United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.
Erwin-Simpson alleges that she was injured on a flight from
Kuala Lumpur to Phnom Penh operated by the Malaysia-based
airline AirAsia Berhad (“AirAsia”). Erwin-Simpson
and her husband have sued AirAsia and its affiliate, AirAsia
X Berhad (“AirAsia X”), pursuant to the Montreal
Convention, a multilateral treaty governing liability for
injury suffered in international air travel. Each airline
moves to dismiss for lack of both subject matter and personal
jurisdiction. For the reasons explained below, the Court will
grant the motions and dismiss the case.
to her complaint, in March 2016, Mary Erwin-Simpson took an
AirAsia flight from Kuala Lumpur, Malaysia to Phnom Penh,
Cambodia. During the flight, a flight attendant spilled
boiling water on her, causing a host of physical and
emotional injuries, as well as the cancellation of the
remainder of her planned trip. Compl. ¶¶ 10-14.
and her husband Kevin have sued AirAsia and its affiliate,
AirAsia X. Id. ¶¶ 5-6. According to
uncontested declarations submitted by corporate
representatives from both carriers, AirAsia is a low-cost
Malaysian airline that serves destinations in Asia.
Declaration of Soh Hsin Yee (“Yee Decl.”), Mot.
Dismiss Ex. A ¶ 4. It does not operate any flights to
the United States. Id. Nor does it maintain any
“offices, locations[, or] terminals” in the
United States or its territories. Id. ¶ 3.
AirAsia X, in turn, is an “independent affiliate”
of AirAsia that operates long-haul flights throughout Asia,
Australia, New Zealand, and the Middle East. Declaration of
Francis Bateman (“Bateman Decl.”), Mot. Dismiss
Ex. B ¶¶ 3-4. While it did not operate flights to
the United States at the time of Ms. Erwin-Simpson's
alleged injuries, AirAsia X currently provides service to and
from Honolulu, Hawaii. Id. ¶ 4.
seeks damages under the Montreal Convention, a self-executing
treaty that governs numerous aspects of international air
travel. See Convention for the Unification of
Certain Rules for International Carriage by Air, May 28, 1999
(“Montreal Convention”), reprinted in S.
Treaty Doc. No. 106-45 (2000); see also Press
Release, U.S. Dep't of State, “Entry Into Force of
the 1999 Montreal Convention” (Nov. 4, 2003). Her
husband seeks damages for loss of consortium.
Montreal Convention was designed to modernize and consolidate
the law of international air travel. The treaty provides the
sole remedy for personal injury and property damage on
international flights between signatory States. See
Montreal Convention, arts. 1(2), 17. As a treaty, it
satisfies federal question jurisdiction. See U.S.
Const. art. VI, cl. 2; Best v. BWIA W. Indies Airways
Ltd., 581 F.Supp.2d 359, 362 (E.D.N.Y. 2008). The
Convention therefore confers subject matter jurisdiction on
this Court for the claims it encompasses.
have brought their claims under Article 17 of the Convention,
which provides that a “carrier is liable for damage
sustained in case of . . . bodily injury of a passenger upon
condition only that the accident which caused the . . .
injury took place on board the aircraft[.]” Montreal
Convention, art. 17(1). The airlines have moved to dismiss
the case for lack of subject matter jurisdiction, lack of
personal jurisdiction, and failure to state a claim in regard
to Mr. Simpson's loss of consortium claim. Plaintiffs
oppose that motion, which is ripe for the Court's
Standard of Review
evaluating a motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1),
a court must “assume the truth of all material factual
allegations in the complaint and construe the complaint
liberally, granting plaintiff[s] the benefit of all
inferences that can be derived from the facts alleged.”
Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139
(D.C. Cir. 2011) (citations omitted). But a court need not
accept inferences unsupported by facts alleged in the
complaint, nor must it accept plaintiffs' legal
conclusions. See, e.g., Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Federal
courts are courts of limited jurisdiction and the law
presumes that “a cause lies outside this limited
jurisdiction.” Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994). To defeat a 12(b)(1)
motion, plaintiffs must show “by a preponderance of the
evidence that the Court has subject matter
jurisdiction[.]” Biton v. Palestinian Interim
Self-Gov't Auth., 310 F.Supp.2d 172, 176 (D.D.C.
defeat a motion to dismiss for lack of personal jurisdiction
under Federal Rule of Civil Procedure 12(b)(2), meanwhile,
“plaintiff[s] bear the burden of making a prima
facie showing that the Court has personal jurisdiction
over the defendant.” Bigelow v. Garrett, 299
F.Supp.3d 34, 40-41 (D.D.C. 2018) (citation omitted). They
“must provide sufficient factual allegations, apart
from mere conclusory assertions, to support the exercise of
personal jurisdiction over the defendant.” Howe v.
Embassy of Italy, 68 F.Supp.3d 26, 29 (D.D.C. 2014). The
Court “may consider materials outside the pleadings in
deciding whether to grant a motion to dismiss for lack of
jurisdiction.” Jerome Stevens Pharm., Inc. v. Food
& Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005).
Subject Matter Jurisdiction as to AirAsia X
Court begins with AirAsia X's contention that the Court
lacks subject matter jurisdiction over Erwin-Simpson's
claim against it because it was not the carrier on which she
was injured. Recall that the Montreal Convention provides
that a “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[.]” Montreal Convention, art.
interpreting the Montreal Convention's predecessor, the
Warsaw Convention,  the D.C. Circuit explained that
“[a]lthough the term ‘carrier' is not defined
in the Convention, the manner in which it is employed,
particularly in the chapter titled ‘Liability of the
Carrier,' makes clear that the Convention's drafters
were referring only to those airlines that actually transport
passengers.” Kapar v. Kuwait Airways Corp.,
845 F.2d 1100, 1103 (D.C. Cir. 1988); see also Pflug v.
Egyptair Corp., 961 F.2d 26, 31 (2d Cir. 1992)
(interpreting Warsaw Convention to mean “that only the
airline that actually transports the injured passenger can be
held liable as ‘the carrier'”). Because of
the similarities between the two treaties, courts have
repeatedly relied on Warsaw Convention jurisprudence to
interpret parallel provisions of the Montreal Convention.
See, e.g., Arif Naqvi v. Turkish Airlines,
Inc., 80 F.Supp.3d 234, 240 (D.D.C. 2015);
Best, 581 F.Supp.2d at 362-63. Here, the relevant
provisions of the Warsaw and Montreal Conventions are
materially similar, compare Montreal Convention,
art. 17, with Warsaw Convention, art. 17, and the
Court sees no basis to depart from the D.C. Circuit's
Warsaw Convention precedent. Other courts, in interpreting
the Montreal Convention itself, have held that Article 17
liability attaches only to the actual carrier. See
Best, 581 F.Supp.2d at 362-63 (“[O]nly the airline
that actually transports the injured passenger can be held
liable as ‘the carrier.'”).
submitted from officials at each airline indicate that they
are distinct corporate entities. See Yee Decl.
¶ 3 (indicating that AirAsia's registered offices
are located elsewhere from those of AirAsia X); Bateman Decl.
¶ 4 (stating that “AirAsia X is an independent
affiliate of AirAsia Berhad”). While Plaintiffs refer to
the airlines in their complaint “[c]ollectively . . .
as ‘Air Asia, '” Compl. ¶ 6, they do not
contest Defendants' evidence. And their briefing-for
reasons explained below in connection with AirAsia's
motion to dismiss-acknowledges that the two are distinct
carriers. See, e.g., Opp'n at 5 (describing
AirAsia X as “another carrier” with which AirAsia
maintains a code-share agreement). Plaintiffs also do not
suggest that Erwin-Simpson was injured on an AirAsia X
flight. Because it was not the carrier transporting
Erwin-Simpson at the time of her alleged injuries, AirAsia X
cannot be liable for those injuries under the Montreal
Convention. Accordingly, this Court lacks subject matter
jurisdiction over the claims against AirAsia X.
Subject Matter ...