United States District Court, D. Minnesota
Rehab Eldeeb, as trustee for the next of kin of Fahmy Eldeeb, deceased, Plaintiff,
Delta Air Lines, Inc., a corporation, and Societe Air France, S.A. d/b/a Air France, a corporation, Defendants.
Alexandra M. Wisner, Esq. and Wisner Law Firm, P.C., counsel
G. Passeri, Esq. and Holland & Knight, counsel for
S. Doty, Judge
matter is before the court upon the motion to dismiss by
defendants Delta Air Lines, Inc. and Société
Air France, S.A. Based on a review of the file, record, and
proceedings herein, and for the following reasons, the court
grants the motion on the basis of forum non conveniens.
Montreal Convention dispute arises out of injuries sustained
by decedent Fahmy Eldeeb as he traveled from Minnesota to
Egypt. Mr. Eldeeb had pancreatic cancer and was
traveling home with his wife to “live out his last
days.” Passeri Dec. Ex. A at 4. Mr. Eldeeb purchased
the ticket from Minneapolis to Cairo through Delta. Am.
Compl. ¶ 6. The flight included a layover in Paris,
France. Id. ¶ 7. When he booked the tickets,
Mr. Eldeeb requested a wheelchair to assist him in
disembarking the plane in Paris and transporting him to the
gate of the connecting flight. Id.
10, 2016, Mr. Eldeeb departed Minneapolis on Air France
flight 673. Id. ¶ 7. When he arrived at
Charles de Gaulle Airport in Paris, he was initially denied
the use of a wheelchair. Id. ¶ 8. He was
eventually provided wheelchair assistance which enabled him
to disembark the airplane, but he was left in the seating
area of the arrival gate rather than taken to the gate for
his connecting flight to Cairo. Id. He remained at
the arrival gate for approximately twelve hours and missed
the connecting flight to Cairo. Id. ¶¶
8-9. At some point thereafter, Mr. Eldeeb received assistance
and was re-booked on a later flight to Cairo. Id.
¶ 9. When he arrived in Cairo, he learned that his
luggage, which contained his medications, had not yet
arrived. Id. He received his luggage one week later.
Eldeeb Aff. ¶ 15.
4, 2016, Mr. Eldeeb died in Egypt of complications related to
pancreatic cancer. Am. Compl. ¶ 9. According to
plaintiff Rehab Eldeeb, trustee for the next of kin of Mr.
Eldeeb, Mr. Eldeeb's death was hastened by the events at
the Charles de Gaulle airport. Id. After Mr.
Eldeeb's death, plaintiff learned that he was denied
wheelchair access because the wheelchair vendor at the
airport, Passerelle, was on strike. Id. ¶ 10;
Casati-Ollier Decl. ¶¶ 13, Plaintiff commenced this
action on April 26, 2018, alleging that the lack of
wheelchair assistance proximately caused Mr. Eldeeb's
injuries and death and that defendants are strictly liable
under the Montreal Convention. Plaintiff filed an amended
complaint on June 4, 2018. Defendants now move to dismiss on
the basis of forum non conveniens, failure to join
indispensable parties under Fed.R.Civ.P. 19, and failure to
state a claim under Fed.R.Civ.P. 12(b)(6).
first and foremost argue that this case should be dismissed
on the principle of forum non conveniens because the case
turns on events occurring solely in France and involves
French parties (ADP and Passerelle) that are not subject to
the court's jurisdiction or subpoena power. Defendants
note that the only connections to Minnesota are that
plaintiff resides here, that Mr. Eldeeb's flight to Paris
departed from here, and that Delta, which issued the tickets
but not operate the flight, is located here.
principle of forum non conveniens permits a court to decline
jurisdiction even though venue and jurisdiction are proper,
on the theory that for the convenience of the litigants and
the witnesses, the action should be tried in another judicial
forum.” Mizokami Bros. of Ariz., Inc. v. Mobay
Chem. Corp., 660 F.2d 712, 717 (8th Cir. 1981)
(citations and internal quotation marks omitted). “The
defendant has the burden of persuasion in proving all
elements necessary for the court to dismiss a claim based on
forum non conveniens.” K-V Pharm. Co. v. J. Uriach
& CIA, S.A., 648 F.3d 588, 598 (8th Cir. 2011)
(citations and internal quotation marks omitted).
assessing whether dismissal on this basis is appropriate, the
court must first determine whether an adequate alternative
forum is available to hear the case. Reid-Walen v.
Hansen, 933 F.2d 1390, 1393 n.2 (8th Cir. 1991).
“An alternative forum is available if all parties are
amenable to process and come within the jurisdiction of the
forum.” Id. An alternative forum is considered
adequate if “the parties will not be deprived of all
remedies or treated unfairly.” Id.
court determines that an adequate, alternative forum exists
it “must then balance factors relative to the
convenience of the litigants, referred to as the private
interests, and factors relative to the convenience of the
forum, referred to as the public interests, to determine
which available forum is most appropriate for trial and
resolution.” De Melo v. Lederle Labs., 801
F.2d 1058, 1060 (8th Cir. 1986). A plaintiff's choice of
forum, particularly when plaintiff has chosen the home forum,
is entitled to substantial deference. Piper Aircraft Co.
v. Reyno, 454 U.S. 235, 242, 255 (1981).
Adequate and ...