The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ABDUL REHMAN, et al., :
:
Plaintiffs CIVIL ACTION NO. 3:19-653
:
v. (MANNION, D.J.)
:
ETIHAD AIRWAYS, et al.,
:
Defendants
:
ORDER
Presently before the court are two report and recommendations (“First
Report” and “Second Report”), (Doc. 36; Doc. 37), of Magistrate Judge
Susan E. Schwab. The First Report recommends that the motion to dismiss,
(Doc. 18), filed by defendant Etihad Airways P.J.S.C. be granted and that all
claims against it be dismissed for, inter alia, lack of personal jurisdiction. In
the Second Report, Judge Schwab recommends that the motion to
dismissed filed by defendant MedAire, Inc., (Doc. 20), be denied but that all
claims against it nevertheless be dismissed for lack of subject matter
jurisdiction. The plaintiffs Abdul Rehman and Sheikh Abdul Salam filed
objections to the Reports. (Doc. 41). Based upon the court’s review of the
record, Judge Schwab’s Reports will be ADOPTED IN THEIR ENTIRETY,
the objections OVERRULED, and the claims against both defendants
DISMISSED without prejudice.
When objections are timely filed to the report and recommendation of
a magistrate judge, the district court must review de novo those portions of
the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,
the extent of review is committed to the sound discretion of the district judge
and the court may rely on the recommendations of the magistrate judge to
the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.
2000) (citing U.S. v. Raddatz, 447 U.S. 667, 676 (1980)).
Even where no objections are made to the report and recommendation
of a magistrate judge, the court should, as a matter of good practice, “satisfy
itself that there is no clear error on the face of the record in order to accept
the recommendation.” Fed.R.Civ.P. 72(b) advisory committee’s note; see
also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469
(M.D.Pa.2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d
Cir.1987) (explaining judges should give some review to every report and
recommendation)). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); M.D.Pa.L.R.72.31.
In her First Report, Judge Schwab addresses Etihad’s motion to
dismiss on the basis of a lack of personal jurisdiction, a lack of standing,
improper service of process, and that the claims are barred by the Montreal
Convention. The First Report determines that the plaintiffs, like those in
Hashem v. Shabi, No. 17-CV-1645, 2018 WL 3382913, at *4 (D.D.C. Apr.
26, 2018), have not met their burden of proof of establishing that their service
of process complied with Rule 4 of the Federal Rules of Civil Procedure.
Additionally, the plaintiffs have not introduced any evidence rebutting the
affidavit Etihad submitted from a UAE attorney representing that certified
mail is not an accepted method of service in the UAE.
The First Report also concludes that the court lacks personal
jurisdiction over Etihad. This is because Etihad’s contacts with Pennsylvania
are not sufficient for general jurisdiction and, since none of the plaintiffs’
claims arise out of actions Etihad performed in Pennsylvania, the court also
lacks specific jurisdiction.
Finally, the First Report concludes that the plaintiffs’ claims for punitive
damages are barred by the Montreal Convention. Although the First Report
notes it is unclear from the face of the complaint whether the court lacks
subject matter jurisdiction over the plaintiff Sheikh Abdul Salam’s individual
claims, Judge Schwab concludes the plaintiffs’ state law claims are barred
by the Montreal Convention and that they lack standing to bring a wrongful
death claim for Rashida Khatoon because the laws of both Pennsylvania and
New York specify that a plaintiff does not have standing to bring a wrongful
death claim in an individual capacity. As a result, the First Report
recommends that Etihad’s motion to dismiss be granted and that leave to
amend be denied on the basis of futility.
In her Second Report, Judge Schwab concludes that, contrary to
MedAire’s argument, the clear weight of recent case law in this Circuit
indicates that Pennsylvania’s general jurisdiction provision in 42 Pa.C.S.
§5301 remains constitutional and that, pursuant to that statue and Bane v.
Netlink, Inc., 925 F.2d 637, 640 (3d Cir. 1991), MedAire has indeed
consented to personal jurisdiction. The Second Report also recommends
that MedAire’s motion to dismiss on the basis insufficient service of process
be denied because the plaintiffs’ service by certified mail to MedAire’s
performance manager in Arizona complied with Pennsylvania’s rules for
service of process, the plaintiffs made a good faith effort to serve MedAire,
and because MedAire had actual notice of the suit.
The Second Report, however, concludes that the court lacks subject
matter jurisdiction over the claims against MedAire because the plaintiffs’
claims do not arise under federal law and because there is no diversity
jurisdiction since the plaintiffs do not meet the amount in controversy
requirement with respect to their claims against MedAire. Finally, the Second
Report determines that the court lacks supplemental jurisdiction over the
state law claims against MedAire because they do not arise from a common
nucleus of operative facts. Accordingly, the Second Report ultimately
recommends dismissal of the plaintiffs’ claims against MedAire.
The plaintiffs initially filed a document that the court construed as a
motion for leave to file a sur-reply to the defendants’ motions to dismiss.
(Doc. 38). The plaintiffs also sought and were granted an extension to file
objections to the Reports. (Doc. 39; Doc. 40). The plaintiffs filed their
objections on January 1, 2020. (Doc. 41). Etihad filed a response to the
objections. (Doc. 42). The case was then reassigned to the undersigned and
the court denied the plaintiffs’ motion to file a sur-reply brief but permitted
them to supplement their existing objections. (Doc. 43). The plaintiffs
declined to supplement their objections.
In reviewing the plaintiffs’ objections, the court notes that, while they
reiterate the plaintiffs’ arguments from their earlier filings, they do nothing to
convince this court it possesses personal and/or subject matter jurisdiction
over the defendants. The plaintiffs’ ask that the court overlook “the
technicalities so fair justice can be done.” (Doc. 41, at 6). However, “the
pleading of jurisdiction is not a mere technicality.” Carroll v. Gen. Med. Co.,
53 F.R.D. 349, 351 (D.Neb.1971).
Federal Courts are courts of limited jurisdiction, and
have only such jurisdiction as is conferred by
Congress. Upon the pleading of jurisdiction depends
the very power of a federal court to adjudicate the
claim alleged. Until Jurisdiction is clear from the
record any order the court may enter relating to the
rights of the parties involved is void.
Id. As Judge Schwab aptly explained, this court lacks subject matter
jurisdiction over the claims against MedAire and personal jurisdiction over
Etihad.
Now, having reviewed the Reports of Judge Schwab, as well as the
record and pleadings, the court finds that Judge Schwab used proper
reasoning and evidence to support her Reports and arrived at legally-sound
conclusions. Therefore, the court adopts the Reports of Judge Schwab as
the opinions of this court and overrules the plaintiffs’ objections.
Accordingly, IT IS HEREBY ORDERED THAT:
(1) Judge Schwab’s Report, First Report and Second Report,
(Doc. 36; Doc. 37), are ADOPTED IN THEIR ENTIRETY;
(2) The plaintiffs’ objections to the Reports, (Doc. 41), are
OVERRULED;
(3) Etihad’s motion to dismiss, (Doc. 18), is GRANTED;
(4) MedAire’s motion to dismiss for lack of personal jurisdiction
and insufficient service of process, (Doc. 20), are DENIED;
(5) All claims against Etihad and MedAire in the Complaint, (Doc.
1), are DISMISSED without prejudice for lack of subject
matter jurisdiction; and
(6) The Clerk of Court is directed to CLOSE THIS CASE.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATE: March 1, 2021
19-653-02