Mary Dordieski and her mother, both Indiana residents, were scheduled to travel on Austrian Airlines from Chicago to Vienna with an ultimate destination of Macedonia. Ms. Dordieski suffers from spina bifida, as a result of which her right leg has been deformed and rigid since birth, and she is confined to a wheelchair. After the original flight to Austria made an emergency landing due to mechanical issues in Canada, where they stayed overnight, the two were put on a flight from Toronto the following day to complete the trip. Upon boarding in Canada, Ms. Dordieski claims that the airline's employee forced her to sit in a seat without proper legroom to accommodate her disability and caused her leg to break.
Austrian Airlines moved to dismiss Ms. Dordieski's action to Canada on forum non conveniens grounds. The parties first disputed as to whether the Montreal Convention would provide for jurisdiction in Canada under Article 33(3), which provides for jurisdiction "where the carrier has a place of business through which the contract was made." The airline argued that, because a new boarding pass was issued to Ms. Dordieski in Canada, the contract for the flight was made in Canada, meaning that Canada was an adequate alternative forum to the United States. The court disagreed, finding that there was no Article 33(d) jurisdiction in Canada because the boarding pass was not a new contract; it merely altered the original contract, which was made in the United States.
The court further found that even if there was Article 33(3) jurisdiction in Canada, Austrian Airlines' forum non conveniens argument would still fail. Aside from finding that public and private interest factors favored litigation in the United States, and noting the court's strong preference for conducting litigation in a plaintiff's chosen forum, the court took into account "practical" considerations including that Austrian Airlines, a "multinational transportation company," was in a better position to litigate the case in a foreign country than Ms. Dordieski, a person with a disability and without an income.
Dordieski v. Austrian Airlines, AG, 2016 WL 4437958 (N.D. Ind. Aug. 23, 2016).
Indiana Federal Court Denies Austrian Airlines' Request For FNC Dismissal To Canada
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