Byanjankar v. US Bangla Airlines Limited

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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S AMIRA BYANJANKAR ET AL.,

MEMORANDUM AND ORDER

Plaintiffs,

Case No. 1:20-CV-01316-FB-VMS

-against-

US-BANGLA AIRLINES LTD.,

Defendant.

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Appearances:

For the Plaintiffs: For the Defendants:

KHAGENDRA GHARTI-CHHETRY ALLISON M. SURCOUF

Chhetry & Associates, P.C. Condon & Forsyth LLP

363 Seventh Avenue 7 Times Square

New York, NY 10001 18th Floor

N ew York, NY 10036

MICHAEL G. RADIGAN

Sobo & Sobo LLP

1 Dolson Avenue

Middletown, NY 10940

BLOCK, Senior District Judge:

This action arises from a plane crash that occurred in Kathmandu, Nepal on

March 12, 2018.1 The plane, which was flying a route from Dhaka, Bangladesh to

Kathmandu, crashed upon touchdown at its destination. Of the 71 people on board,

1 Defendant US-Bangla Airlines erroneously refers to the date of the accident as

March 11, 2018 in its motion to dismiss. This order refers to the correct date of

March 12, 2018 referred to elsewhere in the parties’ filings.

51 were killed. Plaintiffs,2 who are a survivor of the crash and the representatives

of victims’ estates, now assert claims against US-Bangla Airlines for wrongful

death, personal injury, and carrier liability under the Warsaw and Montreal

Conventions. In turn, US-Bangla Airlines moves to dismiss Plaintiffs’ complaint in

its entirety under Federal Rules of Civil Procedure (“FRCP”) 12(b)(2) and

12(b)(5). For the reasons discussed below, the motion to dismiss is granted under

both FRCPs 12(b)(2) and 12(b)(5). In addition, Plaintiffs cross-move to compel a

deposition of a key witness. Their motion is denied as moot.

I.

The following facts are taken from the complaint. For present purposes, the

Court accepts them as true and draws all reasonable inferences in favor of the

2 Throughout this order, “Plaintiffs” is used to collectively refer to the plaintiffs,

who are the following: Samira Byanjankar, Estate of Sila Bajgain, Estate of Algina

Baral, Estate of Charu Baral, Estate of Gyani Kumari Gurung, Estate of Purnina

Lohani, Estate of Prasanna Pandey, Estate of Sanjay Poudel, Estate of Saruna

Shrestha, Estate of Bal Krishna Thapa, Estate of Shweta Thapa, Ganesh Prasad

Baral, Ganga Kumari Baral, Arika Baral, Rajan Baral, Kamala Ghimire, Piyush

Baral, Bhola Bahadur Budhathoki, Binod Bushathoki, Rakhi Kumari Mandal,

Pramad Budhathoki, Sunita Lama, Bigya Budhathokis, Kaniska Budhathoki,

Prasan Budhathoki, Chitra Bahadur Lohani, Nur Bahadur Lohani, Yam Kumari

Lohani, Puja Lohani, Lelina Lohani, Thaman Bahadur Pandey, Nira Pandey,

Damodar Poudel, Annapurna Upadhaya Poudel, Anjali Poudel, Ram Shrestha,

Rajani, Shrestha, Saru Shrestha, Bishal Shrestha, Gambhir Dhoj Thapa, Sumitra

Thapa, Ram Krishna Thapa, Kalpana, Thapa, Irada Thapa, Shangharsha Thapa,

Abrigal Thapa, Asim Thapa, Urmila Pradhan, Gajendra Singh Thapa.

plaintiff. See, e.g., Gamm v. Sanderson Farms, Inc., 944 F.3d 455, 458 (2d Cir.

2019).

On March 12, 2018, US-Bangla Airlines Flight BS211 departed Hazrat

Shahjahal International Airport in Dhaka, Bangladesh and crashed on the runway

at its destination, Tribhuvan International Airport in Kathmandu, Nepal. See

Complaint at ¶ 2. According to a post-accident report, the probable cause of the

crash was disorientation and loss of situational awareness of members of the flight

crew, including the pilot. See id. at ¶ 57-8. Specifically, the pilot was noted to have

been emotionally disturbed at the time of the accident and he failed to follow

standard operating procedures. See id. at ¶ 58. All four crew members were killed

along with 47 passengers. See id. at ¶ 56.

Plaintiffs bring claims for wrongful death and personal injury. US-Bangla

Airlines challenges all causes of action under FRCP 12(b)(5) and 12(b)(2).

II.

a. Rule 12(b)(5)

Federal Rule of Civil Procedure 12(b)(5) allows for dismissal of a complaint

for insufficient service of process. See Fed. R. Civ. P. Rule 12(b)(5). Plaintiff bears

the burden of establishing that adequate service was provided. See Howard v.

Klynveld Peat Marwick Goerdeler, 977 F. Supp. 654, 658 (S.D.N.Y. 1997), aff’d

173 F. 3d 844 (2d Cir. 1999). To decide if service of process was sufficient, the

Court must look to FRCP 4 which governs summonses. See Fed. R. Civ. P. 4. With

regard to a foreign corporation or limited liability company, service within the

United States must be made in accordance with state law, by delivering a copy of

the summons and complaint to an officer or agent of the entity, or in accordance

with the FRCP governing foreign individuals. See Fed. R. Civ. P. 4(h).

FRCP 4(f) concerns service of individuals in a foreign country. It provides

that service may be effectuated: (1) by means of an international agreement, such

as those authorized by the Hague Convention on the Service Abroad of Judicial

and Extrajudicial Documents, (2) if there is no internationally agreed means, by a

method reasonably calculated to give notice as dictated by the foreign country’s

law for service, as the foreign country directs in a response to a letter rogatory, or

by delivering a copy of the summons and complaint to the individual personally or

via mail addressed and sent by the clerk of court, or (3) by another means ordered

by the court that is not prohibited by international agreement. See Fed. R. Civ. P.

4(f).

b. Rule 12(b)(2)

To survive a motion to dismiss for lack of personal jurisdiction under

Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of

establishing jurisdiction over the defendant. See Metro. Life Ins. Co. v. Robertson-

Ceco Corp., 84 F. 3d 560, 566 (2d Cir. 1996). At this early stage of pleading, the

Court must view the pleadings in true light most favorable to the plaintiffs, and

resolve any dispute of fact in favor of the plaintiffs. See Robinson v. Overseas

Military Sales Corp., 21 F. 3d 502, 507 (2d Cir. 1994). Before the discovery phase,

a plaintiff may defeat a 12(b)(2) motion by making a prima facie showing of

jurisdiction with the support of the complaint’s allegations, affidavits, and other

supporting evidence. See Bank Brussels Lambert, 171 F. 3d 779, 784 (2d Cir.

1999). Not accepted as support for jurisdiction, however, are conclusory

statements. See Jacini v. Nissan Motor Co. Ltd., 148 F. 3d 181, 185 (2d Cir. 1998).

For a corporate entity, “[t]he paradigm all-purpose forums for general

jurisdiction are a corporation’s place of incorporation and principal place of

business.” Daimler AG v. Bauman, 571 U.S. 117, 118 (2014), citing Goodyear

Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 914, 924 (2011). With regard to

general jurisdiction, New York courts may exercise jurisdiction over all claims of

an entity, including claims unrelated to the entity’s contacts with the state, if the

entity’s contacts with New York state are so continuous and systematic as to render

it essentially at home in New York. See Goodyear at 919. The same analysis is

applied to corporations and limited liability companies. See Chufen Chen v.

Dunkin’ Brands, Inc., 954 F. 3d 492, 497 (2d Cir. 2020).

III.

The Court first addresses the question of sufficiency of service of process,

then turns to the question of jurisdiction.

a. Service of Process

US-Bangla Airlines moves to dismiss for lack of proper service of process. It

argues that Plaintiffs failed to properly serve US-Bangla Airlines either in the

United States or abroad. Plaintiffs attempted to timely serve the Complaint by

priority overnight mail to US-Bangla Airlines at the alleged Queens office

location, which is discussed in more detail in the following section. US-Bangla

airlines argues that this service was improper because the airline does not have any

affiliation with this address and because service on a limited liability corporation

via mail is not proper.

Regardless of whether US-Bangla Airlines is affiliated with the alleged

Queens address, service via mail on a limited liability corporation is not proper

under either the FRCP or New York Civil Practice Law & Rules, making

Plaintiffs’ service in the United States improper. See Fed. R. Civ. P. 4(h)(1); CPLR

311-a(1).

US-Bangla Airlines also argues that service of process failed under FRCP

4(f), first because Bangladesh is not a party to the Hague Convention on the

Service Abroad of Judicial and Extrajudicial Documents or any other international

agreement governing service of process. Plaintiffs do not contest this and make no

showing that Bangladesh is subject to any international agreement regarding

service of process.

US-Bangla Airlines also argues that service failed under part two of FRCP

4(f) because service was not made according to Bangladeshi law, according to a

response to a letter rogatory, or by mail addressed and sent by the clerk of court to

the entity being served. Plaintiffs again do not contest these arguments, but instead

cite the FRCP governing proof of service of process as support, which is not on

point, since US-Bangla Airlines has challenged the service itself and not the proof

thereof. See ECF 24 at 8. There is no allegation that Plaintiffs sent a letter rogatory,

and Bangladeshi law provides that summons issued by foreign courts be sent to

courts in Bangladesh, not to defendants. See Bangladesh Code of Civil Procedure

Rule 29. Also, Plaintiffs submitted an affidavit that supports that an individual, not

the clerk of court, sent the summons to US-Bangla Airlines. See ECF 12.

Lastly, US-Bangla Airlines argues that Plaintiffs failed to properly serve it

under the final method available under FRCP 4(f), which allows for the use of an

alternate method of service as ordered by the Court. See Fed. R. Civ. P. 4(f)(3).

Plaintiffs have made no showing that the Court granted approval for an alternate

method of service prior to attempting to serve US-Bangla Airlines outside of the

United States. Therefore, service of process fails under both FRCPs 4(f) and 4(h),

as well as under New York state law. Accordingly, the motion to dismiss is granted

under Rule 12(b)(5).

b. Jurisdiction

Notwithstanding the above, if the Court had found that service was proper,

the Plaintiffs cannot surpass the bar required to establish jurisdiction over the

airline. The Court now addresses this question.

The plane crash at issue occurred in Nepal. See Complaint at ¶ 2. All

Plaintiffs were Nepali citizens at the time of the accident. See id. at ¶ 3. Plaintiffs

do not assert specific jurisdiction here. Therefore, we turn to an assessment of

general personal jurisdiction.

The parties agree that US-Bangla Airlines’s principal place of business is

Dhaka, Bangladesh and that the company is formed under the laws of Bangladesh.

See id. at ¶ 53. In the Complaint, Plaintiffs assert that “significant senior-level

elements of the management and control of the Airline were effected in part from

the State of New York by officers of the Airline based in New York. This included

decision-making relating to aircraft maintenance, crew training and operational

safety.” See id. at ¶ 53. However, Plaintiffs provided no support in their Complaint

for this allegation. The Court instructed Plaintiffs to provide supporting

information to make a showing of jurisdiction, which they did via letter to the

Court dated December 21, 2020 (“Letter”). See ECF 10.

The Plaintiffs’ Letter includes a copy of a web page showing US-Bangla’s

office locations, which indicates an office located in Queens, an affidavit from a

person claiming to have personal knowledge that US-Bangla Airlines maintained

an office in Queens, an advertisement for the airline allegedly run in a local

newspaper, support for Plaintiffs’ allegation that one of US-Bangla’s alleged

shareholders, US-Bangla Assets Ltd., is based in Queens, and a copy of a web page

that provides support for the allegation that US-Bangla Assets Ltd. is a sister

company of US-Bangla Airlines. See id. Plaintiffs also provide information from

the New York Department of State database regarding US-Bangla Airlines, Ltd. to

support the allegation that this entity was formed in New York. See id. at Ex. D.

US-Bangla Airlines disputes that it maintained an office in Queens and

asserts that the office instead belonged to a related but separate entity, US-Bangla

Airlines Ltd. See ECF 25 at 1. The airline also disputes that the advertisement

Plaintiffs provided appeared in a local newspaper. However, at this stage of

pleading, the Court must draw all inferences in favor of Plaintiffs.

Even so, the information that Plaintiffs provided from the New York

Department of State database indicates that US-Bangla Airlines Ltd. was dissolved

on December 7, 2017, prior to the plane crash, making an assessment of this

entity’s relation to US-Bangla Airlines and citizenship irrelevant. See United

Mobile Techs., LLC v. Pegaso PCS, S.A. de C.V., 509 F. Appx. 48, 50 (2d. Cir.

2013) (holding that the relevant time at which jurisdiction should be assessed is at

the time of the filing of the summons and complaint); ECF 10 at Ex. C. US-Bangla

Assets Ltd. was dissolved on December 13, 2018, which was more than a year

prior to the filing of the Complaint See ECF 10 at Ex. E. This renders the

assessment of this entity’s citizenship and relationship to US-Bangla Airlines

irrelevant, as well. See id.

Also, assuming that US-Bangla Airlines did maintain a branch office in

Queens, this would not suffice as a basis for establishing general jurisdiction over

the entity in New York. See Gucci Am., Inc. v. Weixing Li, 768 F. 3d 122, 135 (2d

Cir. 2014) (holding that the existence of a branch office in the forum was not

sufficient to establish general jurisdiction when an entity is headquartered

elsewhere). Finally, the Plaintiffs made no showing that the advertisement they

provided appeared in a newspaper in New York. However, assuming that it did,

this also would not be enough to establish general jurisdiction over US-Bangla

Airlines for the purposes of this Complaint. See A.W.L.I. Group, Inc. v. Amber

Freight Shipping Lines, 828 F. Supp. 2d 557, 566 (E.D.N.Y. 2011) (stating that

advertising directed at residents of New York is not enough to support jurisdiction

if it is not accompanied by business transactions occurring in the state or the

defendant’s continuous and substantial presence in New York). The Plaintiffs have

made no showing that airline tickets were sold in New York or to residents in New

York, or offered any other support for jurisdiction by this means.

Plaintiffs have not sufficiently plead that US-Bangla Airlines is at home in

New York state or adequately connected to the state in any way to establish

personal jurisdiction. Therefore, US-Bangla Airlines’s motion to dismiss based on

lack of personal jurisdiction is granted.

IV.

Plaintiffs cross-move to compel oral deposition of US-Bangla Airlines’s

Managing Director, Mohammad A. Al Mamun, who they describe as a key

witness. See ECF 24 at 8-9. Because U.S.-Bangla Airlines’s motion to dismiss is

granted, Plaintiffs are not entitled to discovery. See Jazini v. Nissan Motor Co.,

Ltd. 148 F. 3d 181, 186 (2d Cir. 1998) (holding that denying discovery when

plaintiffs failed to establish personal jurisdiction over foreign defendant was

correct).

CONCLUSION

For the foregoing reasons, the defendant’s motion to dismiss is GRANTED

pursuant to Rules 12(b)(2) and 12(b)(5). Accordingly, the plaintiffs’ motion to

compel is DENIED.

SO ORDERED.

_/S/ Frederic Block____________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

November 18, 2021