Mary Erwin-Simpson v. AirAsia Berhad

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2020 Decided January 19, 2021

No. 19-7034

MARY ERWIN-SIMPSON AND KEVIN SIMPSON ,

APPELLANTS

v.

AIRASIA BERHAD AND AIRASIA X BERHAD ,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:18-cv-00083)

Amanda C. Dure argued the cause and filed the briefs for

appellants. Doug P. Desjardins entered an appearance.

Cynthia Cook Robertson argued the cause for appellees.

With her on the brief was Kevin M. Fong.

Before: SRINIVASAN, Chief Judge, and HENDERSON and

PILLARD , Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

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PILLARD , Circuit Judge: Mary Erwin-Simpson, a

resident of the District of Columbia, sued Malaysia-based

airline AirAsia in the District of Columbia for injuries

sustained on a 2016 flight from Malaysia to Cambodia. She

brought her claims under the Montreal Convention, a

multilateral treaty ratified by the United States that governs

airlines’ liability to passengers. The district court dismissed

the case for lack of both subject matter jurisdiction and

personal jurisdiction. We affirm on the latter ground. The

injuries Erwin-Simpson alleged did not arise from any activity

by AirAsia in the District of Columbia, and the only presence

that the airline identifies here is its website. The website on its

own is insufficient to render the corporation subject to suit in

the District.

BACKGROUND

Mary Erwin-Simpson alleges that she suffered injuries in

March 2016 on a flight from Malaysia to Cambodia with

Malaysia-based airline AirAsia Berhad (AirAsia) when a flight

attendant spilled boiling water on her. She and her husband

Kevin Simpson, both D.C. residents, sued AirAsia and its

affiliate AirAsia X Berhad (AirAsia X), also a Malaysia-based

airline, in the U.S. District Court for the District of Columbia,

claiming damages for personal injury and loss of consortium.

They sued under the Montreal Convention, a treaty to which

the United States is signatory that provides for airline liability

in the case of injuries that occur during flight. See Convention

for the Unification of Certain Rules for International Carriage

by Air, May 28, 1999, S. Treaty Doc. No. 106-45 (Montreal

Convention).

AirAsia and AirAsia X are separate corporate entities.

AirAsia is a low-cost airline that provides service across Asia;

it does not operate any flights to or from the United States.

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AirAsia X is a low-cost, long-haul airline that operates within

and outside Asia. Until 2017, when it began limited service to

and from Hawaii, AirAsia X, too, lacked any U.S. flights.

After the plaintiffs filed suit, AirAsia and AirAsia X

moved to dismiss for lack of subject matter jurisdiction and

personal jurisdiction. The district court granted the motion. It

first held that it lacked subject matter jurisdiction over the

claims that the plaintiffs asserted under the Montreal

Convention. A district court has federal question jurisdiction

over claims that arise under treaties. The plaintiffs contended

that the court had jurisdiction under Article 17 of the Montreal

Convention, which provides that “[t]he carrier is liable for

damage sustained in case of death or bodily injury of a

passenger” on board its aircraft. Montreal Convention art.

17(1). But the district court interpreted “carrier” in Article 17

as limited to the airline operating the particular aircraft carrying

the passenger when the injury occurred, relying on this court’s

precedent interpreting a similar provision in the Warsaw

Convention, the Montreal Convention’s predecessor treaty.

See Kapar v. Kuwait Airways Corp., 845 F.2d 1100, 1103

(D.C. Cir. 1988). Because AirAsia X was not the carrier

operating the flight on which Erwin-Simpson was injured, the

district court held that it lacked subject matter jurisdiction over

claims asserted against that airline.

As to AirAsia, the district court looked to Article 33 of the

Montreal Convention, which identifies the forums in which an

injured passenger may bring an action for damages, including

the airline’s domicile and principal place of business and the

place of destination. The claimed basis for jurisdiction here

was Article 33(2), which allows an action to be brought in a

forum (1) in which the injured passenger resides, (2) “to or

from which the carrier operates services . . . either on its own

aircraft, or on another carrier’s aircraft pursuant to a

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commercial agreement,” and (3) “in which that carrier

conducts its business . . . from premises leased or owned by the

carrier itself or by another carrier with which it has a

commercial agreement.” Montreal Convention art. 33(2).

Recognizing a lack of any precedent interpreting this provision,

the district court relied on text and drafting history to conclude

that the third clause requires that the carrier conduct business

through a physical presence in the forum. Because AirAsia

maintains no such presence in the United States, the court held

that it lacked subject matter jurisdiction over the damages

claim against AirAsia. It also dismissed the loss of consortium

claim on the ground that the court’s jurisdiction over it was

dependent on its power to decide the predicate personal injury

claim.

Given that Article 33(2)’s meaning was a question of first

impression, the district court proceeded to consider AirAsia’s

alternative ground for dismissal—lack of personal jurisdiction.

In their opposition to the motion to dismiss, the plaintiffs did

not identify any statutory basis for personal jurisdiction in the

District of Columbia or assert that the court had specific

jurisdiction over AirAsia. They instead limited their argument

to whether the court might be able to exercise general

jurisdiction over AirAsia on account of business the airline

does with D.C. residents through its website. As support, they

cited our precedent holding that a corporation’s website “can

satisfy general jurisdiction requirements” as a statutory and

constitutional matter if the website is both “interactive” and

used by D.C. residents in “a continuous and systematic way.”

FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1092 (D.C.

Cir. 2008) (quoting Gorman v. Ameritrade Holding Corp., 293

F.3d 506, 511-12 (D.C. Cir. 2002) (internal quotation marks

omitted)). To determine whether the requirement of

continuous and systematic use was met in this case, the

plaintiffs requested jurisdictional discovery to determine the

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frequency and volume of AirAsia’s contacts with the District

of Columbia through its website. Presumably because our

precedent recognized that the provision of the D.C. statute

authorizing personal jurisdiction over defendants “doing

business” in the District reaches as far as the Constitution

permits, see FC Inv. Grp., 529 F.3d at 1092, the plaintiffs did

not specify whether their arguments were statutory or

constitutional.

The district court denied the plaintiffs’ request for

discovery and held that it lacked personal jurisdiction over

AirAsia. The court concluded that the reasoning underlying

this court’s precedent had been abrogated by intervening

Supreme Court decisions that hold that the constitutionality of

an assertion of general jurisdiction over a foreign corporation

depends on proof of corporate contacts with the state that are

“so continuous and systematic as to render [the corporation]

essentially at home in the forum State.” Daimler AG v.

Bauman, 571 U.S. 117, 139 (2014) (quoting Goodyear Dunlop

Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)

(internal quotation marks omitted)). Because the plaintiffs

offered no explanation as to how AirAsia’s contacts through its

website alone could render the corporation at home in the

District of Columbia, the court deemed jurisdictional discovery

unjustified.

The district court also denied the plaintiffs’ alternative

request to transfer the case to the District of Hawaii. They

argued that AirAsia X’s flights to and from Hawaii could

establish general jurisdiction in the forum, but the court held

that the lack of subject matter jurisdiction over the claims

against AirAsia X precluded transfer.

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DISCUSSION

On appeal, the plaintiffs concede that the district court

lacked subject matter jurisdiction over claims against AirAsia

X, leaving at issue only their claims against AirAsia. As to

those latter claims, we typically would assess subject matter

jurisdiction before personal jurisdiction. But a court “does not

abuse its discretion by turning directly to personal jurisdiction”

when it “has before it a straightforward personal jurisdiction

issue presenting no complex question of state law, and the

alleged defect in subject-matter jurisdiction raises a difficult

and novel question.” Ruhrgas AG v. Marathon Oil Co., 526

U.S. 574, 588 (1999); see also Forras v. Rauf, 812 F.3d 1102,

1105 (D.C. Cir. 2016). As the district court appreciated, such

is the case here: No federal court has interpreted Article

33(2)’s requirement of presence in a forum state, and an

examination of the Montreal Convention’s text and drafting

history makes for a complicated inquiry. The question of

personal jurisdiction, on the other hand, turns out to be

relatively straightforward. We thus begin and end there.

A. Personal Jurisdiction

We review the district court’s dismissal for lack of

personal jurisdiction de novo and its denial of jurisdictional

discovery for abuse of discretion. See Livnat v. Palestinian

Auth., 851 F.3d 45, 48 (D.C. Cir. 2017). “Federal courts

ordinarily follow state law in determining the bounds of their

jurisdiction over persons.” Daimler, 571 U.S. at 125 (citing

Fed. R. Civ. P. 4(k)(1)(A)). “The plaintiffs have the burden of

establishing the court’s personal jurisdiction” over the

defendant. FC Inv. Grp., 529 F.3d at 1091.

The Supreme Court has developed two distinct analyses of

the circumstances in which a forum state may, consistent with

due process, authorize its courts to exercise contact-based

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personal jurisdiction over a defendant. See Livnat, 851 F.3d at

56. The first, specific jurisdiction, “depends on an affiliatio[n]

between the forum and the underlying controversy, principally,

activity or an occurrence that takes place in the forum State and

is therefore subject to the State’s regulation.” Goodyear, 564

U.S. at 919 (alteration in original) (citation and internal

quotation marks omitted). The plaintiffs do not claim any

statutory basis for specific jurisdiction here, and there are no

facts to suggest the injury alleged relates to or arises from any

AirAsia contacts with the District of Columbia.

The second type of contacts-based personal jurisdiction,

general jurisdiction, “permits a court to assert jurisdiction over

a defendant based on a forum connection unrelated to the

underlying suit.” Livnat, 851 F.3d at 56 (quoting Walden v.

Fiore, 571 U.S. 277, 283 n.6 (2014)). Two District of

Columbia statutes provide for general jurisdiction.

Under D.C. Code § 13-422, a D.C. court can exercise

jurisdiction “over a person domiciled in, organized under the

laws of, or maintaining his[, her,] or its principal place of

business in, the District of Columbia,” without limitation to

claims arising from or related to the plaintiff’s D.C. domicile,

incorporation, or principal place of business.

Under section 13-334(a)—a service of process statute that

D.C. courts have interpreted to confer personal jurisdiction—a

D.C. court can exercise jurisdiction over a foreign corporation

“doing business in the District.” See Gonzalez v. Internacional

De Elevadores, S.A., 891 A.2d 227, 233 (D.C. 2006). To

establish jurisdiction under section 13-334(a), a plaintiff must

serve the defendant corporation in the District of Columbia. Id.

See generally Burnham v. Superior Court, 495 U.S. 604, 610-

15 (1990) (plurality opinion).

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The plaintiffs have failed to cite any statutory basis for

their assertion of general jurisdiction. But the defendant, a

Malaysian corporation without a principal place of business in

the District, clearly does not meet the conditions of section 13-

422. The only D.C. statute potentially supporting general

jurisdiction in this case is thus section 13-334(a), the “doing

business” provision, which was the basis addressed in our

precedent on which the plaintiffs relied. See FC Inv. Grp., 529

F.3d at 1091; Gorman, 293 F.3d at 509-10; see also El-Fadl v.

Cent. Bank of Jordan, 75 F.3d 668, 672-75 (D.C. Cir. 1996)

(accepting argument that defendant “has been doing business

in the District of Columbia” as invoking section 13-334(a)

despite plaintiff’s failure to cite it), abrogated on other grounds

by Samantar v. Yousuf, 560 U.S. 305 (2010).1

1

“For a claim that arises under federal law,” as a claim under the

Montreal Convention does, proper service of summons by a plaintiff,

even outside the forum state or the United States, establishes

personal jurisdiction in the forum state if (1) “the defendant is not

subject to jurisdiction in any state’s courts of general jurisdiction”

and (2) “exercising jurisdiction is consistent with the United States

Constitution and laws.” Fed. R. Civ. P. 4(k)(2); see also Mwani v.

bin Laden, 417 F.3d 1, 10 (D.C. Cir. 2005). The plaintiffs forfeited

Rule 4(k)(2) as a basis for personal jurisdiction by failing to raise it

before the district court or on appeal. See Herero People’s

Reparations Corp. v. Deutsche Bank, A.G., 370 F.3d 1192, 1196

(D.C. Cir. 2004); cf. Mwani, 417 F.3d at 11 n.10 (excusing plaintiffs’

failure to explicitly mention Rule 4(k)(2) where, unlike here, they

cited Rule 4 and made an argument based on “national contacts

personal jurisdiction”). They also forfeited a consent-based personal

jurisdiction argument—that an airline consents to personal

jurisdiction in any of the Article 33 forums when it operates in a

signatory state to the Montreal Convention—because their counsel

raised it for the first time at oral argument. Oral Arg. Rec. 3:18-4:07,

6:37-7:34; see Napleton 1050, Inc. v. NLRB, 976 F.3d 30, 50 (D.C.

Cir. 2020).

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“The D.C. Court of Appeals has indicated that the reach of

‘doing business’ jurisdiction under § 13-334(a) is co-extensive

with the reach of constitutional due process.” FC Inv. Grp.,

529 F.3d at 1092 (citation and internal quotation marks

omitted). The Constitution permits a court to exercise general

jurisdiction over a foreign corporation “when [its] affiliations

with the State are so ‘continuous and systematic’ as to render

[it] essentially at home in the forum State.” Goodyear, 564

U.S. at 919 (quoting Int’l Shoe Co. v. Washington, 326 U.S.

310, 317 (1945)). To be “essentially at home” in a state means

to be “comparable to a domestic enterprise in that State.”

Daimler, 571 U.S. at 133 n.11. The paradigm forums that meet

this standard are a corporation’s place of incorporation and its

principal place of business. Id. at 137. But the Supreme Court

has also recognized “the possibility that in an exceptional case”

another forum would qualify; provided other constitutional

criteria were met, a forum could exercise general personal

jurisdiction over a party whose contacts with the forum were

“so substantial and of such a nature as to render [the party] at

home in that State.” Id. at 139 n.19.

AirAsia is not subject to general jurisdiction in the District

for two independent reasons. First, the plaintiffs appear to have

failed to satisfy section 13–334(a)’s service of process

requirements. The district court did not address this issue

because it did not consider the statutory basis behind the

plaintiffs’ assertion of general jurisdiction. But the record

shows that the plaintiffs did not serve AirAsia in the District of

Columbia, as required by section 13–334(a). Instead, they

mailed copies of the summons and complaint to the defendant

in Malaysia. See Return of Service/Affidavit, Erwin-Simpson

v. AirAsia Berhad, No. 18-cv-83 (D.D.C. Mar. 29, 2018), ECF

No. 7. “Where the basis for obtaining jurisdiction over a

foreign corporation is § 13–334(a) . . . a plaintiff who serves

the corporation by mail outside the District is ‘foreclosed from

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benefitting from [the statute’s] jurisdictional protection.’”

Gorman, 293 F.3d at 514 (alteration in original) (quoting

Everett v. Nissan Motor Corp., 628 A.2d 106, 108 (D.C.

1993)).

Second, the exercise of general jurisdiction over AirAsia

fails as a matter of due process. As an initial matter, we note

that personal jurisdiction objections are forfeited if not

asserted, and neither defendant raised a statutory objection to

personal jurisdiction under section 13-334(a). They never

pointed out, for example, that they were not served within the

District as would be required for an assertion of general

personal jurisdiction under the statute. Cf. Foremost-

McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 453-

54 (D.C. Cir. 1990) (holding that defendant waived a

constitutional objection to personal jurisdiction where it raised

only a statutory objection before the district court). Because

section 13-334(a)’s requirement of service within the District

was not litigated, we consider the constitutional component of

personal jurisdiction on which the parties consistently focused

and the district court ruled: whether AirAsia’s contacts are so

substantial and of such a nature as to support general personal

jurisdiction over AirAsia in the District of Columbia.

There is no basis on which to conclude AirAsia’s contacts

are “so continuous and systematic as to render [it] essentially

at home” in the District. Daimler, 571 U.S. at 139 (alteration

in original) (citation and internal quotation marks omitted).

The airline operates no flights to the District and has no

physical presence in the forum. The only presence that it

identifies in the District is a website that is insufficient on its

own to render the airline “comparable to a domestic enterprise”

in the forum. Id. at 133 n.11. The plaintiffs focus on the fact

that D.C. residents can find and purchase tickets on AirAsia’s

website, arguing that such activity could support general

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jurisdiction if it were sufficiently voluminous. They

accordingly contend the district court should have granted

jurisdictional discovery into the extent and nature of such

transactions before dismissing for lack of personal jurisdiction.

But they do not identify any reason to think that use of

AirAsia’s website in the District would itself amount to forum

contact so substantial and of such a nature as to effectively

make AirAsia at home in the District of Columbia.

It is true that we have twice before held that a court might

be able to assert general jurisdiction over a nonresident

corporation on account of its in-forum online business alone.

See FC Inv. Grp., 529 F.3d at 1091-93; Gorman, 293 F.3d at

509-13. In Gorman, we permitted jurisdictional discovery into

the “frequency and volume” of an online broker’s internet

business transactions with D.C. residents to determine whether

those contacts could support general jurisdiction. 293 F.3d at

513. And in FC Investment Group, we said that there are

“certain circumstances” under which “a foreign corporation’s

maintenance of a website that is accessible in the District can

satisfy general jurisdictional requirements,” though we went on

to hold that that the “single District customer” the record in that

case reflected was insufficient to support general jurisdiction

or justify discovery seeking such support. 529 F.3d at 1092-

93. Applying the standard established by these cases to the

facts at hand might suggest that AirAsia’s website alone could

be sufficient to support general jurisdiction—or, at the very

least, to justify jurisdictional discovery.

As the district court correctly held, however, the reasoning

underlying our precedent has been eroded by intervening

Supreme Court decisions. Our precedent asked simply whether

the online business transactions between a foreign corporation

and D.C. residents were “continuous and systematic,”

following the way the Supreme Court’s sparse precedent on

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general jurisdiction had hitherto described its minimum

requirements. See Helicopteros Nacionales de Colombia, S.A.

v. Hill, 466 U.S. 408, 415-16 (1984); Perkins v. Benguet

Consol. Min. Co., 342 U.S. 437, 445-46 (1952). Since then,

Daimler and Goodyear have clarified that the proper inquiry

“is not whether a foreign corporation’s in-forum contacts can

be said to be in some sense ‘continuous and systematic,’” but

rather whether the contacts “are so ‘continuous and systematic’

as to render [it] essentially at home in the forum State.”

Daimler, 571 U.S. at 138-39 (alteration in original) (quoting

Goodyear, 564 U.S. at 919). Because Gorman and FC

Investment Group set a lower bar, we overrule our precedent

on that point as inconsistent with Daimler and Goodyear.2

This holding does not preclude the possibility that, under

the facts of some future case, a corporation’s online contacts

could support general jurisdiction. Cf. Kuan Chen v. U.S.

Sports Acad., Inc., 956 F.3d 45, 57 (1st Cir. 2020) (reserving

“the possibility that a corporation’s pervasive virtual presence

in a forum may be the linchpin for a finding that its business

2

Generally, a panel decision can be overruled only through en banc

review. But in cases that do not warrant the heavy administrative

burdens of en banc review, we have long recognized a panel can

instead seek the endorsement of the full court for its decision,

announcing that endorsement in a footnote of the panel decision. See

Irons v. Diamond, 670 F.2d 265, 268 n.11 (D.C. Cir. 1981); Policy

Statement on En Banc Endorsement of Panel Decisions 1 (Jan. 17,

1996). One type of case in which an Irons footnote is appropriate is

a decision “overruling a . . . precedent which, due to an intervening

Supreme Court decision . . . , a panel is convinced is clearly an

incorrect statement of current law.” Policy Statement 2-3. Because

this is just such a case, “this opinion has been circulated to and

approved by all of the active members of the court, and thus

constitutes the law of the circuit.” Nat’l Env’t Dev. Ass’n’s Clean

Air Project v. EPA, 891 F.3d 1041, 1052 n.* (D.C. Cir. 2018).

(Judge Garland did not participate in this matter.)

13

contacts are so continuous and systematic as to render it at

home in the forum”). We hold only that, for online contacts

alone to be enough, they would need to render the corporation

“essentially at home” in the District, see id. at 57-58, and that

no facts alleged about AirAsia’s website or its use plausibly

suggest that this could be such a case. Because “we do not see

what facts additional discovery could produce that would affect

our jurisdictional analysis,” the district court did not abuse its

discretion in dismissing the case without granting discovery.

Goodman Holdings v. Rafidain Bank, 26 F.3d 1143, 1147

(D.C. Cir. 1994); see also Daimler, 571 U.S. at 139 n.20 (“[I]t

is hard to see why much in the way of discovery would be

needed to determine where a corporation is at home.”).

B. Request to Transfer

The plaintiffs also challenge the district court’s denial of

their alternative request to transfer this case to the District of

Hawaii. They sought transfer under 28 U.S.C. § 1406, which

permits a district court to either dismiss a case “laying venue in

the wrong division or district” or to transfer it to a court “in

which it could have been brought” if doing so would “be in the

interest of justice.” They argue the case could have been

brought in the District of Hawaii because, even if AirAsia’s

contacts with the District of Columbia were insufficient to

support general jurisdiction, its contacts with Hawaii could.

And, on appeal, they claim that transfer in this case would be

in the interest of justice because, if their claims here are

dismissed, any re-filing in Hawaii would be time-barred by the

Montreal Convention’s two-year statute of limitations.

We hold that the district court did not abuse its discretion

in denying plaintiffs’ request to transfer this case to the District

of Hawaii. See McFarlane v. Esquire Mag., 74 F.3d 1296,

1301 (D.C. Cir. 1996). The contacts on which the plaintiffs

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relied to support personal jurisdiction in arguing for transfer to

Hawaii were those of AirAsia X. But the district court

correctly recognized it had no authority to transfer claims

against AirAsia X, over which it lacked subject matter

jurisdiction. Assuming that the federal courts had subject

matter jurisdiction over the claims against AirAsia, the district

court’s lack of personal jurisdiction would not render our

district court powerless to transfer those claims. See Naartex

Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983).

But transfer would be permissible only if the district court

could determine that the District of Hawaii likely would have

personal jurisdiction over AirAsia. See Sharp Elecs. Corp. v.

Hayman Cash Reg. Co., 655 F.2d 1228, 1230 (D.C. Cir. 1981);

see also Sinclair v. Kleindienst, 711 F.2d 291, 294 (D.C. Cir.

1983).

Given that AirAsia has no contacts with Hawaii apart from

its website, the airline is no more at home in that forum than it

is in the District of Columbia. It is unlikely that AirAsia X’s

added contact with Hawaii—a flight it operates between

Honolulu and Malaysia—would support general jurisdiction

even if that contact could be imputed to AirAsia. See Daimler,

571 U.S. at 136 (“[S]ubject[ing] foreign corporations to general

jurisdiction whenever they have an in-state subsidiary or

affiliate . . . would sweep beyond even the ‘sprawling view of

general jurisdiction’ we rejected in Goodyear.” (citation

omitted)). Because the District of Hawaii is not a district “in

which [the action] could have been brought” against AirAsia

under 28 U.S.C. § 1406, we need not consider the plaintiffs’

claim that the transfer would have been in the interest of justice.

See Hoffman v. Blaski, 363 U.S. 335, 342-44 (1960)

(interpreting similar language in 28 U.S.C. § 1404).

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* * *

For the foregoing reasons, we affirm the district court’s

dismissal on the ground that it lacked personal jurisdiction over

AirAsia.

So ordered.