FIRSOV v. AUSTRIAN AIRLINES AG (2026)

ORDER GRANTING MOTION TO DISMISS

Re: Dkt. No. 48

Plaintiff Sergey Firsov seeks reimbursement for the cost of tickets for himself and his dogs, as well as other damages, in connection with a multi-leg international flight he took in March 2023 in part with defendant Austrian Airlines. He asserts the following causes of action: (1) violations of the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999 (“Montreal Convention”); (2) fraud under the Airline Deregulation Act of 1978; (3) false advertising under the Airline Deregulation Act; (4) unjust enrichment under the Airline Deregulation Act; (5) breach of contract under the Airline Deregulation Act; (6) intentional infliction of emotional distress under the Airline Deregulation Act; (7) negligent infliction of emotional distress under the Airline Deregulation Act; and (8) violation of the covenant of good faith and fair dealing under the Airline Deregulation Act. Austrian Airlines now brings this motion to dismiss for failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6), and for failure to comply with a court order, Fed. R. Civ. P. 41(b). For the following reasons, the Court grants the Rule 12(b)(6) motion.

BACKGROUND

On April 24, 2023, Firsov attempted to board an Austrian Airlines flight from Warsaw, Poland to San Francisco, California.¹ He brought two dogs in his carry-on bag, though he had only paid for one. Austrian Airlines has a policy of charging €100 for every pet-in-cabin. Firsov was told to either pay for his second dog or be denied boarding. Firsov paid an additional fee and boarded the plane.

Firsov's dogs' trials continued from there. At some point during the intercontinental flight, Firsov attempted to take them into the plane bathroom with him. A flight attendant stopped Firsov and his dogs from entering the bathroom, informing him that it was only for human passengers. She then prevented Firsov from changing his dogs' diapers in the aisle and informed him he would have to change them at his seat. As a result, both Firsov and his dogs suffered from urinary tract “damage[ ]” and emotional distress. In addition, his dogs suffered from dehydration. He seeks reimbursement for the cost of his ticket and the dog fees ($368.90), the cost of the “damaged dogs” ($4,000), interest at a rate of 10 percent “for using Plaintiff's money” ($474), punitive damages amounting to ten percent of Austrian Airline's revenue between 2024–2025 ($288 million), damages for “damaging health” ($144,000), and an unspecified amount for emotional distress.

LEGAL STANDARD

The Federal Rules require a complaint to include a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). If the complaint does not do so, the defendant may move to dismiss the complaint. Fed. R. Civ. P. 12(b)(6). Dismissal is required if the plaintiff fails to allege facts allowing the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

In considering a Rule 12(b)(6) motion, the Court must “accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable” to the non-moving party. Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1029–30 (9th Cir. 2009). While legal conclusions “can provide the [complaint's] framework,” the Court will not assume they are correct unless adequately “supported by factual allegations.” Iqbal, 556 U.S. at 679. Courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)).

Materials outside the complaint can be considered on a Rule 12(b)(6) motion if they are incorporated by reference therein or otherwise judicially noticeable. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“A [district] court may [ ] consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment.”). The Court may consider documents which are “not physically attached to the complaint” “if the [ ] ‘authenticity ․ is not contested’ and ‘the plaintiff's complaint necessarily relies’ on them.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (quoting Parrino v. FHP, Inc., 146 F.3d 699, 705–06 (9th Cir. 1998)). Federal Rule of Evidence 201 permits judicial notice of “a fact that is not subject to reasonable dispute” because it is “generally known.”

ANALYSIS

I. Montreal Convention Claims

Firsov brings his first claim under Montreal Convention under Article 17. The relevant text is as follows:

The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the 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.

Montreal Convention, S. Treaty Doc. No. 106–45, 1999 WL 33292734, art. 17. “An accident under Article 17 is an unexpected or unusual event or happening that is external to the passenger and not the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft.” Olympic Airways v. Husain, 540 U.S. 644, 651 (2004) (citing Air France v. Saks, 470 U.S. 392, 405, 406 (1985)) (cleaned up).

Firsov's injuries to his urinary tract and emotional health are not cognizable under Article 17. First, Firsov himself was never prevented from using the bathroom, only his dogs were. Firsov's urinary tract injury was an internal reaction to the normal operation of the aircraft. Because there was no unexpected or unusual event that led to the injury, there was no accident for which the airline is responsible. Second, Article 17 does not allow recovery for emotional injuries. Eastern Airlines v. Floyd, 499 U.S. 530, 534 (1991); see also Carey v. United Airlines, 255 F.3d 1044, 1051 (9th Cir. 2001) (“[P]hysical manifestations of emotional and mental distress do not satisfy the ‘bodily injury’ requirement in Article 17.”).²

The injuries to Firsov's dogs are also not actionable. Austrian Airlines' conditions of carriage clearly state that an animal must “be secured throughout their entire stay on board” within their transport carrier.³ Even accepting Firsov's contention that his dogs are “passenger[s]” under the Montreal Convention, he fails to show what was unusual about barring the dogs from either the bathroom or from the aisles.

Firsov launches his next claim under Article 19, which provides liability on behalf of an airline “for damage occasioned by delay in the carriage by air of passengers, baggage, or cargo.” Montreal Convention art. 19. Firsov was stopped at the airport and informed he must either pay for the second dog or lose his original ticket. Firsov chose to pay the extra €100 and subsequently boarded his flight. He does not allege any delay caused by that interaction.

The Montreal Convention thus does not provide Firsov with a claim here.

II. State Law Claims

Firsov's remaining causes of action are tort and contract claims.⁴ But any state law claim that falls within the scope of the convention is preempted. Because Firsov seeks compensation for damage incurred while on board an international air carrier, he fails to plead any actionable injury under state law.

For nearly a century, the liability of air carriers has been governed by international treaty. These liability limits were first set, in 1929, by the Warsaw Convention. Over the ensuing years, the Convention evolved through additional treaties and amendments that sometimes conflicted with each other. Recognizing “the need for a new convention to replace the patchwork of liability regimes around the world,” the drafters of the Montreal Convention proposed a simplified, streamlined treaty that created “a modernized uniform liability regime for international air transportation.” Convention for Int'l Carriage by Air, S. Treaty Doc. No. 106-45 (May 28, 1999). The Montreal Convention's preamble acknowledges the Warsaw Convention's significant contribution to “harmonization of private international air law” before then declaring its own purpose to “modernize and consolidate the Warsaw Convention.” See Preamble to Montreal Convention. The two treaties are intimately related, and—in some sections—indistinguishable. Thus, while there is no binding authority on whether the Montreal Convention preempts state law claims, holdings on the Warsaw Convention may be analogous, particularly where the text of each treaty is substantially similar. See supra note 2.

In El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 160 (1999), the Supreme Court considered whether a claimant asserting injuries not recoverable under article 17 of the Warsaw Convention was also barred from pursuing those injuries under state law. After reviewing the treaty's text, drafting history, and purpose, the Court held that the treaty precludes “a passenger from asserting any air transit personal injury claims under local law.” Id. at 168. (citation omitted).

Tsui Yuan Tseng relied on provisions of the Warsaw Convention that are substantially similar to those of the Montreal Convention. The Warsaw Convention was amended in 1998 to provide that (1) “in the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention” and (2) “[i]n the carriage of cargo, any action for damages, however founded, whether under this convention or in contract or in tort or otherwise, can only be brought subject to the conditions and limits of liability set out in this Convention.” Tsui Yuan Tseng, 525 U.S. at 174 n. 15. The Supreme Court pointed to the amendment's language and its clear preemptive effect, holding that passengers are “preclude[d] ․ from bringing actions under local law when they cannot establish air carrier liability under the treaty.” Tsui Yuan Tseng, 525 U.S. at 175.

The Montreal Convention pulls from the Warsaw Convention's two amended provisions and combines them into a single preemptive provision that clearly applies to articles 17, 18, and 19.

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.

Montreal Convention, art. 29 (emphasis added). Because the Montreal Convention's text is nearly identical to that of the Warsaw Convention, the Supreme Court's reasoning in Tsui Yuan Tseng applies with equal force. See also Thede v. United Airlines, Inc., 796 F. App'x 386, 388 (9th Cir. 2020) (applying Tsui Yuan Tseng to hold that “the Convention precludes relief under state law.”). Injuries that are not cognizable under the Montreal Convention are not actionable under state law.

Other circuits recognize the treaty's preemptive effect. Although the court in Badar v. Swissport USA, Inc. did not explicitly discuss the Supreme Court's reasoning in Tsui Yuan Tseng, it did note that because the Montreal Convention “hews closely to the text of its predecessor” and concluded that any “substantially similar” provision should be analyzed under previous Warsaw Convention case law. 53 F.4th 739, 744 (2d Cir. 2022) (holding that the Montreal Convention preempts state law claims); see also We CBD, LLC v. Planet Nine Priv. Air, LLC, 109 F.4th 295, 303 (4th Cir. 2024) (same); Moore v. Brit. Airways PLC, 32 F.4th 110, 115 (1st Cir. 2022) (same).

While the Supreme Court's textual reasoning provides a sufficient basis for extending Tsui Yuan Tseng to the Montreal Convention, other decisions also support that conclusion. In Villamar v. Skywest Airlines Inc., No. CV-18-01185-PHX-RM, 2018 WL 6110934 (D. Ariz. Nov. 21, 2018), for example, the district court pointed to the purpose of the Montreal Convention, its drafting history, and interpretations of the treaty by other signatories—all factors considered by the Supreme Court in Tsui Yuan Tseng—to conclude that the plaintiff's negligence claim was preempted by the Montreal Convention. In Fadhliah v. Societe Air France, 987 F. Supp. 2d 1057, 1064 (C.D. Cal. 2013), the district court noted that the British case of Hook v. British Airways PLC held that article 29 preempted a civil damages action, and used that case to support its conclusion the action before it was likewise preempted. See also Tsui Yuan Tseng, 525 U.S. at 175 (“Decisions of the courts of other Convention signatories corroborate our understanding of the Convention's preemptive effect.”). Indeed, “every district court decision on [the issue of whether the treaty preempts state law] has held that the Montreal Convention's preemptive effect is substantially the same as, if not identical to, that of the Warsaw Convention.” Smith v. Am. Airlines, Inc., No. C 09-02903 WHA, 2009 WL 3072449, at *2 (N.D. Cal. Sept. 22, 2009) (collecting cases).

In short, the Montreal Convention preempts state law claims that fall within its scope. Because Firsov's state law claims are premised on the same conduct as his Montreal Convention claims and seek to impose liability on Austrian Airlines for conduct covered by the Convention, those claims are preempted.

CONCLUSION

For the reasons discussed herein, the Court grants Austrian Airlines' motion to dismiss Firsov's complaint. Because amendment would be futile, dismissal is without leave to amend.

IT IS SO ORDERED.

FOOTNOTES

1.   For the purposes of defendants' Rule 12(b)(6) motion, the Court assumes the truth of the facts alleged in plaintiffs' complaint.

2.   Although Floyd and Carey interpreted provisions of the Warsaw Convention and not the Montreal Convention, “any differences between the provisions [of Article 17] are immaterial.” Phifer v. Icelandair, 652 F.3d 1222, 1223 (9th Cir. 2011), as amended on denial of reh'g (Sept. 1, 2011). See also Narayanan v. Brit. Airways, 747 F.3d 1125, 1127 n.2 (9th Cir. 2014) (“In interpreting the Montreal Convention, courts have routinely relied upon Warsaw Convention precedent where the equivalent provision in the Montreal Convention is substantively the same.”).

3.   Courts may take judicial notice of “publicly accessible websites” where a plaintiff's complaint necessarily relies on the contents of those webpages. In re Yahoo Mail Litig., 7 F. Supp. 3d 1016, 1024 (N.D. Cal. 2014).

4.   Each of these claims are pleaded under the Airline Deregulation Act, which preempts state laws or regulations that relate to the price, route, or service of an air carrier. 49 U.S.C. § 41713(b)(1). The Airline Deregulation Act does not provide a federal cause of action incorporating substantive state law, nor does it preempt breach of contract or tort claims that arise out of transportation by airlines. Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 228 130 (1995); Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1266 (9th Cir. 1998), opinion amended on denial of reh'g, 169 F.3d 594 (9th Cir. 1999). Firsov does not explain why his claims can be brought under the Airline Deregulation Act or otherwise explain how that law is relevant. Austrian Airlines therefore argues that each of Firsov's Airline Deregulation Act claims must be dismissed for failure to state a claim. But the Court must construe a pro se plaintiff's complaint liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Because Firsov is a pro se plaintiff who clearly identifies the state law claims underlying each purported Airline Deregulation Act cause of action, it will address those claims on their merits.

P. Casey Pitts, United States District Judge