United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE
for consideration the first amended motion of defendants,
American Airlines, Inc. ("American"), and British
Airways PLC d/b/a Iberia Airlines ("Iberia"), to
dismiss. Plaintiff, Dara Scott, has failed to respond to the
motion, which is ripe for ruling. The court, having considered
the motion, the record, and applicable authorities, finds
that the motion should be granted, I. Plaintiff's
17, 2019, plaintiff filed her original petition in the
District Court of Tarrant County, Texas, 2 3 6th Judicial
District. Doc. 1. On September 3, 2019, American filed
its notice of removal, bringing the action before this court.
Id. Defendants filed a motion to dismiss, giving
plaintiff notice of the deficiencies of her pleading. Doc. 7.
By order signed October 4, 2019, the court ordered plaintiff
to file an amended pleading in keeping with the requirements
of the Federal Rules of Civil Procedure, the Local Civil
Rules of this court, and the judge-specific requirements of
the undersigned. Doc. 11.
October 22, 2019, plaintiff filed her amended complaint,
which is the operative pleading. Doc. 14. In it, she alleges
that, on May 19, 2017, plaintiff was sexually assaulted by
another passenger while traveling from New York City to
Paris, France, on an Iberia flight operated by American.
Plaintiff sues American for negligence and Iberia under a
theory of vicarious liability.
Grounds of the Motion
assert three grounds in support of their amended motion.
First, plaintiff lacks standing to pursue her claims. Second,
plaintiff is judicially estopped from asserting her claims.
And, third, plaintiff's claims are preempted by the
Montreal Convention, an international treaty that exclusively
governs the liability of air carriers for personal injuries
to passengers on international flights. Doc. 23.
Standards of Review
of a case is proper under Rule 12(b)(1) of the Federal Rules
of Civil Procedure when the court lacks the statutory or
constitutional power to adjudicate the case. Home
Builders Ass'n of Miss., Inc. v. City of Madison,
Miss, , 143 F.3d 1006, 1010 (5th Cir. 1998) . When
considering a motion to dismiss for lack of subject matter
jurisdiction, the court construes the allegations of the
complaint favorably to the pleader. Spector v. L 0 Motor
Inns, Inc., 517 F.2d 278, 281 (5th Cir. 1975). However,
the court is not limited to a consideration of the
allegations of the complaint in deciding whether subject
matter jurisdiction exists. Williamson v. Tucker,
645 F.2d 404, 413 (5th Cir. 1981). The court may consider
conflicting evidence and decide for itself the factual issues
that determine jurisdiction. Id. Because of the
limited nature of federal court jurisdiction, there is a
presumption against its existence. See Owen Equip. &
Erection Co. v. Kroger, 437 U.S. 365, 374 (1978);
McNutt v. General Motors Acceptance Corp. of Ind.,
Inc., 298 U.S. 178, 189 (1936). A party who seeks to
invoke federal court jurisdiction has the burden to
demonstrate that subject matter jurisdiction exists.
McNutt, 298 U.S. at 189; Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001).
defense appears on the face of the pleadings and in
judicially noticeable facts, it may be considered on motion
to dismiss. Judicial estoppel is such a defense. United
States ex rel. Long v. GSD & M Idea City, L.L.C.,
798 F.3d 265, 275 (5th Cir. 2015) .
maintain that plaintiff lacks standing to pursue her claims
because she failed to disclose them when she and her husband
filed a voluntary petition for relief under Chapter 13 of the
United States Bankruptcy Code. That filing was made on September
20, 2017, four months after the alleged assault. Doc. 25 at
App. 003-015. Plaintiff did not list any claim against either
defendant in her bankruptcy schedules. Id. App.
016-064. Rather, she answered "no" to the question
asking her to value claims against third parties,
"whether or not you have filed a lawsuit or made a
demand for payment." Id., App. 020. On November
2, 2018, plaintiff voluntarily converted her case to a
Chapter 7 proceeding. Id. App. 066. She filed
amended schedules, but again failed to identify any claim
against either defendant. Id. App. 072-082. She did
identify "Allstate Bodily Injury Liability" as
other property, giving a value of $30, 000.00. Id.
App. 080. On February 12, 2019, plaintiff received a
discharge under Chapter 7 of the Bankruptcy Code.
Id. App. 083. The case was closed by order dated
April 4, 2019, and the Chapter 7 trustee was discharged.
Id. App. 085.
the United States Bankruptcy Code, a debtor's assets,
including causes of action belonging to the debtor at the
commencement of the case, vest in the bankruptcy estate upon
the filing of the bankruptcy petition. Kane v.
Nat'l Union Fire Ins. Co., 535 F.3d 380,
385 (5th Cir. 2008). The trustee, as representative of the
bankruptcy estate, is the real party in interest and is the
only party with standing to pursue causes of action after the
filing of the petition. Id. And, at the conclusion
of the case, property of the estate that is not abandoned or
administered-such as claims that were never scheduled-remains
property of the estate. Id. Thus, as here, where a
plaintiff has failed to disclose claims in a bankruptcy
proceeding, the plaintiff cannot later pursue them and
dismissal pursuant to Fed.R.Civ.P. 12(b) (1) is appropriate.
See, e.g., DeForest v. Bank of New York
Mellon. No. '3:17-CV-01504-VAB, 2018 WL 4078275, at
*7 (D. Conn. Aug. 27, 2018); Romeo v. FMA
Alliance, Ltd., Mo. 15-CV-6524 (ADS)(ARL), 2016 WL
3647868, at *11 (E.D.N.Y. June 30, 2016); Dalley v.
Mitchell Rubenstein & Assocs., P.C., 172 F.Supp.3d
6, 15 (D.D.C. 2016) .
further point out that dismissal is appropriate under the
theory of judicial estoppel, which is recognized by the Fifth
Circuit as particularly appropriate where a party fails to
disclose an asset in a bankruptcy proceeding, then pursues
that claim in a separate tribunal based on that undisclosed
asset. Reed v. City of Arlington, 650 F.3d 571, 574
(5th Cir. 2011); Jethroe v. Omnova Solutions, Inc.,
412 F.3d 598, 600 (5th Cir. 2005). The elements of judicial
estoppel are: (1) the party against whom judicial estoppel is
sought has asserted a legal position that is plainly
inconsistent with a prior position; (2) a court accepted the
prior position; and (3) the party did not act inadvertently.
Reed, 650 F.3d at 574. Here, plaintiff had a duty to
disclose her personal injury claim to the bankruptcy court
and failed to do so, impliedly representing that she had no
such claim. Allen v. C & H Distributors, L.L.C.,
813 F.3d 566, 572 (5th Cir. 2015). Plaintiff obtained an
order of discharge, having failed to disclose the claim, thus
satisfying the second element. Id. at 573;
Andrade v. Countrywide KB Home Loans, No.
3:14-CV-3969-K, 2015 WL 5164812, at *10 (N.D. Tex. Sept. 1,
2015)(bankruptcy court adopts debtor's position when it
issues a discharge). And, the record reflects that plaintiff
did not act inadvertently, meaning that she either lacked
knowledge of the undisclosed claim or had no motive for its
concealment. In re Superior Crewboats, Inc., 374
F.3d 330, 335 (5th Cir. 2004) . See Fornesa v. Fifth
Third Mortgage Co., 897 F.3d 624, 627-28 (5th Cir.
2018)(motive to conceal exists where debtor has potential to
financially benefit from the nondisclosure to creditors);
United States ex rel. Long v. GSD & M Idea City,
L.L.C., 798 F.3d 265, 273 (5th Cir. 2015}(to show lack
of knowledge of claim, debtor must show that she was unaware
of the facts giving rise to the claim).
defendants argue that plaintiff's claims are preempted by
the Montreal Convention. White v. Emirates Airlines,
Inc.,493 Fed.Appx. 526, 529 (5th Cir. 2012); Bassam
v. American Airlines, 287 Fed.Appx. 309, 312 (5th Cir.
2008). The court agrees. The preemptive effect of the
Montreal Convention extends to all causes of action,
regardless of whether the claim could actually be maintained
thereunder. Mbaba v, Societe Air France, 457 F.3d
496, 500 (5th Cir. 2006). ...