[00:00:06] Speaker 00: May it please the court, Elan and Rose and John Faza for Appellant Maurice Phillips. [00:00:13] Speaker 00: This case is about, it's pretty simple, is a bedbug infestation resulting in bodily injury on a international flight, a common carrier. [00:00:22] Speaker 00: And whether the district court overruled the Montreal Convention preemption to dismiss with prejudice a claim that is substantively within the conventions. [00:00:32] Speaker 00: liability framework or at a minimum should have been allowed to be amended. [00:00:38] Speaker 00: We asked the court to reverse the dismissal order and remand the instructions to permit amendment or to properly construe the pleadings so the merits can be adjudicated under the Montreal Convention framework. [00:00:51] Speaker 02: With respect to that second ask, I believe you conceded preemption or at least it's argued that you conceded [00:01:02] Speaker 02: that the Montreal Convention preempts the negligence claim. [00:01:05] Speaker 02: And I guess I'm trying to understand what the scope of that is. [00:01:08] Speaker 02: And if it were possible for us setting aside the amendment question to say that this is a Article 29 action for damages, however, founded in contractor tort, is that what you meant by preemption? [00:01:26] Speaker 02: In other words, that it brings in [00:01:31] Speaker 02: the claim or that it prevents the claim that we're trying to figure if you conceded preemption in other words uh... how do we get to that second request you ask of uh... us uh... finding that you already have asserted a montreal convention claim i understand let me rephrase and i think that the simplest point is as pled in the complaint [00:01:59] Speaker 00: I believe the Montreal Convention, without using the Montreal Convention keywords, the magic words, has been pled. [00:02:07] Speaker 00: And so we would just ask your honor, or your honors, to reverse the dismissal order and basically find that the Montreal Convention has been pled. [00:02:17] Speaker 02: But can we do that, I guess, trying to understand what you meant by your concession that's preempted, if you've conceded in district court that [00:02:25] Speaker 02: Uh, yes, yes. [00:02:26] Speaker 02: Montreal preemption at Montreal convention preempts these claims. [00:02:31] Speaker 02: Um, can we do that? [00:02:34] Speaker 02: I think we can. [00:02:35] Speaker 00: And I just in fast forward to the more to the end of my oral argument, I think the district court itself actually by, by the ruling on the, on the American airlines summary judgment motion. [00:02:54] Speaker 00: They basically stated that as the complaint was stated, it fell within the confines of the Montreal Convention. [00:03:01] Speaker 00: So the same court, and I'll buy it, I believe it was a secondary judge that took over. [00:03:07] Speaker 00: But the same court basically, I don't want to say conflicted itself, but it gave inconsistent rulings. [00:03:19] Speaker 01: So my concern is even one step beyond the one that my colleagues have been focusing on. [00:03:26] Speaker 01: I thought also that you conceded that at SER 49 that the complaint must allege specifically that the action is brought under the Montreal Convention. [00:03:39] Speaker 01: And whether that's true or not, as a legal matter, is that a waiver of arguing to the contrary? [00:03:54] Speaker 00: I think in looking at the way that this opening brief was made, how do I say it? [00:04:04] Speaker 00: We're conceding that it could be [00:04:10] Speaker 00: in that fashion and that it should have been stated, but in the same token and just looking at it, it's essentially a strict liability. [00:04:21] Speaker 00: It is a strict liability claim. [00:04:24] Speaker 00: And given what has been pled, it should be enough without those magic words. [00:04:30] Speaker 00: So we are conceding that according to the convention, the way it reads, [00:04:39] Speaker 00: It is stated that it should say it, but I guess the real question is. [00:04:44] Speaker 01: Well, it says, I'm looking at what you filed. [00:04:47] Speaker 01: It says, plaintiff concedes that the complaint in this action must allege that this action is brought pursuant to the Montreal Convention. [00:04:58] Speaker 01: I'm not sure it matters to the outcome if you should be allowed to amend, but why shouldn't we hold you to that waiver? [00:05:10] Speaker 00: I just listening to what you're saying, Your Honor, I believe that may have been a drafting error, and I really apologize. [00:05:19] Speaker 00: It's not normal. [00:05:21] Speaker 00: I'm not used to being in front of the Court of Appeals, just to be honest. [00:05:25] Speaker 01: Well, but it isn't what's here. [00:05:29] Speaker 01: It's what you wrote in the district court and whether we should hold you to it or not. [00:05:37] Speaker 00: I understand. [00:05:37] Speaker 00: I don't believe that you should hold me to it. [00:05:41] Speaker 00: Why? [00:05:44] Speaker 00: Well, just in the same way that the court itself made inconsistent rulings. [00:05:49] Speaker 00: I mean, we're trying our best to just litigate a claim. [00:05:54] Speaker 00: And I recognize that I could have amended. [00:06:00] Speaker 00: And I was just thinking about it as I was listening to the prior [00:06:06] Speaker 00: case I remember I don't believe I brought this in the brief but it's it's in the actual ruling that the court on the first go-around had stated that it was very interesting what interestingly worded that it if we felt it was needed to be amended then we could and just looking at it in the I believe as pled it's enough but again at a minimum if not then [00:06:36] Speaker 00: to add those magic words, we would ask for it to be amended. [00:06:39] Speaker 02: On that point, Mr. John Faza, do you understand? [00:06:44] Speaker 02: It's not clear to me what the Montreal Convention requires as a matter of pleading setting aside this waiver issue. [00:06:53] Speaker 02: What would you intend to amend? [00:06:55] Speaker 02: Simply use the magic words? [00:06:58] Speaker 02: Is there such a thing as a Montreal [00:07:01] Speaker 02: Convention claim does it ride on? [00:07:04] Speaker 02: You know an underlying tort or contract claim What what more do you think you need to do? [00:07:09] Speaker 00: To bring it in with the Montreal Convention assuming that This doesn't get you there Given that this is my first and only Montreal Convention claim From what I've read I believe that there needs to be a claim made under the Montreal Convention [00:07:31] Speaker 02: And what does that look like in terms of how you'd amend your complaint? [00:07:35] Speaker 00: I think it looks the same, to be honest. [00:07:37] Speaker 00: I think you just you from in speaking to a few colleagues, you literally would just put in the words under the Montreal Convention and then you would continue. [00:07:48] Speaker 00: And so it's not something that is, you know, on a normal [00:07:56] Speaker 00: In a normal case, you'd have, for instance, a battery, IED, things of that nature. [00:08:01] Speaker 00: It's just stating that under the Montreal Convention, and then it's all the same. [00:08:07] Speaker 01: That's my understanding of- The negligence claims and so forth, the tort claims basically? [00:08:14] Speaker 00: Yes, Your Honor. [00:08:17] Speaker 00: Okay. [00:08:17] Speaker 00: And again, I do want to point out that, again, that even [00:08:24] Speaker 00: the district court itself on the American Airlines Summary Judgment Claim specifically stated the court denies Americans motion as to the ability of plaintiffs to maintain a claim under the Montreal Convention. [00:08:37] Speaker 00: And so I don't see how those go together, the two rulings. [00:08:45] Speaker 00: I also want to point out that [00:08:52] Speaker 00: The question that I believe that everybody should be asking is whether the pleaded facts state a claim within the Montreal Convention's scope, not whether the complaint included an express treaty citation. [00:09:02] Speaker 00: And it's appellate's position that the complaint need not cite Montreal, the Montreal Convention explicitly, and the court could construe the complaint as alleging the claim where the facts fit, and here the complaint alleges [00:09:19] Speaker 00: simply put an onboard condition bed bugs causing bodily injury and that should be enough for the montreal convention uh... again if if as pled it is not and we need those magic words then uh... i would ask for a leave to amend just to add those in but i don't believe that plaintiffs entire claim should be dismissed with prejudice as it does seem that at least in a in a on [00:09:48] Speaker 02: unpublished disposition that we have previously thought, in a non-precedential way, previously reasoned that the district court could construe a negligence claim that would be a tort action that falls within the description of the Montreal claim as a Montreal claim without the magic words. [00:10:10] Speaker 02: It's just we've got this waiver issue. [00:10:12] Speaker 02: And of course, that's not precedential. [00:10:13] Speaker 02: So we're trying to figure out what is the right answer in terms of if we were to remand, what [00:10:18] Speaker 02: How would we instruct the district court? [00:10:20] Speaker 02: What would the district court do next? [00:10:22] Speaker 00: Sure. [00:10:23] Speaker 00: And I guess if you're asking what relief we would want, I guess we would have asked for the reversal of the dismissal with prejudice and remand with instructions to permit amendment or in the alternative to construe the complaints of the plaintiff can proceed under the Montreal Convention. [00:10:49] Speaker 00: Construe the complaint within the Montreal Convention's framework. [00:10:55] Speaker 03: You have about four minutes left. [00:10:57] Speaker 03: Do you want to save time for rebuttal? [00:11:00] Speaker 00: Yes. [00:11:01] Speaker 00: Thank you. [00:11:01] Speaker 00: Please, thank you. [00:11:15] Speaker 04: Good morning, Your Honors. [00:11:15] Speaker 04: May it please the court, Justin Schmidt, for defendant and appellee British Airways. [00:11:20] Speaker 04: I'd like to reserve a minute of my time for rebuttal. [00:11:23] Speaker 03: Do you represent American Airlines also? [00:11:25] Speaker 03: I do not. [00:11:26] Speaker 04: Okay. [00:11:27] Speaker 04: Your Honor, American Airlines has been dismissed from this case. [00:11:30] Speaker 03: Yeah, okay. [00:11:30] Speaker 03: No, I just was curious if you represented both or only one. [00:11:33] Speaker 04: Never represented them and do not represent them today. [00:11:40] Speaker 04: Your Honor, your first question was about this waiver issue. [00:11:45] Speaker 04: Absolutely. [00:11:46] Speaker 04: Plaintiff conceded three things in the district court. [00:11:51] Speaker 04: One. [00:11:52] Speaker 01: I'm sorry to interrupt you but I'd like to actually ask you to address the questions that we sent in the focus order. [00:12:01] Speaker 01: Why isn't the state filing a sufficient [00:12:09] Speaker 01: filing to meet the two-year limitation under Article 29, which refers to any action for damages however founded, whether under this convention or in contract or in tort or otherwise. [00:12:25] Speaker 01: It seems to sweep in everything. [00:12:27] Speaker 01: The claims are the same. [00:12:29] Speaker 01: The defendant, in this case, your client, is the same. [00:12:33] Speaker 01: Why isn't that timely? [00:12:35] Speaker 04: The reason it's not timely, Your Honor, is [00:12:39] Speaker 04: because plaintiff did not plead a Montreal Convention claim. [00:12:43] Speaker 04: And I wanted to spell something here. [00:12:45] Speaker 04: We've been using this term, magic words, as though he just has to say Montreal Convention, poof, that's all that matters. [00:12:53] Speaker 04: That is not the issue here. [00:12:55] Speaker 04: If you don't plead a claim under the Montreal Convention, courts, including the Supreme Court, the Ninth Circuit, and a multitude of district courts, have dismissed claims just like this when you do not [00:13:09] Speaker 04: plead a claim under the Montreal Convention. [00:13:11] Speaker 02: So what more is required under Article 20? [00:13:14] Speaker 02: Point me to where in Article 29 anything more, perhaps just including magic words, is required in this complaint? [00:13:22] Speaker 04: What you need under Article 29 is to plead an actual claim under the Montreal Convention. [00:13:30] Speaker 02: This is an action for damages, whether in tort, [00:13:36] Speaker 02: What am I missing as I parse Article 29 that doesn't satisfy that requirement other than potentially magic words, although that's in the disjunctive? [00:13:48] Speaker 04: Right. [00:13:48] Speaker 04: What it doesn't satisfy is that the Montreal Convention claim is not simply a negligence claim. [00:13:54] Speaker 04: It is completely different. [00:13:57] Speaker 04: Just as if you were to plead, say, breach of contract and say, no, I actually meant that it was a negligence or strict liability claim. [00:14:05] Speaker 01: Council, I don't read it that way and I'd like you to respond to why you disagree. [00:14:10] Speaker 01: As I read it, the convention is designed to say that if you are suing based on something that happened on a flight that is covered, you're limited by the amount of [00:14:32] Speaker 01: that you can achieve. [00:14:35] Speaker 01: You're limited by the statute of limitations. [00:14:38] Speaker 01: But it doesn't really say that it's a separate claim. [00:14:41] Speaker 01: It just says whatever your claim is, it's subject to the limitations that are included herein. [00:14:48] Speaker 01: And that, to me, is quite different than requiring a specific separate claim. [00:14:54] Speaker 01: I mean, Article 29, to me, makes that crystal clear. [00:14:58] Speaker 01: And I don't understand how you read it differently. [00:15:02] Speaker 04: The reason it's different is that if you do not plead a claim under the Montreal Convention claim, courts are allowed to dismiss it on those grounds. [00:15:14] Speaker 01: Has this court ever held that? [00:15:18] Speaker 04: There have been numbers of dis- first of all, the US Supreme Court- That's a yes or no question. [00:15:23] Speaker 01: Has this court ever held that you have to have a separate claim denominated as Montreal Convention as distinguished from an action for damages in tort, which is referred to in Article 29? [00:15:37] Speaker 04: Right. [00:15:38] Speaker 04: Not the way that you framed it, Your Honor. [00:15:41] Speaker 04: However, courts have dismissed claims repeatedly [00:15:45] Speaker 04: for the exact same reason for not pleading. [00:15:48] Speaker 01: They may have done so incorrectly, and if this court hasn't ruled on the issue, what is the convention-based, textual base for your argument? [00:16:06] Speaker 04: You would at least need to plead [00:16:09] Speaker 04: the facts that would fall under uh... a montreal convention claim which is different than a negligence so you reference the supreme court so what supreme court case are you talking about l l israel airlines for saying and is there a there a part of that case that you think supports what you're talking about here l l held that the montreal convention is exclusively governs all claims uh... [00:16:38] Speaker 04: for personal injuries. [00:16:40] Speaker 03: We can stipulate to that. [00:16:42] Speaker 03: You know, the issue is just here, the sufficiency of the pleading and the timing of it. [00:16:46] Speaker 03: So why wouldn't we look at this complaint and say, it sounds in the kind of thing that's covered by the Montreal Convention, whether it says the words Montreal Convention or not. [00:16:58] Speaker 04: Because if you don't plead a claim under the Montreal Convention, it does not give the proper notice to the airline of what the claim is. [00:17:06] Speaker 03: Well, I think you have plenty of notice of what the claim is. [00:17:09] Speaker 03: I mean, the claim is obvious. [00:17:10] Speaker 03: It's not a complicated case. [00:17:12] Speaker 03: It's a tort case that happened on a plane. [00:17:15] Speaker 03: What more notice do you think you need? [00:17:17] Speaker 04: you need to actually plead the Montreal Convention elements here. [00:17:22] Speaker 04: And he did not plead them. [00:17:24] Speaker 01: What specific elements? [00:17:25] Speaker 01: What are the elements? [00:17:27] Speaker 01: Article 29 says, any action for damages, however found it, including in tort. [00:17:34] Speaker 01: So it seems to me that it's simply you have a negligence action here for something that happened on a flight. [00:17:46] Speaker 01: You had complete notice of that exact claim, and the legal issue is, is there a cap on damages? [00:17:56] Speaker 01: Is there a statute of limitations? [00:17:58] Speaker 01: It's like any other negligence claim that's subject to law. [00:18:02] Speaker 01: If you bring an ordinary negligence claim and there's a cap on damages in your state, that applies and you don't have to say it in the complaint. [00:18:13] Speaker 01: Why isn't this just like that? [00:18:15] Speaker 01: You have the action for damages sounding in tort. [00:18:20] Speaker 01: And this is the law that applies to give you the parameters of what can be recovered. [00:18:28] Speaker 01: Why isn't that just ordinary? [00:18:31] Speaker 04: Only focusing on Article 29, the elements are found in Article 17, where you have to plead specific elements that there is an accident, which is different than a negligence claim. [00:18:43] Speaker 04: You have to plead that that caused [00:18:48] Speaker 04: the bodily injuries, and bodily injuries are defined differently under the Montreal Convention than they are under an ordinary negligence claim. [00:18:58] Speaker 04: Negligence uses terms like duty and proximate cause and foreseeability. [00:19:04] Speaker 04: These terms are non-existent in a Montreal Convention claim. [00:19:07] Speaker 04: It's a completely different liability scheme. [00:19:11] Speaker 04: There are good reasons for requiring an actual Montreal Convention claim versus just saying, [00:19:18] Speaker 04: I can say anything in a complaint as long as it's... Let's assume you're right about that. [00:19:22] Speaker 03: So here, they did bring the claim within two years. [00:19:27] Speaker 03: And they don't necessarily want to add a new defendant or I don't think make any different factual allegations than they've already made. [00:19:35] Speaker 03: They just want to be able to proceed on the claim, even on your terms, that it be governed by all the rules and restrictions of the Montreal Convention. [00:19:43] Speaker 03: So why can they not file an amended complaint that just relates back? [00:19:47] Speaker 04: And that's an excellent question, Your Honor. [00:19:48] Speaker 04: And the reason for that is because the Montreal Convention's period of limitations, this court in Narayanand, this Ninth Circuit held, the period of limitations in the Montreal Convention is not a statute of limitations. [00:20:05] Speaker 04: It is a statute of repose. [00:20:08] Speaker 04: And those are very different things. [00:20:11] Speaker 04: And that is crucial to this case here. [00:20:14] Speaker 04: a statute of repose is a substantive right that belongs to the defendant, and it expires at the end of the two years. [00:20:22] Speaker 01: Well, but that doesn't help you, excuse me, that doesn't help you if the state court complaint is sufficient within the meaning of the Montreal Convention, because it was filed within the two years. [00:20:34] Speaker 01: So whatever you call it, whether you refer to it as a statute of limitations or a statute of repose, if you're within the time limit, it doesn't matter. [00:20:44] Speaker 04: We would respectfully disagree, Your Honor. [00:20:47] Speaker 04: There was no Montreal Convention claim on file within the two years. [00:20:52] Speaker 02: There's a little tension, I guess. [00:20:56] Speaker 02: I'm picking it up, Mr. Schmidt, and this is kind of the inverse that I was discussing with Mr. John Faza between asserting that both that the claim is preempted because the claims fall within the Montreal Convention [00:21:14] Speaker 02: Um, and then also asserting, um, that, uh, the time is run because the claims don't fall within the Montreal convention. [00:21:23] Speaker 02: It seems like if we're gonna, I mean, maybe it's, it, it, it seems an odd way to, to read the convention that, um, you need, you don't need magic words. [00:21:34] Speaker 02: You can look functionally at what the claims are brought for purposes of whether, uh, the convention preempts under article nine. [00:21:41] Speaker 02: Um, but you do need magic words, um, to figure out whether there's actually a claim arising for purposes of timeliness. [00:21:50] Speaker 04: You need to file an actual Montreal convention claim and that wasn't done here. [00:21:54] Speaker 02: You said that the claim that I think your arguments, again, setting aside this, this waiver issue, and these are arguments you've renewed in your answering brief, um, that this claim was, this complaint was preempted because it, by the Montreal convention. [00:22:09] Speaker 02: In other words, it fell within the Montreal convention. [00:22:11] Speaker 02: But you're also arguing that it doesn't plead a Montreal Convention claim. [00:22:17] Speaker 02: And I'm not sure why we would look at the same complaint differently for purposes of preemption versus for purposes of timeliness. [00:22:26] Speaker 04: If it is a claim that falls within the confines of the convention where it would produce liability under the convention, and you do not plead a Montreal Convention claim, it will [00:22:41] Speaker 04: it will be dismissed and those are two different things and you have to you have a two-year statute of repose this court has held that that is a statute of repose it cuts off after two years i don't know that that answers the the relation back issue right i mean that there's another circuit that's addresses the eleventh circuit yes [00:23:01] Speaker 03: Do you ask us to disagree with it? [00:23:03] Speaker 03: Yes. [00:23:03] Speaker 03: Okay, so you ask us to create a split with it. [00:23:05] Speaker 03: We don't do that, you know, unless there's a good reason for it. [00:23:08] Speaker 03: So why is there error in the 11th Circuit decision? [00:23:11] Speaker 04: There's an excellent reason for that because the 9th Circuit has already held that the relation back doctrine does not apply to statutes of repose. [00:23:18] Speaker 04: Where did we hold that? [00:23:20] Speaker 04: We held that in [00:23:36] Speaker 04: held in McGelvers Country Funding Corporation 309 F3D 1161 at 1164-365, which held that the statute of repose at issue in that case could not be extended by the relation back doctrine. [00:23:50] Speaker 04: In fact, Judge Kaplan of the Southern District of New York and Inray Lehman Brothers, 800 F sub 2D 477 said, the Rules Enabling Act prohibits federal rules [00:24:03] Speaker 04: from enlarging substantive rights. [00:24:05] Speaker 04: In consequence, as a number of courts have stated, the Rule 15C relation-back doctrine does not apply to statutes of repose, citing Miguel versus Country Funding Corporation, among another. [00:24:21] Speaker 02: So you would have to overrule that. [00:24:22] Speaker 02: Well, I'm trying to understand, in Ryanan, where we'd introduce this concept of the convention being a statute of [00:24:33] Speaker 02: repose. [00:24:34] Speaker 02: It seemed like there we were more concerned with when the clock started rather than when it stopped. [00:24:41] Speaker 02: In other words, there you had a claim that was what they were asserting was that the injury could extend beyond the carriage. [00:24:50] Speaker 02: And there's a certain logic to that with respect to the purpose of the Montreal Convention. [00:24:54] Speaker 02: And so therefore, the clock had to start once it's off the plane. [00:25:00] Speaker 02: It couldn't toll in that way. [00:25:02] Speaker 02: uh... but here again it's kind it's different question isn't it's when the clock stops for purposes of of bringing the claim there's no dispute that this unlike nirayanan is dealing with a claim that uh... arose and is asserted as accruing on the trip yes your honor however the ninth circuit in naryanam looked at the drafting history of the warsaw convention predecessor to the montreal convention they went back through it [00:25:31] Speaker 04: They found that in reviewing this, that the two-year period of limitation, and they said, cannot be extended, told, or suspended by any local law of the forum. [00:25:44] Speaker 04: And a local law of the forum includes extensions like Rule 15C's relation back doctrine. [00:25:52] Speaker 01: They quoted a- As counsel, how do you square that with the Chubb case? [00:25:59] Speaker 04: The Chubb case, [00:26:00] Speaker 04: was entirely different. [00:26:03] Speaker 04: That case was a cargo case and they were looking at an indemnity claim in the court. [00:26:14] Speaker 04: I believe, I don't have it right in front of me in the Chubb case, that the [00:26:21] Speaker 04: that the relation-back doctrine could apply in an indemnity claim, a different type of claim than what's at issue here, not a rule or a Article 17 claim? [00:26:34] Speaker 01: Well, I'm not sure how that matters because I think that we held that the right to damages is a claim, the ability to assert a claim. [00:26:52] Speaker 01: You've been brought to court within the two years. [00:26:56] Speaker 01: And the question is whether that is within the statute of repose slash limitations, regardless of how you view it. [00:27:06] Speaker 01: And it doesn't seem to preclude this. [00:27:09] Speaker 01: A statute of repose would not seem to preclude a different format for the claim. [00:27:21] Speaker 01: trying to figure out how it prevents a claim versus an action. [00:27:27] Speaker 04: As we wrote in our brief, John, just to answer the Chubb question on this, on page 31, footnote 12, although this court in Chubb declined to follow MSAS's holding that the limitations period of Article 29 of the Warsaw Convention applied to bar third party claims for indemnity, that's not an issue present in this case. [00:27:50] Speaker 04: And the court's ruling in Chubb – this is the important part – did not address the issue of relation back. [00:27:58] Speaker 04: The issue of relation back the Ninth Circuit has held does not apply to a statute of repose. [00:28:04] Speaker 04: So unless you overrule Narayanam's holding that the Montreal Convention's two-year period of limitations is a statute of repose, that's step one. [00:28:13] Speaker 04: Then you'd have to overrule Miguel that says the statute of repose. [00:28:18] Speaker 04: and a Rule 15's relation doctrine cannot be combined. [00:28:23] Speaker 03: Miguel involved, I know you're over your time, but we'll exhaust the questions and keep you going here. [00:28:31] Speaker 03: Miguel involved, I think somebody wanting to add another defendant to the case, which presents a somewhat different consideration here if all they're doing is kind of changing the legal labeling and framing of the claim. [00:28:44] Speaker 03: changing the allegations, factual allegations, not adding a new defendant. [00:28:48] Speaker 03: So do you think that makes a difference? [00:28:50] Speaker 04: I don't. [00:28:51] Speaker 04: It's whether or not you can incorporate mechanisms, procedural devices, such as the relation back doctrine onto a statute of repose. [00:29:03] Speaker 04: A statute of repose is substantive. [00:29:06] Speaker 04: A statute of limitations, on the other hand, is procedural. [00:29:09] Speaker 04: If you're using something like [00:29:11] Speaker 04: this relation back doctrine, this court is held and many other courts have held a statute of repose cannot be used with those types of procedural devices because it is a substantive right that belongs to the defendant. [00:29:28] Speaker 04: A statute of repose is concerned only with the defendant's piece, not with all of these other factual issues that you just raised. [00:29:39] Speaker 04: Once the [00:29:40] Speaker 04: Statute of repose is extinguished. [00:29:42] Speaker 04: It's done. [00:29:43] Speaker 04: If plaintiff in this case had wanted to amend before the statute of repose expired, he would be able to do so. [00:29:51] Speaker 04: He wouldn't need to use the relation back, doctor. [00:29:53] Speaker 04: He would simply do so under Rule 15A, and the court would have granted that, and he could have amended. [00:29:58] Speaker 04: But once you get beyond that statute of repose, and if you don't have a Montreal Convention claim, [00:30:05] Speaker 04: that claim is extinguished. [00:30:07] Speaker 04: And that's exactly what happened here in this court. [00:30:11] Speaker 04: And if I may make a point just to get back to the concessions, plaintiff counsel is essentially not only asking you to overrule the district court, he's asking you to overrule himself. [00:30:24] Speaker 04: He conceded that he had to plead a Montreal Convention claim. [00:30:28] Speaker 04: He conceded that the [00:30:35] Speaker 04: motion to dismiss should be granted. [00:30:37] Speaker 04: All of these concessions this court has held are judicial admissions, and he didn't even bring any of those concessions up in his appellate brief. [00:30:47] Speaker 04: The Ninth Circuit has said a failure to bring up judicial admissions like that is grounds for affirmance. [00:30:54] Speaker 04: That alone is grounds for affirmance right there. [00:30:57] Speaker 03: But I think we let you go over your time. [00:30:59] Speaker 03: I want to see if my colleagues have additional questions for you. [00:31:02] Speaker 03: Yes, Your Honor. [00:31:03] Speaker 01: No thank you. [00:31:04] Speaker 03: Okay. [00:31:04] Speaker 03: Mr. Schmidt, thank you very much for your presentation and we'll hear rebuttal. [00:31:19] Speaker 00: Thank you. [00:31:32] Speaker 00: Here's the reality. [00:31:34] Speaker 00: I'm not a perfect attorney and I don't think any attorney is. [00:31:37] Speaker 00: The reality is we pled what we thought should be pled as just a normal attorney would. [00:31:45] Speaker 00: Plaintiffs come to attorneys for help. [00:31:48] Speaker 00: We do our best. [00:31:52] Speaker 00: To say that with Mr. Schmidt that just stated that I conceded and therefore it's a judicial admission and everything should be against me [00:32:03] Speaker 00: is wrong in the sense that I'm just reading what I suppose that I should have used the words Montreal Convention but looking at this complaint the elements have been pled and a negligence claim is a far more stricter standard [00:32:31] Speaker 00: than a strict liability claim, which the Montreal Convention is. [00:32:35] Speaker 00: All the Montreal Convention requires is an injury to take place on an international carrier. [00:32:40] Speaker 00: And there'll be some nexus. [00:32:44] Speaker 02: Do you think you'd have to plead? [00:32:48] Speaker 02: Your friend had mentioned you look at Article 17. [00:32:51] Speaker 02: It uses this term accident. [00:32:55] Speaker 02: There is some case law on that in terms of the injury. [00:32:58] Speaker 02: uh... would you have to reframe your allegations uh... uh... around that as opposed to we've been talking about towards the your allegations are actually negligence and of course your damages would be different under the montreal convention so to at least have to change those things your complaint or or those things that are uh... to be dealt with later on not as a pleading matter i think that it would be dealt with later on your honor and i i mean again it just goes back to it [00:33:27] Speaker 00: keyword accident the point though is the way it looks is had I just said under the Montreal convention plaintiff was injured by bed bugs on an international carrier going from this destination to this destination on this date and therefore we're good we wouldn't be here and I can tell you [00:33:56] Speaker 00: Knowing that if I ever get another case such as such as this, that's the way I would plead it and so all I'm saying though is this is not the type of law that is taught to anybody until they actually engage into it and Same would be true. [00:34:17] Speaker 02: For example, I think the complaint contains a punitive damages claim you can see if this is a Montreal Convention claim that [00:34:23] Speaker 00: uh... those are not recoverable that is true but again the same court its own court district court ended up saying for the for american airlines okay we deny it it falls under the montreal convention the way as pled so how could how could the same court have the same inconsistent rulings on the same exact issue and so [00:34:51] Speaker 00: Again, I believe that I can make this amendment, and I believe it's more procedural than substantive. [00:35:00] Speaker 00: The substantive issue is whether or not the plaintiff was injured on an international carrier, which this plaintiff was. [00:35:09] Speaker 00: And so again, to sum up, unless there are further questions, I'm sorry. [00:35:16] Speaker 00: Are there any further questions? [00:35:19] Speaker 01: No, none here. [00:35:20] Speaker 00: It appears not. [00:35:21] Speaker 03: Do you have a quick concluding remark? [00:35:24] Speaker 00: I was just going to say that to sum up, we're just asking for a reversal of the dismissal with prejudice and remand with instructions to permit either amendment or for the complaint as pled to be construed within the Montreal Convention's frameworks. [00:35:43] Speaker 03: Thank you. [00:35:44] Speaker 03: We thank both counsel for the briefing and argument. [00:35:46] Speaker 03: This case is submitted. [00:35:47] Speaker 03: Thank you. [00:35:49] Speaker 03: That concludes our calendar for this morning and also the oral argument calendar for this week. [00:35:53] Speaker 03: We want to thank Ms. [00:35:55] Speaker 03: Lawler for her service as a courtroom deputy and the court staff here at the Chamber's courthouse. [00:35:59] Speaker 03: We're adjourned.