UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:22-23941-CV-GAYLES

REGINALD D. HICKS,

Plaintiff,

v. 

AVIANCA INC.,

Defendant.

_____________________________/ 

ORDER

THIS CAUSE comes before the Court on Defendant Avianca’s Motion to Dismiss 

Plaintiff’s Complaint (the “Motion”). [ECF No. 5]. The Court has reviewed the Motion and the 

record and is otherwise fully advised. For the reasons set forth below, the Motion shall be granted. 

BACKGROUND1

On March 2, 2022, Plaintiff purchased two round-trip business class tickets on Defendant 

Avianca Inc.’s airline for travel from Miami, Florida to Rio De Janeiro, Brazil. [ECF No. 1-1 ¶ 6]. 

Plaintiff was traveling with his minor son and booked adjoining seats for each leg of the flights. 

Id. ¶ 7. Plaintiff and his son are African American. Id. ¶ 8.

On one leg of their return flight, from Bogota, Columbia to Miami, Florida, Plaintiff and 

his son were forced to fly coach despite having confirmed business class seats. Id. ¶ 10. There 

were no African American passengers in business class. Id. Plaintiff was not offered a refund and 

was required to pay additional fees for luggage. Id. ¶¶ 9, 11. Plaintiff contends that sitting in coach 

class seats aggravated pre-existing injuries to his knees and back. Id. ¶ 15, 16 On another leg of 

1 Because the Court is proceeding on a motion to dismiss, it takes the facts as alleged in the Complaint as true. 

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the flight, Plaintiff and his son were not offered refreshments until all other passengers were served 

and Plaintiff personally requested service. Id. ¶ 14. Plaintiff and his son were the only African 

American passengers in business class on that leg of the flight. Id.

On October 6, 2022, Plaintiff filed this action against Defendant in the Circuit Court of the 

Eleventh Judicial Circuit, in and for Miami-Dade County, Florida. [ECF No. 1-1]. The Complaint 

does not specifically designate a cause of action. Plaintiff alleges that Defendant “owed to the 

Plaintiff a duty of reasonable care and obligation to provide services that the Plaintiff not only paid 

to experience, but confirmed and had a reasonable expectation to receive, which was not provided”

and that the “acts of breach and blatant neglect on the parts of the Defendant were the proximate 

cause of the aggravation of physical injuries sustained by the Plaintiff” Id. ¶ 13, 15. Plaintiff’s 

alleged damages include medical expenses, financial loss, humiliation, and mental anguish. Id. ¶ 

16.

On December 2, 2022, Defendant removed the action to this Court based on original 

jurisdiction. Specifically, Defendant alleges that Plaintiff’s claims are exclusively governed by the

Convention for the Unification of Certain Rules for International Carriage by Air concluded at 

Montreal, Canada, on May 28, 1999 (the “Montreal Convention”). [ECF No. 1]. Defendant now

moves to dismiss the Complaint arguing that (1) the Montreal Convention preempts Plaintiff’s

claims and (2) any amendment to include claims under the Montreal Convention would be futile. 

[ECF No. 5].2

2 Plaintiff’s response to the Motion generally fails to address Defendant’s arguments. Moreover, Plaintiff did not 

timely file the response. However, for purposes of this Order, the Court accepts the filing as timely.

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STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Pleadings must 

contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause 

of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). Indeed, “only a complaint that 

states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679 (citing 

Twombly, 550 U.S. at 556). To meet this “plausibility standard,” a plaintiff must “plead[ ] factual 

content that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. at 678 (alteration added) (citing Twombly, 550 U.S. at 556). 

DISCUSSION

I. Shotgun Pleading

Although not discussed in the Motion, the Complaint is a shotgun pleading. “Complaints 

that violate either Rule 8(a)(2) or Rule 10(b), or both, are often disparagingly referred to as shotgun 

pleadings.” Weiland v. Palm Beach Cty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015) 

(internal quotation marks omitted). The Eleventh Circuit generally considers a complaint to be a 

shotgun pleading if it: (1) “contain[s] multiple counts where each count adopts the allegations of 

all preceding counts, causing each successive count to carry all that came before and the last count 

to be a combination of the entire complaint,” id. at 1321; (2) is “replete with conclusory, vague, 

and immaterial facts not obviously connected to any particular cause of action,” id. at 1321–22; 

(3) fails to “separate[e] into a different count each cause of action or claim for relief,” id. at 1322–

23; or (4) “assert[s] multiple claims against multiple defendants without specifying which of the 

defendants are responsible for which acts or omissions, or which of the defendants the claim is 

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brought against,” id. at 1323. Shotgun pleadings “fail to give the defendants adequate notice of the 

claims against them and the grounds upon which each claim rests . . . [and] waste scarce judicial 

resources, inexorably broaden the scope of discovery, wreak havoc on appellate court dockets, and 

undermine the public’s respect for the courts.” Arrington v. Green, 757 F. App’x 796, 797 (11th 

Cir. 2018) (internal quotations and citations omitted). 

Here, the Complaint fails to identify any particular cause of action or claim for relief. By 

failing to do so, the Court cannot discern whether Plaintiff alleges two distinct causes of action. 

Based on the allegations, Plaintiff appears to assert claims for breach of contract and negligence. 

But, because Plaintiff does not assert any specific causes of action, the Court cannot determine

whether Plaintiff has stated any claims upon which relief can be granted. For this reason alone, the 

Complaint must be dismissed. 

II. Preemption Under the Montreal Convention 

While the Complaint is subject to dismissal as a shotgun pleading, the Court also addresses 

Defendant’s argument that Plaintiff’s claims are preempted by the Montreal Convention. The 

Montreal Convention is a treaty that governs international travel and limits liability for carriers.3

Accordingly, “when the Montreal Convention applies, it provides the exclusive means for 

passengers to seek damages.” Pettaway v. Miami Air Int’l, 624 F. Supp. 3d 1268, 1276 (M.D. Fla. 

2002). Specifically, the Montreal Convention provides: 

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 as are set out in this 

3 The Montreal Convention entered into force on November 4, 2003. It superseded the Warsaw Convention, another 

international treaty which originated in 1929 “to aid and assist the then-fledgling commercial airline industry” and 

create “uniform rules for claims that arise out of incidents that occur during international air transportation. Marotte 

v. Am. Airlines, Inc., 296 F.3d 1255, 1258-59 (11th Cir. 2022). When interpreting the Montreal Convention, courts 

may rely on authority interpreting the Warsaw Convention where provisions of both conventions are substantially 

similar. Jacob v. Korean Air Lines Co., 606 F. App'x 478, 482 n.2 (11th Cir. 2015). 

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Convention without prejudice as to who are the persons who have the right to bring 

suit and what are their respective rights.

Montreal Convention, art. 29. Accordingly, “the Montreal Convention preempts state law claims 

falling within its scope.” Hedetniemi v. American Airlines, Inc., No. 18-CV- 21822, 2018 WL 

7824483, at * 2 (S.D. Fla. Nov. 7, 2018). If a plaintiff’s claim “falls within the treaty’s ambit, the 

treaty provides the sole cause of action for redress.” Id. See also Ugaz v. American Airlines, 576 

F. Supp. 2d 1354, 1360 (S.D. Fla. 2008) (“For all air transportation to which the Montreal 

Convention applies, if an action for damages falls within one [of] the treaty’s damage provisions, 

then the treaty provides the sole cause of action under which a claimant may seek redress for his 

injuries.”). 

The Montreal Convention applies to “all international carriage of persons, baggage, or 

cargo performed by an aircraft for reward.” Montreal Convention, art. 1. Here, Plaintiff’s alleged 

injuries occurred on board an international flight. Therefore, the Montreal Convention governs 

whether Plaintiff can maintain a claim against Defendant for his alleged injuries.

4

As set forth in Article 29, “any action for damages” relating to the carriage of passengers 

must be brought under one of the Montreal Convention’s damages provisions. Montreal 

Convention, art. 29 (emphasis added). Plaintiff’s claims—whether those claims are for breach of 

contract or negligence—have not been brought in accordance with the conditions of the Montreal 

Convention. Accordingly, Plaintiff’s state law claims are preempted by the Montreal Convention

and shall be dismissed. See Hedetniemi v. American Airlines, Inc., No. 18-CV- 21822, 2018 WL 

7824483 (S.D. Fla. 2018) (finding plaintiff’s state law negligence claims preempted under the 

Montreal Convention); Pettaway, 624 F. Supp. 3d at 1282 (“The Eleventh Circuit and district 

4 The United States, Brazil, and Columbia are all signatories to the Montreal Convention. See

https://www.icao.int/secretariat/legal/list of parties/mtl99_en.pdf.

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courts thereunder have enforced the Montreal Convention’s preemptive effect by dismissing a 

plaintiff’s state law claims.”). 

III. Futility of Amendment

Defendant also argues that, based on the facts as currently alleged, any amendment of the 

Complaint to state a claim under the Montreal Convention would be futile. Article 17—governing 

accidents on board an aircraft that cause injuries to passengers—provides that a carrier, like 

Defendant, is only liable for damage sustained when “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, art. 17. “An Article 17 claim thus has three elements: (1) an 

accident; (2) that caused death or bodily injury; (3) that took place on the plane or in the course of 

any of the operations of embarking or disembarking.” Campbell v. Air Jamaica Ltd., 760 F.3d 

1165, 1172 (11th Cir. 2014). Although the Court agrees that, under the currently pled facts, it is 

unlikely that Plaintiff could maintain a claim under the Montreal Convention, it declines to make 

that determination based on a hypothetical amended complaint.

CONCLUSION

 Based on the foregoing, it is ORDERED AND ADJUDGED as follows: 

1. Defendant Avianca’s Motion to Dismiss Plaintiff’s Complaint, [ECF No. 5], is 

GRANTED. 

2. Plaintiff’s state law claims are DISMISSED with prejudice.

3. This action is CLOSED, and all pending motions are denied as moot. 

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4. If Plaintiff wishes to amend his Complaint to state a claim under the Montreal 

Convention, he must request leave to file an amended complaint in a properly 

filed motion before the Court within twenty (20) days of the date of this Order.

DONE AND ORDERED in Chambers at Miami, Florida, this 25th day of July, 2023.

________________________________

DARRIN P. GAYLES

UNITED STATES DISTRICT JUDGE

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