Petition for Writ of Certiorari — UPS Supply Chain Solutions, Inc., Petitioner v. EVA Airways Corporation

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APPENDIX A

Opinion of the U.S. Court of Appeals

for the Second Circuit (Jul. 19, 2023)

National Union Fire Insurance Company of

Pittsburgh, PA v. UPS Supply Chain Solutions, Inc.,

No. 21-2867, 74 F.4th 66 (2d Cir. 2023).

Before: JACOBS, LOHIER, and NATHAN, Circuit Judges.

Appellant UPS Supply Chain Solutions, Inc.

was sued in the Southern District of New York and

filed a third-party complaint against Appellee EVA

Airways Corporation, seeking indemnification and

contribution. The district court granted EVA’s motion

to dismiss for lack of personal jurisdiction. UPS now

appeals, arguing that EVA was subject to specific

personal jurisdiction based on both New York’s longarm statute and the Montreal Convention. We hold

that UPS has failed to allege the in-state injury

required for specific jurisdiction in New York, that the

Montreal Convention does not confer personal

jurisdiction, and that the record does not establish

that EVA consented to personal jurisdiction in light of

the Convention or its contract with UPS. Accordingly,

we AFFIRM.

Judge Lohier concurs in a separate opinion.

NATHAN, Circuit Judge:

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The Montreal Convention, a multilateral treaty

which entered into force in 2003, governs claims

arising out of the international transportation of

persons, baggage, and cargo by air. 1 The treaty

includes jurisdictional articles providing where such

claims can be brought. This appeal presents a

question of first impression: whether the Montreal

Convention confers personal jurisdiction. In

particular, we must determine whether by enabling

actions arising under the treaty to be brought in the

courts of certain countries, the Montreal Convention

provides those courts with personal jurisdiction over

the parties. Consistent with our decisions interpreting

the Montreal Convention’s predecessor, we conclude

that it does not. The Montreal Convention’s

jurisdictional provisions place a limit on when courts

of the United States, as opposed to courts of other

signatory nations, may exercise jurisdiction over a

claim arising under the treaty. Under U.S. law, this is

referred to as treaty jurisdiction, which is a form of

subject-matter jurisdiction. The Montreal Convention

does not, however, alter our domestic personal

jurisdiction

requirements,

which

must

be

independently established.

Because the Montreal Convention does not

confer personal jurisdiction, and because Appellant

has not otherwise established a basis for personal

jurisdiction over Appellee in this action, we affirm the

Convention for the Unification of Certain Rules for

International Carriage by Air, May 28, 1999, T.I.A.S. No. 13,038.

1

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district court’s

jurisdiction.

dismissal

for

lack

of

personal

BACKGROUND

This case began with the shipment of 24 pallets

of vitamins from Chicago to South Korea. National

Union Fire Insurance Company of Pittsburgh, PA

insured the vitamins, and UPS Supply Chain

Solutions, Inc. contracted for them to be carried by

EVA Airways Corporation, an airline headquartered

in Taiwan. EVA carried the shipment on non-stop

flights from Chicago to Taiwan and then from Taiwan

to South Korea. The vitamins allegedly arrived

damaged, and this litigation ensued.

In April 2020, National Union sued UPS in the

Southern District of New York, asserting that UPS

breached its duties as a common carrier under the

Montreal Convention. UPS did not assert lack of

personal jurisdiction as an affirmative defense

against National Union’s action for damages. Facing

a potential adverse judgment, UPS filed a third-party

complaint against EVA in January 2021, seeking

indemnity and contribution. EVA timely filed an

answer in February 2021, in which it asserted lack of

personal jurisdiction as an affirmative defense. EVA

requested a pre-motion conference on the issue of

personal jurisdiction in March 2021, and then moved

to dismiss for lack of personal jurisdiction in April

2021. In its opposition to the motion, UPS argued that

the district court could assert specific personal

jurisdiction over EVA either under New York’s long-

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arm statute, pursuant to the Montreal Convention, or

pursuant to a consent theory of personal jurisdiction.

In a footnote, UPS suggested that EVA’s delay in

moving to dismiss may also constitute forfeiture. UPS

conceded that the district court in New York lacked

general jurisdiction over EVA.

On October 18, 2021, the district court (Ramos,

J.) granted EVA’s motion to dismiss and terminated

EVA as a third-party defendant. Nat’l Union Fire Ins.

Co. of Pittsburgh, PA. v. UPS Supply Chain Sols., Inc.,

No. 20-cv-2818, 2021 WL 4868583 (S.D.N.Y. Oct. 18,

2021). The court reasoned that UPS did not establish

jurisdiction under New York’s long-arm statute and

that the Montreal Convention’s jurisdictional

provisions relate to subject-matter jurisdiction, not

personal jurisdiction. Id. at *2–3. The court also

rejected UPS’s forfeiture argument because EVA

promptly raised the issue of personal jurisdiction in

its answer and requested a pre-motion conference. Id.

at *1 n.1.

On November 17, 2021, UPS filed a notice of

appeal from the October 18 order, which the district

court docketed as a notice of interlocutory appeal.

While this appeal was pending, UPS and National

Union entered into a settlement agreement. On

August 18, 2022, the district court entered a final

order dismissing the case pursuant to a joint

stipulation between National Union and UPS.

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DISCUSSION

I.

Appellate Jurisdiction

Before deciding whether the district court had

personal jurisdiction over EVA, we must address

whether we have jurisdiction over this appeal.

Following oral argument, we issued an order directing

the parties to submit supplemental briefing

addressing whether UPS appealed from a final

decision of the district court, and if not, whether we

could nevertheless exercise appellate jurisdiction.

Both UPS and EVA maintain that we have appellate

jurisdiction. We agree.

Generally, we may exercise jurisdiction only

over appeals from “final decisions of the district

courts.” 28 U.S.C. § 1291. “An order that adjudicates .

. . the rights and liabilities of fewer than all of the

remaining parties[] is not a final order unless the

court directs the entry of a final judgment as to the

dismissed claims or parties ‘upon an express

determination that there is no just reason for delay.’”

Citizens Accord, Inc. v. Town of Rochester, 235 F.3d

126, 128 (2d Cir. 2000) (quoting Fed. R. Civ. P. 54(b)).

The district court’s October 18 order granting EVA’s

motion to dismiss was not a final order because it did

not resolve National Union’s claims against UPS and

the district court did not direct entry of a final

judgment as to EVA under Rule 54(b). Accordingly,

UPS’s appeal was premature. Nevertheless, the

district court’s order of dismissal on August 18, 2022,

prior to our hearing the appeal, adjudicated the rights

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of all remaining parties and thereby “cured any

jurisdictional infirmity” under 28 U.S.C. § 1291.

Smith ex rel. Smith v. Half Hollow Hills Cent. Sch.

Dist., 298 F.3d 168, 171 (2d Cir. 2002).

Still, our jurisdictional inquiry does not end

there. Appellants in civil cases must file the requisite

notice of appeal “within 30 days after entry of the

judgment or order appealed from.” Fed. R. App. P. 4(a)

(emphasis added); see Siemon v. Emigrant Savings

Bank (In re Siemon), 421 F.3d 167, 169 (2d Cir. 2005)

(observing that Rule 4(a)’s time limit is “mandatory

and jurisdictional”). Here, UPS’s notice of appeal was

filed nine months before the final order was entered.

However, “a premature notice of appeal from a

nonfinal order may ripen into a valid notice of appeal

if a final judgment has been entered by the time the

appeal is heard and the appellee suffers no prejudice .

. . even if the final judgment was not itself appealed.”

Cmty. Bank, N.A. v. Riffle, 617 F.3d 171, 174 (2d Cir.

2010) (internal citations omitted). EVA explicitly

concedes that it has suffered no prejudice. Therefore,

we treat UPS’s premature notice of appeal “as if it had

been timely filed” after the district court entered final

judgment. Half Hollow Hills Cent. Sch. Dist., 298 F.3d

at 172.

Having satisfied ourselves of our own

jurisdiction to decide this appeal, we turn to whether

the district court properly concluded that it lacked

personal jurisdiction over EVA.

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II.

Personal Jurisdiction

In an appeal from a dismissal for lack of

personal jurisdiction, we review the district court’s

legal conclusions de novo and its factual findings for

clear error. Sunward Elecs., Inc. v. McDonald, 362

F.3d 17, 22 (2d Cir. 2004). UPS bears the burden of

demonstrating personal jurisdiction over EVA, though

we construe the pleadings and affidavits in the light

most favorable to UPS and resolve all doubts in its

favor. Penguin Grp. (USA) Inc. v. Am. Buddha, 609

F.3d 30, 34–35 (2d Cir. 2010).

UPS claims that the district court could assert

personal jurisdiction over EVA based on New York’s

long-arm statute, the Montreal Convention, EVA’s

consent in light of the Convention, and EVA’s alleged

forfeiture of a personal jurisdiction defense. As a

threshold matter, UPS’s forfeiture argument is

without merit. A defendant may “forfeit its objections

to personal jurisdiction by failing to raise them timely

in the answer or in an initial motion,” Brown v.

Lockheed Martin Corp., 814 F.3d 619, 625 (2d Cir.

2016) (citing Fed. R. Civ. P. 12(h)(1)), but here, EVA

did raise its objections to personal jurisdiction in its

answer as is expressly permitted by Fed. R. Civ. P.

12(h)(1). Because the defense was timely made, we

address UPS’s arguments regarding personal

jurisdiction pursuant to New York’s long-arm statute,

the Montreal Convention, and EVA’s consent.

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A. New York’s Long-Arm Statute

Specific personal jurisdiction exists in suits

“arising out of or related to the defendant’s contacts

with the forum.” Porina v. Marward Shipping Co., 521

F.3d 122, 128 (2d Cir. 2008) (cleaned up). For a federal

court to exercise specific jurisdiction, there must be a

statutory basis for jurisdiction and the exercise of

jurisdiction must comport with constitutional due

process requirements. Licci ex rel. Licci v. Lebanese

Canadian Bank, SAL, 673 F.3d 50, 59–60 (2d Cir.

2012). Though many state statutes extend personal

jurisdiction to the full extent permitted by the

Constitution—thereby merging the statutory and

constitutional inquiries—New York’s long-arm

statute does not reach so far. Id. at 60–61.

Section 302(a)(3) of New York’s long-arm

statute, N.Y. C.P.L.R. § 302(a)(3), which UPS

identifies as the statutory basis for specific

jurisdiction,

is

“more

stringent

than

any

constitutional requirement.” Ingraham v. Carroll, 90

N.Y.2d 592, 597 (1997); see Best Van Lines v. Walker,

490 F.3d 239, 245 (2d Cir. 2007). Section 302(a)(3)

confers jurisdiction over a non-domiciliary when five

elements are met:

(1) The [plaintiff stated a colorable claim

that the] defendant committed a tortious

act outside the state; (2) the cause of

action arose from that act; (3) the act

caused injury to a person or property

within the state; (4) the defendant

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expected or should reasonably have

expected the act to have consequences in

the state; (5) the defendant derives

substantial revenue from interstate or

international commerce.

Sole Resort, S.A. de C.V. v. Allure Resorts Mgmt., LLC,

450 F.3d 100, 106 (2d Cir. 2006) (citing LaMarca v.

Pak–Mor Mfg. Co., 735 N.E.2d 883, 886 (N.Y. 2000)).

UPS failed to allege the third element under

Section 302(a)(3), which requires that the tortious act

caused injury to a person or property within New

York. The injury underlying this action—the damage

to the pallets of vitamins—could not have occurred in

New York, given that EVA transported the vitamins

from Chicago to South Korea, stopping only in

Taiwan. UPS argues that the cargo damage is not the

relevant injury because it does not seek compensation

for the vitamins; rather, it seeks indemnification and

contribution for the damages it paid to National

Union, which resulted from this New York-based

litigation. In other words, UPS’s grievance is that it

was sued (and had to pay up) in New York.

UPS‘s argument is counter to our precedent.

For the purposes of Section 302(a)(3), “[t]he situs of

the injury is the location of the original event which

caused the injury, not the location where the resultant

damages are felt by the plaintiff.” Whitaker v. Am.

Telecasting, Inc., 261 F.3d 196, 209 (2d Cir. 2001)

(internal citation omitted). Here, the “injury” asserted

by UPS is the cost of litigating the underlying lawsuit

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in New York and exposure to a New York court

judgment. But “[t]he occurrence of financial

consequences in New York . . . is not a sufficient basis

for jurisdiction under § 302(a)(3) where the

underlying events took place outside New York.” Id.

(internal citation omitted). In Whitaker, we held that

an attorney claiming his former client and an out-ofstate corporation conspired to deprive him of legal fees

could not establish an in-state injury because

although the attorney tendered the legal services in

New York and felt the economic impact of not

receiving payment in New York, the alleged

conspiracy occurred out-of-state. Id. at 209. Though

Whitaker was not decided in the context of a thirdparty complaint, the same principles apply. Indeed,

“the location where the resultant damages are felt” is

particularly ill-suited to be the situs of injury in the

impleader context where, as here, the third-party

plaintiff did not raise a personal jurisdiction challenge

to the underlying suit. As Judge Buchwald observed

in a nearly identical case, if prospective liability were

sufficient to establish in-state injury, then Section

302(a)(3)’s in-state injury requirement “would always

be satisfied” for third-party defendants in such cases.

Royal & Sun All. Ins. PLC v. UPS Supply Chain Sols.,

Inc., No. 16-cv-09791, 2018 WL 1888483, at *3

(S.D.N.Y. Apr. 5, 2018).

Because New York’s long-arm statute does not

authorize personal jurisdiction over EVA in this

action, we need not decide whether exercising such

jurisdiction would comport with constitutional due

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process. See Best Van Lines, Inc. v. Walker, 490 F.3d

239, 242 (2d Cir. 2007) (holding that we proceed to the

constitutional prong of the analysis “[i]f, but only if”

we conclude that there is a statutory basis for personal

jurisdiction).

B. The Montreal Convention

Next, we must answer whether the Montreal

Convention provides a separate basis for exercising

personal jurisdiction over EVA in this action. The

Montreal Convention sets forth the types of claims

that can be brought relating to international air

carriage. It is well established that the treaty

“preempt[s] state law and provide[s] the sole avenue

for damages claims that fall within the scope of [its]

provisions.” Cohen v. Am. Airlines, Inc., 13 F.4th 240,

246 (2d Cir. 2021). The treaty also includes

jurisdictional provisions dictating where such claims

can be brought. Pointing to these jurisdictional

provisions, UPS argues that in enabling certain

nation-states’ courts to adjudicate a claim arising

under the treaty, the Montreal Convention provides

those courts with personal jurisdiction over the

defendant against whom the claim is brought. By this

logic, UPS contends that because the treaty

authorizes it to bring a third-party claim against EVA

for indemnification and contribution, and because it

authorizes courts in the United States to hear that

third-party claim, we should interpret the Montreal

Convention to establish personal jurisdiction over

EVA in this action.

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For the reasons explained below, we hold that

the Montreal Convention’s jurisdictional provisions

speak only to treaty jurisdiction as a form of subject

matter jurisdiction, not personal jurisdiction.

Therefore, the Montreal Convention does not confer

personal jurisdiction on United States courts in

actions arising under the treaty. The power to assert

jurisdiction over a claim is distinct from the power to

assert jurisdiction over a party, which must be

separately established.

“The interpretation of a treaty, like the

interpretation of a statute, begins with its text.”

Medellín v. Texas, 552 U.S. 491, 506 (2008). The

Montreal

Convention’s

primary

jurisdictional

provision, Article 33, provides that “[a]n action for

damages must be brought, at the option of the

plaintiff, in the territory of one of the States Parties .

. . before the court of” [1] the carrier’s domicile, [2] the

carrier’s principal place of business, [3] the place

where the contract was made, [4] the place of

destination, or [5] in certain actions, a passenger’s

principal and permanent residence. Montreal

Convention art. 33(1)–(2). Article 33 also dictates that

“[q]uestions of procedure shall be governed by the law

of the court seised of the case.” Id. art. 33(4).

Where one carrier (the “contracting carrier”)

contracted with a party to provide air carriage and a

different carrier (the “actual carrier”) performed the

actual carriage, the Montreal Convention permits

either carrier to implead the other in the event that it

is sued. See id. art. 45 (authorizing “the defendant

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carrier [to] seek to have the remaining carrier joined

in the proceedings according to the procedural

requirements of the forum in which the action is

brought”). A special jurisdictional provision, Article

46, applies in actions involving carriage arranged by

a contracting carrier. Article 46 provides that such

actions “must be brought, at the option of the plaintiff,

in the territory of one of the States Parties, either

before a court in which an action may be brought

against the contracting carrier, as provided in Article

33, or before the court having jurisdiction at the place

where the actual carrier has its domicile or its

principal place of business.” Id. art. 46. In effect,

Article 46 expands Article 33’s list of fora to

encompass both the contracting carrier’s and actual

carrier’s domicile and principal place of business.

An examination of this treaty text leads us to

conclude that its jurisdictional provisions pertain to

treaty jurisdiction. In the United States, federal

courts have subject-matter jurisdiction over claims

arising under the Montreal Convention pursuant to

28 U.S.C. § 1331, which gives federal courts subjectmatter jurisdiction over “all civil actions arising under

. . . treaties of the United States.” Articles 33 and 46

operate as a limit on this treaty jurisdiction. By

stating where a damages action “must be brought,”

the provisions delimit which nation-states’ courts can

hear a claim arising under the treaty. Specifically, the

provisions dictate that for the courts of a given nationstate to have jurisdiction over a claim arising under

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the treaty, the nation-state must be both one of the

“States Parties” to the Convention and one of the fora

listed in Article 33 (or Article 46, when applicable).

Therefore, in a damages action governed by the

Montreal Convention, if the United States is not one

of the designated fora, then courts in the United

States cannot exercise treaty jurisdiction over the

action.

To begin, nothing in the text of the Montreal

Convention says or implies that it gives rise to

personal jurisdiction—that is, a court’s power to

exercise control over a particular party. While Articles

33 and 46 state that actions “must be brought” in one

of the specified fora, they do not state that the courts

of those for a must entertain such actions without

regard for other potential barriers to jurisdiction. To

the contrary, as noted above, Article 33 specifies that

“[q]uestions of procedure shall be governed by the law

of the court seised of the case.” Montreal Convention

art. 33(4). Likewise, while Article 45 allows a

defendant contracting carrier to implead an actual

carrier, or vice versa, the provision explicitly states

that “the procedure and effects” remain “governed by

the law of the court seised of the case.” Id. art. 45. The

inclusion of these clauses indicates that while the

Montreal Convention permits claims arising under

the treaty to be brought in particular nations, it does

not guarantee plaintiffs the unconditional right to

litigate in those nations’ courts. Rather, the treaty

expressly leaves room for nation-states to impose their

own venue, jurisdictional, or other procedural

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requirements. We conclude that personal jurisdiction

is such a requirement.

Looking beyond the text itself, precedent also

supports our conclusion that the Montreal

Convention’s jurisdictional provisions do not pertain

to domestic personal jurisdiction. We interpret the

Montreal Convention’s provisions “in accordance with

case law arising from substantively similar provisions

of its predecessor, the Warsaw Convention.” Cohen, 13

F.4th at 245. That is because although the Montreal

Convention—which was drafted in 1999 to replace the

Warsaw Convention—improved upon essential

aspects of its predecessor, the drafters tried “to retain

existing language and substance of other provisions to

preserve judicial precedent relating to other aspects of

the Warsaw Convention, in order to avoid

unnecessary litigation over issues already decided by

the courts under the Warsaw Convention and its

related protocols.” Id. at 244 (quoting S. Exec. Rep.

No. 108–8, at 3 (2003)). Although our precedent

interpreting the Warsaw Convention is not binding, it

constitutes strongly persuasive authority in this case

because Article 33(1)’s predecessor provision—Article

28 of the Warsaw Convention—is similar to Article

33(1) in both language and substance.2

Article 28 provides: “An action for damages must be brought, at

the option of the plaintiff, in the territory of one of the High

Contracting Parties, either before the court of the domicile of the

carrier or of his principal place of business, or where he has a

place of business through which the contract has been made, or

before the court at the place of destination.” Convention for the

2

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Our cases interpreting Article 28 hold that

“[c]ompliance with Article 28(1) gives a nation treaty

jurisdiction over the claim, so that the nation is an

appropriate site for litigation,” but “domestic

jurisdiction and venue questions still may require

further analysis.” Campbell v. Air Jam., Ltd., 863 F.2d

1, 1 (2d Cir. 1988) (emphases added); see also

Benjamins v. Brit. Eur. Airways, 572 F.2d 913, 915 (2d

Cir. 1978) (same); Smith v. Canadian Pac. Airways,

Ltd., 452 F.2d 798, 800 (2d Cir. 1971) (same).

In Smith, we explained:

[I]n a Warsaw Convention case there are

two levels of judicial power that must be

examined to determine whether suit may

be maintained.

The first level . . . is that of jurisdiction

in the international or treaty sense

under Article 28(1). The second level

involves the power of a particular United

States court, under federal statutes and

practice, to hear a Warsaw Convention

case—jurisdiction in the domestic law

sense.

452 F.2d at 800 (footnote omitted). In a footnote

expounding on the meaning of “domestic law”

jurisdiction, we elaborated that “in personam

Unification of Certain Rules Relating to International

Transportation by Air art. 28(1), Oct. 12, 1929, 49 Stat. 3000,

3014.

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jurisdiction . . . is also an important element of the

power of a court to decide a case.” Id. at 800 n.4.

In reaching this interpretation of Article 28, we

principally relied on the text of the Warsaw

Convention. Article 28 contained a clause stating that

“[q]uestions of procedure shall be governed by the law

of the court to which the case is submitted,” which we

read to indicate that Article 28 “leave[s] for domestic

decision questions regarding the suitability and

location of a particular Warsaw Convention case.”

Smith, 452 F.2d at 801 (quoting Warsaw Convention

art. 28(2)). The same analysis applies to Article 33 of

the Montreal Convention, which includes a nearidentical clause. See Montreal Convention art. 33(4).

We also interpreted Article 28 in light of its

surrounding provisions. Article 32 of the Warsaw

Convention,

which

prohibited

parties

from

contracting to alter “the rules ‘as to jurisdiction,’”

underscored “the mandatory nature” of Article 28.

Smith, 452 F.2d at 801 (quoting Warsaw Convention

art. 32). The fact that the treaty prohibited parties

from altering its jurisdictional requirements implied

that those requirements pertained to something that

parties generally lack the power to decide among

themselves—namely, subject-matter jurisdiction.

Article 49 of the Montreal Convention contains an

analogous prohibition on altering jurisdictional rules,

which similarly suggests that the new treaty’s

jurisdictional provisions do not concern a type of

jurisdiction, like personal jurisdiction, that parties

can waive.

See Montreal Convention art. 49

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(providing that contracts and agreements “altering

the rules as to jurisdiction, shall be null and void”).

In sum, based on our analysis of the Montreal

Convention’s text and our Warsaw Convention

precedent, we conclude that the Montreal Convention

speaks to jurisdiction only in the treaty sense. In cases

arising under the Montreal Convention, personal

jurisdiction must be separately established in

accordance with domestic laws and practice.

C. Consent

In addition to its primary claim regarding the

Montreal Convention, UPS puts forth a related

consent-based theory of personal jurisdiction. First,

UPS argues that by choosing to do business as an

international air carrier governed by the provisions of

the Montreal Convention, EVA consented to the

personal jurisdiction of any court in which a party

properly brings a Montreal claim against EVA.

“Because the requirement of personal jurisdiction

represents first of all an individual right, it can, like

other such rights, be waived.” Corporación Mexicana

De Mantenimiento Integral, S. De R.L. De C.V. v.

Pemex-Exploración y Producción, 832 F.3d 92, 100 (2d

Cir. 2016) (quoting Ins. Corp. of Ireland, Ltd. v.

Compagnie des Bauxites de Guinee, 456 U.S. 694, 703

(1982)). However, our conclusion that the Montreal

Convention’s jurisdictional provisions do not confer

personal jurisdiction necessarily defeats this consentbased theory. EVA could not have consented to

personal jurisdiction by agreeing to be governed by the

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treaty’s terms because those terms do not themselves

concern personal jurisdiction.

Second, we are also unpersuaded to the extent

UPS argues that because EVA knew the Convention

would govern their contract and UPS would have a

right to implead EVA under Article 45, EVA tacitly

agreed to suit (and personal jurisdiction) wherever

UPS impleads EVA. That consent argument rests on

principles of contract law rather than on conferral of

jurisdiction by the Montreal Convention. “Parties can

consent to personal jurisdiction through forumselection clauses in contractual agreements.” D.H.

Blair & Co. v. Gottdiener, 462 F.3d 95, 103 (2d Cir.

2006). But UPS has not come close to showing a

meeting of the minds as to EVA’s consent to

jurisdiction. Indeed, it hasn’t even put a copy of the

contract in the record.

CONCLUSION

For the foregoing reasons, we affirm the

judgment of the district court.

LOHIER, Circuit Judge, concurring:

I join the Court’s opinion in full. I write

separately to emphasize that, while UPS failed to

meet its burden of showing a “meeting of the minds”

in this case, Majority Op. at 23, our decision does not

definitively foreclose a contract-based theory of

consent to personal jurisdiction under the Montreal

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Convention. There may be cases in which the

defendant carrier impliedly or expressly consented to

personal jurisdiction in, for example, “the court of the

domicile of the carrier” or “the court at the place of

destination” by doing business as an international air

carrier governed by the treaty. See Montreal

Convention, art. 33.

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APPENDIX B

Opinion and Order of the U.S. District Court for the

Southern District of New York (Oct. 18, 2021)

National Union Fire Insurance Company of

Pittsburgh, PA v. UPS Supply Chain Solutions, Inc.,

No. 1-20-cv-02818, U.S. District Court for the

Southern District of New York.

Edgardo Ramos, District Judge:

National Union Fire Insurance Company of

Pittsburgh, Pa. ("National Union") brought this suit

against UPS Supply Chain Solutions, Inc. ("UPS")

alleging that UPS caused damage to a shipment that

had been insured by National Union. Doc. 1. UPS filed

third-party complaint against EVA Airways

Corporation ("EVA") and various Does, seeking

indemnification. Doc. 13 Before the Court is EVA's

motion to dismiss the third-party complaint due to a

lack of personal jurisdiction.

For the following reasons, EVA's motion is

GRANTED.

I.

BACKGROUND

National Union is incorporated under

Pennsylvania law with a principal place of business in

New York. Doc. 1 ¶ 1. UPS is incorporated under

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Delaware law and has a principal place of business in

Georgia. Id. ¶ 2. National Union filed a complaint on

April 4, 2020, against UPS for damages to a shipment

of vitamins National Union had insured, valued at

$127,598. Id. ¶¶ 4, 9. EVA was the airline that carried

the package, and UPS subsequently filed a third-party

complaint on January 6, 2021, seeking to be

indemnified by EVA. Doc. 13. EVA filed an answer on

February 17, 2021, asserting as a defense that the

Court lacked personal jurisdiction. Doc. 20 ¶ 38. On

April 28, 2021, EVA filed the pending motion to

dismiss for lack of personal jurisdiction. Doc. 28.

EVA's headquarters and principal place of

business are in Taiwan. Doc. 28, Supplement MOL in

Support at 3. EVA operates flights to and from JFK

International Airport in New York, and conducts

business in New York. Id. The underlying claim

pertains to a package that was transported on a flight

that traveled from Chicago, Illinois, to South Korea,

via Taiwan. Id. At no point did the package or flight

travel through New York. Id.

II.

LEGAL STANDARD

"A plaintiff opposing a motion to dismiss under

Rule 12(b)(2) for lack of personal jurisdiction has the

burden of establishing that the court has jurisdiction

over the defendant." BHC Interim Funding, LP v.

Bracewell & Patterson, LLP, No. 02 Civ. 4695 (LTS),

2003 WL 21467544, at *1 (S.D.N.Y. June 25, 2003)

(citing Bank Brussels Lambert v. Fiddler Gonzalez &

Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999)). To meet

A23

this burden where there has been no discovery or

evidentiary hearing, the plaintiff must plead facts

sufficient for a prima facie showing of jurisdiction. Id.

As the Court evaluates a Rule 12(b)(2) motion, it must

construe all of the plaintiffs allegations as true and

resolve all doubts in its favor. Casville Invs., Ltd. v.

Kates, No. 12 Civ. 6968 (RA), 2013 WL 3465816, at *3

(S.D.N.Y. July 8, 2013) (citing Porina v. MarWard

Shipping Co., 521 F.3d 122, 126 (2d Cir. 2008)).

"However, a plaintiff may not rely on conclusory

statements without any supporting facts, as such

allegations would `lack the factual specificity

necessary to confer jurisdiction.'" Art Assure Ltd., LLC

v. Artmentum GmbH, No. 14 Civ. 3756 (LGS), 2014

WL 5757545, at *2 (S.D.N.Y. Nov. 4, 2014) (quoting

Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 185 (2d

Cir. 1998)). As Rule 12(b)(2) motions are "inherently .

. . matter[s] requiring the resolution of factual issues

outside of the pleadings," courts may rely on

additional materials outside the pleadings when

ruling on such motions. John Hancock Prop. & Cas.

Ins. Co. v. Universale Reinsurance Co., No. 91 Civ.

3644 (CES), 1992 WL 26765, at *1 n.1 (S.D.N.Y. Feb.

5, 1992); accord Darby Trading Inc. v. Shell Int'l

Trading and Shipping Co., 568 F. Supp. 2d 329, 334

(S.D.N.Y. 2008).

III.

ANALYSIS

1.

Specific Jurisdiction1

As an initial matter, the Court dismisses any assertion by UPS

that EVA has delayed bringing a motion to dismiss for lack of

1

A24

In diversity or federal question cases, personal

jurisdiction is determined in accordance with the law

of the forum in which the federal count sits. Whitaker

v. American Telecasting, Inc., 261 F.3d 196, 208 (2d

Cir. 2001) (citing Bensusan Rest. Corp. v. King, 126

F.3d 25, 27 (2d Cir. 1997)). This determination

involves a two-step analysis. Metro. Life Ins. Co. v.

Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996).

In New York, the court must first determine whether

personal jurisdiction is appropriate pursuant to the

state's general jurisdiction statute, Civil Practice Law

and Rules ("C.P.L.R.") § 301, or its long-arm

jurisdiction statute, C.P.L.R. § 302(a).2 If the Court's

exercise of personal jurisdiction is deemed

appropriate according to New York law, the second

step is an evaluation of whether the court's exercise of

jurisdiction EVA raised the issue of personal jurisdiction in their

answer on February 17, 2021, (Doc. 20 ¶ 38) and requested a premotion conference on the issue of personal jurisdiction on March

24, 2021, just over a month later Doc. 22 The only case that EVA

cites that is remotely similar is Datskow v. Teledyne, Inc., where

the court held a four-month delay in asserting a lack of personal

jurisdiction was too long. 899 F.2d 1298 (2d Cir. 1990). However,

not only was that a longer period of time than present here, but

the court had determined that the defendant was amenable to

personal jurisdiction under C.P.L.R. § 301—the issue was

whether the plaintiff had served proper notice. Id. at 1302. The

court was therefore concerned that the delay in raising the

defense meant the relevant statute of limitations had expired,

rendering the plaintiff unable to correct notice even though the

court would have been able to assert jurisdiction otherwise. Id.

at 1303. That is not the case here.

UPS acknowledges that application of general jurisdiction

under N.Y. C.P.L.R § 301 is not appropriate.

2

A25

personal jurisdiction comports with the Fifth

Amendment Due Process Clause of the United States

Constitution. Chloe v. Queen Bee of Beverly LLC, 616

F.3d 158, 164 (2d Cir. 2010); Best Van Lines, Inc. v.

Walker, 490 F.3d 239, 242 (2d Cir. 2007). The Court

concludes that there is no personal jurisdiction under

N.Y. C.P.L.R., and so does not reach the clue process

analysis.

a.

C.P.L.R. 302(a)(3)

C.P.L.R. § 302(a)(3) provides for jurisdiction if

the non-domiciliary "commits a tortious act without

the state causing injury to person or property within

the state." N.Y. C.P.L.R. § 302(a)(3) (McKinney 2008).

The conferral of jurisdiction under this

provision rests on five elements: First,

that defendant committed a tortious act

outside the state; second, that the cause

of action arises from that act; third, that

the act caused injury to a person or

property within the State; fourth, that

defendant expected or should reasonably

have expected the act to have

consequences in the State; and fifth, that

defendant derived substantial revenue

from

interstate

or

international

commerce.

In re Sumitomo Copper Litig., 120 F. Supp. 2d 328,

341 (S.D.N.Y. 2000) (emphasis added) (quoting

A26

LaMarca v. Pak-Mor Mfg. Co., 735 N.E.2d 883, 886

(N.Y. 2000)).

UPS fails to allege an injury to a person or

property within New York. The cause of action in this

case pertains to alleged damages to a package that

was shipped on one of EVA's airliners. Doc. 13 ¶ 6. The

flight took off from Chicago, Illinois, traveled via

Taiwan, and ultimately reached its destination in

South Korea. Doc. 28, Supplement MOL in Support at

3. UPS has not alleged that the shipment was in New

York at any point, nor has UPS alleged how the act

caused injury to a person or property within New

York. Instead, UPS argues that jurisdiction is proper

because EVA "conducts business operations in New

York," "is registered as a foreign business corporation

in New York," "participates in the air cargo industry

reaching worldwide destinations," and "offers, sells,

and provides [transportation in the air cargo industry]

through its operations in New York." Doc. 29 at 3-4.

UPS argues that EVA's contacts in New York,

unrelated to this cause of action, are sufficient to show

it "(i) regularly does or solicits business ... in the state,

or (ii) expects or should reasonably expect the act to

have consequences in the state." C.P.L.R. § 302(a)(3).

However, these contacts alone, without an injury to a

person or property in New York, are insufficient for

the Court to assert personal jurisdiction under

C.P.L.R. § 302(a)(3). Ingraham v. Carroll, 687 N.E.2d

1293, 1294 (N.Y. 1997) ("Under [C.P.L.R. § 302(a)(3)]

the appellant must show both that an injury occurred

`within the state,' and that the elements of either

A27

clause (i) or (ii) have been satisfied." (emphasis

added)).

UPS argues that since it is seeking

indemnification and contribution against EVA, as

opposed to a right to damages, the personal

jurisdiction analysis is different. Doc. 29 at 3.

However, the only case UPS cites to support this

argument is a Ninth Circuit case, Chubb Ins. Co. v.

Menlo Worldwide Forwarding, Inc., 634 F.3d 1023

(9th Cir. 2011). In that case, the issue before the court

was whether the two-year statute of limitations in the

Convention for the Unification of Certain Rules for

International Carriage by Air, May 28, 1999, S. Treaty

Doc. No. 106-45 (the "Montreal Convention") applied

to a claim where the party was seeking

indemnification. Chubb Ins. Co., 634 F.3d at 1025.

The court distinguished between a "right to damages"

and a "right of recourse," and held that the statute of

limitations was not intended to apply to a "right of

recourse" claim. Id. at 1027 ("[B]ecause an action

between carriers for indemnification or contribution is

premised on the `right of recourse,' rather than the

`right to damages," Article 35's time bar does not

apply. Instead, the timing of such an action is

governed by local law"). UPS is asking the Court to

apply this distinction in a wholly different context.

The question before this Court is whether it has

personal jurisdiction over EVA, not whether a statute

of limitations applies, and UPS has not explained why

a distinction between a "right to damages" and "right

of recourse" should have an impact on the personal

jurisdiction analysis.

A28

In 2018, a court in the Southern District of New

York addressed a nearly identical case as the one now

before the Court. See Royal & Sun All. Ins. PLC v.

UPS Supply Chain Solutions, Inc., 16 Civ. 9791

(NRB), 2018 WL 1888483 (S.D.N.Y. Apr. 5, 2018). In

that case, the plaintiff sued UPS for damages to a

shipment, and UPS filed a third-party complaint

against the actual carrier of the shipment who

subsequently moved to dismiss for lack of personal

jurisdiction. Id. UPS made a similar argument in that

case and argued that "the relevant injury is the

prospective judgment that could be entered against

[UPS] by a court sitting in New York, for which it

would seek indemnification and contribution." Id. at

*3. However, the court held that "[t]hat argument is

borderline frivolous. Taken to its logical conclusion,

[UPS'] interpretation of N.Y. C.P.L.R. § 302(a)(3)

would render the injury requirement a nullity in the

impleader context as it would always be satisfied if

such prospective liability were sufficient." Id. The

Court agrees with that conclusion. Since there is no

injury to a person or property in New York, the Court

does not have personal jurisdiction over EVA under

C.P.L.R. § 302(a)(3).

2.

Montreal Convention and Consent

UPS additionally suggests that the Court has

personal jurisdiction over EVA by reason of the

Montreal Convention. Doc. 29 at 8-9. UPS points to

Articles 33, 45, and 46 and argues that "the Montreal

Convention itself confers personal jurisdiction when

one of the dual carriers reins the other into existing

A29

litigation brought by the underlying cargo interest."

Id. at 9 n.8. UPS also argues that because EVA is a

common carrier and agreed to act as the actual

international carrier for the shipment in question, it

has consented to jurisdiction under the Convention.

Id. at 8. However, the jurisdictional requirement in

Article 33 of the Convention relates to subject matter

jurisdiction, not to personal jurisdiction. Royal & Sun

All. Ins. PLC, 2018 WL 1888483, at *3 ("Regardless,

courts have consistently concluded that the Montreal

Convention affords subject matter jurisdiction, not

personal jurisdiction."); see also Tucker v. British

Airways PLC, No. 2:16-CV-00618 (RAJ), 2017 WL

6389302, (W.D. Wa. Dec. 14, 2017) ("[T]he Montreal

Convention establishes subject matter jurisdiction; it

does not confer personal jurisdiction."). UPS points to

no other authority that suggests that Article 33

pertains to personal jurisdiction. Therefore, the

Montreal Convention does not provide an additional

basis for personal jurisdiction.

IV.

CONCLUSION

For the foregoing reasons, EVA's motion is

GRANTED. UPS' requests for discovery and hearing

on jurisdictional issues and for additional briefing on

a transfer are DENIED. The Clerk of Court is

respectfully directed to terminate the motion, Doc. 28,

and terminate EVA as a third-party defendant.

It is SO ORDERED.