The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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REGINA CANELA,
Plaintiff, MEMORANDUM AND ORDER
Case No. 22-CV-0004-FB-RER
-against-
JETBLUE AIRWAYS
CORPORATION,
Defendant.
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Appearances:
For the Plaintiff: For the Defendant:
ANTONIO MARANO MICHAEL MARAGOUDAKIS
Dell & Dean, PLLC Martinez & Ritorto, P.C.
1225 Franklin Avenue, Suite 450 30 Wall Street, Eighth Floor
Garden City, New York 11530 New York, New York 10005
BLOCK, Senior District Judge:
Regina Canela was injured on September 15, 2018, while boarding a flight
from New York to the Dominican Republic. She filed suit against the operator of
the flight, JetBlue Airways Corporation (“JetBlue”), in state court on September 9,
2021.
JetBlue removed on the ground that Canela’s claim was completely
preempted by the Convention for the Unification of Certain Rules for International
Carriage by Air, May 28, 1999, reprinted in S. Treaty Doc. 106-45 (2000), more
commonly known as the Montreal Convention. It now moves for summary
judgment pursuant to Federal Rule of Civil Procedure 56 on the ground that suit
was filed outside the Montreal Convention’s two-year limitations period.
Canela argues that her claim is not preempted by the Montreal Convention
because it did not involve an “accident.”1 That argument is foreclosed by El Al
Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999), in which the Supreme
Court held that, with respect to international air travel, “recovery for a personal
injury suffered on board an aircraft or in the course of any of the operations of
embarking or disembarking, if not allowed under the Convention, is not available
at all.” Id. at 161 (internal quotation marks, alteration, and citation omitted). In so
holding, the Court concluded that the existence of an “accident” was necessary for
liability under the Convention, but irrelevant to its preemptive effect. Thus, it held
that the plaintiff’s state-law claim was preempted, even though it was undisputed
1 Canela asks the Court “to preserve the Plaintiff’s entitlement to move this
Court to remand this action to the State Court of New York for the County of
Queens upon denial of the Defendant’s motion.” Pl.’s Mem. of Law at 12. Since
the Court cannot address JetBlue’s motion unless it has jurisdiction, it construes
Canela’s request as a motion to remand.
Over eleven years ago, the Court held that the Montreal Convention
completely preempts state law and, therefore, confers federal-question jurisdiction.
See Mateo v. JetBlue Airways Corp., 847 F. Supp. 2d 383, 387 (E.D.N.Y. 2012).
At the time, “neither the Supreme Court nor the Second Circuit [had] spoken on
whether the Montreal Convention completely preempts state law claims,” id., and
they still have not done so. Therefore, the Court adheres to its previous holding
and denies Canela’s motion to remand.
that the claim did not arise from an accident. See id. at 166; see also King v. Am.
Airlines, Inc., 284 F.3d 352, 360 (2d Cir. 2002) (“We need not decide today
whether racial discrimination would fall within the definition of accident, however,
because Tseng instructs that a claim for an injury to a passenger is preempted . . .
as long as the harm was sustained ‘in the course of any of the operations of
embarking’ on an [international flight].”).2
It is undisputed that Candela’s injury occurred when her foot wedged
between the aircraft and the ramp leading to it. By her own admission, this
happened while she “was attempting to board the subject aircraft,” Pl’s. Mem. of
Law at 2, and clearly involved the process of embarking. See King, 284 F.3d at
359 (noting that relevant factors include “the imminence of actual boarding” and
“the physical proximity of the passengers to the gate”). Therefore, even if her
rather tenuous argument that her injury did not arise from an “accident” were
correct, her claim must still “be brought under the terms of the [Montreal]
2 Tseng addressed the preemptive effect of the Montreal Convention’s
predecessor, the Convention for the Unification of Certain Rules Relating to
International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000 (1934), more
commonly known as the Warsaw Convention. As the Supreme Court noted,
however, “[t]he exclusivity question before us has been settled prospectively in a
Warsaw Convention protocol (Montreal Protocol No. 4) recently ratified by the
Senate.” 525 U.S. at 160 (citing S. Exec. Rep. 105-20 (1998)). The language of
that protocol was carried forward verbatim in the Montreal Convention. Compare
Montreal Protocol No. 4, art. VIII with Montreal Convention, art. 29.
Convention or not at all.” Id. at 360. As her claim was not brought within the
Convention’s two-year limitations period, it is untimely.
Accordingly, JetBlue’s motion for summary judgment is granted and the
complaint is dismissed.
SO ORDERED.
_/S/ Frederic Block_________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
February 7, 2023