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explaining that a plaintiff must respond with evidence only “if the defendant submits evidence contradicting an allegation in the complaint” (quoting MMI, Inc. v. Baja, Inc., 743 F.Supp.2d 1101, 1108 (D. Ariz. 2010))
Summary of this case from Brogdon v. Roman Catholic Archbishop of L. A.Opinion
No. CV-20-00362-TUC-JCH
2021-02-23
Radford FISHER, Plaintiff, v. QANTAS AIRWAYS LIMITED, Defendant.
Rohit Talwar, Talwar Law PLLC, Tucson, AZ, for Plaintiff. James Gary Linder, Jones Skelton & Hochuli PLC, Phoenix, AZ, Justin Miles Schmidt, Pro Hac Vice, Michelle A. Rahban, Pro Hac Vice, Scott David Cunningham, Pro Hac Vice, Condon & Forsyth LLP, Los Angeles, CA, for Defendant.
Rohit Talwar, Talwar Law PLLC, Tucson, AZ, for Plaintiff.
James Gary Linder, Jones Skelton & Hochuli PLC, Phoenix, AZ, Justin Miles Schmidt, Pro Hac Vice, Michelle A. Rahban, Pro Hac Vice, Scott David Cunningham, Pro Hac Vice, Condon & Forsyth LLP, Los Angeles, CA, for Defendant.
ORDER
John C. Hinderaker, United States District Judge
Before the Court is Specially Appearing Defendant Qantas Airways Ltd.’[s] Motion to Dismiss for Lack of Personal Jurisdiction and Plaintiff's Motion for Extension to Respond to Defendant's Motion to Dismiss and to Conduct Jurisdictional Discovery (Docs. 9, 13.) Both motions are fully briefed. (Doc. 14, 15, 16, 17.) The Court finds the motions suitable for disposition without oral argument and Defendant's request for oral argument will be denied. See FED. R. CIV. P. 78(b) ; Partridge v. Reich , 141 F.3d 920, 926 (9th Cir. 1998). As explained below, the Court will order the parties to brief whether the Court should transfer this matter pursuant to the federal transfer statute, 28 U.S.C. § 1631. Defendant's motion to dismiss will be held in abeyance pending that briefing. Plaintiff's request conduct jurisdictional discovery will be denied.
I. BACKGROUND
a. Procedural Background
On August 24, 2020, Plaintiff Radford Fisher (Plaintiff), an Arizona resident, filed his Complaint against Defendant Qantas Airways Limited (Qantas) seeking to recover for personal injuries sustained in a fall while deplaning a Qantas flight in Auckland, New Zealand in October 2018. (Doc. 1 at ¶¶ 2, 13, 15-25; Doc. 9 at 6, n. 1.) Plaintiff's claim is brought under a treaty of the United States, the Convention for the Unification of Certain Rules for International Carriage by Air (hereinafter, the "Montreal Convention" or "Convention"). (Doc. 1 at 2-3, ¶¶ 10-11.)
On December 14, 2020, Qantas filed its motion to dismiss for lack of personal jurisdiction. (Doc. 9.) On January 12, 2021, Plaintiff filed his request for an extension of time to respond to Defendant's motion and to conduct jurisdictional discovery. (Doc. 13.) Both motions are fully briefed. (Docs. 14, 15, 16, 17.)
b. Factual Background
On October 18, 2018, Plaintiff and his wife flew from Tucson, Arizona to San Francisco, California on United Airlines. (Doc. 1 at ¶ 15.) On October 20, 2018, they flew from San Francisco, California to Sydney, Australia and continued to Auckland, New Zealand on Qantas aircraft. Id. Because Plaintiff's wife needed wheelchair assistance, he and his wife boarded their flight in Sydney via a lift through the galley. (Doc. 10-1 at ¶ 8; Doc. 10-2 at ¶ 7.) According to Plaintiff, a flight attendant represented to them that upon their arrival in Auckland they would deplane using a wheelchair accessible jetway. (Doc. 1 at ¶ 18.) Contrary to the flight attendant's representation, Plaintiff alleges Qantas did not provide any assistance when they arrived in Auckland and, as a result, they had to descend stairs to deplane. Id. at ¶¶ 19-21. Plaintiff proceeded down the stairs with his wife behind him and with their two roll-on bags in tow. Id. at ¶ 22. As they neared the bottom of the stairs, they both fell. Id. at ¶ 23. Plaintiff landed on his left hip and hit his head on the tarmac. Id. He seeks damages in the amount of at least "113,100 Special Drawing Rights of the International Monetary Fund." Id. at ¶¶ 27-28.
"The Special Drawing Right is an international reserve asset created by the International Monetary Fund ("IMF") that can be exchanged for the currencies of IMF members." See Armstrong v. Hawaiian Airlines, Inc. , 416 F.Supp.3d 1030, 1040 n. 10 (D. Hawai'i 2019) (citation omitted).
c. Qantas’ Contacts with Arizona
Qantas is a corporation organized under the laws of Australia that provides international flights from the United States and foreign countries. (Doc. 1 at ¶¶ 3-4.) It provides for ticket purchases and operation of flights from the United States to New Zealand. Id. at ¶ 5. It is also a member of Oneworld, an airline alliance that allows member airlines to provide codeshare flights among Oneworld member airlines. (Id. at ¶ 6; Doc. 10-1 at ¶ 10.) As a member of Oneworld, Plaintiff claims that Qantas operates flights originating and terminating at "TUS." (Doc. 1 at ¶ 7.) According to Plaintiff, "Qantas regularly conducts business in Arizona through its own operations and through other air carriers that are members of [O]neworld." Id. at ¶ 9.
The Court presumes Plaintiff is referring to Tucson International Airport.
Qantas agrees that it is a member of Oneworld and contends that Oneworld partners are not subsidiaries, agents, or affiliates of Qantas, but are members of an alliance that allows member airlines to permit codeshare flights on member airlines’ aircraft. (Doc. 10-1 at ¶ 11.) According to Qantas's Head of Legal, Nicholas Brodribb (Brodribb), United Airlines is not a Oneworld member and American Airlines is a Oneworld member. Id. at ¶¶ 2, 12-13. Brodribb avows that at all relevant times, Qantas did not have any scheduled flights of its aircraft to or from any airport in Arizona. Id. at ¶ 5. It did not have any employees, offices, real estate, personal property, or bank accounts in Arizona. Id. at ¶ 6. It is not registered or authorized to do business in Arizona, does not maintain an agent for service of process in Arizona and does not pay taxes in Arizona. Id. at ¶ 7. None of the flight crew members for the flight Plaintiff took from Sydney, Australia to Auckland, New Zealand, are in Arizona. Id. at ¶ 9. Qantas avows that no documents or other information relevant to this case that is in its custody, control or possession are in Arizona. Id.
To rebut Qantas’ representation that it lacks contacts with Arizona, Plaintiff explains that he purchased his airline tickets through Katsinas Travel Consultants (Katsinas), a travel agency in Tucson, Arizona. (Doc. 14 at 4, ¶ 16; Doc. 14-1 at 34, ¶ 2-3, and 36, ¶ 12.) According to owner Scott Katsinas, Katsinas is an independent contractor for Nexion Travel Group ("Nexion"). (Doc. 14-1 at 35, ¶ 4.) Scott Katsinas claims that Nexion has numerous travel suppliers, one of which is Qantas, that authorize Katsinas to sell Qantas tickets to Arizona residents. Id. at 35, ¶¶ 5-6. Scott Katsinas's understanding is that Nexion's contract with Qantas expressly authorizes Katisnas to issue Qantas tickets and permits Nexion and its independent contractors, including Katsinas, to issue tickets in the same manner as Qantas itself. Id. at 35, ¶ 8. Scott Katsinas admits to not having seen the "exact contract" but offers, based upon his reading of Nexion's website, that Nexion "maintains ‘commissionable airline contracts’ with its suppliers, which [...] include[s] Qantas." (Doc. 14-1 at 35, ¶ 8.) Under Katsinas's arrangement with Nexion and Qantas, Nexion retains a commission and forwards the remainder of the payment to Qantas. Id. at 35, ¶ 9. Thereafter, Katsinas receives a commission directly from Nexion twice a month. Id. Scott Katsinas states that before 2020, he would issue one Qantas ticket per month to Arizona residents on average. Id. at 35, ¶ 10.
Scott Katsinas explains that Plaintiff bought tickets from Tucson, Arizona to San Francisco using "United mileage tickets." Id. at 36, ¶ 12. Katsinas issued "Qantas Business Class revenue tickets from SFO to New Zealand, via Sydney, through tickets issued by Nexion." Id. Plaintiff's return tickets were originally on a Qantas flight for November 5, 2018. Id. at 36, ¶ 13. However, Plaintiff ended up returning to the United States on November 2nd on an Air New Zealand flight from Queenstown, New Zealand to Auckland, New Zealand. Id. Then he flew on a Qantas flight from Auckland, New Zealand to Los Angeles, California and continued on an American Airlines flight from Los Angeles, California to Tucson, Arizona. Id.
Plaintiff also claims Qantas operates in Arizona through codeshare agreements with other airlines. (Doc. 14 at 11-14.) He offers as support for this claim unauthenticated website printouts from the Arizona Corporation Commission and American Airlines. See Doc. 14-1 at 68-71 (Arizona Corporation Commission printouts), and 73-74 (American Airlines website printouts). He points out that his return flight from Los Angeles, California to Tucson, Arizona was on American Airlines and that the ticket invoice reflects he and his wife's American Airlines’ frequent flyer numbers. Id. at 76-77, 79-80. Plaintiff relies on the apparent website information to claim that American Airlines’ frequent flyers can earn AAdvantage miles when flying on Qantas marketed and operated flights, as well as on Qantas codeshare flights operated by Oneworld carriers and affiliates. Id. at 83-86. He likewise relies on website information for his claim that Qantas frequent flyers can earn points when flying on American Airlines and that Qantas’ website refers to its relationship with American Airlines as a partnership. Id. at 90.
Qantas disputes that it has sold tickets through "agents," however, here, Brodribb states that Qantas does not have a direct contractual relationship with Nexion. (Doc. 16-1 at 2, ¶ 9.) Brodribb explains that Nexion, headquartered in Canada, has a large network of travel agents across the United States and Canada. Id. at ¶¶ 5-6. These travel agents purchase into the Nexion franchise and become Nexion authorized agents. Id. According to Brodribb, Nexion is a subsidiary of Travel Leaders Group and Tzell Travel Group (collectively, "Tzell"), both of which are headquartered in New York. Id. at ¶ 7.
Brodribb explains that during the relevant time frame, Qantas had a contract with Tzell, under which Tzell agents were authorized to access Qantas commissions, fares, and inventory. Id. at ¶ 8. Brodribb admits he has not seen the Tzell contract. Id.
II. THE MONTREAL CONVENTION CONFERS ONLY SUBJECT MATTER JURISDICTION
First and foremost, Plaintiff argues that Qantas’ motion to dismiss must be denied because the Montreal Convention confers both subject matter jurisdiction and personal jurisdiction over Qantas in this Court. (Doc. 14 at 1, 5-11.) This Court agrees that it has subject matter jurisdiction over this case under 28 U.S.C. § 1331 because Plaintiff's claim arises under a treaty of the United States, the Montreal Convention. See 28 U.S.C. § 1331 ; Doc. 1 at 2-3, ¶¶ 10, 11. As explained below, this Court rejects Plaintiff's argument that the Montreal Convention also confers personal jurisdiction over Qantas in Arizona.
The Montreal Convention covers "all international carriage of persons, baggage or cargo performed by aircraft for reward." Narayanan v. British Airways , 747 F.3d 1125, 1127 (9th Cir. 2014) (quoting the Montreal Convention). (internal quotations omitted). "Further, it provides the ‘exclusive basis for a lawsuit against an air carrier for injuries arising out of international transportation.’ " In re Air Crash at San Francisco, California, on July 6, 2013 , 2017 WL 3484643, at *3 (N.D. Cal. 2017) (quoting Kruger v. United Airlines, Inc. , 481 F.Supp.2d 1005, 1008 (N.D. Cal. 2007)).
The Convention requires a passenger to bring a damages action against an air carrier in one of five jurisdictions. In re Air Crash at San Francisco, California, on July 6, 2013 , 2017 WL 3484643, at *3. Article 33 of the Convention provides, in relevant part:
(1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either [1] before the court of the domicile of the carrier or of [2] its principal place of business, or [3] where it has a place of business through which the contract has been made, or [4] before the court at the place of destination.
(2) In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in [5] the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier's aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.
Id. (quoting Montreal Convention, art. 33(1), (2).) (brackets in In re Air Crash at San Francisco ). "United States courts lack subject matter jurisdiction over a passenger's claims unless the passenger can show that at least one of the five territories [...] is in the United States." Id. (citing Hosaka v. United Airlines, Inc. , 305 F.3d 989 (9th Cir. 2002) ; Harris v. Polskie Linie Lotnicze , 820 F.2d 1000, 1002 (9th Cir. 1987) ; Hornsby v. Lufthansa German Airlines , 593 F.Supp.2d 1132, 1135-36 (C.D. Cal. 2009) ). (emphasis added). See also , Burton v. Air France — KLM , 2020 WL 7212566, at *7 (D. Or. Dec. 7, 2020) (slip copy) ("[T]his court concludes that Article 33 of the Montreal Convention concerns national jurisdiction in the ‘treaty sense,’ whether that is understood as forum selection or subject matter jurisdiction. This Court's constitutional exercise of personal jurisdiction over Defendant in this case is a separate question not answered—let alone conferred—by the Montreal Convention."); Kim v. Korean Air Lines Co. , 2021 WL 129083, at *3 (D.N.J. Jan. 14, 2021) ("But courts ‘have consistently concluded that the Montreal Convention affords subject matter jurisdiction, not personal jurisdiction.’ " citing Royal & Sun All. Ins. PLC v. UPS Supply Chain Sols., Inc. , 2018 WL 1888483, at *3 (S.D.N.Y. Apr. 5, 2018) ).
Despite the foregoing, Plaintiff argues the Convention's fifth jurisdiction has "more teeth than only providing for subject matter jurisdiction." (Doc. 14 at 6.) His argument hinges on his interpretation of the phrase "territory of a State Party" as used in Article 33(2). He contends that a "State Party" is one of the 50 states of the United States of America. Id. at 7-8.
Contrary to Plaintiff's assertion, a "State Party" is a country or nation state that has ratified the Montreal Convention. Rather than conferring personal jurisdiction over a foreign airline in all 50 states of the United States, the Montreal Convention, rather straightforwardly, confers subject matter jurisdiction in the territory of a State Party to the Convention. In this case, that is the territory of the United States of America. See e.g., Avalon Techs., Inc. v. EMO-Trans, Inc. , 2015 WL 1952287, at *5 (E.D. Mich. Apr. 29, 2015) ("The Convention ‘confers jurisdiction on the courts of a nation-state, rather than a particular court within that nation-state.’ ")
See International Civil Aviation Organization, A United National Specialized Agency, https://www.icao.int/secretariat/legal/List% 20of% 20Parties/Mtl99_EN.pdf, (last visited February 17, 2021), identifying 137 "State Parties" that have ratified the Convention.
The Court is equally unpersuaded by Plaintiff's argument that legislative materials on the Convention support a determination that the fifth jurisdiction confers personal jurisdiction over a foreign airline in the courts of a plaintiff's "principle and permanent residence." (Doc. 14 at 7-9.) This argument labors under a misunderstanding of the fifth jurisdiction's use of the phrase "principal and permanent residence." For example, in Hornsby , 593 F.Supp.2d at 1138-39, relied upon by Plaintiff, the district court noted that negotiations between certain State Parties led up to the final language of the fifth jurisdiction and held:
In reviewing the little that has been presented, the Court finds nothing dispositive. It is true that the question of whether to adopt a ‘fifth jurisdiction’ was heavily debated. [...] But that debate does not seem to have centered on the difference between ‘domicile’ and ‘residence.’ Rather, there was opposition to the idea of basing jurisdiction solely on a passenger's nationality. [...] Led by France, this opposition stemmed from the reluctance of developing countries whose carriers conducted no operations to or in the United States to agree that such a carrier should be subjected to jurisdiction in the United States any time a U.S. citizen was injured while traveling on one of the carriers’ planes. [...] Thus, the final compromise reached to include a fifth jurisdiction specifically address[ing] this concern, extending jurisdiction only over those carriers who ‘operate services’ within a jurisdiction.
Hornsby , 593 F.Supp.2d at 1138. (citation omitted). In that case, the plaintiff was living in Germany but maintained indicia of residency in California. The district court determined that plaintiff intended to return to the United States despite living in Germany at the time of her injuries. Id. at 1139. Hornsby denied Lufthansa's motion to dismiss for lack of subject matter jurisdiction concluding that plaintiff's "principal and permanent residence" was California, rather than Germany, for purposes of the Montreal Convention. Id. at 1132-33, 1139-40.
The Court is equally unpersuaded by Plaintiff's reliance on Choi v. Asian Airlines, Inc. , 2015 WL 394198 (N.D. Cal. 2015). The plaintiff in Choi was a Korean national, had established a permanent residence there, and never relinquished that permanent residence. Id. at *4. The district court determined that the United States was never the plaintiff's principal and permanent residence under the fifth jurisdiction's "principal and permanent residence" language and, as such, it lacked subject matter jurisdiction to hear the case. Id.
Here, there is no issue as to Plaintiff's "principal and permanent residence." Choi and Hornsby are of no help to Plaintiff. In sum, this Court rejects Plaintiff's argument that the Convention's fifth jurisdiction confers personal jurisdiction over Qantas in Arizona.
III. THIS COURT DOES NOT HAVE PERSONAL JURISDICTION OVER QANTAS
Having determined the Convention does not confer personal jurisdiction over Qantas in Arizona, this Court must determine whether Plaintiff has established that it has personal jurisdiction over Qantas. As explained below, Plaintiff has not met his burden.
a. Legal Standard for Establishing Personal Jurisdiction
The plaintiff bears the burden of establishing personal jurisdiction. See, e.g., Ziegler v. Indian River County , 64 F.3d 470, 473 (9th Cir. 1995) (citing Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co. , 907 F.2d 911, 912 (9th Cir. 1990) ). In the absence of an evidentiary hearing, a "plaintiff need only make a prima facie showing of jurisdictional facts" to meet his burden of establishing jurisdiction. Sher v. Johnson , 911 F.2d 1357, 1361 (9th Cir. 1990). Under this prima facie burden of proof, the plaintiff need only establish facts that if true would support personal jurisdiction over the defendant. Travelers Co. & Sur. Co. of America v. Telstar Const. Co., Inc. , 252 F.Supp.2d 917, 929 (D. Ariz. 2003) (citations omitted). "However, if the defendant submits evidence contradicting an allegation in the complaint, plaintiff must provide evidence to support its jurisdictional allegation; plaintiff may not simply fall back on conclusions of law stated in the complaint." MMI, Inc. v. Baja, Inc. , 743 F.Supp.2d 1101, 1108 (D. Ariz. 2010) (citations omitted).
To establish personal jurisdiction, Plaintiff must show that (1) Arizona's long-arm statute confers jurisdiction over Defendants, and (2) the exercise of jurisdiction comports with principles of due process. Omeluk v. Langsten Slip & Batbyggeri A/S , 52 F.3d 267, 269 (9th Cir. 1995). Arizona's long-arm statute permits this Court to exercise personal jurisdiction to the maximum extent permitted by the United States Constitution. See ARIZ. R. CIV. P. 4.2(a) ; MMI, Inc. , 743 F.Supp.2d at 1108. Accordingly, jurisdiction in this case need only comport with the principles of federal due process which require that a nonresident defendant have sufficient minimum contacts with the forum state such that the exercise of jurisdiction "does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotations marks omitted). A court may exercise either general or specific jurisdiction over a non-resident defendant. Sher , 911 F.2d at 1361.
b. General Jurisdiction
General jurisdiction exists where the nonresident defendant's activities within a state are "substantial" or "continuous and systematic." Daimler AG v. Bauman , 571 U.S. 117, 126-27, 134 S. Ct. 746, 754, 187 L.Ed.2d 624 (2014) ; Data Disc , 557 F.2d at 1287. The "paradigm bases" for general jurisdiction over a corporation are at their place of incorporation and principal place of business. BNSF Ry. Co. v. Tyrell , ––– U.S. ––––, 137 S.Ct. 1549, 1558, 198 L.Ed.2d 36 (2017) (quoting Daimler , 134 S.Ct. at 760 ). However, "in an exceptional case," a corporation's operations in another forum "may be so substantial and of such nature as to render the corporation at home in that State." Id. (quoting Daimler , 134 S.Ct. at 761 n. 19 ) (internal quotations omitted). However, the Supreme Court has cautioned, "a corporation that operates in many places can scarcely be deemed at home in all of them." Daimler , 134 S.Ct. at 761 n. 20.
Plaintiff argues the Court has personal jurisdiction over Qantas through its codeshare operations and travel agent agreements. (Doc. 1 at ¶ 14; Doc. 13 at 3-6.) This Court addresses each contention in seriatim.
1. Codeshare Operations
Plaintiff argues that "... due to code-share partners and the vastness of the United States’ aviation relations with countries and carriers around the world, virtually all American citizens who are injured or killed in airline accidents should be able to obtain access to U.S. courts through [the Convention's] fifth basis of jurisdiction." (Doc. 13 at 3.) (internal punctuation omitted). Of course, Plaintiff is correct that Article 33 of the Convention provides for subject matter jurisdiction in the United States Courts over claims against foreign based airlines, like Qantas, provided that the fifth jurisdiction's requirements are met. Plaintiff is incorrect, however, that the Convention's fifth jurisdiction confers personal jurisdiction over foreign based airlines where the plaintiff resides. See pp. 5-8, supra. Plaintiff offers no argument beyond the above-mentioned assertion in support of his contention concerning Qantas’ codeshare operations.
Qantas admits that it operates under codeshare agreements and explains that, in this case, only Plaintiff's return flight on American Airlines was a codeshare flight. Relying upon Schaetzl-Saubert v. Turkish Airlines, Inc. , 2:17-cv-00854-MMD-VCF, 2018 WL 1189266, at *3 (D. Nev. Mar. 7, 2018), Qantas argues mere operation of codeshare flights is insufficient for it to be considered at home in Arizona. In Schaetzl-Saubert , the district court rejected the plaintiff's argument that the defendant's "interactive website and code-share arrangements with other airlines that fly directly to and from Nevada" made the defendant's forum contacts "continuous and systematic." Schaetzl-Saubert , 2:17-cv-00854-MMD-VCF, 2018 WL 1189266, at *3. Relying on Daimler , the district court explained that the " ‘continuous and systematic’ standard under the general jurisdictional analysis has been qualified to mean that those contacts must make the foreign corporation essentially at home in the forum state." Id. (citing Daimler , 134 S. Ct. at 754 ). Applying this standard, the district court held that having arrangements to fly from cities within the United States to Las Vegas was insufficient to make the defendant foreign airline "essentially at home" in the state of Nevada. Id.
Plaintiff did not address Schaetzl-Saubert. Considering the holding in Schaetzl-Saubert , which applied the Daimler personal jurisdiction standard, Qantas’ mere operation under codeshare agreements is insufficient for this Court to find that Qantas is essentially at home in Arizona.
2. Travel Agent Agreements
Plaintiff argues that personal jurisdiction over foreign airlines—like Qantas—can be established through express contracts with agents that are authorized to sell a foreign airline's tickets to forum state residents. (Doc. 13 at 3-4.) Plaintiff argues that since he bought his Qantas airline tickets from Katsinas —a travel agent that he contends has some type of contractual relationship with Qantas—Qantas is subject to general jurisdiction in Arizona. He relies upon Selke v. Germanwings GmbH , 261 F.Supp.3d 645, 654 (E.D. Va. 2017), Vergara v. Aeroflot , 390 F.Supp. 1266, 1269 (D. Neb. 1975), and Mohler v. Dorado Wings, Inc. , 675 S.W.2d 404, 406-07 (Ky. Ct. App. 1984). (Doc. 13 at 3-4; Doc. 14 at 13-14.)
Qantas lodges a foundation objection to the portions of Scott Katsinas’ testimony related to Nexion's alleged contractual relationship with Qantas. (Doc. 15 at 17-18.) The Court sustains Qantas’ objection. The Court further notes that the legislative materials and the American Airlines, Arizona Corporation Commission, and Qantas website printouts proffered by Plaintiff are unauthenticated. However, as set forth herein, even considering Plaintiff's proffered evidence, Plaintiff has failed to carry his burden of establishing that Qantas is subject to personal jurisdiction.
Except for Selke , the cases relied upon by Plaintiff were decided before the United States Supreme Court decision in Daimler . Plaintiff's reliance on Selke is conclusory in that he asserts, without any analysis, that "[w]here one uses an agent in a state (whether it be a travel agent or other airline), it is as if they themselves are transacting business in the state." (Doc. 13 at 5.) Selke is also factually distinguishable from this case. In Selke , Germanwings had entered directly into ticketing agreements with United Airlines that expressly authorized United Airlines to sell its tickets to Virginia residents on its behalf. 261 F.Supp.3d at 655. The district court determined that Germanwings had an express agency agreement with United Airlines to sell tickets on its behalf and was paid a commission when it sold those tickets in Virginia. Id. Thus, the court concluded that "when Plaintiffs purchased tickets from United for carriage on Germanwings Flight 9525, Germanwings was transacting business in Virginia." Id. at 655-56.
Selke relies on the two other cases cited by Plaintiff, Vergara and Mohler . See Selke , 261 F.Supp.3d at 645.
Here, however, Plaintiff's departure flight from Tucson, Arizona was on United Airlines and was purchased with "United mileage tickets." (Doc. 14-1 at 36, ¶ 12.) Plaintiff as not established that travel agent Scott Katsinas was involved in Plaintiff's purchase of these tickets. See Id. ("For Dr. Fisher's trip to New Zealand in October 2018, Dr. Fisher flew with his wife Pat from Tucson to San Francisco with United Mileage tickets. From there, [Katsinas] issued Qantas Business Class revenue tickets from SFO to New Zealand, via Sydney, through tickets issued by Nexion.").
Further distinguishing this case from Selke is that Qantas and Katsinas do not have a direct contractual relationship. Rather, Qantas has a contract with Tzell under which Tzell authorized agents were authorized to access Qantas inventory. (Doc. 15-1 at 2, ¶ 8.) According to Qantas, Nexion and its authorized agents are listed in the Tzell/Qantas contract. Id. Scott Katsinas admits being under contract with Nexion to issue Qantas tickets during the relevant time.
This Court finds that Qantas is not essentially at home in Arizona by virtue of its travel agent agreements.
c. Qantas is Not Subject to Specific Jurisdiction in Arizona
Having determined that Qantas is not subject to general jurisdiction in Arizona, the Court turns to whether Plaintiff has established that it is subject to specific jurisdiction here. Plaintiff argues Qantas is subject to specific jurisdiction in Arizona for the same reasons he contends that it is subject to general jurisdiction—codeshare and travel agent agreements. (Doc. 14 at 11-14.)
1. Specific Jurisdiction Test
Courts in the Ninth Circuit employ a three-part test to assess whether a defendant has sufficient contacts with the forum state to be subject to specific personal jurisdiction:
(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.
Picot v. Weston , 780 F.3d 1206, 1211 (9th Cir. 2015) (citing Schwarzenegger v. Fred Martin Motor Co. , 374 F.3d 797, 800 (9th Cir. 2004) ). The plaintiff has the burden of proving the first two prongs. Id. at 1211-12 (citing CollegeSource, Inc. v. AcademyOne, Inc. , 653 F.3d 1066, 1076 (9th Cir. 2011) ). "If he does so, the burden shifts to the defendant to ‘set forth a compelling case that the exercise of jurisdiction would not be reasonable.’ " Id. at 1212 (citing CollegeSource, Inc. , 653 F.3d at 1076 (quoting Burger King Corp. v. Rudzewicz , 471 U.S. 462, 477, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) )) (internal quotations omitted).
"[T]he exact form of [the court's] jurisdictional inquiry depends on the nature of the claim at issue." Id. at 1212. "For claims sounding in contract, [the court applies] a purposeful availment analysis and ask[s] whether a defendant has purposeful avail[ed] [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Id. (quoting Schwarzenegger , 374 F.3d at 802 (quoting Hanson v. Denkla , 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) )) (internal quotations omitted). "For claims sounding in tort, [the court] instead applies a ‘purposeful direction’ test and look[s] to evidence that the defendant has directed his actions at the forum state, even if those actions took place elsewhere." Id. (citing Schwarzenegger , 374 F.3d at 802-03 ).
2. Purposeful Direction and Arising Out Of
"The first two elements are often discussed in tandem ... because it is not enough for a defendant to have general contacts with a state—the contacts must relate to the claim." Kim , 2021 WL 129083, at *3. Here, Plaintiff is suing for injuries sustained in a fall, i.e. , tort damages. However, Plaintiff discusses the test for specific jurisdiction with respect to contracts. See Doc. 14 at 12 ("With regard to contracts, jurisdiction is permitted when there is ‘some activity on the part of the defendant either before or after the execution of the contract or some performance of the contract within the borders of the forum state."). His argument goes that he purchased his tickets though Katsinas. Since "Katsinas is an independent contractor for Nexion," and since Nexion "appears to maintain a commissionable contract with Qantas," then "there is sufficient minimum contacts such that Qantas is subject to jurisdiction in Arizona." Id. at 14.
Qantas was not involved in Plaintiff's travel from Arizona to California to begin the trip to Australia. Neither was Katsina. Plaintiff bought his departure tickets with "United mileage tickets." Although Plaintiff returned from New Zealand to Los Angeles on a codeshare flight on American Airlines, Plaintiff has neither established that Katsinas purchased these return flight tickets nor that Katsinas and Qantas have a contractual relationship. (Doc. 14-1 at 36, ¶ 13.) Plaintiff has not established that Qantas "purposefully directed" any contacts towards Arizona residents. See Burton , 2020 WL 7212566, at *6 ("Plaintiff does not assert that Delta was the conduit through which she purchased her Air France ticket. Accordingly, this Court does not find that the agreements between Defendant and Delta provide a basis for Defendants[’] purposeful availment of the laws of Oregon, or at least any availment sufficiently ‘related’ to Plaintiff's claim to survive prong two of the Ninth Circuit test.").
Plaintiff's return on a codeshare flight with American Airlines is insufficient to support a determination that Qantas is subject to specific jurisdiction in Arizona. Plaintiff's injury occurred while deplaning a Qantas flight in New Zealand. In other words, by the time Plaintiff flew home on American he was already injured. Specific jurisdiction is "tethered to a relationship between the forum and the claim." See Holland Am. Line Inc. v. Wartsila N. Amer., Inc. , 485 F.3d 450, 460 (9th Cir. 2007). In Holland , the court of appeals held that where the plaintiff's injury occurred in Tahiti, not Washington, there was no relationship between the forum and the plaintiff's claim. Id. Similarly, here, there is no relationship between Arizona and Plaintiff's injury in New Zealand; Plaintiff's claim does not "arise out of" Qantas's relationship with Arizona.
Plaintiff's reliance on website printouts from the Arizona Corporation Commission, American Airlines, and Qantas do not convince the Court that the exercise of specific jurisdiction over Qantas would be proper. "Courts do not give much weight to connections unrelated to a plaintiff's claim in their evaluation of specific jurisdiction." Burton , 2020 WL 7212566, at *4. As discussed above, Plaintiff was already injured by the time he flew home on American Airlines. The American Airlines and Arizona Corporation Commission website printouts carry little weight. Courts in the Ninth Circuit "have consistently held that a mere web presence is insufficient to establish [specific] personal jurisdiction[.]" Holland Am. Line Inc. , 485 F.3d at 460. Accordingly, the Court also gives little weight to what is purportedly contained on Qantas’ website.
3. Reasonableness of the Exercise of Jurisdiction
"An unreasonable exercise of jurisdiction violates the Due Process Clause even if the ‘purposeful availment’ and ‘arising out of’ requirements of the specific jurisdiction test are satisfied." Travelers Cas. & Sur. Co. of America , 252 F.Supp.2d at 932 (quoting Int'l Shoe , 326 U.S. at 316, 66 S.Ct. 154 ). A plaintiff's failure to satisfy the purposeful availment prong and arising out of prong eliminates the presumption that exercise of jurisdiction over a defendant is reasonable. Travelers Cas. & Sur. Co. of America, 252 F.Supp.2d at 935 (citing Sher , 911 F.2d at 1364 ) (additional citation omitted). "Therefore, the burden of proof remains on [the plaintiff]." Id.
Plaintiff has failed to meet his burden of establishing that the first two prongs of the specific jurisdiction test are met. Thus, the burden of proof on the reasonableness prong remains on him. In this circuit, district courts consider seven factors in determining whether the exercise of specific jurisdiction is reasonable: (1) the extent of the defendant's purposeful interjection into the forum state's affairs; (2) the burden on the defendant of defending in the forum; (3) the extent of conflict with the sovereignty of the defendant's state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the form to the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum. Terracom v. Valley National Bank , 49 F.3d 555, 561 (9th Cir. 1995) (citing Core-Vent , 11 F.3d at 1487-88.).
Plaintiff claims Qantas "does not appear to dispute that the exercise of jurisdiction is reasonable or that it will endure any hardship litigating in Arizona, especially with four attorneys from Phoenix and Los Angeles representing it." (Doc. 14 at 14.) Plaintiff's allegation concerning reasonableness is insufficient for the Court to conclude that the exercise of jurisdiction over Qantas would be reasonable.
In sum, Plaintiff has failed to establish that Qantas is subject to specific jurisdiction in Arizona.
IV. JURISDICTIONAL DISCOVERY AND FED. R. CIV. P. 4(k)(2)
Relying on Rules 6(b), 56(f), FED. R. CIV. P ., and LRCiv 7(j), 7.3, and 12.1(b), Plaintiff asks for an extension of time to take jurisdictional discovery. (Doc. 13.) Qantas argues these rules do not provide a basis for allowing Plaintiff to conduct jurisdictional discovery. (Doc. 15 at 5.) Plaintiff also seeks to establish personal jurisdiction over Qantas pursuant to Rule 4(k)(2), Fed. R. Civ. P. (Doc. 13 at 5.) Qantas argues this rule does not provide grounds for personal jurisdiction in Arizona because Plaintiff cannot satisfy the requirement that it is not subject to jurisdiction in any state's court of general jurisdiction. (Doc. 16 at 14.) Qantas admits that it is subject to personal jurisdiction in some state in the United States but decries that it is not its burden to show Plaintiff where it is subject to personal jurisdiction in the United States. (Doc. 15 at 17; Doc. 16 at 14.)
a. Plaintiff Cannot Establish Jurisdiction Under Rule 4(k)(2)
Rule 4(k), Fed. R. Civ. P., provides:
(k) TERRITORIAL LIMITS OF EFFECTIVE SERVICE .
...
(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal law, serving a summons or filing a waiver of service established personal jurisdiction over a defendant if:
(A) the defendant is not subject to jurisdiction in any state's court of general jurisdiction; and
(B) exercising jurisdiction is consistent with the United States Constitution and laws.
FED. R. CIV. P. 4(k)(2). To establish personal jurisdiction under Rule 4(k)(2), the claim against the defendant must first arise under federal law. N2 Packaging Systems, LLC v. N2 Pack Canada Inc. , 2:19-cv-02351-PHX-NVW, 2020 WL 2512786, at *5 (D. Ariz. May 15, 2020) (slip copy) (citing Pebble Beach Co. v. Caddy , 453 F.3d at 1151, 1159 (9th Cir. 2006) ). "Second, the defendant must not be subject to the personal jurisdiction of any state court of general jurisdiction." Id. (quoting Pebble Beach Co. , 453 F.3d at 1159 ). "Third, the federal court's exercise of personal jurisdiction must comport with due process." N2 Packaging Systems, LLC , 2020 WL 2512786, at *5 (quoting Pebble Beach Co. , 453 F.3d at 1159 ).
Here, Plaintiff's claim arises under the Montreal Convention, a treaty, rather than federal law. The first criteria required to establish jurisdiction under Rule 4(k)(2) is not satisfied. See Getz v. Boeing Co. , 654 F.3d 852, 859-60 (9th Cir. 2011) (collecting cases and holding that jurisdiction under Rule 4(k)(2) is limited to substantive federal law claims or claims that find root in a federal source).
b. Jurisdictional Discovery
A district court may allow discovery to aid it determining whether it has personal jurisdiction over a defendant. See Data Disc , 557 F.2d at 1285 n. 1 (citing Wells Fargo & Co. v. Wells Fargo Express Co. , 556 F.2d 406, 430 n. 24 (9th Cir. 1977) ). Plaintiff claims that Qantas has at least one employee in Arizona (Stephanie Williams) and asserts he should be permitted to take jurisdictional discovery presumably to learn if there are any other Qantas employees in Arizona. (Doc. 13 at 5-6.) Qantas explains that Ms. Williams was an employee of Qantas from November 2012 through July 2020 and was based out of its Los Angeles office but was permitted to work remotely from her home in Prescott, Arizona and that she was the only Qantas remote worker in Arizona. (Doc. 15-1 at 2-3, ¶¶ 11-15.)
Plaintiff did not respond to Qantas’ assertion that Ms. Williams was the only remote worker in Arizona. The Court will deny Plaintiff's jurisdictional discovery request. See MMI, Inc., 743 F.Supp.2d at 1113 (denying jurisdictional discovery where plaintiff failed to rebut declaration denying jurisdictional allegations). Additionally, although the Court has discretion to allow jurisdictional discovery to help it determine whether it has personal jurisdiction over a defendant, it will not exercise its discretion to compel Defendant to admit where it is subject to jurisdiction because it has already determined that it does not have jurisdiction over Qantas.
As mentioned above, Qantas admits being subject to personal jurisdiction in some state in the United States but argues it does not have the burden to identify the state where it is subject to personal jurisdiction. Defendant is correct that it is the plaintiff's burden to establish personal jurisdiction. However, if the requirements of Rule 4(k)(2), Fed. R. Civ. P . , are otherwise satisfied, when a defendant contends that he cannot be sued in the forum state and refuses to identify any other where suit is possible, then the federal court is entitled to use Rule 4(k)(2) to establish jurisdiction over the defendant. See N2 Packaging Systems, LLC , 2020 WL 2512786, at *5. As explained above, the Court cannot invoke Rule 4(k)(2) in this case because the first requirement of that rule is not met.
V. TRANSFER PURSUANT TO 28 U.S.C. § 1631
When the court in which a civil action is filed "finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action ... to any other such court ... in which the action or appeal could have been brought at the time it was filed or noticed ...." Ayasli v. Korkmaz , No. 19-CV-183-JL, 2020 WL 4287923, at *20 (D.N.H. July 27, 2020), on reconsideration , No. 19-CV-183-JL, 2020 WL 5879341 (D.N.H. Oct. 2, 2020) (quoting 28 U.S.C. § 1631 ). The federal transfer statute encompasses both a lack of personal jurisdiction and a lack of subject matter jurisdiction. Federal Home Loan Back of Boston v. Moody's Corp. , 821 F.3d 102, 114, (1st Cir. 2016), abrogated on other grounds by, Lightfoot v. Cendant Mortg. Corp. , ––– U.S. ––––, 137 S.Ct. 553, 196 L.Ed.2d 493 (2017).
An action is "transferrable" when three conditions have been met. Rodriguez-Roman v. I.N.S. , 98 F.3d 416, 424 (9th Cir. 1996). "First, the transferee court must have been able to exercise its jurisdiction" on the date the action was filed. Id. (quoting Kolek v. Engen , 869 F.2d 1281, 1284 (9th Cir. 1989) ). "Second, the transferer court must lack jurisdiction." Id. (quoting Kolek , 869 F.2d at 1284 ). "Third, the transfer must serve the interests of justice." Id. (quoting Kolek , 869 F.2d at 1284 ). Congressional intent is clear: " ‘a case mistakenly filed in the wrong court [should] be transferred as though it had been filed in the transferee court on the date on which it was filed in the transferor court.’ " Id. (quoting Alexander v. Comm'r of Internal Revenue , 825 F.2d 499, 501 (D.C. Cir. 1987)) (additional citation omitted).
Regarding § 1631 ’s first condition, Qantas admits that it is subject to personal jurisdiction in some court in the United States but has not identified the court. (Doc. 15 at 17; Doc. 16 at 14.) Regarding the second condition, this Court has determined that it lacks personal jurisdiction over Qantas. Regarding the third condition, it appears that transfer will serve the interest of justice. For instance, transfer will normally be in the interest of justice, because "dismissal of an action that could be brought elsewhere is ‘time-consuming and justice-defeating.’ " See Cruz-Aguilera v. I.N.S. , 245 F.3d 1070, 1074 (9th Cir. 2001) (quoting Miller v. Hambrick , 905 F.2d 259, 262 (9th Cir. 1990) ).
Because the Court is unable to determine whether all three requirements for transfer are met on the record before it, the parties will be ordered to brief whether this action may be transferred to another district court in the United States pursuant to 28 U.S.C. § 1631. And, if so, to which jurisdiction the case should be transferred. The parties are encouraged to discuss the matter and, if deemed appropriate and agreeable, submit a stipulation and form of order agreeing to transfer venue to another district court.
VI. CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED HOLDING IN ABEYANCE Specially Appearing Defendant Qantas Airways Ltd.’[s] Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 9) while the Court considers transfer of this action pursuant to 28 U.S.C. § 1631. The parties are ORDERED to file simultaneous briefs of not more than five (5) pages in length on whether the Court should transfer this action to another district court in the United States pursuant to 28 U.S.C. § 1631 by Friday, March 19, 2021 . Plaintiff's motion (Doc. 13) is DENIED .