Case Information
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY HANNA KIM,
Plaintiff, Civ. No. 20-03636 (KM) (JBC)
v. OPINION KOREAN AIR LINES CO., LTD, DELTA AIR LINES, ABC COMPANIES
1 5, and JOHN DOES 1 – 5,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
Hanna Kim alleges that she was burned by hot soup served on board a flight operated by Korean Air Lines and Delta Air Lines from New York to South Korea. The airlines move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. (DE 9, 10.) [1] In response, Kim asks that the case be transferred to the United States District Court for the Eastern District of New York (“EDNY”) . For the following reasons, the motions (DE 9, 10) are DENIED , and the case is TRANSFERRED to EDNY.
I. BACKGROUND
In 2018, Kim, a New Jersey resident, travelled aboard non-stop Korean Air flight KE086 from John F. Kennedy International Airport (“JFK”) in New York to Incheon International Airport in Seoul, South Korea. (Compl. ¶ 1; Jensen Decl. ¶ 3.) She purchased her ticket through the Delta website, presumably while in New Jersey. (Hyunah Kim Decl. ¶ 17(c).) She alleges that Korean Air and Delta are part of a “joint venture.” (Compl. ¶ 2.) Indeed, Korean Air and Delta themselves have publicly touted their partnership .” Trebor Banstetter , “Delta and Korean Air to expand partnership,” Delta, https://news.delta.com/delta-and-korean-air-expand-partnership (last visited Jan. 12, 2021). However, the airlines state that Korean Air exclusively operated the flight. (Jensen Decl. ¶ 5; Hyunah Kim Decl. ¶¶ 13 – 14.)
On the flight, attendants served Kim soup that burned her. (Compl.
¶¶ 9 – 12.) Neither the Complaint nor Defendants specify where in airspace this
happened. Kim sued the airlines in the courts of New Jersey, her state of
residence, alleging negligence, strict products liability, and breach of
warranties. ( ¶¶ 1 – 26.) The airlines removed to this federal court, asserting
diversity jurisdiction and federal-question jurisdiction under the Montreal
Convention, which governs international air travel and carrier liability,
see
Convention for the Unification of Certain Rules for International Carriage by
Air, ch. I, art. 1, § 1; art. 17, May 28, 1999,
The airlines move to dismiss for lack of personal jurisdiction. In support, Korean Air states that it (1) is organized under the laws of South Korea, (2) has its principal place of business there, (3) does not maintain any employees or property in New Jersey, and (4) does not operate flights out of New Jersey. (Hyunah Kim Decl. ¶¶ 4, 6, 9, 10, 12.) Delta states that it (1) is organized under the laws of Delaware, and (2) has its principal place of business in Georgia. (Jensen Decl. ¶ 6.) Both airlines are registered as nonresident corporations in New Jersey. ( ¶ 7; Hyunah Kim Decl. ¶ 7.) Kim did not submit any evidence of her own but opposes dismissal and asks alternatively that the case be transferred to the EDNY (where JFK is located). (Kim Opp. at – 2.)
II. STANDARD OF REVIEW
Once a defendant moves to dismiss for lack of personal jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the
burden of establishing sufficient facts to show that jurisdiction exists.
Marten
v. Godwin
,
III. DISCUSSION
The issue presented is whether the airlines are subject to personal
jurisdiction in New Jersey, and if not, whether transfer is appropriate. A federal
court may exercise personal jurisdiction over a defendant to the extent
authorized by state law.
See
Fed. R. Civ. P. 4(k)(1)(A). “ New Jersey s long-arm
statute provides for jurisdiction coextensive with the due process requirements
of the United States Constitution. ”
Miller Yacht Sales, Inc. v. Smith
, 384 F.3d
93, 96 (3d Cir. 2004) (citing N.J. Ct. R. 4:4-4). Those requirements allow for
general or specific jurisdiction.
Danziger & De Llano, LLP v. Morgan Verkamp
LLC
,
A. General Jurisdiction
A court may exercise general jurisdiction over a corporation when the
corporation has “ continuous and systematic contacts with the forum state ”
such that it is “essentially at home” there.
Chavez v. Dole Food Co.
, 836 F.3d
205, 223 (3d Cir. 2016) (en banc) (quotation marks and citation omitted). A
corporation is “at home” at least where it is incorporated or has its principal
place of business. (citing
Daimler AG v. Bauman
,
There is no general jurisdiction over either defendant. Korean Air is organized under the laws of Korea and has its principal place of business there. (Hyunah Kim Decl. ¶¶ 4, 6.) Delta is organized under the laws of Delaware and has its principal place of business in Georgia. (Jensen ¶ 6.) Thus, New Jersey is not the place of incorporation or principal place of business for either defendant. Nonetheless, Kim seems to put forward two other bases for general jurisdiction: (1) Korean Air and Delta are registered in New Jersey, and (2) the Montreal Convention grants jurisdiction wherever the passenger resides. ( See Kim Opp. at 1.) Neither is persuasive.
Registration
The airlines New Jersey registrations do not confer general jurisdiction. I
acknowledge that Judge Simandle has held that registration qualifies as
consent to be sued in New Jersey, thus conferring general jurisdiction.
Otsuka
Pharm. Co. v. Mylan Inc.
,
I, too, agree with Judge Arleo. Without recapitulating her entire
reasoning, I offer two key reasons for declining to follow
Otsuka
and
Bane
.
First, they cannot be squared with
Daimler
. If business registration alone is
sufficient to confer jurisdiction, then “
Daimler
’s limitation on the exercise of
general jurisdiction to those situations where ‘the corporation is essential[ly] at
home’ would be replaced by a single sweeping rule: registration equals general
jurisdiction.”
Display Works
,
The Montreal Convention
Next, Kim suggests that the Montreal Convention confers jurisdiction
wherever a passenger resides. (
See
Kim Opp. at 1.) The Convention stipulates
the circumstances under which an airline may be liable to passengers. If an
action for damages falls within one of the Convention s damages provisions,
then the treaty provides the sole avenue for relief — that is, the Montreal
Convention preempts all local claims that fall within its scope .”
Dagi v. Delta
Airlines, Inc.
,
This Complaint pleads only state-law claims, not claims under the
Convention. I have previously explained that the Convention does not
completely preempt state-law claims, or require a court “ to conclude that a
state-law complaint is really a federal-law one. ”
DeJoseph v. Continental
Airlines, Inc.
,
Regardless, however, the Convention does not confer personal
jurisdiction in New Jersey. True, o ne provision states that “[i] n respect of
damage resulting from the death or injury of a passenger, an action may be
brought . . . in 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. ” 1999
WL 33292734, at *39. But courts “have consistently concluded that the
Montreal Convention affords subject matter jurisdiction, not personal
jurisdiction.”
Royal & Sun All. Ins. PLC v. UPS Supply Chain Sols., Inc.
, No. 16-
9791,
B. Specific Jurisdiction
A court has specific jurisdiction “when the cause of action arises from
the defendant ’s forum related activities.”
Chavez
,
For specific jurisdiction in New Jersey, Kim suggests only one basis: The airlines sold her a ticket, which she purchased online from her home state of New Jersey. (Kim Opp. at 1.) Assuming arguendo that Korean Air and Delta jointly sold her the ticket, the purchase does not create jurisdiction over either of them in New Jersey.
At the outset, the Delta website does not qualify as a sufficient contact
w ith New Jersey. “[T] he mere operation of a commercially interactive web site ”
does not confer jurisdiction wherever that website may be accessed.
Toys “R”
Us, Inc. v. Step Two, S.A.
,
Further, the ticket purchase cannot be the sole jurisdictional hook to
New Jersey. Specific jurisdiction focuses on the relationship among the
defendant, the forum, and the litigation.”
Walden v. Fiore
,
Under Kim’s tick eting theory of jurisdiction, she is the only link between
the airlines and New Jersey. The only reason New Jersey is implicated in this
case is that a New Jersey resident bought a ticket over the internet from her
New Jersey home. But the airlines did not target New Jersey or even Kim. By
purchasing a ticket from her home, Kim argues, she effectively pulled the
airlines into New Jersey. That is insufficient, as “[d] ue process requires that a
defendant be haled into court in a forum State based on
[its] own
affiliation
with the State, not based on the ‘ random, fortuitous, or attenuated contacts he
makes by interacting with other persons affiliated with the State. ” at 286
(emphasis added) (quoting
Burger King Corp. v. Rudzewicz
,
C. Venue Transfer
If no personal jurisdiction is found in New Jersey, Kim asks that I
transfer the case to the U.S. District Court for the Eastern District of New York.
Title 28, United States Code, Section 1631, provides that “[w] henever a civil
action is filed in a court . . . and that court 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 . . . could have been
brought .”
[3]
Section 1631 thus requires deciding (1) whether the transferee court
would have personal jurisdiction, and (2) whether a transfer is in the interests
of justice.
D’Jamoos
,
Personal Jurisdiction in New York
To determine whether New York would have personal jurisdiction, I apply
the law of the forum.
Id.
at 107 (applying Tenth Circuit and Colorado law to
determine whether to transfer to Colorado). Kim need only make out a prima
facie case for jurisdiction, a burden that is “light . ” at 109 – 10 (citation
omitted).
[4]
In the Second Circuit, plaintiffs must [a] have a state-law statutory
basis for jurisdiction and [b] demonstrate that the exercise of personal
jurisdiction comports with due process. ”
Charles Schwab Corp. v. Bank of Am.
Corp.
,
a. Statutory Basis for Jurisdiction
The New York statutory basis would seem to be § 302(a)(1) of New York ’ s
Civil Practice Law, which provides that “a court may exercise personal
jurisdiction over any non-domiciliary . . . who in person or through an
agent . . . transacts any business within the state.” N.Y. C.P.L.R. § 302(a)(1);
see Mali v. British Airways
, No. 17 Civ. 685,
On the first prong, Korean Air flies out of JFK, and Delta sells tickets for
flights out of JFK, so they “transacted business within” New York.
See Mali
,
Next, the ‘ arising from prong of section 302(a)(1) does not require a
causal link between the defendant s New York business activity and a plaintiff ’s injury. Instead, it requires ‘ a relatedness between the transaction and the legal
claim such that the latter is not completely unmoored from the former,
regardless of the ultimate merits of the claim. ’”
Licci v. Lebanese Canadian
Bank, SAL
,
New York — for example, flying out of JFK — are reasonably related to the claim
that a tort occurred on one of those flights out of JFK. Given that the
relatedness inquiry “is relatively permissive,”
Licci
,
b. Constitutional Basis for Jurisdiction
The Second Circuit instructs that due-process analysis proceeds by
determining “ (1) that a defendant has certain minimum contacts with the
relevant forum, and (2) that the exercise of jurisdiction is reasonable.”
SPV
Osus Ltd. v. UBS AG
,
i. Minimum Contacts
On top of the Supreme Court’s explanation of minimum contacts,
see
Walden
,
supra
, the Second Circuit expounds that there must be “ some
causal
relationship between an entity ’ s in-forum contacts and the proceeding at
issue. ”
In re del Valle Ruiz
,
Korean Air:
There is at the very least a but-for causal connection
between Korean Air ’s New York contacts and the claims here: If Korean Air did
not operate KE086 flight out of JFK, then Kim could not have taken that flight
and been injured while on board. At least one court, albeit outside the Second
Circuit, has adopted reasoning along those lines.
[6]
In
Broadus v. Delta Air Lines,
Inc.
, a plaintiff flew on a Delta flight out of Greensboro, North Carolina and was
injured during a layover in Atlanta, Georgia.
Drilling down to the specifics of this case, the relationship between JFK,
Korean Air , and Kim’s claims rises well above the but-for level.
See Walden
,
Consider further that some acts related to Kim’s claim likely occurred
while at JFK. Common sense and experience inform that some food and service
preparation must occur before a plane departs. The food at issue in this case
would have had to come on board before departure, and the manner in which it
was stored or prepared is likely to be relevant to its condition when it was later
served during the flight. Put another way, decisions by attendants before
departure could easily have affected how the food was later served or other
incidents along that causal chain. Thus, it is hard to conclude that
all
relevant
aspects of this claim occurred in-flight.
See Bristol-Myers Squibb Co. v. Super.
Ct. of Cal., S.F. Cnty.
,
In response, Korean Air asserts that Kim’s injury occurred somewhere in the air, outside New York, and that this fact is sufficient to defeat jurisdiction. (Korean Air Reply at 6.) That is incorrect. “ The proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant s conduct connects him to the forum in a meaningful way. ” Walden , 571 U.S. at 290. That the flight originated from JFK, that Kim placed herself in the custody of the airline there, and that Korean Air attendants must have done some preparation of the food at JFK, are meaningful connections to both New York and the claim. See id. at 283 84. There is thus specific jurisdiction over Korean Air in New York.
Delta: The analysis is a little different when it comes to Delta. No Delta employees seem to have been directly involved, as the flight was a Korean Air flight. But even if Delta did not operate the flight, Delta facilitated the flight from New York. By selling the ticket, Delta was in the business of providing Kim safe passage from New York to Seoul, albeit via its “partner,” Korean Air. Delta did fail in that duty, Kim alleges, and she was injured as a result. So she brings claims to recover for that injury. Delta may well deny responsibility for any injury — a factual defense on the merits. But as to a claim that Delta caused injury, there is a sufficient connectio n between Delta’s contacts with New York (selling a ticket out of JFK) and the claim (an injury on that flight).
At least one court has found a ticket-selling airline subject to jurisdiction in the forum where an injurious flight originated, even if the airline did not itself operate the flight. In Selke v. Germanwings GmbH , passengers booked carriage on five flights, spread over a few days, through United ’ s website: (1) a United flight from Dulles International Airport in Virginia to Germany, (2) a Lufthansa flight from Germany to Spain, (3) a Germanwings flight from Spain to Germany, (4) a Germanwings flight from Germany to the United Kingdom, and (5) a United flight from the United Kingdom to Dulles. 261 F. Supp. 3d 666, 669 70 (E.D. Va. 2017). The Germanwings flight between Spain and Germany crashed , and the passengers’ families sued in Virginia. Id. The court concluded that “ United ’ s activities in Virginia proximately resulted in Plaintiffs ’ cause of action ,” reasoning as follows:
[W]ere it not for United ’ s role as intermediary and the contractual relationships United maintained with both Lufthansa and Germanwings, decedents would not have been able to book passage using the ‘ conjunction tickets provided by United. Furthermore, the crash of [the Germanwings flight], while not the direct result of United s sale of the tickets that placed the decedents on that flight, was certainly the genesis of the dispute now before the Court.
Id. at 674.
Much of that reasoning applies here. “[W] ere it not for [Delta’s] role as
intermediary and the contractual relationships [Delta] maintained with [Korean
Air ],” Kim would not have been able to buy the tickets for flight KE0 86, on
which she was injured.
Id.
Although her i njury was not the “direct result” of
Delta’s ticket sale, it “ was certainly the genesis of the dispute now before the
Court .” At bottom, by selling tickets for flights out of JFK, Delta
purposefully availed itself of the privilege of doing business in [New York] and
could foresee being haled into court there” for claims arising out of those
flights.
Charles Schwab
,
ii. Reasonableness
If minimum contacts exist, the defendant has to ‘ present a compelling
case that the presence of some other considerations would render jurisdiction
unreasonable. ’”
Eades
,
(1) the burden that the exercise of jurisdiction will impose on the defendant;
(2) the interests of the forum state in adjudicating the case; (3) the plaintiff s interest in obtaining convenient and effective relief;
(4) the interstate judicial system s interest in obtaining the most efficient resolution of the controversy; and
(5) the shared interest of the states in furthering substantive social
policies.
(formatting altered) (quoting
Chloé
,
made a compelling case that these considerations weigh in their favor.
First and foremost, they face a minimal burden in defending in New
York. They both maintain a presence at JFK. Although Korean Air is foreign, it
also maintains a passenger service branch in New York City. (DE 9-4 at 5.)
What is more, both airlines — for years — have defended in New York actions
arising from international flights.
Zicherman v. Korean Air Lines Co.
, 516 U.S.
217, 220 (1996) (Korean defending claims arising from international crash in
New York);
Wallace v. Korean Air
,
Second, New York has some interest in adjudicating the case, which may assist in defining the standard of care for airlines operating out of JFK.
Third, New York is convenient for Kim, as it neighbors her state of residence. Moreover, her request to transfer indicates that she consents to litigating in New York.
Fourth, the most efficient location for the litigation is probably New York because the employees who could be relevant witnesses are either based there or at least occasionally work there. There is no reason to believe that any such witnesses are in New Jersey.
And finally, because Korean Air does not fly out of New Jersey, any precedent in this case would not further New Jersey’s substantive policies regarding airline regulation. Put differently, precedent would be more consequential in New York, where Korean Air operates. Because these factors all weigh against the airlines, jurisdiction in New York is reasonable.
* * *
For the reasons above, there is specific jurisdiction over the airlines in New York. T his action “ could have been brought ” in EDNY. [7] 28 U.S.C. § 1631.
Interest of Justice
Having found that there is personal jurisdiction in New York, I must
decide whether a transfer is in the interest of justice.
D’Jamoos
, 566 F.3d at
110. Determining where the interest of justice lies is left to the district court’s
discretion.
Phillips v. Seiter
,
Transfer, as opposed to dismissal, also has the benefit of maintaining
continuity and avoiding litigation over whether a refiled action is time-barred.
See Kurzweil v. Amtrak
, Civ. No. 19-19388,
IV. CONCLUSION
For the reasons set forth above, the motions to dismiss are denied, and instead the case is transferred to the United States District Court for the Eastern District of New York.
A separate order will issue.
Dated: January 14, 2021
/s/ Kevin McNulty ___________________________________ Hon. Kevin McNulty United States District Judge
Notes
[1] Certain citations to the record are abbreviated as follows: DE = docket entry Notice = Notice of Removal (DE 1) Compl. = Kim’s Complaint (DE 1 -1) Korean Air Brf. = Korean Air ’s Brief in Support of its Motion to Dismiss (DE 9 -1) Hyunah Kim Decl. = Declaration of Hyunah Kim in Support of Korean Air’s Motion to Dismiss (DE 9-2) Jensen Decl. = Declaration of Steven R. Jensen in Support of Delta’s Motion to Dismiss (DE 10-2) Kim Opp. = Kim’s Brief in Opposition to Defendants’ Motions to Dismiss (DE 15) Korean Air Reply = Korean Air’s Reply Brief in Support of its Motion to Dismiss (DE 17)
[2] In closely related contexts, courts have held that, when a plaintiff purchases a
ticket online in Forum A, for travel or another activity that occurs in Forum B, and an
injury occurs in Forum B, the ticket purchase does not create personal jurisdiction
over the ticket issuer in Forum A.
E.g.
,
Kurzweil v. Amtrak
, Civ. No. 19-19388, 2020
WL 5760423, at *4 (D.N.J. Sept. 28, 2020) (no jurisdiction over Amtrak for accident in
Washington, DC, even when tickets were purchased online in New Jersey);
Estate of
Golembiewski v. Tuthill Corp.
, Civ. No. 19-18096,
[3] Kim makes her transfer request pursuant to § 1406(a). (Kim Opp. at 2 3.) That
provision allows a district court to transfer a case if it were filed in “the
wrong . . . district” to “any district . . . in which it could have been brought” when
transfer is “in the interest of justice.” § 1406(a). The Third Circuit has previously
suggested and recently confirmed that the relevant statute is not § 1406(a) but § 1631.
Chavez
,
[4] I will only focus on whether there is specific jurisdiction over the airlines in New York because, as I previously concluded, general jurisdiction for Korean Air would lie in Korea and for Delta in Georgia or Delaware. Section III.A, supra . Although both airlines operate out of JFK, those contacts, while substantial, do not render them essentially at home in New York. See Mali v. British Airways , No. 17 Civ. 685, 2018 WL 3329858, at *5 (S.D.N.Y. July 6, 2018) (British airline not subject to general
[5] Although the Supreme Court has stated that the suit must arise out of or
relate to the defendant ’ s contacts with the forum, ”
Bristol-Myers Squibb Co. v. Super.
Ct. of Cal., S.F. Cnty.
,
[6] There is little case law addressing whether there is personal jurisdiction over an
airline in the state where a flight takes off or lands, when the suit alleges an injury on
the flight. The explanation may be that airlines routinely submit to jurisdiction in
those states without contest.
E.g.
,
Fishman v. Delta Air Lines, Inc.
,
[7] Some courts also consider, under the “could have been brought” inquiry,
whether the transferee court would have subject-matter jurisdiction and whether
venue would be proper there.
E.g.
,
Kurzweil
,