T. FORCHT DAGI, M.D., Plaintiff, Appellant, v. DELTA AIRLINES, INC., Defendant, Appellee.
No. 19-1056
United States Court of Appeals For the First Circuit
June 2, 2020
Howard, Chief Judge, Thompson and Barron, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge]
Henry Herrmann for appellant.
Christopher A. Duggan, with whom H. Reed Witherby, Pauline A. Jauquet, and Smith Duggan Buell & Rufo LLP, were on brief, for appellee.
Appellant, Dr. T. Forcht Dagi, M.D. (“Dagi“), is one such passenger who, having missed the Montreal Convention‘s two-year deadline to sue for injury that occurred in connection with his 2015 Delta Airlines flight to London, wishes now to convince us that his injury actually occurred after his disembarkation and therefore outside the preemptive scope of the Montreal Convention, and is actionable under local law. Our (legal and factual) crosscheck complete, we find that Dagi has failed to show that his injury did not begin inflight and therefore falls within the scope of the Convention and is, as a result, time-barred. Seatbelts fastened with chairs in the upright position, we explain.
BACKGROUND
Dagi, an American citizen and resident of Massachusetts, was a passenger on Delta Flight No. 63 that departed Boston‘s Logan Airport on March 30, 2015 and arrived at London‘s Heathrow Airport the next morning. As the plane was descending, Dagi was accused of stealing a crew member‘s bag. With Dagi‘s consent, the airlines searched Dagi‘s carry-on luggage, but came up dry. Later inflight the bag was found elsewhere on the plane, but Dagi was accused of having thrown the bag to the spot of discovery (presumably to avoid being caught). Upon landing, the airline prevented Dagi from deplaning until all other passengers had done so.
Quoting the relevant portions of Dagi‘s complaint:
- Once the Aircraft landed, the Attendant prevented the Plaintiff from leaving the Aircraft before the other passengers had done so.
- The Attendant on the Jetway directed the Delta Ground Employee to detain the Plaintiff and to turn him over to the “authorities.”
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Thereafter, accordingly, prior to the Plaintiff having disembarked from the Jetway, the Attendant ordered the Plaintiff to “follow that woman” and to “not go anywhere else.” - The Attendant had transferred custody of the Plaintiff to Delta Ground Employee, who ordered the Plaintiff to follow her away off the Jetway to another location in the terminal to wait “until the police arrived.”
- Thereupon, the Plaintiff was marched, under duress, to another location in the terminal (the “Second Location“). This involved a walk of ten to fifteen minutes duration to a distance of approximately four hundred yards from the Aircraft and Jetway.
- The Plaintiff, who is older, had at that time not fully recovered from leg surgery. He was forced to carry and move his two pieces of carry on luggage with no help. Accordingly, he was callously and unnecessarily subjected by Delta to significant pain and discomfort, exhaustion, and dangerous stress.
- The Plaintiff, at the Second Location, was kept standing and was not afforded an opportunity to sit down.
- After being detained at the Second Location for approximately fifteen minutes, the Plaintiff, without receiving any explanation, was marched, under duress, for ten to fifteen minutes, limping all the way back to the terminal in the vicinity of the Aircraft.
- Again, it was readily apparent that the Plaintiff, in being marched back to the Aircraft, was limping in pain, and was labored in carrying and moving luggage.
- Upon arriving back at the vicinity of the Aircraft, Delta Ground Employee turned over custody of the Plaintiff to a Delta employee identified as a “Delta supervisor.”
- At this time, the Plaintiff again denied the accusations against him, and demanded to either be released or to speak to the police. In response, he was told that he was not allowed to leave.
- During the entirety of Plaintiff‘s detention by Delta, its personnel adamantly refused to respond to any of Plaintiff‘s reasonable questions, such as, without limitation: “Where are you taking me?“; “Have the police really been called?“; [“]What happens next?“; [“]How long will I be held here?“; and “Why am I being marched back to the plane?”
- The Plaintiff, once again, was kept standing and was not afforded an opportunity to sit down while waiting at the second location.
- Thereafter, in the terminal near the Aircraft, the Delta Supervisor detained the Plaintiff for a considerable amount of time, and held several telephone conversations.
- The caller was a British police officer, who, after interviewing the Plaintiff, told the Plaintiff he was free to go and ordered his immediate release.
- The Plaintiff thereafter departed by passing through British immigration and customs, which are not a function of Delta Airlines.
The British police officer who ordered Dagi‘s release suggested to him that he file a complaint against Delta. The entire incident, from landing to Dagi‘s procession towards immigration and customs, lasted at least one hour.
Dagi had no further interaction with Delta until March 28, 2018 -- almost three
Delta moved to dismiss the complaint under
In response, Dagi pivoted from the broad strokes in his complaint to narrowly focus on what he described as his injury at the Second Location, arguing that an application of the tripartite test from McCarthy there would render that injury to have occurred after he had “fully disembarked,” and therefore outside the scope of the Convention and its statute of limitations. To that end, he additionally argued that the facts giving rise to this “fresh cause of action” at the Second Location substantiated, separately, a cause of action under British law for the “unlawful delay in surrendering him to the British police.” Finally, he raised a public policy red flag, claiming that the district court should refrain from giving Delta‘s “control” over him -- one of the test‘s factors -- determinative effect, since the “control” Delta had at the Second Location was “unlawful,” and not the type contemplated by the Convention. Preempting this type of action under the Montreal Convention, he stressed, would lead to the “pernicious” result of giving airlines the unchecked ability to indefinitely detain passengers.
After considering all arguments, the district court agreed with Delta and dismissed Dagi‘s case, concluding that the Montreal Convention preempted and time-barred Dagi‘s claims. See Dagi v. Delta Air Lines, Inc., 352 F. Supp. 3d 116, 125 (D. Mass. 2018). In doing so, it applied this circuit‘s McCarthy test and explained that 1) Dagi‘s location, 2) his activity, and 3) Delta‘s control over Dagi, all begged the conclusion that Dagi was disembarking at all times during his false imprisonment. Id. at 124-25. “[T]he relevant events began on and continued seamlessly at Delta‘s direction directly from the aircraft and then back to its vicinity during the process of disembarkation,” “in an unbroken chain until the [British Police] terminated the airline‘s direction and control.” Id. at 121. According to the district court, “Dagi‘s effort to transmute his claims into more than one cause of action [pre- and post-Second Location] . . . distorts beyond
Dagi now appeals the district court‘s decision. Because we, like the district court, find Dagi‘s claims time-barred, we affirm.
STANDARD OF REVIEW
This court reviews an appeal of a
ANALYSIS
The Montreal Convention4 is a multilateral treaty, to which the United States and the United Kingdom are signatories,5 which governs international travel and limits liability for carriers such as appellee Delta Airlines. See Convention, ch. I, art. 1, §1; ch. III, art. 17. If an action for damages falls
within one of the Convention‘s damages provisions, then the treaty provides the sole avenue for relief -- that is, the Montreal Convention preempts
Under Article 17, and as relevant to our facts here, a carrier is strictly liable for damages sustained when an “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.” Convention, art. 17. To allege an “accident,” the claim must allege an occurrence which “arises from some inappropriate or unintended happenstance in the operation of the aircraft or airline.” Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 143 (2d Cir. 1998). Additionally, a carrier‘s Article 17 liability is triggered only when “a passenger‘s injury is caused by an unexpected or unusual event or happening that is external to the passenger” as the “Convention does not cover claim[s] for personal injuries not arising from an accident.” Id. at 141 (quoting Air France v. Saks, 470 U.S. 392, 405 (1985) and citing Tseng v. El Al Israel Airlines, Ltd., 122 F.3d 99, 103 (2d Cir. 1997), rev‘d on other grounds, 525 U.S. 155 (1999)). And as we‘ve mentioned, plaintiffs seeking to recover damages under the Montreal Convention must bring their claims within two years of “the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.” Convention at ch. III, art. 35, §1.
Our Take
On appeal, Dagi presses the same claims he advanced below. After careful review, we arrive at the same destination as the district court, but by a different flightpath. Rather than delving into what of Dagi‘s story constitutes “disembarkation,” we back up and examine the nature of the accident Dagi alleges -- false imprisonment. Interestingly, both litigants agree that false imprisonment falls within the purview of the continuous tort doctrine and each argues that this classification favors their respective position. However, because we find that Dagi‘s argument relies on a construction of the tort that we do not find persuasive, he presents us with no basis to conclude that the conduct at issue does not fall within the confines of the Montreal Convention. We thus start and stop the inquiry there.6
The Accident
The parties do not dispute that an “accident” occurred: false imprisonment.7 What they dispute is when it began. Dagi concedes that certain parts of his story occurred within the Convention‘s scope and
not-control argument, urging that the “unlawful” control Delta exercised over him at the Second Location was distinct, and not the type of control “contemplated” by the Convention. Rather, he contends, the definition of “control” when analyzing “disembarkation” under the Convention relates to “the control of an airline in the ordinary course of events,” and differs from the “control” exerted in the false imprisonment context.8
Delta responds, as before, that such slicing and dicing of a continuous tort like false imprisonment is impermissible, and that the accident that led to Dagi‘s injury of false imprisonment began on the airplane, as explained in Dagi‘s own words (in his pleading): “[o]nce the Aircraft landed, [Delta‘s] Attendant prevented [Dagi] from leaving the Aircraft before the other passengers had done so.” So Delta argues that because the “accident which caused the . . . injury took place on board the aircraft,” Convention, art. 17, and continued uninterrupted until Dagi left of his own accord for immigration and customs, the Convention covers the accident and preempts any recovery under local law for the resultant injury.
We take off with the basics. In general, and as the Supreme Court has noted, false imprisonment involves taking a person into custody: “[e]very confinement of the person is an imprisonment, whether it be in a common prison or in a private house, or in the stocks, or even by forcibly detaining one in the public streets; and when a man is lawfully in a house, it is imprisonment to prevent him from leaving the room in which he is.” Wallace v. Kato, 549 U.S. 384, 388-89 (2007) (quoting M. Newell, Law of Malicious Prosecution, False Imprisonment, and Abuse of Legal Process § 2, p. 57 (1892)). Turning to Massachusetts law which Dagi invokes, “[f]alse imprisonment consists of ‘(1) intentional and (2) unjustified (3) confinement of a person, (4) directly or indirectly (5) of which the person confined is conscious or is harmed by such confinement.‘” Sietins v. Joseph, 238 F. Supp. 2d 366, 381 (D. Mass. 2003) (citation omitted); see Restatement (Second) of Torts § 35 (1965). The analysis under British law is substantially the same. See J. Clerk & W. Lindsell, The Law of Torts, ch. 15 § 5 (22d ed. 2018) (“False imprisonment is ‘the unlawful imposition of constraint on another‘s freedom of movement from a particular place.’ The tort is established on proof of: (1) the fact
443 (D. Mass. 2013), aff‘d (Dec. 16, 2014) (internal quotations and citation omitted). And we look to the recurring nature of the tort to determine its endpoint, which triggers the running of the statute of limitations. See Maslauskas v. United States, 583 F. Supp. 349, 351 (D. Mass. 1984). Applying this to false imprisonment, we find that “[f]alse imprisonment ends, as affecting recovery” and triggering the statute of limitations, “when the release of the plaintiff‘s person occurs under reasonable circumstances.” 35 C.J.S. False Imprisonment § 84; see also Wallace, 549 U.S. at 389 (“false imprisonment is subject to a distinctive rule[] dictated, perhaps, by the reality that the victim may not be able to sue while he is still imprisoned: ‘[l]imitations begin to run against an action for false imprisonment when the alleged false imprisonment ends.‘“) (citing 2 H. Wood, Limitation of Actions § 187d(4), p. 878 (rev. 4th ed. 1916); 4 Restatement (Second) of Torts § 899, cmt. c (1977); A. Underhill, Principles of Law of Torts 202 (1881)); Decarvalho v. McKeon, No. CV 17-11224, 2019 WL 569829, at *2 (D. Mass. Feb. 12, 2019) (“For a claim of false imprisonment, the date of accrual is ‘when the alleged false imprisonment ends.‘” (citation omitted)).
Dagi seems to think that false imprisonment‘s characterization as a continuous tort alone supports his contention that a newly actionable, “fresh cause of action” arises moment to moment and therefore
1757780, at *10 (D. Mass. Mar. 4, 2019), R. & R. adopted, No. 1:18-CV-11099, 2019 WL 1760591, at *10 (D. Mass. Mar. 19, 2019) (citing Wallace, 549 U.S. at 389); Decarvalho, 2019 WL 569829, at *2; Williams v. City of Boston, 771 F. Supp. 2d 190, 201 (D. Mass. 2011); Gore v. Walpole (1866) 176 Eng. Rep. 751, 752, n.1; 4 Foster and Finlason 694, 696, n.1 (Eng.) (explaining that liability “for defendant‘s wrongful arrest or imprisonment” ends when the defendant is taken into lawful custody). Accordingly, because Article 17 covers claims that “allege an ‘accident’ if it arises from some inappropriate or unintended happenstance in the operation of the aircraft or airlines,” Fishman, 132 F.3d at 143, and because the only argument that Dagi has raised for why we may not look to where the tort began is one that we have rejected, we conclude that the Montreal Convention embraces Dagi‘s false imprisonment claim when the tort is properly understood.12 The
fact that Dagi remained in Delta‘s control at and beyond the Second Location does not disassociate his cause of action from its point
[T]he unlawful imprisonment of [Dagi] was a direct consequence of a false accusation against him by a Delta flight attendant during the flight, and this continuing tort of unlawful imprisonment began (prior to [Dagi‘s] disembarkation14) by said flight attendant instructing Delta ground personnel to detain [Dagi] prior to and subsequent to, his disembarkation at the London air terminal.15
In an effort to give lift to his fresh cause of action theory, Dagi relies on two out-of-circuit cases in support of his view that his false imprisonment at the Second Location can be severed from what started on the plane. First Thede v. United Airlines, Inc., No. 17-CV-03528-PJH, 2018 WL 1569836, at *1 (N.D. Cal. Mar. 30, 2018), rev‘d and remanded, 796 F. App‘x 386 (9th Cir. 2020), where a kerfuffle arising from Thede‘s repeated requests for food from the United staff before and during the delayed flight led the flight to be diverted to Belfast, Northern Ireland, where armed officers boarded the plane to remove Thede. “Based on the accusations of the flight crew, [Thede] was charged with assault and endangering an aircraft,” remained on house arrest for ten months after landing, and after a seven-day trial, was found not guilty. Id. This string of events led Thede himself to bring suit against United for manifold reasons, including the one important for our purposes, malicious prosecution. Id. at *2. Thede‘s claim had rested on two sets of statements from United: first, those “made by the captain or flight crew during the flight or to officers when they were in or near the gate,” Thede v. United Airlines, Inc., 796 F. App‘x 386, 389 (9th Cir. 2020), and second, those “based on events that took place during and following [Thede‘s] ten-month confinement to
house arrest while” awaiting trial. Id. The district court found Thede‘s claim for malicious prosecution “preempted by the Montreal Convention,” Thede, 2018 WL 1569836, at *6, and for that Thede appealed. The Ninth Circuit reversed and remanded, holding that while Thede‘s malicious prosecution claim based
Next, Elnajjar v. Northwest Airlines, Inc., No. 04-CV-680, 2005 WL 1949545, at *1-2 (S.D. Tex. Aug. 15, 2005), where plaintiff‘s claims arose from allegedly hostile treatment by airline staff during check-in, aboard the plane, and when forcibly removed from the plane. The district court found certain claims, such as negligence and conspiracy, that arose on the plane, preempted by the Warsaw Convention, but the claims of intentional infliction of emotional distress, invasion of privacy, and defamation arising from the encounter at check-in “not clearly preempted by [the Convention].” Id. at *3-4. The district court specifically found Elnajjar‘s false imprisonment claim, “based on incidents that occurred after [plaintiff] had fully disembarked,” was not preempted.16 Id. at *4. The district court read this allegation of the false imprisonment as starting after Elnajjar left the airplane into the airport, “some distance from the boarding area and entail[ing] the direction of law enforcement officials, not just Defendants’ agent,” and therefore outside the scope of the Convention. Id.
These cases are of no help to Dagi. Both allege a distinct injury connected to distinct events that took place outside the scope of the Convention: in Thede, malicious prosecution based on statements made long after the flight‘s arrival and during Thede‘s ten-month house arrest, and in Elnajjar, false imprisonment that plaintiff alleged started once he was off the plane and marshalled by law enforcement. In neither case was the allegation based on a continuous tort that began on the plane, and that the plaintiff tried to partition into distinct torts. In contrast, Dagi‘s allegation of false imprisonment explicitly started “on board the aircraft,” Convention, art. 17, by his own admission, and, as we have explained, there is no merit to his argument that a “fresh cause of action” arose at the Second Location.
And so we arrive at our final destination. No need for a stopover to analyze if any part of Dagi‘s story happened “post-disembarkation” to dislodge it from the Convention‘s scope, because Dagi‘s false imprisonment was a continuing tort that started, by his own admission, on the plane and then continued uninterrupted, by the tenets of tort law, until Dagi was free to leave of his own accord for immigration and customs. We therefore find that, based on the arguments that he makes to us, any claim of injury that Dagi brought related to his false imprisonment falls solely within the scope of the Montreal Convention, and because Dagi filed his complaint almost a full year after the expiration of the Convention‘s two-year statute of limitations, we affirm the district court‘s dismissal of his complaint.17
Each side shall bear its own costs.
Notes
During the entire duration of time in which [Dagi] was confined and falsely imprisoned by the Attendant, by the Delta Ground Employee and by the Delta Supervisor, [Dagi] believed