not been brought in accordance with the conditions of the Montreal
Convention. Accordingly, Plaintiff’s state law claims are preempted by the Montreal Convention
and shall be dismissed. See Hedetniemi v. American Airlines, Inc., No. 18-CV- 21822, 2018 WL
7824483 (S.D. Fla. 2018) (finding plaintiff’s state law negligence claims preempted under the
Montreal Convention); Pettaway, 624 F. Supp. 3d at 1282 (“The Eleventh Circuit and district
4 The United States, Brazil, and Columbia are all signatories to the Montreal Convention. See
https://www.icao.int/secretariat/legal/list of parties/mtl99_en.pdf.
courts thereunder have enforced the Montreal Convention’s preemptive effect by dismissing a
plaintiff’s state law claims.”).
III. Futility of Amendment
Defendant also argues that, based on the facts as currently alleged, any amendment of the
Complaint to state a claim under the Montreal Convention would be futile. Article 17—governing
accidents on board an aircraft that cause injuries to passengers—provides that a carrier, like
Defendant, is only liable for damage sustained when “the accident which caused the death or injury
took place on board the aircraft or in the course of any of the operations of embarking or
disembarking.” Montreal Convention, art. 17. “An Article 17 claim thus has three elements: (1) an
accident; (2) that caused death or bodily injury; (3) that took place on the plane or in the course of
any of the operations of embarking or disembarking.” Campbell v. Air Jamaica Ltd., 760 F.3d
1165, 1172 (11th Cir. 2014). Although the Court agrees that, under the currently pled facts, it is
unlikely that Plaintiff could maintain a claim under the Montreal Convention, it declines to make
that determination based on a hypothetical amended complaint.
CONCLUSION
Based on the foregoing, it is ORDERED AND ADJUDGED as follows:
1. Defendant Avianca’s Motion to Dismiss Plaintiff’s Complaint, [ECF No. 5], is
GRANTED.
2. Plaintiff’s state law claims are DISMISSED with prejudice.
3. This action is CLOSED, and all pending motions are denied as moot.
4. If Plaintiff wishes to amend his Complaint to state a claim under the Montreal
Convention, he must request leave to file an amended complaint in a properly
filed motion before the Court within twenty (20) days of the date of this Order.
DONE AND ORDERED in Chambers at Miami, Florida, this 25th day of July, 2023.
DARRIN P. GAYLES
UNITED STATES DIST JUDGE