ODEDEYI v. AMERICAN AIRLINES

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

OLANREWAJU ODEDEYI : CIVIL ACTION

:

v. : No. 23-3550

:

AMERICAN AIRLINES :

:

MEMORANDUM

Chief Judge Juan R. Sánchez December 13, 2023

This case is presently before the Court for adjudication of Defendant American Airlines’

Motion to Dismiss Count II of the Plaintiff’s First Amended Complaint and Plaintiff’s Motion for

Leave to File a Second Amended Complaint. Because Odedeyi does not allege facts establishing

he was embarking or disembarking an aircraft when he purportedly contracted COVID-19 and the

Court finds further amendment would be futile, the motion to dismiss shall be granted and the

motion to amend denied.

FACTUAL BACKGROUND

This action arises out of pro se Plaintiff Olanrewaju Odedeyi’s travel on an American

Airlines (“American”) flight from Montego Bay, Jamaica, to Philadelphia, Pennsylvania in May

2022. Odedeyi flew to Montego Bay on American on April 30, 2022, but on May 5, 2022,

American canceled his return flight to Philadelphia, scheduled for the same day. First Am. Compl.

¶ 5, ECF No. 9. Following the cancellation, American rebooked Odedeyi for the same flight the

next day and provided bus transportation for him with other passengers to a nearby hotel for

lodging overnight. Id. ¶¶ 7-9, 22. Odedeyi alleges his pre-departure COVID test was negative

and he submitted his negative test result as required for boarding on May 5, 2022. Id. ¶ 21.

However, a Jane Doe employee of American did not offer Odedeyi an alternative to bus

transportation to the hotel, and placed him on a poorly ventilated bus next to other passengers who

were unmasked and displaying visible symptoms of COVID-19. Id. ¶¶ 25-32, 39. Two days after

being exposed to several bus passengers who were sneezing, coughing, and showing symptoms of

COVID-19, Odedeyi began experiencing COVID symptoms. Id. ¶ 45. He tested positive for the

infection four days after this exposure. Id. ¶¶ 44-46.

Because Odedeyi allegedly incurred costs and suffered inconvenience from the

cancellation of his original return flight and contracted COVID-19 on the hotel bus, he brought

this suit alleging a violation of Articles 17 and 19 of the Montreal Convention, a/k/a the

“Convention for the Unification of Certain Rules for International Carriage by Air, done at

Montreal on May 28, 1999.” ICAO Doc. No. 9740 (entered into force on November 4, 2003),

reprinted in S. Treaty Doc. No. 106-45, 1999 WL 33292734, USCS Montreal Convention. Id. ¶¶

14-18, 45-48, 80. Defendant American moves to dismiss Count II of Odedeyi’s First Amended

Complaint, which purports to state a claim under Article 17 of the Montreal Convention. Def.

Mot. Dismiss, ECF No. 11. Under Article 17, a plaintiff must show his “injury took place on board

the aircraft or in the course of any of the operations of embarking or disembarking” to successfully

state a claim for violation of Article 17 of the Montreal Convention. Because Odedeyi’s First

Amended Complaint alleges he contracted the virus on the bus ride, not the plane, American

submits Count II must be dismissed for failure to state a viable claim for relief. Id. 1, 5-8. In

addition to arguing in his Response in Opposition to the Motion to Dismiss that his injury did take

place during the process of embarking or disembarking, Odedeyi has also filed a Motion for Leave

to File a Second Amended Complaint to assert that he was exposed to COVID-19 on the May 6

flight, not the May 5 bus ride. ECF Nos. 12, 13.

LEGAL STANDARDS

Under Federal Rule of Civil Procedure 12(b)(6), “[t]he question is ‘not whether [the

plaintiff] will ultimately prevail, but whether [the] complaint [is] sufficient to cross the federal

court’s [pleading] threshold,” which “requires a ‘showing,’ rather than a blanket assertion, of

entitlement to relief.” Renfro v. Unisys Corp., 671 F.3d 314, 320 (3d Cir. 2011) (quoting Skinner

v. Switzer, 562 U.S. 521, 530 (3d Cir. 2011). To withstand a motion to dismiss under Rule

12(b)(6), “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)). A claim is facially plausible when the facts pled

allow the court “to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. In evaluating a Rule 12(b)(6) motion, a district court separates the legal and factual

elements of the plaintiff’s claims. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.

2009). The court must then “determine whether the facts alleged in the complaint are sufficient to

show that the plaintiff has a ‘plausible claim for relief.’” Id. at 211 (quoting Ashcroft, 556 U.S. at

679). Additionally, the court must construe pro se filings liberally. Dluhos v. Strasberg, 321 F.3d

365, 369 (3d Cir. 2003); Estelle v. Gamble, 429 U.S. 97, 106 (1976).

Generally, a party may amend a pleading with the court's leave, which “[t]he court should

freely give . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). The decision to grant or deny

leave to amend is within “the sound discretion of the district court,” allowing courts to “forestall

strategies that are contrary to both the general spirit of the federal rules and the liberal amendment

policy of Rule 15(a)." Cureton v. NCAA, 252 F.3d 267, 272 (3d Cir. 2001); CMR D.N. Corp. v.

City of Phila., 703 F.3d 612, 630 (3d Cir. 2013) (citation and internal quotation marks omitted).

A district court may deny leave to amend when there is undue delay, bad faith, dilatory motive,

futility, or prejudice. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (citation omitted). The

Third Circuit has upheld denials of leave to amend where plaintiffs enjoyed multiple prior attempts

to amend their complaint, especially where the new complaint contradicted prior pleadings. See

Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 654-55 (3rd Cir. 1998) (upholding

denial of leave to amend because “[p]laintiffs have already had ample opportunity to plead their

allegations properly and completely”); Gasoline Sales, Inc. v. Aero Oil Co., 39 F.3d 70, 74 (3rd

Cir. 1994) (holding it was not an abuse of discretion for the district court to deny leave because

plaintiff had had “three attempts at a proper pleading” and plaintiff was “modifying its allegations

in hopes of remedying factual deficiencies in its prior pleadings, even to the point of contradicting

its prior pleadings.”). While contradictions between an original pleading and an amended pleading

are not sufficient to warrant denial of amendment when considering a party’s first motion for leave

to do so, courts in the Eastern District of Pennsylvania have denied leave where the plaintiff “could

only correct [the complaint’s] deficiency by contradicting that to which he has already sworn” or

where the plaintiff sought to abandon a legal theory. MRO Corp. v. Humana, Inc., Civ. No. 16-

2881, 2017 U.S. Dist. LEXIS 135506, at *9, n.20 (E.D. Pa. Aug. 23, 2017); Coletta v. Ocwen Fin.

Corp., Civ. No. 14-6745, 2015 U.S. Dist. LEXIS 126330, at *5 (E.D. Pa. Sept. 21, 2015);

DISCUSSION

This case is a refiling of a case previously filed in this Court, Odedeyi v. American Airlines,

Case No. 23-cv-1934, in which Odedeyi sought to recover for the same alleged damages based on

the same facts pursuant to Articles 17 and 19 of the Montreal Convention. The Montreal

Convention is an international agreement that, inter alia, amended portions of the Warsaw

Convention, which previously governed an airline’s liability related to international air

transportation. See, e.g., Air France v. Saks, 470 U.S. 392, 392 (1985). Article 17 of the Warsaw

Convention, as amended by the Montreal Convention ("Article 17"), provides a “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 any

of the operations of embarking or disembarking.” Id.

There are three factors primarily relevant to determining liability under Article 17: 1) the

“location of the accident,” 2) “the activity in which the injured person was engaged,” and 3) “the

control by defendant of such injured person at the location and during the activity taking place at

the time of the accident.” Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152, 155 (3d Cir.

1977) (quoting Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir. 1975), cert. denied, 429

U.S. 890 (1976), reh’g denied, 429 U.S. 1124 (1977)). “While control remains at least equally as

important as location and activity, it is an integral factor in evaluating both location and activity.”

Id. In Evangelinos, the Third Circuit held the plaintiffs were “embarking” in part because plaintiffs

were only about 250 meters away from the aircraft, and as such, they were “not located in a ‘safe

place,’ removed from risks now inherent in air transportation.” 550 F.2d 152 at 157. Where,

however, plaintiffs have been injured at greater distances from the aircraft or departure gate than

in Evangelinos, courts within and outside the Third Circuit have held they were neither embarking

nor disembarking for purposes of Article 17 liability. See e.g., Brannen v. British Airways PLC,

Civ. No. 1:17-00714, 2017 U.S. Dist. LEXIS 181185, at *13-14 (M.D. Pa. Nov. 1, 2017) (holding

plaintiff was not embarking or disembarking where plaintiff was injured on an inter-terminal bus

between connecting flights, “in a location that was accessible to other passengers and was not,

according to the facts alleged in the complaint, in any type of exclusive area.”); Kantonides v. KLM

Royal Dutch Airlines, 802 F. Supp. 1203, 1211 (D.N.J. 1992) (holding plaintiffs were not in the

process of “embarking” under the Montreal Convention where plaintiffs “lacked the proximity to

the gate and the immediacy of boarding of the plaintiffs in Evangelinos.”); Schmidkunz v.

Scandinavian Airlines System, 628 F.2d 1205, 1207 (9th Cir. 1980) (holding passenger who was

still within common passenger area, had not received boarding pass, was not “imminently

preparing to board the plane, and was not at the time under the direction of [airline] personnel”

was not “embarking”); Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256 (9th Cir.),

cert. denied 431 U.S. 974, 53 L. Ed. 2d 1072, 97 S. Ct. 2939 (1977) (holding a passenger who was

between the departure gate and center of terminal was not disembarking).

Evangelinos counsels courts to also consider the nature of a plaintiff's activities at the time

of injury to determine whether they were embarking or disembarking. See Evangelinos, 550 F.2d

at 156; Day, 528 F.2d at 33. In Evangelinos, the Third Circuit found the plaintiffs were embarking

because they “had already completed all the steps necessary to boarding the aircraft except (1)

undergoing physical and handbag searches, and (2) physically proceeding from the search area to

the aircraft.” 550 F.2d at 153-54. Thus, “the plaintiffs had completed virtually all the activities

required as a prerequisite to boarding” at the time they were injured by a terrorist attack. Id. at 156.

Finally, courts consider whether the plaintiff was under the control of the airline to

determine whether the plaintiff was in the process of disembarking or embarking for the purposes

of Article 17. Id. The Evangelinos court reasoned the airline in that case had assumed control of

plaintiffs when it announced final boarding and directed the passengers as an identifiable group

associated with their flight to stand near the departure gate before they could board. Id. The

court’s conclusion that the airline was exercising control over the passengers at the time of the

injury was also supported by the fact that the airline’s “service personnel were standing at [the

gate], guiding the passengers, and [airline] security personnel were present.” Id. In contrast, when

passengers are free to move “at their own pace and under their own control,” courts have found

this element does not support the airline’s liability under Article 17, even when plaintiffs were

following the airline’s instructions to reach a connecting flight. See, e.g., Kantonides, 802 F. Supp.

at 1212; Brannen, 2017 U.S. Dist. LEXIS at *15-16 (holding the control element of the

Evangelinos-Day test was lacking where the alleged injury occurred while plaintiffs were

following the airline’s instructions about traveling between terminals).

Odedeyi alleges he was injured on a bus heading away from the airport en route to a hotel,

and its ridership was not exclusive to passengers from his flight. First Am. Compl., ¶ 25, 30, ECF

No. 9. He does not allege that his injury took place on an airplane, near a departure gate, in an

airport terminal, or even between airport terminals.1 The First Amended Complaint also does not

allege that the activity he was undertaking while injured—riding a bus to a hotel—was a

prerequisite to boarding his flight the next day. Odedeyi was therefore spatially and temporally

removed from the aircraft and was not engaged in activity necessary to ensure he either embarked

or disembarked from his flight at the time he suffered the alleged injury. McCarthy v. Northwest

1 It is noteworthy that in his earlier action before the undersigned, Odedeyi explicitly pled

that he was not “embarking” or “disembarking” when he contracted COVID-19 on the bus.

Instead, in Case No. 23-1934, Odedeyi alleged:

57. The Montreal Convention does not preempt Plaintiff’s Negligence Claim

because an injury on a bus does not qualify as embarking or disembarking.

(Brannen v. British Airways PLC (M.D. Pa. 2017) WL 4953856, at *1.).

58. Odedeyi was not in the course of embarking or disembarking from an aircraft

when he was infected by the novel Coronavirus disease (COVID-19) on the shuttle

bus.

59. The bus that transported Odedeyi to the hotel Defendant had booked for any

overnight stay was also not exclusively transporting only passengers from the

canceled flight.

Third Am. Compl., ECF No. 15, Case No. 23-1934.

Airlines, 56 F.3d 313, 317-18 (1st Cir. 1995). And, while Odedeyi may have been following the

airline’s instructions about getting to the hotel, he does not allege final boarding had been called,

security personnel were present, or that the Defendant would not have permitted him to board his

flight the next day if he did not ride the bus to the hotel. As such, Odedeyi fails to establish any

of the required elements of the Evangelinos-Day test and his purported claim against American

under Article 17 of the Montreal Convention set forth in Count II of the First Amended Complaint

is properly dismissed.

Turning to Odedeyi’s Motion for Leave to File a Second Amended Complaint, the Court

observes that Odedeyi has made at least seven prior attempts to produce a proper pleading for his

claim against American before this Court, excluding his efforts to bring a cause of action in state

court. See, e.g., ECF Nos. 9, 14, 16, Case No. 23-1934; ECF Nos. 1, 9, Case No. 23-3550. Indeed,

in Case No. 23-1934, Odedeyi amended or attempted to amend his complaint three times before

voluntarily dismissing it in July 2023. See ECF Nos. 9, 14, 16, Case No. 23-1934. In his initial

complaint in this action, Odedeyi alleged he contracted COVID-19 both on the bus ride on May 5

and during the May 6 return flight. Compl., ¶¶ 19, 92-93, ECF No. 1-2. It was only after American

filed a Motion to Dismiss arguing that two separate, contradicting causes could not simultaneously

be the proximate cause of Odedeyi’s COVID-19 infection that Odedeyi filed his First Amended

Complaint removing the allegation he contracted COVID-19 on the May 6 flight, and instead

alleged he contracted the virus only on the May 5 bus ride. First Am. Compl. ¶ 41-44, ECF No.

9.

Odedeyi included with his First Amended Complaint a verification that the allegations in

the First Amended Complaint were accurate. First Am. Compl., 13, ECF No. 9. In the instant

motion to amend, Odedeyi now alleges he had “by chance” encountered “an individual from the

bus” on Sunday, October 22, 2023, who confirmed that “the persons plaintiff had believed of

having Covid-19 on the bus, did not, in fact, have the Covid-19, even though they exhibited

symptoms commonly associated with Covid-19.” Mot. to Amend ¶ 10. This contention does not

cure the pleading deficiency and, as Defendant points out, this would be Odedeyi’s ninth attempt

to plead a claim against American, and the now-proposed amendments directly contradict

Odedeyi’s previous allegations. Def.’s Brief in Opp. to Pl.’s Mot. for Leave to File Second Am.

Compl. 1, ECF No. 17. By suddenly resurrecting the claim that he contracted COVID-19 on the

May 6 flight, and not the bus, Odedeyi directly contradicts his own, prior sworn allegations that

he had carefully traced his infection to the bus as the singular cause of his infection. Pl.’s First

Am. Compl., ¶ 80, ECF No. 9. Because the only way Odedeyi can correct the deficiency in Count

II is by contradicting that to which he has already sworn as true, and he has had more than enough

opportunities to plead a viable claim under Article 17, the Court finds the motion to amend has

been filed in bad faith and would be futile. Accordingly, it is denied.

CONCLUSION

Because Odedeyi’s alleged injury took place at a location far removed from an aircraft,

during an activity which was not part of the boarding process, and outside of the control of

Defendant, Odedeyi has not established that he was embarking or disembarking a plane at the time

he allegedly contracted COVID-19. As such, Odedeyi has not and cannot plausibly allege a claim

for liability against American under Article 17 of the Montreal Convention. The Court therefore

grants American’s Motion to Dismiss Count II of his First Amended Complaint with prejudice and

denies Odedeyi’s Motion for Leave to File a Second Amended Complaint.

An appropriate Order follows.

BY THE COURT:

/s/ Juan R. Sánchez

________________________

Juan R. Sánchez, C.J.