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Erwin-Simpson v. Berhad

United States District Court, District of Columbia

March 22, 2019

MARY ERWIN-SIMPSON, et al., Plaintiffs,
v.
AIRASIA BERHAD, et al., Defendants.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.

         Mary 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.

         I. Background

         A. Factual Background

         According 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.

         Erwin-Simpson 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.

         B. Legal Background

         Erwin-Simpson 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.

         The 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.

         Plaintiffs 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 resolution.

         II. Standard of Review

         When 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. 2004).

         To 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).

         III. Analysis

         A. Subject Matter Jurisdiction as to AirAsia X

         The 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. 17(1).

         In interpreting the Montreal Convention's predecessor, the Warsaw Convention, [1] 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.'”).[2]

         Declarations 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”).[3] 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.

         B. Subject Matter ...


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