Bautisa v. TAP Air Portugal

Background

Javier Bautista, representing himself, sued TAP Air Portugal over the alleged loss of the contents of his luggage after an international flight from Newark to Madrid in November 2016. He first filed the case in the Civil Court of the City of New York, Small Claim Part, on August 25, 2022. TAP removed the case to federal court on January 24, 2024.

The federal court scheduled an initial pretrial conference for March 19, 2024. TAP reported that it had been unable to confer with Bautista because he was unresponsive. Bautista did not attend the conference or contact the court. The court rescheduled the conference, warned Bautista that the case could be dismissed if he did not confirm that he intended to continue, and later gave him until August 5, 2024, to communicate with the court. Bautista did not do so, and the court dismissed the case without prejudice on August 9, 2024, for failure to prosecute.

Bautista moved to reopen the case on February 7, 2025, and asked that it be returned to small claims court. He argued that he had not received the federal court filings, had not agreed to litigate in federal court, had visual disabilities that made completing forms difficult, had been outside the country, and had moved to a new address. The court treated the motion as one seeking relief under Rule 60(b) of the Federal Rules of Civil Procedure, which permits a court in limited circumstances to relieve a party from a final judgment or order.

Rule 60(b)(4): Whether the judgment was void

The court rejected Bautista’s argument that the judgment was void because removal was improper or because he had not been served. The court found that TAP properly served the notice of removal at the address Bautista had provided to the small claims court and filed the notice as required by federal law. The court also noted that Bautista had shown awareness that the case had been removed to federal court by submitting a proposed order seeking to restore the case to the small claims court docket.

The court explained that Bautista’s permission was not required for TAP to remove the case. It also found that the action was timely removed and that federal-question jurisdiction existed because the lost-luggage claim arose under, or was governed by, the Montreal Convention. The court therefore concluded that it had jurisdiction and that the judgment was not void.

Rule 60(b)(1): Mistake or excusable neglect

The court alternatively considered whether Bautista had shown mistake, inadvertence, surprise, or excusable neglect. Courts evaluating excusable neglect consider prejudice to the opposing party, the length and effect of the delay, the reason for the delay, and whether the movant acted in good faith. The court stated that the reason for the delay is the most important factor.

The court found that Bautista’s claim that he received no case-related documents was contradicted by the record. TAP served him by mail and email, court orders were mailed to him, none of the court’s mail was returned as undeliverable, and Bautista communicated with TAP’s counsel on March 8, 2024. The court also found that Bautista did not explain why he could not communicate with the court by mail or email, request an adjournment, or otherwise pursue the case during the period before dismissal.

The court acknowledged Bautista’s statements about his visual disabilities, international travel, and change of address. It found, however, that these circumstances did not explain his failure to communicate with the court from the case’s removal in January 2024 through its dismissal in August 2024. The court also noted that Bautista had returned to the United States before the dismissal and had received warnings by email that the case could be dismissed.

The court found that the risk of prejudice to TAP weighed against reopening because the underlying events occurred nearly nine years earlier and no discovery had taken place. The approximately six-month delay between dismissal and Bautista’s motion slightly favored reopening, but his failure to follow repeated court orders and his lack of diligence weighed against him. On balance, the court concluded that Bautista had not shown excusable neglect.

Rule 60(b)(6): Extraordinary circumstances

The court also considered Rule 60(b)(6), which permits relief for extraordinary circumstances not covered by the rule’s other grounds. The court found that Bautista’s visual disabilities, travel, desire to litigate in small claims court, and assertions that TAP did not provide federal paperwork did not amount to highly convincing evidence of extraordinary circumstances or extreme hardship. The court therefore concluded that Bautista was not entitled to relief under Rule 60(b)(6).

Merits of the underlying claim

The court additionally considered whether Bautista had a potentially meritorious claim. It stated that claims under the Montreal Convention have a two-year filing deadline measured from the date the aircraft arrived or should have arrived. Because Bautista discovered the lost luggage when the plane arrived in Madrid in November 2016 and did not file suit until August 2022, the court found that the claim was filed well after that deadline. The court also reiterated that the case was properly removed and therefore would not be returned to small claims court.

Disposition

Judge Rochon denied Bautista’s motion to vacate the judgment, reopen the case, and remand it to small claims court. The clerk was directed to terminate the motion, and the parties were directed to send Bautista copies of the opinion and order.