Opinion
2:10-CV-105 JCM (LRL).
July 15, 2010
ORDER
Presently before the court is defendant Mexicana Airways' (hereafter "Mexicana") motion for summary judgment. (Doc. #15). Plaintiff Andres Jimenez's opposition was due on June 13, 2010. To date, plaintiff has not filed an opposition.
Plaintiff asserts three claims: 1) breach of contract, 2) breach of the covenant of good faith and fair dealings and 3) negligence. The complaint stems from an incident during a Mexicana airline flight where plaintiff alleges to have found part of a finger in a meal provided on board.
While the failure of an opposing party to file points and authorities in response to any motion shall constitute a consent to the granting of the motion under LR 7-2(d), defendant's failure to file an opposition is an insufficient ground for granting summary judgment. See Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003). While this court may grant the motion, it must first evaluate its merit.
Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact which would preclude summary judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to interrogatories, or admissions on file, "specific facts showing that there is no genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Fed.R.Civ.P. 56(c). This court finds that defendant Mexicana has fulfilled its burden.
Because the incident occurred during an international flight from Mexico to Las Vegas, (complaint, para. #10), the Montreal Convention relating to international transportation is the governing law. U.S. Const. Art. VI cl. 2; see El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999) (discussing the Warsaw Convention, the predecessor to the Montreal convention). Under article 17 of the Montreal Convention, to recover personal injury damages, plaintiff Jimenez must have suffered a "bodily injury," meaning an injury with a physical manifestation. See Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 552 (1991). See also Carey v. United Airlines, Inc., 255 F.3d 1044, 1052 (9th Cir. 2001) (holding "physical manifestations of emotional and mental distress do not satisfy the `bodily injury' requirement").
Plaintiff Jimenez seeks damages resulting from the injuries sustained upon allegedly finding part of a finger in the meal provided to him by defendant Mexicana. In his complaint, plaintiff stated that finding the finger was "very repulsive and disturbing to him in [sic] it affected him physically and emotionally." (Complaint, para. 14). However, Mexicana contends that plaintiff admitted he did not ingest the finger, become ill or seek medical attention, nor has he rebutted this contention.
As a result, plaintiff has not shown that he suffered a bodily injury. Defendant Mexicana has established that it is entitled to judgment as a matter of law because plaintiff has not shown the ability to collect on any damages under the Montreal Convention.
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that defendant Mexicana Airways' motion for summary judgment (doc. #15) be, and the same hereby is, GRANTED.