KIM v. KOREAN AIR LINES

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

HANNA KIM,

Plaintiff,

Civ. No. 20-03636 (KM) (JBC)

v.

KOREAN AIR LINES CO., LTD, OPINION

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

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)

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. (Id. ¶¶ 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, 1999 WL 33292734, at *16. (Notice

at 2–5.)

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. (Id. ¶ 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

1–2.)

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, 499 F.3d 290, 295–96 (3d Cir. 2007). Initially, a court must accept

the plaintiff’s allegations as true and construe disputed facts in favor of the

plaintiff. Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 368 (3d Cir. 2002).

Where factual allegations are disputed, however, the court must examine any

evidence presented. See Patterson v. FBI, 893 F.2d 595, 603–04 (3d Cir. 1990)

(“A Rule 12(b)(2) motion . . . is inherently a matter which requires resolution of

factual issues outside the pleadings . . . . Once the defense has been raised,

then the plaintiff must sustain its burden of proof in establishing jurisdictional

facts through sworn affidavits or other competent evidence.” (citation omitted)).

If the district court does not hold an evidentiary hearing, “the plaintiff need

only establish a prima facie case of personal jurisdiction.” O’Connor v. Sandy

Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007).

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, 948 F.3d 124, 129 (3d Cir. 2020). I conclude that the airlines are not

subject to general or specific jurisdiction in New Jersey. (Sections A and B,

respectively, infra.) Nonetheless, I conclude that the case should be transferred

to EDNY. (Section C, infra.)

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. Id. (citing Daimler AG v. Bauman, 571 U.S. 117, 137 (2014)).

Daimler left open whether general jurisdiction exists in a forum other than a

corporation’s place of incorporation or principal place of business. See 571 U.S.

at 137. Still, courts suggest that “it is ‘incredibly difficult to establish general

jurisdiction . . . in a forum other than the place of incorporation or principal

place of business.’” Chavez, 836 F.3d at 223 (quoting Monkton Ins. Servs., Ltd.

v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014)).

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., 106 F. Supp. 3d 456, 468 (D.N.J. 2015). Judge

Simandle relied on Bane v. Netlink Inc., holding—prior to Daimler—that

registering to do business in Pennsylvania subjects a defendant to jurisdiction

there. 925 F.2d 637, 640 (3d Cir. 1991). But Judge Arleo has persuasively

explained why, at least post-Daimler, registration does not confer jurisdiction,

Display Works, LLC v. Bartley, 182 F. Supp. 3d 166, 179 (D.N.J. 2016), and

other judges in this District adopt her reasoning, e.g., Ferguson v. Aon Risk

Servs. Co., Civ. No. 19-9303, 2020 WL 914702, at *5 (D.N.J. Feb. 26, 2020)

(Wolfson, C.J.); Horowitz v. AT&T Inc., Civ. No. 17-4827, 2018 WL 1942525, at

*12 (D.N.J. Apr. 15, 2018) (Martinotti, J.).

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, 182 F. Supp. 3d at 179. Second, Daimler aside,

Bane is distinguishable because the Pennsylvania statute there explicitly

provided that registration meant consent to jurisdiction, while the New Jersey

statutes do no such thing. Id. at 174–78. For those reasons, the airlines’ New

Jersey registrations do not confer general jurisdiction.

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., 961 F.3d 22, 27–28 (1st Cir. 2020).

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., 18 F. Supp. 3d 595, 604 (D.N.J. 2014). Complete preemption

aside, the issue of whether the Convention has an ordinary preemptive effect

on the claims here is not yet ripe. The application of ordinary preemption rules

would occur in connection with a merits analysis. See id. As a result, it is

premature to rely on the Convention, because there has been no opportunity to

determine that the Convention, whatever it may say about personal

jurisdiction, applies at all.

Regardless, however, the Convention does not confer personal

jurisdiction in New Jersey. True, one 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, 2018 WL 1888483, at *3 (S.D.N.Y. Apr. 5, 2018) (emphasis omitted); see

also, e.g., Ltr. Order at 2, Davydov v. Scandinavian Airline Sys., Civ. No. 19-

17628 (D.N.J. Oct. 5, 2020), DE 28 (collecting cases), appeal docketed, No. 20-

3243 (3d Cir. Nov. 3, 2020); Avalon Techs., Inc. v. EMO-Trans, Inc., No. 14-

14731, 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.”). Accordingly, the Convention, of its own force,

does not confer jurisdiction here.

B. Specific Jurisdiction

A court has specific jurisdiction “when the cause of action arises from

the defendant’s forum related activities.” Chavez, 836 F.3d at 223 (citation

omitted). Kim “must establish with reasonable particularity three elements.

First, the defendant must have purposefully directed its activities at the forum.

Second, the plaintiff’s claims must arise out of or relate to the defendant’s

activities. And third, exercising personal jurisdiction must not offend

traditional notions of fair play and substantial justice.” Danziger, 948 F.3d at

129–30 (quotation marks, alterations, and citations omitted). The first two

elements are often discussed in tandem, as I will do here, because it is not

enough for a defendant to have general contacts with a state—the contacts

must relate to the claim. D’Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft

Ltd., 566 F.3d 94, 102–03 (3d Cir. 2009); see also Kyko Global, Inc. v. Bhongir,

807 F. App’x 148, 152 (3d Cir. 2020) (defendant not subject to personal

jurisdiction in Pennsylvania, even though he made trips there, when the suit

alleged fraudulent conduct that did not occur on those trips).

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

with 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., 318 F.3d 446, 454 (3d Cir. 2003). “Rather, there

must be evidence that the defendant ‘purposefully availed’ itself of conducting

activity in the forum state, by directly targeting its web site to the state,

knowingly interacting with residents of the forum state via its web site, or

through sufficient other related contacts.” Id. There is no such evidence here.

Instead, it seems that the Delta website is a general website that is available to

anyone, anywhere. Kim has presented no evidence that the website targets New

Jersey consumers.

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, 571 U.S. 277, 283–

84 (2014) (citation omitted). The “analysis looks to the defendant’s contacts

with the forum State itself, not the defendant’s contacts with persons who

reside there.” Id. at 285. Accordingly, “the plaintiff cannot be the only link

between the defendant and the forum.” Id.

Under Kim’s ticketing 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.” Id. at 286

(emphasis added) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475

(1985)). Thus, the only contact with New Jersey in this case is through Kim

herself, and that is not enough.2 There is no specific jurisdiction, then, over the

airlines.

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, 2020 WL 3546676, at *4 (D.N.J.

June 30, 2020) (no jurisdiction over Pennsylvania resort for accident there, even when

tickets were purchased online in New Jersey); Cardenas v. Am. Airlines, Inc., No.

17cv2513, 2018 WL 6503658, at *4 (S.D. Cal. Dec. 11, 2018) (no jurisdiction over

airline for actions in Texas, even when ticket was purchased online in California);

Bomberger v. Am. Airlines, Inc., Civ. No. 17-5298, 2018 WL 3416386, at *2–3 (E.D. Pa.

July 12, 2018) (no jurisdiction over airline for injury in North Carolina, even when

ticket was purchased in Pennsylvania).

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, 566 F.3d at 107, 110.

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.” Id. at 109–10 (citation

omitted).4 In the Second Circuit, plaintiffs “must [a] have a state-law statutory

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, 836 F.3d at 224 (district court declined transfer under § 1406(a), and the

Third Circuit explained that “the statutory provision applicable in these circumstances

is arguably not 28 U.S.C. § 1406(a), but rather 28 U.S.C. § 1631”); Danziger, 948 F.3d

at 132 (holding that “a district court that lacks personal jurisdiction must at least

consider a transfer” and describing § 1631 as “[t]he relevant statute”); see also, e.g.,

Murray v. John Wood Cmty. Coll., Civ. No. 19-20920, 2020 WL 4670927, at *5 (D.N.J.

Aug. 12, 2020) (applying § 1631 pursuant to Chavez). So I will apply § 1631.

Ultimately, however, the distinction matters little, because, as the Third Circuit itself

noted, the standards are similar. Chavez, 836 F.3d at 224.

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

basis for jurisdiction and [b] demonstrate that the exercise of personal

jurisdiction comports with due process.” Charles Schwab Corp. v. Bank of Am.

Corp., 883 F.3d 68, 82 (2d Cir. 2018).

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, 2018 WL 3329858, at *5 (S.D.N.Y.

July 6, 2018) (applying § 302(a)(1) to a British airline). Section 302(a)(1)

requires that “(1) [t]he defendant must have transacted business within the

state; and (2) the claim asserted must arise from that business activity.” Eades

v. Kennedy, PC Law Offices, 799 F.3d 161, 168 (2d Cir. 2015) (citation

omitted).

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,

2018 WL 3329858, at *5 (assuming that British airline transacted business in

New York by “targeting airports and travelers located in New York”).

Additionally, Korean Air maintains a passenger service branch in New York.

(DE 9-4 at 5.)

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, 732 F.3d 161, 168–69 (2d Cir. 2013) (quoting Licci v. Lebanese

Canadian Bank, 984 N.E.2d 893, 900 (N.Y. 2012)). The airlines’ activities in

jurisdiction in New York). And while they may be registered in New York, corporations

do not consent to general jurisdiction by such registration. Chufen Chen v. Dunkin’

Brands, Inc., 954 F.3d 492, 499 (2d Cir. 2020).

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, 984 N.E.2d at 900; see also

Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 167 (2d Cir. 2010)

(collecting cases where the Second Circuit has criticized district courts for

construing the relatedness requirement too narrowly), and that due-process

requirements are the same or more demanding, see Eades, 799 F.3d at 168, I

will assume that the § 302(a)(1) requirements are met and move to the

constitutional test.

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, 882 F.3d 333, 343 (2d Cir. 2018) (citation omitted).

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, 939 F.3d 520, 530 (2d Cir. 2019).5 I discuss the

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., 137 S. Ct. 1773, 1780 (2017) (quotation marks, alterations, and

citation omitted), the Court has not explained exactly what “arise out of or relate to”

means, Valle Ruiz, 939 F.3d at 530. In that vacuum, “[s]ome circuits require that the

in-forum conduct to be the proximate cause of plaintiff’s injuries, while others find the

standard satisfied if the defendant’s activities are the ‘but for’ cause of those injuries.”

SPV Osus, 882 F.3d at 344. Other courts do not require causation at all. E.g., TV

Azteca, S.A.B. de C.V. v. Ruiz, 490 S.W.3d 29, 52–53 (Tex. 2016). The Second Circuit

has not adopted a clear test, instead “requir[ing] some causal relationship.” Valle Ruiz,

939 F.3d at 530. In light of these differences, the Supreme Court has taken up a case

that may clarify the more precise standard. See Petition for a Writ of Certiorari at 2–4,

Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., No. 19-368 (U.S. Sept. 18, 2019).

I have applied both standards of causality and found that both have been

satisfied. See infra.

causal relationship between the contacts and the claims first as to Korean Air,

and then as to Delta.

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. 101 F. Supp. 3d 554, 561

(M.D.N.C. 2015). The court held that there was specific jurisdiction in North

Carolina because “[b]ut for Delta operating its airline business in North

Carolina and picking up [plaintiff] in Greensboro, [plaintiff] would not have

been injured during her layover in Atlanta.” Id. Accordingly, there is recognition

that a causal connection exists between the forum where a flight departs and

an injury that occurs on that journey.

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,

571 U.S. at 284. Consider first that any of the Korean Air attendants involved

in preparing and serving food on the flight must have performed part of their

job duties and boarded at JFK. It is also reasonable to conclude that, where the

airline flies out of JFK regularly, such employees are either based locally or at

least fly through there with some frequency. If those attendants are indeed

based out of JFK, the connection between Korean Air employees’ New York

contacts and the claim is strong because the training and employment policies

of JFK-based employees are highly relevant to a negligence claim. As these

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., 132 F.3d 138, 140–

41 (2d Cir. 1998) (injury aboard Delta flight from Tel Aviv to New York).

attendants are the relevant actors in this case, their employment base is

significant.

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., 137 S. Ct. 1773, 1782 (2017) (no specific jurisdiction

when “all the conduct giving rise to the nonresidents’ claims occurred

elsewhere”).

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 connection 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 KE086, on

which she was injured. Id. Although her injury was not the “direct result” of

Delta’s ticket sale, it “was certainly the genesis of the dispute now before the

Court.” Id. 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, 883 F.3d at 82. Whatever the exact contours of Delta

and Korean Air’s relationship, and whatever Delta’s defenses may ultimately

be, there is no way to reasonably disentangle Delta from the events here for

jurisdictional purposes.

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, 799 F.3d at 169 (quoting Licci, 732 F.3d at 173). Such

considerations include:

(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.

Id. (formatting altered) (quoting Chloé, 616 F.3d at 164). The airlines have not

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, 214 F.3d 293, 295 (2d Cir. 2000) (sexual

assault aboard Korean flight from Seoul to Los Angeles); Fishman by Fishman

v. Delta Air Lines, Inc., 132 F.3d 138, 140–41 (2d Cir. 1998) (injury aboard

Delta flight from Tel Aviv to New York).

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. This 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

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, 2020 WL 5760423, at *4.

There is subject-matter jurisdiction because the parties are completely diverse,

and Kim’s claim for damages may reasonably be read to exceed $75,000. (Notice at 2;

Kim Opp. at 1.)

In the alternative, EDNY might also entertain this action based on federal-

question jurisdiction because the Montreal Convention completely preempts state-law

claims. Although I disagree with that view, see DeJoseph, 18 F. Supp. 3d at 604, there

is substantial EDNY case law to that effect. E.g., Mughal v. Pakistan Int’l Airlines Corp.,

No. 14-CV-2505, 2018 WL 1135474, at *2 (E.D.N.Y. Fed. 28, 2018); Mateo v. Jet Blue

Airways Corp., 847 F. Supp. 2d 383, 387 (E.D.N.Y. 2012) (collecting cases).

Venue would be proper in the EDNY because the airlines are subject to

personal jurisdiction there. See 28 U.S.C. § 1391(c)(3).

discretion. Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999) (“Since the term

‘interests of justice’ is vague, district courts have a good deal of discretion in

deciding whether to transfer a case.”) (collecting cases from the Fourth, Eighth,

and Ninth Circuits); see also Roberts v. United States, 710 F. App’x 512, 514

(3d Cir. 2017) (per curiam). When jurisdiction is clearly available in another

court, as here, “[n]ormally transfer will be in the interest of justice because

dismissal of an action that could be brought elsewhere is time-consuming and

justice-defeating.” SM Fin. Servs. Corp. v. Blue Cross Blue Shield of Tex., Civ.

No. 19-17497, 2020 WL 7869213, at *2 (D.N.J. July 16, 2020) (alteration and

citation omitted).

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, 2020 WL 5760423, at *4 (D.N.J.

Sept. 28, 2020) (“[The interest of justice] requirement ordinarily will be satisfied

if the statute of limitations has expired subsequent to the time of the original

filing, so that transfer, rather than dismissal, will preserve the plaintiff’s cause

of action.” (citation omitted)). Some courts, including some in EDNY, hold that

the Montreal Convention has a two-year limitations period that “operates as a

condition precedent to suit and, as such, is not subject to equitable tolling.”

Narayanan v. British Airways, 747 F.3d 1125, 1132 (9th Cir. 2014); see also

Chen v. China Airlines, Ltd., No. 19-cv-3957, 2020 WL 5503476, at *2 (E.D.N.Y.

Sept. 11, 2020); Mughal v. Pakistan Int’l Airlines Corp., No. 14-CV-2505, 2018

WL 1135474, at *3 (E.D.N.Y. Feb. 28, 2018). This is not to say that Kim’s

complaint, if refiled, certainly would be time-barred. But timeliness is at least

an issue that could arise and needlessly take up courts’ and the parties’

resources. A transfer, which “will preserve the plaintiff’s cause of action,”

Kurzweil, 2020 WL 5760423, at *4, avoids that problem. For those reasons, a

transfer, rather than dismissal, is in the interest of justice.

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