UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.

: 10-24287-CV JAN LOMHOLDT, Individually; and LUCIANA BAKER as natural parent and guardian of BRUNO LOUIS HOMEN BAKER, a minor child; and FABIO OTTOLINI and CAROLINE OTTOLINI, individually, as husband and wife and as natural parents and guardians of SOPHIA OTTOLINI, a minor child; and CLAUDIO TIGRE MAIA and ANA PAULA MAIA, Individually, as husband and wife and as natural parents and guardians of both LUIZ MAIA, a minor child, and MARIANA MAIA, a minor child; and AUGUSTO CEZAR DE ASSIS CARNIERO DOS SANTOS, Individually; and GEISI FERREIRA DOS SANTOS, Individually Plaintiffs, v. CONTINENTAL AIRLINES, INC., a subsidiary corporation of UNITED CONTINENTAL HOLDINGS, INC. Defendant. ___________________________________/

FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL COME NOW, the Plaintiffs, JAN LOMHOLDT, Individually, and LUCIANA BAKER, as natural parent and guardian of BRUNO LOUIS HOMEN BAKER, a minor child, and FABIO OTTOLINI and CAROLINE OTTOLINI, individually, as husband and wife and as natural parents and guardians of SOPHIA OTTOLINI, a minor child, and CLAUDIO TIGRE MAIA and ANA PAULA MAIA, Individually, as husband and wife and as natural parents and guardians of both LUIZ MAIA, a minor child, and MARIANA
MONTOYA | LOPEZ, P.L. 4960 SW 72nd Avenue, Suite 303 Miami, Florida 33155 Tel: 305-665-5353 Fax: 305-665-6130

1 of 8

MAIA, a minor child, pursuant to Federal Rules of Civil Procedure 20, by and through the undersigned counsel, and sues Defendant, CONTINENTAL AIRLINES, INC., and in support thereof alleges as follows:

JURISDICTION AND VENUE 1. 2. Venue is founded upon 28 U.S.C. 1391(a). This is an action for damages in excess of Seventy Five Thousand Dollars

($75,000.00), exclusive of interest, costs and attorneys fees. 3. This Court has original jurisdiction pursuant to 28 U.S.C. 1331, in that this

matter arises under the laws, regulations, and treaties of the United States, including but not limited to the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, commonly and hereinafter referred to as the "Montreal Convention", reprinted in S. Treaty Doc. No. 106-45. 4. Specifically, Article 33 of the Montreal Convention, Jurisdiction, provides that at

the option of the passenger, he/she may bring an action for damages before the courts of any country wherein: (i) the carrier is domiciled; (ii) the carrier maintains a principal place of business; (iii) the ticket was purchased; (iv) lies the place of the passenger's final destination; and/or, (v) the passenger maintains his/her fixed and permanent abode at the time of the accident and in which, the Defendant carrier operates services for the carriage of passengers by air. The Plaintiffs case meets one or more of these five alternative criteria. Additionally, the Plaintiffs in this action had purchased the ticket at issue for international air travel. 5. A substantial part of the events of this claim occurred in the airspace nearest

Miami, Florida which required the subject aircraft to be redirected to land at Miami
MONTOYA | LOPEZ, P.L. 4960 SW 72nd Avenue, Suite 303 Miami, Florida 33155 Tel: 305-665-5353 Fax: 305-665-6130

2 of 8

International Airport (MIA) almost immediately after the incident.

PARTIES 6. The Persons listed below were paying passengers on/of Continental Airlines

Flight 128 on August 3, 2009, which originated in Rio De Janiero, with final destination of Houston, Texas: a. Jan Lomholdt, who was a legal resident of the State of New Jersey traveling to Houston on business; b. Bruno Louis Homen Baker, a minor child of Luciana Baker, who was traveling with his step-father, Jan Lomholdt, on the flight; c. Fabio Ottolini, who was a legal resident of the State of Texas; d. Caroline Ottolini, who was a legal resident of the State of Texas and traveling with her husband Fabio Ottolini on the flight; e. Sophia Ottolini, the minor child of both Fabio and Caroline Ottolini who was traveling with them on the flight; f. Claudio Tigre Maia, who is and was a legal resident of the State of Texas; g. Ana Paula Maia, who is and was a legal resident of the State of Texas; h. Luis Maia, who is and was a legal resident of the State of Texas; i. Mariana Maia, who is and was a legal resident of the State of Texas; j. Augusto Cezar de Assis Carniero dos Santos, who is and was a
MONTOYA | LOPEZ, P.L. 4960 SW 72nd Avenue, Suite 303 Miami, Florida 33155 Tel: 305-665-5353 Fax: 305-665-6130

3 of 8

legal resident of the state of New Jersey; and, k. Geisi Ferreira dos Santos, who is and was a legal resident of the state of New Jersey. 7. Defendant Continental Airlines, Inc. (hereinafter referred to as CONTINENTAL)

is a Delaware corporation with its headquarters located in Houston, Texas, doing business in Miami-Dade County, Florida. Continental Airlines, Inc., is a subsidiary of United Continental Holdings, Inc., a Delaware corporation with its headquarters located in Chicago, Illinois. 8. At all times material, CT Corporation System, 1200 S. Pine Island Road,

Plantation, Florida, 33324, is and was a Registered Agent of Continental Airlines, Inc. and is authorized to accept service of process pursuant to Fla. Stat. 48.091.

GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 9. On August 3, 2009, CONTINENTAL was the owner, lessee, operator and/or

entity in control of Continental Airlines Flight 128 which originated in Rio De Janiero (GIG), with final destination Houston, Texas (IAH) (hereinafter referred to FLIGHT 128). No intermediate stops were scheduled. 10. CONTINENTAL was the owner and/or operator of the subject aircraft, and

employer of the flight attendants on FLIGHT 128. 11. CONTINENTAL owned, operated, maintained, and/or otherwise controlled by

and through its agents or employees, acting within the course and scope of their employment, the subject aircraft and was responsible for the actions of the flight crew. 12. At approximately 4:30 am on August 3, 2009 the subject aircraft experienced
MONTOYA | LOPEZ, P.L. 4960 SW 72nd Avenue, Suite 303 Miami, Florida 33155 Tel: 305-665-5353 Fax: 305-665-6130

4 of 8

unannounced, sudden, and severe turbulence.

During this turbulence, several

passengers, including Plaintiffs, were violently tossed around the interior of the aircraft. 13. As a result of this turbulence, Plaintiffs to this action sustained diverse and

serious bodily injuries including, but not limited to, lacerations and bruising on the chest and abdomen, hand injuries including tenosynovitis and tendinitis, lower back pain, anxiety attacks, symptoms of Post-Traumatic Stress Disorder (PTSD), and closed-head injury. COUNT I CLAIM FOR DAMAGES UNDER THE MONTREAL CONVENTION 14. Plaintiffs re-allege all of the allegations contained in paragraphs 1 through 13 as

though they were fully set forth and incorporated herein. 15. Under the terms of the Montreal Convention the passenger(s) have no burden of

proof other than to establish the nature and extent of damages as a result of an incident while a passenger embarking, onboard, or disembarking on an international flight conducted by CONTINENTAL. CONTINENTAL cannot exclude or limit its liability for damages up to an amount of 100,000.00 Special Drawing Rights (SDR), which, as of the date of this Complaint, equals approximately $156,559.00 U.S. Dollars. (According to Continentals Contract of Carriage, the limit of its liability for damages is listed as 113,100.00 SDR, which, as of the date of this Complaint, equals approximately $177,068.23 U.S. Dollars.) 16. Plaintiffs suffered their respective injuries as passengers onboard FLIGHT 128

during the course of the flight. 17. The Montreal Convention explicitly permits courts to award plaintiffs litigation

costs and expenses and attorneys fees in excess of prescribed damages liability caps.
MONTOYA | LOPEZ, P.L. 4960 SW 72nd Avenue, Suite 303 Miami, Florida 33155 Tel: 305-665-5353 Fax: 305-665-6130

5 of 8

Plaintiffs reserve the right to move for litigation costs and/or attorneys fees. 18. To the extent that the amount of Plaintiffs damages exceed 100,000.00 SDR,

CONTINENTAL is liable due to the negligence or the wrongful acts or omissions of CONTINENTAL, its servants, or agents.

COUNT II CLAIM FOR DAMAGES UNDER NEGLIGENCE 19. Plaintiffs re-allege all of the allegations contained in paragraphs 1 through 18 as

though they were fully incorporated and set forth herein. 20. CONTINENTAL was under a duty to use reasonable care and/or exercise the

highest degree of care in the safety of its passengers during the course of the boarding, carrying, in-flight, or disembarking processes for the subject aircraft. 21. The Defendant, CONTINENTAL, breached its duty to use reasonable care and/or

exercise the highest degree of care and/or negligently and/or carelessly discharged its duties by, among other things: a. By failing to exercise reasonable care in the safety of its passengers during the flight process; b. By placing Plaintiffs/passengers in the position of immediate peril and risk of injuries; c. By failing to properly warn Plaintiffs of the hazardous conditions in the airspace; and/or d. By failing to maintain the stability and security of the passenger cabin area during the flight process. 22. The incident in question was not caused by any voluntary action or contribution
MONTOYA | LOPEZ, P.L. 4960 SW 72nd Avenue, Suite 303 Miami, Florida 33155 Tel: 305-665-5353 Fax: 305-665-6130

6 of 8

on the part of the Plaintiffs. 23. All acts and/or omissions on the part of the agents of the Defendant,

CONTINENTAL, that led to this incident and Plaintiffs injuries constitute negligence and were performed and/or omitted within the scope of, and in furtherance of, their agency. Thus, under the doctrine of Respondeat Superior, the Defendant is liable for any and all of its agents/employees acts or omissions. COUNT III DAMAGES 24. Plaintiffs re-allege all of the allegations contained in paragraphs 1 through 23 as

though they were fully set forth and incorporated herein. 25. As a result of the incident and of the previously described acts of the Defendant

Plaintiffs suffered bodily injuries. 26. As a result of the incident and of the previously described acts of the Defendant,

the Plaintiffs suffered mental injuries and mental anguish, and continue to suffer mental damages. 27. Further, the Plaintiffs suffered monetary losses including, but not limited to:

medical bills; loss of income; damage to clothing and personal effects; and, other financial losses, the full extent of all of which will be proven at the time of trial. 28. The Plaintiffs suffered and continue to suffer special and general damages

past, present, and future as a direct and proximate result of the aforementioned negligence of the Defendant.

PRAYER FOR RELIEF WHEREFORE, the Plaintiff prays for judgment against the Defendant for:
MONTOYA | LOPEZ, P.L. 4960 SW 72nd Avenue, Suite 303 Miami, Florida 33155 Tel: 305-665-5353 Fax: 305-665-6130

7 of 8

actual special and general damages sustained by the Plaintiff in amounts to be proven at trial, any and all other damages to which Plaintiff may be entitled under applicable law, pre-judgment and post-judgment interest as allowed by law, actual and reasonable attorney fees incurred in bringing this action, all reasonable and necessary costs incurred in bringing this action, and such other relief as the Court deems just and equitable.

DEMAND FOR JURY TRIAL The Plaintiffs demand trial by jury on all issues so triable.

DATED this 13th day of May, 2011.

Respectfully submitted, EDWARD MONTOYA, ESQ. MONTOYA | LOPEZ, P.L. 4960 Southwest 72nd Avenue, Suite 303 Miami, Florida 33155 Telephone: (305) 665-5353 Fax: (305) 665-6130 By:__s/ Edward Montoya______________ EDWARD MONTOYA, ESQUIRE Florida Bar No: 972649

MONTOYA | LOPEZ, P.L. 4960 SW 72nd Avenue, Suite 303 Miami, Florida 33155 Tel: 305-665-5353 Fax: 305-665-6130

8 of 8