Petition for Writ of Certiorari — Scandinavian Airlines System, aka SAS, dba Scandinavian Airlines of North America, Incorporated, Petitioner v. Susan Hardy
Supreme Court briefNov 25, 2024
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No. 24In the
Supreme Court of the United States
SCANDINAVIAN AIRLINES SYSTEM
DENMARK-NORWAY-SWEDEN,
Petitioner,
v.
SUSAN HARDY,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of A ppeals for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
Bartholomew J. Banino
Counsel of Record
Marissa N. Lefland
Condon & Forsyth LLP
7 Times Square, 18th Floor
New York, NY 10036
(212) 490-9100
bbanino@condonlaw.com
Counsel for Petitioner
334009
A
(800) 274-3321 • (800) 359-6859
i
QUESTION PRESENTED
Federal Rule of Civil Procedure 4(k)(2) provides that
the filing of a waiver of service establishes jurisdiction
over a defendant if: (1) the defendant is not subject to
jurisdiction in any state’s courts of general jurisdiction;
and (2) the exercise of jurisdiction is consistent with the
United States Constitution. Fed. R. Civ. P. 4(k)(2).
The question presented is:
Whether the Due Process Clause of the Fifth
Amendment to the United States Constitution
authorizes a federal court to exercise specific
personal jurisdiction over a foreign corporation
in a personal injury action arising from an
alleged incident and conduct that occurred
wholly outside the United States.
ii
PARTIES TO THE PROCEEDINGS
Petitioner Scandinavian Airlines System DenmarkNorway-Sweden was the appellee below and the defendant
in the trial court.
Respondent Susan Hardy was the appellant below and
the plaintiff in the trial court.
iii
RULE 29.6 CORPORATE DISCLOSURE
STATEMENT
Scandinavian Airlines System Denmark-NorwaySweden is owned by the following three corporations:
SAS Sverige AB (42.8%); SAS Danmark A/S (28.6%) and
SAS Norge AS (28.6%). SAS AB is the parent company of
SAS Sverige AB, SAS Danmark A/S and SAS Norge AS.
iv
STATEMENT OF RELATED PROCEEDINGS
This case arises from the following proceedings:
• Hardy v. Scandinavian Airlines System,
No. 23-30632, United States Court of
Appeals for the Fifth Circuit (Judgment
entered on August 26, 2024); and
• Hardy v. Scandinavian Airlines System,
No. 21-1591, United States District Court
for the Eastern District of Louisiana
(Judgment entered on August 11, 2023).
v
TABLE OF CONTENTS
Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . ii
RULE 2 9.6 CORPOR ATE DISCLOSURE
STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF RELATED PROCEEDINGS . . . . . iv
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii
PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PROVISION INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . 1
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 5
I.
Factual Background . . . . . . . . . . . . . . . . . . . . . . . 5
II. Procedural Background . . . . . . . . . . . . . . . . . . . . 6
vi
Table of Contents
Page
a.
Proceedings in the District Court . . . . . . . . 6
b.
Proceedings in the Court of Appeals . . . . . . 8
REASONS FOR GRANTING THE PETITION . . . . . 9
I.
This Court should grant the Petition to
resolve a conflict created by the Fifth
Circuit on an important issue . . . . . . . . . . . . . . . . 9
II. The decision below is incorrect . . . . . . . . . . . . . . 13
III. This Petition squarely presents important
and recurring questions . . . . . . . . . . . . . . . . . . . 26
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
vii
TABLE OF APPENDICES
Page
Appendix A — Opinion of the United States
Court of Appeals for the Fifth Circuit, filed
August 26, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
Appendi x B — Order and Reasons of the
United States District Court for the Eastern
District of Louisiana, filed August 11, 2023 . . . . . . 30a
viii
TABLE OF CITED AUTHORITIES
Cases
Page
Abdullah v. Am. Airlines,
181 F.3d 363 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 25
Adams v. Aircraft Spruce & Specialty Co.,
284 A.3d 600 (Conn. 2022) . . . . . . . . . . . . . . . . . . . . . 27
Asahi Metal Indus. Co. v.
Superior Court of Cal., Solano Cty.,
480 U.S. 102 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Ayla, LLC v. Alya Skin Pty. Ltd.,
11 F.4th 972 (9th Cir. 2021) . . . . . . . . . . . . . . . . . . . . 21
Baskin v. Pierce & Allred Constr., Inc.,
676 S.W.3d 554 (Tenn. 2023) . . . . . . . . . . . . . . . . . . . 27
Bernhardt v. Islamic Republic of Iran,
47 F.4th 856 (2d Cir. 2022) . . . . . . . . . . . . . . . . . . . . . 21
Bristol-Myers Squibb v. Superior Ct. of CA.,
582 U.S. 255 (2017) . . . 2, 5, 10, 12-14, 17, 20, 21, 26, 28, 30
Burger King Corp. v. Rudzewicz,
471 U.S. 462 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Carrier Corp. v. Outokumpu Oyj,
673 F.3d 430 (6th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 21
ix
Cited Authorities
Page
CGC Holding Co., LLC v. Hutchens,
974 F.3d 1201 (10th Cir. 2020) . . . . . . . . . . . . . . . . . . 22
CollegeSource, Inc. v. AcademyOne, Inc.,
652 F.3d 1066 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . 22
Daimler AG v. Bauman,
571 U.S. 117 (2014) . . . . . . . . . . . . . . . . . . . . . . . 2, 23, 30
Dole Food Co., Inc. v. Watts,
303 F.3d 1104 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . 22
Douglass v. Nippon Yusen Kabushiki Kaisha,
46 F.4th 226 (5th Cir. 2022) . . . . . . . . . . . 21, 24, 28-31
Dularidze v. Turk Haa Yallario A.O.,
No. 1:20-cv-4978-GHW, 2024 WL 3567332
(S.D.N.Y. July 28, 2024) . . . . . . . . . . . . . . . . . . . . . . . 30
Fidrych v. Marriott Int’l, Inc.,
952 F.3d 124 (4th Cir. 2020) . . . . . . . . . . . . 3, 10, 11, 18
Ford Motor Co. v.
Montana Eighth Judicial Dist. Ct.,
592 U.S. 351 (2021) . . . 3-5, 9, 14, 15, 17, 18, 21, 24, 26, 27, 30
Goodyear Dunlop Tires Operations, S.A. v.
Brown,
564 U.S. 915 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
x
Cited Authorities
Page
H.B. by Barakati v. China S. Airlines Co. Ltd.,
No. 20-CV-9106, 2021 WL 2581151
(S.D.N.Y. June 23, 2021) . . . . . . . . . . . . . . . . . . . . . . . . 7
Herederos de Roberto Gomez Cabrera, LLC v.
Teck Resources Ltd.,
43 F.4th 1303 (11th Cir. 2022) . . . . . . . . . . . . . . . . . . 22
Impossible Foods Inc. v. Impossible X LLC,
80 F.4th 1079 (9th Cir. 2023) . . . . . . . . . . . . . . . . . . . 22
Kim v. Korean Air Lines Co., Ltd.,
513 F. Supp. 3d 462 (D.N.J. 2021) . . . . . . 16, 17, 18, 19
Lawson v. Simmons Sporting Goods, Inc.,
569 S.W.3d 865 (Ark. 2019) . . . . . . . . . . . . . . . . . . . 3, 12
Lensky v. Turk Hava Yollari, A.O.,
No. 21-CV-2567, 2023 WL 6173334
(2d Cir. Sept. 22, 2023) . . . . . . . . . . . . . . . . . . . . . . . . 29
Livnat v. Palestinian Auth.,
851 F.3d 45 (D.C. Cir. 2017) . . . . . . . . . . . . . . 21, 24, 29
Luna v. Compania Panamena De Aviacion, S.A.,
851 F. Supp. 826 (S.D. Tex. 1994) . . . . . . . . . . . . . . . . 7
Mali v. British Airways,
No. 17 Civ. 685, 2018 WL 3329858
(S.D.N.Y. July 6, 2018) . . . . . . . . . . . . . . . . . . . . . . . . 17
xi
Cited Authorities
Page
Malik v. Cabot Oil & Gas Corp.,
710 F. App’x 561 (3d Cir. 2017) . . . . . . . . . . . . . 3, 11, 12
Malik v. Cabot Oil & Gas Corp.,
No. 15-7078, 2016 WL 2930511
(D.N.J. May 19, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . 11
Montalvo v. Spirit Airlines,
508 F.3d 464 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . 25
Oldfield v. Pueblo De Bahia Lora, S.A.,
558 F.3d 1210 (11th Cir. 2009) . . . . . . . . . . . . . . . . . . 21
Omni Capital Int’l v. Rudolf Wolff & Co.,
484 U.S. 97 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . 20, 29
Pesa v. Scandinavian Airlines System,
No. 2:19-cv-20415, 2021 WL 1660863
(D.N.J. Apr. 27, 2021) . . . . . . . . . . . . . . . . . . . . . . . 8, 17
Rehman v. Etihad Airways,
No. 3:19-CV-00653, 2019 WL 12095414
(M.D. Pa. Nov. 14, 2019) . . . . . . . . . . . . . . . . . . . . . . . 19
Société Nationale Industrielle Aérospatiale v.
U.S. Dist. Ct. for the S. Dist. of Iowa,
482 U.S. 522 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
UMG Recordings, Inc. v. Kurbanov,
963 F.3d 344 (4th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 19
xii
Cited Authorities
Page
Walden v. Fiore,
571 U.S. 277 (2011) . . . . . . . . 2, 4, 13, 14, 18, 23, 26, 30
World-Wide Volkswagen v. Woodson,
444 U.S. 286 (1980) . . . . . . . . . . . . . . . . . . . . . 15, 24, 27
Yamashita v. LG Chem, Ltd.,
62 F.4th 496 (9th Cir. 2023) . . . . . . . . . . . . . . . . . . . . 27
Zicherman v. Korean Air Lines Co.,
516 U.S. 217 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Constitutional Provisions
U.S. Const. amend. V . . . . . . . . . . 20, 21, 24, 28, 29, 30, 31
U.S. Const. amend. XIV . . . . . . . . . . . . . 21, 28, 29, 30, 31
Statutes, Rules and Regulations
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
28 U.S.C. § 2072(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Fed. R. Civ. P. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Fed. R. Civ. P. 4(k)(2) . . . . . . 1, 5, 7, 8, 9, 20, 23, 28, 29, 30
La. Civ. Code Ann. Art. 3544 (2024) . . . . . . . . . . . . . . . 25
xiii
Cited Authorities
Page
Other Authorities
4 Charles A. Wright, et al., Federal Practice &
Procedure § 1063 (4th ed. 2024) . . . . . . . . . . . . . . . . . 20
4B Charles A. Wright, et al., Federal Practice &
Procedure § 1124 (4th ed. 2024) . . . . . . . . . . . . . . . . . 21
Convention for the Unification of Certain Rules
Relating to International Carriage by Air, Done
at Montreal, Canada, on 28 May 1999 (“the
Montreal Convention”), reprinted in S. Treaty
Doc. 106-45, CCH Av. L. Rep. ¶ 27,400-59,
1999 WL 33292734 (1999) . . . . . . . . . . . . . . 6, 7, 24, 25
Jeremy Jacobson, Getting “Arising out of ” Right:
Ford Motor Company and the Purpose of
the “Arising out of ” Prong in the Minimum
Contacts Analysis, 97 N.Y.U. L. Rev. 315
(2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Anthony Petrosino, Rationalizing Relatedness,
91 Fordham L. Rev. 1563 (2023) . . . . . . . . . . . . 4, 5, 27
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Scandinavian Airlines System DenmarkNorway-Sweden (“SAS”) respectfully petitions for a writ
of certiorari to review the judgment of the United States
Court of Appeals for the Fifth Circuit in this case.
OPINIONS BELOW
The opinion of the United States Court of Appeals
for the Fifth Circuit is reported at 117 F.4th 252. Pet.
App.1a-29a. The opinion of the United States District
Court for the Eastern District of Louisiana, which granted
Petitioner’s motion to dismiss, is unreported but available
at 2023 WL 5173793. Pet.App.30a-48a.
JURISDICTION
The court of appeals entered judgment on August 26,
2024. This Court has jurisdiction pursuant to 28 U.S.C.
§ 1254(1).
PROVISION INVOLVED
Federal Rule of Civil Procedure 4(k)(2) provides, in
relevant part:
Federal Claim Outside State-Court Jurisdiction.
For a claim that arises under federal law,
ser ving a summons or filing a waiver of
service establishes personal jurisdiction over
a defendant if:
2
(A) the defendant is not subject to jurisdiction
in any state’s courts of general jurisdiction;
and
(B) exercising jurisdiction is consistent with
the United States Constitution and laws.
INTRODUCTION
In the case below, the court of appeals held that a
Louisiana federal court has specific personal jurisdiction
over a Scandinavian corporation in an action arising from
a personal injury incident that occurred in Oslo, Norway,
when a passenger fell on an allegedly misaligned jet
bridge following the arrival of her international flight that
originated in New Jersey. The Fifth Circuit’s decision
departs from the holdings of two other courts of appeals
and one state court of last resort on whether a trial court
has specific personal jurisdiction over a defendant arising
from a personal injury that occurred outside the forum.
Only this Court can resolve this split and the question
presented, and this case is the ideal vehicle for doing so.
Over the last fifteen years, this Court has characterized
specific personal jurisdiction as a doctrine focusing on
“case-linked” behavior, Walden v. Fiore, 571 U.S. 277,
283 n.6 (2011), and has emphasized the importance of a
connection between “‘the suit’” and the forum. BristolMyers Squibb v. Superior Ct. of CA., 582 U.S. 255, 262
(2017) (emphasis in original) (quoting Daimler AG v.
Bauman, 571 U.S. 117, 127 (2014)). More specifically,
specific personal jurisdiction requires that “the defendant’s
suit-related conduct must create a substantial connection
with the forum State.” Walden, 571 U.S. at 284.
3
Here, the “suit-related conduct” was the alleged
placement of a jet bridge in Oslo by Oslo-based airport
ground staff. Respondent Susan Hardy was not injured in
the United States and never alleged that any negligence
or other culpable conduct occurred in the United States.
Yet despite there being no question that (1) the incident, (2)
the alleged wrongdoing, and (3) the harm occurred outside
the forum, the Fifth Circuit held that a Louisiana federal
court had specific personal jurisdiction over Petitioner
SAS, a foreign entity. In doing so, the Fifth Circuit split
from the Courts of Appeals for the Third and Fourth
Circuits and the Supreme Court of Arkansas, all of which
have explicitly held that courts lack specific personal
jurisdiction over a defendant when the incident, the
alleged wrongdoing, and the harm all occurred outside the
forum state, regardless of any other unrelated business
the defendant conducts in the forum state. See Fidrych
v. Marriott Int’l, Inc., 952 F.3d 124, 140 (4th Cir. 2020);
Malik v. Cabot Oil & Gas Corp., 710 F. App’x 561, 565 (3d
Cir. 2017); Lawson v. Simmons Sporting Goods, Inc., 569
S.W.3d 865, 871-72 (Ark. 2019).
Beyond creating a circuit split, the decision by the
Fifth Circuit distorts this Court’s precedent and runs
roughshod over a defendant’s Constitutional right to due
process. Instead of connecting the underlying controversy
or SAS’s alleged suit-related conduct to the forum, the
court of appeals shoehorned this case into an analysis
under Ford Motor Company, a products liability case in
which this Court held that certain state courts had specific
personal jurisdiction over a massive American corporation
in actions arising from injuries that occurred in the forum
states and were caused by products that malfunctioned in
the forum states and which were advertised “[b]y every
means imaginable” in the forum states. Ford Motor Co.
4
v. Montana Eighth Judicial Dist. Ct., 592 U.S. 351, 365
(2021). By contrast, there is no dispute that Ms. Hardy
fell in Norway allegedly due to actions of individuals in
Norway, and SAS’s contacts with the forum cannot be
(and, in fact, were not) qualitatively or quantitatively
compared with Ford’s contacts in Minnesota and Montana.
The Fifth Circuit’s conclusory holding that Ms. Hardy’s
injury “arises out of SAS’s minimum contacts with the
United States,” Pet.App.25a, was issued summarily,
and the Fifth Circuit did not engage in any meaningful
analysis of SAS’s contacts with the United States or
explain how SAS’s “suit-related conduct . . . create[d] a
substantial connection with the forum State.” Walden,
571 U.S. at 284.
The question presented by this Petition is of critical
importance because the lower courts and litigants need
to know the circumstances in which the federal courts
may exercise specific personal jurisdiction over foreign
defendants in tort cases where it is undisputed that the suitrelated conduct occurred outside the United States. In the
aftermath of Ford, it has been “difficult, if not impossible,
to articulate one consistent analytical framework . . . of
Ford Motor Co’s relatedness test.” Anthony Petrosino,
Rationalizing Relatedness, 91 Fordham L. Rev. 1563,
1566 (2023). And if the decision below is left unreviewed,
courts that adopt the Fifth Circuit’s reasoning will subject
foreign corporations to specific personal jurisdiction
in personal injury cases with fact patterns that would
not support the exercise of jurisdiction over a domestic
corporation, i.e. where there is no relationship between
forum and the suit-related conduct.
This case is an ideal vehicle for resolution of the
questions presented because its fact pattern is emblematic
5
of the context in which these cases arise: a plaintiff who
resides in the forum allegedly was injured outside the
forum by a company that resides outside the forum.
Additionally, the purely legal question of whether due
process permits the exercise of personal jurisdiction over
a non-resident defendant is outcome-determinative.
Rule 4(k)(2) implicates a due process analysis under
the Fifth Amendment, not the Fourteenth Amendment,
and this Court recently remarked that it has “le[ft] open
the question whether the Fifth Amendment imposes the
same restrictions [as the Fourteenth Amendment] on
the exercise of personal jurisdiction by a federal court.”
Bristol-Myers Squibb, 582 U.S. at 269. Moreover, as
the district court in this case observed: “jurisprudence
surrounding the role of Rule 4(k)(2) has been plagued
with confusion.” Pet.App.35a. Furthermore, “confusion
prevails” among the courts of appeals as to the application
of the relatedness test articulated by Ford. Petrosino,
Rationalizing Relatedness, 91 Fordham L. Rev. at 1566.
This Court should resolve that confusion by granting
this Petition and reviewing the judgment of the Fifth
Circuit.
STATEMENT OF THE CASE
I.
Factual Background
This case arises from an incident that allegedly
occurred in Oslo, Norway.
On August 23, 2019, Respondent Susan Hardy was
disembarking SAS Flight SK 908 at Oslo Gardermoen
6
Airport when she fell while stepping from the aircraft to
a passenger boarding bridge. Pet.App.3a.
In her complaint, Ms. Hardy alleges that she was
injured because: (1) SAS employees in Oslo improperly
positioned the passenger boarding bridge; (2) SAS
employees failed to warn her of the condition at the
Oslo Airport; and (3) SAS employees failed to offer her
assistance as she disembarked the aircraft in Oslo. She
sought damages under a treaty of the United States
known as the Montreal Convention.1 The jurisdiction of
the district court was invoked under 28 U.S.C. § 1331.
SAS flight SK 908 was a non-stop flight between
Newark, New Jersey, and Oslo, Norway. Ms. Hardy
was traveling on a round-trip ticket for travel between
Newark and Oslo. Ms. Hardy is a resident of Louisiana
and purchased her ticket online there. Pet.App.46a.
SAS is a foreign air carrier organized under the laws
of Denmark, Norway, and Sweden. It is headquartered
in Stockholm, Sweden. Pet.App.3a n.2. SAS has no
employees or property in the United States. Pet.App.19a.
II. Procedural Background
a.
Proceedings in the District Court
The district court granted SAS’s motion to dismiss
for lack of personal jurisdiction. First, the district
1. Convention for the Unification of Certain Rules Relating to
International Carriage by Air, Done at Montreal, Canada, on 28
May 1999 (“the Montreal Convention”), reprinted in S. Treaty Doc.
106-45, CCH Av. L. Rep. ¶ 27,400-59, 1999 WL 33292734 (1999).
7
court rejected Ms. Hardy’s argument that the Montreal
Convention confers personal jurisdiction over SAS in
Louisiana because Ms. Hardy resides there. Pet.App.38a.
Consistent with every federal court that has considered
this issue, the district court held that Article 33 of the
Montreal Convention confers only subject matter (treaty)
jurisdiction in the courts of certain countries, and it does
not provide an independent basis for personal jurisdiction.
Pet.App.40a-43a.
The district court also rejected Ms. Hardy’s argument
that the filing of a waiver of service under Rule 4(k)(2)
conferred personal jurisdiction over SAS. Observing
that “jurisprudence surrounding the role of Rule 4(k)
(2) has been plagued with confusion,” Pet.App.35a, the
court held that regardless of whether the forum with
which SAS’s contacts should be evaluated was Louisiana
or the United States, Ms. Hardy failed to demonstrate
that her cause of action arose from any such contacts.
Pet.App.45a-46a. More specifically, although Ms. Hardy
traveled on a ticket purchased in the United States, the
cause of action arose from allegedly negligent conduct in
Norway. Pet.App.45a-46a. The problem, explained the
district court, is that the sale of a ticket is insufficient to
endow the forum court with personal jurisdiction over a
non-resident defendant “‘because the defendant’s alleged
negligence and the plaintiff ’s injury are too far removed
from the business the defendant transacted in the forum.’”
Pet.App.46a. 2 The court observed that the outcome may
2. Quoting H.B. by Barakati v. China S. Airlines Co. Ltd.,
No. 20-CV-9106, 2021 WL 2581151, at *5 (S.D.N.Y. June 23, 2021);
also citing Luna v. Compania Panamena De Aviacion, S.A., 851
F. Supp. 826, 832 (S.D. Tex. 1994) (holding the plaintiff ’s death
due to an airplane crash did not result from the fact that she
8
have been different if the cause of action was premised on
a theory relating to the sale and purchase of the ticket,
such as fraudulent inducement or false advertising. Pet.
App.46a-47a. But here, the cause of action arose “out of
[Ms. Hardy’s] alleged injuries which occurred in Oslo,
Norway, not from her purchase of the ticket in the United
States.” Pet.App.47a.
The district court also rejected the notion—which
Ms. Hardy did not raise in her briefing—that the flight’s
origination in New Jersey served as a basis for personal
jurisdiction, reasoning that the alleged negligence
occurred not in New Jersey but in a foreign forum. Pet.
App.47a n.67. The district court also reasoned that even
if Ms. Hardy had shown that her cause of action arose
from SAS’s contacts with the forum, i.e. the sale of the
ticket, the connection between the cause of action and the
forum-related activity was “too attenuated” to comport
with the Constitutional requirements of due process. Pet.
App.47a n.68.
b.
Proceedings in the Court of Appeals
The Fifth Circuit reversed. The court agreed that the
Montreal Convention does not confer personal jurisdiction,
Pet.App.10a-11a, but held that the district court had
specific personal jurisdiction over SAS under Rule 4(k)(2).
Pet.App.17a.
First, the Fifth Circuit held that the district court
incorrectly considered SAS’s contacts only in Louisiana,
when it should have aggregated and considered SAS’s
purchased the ticket for her air travel in the forum state); and
Pesa v. Scandinavian Airlines System, No. 2:19-cv-20415, 2021
WL 1660863, at *8 (D.N.J. Apr. 27, 2021) (collecting cases).
9
contacts with the United States as a whole. Pet.App.19a.
The court reasoned that, under Rule 4(k)(2), a federal
court may consider all of a defendant’s contacts throughout
the United States in a claim arising under federal law as
long as the defendant is not subject to personal jurisdiction
in any state court and the exercise of jurisdiction is
consistent with the Constitution. Pet.App.20a.
The court of appeals then held the following contacts
with the United States “more than meet the minimumcontacts test” for Constitutional due process: (1) SAS
flies into seven metro areas in the United States; (2) SAS
advertises to American buyers; (3) SAS participated in
the Star Alliance with United Airlines; (4) SAS owns
and operates a subsidiary in the United States; (5) SAS
sells tickets online in the United States; and (6) SAS is
regulated by the Federal Aviation Administration. Pet.
App.22a.
Citing Ford Motor Co., the court held that Ms.
Hardy’s claim arises out of or relates to SAS’s contacts
with the United States. Pet.App.24a. The court of appeals
reasoned that while the connection between the injury
and SAS’s contacts with Louisiana may have been “overly
attenuated,” the connection between the injury and SAS’s
contacts nationally was not. Pet.App.25a.
REASONS FOR GRANTING THE PETITION
I.
This Court should grant the Petition to resolve
a conflict created by the Fifth Circuit on an
important issue.
The Fifth Circuit stands alone in holding that a
district court may exercise specific personal jurisdiction
10
over a non-resident corporation arising from an isolated
incident that occurred outside the forum, let alone over
a foreign corporation arising from an incident that
occurred outside the United States. This Court should
grant certiorari to resolve the conflict created by the Fifth
Circuit’s outlier position.
Applying this Court’s precedent in Bristol-Myers
Squibb, the Fourth Circuit holds that a company’s
widespread contacts in the forum are insufficient to
establish specific jurisdiction when they “have nothing
to do with the claims asserted by the [p]laintiffs in th[e]
action.” Fidrych v. Marriott Int’l, Inc., 952 F.3d 124, 139
(4th Cir. 2020). In Fidrych, the plaintiff alleged he was
injured when a glass shower door shattered in his hand
at a hotel in Italy that was part of the Marriott collection
of properties. Id. at 129. Plaintiff sued Marriott in South
Carolina, where he lived. Id. Marriott was licensed to
conduct business in South Carolina; it franchised, licensed,
or managed ninety hotels in South Carolina; and its
website was accessible in South Carolina. Id. at 128-29.
But plaintiff ’s lawsuit alleged negligence for Marriott’s
failure to inspect its properties and breach of implied
warranty of safety, among other claims, and “none of the
wrongs Marriott [was] alleged to have committed took
place in South Carolina.” Id. at 140. Thus, Marriott’s
contacts in South Carolina were “not relevant to [the]
specific jurisdiction inquiry.” Id. at 139.
Therefore, “the only arguable jurisdictional hook”
was whether Marriott’s operation of its website amounted
to “activity purposefully directed at South Carolina
residents.” Id. at 141. The court answered in the negative,
reasoning that Marriott’s maintenance of an interactive
website in South Carolina that allowed users to specify
11
that they lived in South Carolina does not mean that the
website “target[s] South Carolina residents for commercial
transactions any more than it targets any other state.” Id.
at 141. Under Fourth Circuit jurisprudence, a defendant
has not “purposefully directed” its activities at residents
of the particular forum in these circumstances. Id. at 142
(internal citations omitted). Thus, even if the Fidrych
plaintiff ’s claims arose from or were sufficiently related to
Marriott’s website, Marriott’s operation of the website was
insufficient to satisfy the minimum-contacts requirement.
Id. at 140.
The Third Circuit confronted a similar fact pattern
and reached the same conclusion in Malik v. Cabot Oil
& Gas Corp., 710 F. App’x 561, 565 (3d Cir. 2017). There,
the court of appeals held that the district court could not
exercise personal jurisdiction over corporate defendants
in a case arising from a slip and fall on a drilling platform
located in a neighboring state. Id. The plaintiff was a New
Jersey resident who was injured when he slipped and fell
on a drill rig located in Pennsylvania during the course of
his employment. Id. at 562-63. He sued his employer and
the property owner in New Jersey for negligence. The
defendants had considerable contacts with New Jersey: the
plaintiff ’s employer recruited employees and advertised
employment in New Jersey, and the property owner
utilized several pipelines in New Jersey to transport its
product throughout the eastern United States and was a
significant producer of natural gas in the Marcellus Shale
region, which includes portions of New Jersey. Malik v.
Cabot Oil & Gas Corp., No. 15-7078, 2016 WL 2930511, at
*2 (D.N.J. May 19, 2016), aff ’d, 710 F. App’x 561 (3d Cir.
2017). Nonetheless, the Third Circuit affirmed the district
court’s dismissal because the plaintiff ’s cause of action for
negligence resulting in a slip and fall in Pennsylvania did
12
not arise out of or relate to the defendants’ New Jerseyrelated activities. Malik, 710 F. App’x at 565.
Finally, in Lawson v. Simmons Sporting Goods, Inc.,
the plaintiff was an Arkansas resident who slipped and fell
in a sporting goods store in Louisiana. 569 S.W.3d 865, 867
(Ark. 2019). 3 The store advertised in Arkansas through
promotional catalog inserts and display ads in Arkansas
newspapers, promotional television ads, and online ads
with the Arkansas Democrat-Gazette. Id. The store also
contracted with an Arkansas printing company to produce
its print ads, and held a contest in Arkansas. Id. But the
Supreme Court of Arkansas held that these contacts were
insufficient because “the controversy—Lawson’s trip and
fall—undisputedly occurred in Louisiana,” as did any
negligence relating to the incident. Id. at 871.4
3. The trial court originally dismissed for lack of personal
jurisdiction. The intermediate appellate court reversed, and the
Arkansas Supreme Court declined defendant’s petition for review.
This Court granted defendant’s petition for a writ of certiorari
and remanded the case in light of its decision in Bristol-Myers
Squibb. Id. at 868. On remand, the court of appeals affirmed the
dismissal. Id.
4. Previously, the Arkansas state and federal courts applied
a five-factor test when evaluating personal jurisdiction which
included: (1) the nature and quality of the defendant’s contacts
with the forum state; (2) the quantity of those contacts; (3) the
relationship of those contacts with the cause of action; (4) the
forum’s interest in providing tribunal for its residents; and (5) the
parties’ convenience. Id. (internal citations omitted). Reasoning
that “Bristol-Myers emphasized that specific jurisdiction must
arise out of or relate to the defendant’s contacts with the forum
state,” the Arkansas Supreme Court held that it was no longer
appropriate to apply a test that considered the third factor equally
with the others. Id. (emphasis in original).
13
The Fifth Circuit’s reasoning is a substantial departure
from that of the Third Circuit, Fourth Circuit, and the
Supreme Court of Arkansas, which all rejected a finding
of personal jurisdiction where the incident occurred
outside the forum. In each of those cases, the defendant’s
substantial, continuous contacts with the forum were not
enough to overcome the lack of any connection between the
contacts and the suit. Under the Fifth Circuit’s reasoning,
Marriott could be sued in South Carolina for an incident
that happened in a bathroom in Italy; an employer and
a property owner could be sued in New Jersey for an
incident that happened in Pennsylvania; and a store owner
could be sued in Arkansas for an incident that occurred
in Louisiana.
This Court should grant certiorari to resolve the
conflict created by the Fifth Circuit on the important
question presented here.
II. The decision below is incorrect.
This Court’s review is appropriate because the Fifth
Circuit’s outlier position is incorrect. Specific personal
jurisdiction requires that “the defendant’s suit-related
conduct must create a substantial connection with the
forum State.” Walden, 571 U.S. at 284. The Fifth Circuit
did not even consider SAS’s alleged suit-related conduct;
there is no mention of the passenger boarding bridge or
any aspect of the incident itself in the court of appeals’
analysis. Instead, the Fifth Circuit highlighted SAS’s
unrelated contacts with the United States, eschewing
the distinction between general and specific jurisdiction
in an approach “resembl[ing] a loose and spurious form
of general jurisdiction.” Bristol-Myers Squibb, 582 U.S.
at 264.
14
1. Specific personal jurisdiction is implicated in
cases that involve acts “occurring or having their impact
within the forum [s]tate.” Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011). The
requirement that a “defendant’s suit-related conduct
must create a substantial connection with the forum”
is what distinguishes specific and general personal
jurisdiction. Walden, 571 U.S. at 284. Specific jurisdiction
“is confined to adjudication of issues deriving from, or
connected with, the very controversy that establishes
jurisdiction.” Goodyear, 564 U.S. at 919 (internal citations
omitted). Central to establishing specific jurisdiction is a
“controversy, principally, activity or an occurrence that
takes place in the forum State and is therefore subject to
the State’s regulation.” Id. This Court has explained that
specific jurisdiction focuses on “case-linked” behavior,
Walden, 571 U.S. at 283 n.6, and requires a direct
connection between “the suit” and the forum. BristolMyers Squibb, 582 U.S. at 262 (emphasis in original)
(internal quotations omitted).
The suit-related conduct in this case unquestionably
occurred outside the forum and did not create a connection
with the forum. Relegating Goodyear, Walden, and
Bristol-Myers Squibb to footnotes, the Fifth Circuit
instead relied heavily on Ford Motor Co. In that case,
this Court held that Ford, an American Fortune 500
company, was subject to specific personal jurisdiction in
Minnesota and Montana, notwithstanding the lack of any
causal relationship between the plaintiffs’ suit and Ford’s
activities there, because “Ford had systematically served
a market in Montana and Minnesota for the very vehicles
that the plaintiffs allege malfunctioned and injured them
in those States.” Ford Motor Co., 592 U.S. at 365 (emphasis
added). Ford urged residents of those states, “[b]y
15
every means imaginable . . . to buy its vehicles.” Id. Put
another way by Justice Alito in concurrence, Ford “has
long had a heavy presence in Minnesota and Montana,”
and the courts there appropriately exercised jurisdiction
because plaintiffs in those states were “riding in vehicles
purchased within their borders [and] were killed or
injured in accidents on their roads.” Id. at 372 (Alito, J.,
concurring) (emphasis in original). As one commentator
has described it, “Ford may be categorized as a place
of injury case.” Jeremy Jacobson, Getting “Arising out
of ” Right: Ford Motor Company and the Purpose of
the “Arising out of ” Prong in the Minimum Contacts
Analysis, 97 N.Y.U. L. Rev. 315, 348 (2022).
This Court also reasoned that it would be fair to
require Ford to be subject to the safety laws of the forum
states to ensure that the cars Ford marketed there were
“safe for their citizens to use there.” Ford Motor Co., 592
U.S. at 368 (emphasis added). The Court emphasized that
the relatedness inquiry “does not mean anything goes.” Id.
at 362. To the contrary, “the phrase ‘relate to’ incorporates
real limits, as it must to adequately protect defendants
foreign to a forum.” Id.5
In its attempt to analogize this case to Ford, a case in
which the defendant admittedly had “a veritable truckload
of contacts” with the forums, 592 U.S. at 371, the court
of appeals devoted a single paragraph to SAS’s contacts
with the United States, none of which had any connection
5. The Court contrasted World-Wide Volkswagen v. Woodson,
in which this Court held that because Volkswagen had not extended
its business into the forum state, it could not be held “accountable
for a car’s catching fire there.” 592 U.S. at 363 (citing World-Wide
Volkswagen v. Woodson, 444 U.S. 286, 293 (1980)) (emphasis
added).
16
to the injury-causing incident. Pet.App.22a. First, the
court observed that SAS flies into seven metro areas in
the United States, though the court did not identify which
ones. Second, the court asserted that SAS advertises to
American buyers, though the court did not identify the
medium, content, magnitude, or cost of the advertising, nor
the markets in which the advertising takes place (likely
because the record was devoid of any such information).
Third, the court noted that SAS participated in the Star
Alliance with United Airlines, though it did not explain
the alliance’s significance or explain what this means in
practice—a significant oversight, as Ms. Hardy’s SASissued ticket for travel to Oslo did not involve or implicate
SAS’s codeshare, alliance, or any other relationship
with United Airlines.6 Fourth, SAS owns and operates a
subsidiary in the United States, though the court did not
identify the nature or scope of the subsidiary’s operations.7
Fifth, SAS sells tickets online in the United States, though
the court said nothing about the nature of SAS’s website
globally, and the court acknowledged that selling tickets
online is not sufficient to establish personal jurisdiction.
And sixth, SAS is regulated by the Federal Aviation
Administration (“FAA”), which is true of all air carriers
that operate to the United States, though the court did not
mention whether the FAA regulates the conduct at issue
here. Together, the court held, “these contacts more than
meet the minimum-contacts test.”8
6. SAS is no longer a member of the Star Alliance.
7. The subsidiary is located in New Jersey and does not
conduct any flight operations.
8. For this proposition, the Fifth Circuit cited Kim v. Korean
Air Lines Co., Ltd., which only proves SAS’s point. There, the
district court held that a New York court would have specific
17
But Ms. Hardy has never alleged that SAS’s suitrelated conduct created a substantial connection to its
contacts anywhere in the United States, let alone in the
forum state of Louisiana. Yet the Fifth Circuit summarily
held that Ms. Hardy’s injuries arose from SAS’s contacts
in the United States, and the court made no effort to link
those contacts to any suit-related conduct. The wholly
unsubstantiated contention advanced by the court of
appeals that Ms. Hardy’s claim “stems from” SAS’s
advertising in the United States (despite there being
no evidence in the record regarding SAS’s advertising)
appears to be a misguided attempt to analogize this case
with Ford, a case which involved a defendant who invested
billions of dollars in advertising its products in the
jurisdiction over a Korean air carrier arising from an incident
involving a burn from hot soup on a flight from New York to Seoul
because “some acts related to Kim’s claim likely occurred while at
JFK,” such as the preparation and storage of the food in New York
and decisions made “by attendants before departure” from JFK.
513 F. Supp. 3d 462, 474 (D.N.J. 2021) (emphasis added). Reasoning
that not all of the aspects of the claim occurred during flight, the
Kim court contrasted the case with Bristol-Myers Squibb, in which
“all the conduct giving rise to the nonresidents’ claim occurred
elsewhere.” Id. (quoting Bristol-Myers Squibb, 582 U.S. at 265);
see also Pesa, 2021 WL 1660863, at *8 (holding the court lacked
personal jurisdiction over SAS in New Jersey in a case arising
from a slip and fall at a Swedish airport following a flight from New
Jersey because “[a]ny negligence alleged by Plaintiff occurred
in Stockholm,” where she fell, and “not Newark,” where “she
boarded the plane without incident”); Mali v. British Airways,
No. 17 Civ. 685, 2018 WL 3329858, at *7 (S.D.N.Y. July 6, 2018)
(“Though [d]efendant inarguably engages in purposeful activities
targeting airports and travelers located in New York, there exists
no ‘substantial relationship’ between that business activity and [p]
laintiff ’s claims in this lawsuit,” which arose “almost entirely out
of [d]efendant’s conduct in Mumbai.”).
18
United States—products that eventually malfunctioned
and injured the plaintiffs in the forums in which the
plaintiffs brought their suit. See Ford Motor Co., 592 U.S.
at 372 (Alito, J., concurring). All told, the Fifth Circuit’s
conclusory holding that Ms. Hardy’s injury “‘arises out
of ’ SAS’s minimum contacts with the United States,”
Pet.App.25a, was in error because SAS’s “suit-related
conduct” did not “create a substantial connection with the
forum.” Walden, 571 U.S. at 284.
The Fifth Circuit’s inaccurate contention that the
district court failed to consider SAS’s national contacts
misses the mark. The district court did not fail to
consider SAS’s contacts throughout the United States;
rather, the district court focused on the only contact
that could conceivably have been connected to Ms.
Hardy’s transportation—the purchase of her ticket in
Louisiana—and properly rejected it as insufficiently
connected to the suit-related conduct. Pet.App.47a. To
the extent the Fifth Circuit based its reasoning on SAS’s
sale of a ticket in the forum (and it is unclear that is what
happened here, given the court’s lack of explanation and
its concession that selling tickets online is not sufficient
to establish personal jurisdiction), the purchase of the
ticket was a contact that Ms. Hardy created, not SAS,
and this Court’s precedent has long required a showing
of contacts “that the ‘defendant himself ’’ creates with the
forum.” Walden, 571 U.S. at 284 (quoting Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (emphasis
in original));9 see also Fidrych, 952 F.3d at 141 (holding
9. Even in the Kim case—the only aviation-related case
cited throughout the section on specific jurisdiction in the court
of appeals’ decision, despite there being many such cases cited
19
that even though Marriott used its website to engage in
commercial transactions, the website’s availability in the
forum state does not constitute “targeting its activities
at that state”).10
In addition, the court of appeals proclaimed in a
footnote that although online ticket sales, operating a
subsidiary, and participating in an airline alliance would
not “individually suffice for personal jurisdiction,” the
court could still “consider the relevance of those factors,
particularly in conjunction with SAS’s other actions.” This
in SAS’s briefing—the court held that the sale of the ticket in
New Jersey through the defendant’s interactive website was
insufficient to confer personal jurisdiction there. 513 F. Supp.
3d at 471; see also Rehman v. Etihad Airways, No. 3:19-CV00653, 2019 WL 12095414, at *2 (M.D. Pa. Nov. 14, 2019) (holding
that despite plaintiff ’s contention that he purchased the ticket
for transportation in Pennsylvania, the court lacked specific
jurisdiction over the defendant, an Emirati air carrier, in an action
arising from the death of plaintiff ’s decedent while traveling on
board the carrier’s flight from JFK to the United Arab Emirates),
report and recommendation adopted, No. CV 3:19-653, 2021 WL
780302 (M.D. Pa. Mar. 1, 2021).
10. By contrast, the Fourth Circuit has held that a claim arose
from a defendant’s website activity in Virginia where the websites
themselves were used for the copyright infringement and music
piracy that was the “genesis of the dispute.” UMG Recordings, Inc.
v. Kurbanov, 963 F.3d 344, 354-55 (4th Cir. 2020) (internal citations
omitted). “Indeed, this is not a situation where a defendant merely
made a website that happens to be accessible in Virginia.” Id. at
355. Rather, defendant “made two globally accessible websites
and Virginia visitors used them for alleged music piracy.” Id. at
354. The defendant “actively facilitated the alleged music piracy”
through Virginia website visitors, advertising broker, advertisers,
and location-based advertising. Id. at 355.
20
Court has expressly rejected a “sliding scale approach”
to specific jurisdiction in which the requisite connection
between the forum and plaintiff ’s claims is “relaxed” if
defendant has other forum contacts unrelated to those
claims. Bristol-Myers Squibb, 582 U.S. at 264. “Our
cases,” this Court wrote, “provide no support for this
approach, which resembles a loose and spurious form of
general jurisdiction.” Id. Aggregated or not, none of SAS’s
contacts in Louisiana or the United States have anything
to do with the placement of a jet bridge in Norway or Ms.
Hardy’s fall in Norway.
The decision below cannot be squared with this
Court’s precedent.
2. Under the guise of aggregation of contacts under
Federal Rule of Civil Procedure 4(k)(2), the court of
appeals collapsed general and specific jurisdiction.
Rule 4(k)(2) was adopted in response to this Court’s
decision in Omni Capital Int’l v. Rudolf Wolff & Co., in
which this Court suggested that “[a] narrowly tailored
service of process provision, authorizing service on an
alien in a federal-question case . . . might well service
the ends of . . . federal statutes.” 484 U.S. 97, 111 (1997)
(emphasis added); Fed. R. Civ. P. 4 advisory committee’s
note to 1993 amendment.
Service of process and personal jurisdiction are two
separate concepts, both of which must be established to
satisfy the requirements of personal jurisdiction. 4 Charles
A. Wright, et al., Federal Practice & Procedure § 1063
(4th ed. 2024). “[T]he exercise of personal jurisdiction by
federal courts under Rule 4(k)(2) is subject to limitations
imposed by the Fifth Amendment Due Process Clause
21
with respect to affiliating contacts.” 4B Charles A. Wright,
et al., Federal Practice & Procedure § 1124 (4th ed. 2024).
Although this Court recently remarked that it is an
“open[ ] question whether the Fifth Amendment imposes
the same restrictions [as the Fourteenth Amendment] on
the exercise of personal jurisdiction by a federal court,”
Bristol-Myers Squibb, 582 U.S. at 269, most of the courts
of appeals have observed that “there is no meaningful
difference in the level of contacts required for personal
jurisdiction.” Livnat v. Palestinian Auth., 851 F.3d 45, 55
(D.C. Cir. 2017); see also, e.g., Douglass v. Nippon Yusen
Kabushiki Kaisha, 46 F.4th 226, 235-36 (5th Cir. 2022) (en
banc) (noting that the Fifth and Fourteenth Amendments
“use the same language and serve the same purpose,”
such that the Fifth Amendment would likely “require[ ]
the same minimum contacts with the United States as the
Fourteenth Amendment requires with a state” (internal
quotation marks omitted)), cert. denied, 143 S. Ct. 1021
(2023) (mem.); Oldfield v. Pueblo De Bahia Lora, S.A.,
558 F.3d 1210, 1219 n.25 (11th Cir. 2009) (same); Carrier
Corp. v. Outokumpu Oyj, 673 F.3d 430, 449 (6th Cir. 2012)
(same).
Accordingly, in those tort cases implicating Rule 4(k)
(2) and specific jurisdiction since Bristol-Myers Squibb was
decided, the courts of appeals have—until now—required
that the suit-related conduct must be related to the
defendant’s contacts with the forum to avoid “collaps[ing]
the core distinction between general and specific personal
jurisdiction.” Bernhardt v. Islamic Republic of Iran,
47 F.4th 856, 866 (2d Cir. 2022), cert. denied, 144 S. Ct.
280 (2023) (mem.); see also Ayla, LLC v. Alya Skin Pty.
Ltd., 11 F.4th 972, 983 (9th Cir. 2021) (applying Ford and
22
holding that the exercise of specific personal jurisdiction
over a skin care company was appropriate in an action for
trademark infringement because defendant’s “contacts
with the United States include the very same promotions,
sales, and distribution of which [plaintiff ] complains”);
CGC Holding Co., LLC v. Hutchens, 974 F.3d 1201, 1209
(10th Cir. 2020) (affirming the exercise of specific personal
jurisdiction over alleged “equal partner in the business”
accused of stealing from U.S. citizens inside the U.S. by
preparing loan commitment letters and letters of intent
directed at U.S. borrowers, because the “class’s injuries
arose out of [defendant’s] forum-related activities, as a coconspirator in the scheme”); Herederos de Roberto Gomez
Cabrera, LLC v. Teck Resources Ltd., 43 F.4th 1303, 1311
n.3 (11th Cir. 2022) (affirming dismissal for lack of specific
jurisdiction over Canadian company arising from conduct
in Cuba because plaintiff had not shown his claim arose
from or related to defendant’s contacts with the United
States, reasoning that defendant “didn’t take any action
in this country related to that harm”) (emphasis added),
cert. denied, 143 S. Ct. 736 (2023) (mem.).11
11. A case like this one likely would not even make it to the
“relatedness” inquiry in the Ninth Circuit. In the Ninth Circuit,
which employs a “purposeful direction” test to evaluate personal
jurisdiction in tort actions, the court must first make a preliminary
determination that the defendant’s action caused harm in the
forum which the defendant knew was likely to be suffered there.
See Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002);
CollegeSource, Inc. v. AcademyOne, Inc., 652 F.3d 1066, 1076 (9th
Cir. 2011). When a defendant’s conduct occurs primarily outside
the forum state, courts in the Ninth Circuit “look to whether the
defendant expressly aimed acts at the forum state knowing that
they would harm the plaintiff there.” Impossible Foods Inc. v.
Impossible X LLC, 80 F.4th 1079, 1088 (9th Cir. 2023) (emphasis
added), cert. denied, 144 S. Ct. 2561 (2024) (mem). None of the
23
Yet under the guise of applying Federal Rule of
Civil Procedure 4(k)(2), the Fifth Circuit in this case
conflated general and specific jurisdiction when it found
that SAS had systematic and continuous contacts in the
United States without also evaluating the relationship
between the claims and the defendant’s U.S. contacts,
i.e. without requiring that “the defendant’s suit-related
conduct . . . create a substantial connection with the
forum State.” Walden, 517 U.S. at 284. The Fifth Circuit
considered SAS’s “aggregated contacts” without linking
those expanded contacts to a slip and fall on a passenger
boarding bridge in Norway that allegedly was caused by
conduct that took place in Norway.
The decision below contravenes this Court’s precedent
governing the exercise of specific jurisdiction and is an
outlier among the decisions of the other courts of appeals
regarding the degree of relatedness required to establish
specific jurisdiction.
3. This Court has cautioned against an “uninhibited
approach to personal jurisdiction” that would pose “risks
to international comity.” Daimler, 571 U.S. at 141. The
doctrine of international comity promotes “the spirit of
cooperation in which a domestic tribunal approaches the
resolution of cases touching the laws and interests of
other sovereign states.” Société Nationale Industrielle
Aérospatiale v. U.S. Dist. Ct. for the S. Dist. of Iowa, 482
U.S. 522, 543 n.27 (1987).
acts that are alleged to have harmed Ms. Hardy (e.g. the alleged
positioning of the jet bridge in Oslo) were aimed at the United
States, and they did not harm Ms. Hardy in the United States.
24
In Ford, this Court explained that principles of
interstate federalism supported a finding of specific
personal jur isdiction over Ford in Montana and
Minnesota—the states in which the cars at issue
malfunctioned and injured the plaintiffs. This Court
recognized the need to consider both (1) the interest of
the forum state in adjudicating controversies arising
from “injuries inflicted by out-of-state actors, as well as
enforcing its own safety regulations”; and (2) the interests
of “the States in relation to each other,” since one State’s
“‘sovereign power to try’ a suit . . . may prevent ‘sister
States’ from exercising their like authority.” Ford Motor
Co., 592 U.S. at 360 (quoting World-Wide Volkswagen v.
Woodson, 444 U.S. 286, 293 (1980)).
The courts of appeals have observed that “an analogous
‘federalism’ dynamic may arise in the Fifth Amendment
context under the rubric of ‘international comity.’”
Douglass, 46 F.4th at 237, 237 n.17; see also Livnat, 851
F.3d at 55 (noting that the sovereign concerns of other
countries whose courts might adjudicate claims “weigh at
least as heavily in the Fifth Amendment context”).
Of course, a State has an interest in adjudicating the
claims of its citizens. But unlike the resident plaintiffs
in Ford, Ms. Hardy was not injured in an accident that
occurred either in Louisiana or the United States. Rather,
she fell and was injured at a Norwegian airport, which
may well implicate “the laws and interests” of Norway. Yet
the Fifth Circuit made no mention of whose regulations
or substantive law would apply to an incident relating to
aviation and airport safety in Norway.12
12. Article 17 of the Montreal Convention governs an air
carrier’s liability. However, it also operates as a “pass-through,
25
The court of appeals failed to consider the implications
on international comity if a U.S. court adjudicates the
actions of ground staff at a Norwegian airport. If the
reasoning of the court of appeals is to be followed, any
U.S. federal court could adjudicate a dispute arising from
an incident at any other country’s airport that has direct
flights with the United States. And by that logic, any of the
courts of any of those countries could adjudicate disputes
arising from incidents that occur at U.S. airports—a
troubling result, considering that “regulation of this
country’s airspace has a history of significant federal
presence.” Montalvo v. Spirit Airlines, 508 F.3d 464, 472
(9th Cir. 2007) (noting that the FAA pervasively regulates
the field of aviation safety, particularly “the warnings and
instructions which must be given to airline passengers”);
Abdullah v. Am. Airlines, 181 F.3d 363, 365 (3d Cir.
1999) (noting that FAA regulations and standards “are
not subject to supplementation by, or variation among,
jurisdictions”).
This Court has never addressed the question of
whether specific jurisdiction exists over a foreign
authorizing [a court] to apply the law that would govern in the
absence of the” Convention. Zicherman v. Korean Air Lines Co.,
516 U.S. 217, 231 (1996) (explaining that the Warsaw Convention,
which was the predecessor to the Montreal Convention, “leave[s]
the specification of what harm is legally cognizable to the domestic
law applicable under the forum’s choice-of-law rules”). Accordingly,
issues concerning damages and SAS’s affirmative defenses
relating to comparative and third-party negligence under Articles
20 and 21 of the Montreal Convention would be governed by the
applicable law under Louisiana’s choice-of-law rules. And because
SAS is domiciled in Norway, and “both the injury and the conduct
that caused it occurred in” Norway, the law of Norway may apply
to some of these issues. La. Civ. Code Ann. Art. 3544 (2024).
26
corporation arising from an incident that occurred
wholly outside the United States, and the Fifth Circuit’s
perfunctory holding is incorrect and inconsistent with this
Court’s precedent and its current interpretative approach
to specific personal jurisdiction. This Court should grant
certiorari to resolve the conflict between the reasoning
of the Fifth Circuit and the reasoning underlying this
Court’s holdings in Walden, Bristol-Myers Squibb, and
Ford.
III. This Petition squarely presents important and
recurring questions.
1. This petition raises important and recurring
questions of Constitutional due process and specific
personal jurisdiction. Every day, trial and appellate
courts consider the outcome-determinative question of
whether due process allows a court to exercise personal
jurisdiction over a non-resident defendant. The reach of
specific personal jurisdiction is of paramount importance,
particularly as it relates to proper construction of the
relatedness requirement, as this Court has previously
recognized when granting certiorari to resolve it. See, e.g.,
Ford Motor Co., 592 U.S. at 358; Bristol-Myers Squibb,
582 U.S. at 261.
These questions are especially important as the courts
of appeals and state courts of last resort wrestle with the
“relatedness” requirement and issue decisions that are
difficult to reconcile. In Ford, this Court did not define
the level of “relatedness” needed to support the exercise
of specific personal jurisdiction, holding only that Ford’s
“veritable truckload of contacts” with the forums were
“related enough to the plaintiffs’ suits” to justify the
27
exercise of specific jurisdiction. Ford Motor Co., 592 U.S.
at 362. Although the Court said that “the phrase ‘relate to’
incorporates real limits,” id. at 362, Justice Alito observed
that the Court did not identify what those limits are and
predicted that lower courts may, as a result, struggle
to implement the Court’s holding. Id. at 374 (Alito, J.,
concurring).
This prediction has been realized, as one commentator
has remarked that based on a review of state and federal
cases, “[i]t is difficult, if not impossible, to articulate one
consistent analytical framework . . . of Ford Motor Co’s
relatedness test.” Petrosino, Rationalizing Relatedness,
91 Fordham L. Rev. at 1566; accord Yamashita v. LG
Chem, Ltd., 62 F.4th 496, 506 n.1 (9th Cir. 2023) (“We note
considerable confusion among district courts about how to
apply Ford in cases highly similar to those at issue here.”);
Baskin v. Pierce & Allred Constr., Inc., 676 S.W.3d 554,
576 (Tenn. 2023) (noting “the lack of a clear rule” on the
meaning of “relate to” in Ford); Adams v. Aircraft Spruce
& Specialty Co., 284 A.3d 600, 615 (Conn. 2022) (noting
that this Court “declined to elaborate on the contours
of [the] limits” of relatedness in Ford). As similarly
predicted by Justice Gorsuch, the “relatedness” test
offers practical limitations; in the wide gulf between “the
poles of ‘continuous’ and ‘isolated’ contacts lie a virtually
infinite number of ‘affiliations’ waiting to be explored.”
Ford Motor Co., 592 U.S. at 378 (Gorsuch, J., concurring).
This Court should grant certiorari to provide
defendants with “a degree of predictability” as to what
“conduct will and will not render them liable to suit.”
World-Wide Volkswagen, 444 U.S. at 297.
28
2. The relatedness question is particularly important
in the context of Rule 4(k)(2) because the Rule applies
exclusively to foreign entities and requires a due process
analysis under the Fifth Amendment, the reach of which
remains an open question yet to be decided by this Court.
Rule 4(k)(2) is a procedural rule that applies to claims
arising under federal law when the defendant is not subject
to personal jurisdiction in any state’s courts of general
jurisdiction. Fed. R. Civ. P. 4(k)(2). Accordingly, it applies
exclusively to foreign entities. As discussed above, Rule
4(k)(2) does not create a substantive basis for personal
jurisdiction; rather it is a procedural rule governing the
territorial limits of service and its “‘text is expressly
subservient to the constitutional limits of due process.’”
Pet.App.20a (quoting Douglass, 46 F.4th at 233).13
Since the Fifth Amendment governs due process
constraints on the exercise of personal jurisdiction by
federal courts adjudicating federal claims, it is critical to
understand what is required under a Fifth Amendment
due process analysis. But as expressly noted in BristolMyers Squibb, this Court has not yet decided “whether
the Fifth Amendment imposes the same restrictions on
the exercise of personal jurisdiction by a federal court”
as does the Fourteenth Amendment on state courts. 582
U.S. at 269-70.14
13. See also 28 U.S.C. § 2072(b) (The Federal Rules of Civil
Procedure do not “abridge, enlarge, or modify any substantive
right.”)
14. This Court has also observed that it has not had an
opportunity to consider whether the Due Process Clause of the
Fifth Amendment authorizes “federal court personal jurisdiction
29
As discussed above, most of the courts of appeals have
observed “there is no meaningful difference” between the
minimum contacts analyses of the Fifth and Fourteen
Amendments. See, e.g., Livnat, 851 F.3d at 55; Douglass,
46 F.4th at 239. But the Second Circuit has recognized
that this Court has not decided whether the protections
of the Fifth Amendment reach as far as those under the
Fourteenth Amendment. Lensky v. Turk Hava Yollari,
A.O., No. 21-CV-2567, 2023 WL 6173334, at *2 (2d Cir.
Sept. 22, 2023). As a result, after the Lensky case was
remanded, the district court determined that it could not
over alien defendants based on the aggregate of national contacts,
rather than on the contacts between the defendant and the State in
which the federal court sits.” Asahi Metal Indus. Co. v. Superior
Court of Cal., Solano Cty., 480 U.S. 102, 113 n.* (1987) (emphasis
in original); see also Omni Capital Int’l, Ltd. V. Rudolf Wolff & Co.
Ltd., 484 U.S. 97, 102 n.5 (1987) (same). Although the majority of
courts deciding personal jurisdiction have aggregated defendants’
national contacts where Rule 4(k)(2) is invoked, it remains an open
question whether such aggregation is indeed authorized by the
Constitution. To the extent that it is authorized, it is also worth
considering whether, and to what degree, due process is fulfilled
when specific personal jurisdiction is derived from a defendant’s
diffuse contacts throughout the entire United States, rather than
its contacts with a specific state. Given the burdens on a foreign
defendant of litigating, in the United States, an action arising
from an incident that occurred outside the United States, it would
seem logical for due process to be afforded more weight—surely
not less—when service is effectuated under Rule 4(k)(2) and
the district court takes this as a cue to aggregate a defendant’s
contacts with the United States as a whole. As the Douglass
court noted, historically, “the due process limitations on personal
jurisdiction assumed greater independent significance” as “the
territorial scope of service expanded.” 46 F.4th at 234 (discussing
the history of Rule 4(k)(2) and Supreme Court precedent on due
process).
30
apply Daimler’s “essentially at home test” because of the
“open question” as to how general jurisdiction could be
evaluated in a Rule 4(k)(2) case. Dularidze v. Turk Haa
Yallario A.O., No. 1:20-cv-4978-GHW, 2024 WL 3567332,
at *4 (S.D.N.Y. July 28, 2024), motion to certify appeal
denied, No. 1:20-CV-4978, 2024 WL 4467347 (S.D.N.Y.
Oct. 10, 2024)). Rather, the district court applied the
“continuous and systematic test” previously articulated
by the Second Circuit and determined that the defendant
Turkish air carrier’s contacts satisfied this test and
authorized the exercise of general jurisdiction over the
air carrier. Id.
As evinced in these cases involving Turkish and
Scandinavian air carriers, when the Fifth Amendment’s
due process protections do not extend as far as the
Fourteenth Amendment’s, a foreign entity is subject
to personal jurisdiction in cases in which a domestic
corporation would not be. Had the Turkish airline in
Dularidze been afforded the same due process as a
domestic air carrier, it would not have been subject to
general jurisdiction in New York because it is not “at
home” there. Similarly, had SAS been afforded the specific
jurisdiction analysis required by Walden, Bristol-Myers
Squibb, and Ford, its diffuse contacts with the United
States would have been insufficient to support jurisdiction
given their lack of connection to any suit-related conduct.
In his dissenting opinion from the en banc decision
in Douglass, Judge Higginson remarked that this is
an “area of international comity and sensitivity” that
calls for clarification “as to what nexus is sufficient for
federal courts to assert adjudicative jurisdiction without
entangling our legal system with those of other nations.”
31
Douglass, 46 F.4th at 284 n.4 (5th Cir. 2022) (Higginson, J.,
dissenting). This Court should grant certiorari to resolve
the question of whether Fifth Amendment protections
extend as far as those granted by the Fourteenth
Amendment, and whether a foreign entity is entitled to
the same due process protections as a domestic entity.
3. This case squarely and cleanly presents this issue
for review.
The only contested issue is one of law, and this case
arises on typical, straightforward facts involving a single
plaintiff and single defendant. This is the archetypal case
involving a personal injury outside the products liability
context: a plaintiff who resides in the forum alleges she
was injured outside the forum by a company that resides
outside the forum.
By granting certiorari, this Court can resolve the
important jurisdictional questions based on simple facts
frequently encountered by the lower courts. It should do
so here.
32
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
Bartholomew J. Banino
Counsel of Record
Marissa N. Lefland
Condon & Forsyth LLP
7 Times Square, 18th Floor
New York, NY 10036
(212) 490-9100
bbanino@condonlaw.com
Counsel for Petitioner
APPENDIX
i
TABLE OF APPENDICES
Page
Appendix A — Opinion of the United States
Court of Appeals for the Fifth Circuit, filed
August 26, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
Appendi x B — Order and Reasons of the
United States District Court for the Eastern
District of Louisiana, filed August 11, 2023 . . . . . . 30a
1a
Appendix
A
Appendix A — Opinion
of the United
States Court of
Appeals for the Fifth Circuit, filed August 26, 2024
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 23-30632
SUSAN HARDY,
Plaintiff-Appellant,
versus
SCANDINAVIAN AIRLINES SYSTEM,
ALSO KNOWN AS SAS, DOING BUSINESS
AS SCANDINAVIAN AIRLINES OF NORTH
AMERICA, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:21-CV-1591
Before Smith, Wiener, and Douglas, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Susan Hardy flew from Newark, New Jersey, to
Oslo, Norway, to visit her daughter. As she stepped off
the plane, she fell and fractured her leg. Hardy sued the
airline, Scandinavian Airlines System (“SAS”), in the
2a
Appendix A
Eastern District of Louisiana, contending that Article 33
of the Montreal Convention created both subject matter
jurisdiction over the injury claim and personal jurisdiction
over SAS.1 The district court dismissed, concluding that
the Convention grants only subject matter jurisdiction.
Further, it rejected Hardy’s claim that SAS’s waiver of
service created personal jurisdiction under Federal Rule
of Civil Procedure 4(k)(2).
This court has never answered whether the Montreal
Convention independently creates personal jurisdiction
over a defendant airline. On this matter of first impression,
we hold that it does not. Article 33, despite being titled
“Jurisdiction,” uses “may be brought” and “must be
brought” language, which is wording indicative of venue
prescriptions. And venue prescriptions do not establish
personal jurisdiction without language also authorizing
the service of process. BNSF Ry. Co. v. Tyrrell, 581 U.S.
402, 408-10 (2017). Because the Montreal Convention lacks
that language, it does not create personal jurisdiction.
We depart from the district court, however, on
Hardy’s Rule 4(k)(2) claim. The district court incorrectly
considered whether SAS had minimum contacts with
Louisiana. Instead, it should have analyzed SAS’s contacts
with the United States writ large. Per that analysis, we
conclude that SAS has sufficient minimum contacts with
the U.S. for the district court à quo to exercise personal
jurisdiction over it for Hardy’s claim. Therefore, we
reverse and remand.
1. See Convention for the Unification of Certain Rules for
International Carriage by Air, art. 33, May 28, 1999, S. Treaty
Doc. 106-45, 1999 WL 33292734 (the “Montreal Convention”).
3a
Appendix A
I.
Hardy lives in Mandeville, Louisiana, but her daughter
and son-in-law live in Oslo. She and her husband flew there
for a visit. Hardy purchased round-trip tickets from New
Orleans to Newark on United Airlines and separately
bought round-trip tickets from Newark to Oslo on SAS. 2
As she disembarked the plane in Oslo, Hardy’s foot
dropped an unexpected five to six inches further than
normal to the jet bridge, and she fell hard, breaking her
right leg. She spent several days in a hospital in Oslo before
recovering at her daughter’s home. Later, she returned to
Mandeville and continued to receive treatment.
Hardy sued SAS in the Eastern District of Louisiana,
alleging strict liability under the Montreal Convention. 3
After the parties ironed out issues regarding Hardy’s
initial service on SAS’s American subsidiary, SAS waived
service per Federal Rule of Civil Procedure 4(d). Shortly
thereafter, SAS moved to dismiss for want of personal
jurisdiction under Federal Rule of Civil Procedure 12(b)
(2). At no place in that motion, or elsewhere, did SAS name
a district within the United States where the court could
exercise personal jurisdiction over it.
2. SAS is a consortium of corporations headquartered in
Stockholm and organized under the laws of Denmark, Norway,
and Sweden.
3. See Montreal Convention, arts. 17, 20, 21 (creating strict
liability up to 100,000 SDR (~$134,000) where the injury occurs “in
the course of any of the operations of embarking or disembarking”
and the injured does not cause or contribute to the injury).
4a
Appendix A
The court granted SAS’s motion and dismissed
Hardy’s complaint without prejudice. First, it rejected
Hardy’s claim that the Montreal Convention’s Article 33
created personal jurisdiction over SAS. Recognizing that
our court had yet to address that question, it found the
Second Circuit’s analysis in National Union persuasive
and adopted it. 4 Second, the court rejected Hardy’s
contention that SAS’s waiver of service brought SAS
within the district court’s personal jurisdiction by way
of Federal Rule of Civil Procedure 4(k)(2). Specifically, it
found that Hardy had failed to relate her claim to SAS’s
forum-specific actions because the alleged negligent
conduct occurred in Oslo, not Louisiana. Buttressing
its analysis, the court also concluded that the exercise
of personal jurisdiction here would not be “fair and
reasonable” because “the connection between her cause
of action and Defendant’s forum-related activities” was
“too attenuated.” Hardy appeals the dismissal.
II.
We review questions of personal jurisdiction de novo.5
The party asserting jurisdiction “has the burden to make a
prima facie showing that personal jurisdiction is proper.”6
4. See Nat’l Union Fire Ins. Co. of Pittsburgh v. UPS Supply
Chain Sols., Inc., 74 F.4th 66 (2d Cir. 2023), cert. denied, 144 S. Ct.
559 (2024).
5. E. Concrete Materials, Inc. v. ACE Am. Ins. Co., 948 F.3d
289, 295 (5th Cir. 2020) (quoting In re Chinese-Manufactured
Drywall Prods. Liab. Litig., 742 F.3d 576, 584 (5th Cir. 2014)).
6. Id. (quoting Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d
429, 431 (5th Cir. 2014)).
5a
Appendix A
III.
Hardy presents three claims on appeal: first, that the
Montreal Convention creates both personal and subject
matter jurisdiction; second, that SAS waived any objection
to personal jurisdiction by incorporating the Montreal
Convention into its contract of carriage; and third, that
SAS is subject to personal jurisdiction under Federal Rule
of Civil Procedure 4(k)(2) because it waived service. We
reject the first and the second, but we agree with the third.
A.
Whether the Montreal Convention independently
creates personal jurisdiction over a defendant is a question
of first impression in this circuit. We conclude that the
Montreal Convention’s Article 33 does not create personal
jurisdiction, joining the Second Circuit, though with a
different rationale.
The Montreal Convention is a multilateral treaty
signed in 1999 and adopted and ratified by the U.S. in 2003.
The Convention “supersede[s] the Warsaw Convention” of
19297 and, as amended, it “represents a vast improvement
over the liability regime established” thereunder. 8 Inter
alia, it “provides for U.S. jurisdiction for most claims
7. See Convention for the Unification of Certain Rules
Relating to International Carriage by Air, Oct. 12, 1929, 49 Stat.
3000, 137 L.N.T.S. 11 (the “Warsaw Convention”).
8. Montreal Convention, Letter of Transmittal of President
William J. Clinton, 1999 WL 33292734, at *2.
6a
Appendix A
brought on behalf of U.S. passengers” by means of a new
subsection of the Warsaw Convention’s jurisdictional
Article. 9 The parties’ main dispute is whether that
language of “jurisdiction” means personal jurisdiction as
it is understood in American courts.
Hardy submits that the text of, the Letter of Submittal
for, and the Senate Committee’s Report on the Montreal
Convention all “provide[ ] the clear and unambiguous
intent of the United States” to create personal jurisdiction
over SAS. In her telling, the district court erred in two
key ways. First, interpretation of Article 33(2) cannot
rely on prior interpretations of the Warsaw Convention
because the Warsaw Convention lacked any analogue to
Article 33(2). Second, the factual dissimilarities between
her case, dealing with a personal injury, and National
Union, dealing with cargo damage, make the Second
Circuit’s analysis inapplicable. Hardy contends that the
parties to the treaty knew and accepted that it would open
their national carriers to liability in the United States.
So, the district court improperly interpreted the treaty.
SAS retorts that the Second Circuit correctly
determined that Article 33 “speak[s] only to treaty
jurisdiction as a form of subject-matter jurisdiction, not
personal jurisdiction.” Nat’l Union, 74 F.4th at 73. So,
the factual dissimilarities between Hardy’s and National
Union’s cases are irrelevant. Further, SAS cites a litany
of Article 33 cases either focusing on subject matter
9. Id.; see also Letter of Submittal of Deputy Sec’y of State
Strobe Talbott, 1999 WL 33292734, at *8, *23 (comparing Art.
33(2) to Warsaw Convention Art. 28).
7a
Appendix A
jurisdiction or even expressly concluding that there
is no personal jurisdiction. Finally, SAS defends the
applicability of Warsaw Convention precedent because
we routinely rely on caselaw interpreting the Warsaw
Convention “to interpret corresponding provisions of the
Montreal Convention.”10
We agree with our prior panels that interpretation
of the Warsaw Convention can and should inform our
interpretation of the Montreal Convention.11 But the
parties to the Montreal Convention added Article 33(2)
because the Warsaw Convention lacked something.
Therefore, to understand what Article 33(2) does, we must
turn to the traditional tools of treaty interpretation.
1.
Interpretation of Article 33(2)
We construe treaties “more liberally than private
agreements.” Potter v. Delta Air Lines, Inc., 98 F.3d 881,
885 (5th Cir. 1996) (quoting Air France v. Saks, 470 U.S.
392, 396 (1985)) (cleaned up). “We begin with the text of
the treaty and the context in which the words are used.”
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486
10. Bridgeman v. United Cont’l Holdings, Inc., 552 F. App’x
294, 297 n.1 (5th Cir. 2013)). Separately, SAS contends that treaties
may not create personal jurisdiction. But the Constitution is
merely a floor, not a ceiling, so we reject that position.
11. See id.; Bassam v. Am. Airlines, 287 F. App’x 309, 313 n.5
(5th Cir. 2008) (per curiam) (“Although the Montreal Convention
completely replaced the prior Warsaw Convention, courts
interpreting the Montreal Convention rely on cases interpreting
similar provisions of the Warsaw Convention.” (cleaned up)).
8a
Appendix A
U.S. 694, 699 (1988) (cleaned up). Then, if necessary “to
ascertain their meaning[,] we may look beyond the written
words to the history of the treaty, the negotiations, and
the practical construction adopted by the parties.” Potter,
98 F.3d at 885 (citation omitted). “[W]here a treaty admits
of two constructions, one restrictive of and the other
favorable to the rights claimed under it, the latter is to
be preferred.” Boehringer-Mannheim Diagnostics, Inc.
v. Pan Am. World Airways, Inc., 737 F.2d 456, 458 (5th
Cir. 1984) (citation omitted).
We begin with the text of Article 33(2):
In respect of damage resulting from the . . .
injury of a passenger, an action may be brought
before one of the courts . . . in the territory
of a State Party in which at the time of the
accident the passenger has his or her principal
and permanent residence and to or from which
the carrier operates services for the carriage
of passengers by air, either on its own aircraft,
or on another carrier’s aircraft pursuant to
a commercial agreement, and in which that
carrier conducts its business of carriage of
passengers by air from premises leased or
owned by the carrier itself or by another carrier
with which it has a commercial agreement.
Hardy contends that we ought to read “an action may be
brought” to create personal jurisdiction in the plaintiff ’s
home district over any defendant air-line governed by
the Montreal Convention. She marshals several pieces of
context to support her claim.
9a
Appendix A
First, she asserts that the State Department’s Letter
of Submittal to the Senate demonstrates the Senate’s
understanding that the Treaty makes Article 33(2)’s “fifth
jurisdiction” “available even if the accident occurs on a
passenger journey and air service that did not include
a point in the country of the passenger’s principal and
permanent residence, provided that the carrier had the
contacts with that country required by this paragraph.”12
Second, the Senate Committee on Foreign Relations
determined that “[u]nder Article 33, . . . U.S. courts will
have jurisdiction in nearly all cases involving . . . personal
injury to passengers who reside in the United States, thus
eliminating the need for [them] to bring suit in foreign
courts in order to obtain jurisdiction over air carriers.”13
Hardy’s interpretation of that ratification history also
fits well with the stated goals of the replaced Warsaw
Convention—“delegates voiced concerns about the
possibility of major air crash cases being decided by courts
12. Montreal Convention, Letter of Submittal of Deputy Sec’y
of State Strobe Talbott, 1999 WL 33292734, at *23 (discussing
Art. 33(2)).
13. S. Exec. Rep. 108-8, at 4, 108th Cong. (2003); see also
id. at 21-22 (Deputy Assistant Secretary of State John R. Byerly
explaining that the Convention allows an injured person to bring
suit in “U.S. courts not only in cases against an airline that is
domiciled or has its principal place of business here, or where
the passenger’s destination was the United States, or where the
passenger made the contract for carriage in the United States, but
in addition, where the passenger has his principal and permanent
residence in all cases where the carrier serves the United States
. . . and that carrier has a presence here.”).
10a
Appendix A
of nations whose legal systems trailed developments
in many or most other nations. “To avoid the ‘prospect
of a junglelike chaos,’ the Convention set forth rules
for universal application.” Boehringer-Mannheim
Diagnostics, 737 F.2d at 458 (quoting Reed v. Wiser, 555
F.2d 1079, 1092 (2d Cir. 1977)).
But that interpretation runs contrary to Supreme
Court precedent interpreting the same language in other
contexts. Article 33 permits that suits “must be brought,
at the option of the plaintiff,” in certain territories, Art.
33(1), or that they “may be brought” in the passenger’s
residential territory, Art. 33(2). That language precisely
mirrors the language we regularly see in venue-selection
and prescription clauses.14 But, unfortunately for Hardy, a
venue prescription sans authorization of service of process
does not independently create personal jurisdiction.15 In
14. Compare Montreal Convention art. 33 with 28 U.S.C.
§ 1391(b) and BNSF, 581 U.S. at 408-09.
15. See BNSF, 581 U.S. at 408-09; see also Leroy v. Great
W. United Corp., 443 U.S. 173 (1979). There, the Supreme Court
interpreted Section 27 of the 1934 Exchange Act. See 15 U.S.C.
§ 78aa. It, like Montreal Convention Article 33, has a title that
includes the word “Jurisdiction,” and it explains both that “[a]ny
criminal proceeding may be brought in the district wherein any
act or transaction constituting the violation occurred” and that
“[a]ny suit or action to enforce any liability or duty created by this
chapter . . . may be brought in any such district. . . . ” 15 U.S.C.
§ 78aa(a) (emphasis added). Despite that, and even despite Section
27’s discussion of service of process, the Court declared that “§ 27
of the 1934 [Exchange] Act does not provide a basis for personal
jurisdiction. . . . ” Great W. United Corp., 443 U.S. at 180-81.
11a
Appendix A
other words, Article 33 does not create any jurisdiction.
Instead, it prescribes venue.16
Admittedly, this interpretation is novel. As far as we
are aware, no other court has expressly answered the
question of personal jurisdiction under Article 33(2) by
calling it a venue prescription.17 The Second Circuit is the
only circuit to have definitively resolved the question, and
it concluded that Article 33(2) affords only subject matter
jurisdiction, not personal. See Nat’l Union, 74 F.4th at
73-74. So too have many district courts.18
16. The title of Article 33, “Jurisdiction,” is likely the result
of harmonizing different legal systems. Regardless, the title of
the section does not override the plain language of the Treaty.
See also supra note 15.
17. The Eleventh Circuit at least implicitly endorsed our
interpretation of Article 33 in Pierre-Louis v. Newvac Corp.,
584 F.3d 1052 (11th Cir. 2009). There, in a forum non conveniens
dispute, the court reviewed Article 33 as a “jurisdictional provision
which specifies in which fora . . . suits can be brought” and found
that Article 33 did not prevent the application of forum non
conveniens. Id. at 1056-58.
18. See, e.g., Pesa v. SAS, 2:19 Civ. 20415, 2021 WL 1660863,
at *7 (D.N.J. Apr. 27, 2021); Sampson v. Delta Air Lines, Inc.,
No. 2:12 Civ. 244, 2013 WL 6409865, at *1 (D. Utah Dec. 9, 2013);
Weinberg v. Grand Circle Travel, LCC, 891 F. Supp. 2d 228, 237
(D. Mass. 2012); Tucker v. British Airways PLC, 2:16 Civ. 00618,
2017 WL 6389302, at *3 (W.D. Wash. Dec. 14, 2017); Burton v.
Air France-KLM, No. 3:20-cv-1085, 2020 WL 7212566, at *7 (D.
Or. Dec. 7, 2020); Fisher v. Qantas Airways Ltd., 521 F. Supp. 3d
847, 855 (D. Ariz. 2021); Bandurin v. Aeroflot Russian Airlines,
19 CV 255, 2020 WL 362781, at *5 (N.D. Ill. Jan. 22, 2020); Avalon
Techs., Inc. v. EMO-Trans, Inc., Civ. A. No. 14-14731, 2015 WL
1952287, at *5 (E.D. Mich. Apr. 29, 2015).
12a
Appendix A
Still, we must perform our judicial duty and interpret
the text. In that endeavor, Duplantier v. United States,
606 F.2d 654 (5th Cir. 1979), is instructive. There, we
accepted the contention that 28 U.S.C. § 1391(e)(2)’s
service-of-process language created personal jurisdiction
over the federal Executive Branch. But we rejected an
extension of that subsection’s reach to the Judicial Branch
because the judiciary contained no officers or agencies. Id.
at 663-64 (adopting Liberation News Serv. v. Eastland,
426 F.2d 1379 (2d Cir. 1970) (declining to extend § 1391 to
the Legislative Branch)). Without language providing for
service on judicial branch members, we could not exercise
personal jurisdiction over the judicial defendants. Id.19
That so many courts reach the same conclusion might suggest
that the answer is well settled. But, other than the Second Circuit’s
ruling in National Union and some Second Circuit cases on the
Warsaw Convention such as Campbell v. Air Jamacia, Ltd., 863
F.2d 1, 1 (2d Cir. 1988) (per curiam), and Smith v. Canadian Pac.
Airways, Ltd., 452 F.2d 798, 800 (2d Cir. 1971) (addressing a motion
to dismiss based on Rules 12(b)(1) and (3)), effectively every case
offers some form of “other courts have said this is subject matter
jurisdiction, not personal. Q.E.D., we do the same.” In other words,
they forgo any kind of analysis. That reliance-without-analysis has
no persuasive force, leaving us bound to perform an independent
interpretation.
19. See also F ed. R. Civ. P. 4(k) (requiring service of a
summons or waiver as a prerequisite to exercising jurisdiction);
In re McDonnell-Douglas Corp., 647 F.2d 515, 516 (5th Cir. Unit A
May 1981) (“A court sitting in admiralty has personal jurisdiction
over any defendant sued in personam whom the court can reach
with process.” (cleaned up)); Omni Cap. Int’l, Ltd. v. Rudolf Wolff
& Co., 484 U.S. 97, 104-06 (1987); Fischer v. Fed. Express Corp., 42
F.4th 366, 385 (3d Cir. 2022), cert. denied, 143 S. Ct. 1001 (2023).
13a
Appendix A
We interpret the Montreal Convention in the same
way. It provides a cause of action—Articles 17 and 1820 —
and it provides a venue selection clause—Article 33—but it
does not provide for service, so it does not create personal
jurisdiction. 21 Therefore, the district court correctly
concluded that Article 33(2) did not create personal
jurisdiction over SAS.
B.
Hardy contends that, by virtue of reference to the
Montreal Convention in its Contract of Carriage, SAS
has waived its objections to personal jurisdiction in any
court competent to hear a Montreal Convention claim.
20. See Boehringer-Mannheim Diagnostics, 737 F.2d at 458.
21. We do not intend our interpretation to create any tension
or conf lict with other courts’ interpretations, despite their
differing language. Instead, it appears most likely that those
courts have merely imprecisely used the term “subject matter
jurisdiction” to describe Article 33. See 14D Charles A lan Wright
& A rthur R. Miller, Federal Practice & Procedure § 3801 (4th ed.)
(“Wright & Miller”) (“Sometimes venue is confused with subject
matter jurisdiction. The two concepts are quite different. The
jurisdiction of the federal courts is a grant of authority to them
by Congress.” (cleaned up)). Title 28 U.S.C. § 1331 specifically
vests federal courts with subject matter jurisdiction over disputes
arising out of treaties, so reading Article 33(2) to create subject
matter jurisdiction also would create surplusage. Cf. R J Reynolds
Tobacco Co. v. FDA, 96 F.4th 863, 879 (5th Cir. 2024) (declining
to read surplusage into text). Therefore, we adopt a reading
that gives Article 33 some other meaning, one that fits well with
both the structure of the treaty and the intent of the signatory
countries. See S. Exec. Rep. 108-8 at 3, 4.
14a
Appendix A
But an acknowledgment of subject matter jurisdiction
or statutorily permitted venue does not waive personal
jurisdiction.
Contrary to SAS’s claims, Hardy did not forfeit
her waiver position. 22 Still, we reject it. Her position on
appeal merely repackages her claim that the Montreal
Convention creates personal jurisdiction. But if the
Convention does not create personal jurisdiction, then
SAS’s acknowledging that it is bound by the Convention
does not waive any objections to personal jurisdiction.
Made through an extremely oblique citation, Hardy
appears primarily to assert that the Contract of Carriage’s
adoption of the Montreal Convention is akin to a forum
selection clause—a “contractual waiver of personaljurisdiction objections if litigation is commenced in the
specified forum.” Weber v. PACT XPP Techs., AG, 811
F.3d 758, 768 (5th Cir. 2016) (cleaned up). But a statutorily
imposed forum prescription clause differs significantly
from a contractual forum selection clause—one is imposed,
the other is chosen—and a prescription does not create
or imply personal jurisdiction. Cf. BNSF, 581 U.S. at 408.
22. SAS avers Hardy raised this Contract of Carriage
contention for the first time on appeal, and, of course, matters
not raised to the district court are waived on appeal. Rollins v.
Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021). But on review
of the record, we see several locations where Hardy raised this
exact issue. True, she could have done so more clearly. But she
did so sufficiently to at least alert the district court to the issue.
Therefore, she has not forfeited her claim.
15a
Appendix A
SAS must comply with numerous federal regulations,
including 14 C.F.R. §§ 203.3 and 203.4. 23 Those require
SAS to “include the [Montreal Convention’s] terms as part
of its conditions of carriage.” 14 C.F.R. § 203.4(b). Hardy
asserts those regulations support her claim that SAS has
consented to jurisdiction anywhere in the United States.
But that cannot square with BNSF.
Just as a train company may be obligated to apply
the Federal Employer’s Liability Act in an employmentcontract dispute, so too has SAS been obligated to adopt
the Montreal Convention in its contract of carriage.
Therefore, the waiver claim cannot stand. Just as the
venue-prescription provision in BNSF did not confer
personal jurisdiction, the statutory venue prescriptions
here, required to be adopted into contracts by law, do not
create a waiver of personal jurisdiction.
Because the Montreal Convention does not create
personal jurisdiction, we reject Hardy’s claim. An
acknowledgment of subject matter jurisdiction or of
23. SAS appropriately points out that 14 C.F.R. § 203.4
addresses only the Montreal Agreement, which is distinct from
the Montreal Convention. Even so, 14 C.F.R. § 203.3 requires the
filing of signed counterparts to the “replacement” to the Montreal
Agreement and is entitled “Filing Requirements for Adherence
to Montreal Convention.” Because we rule for SAS anyway, for
the sake of this case we will assume that the subsequent section
of the same regulation was similarly updated. See also 14 C.F.R.
§ 203.5; Montreal Convention Article 55(1)(e) (stating that “[t]his
Convention shall prevail over any rules which apply to international
carriage by air,” including Montreal Protocol No. 4.).
16a
Appendix A
statutorily-permitted venue is not a waiver of personal
jurisdiction. So SAS did not waive its ability to object by
referencing the treaty in the Contract of Carriage.
C.
Hardy submits that the district court had personal
jurisdiction because SAS waived service and Hardy has
met the other requirements of Rule 4(k)(2). We agree.
Federal courts’ exercise of personal jurisdiction is
governed by Federal Rule of Civil Procedure 4(k). This
rule limits which federal court may hale a defendant into
court, permitting to do so (1) a court that (A) sits in a state
where the defendant is subject to the jurisdiction of that
state’s courts, (B) is within one hundred miles of where
the joined defendant was served, or (C) is authorized by
federal statute; or, (2) any federal court where the claim
arises under federal law and (A) the defendant is not
amenable to the jurisdiction of any state’s courts but (B)
where the exercise of personal jurisdiction by the federal
courts would not violate the federal constitution and laws.
Fed. R. Civ. P. 4(k). 24
24. Rule 4(k)(2) “was enacted to fill an important gap in the
jurisdiction of federal courts in cases arising under federal law”:
those cases where “‘a defendant may have sufficient contacts with
the United States as a whole to satisfy due process concerns,”
but “insufficient contacts with any single state,” such that the
defendant “would not be amenable to service by a federal court
sitting in that state.’” Adams v. Unione Mediterranea Di Sicurta,
364 F.3d 646, 651 (5th Cir. 2004) (quoting World Tanker Carriers
Corp. v. MV Ya Mawlaya, 99 F.3d 717, 721-22 (5th Cir. 1996)); see
also 4B Wright & Miller § 1124.
17a
Appendix A
Hardy contends that SAS falls into the second
group—defendants that maintain sufficient ties to the
United States but not to any one state—such that SAS’s
waiver of service suffices for Rule 4(k)(2) to apply. SAS
responds by disputing that Hardy’s claims arise from its
contacts in the United States and asserting that Rule 4(k)
(2) provides no independent basis for personal jurisdiction.
But SAS, like the district court, misconstrues the
standard we apply: We do not analyze whether SAS had
minimum contacts with the Eastern District of Louisiana;
instead, we analyze its contacts with the United States
writ large. Taking each prong of the Rule 4 analysis in
turn, we conclude that the district court had personal
jurisdiction over SAS.
1.
Whether the Claim Arises Under Federal Law.
A claim that arises from a treaty is a federal question.
28 U.S.C. § 1331. Hardy asserts liability under the
Montreal Convention, meaning that her claim arises under
federal law. 25
25. See World Tanker, 99 F.3d at 720-22 (“The use of the word
‘any’ to qualify ‘federal law’ suggests that the Advisory Committee
intended Rule 4(k)(2) to reach not just federal questions arising
under § 1331 but all claims arising under substantive federal
law.”); see also Potter, 98 F.3d at 883-85 & n.4 (interpreting the
Montreal Convention’s predecessor, the Warsaw Convention, and
acknowledging such interpretation raised a federal question); see
also 13D Wright & Miller § 3563 & nn.57-61.
18a
Appendix A
2. Whether Hardy Served a
Summons or SAS Waived Service.
SAS waived service and does not dispute this prong
of the Rule 4(k)(2) analysis. Thus, we continue to Rule
4(k)(2)(A) and (B).
3. Whether SAS Is Subject to Jurisdiction in
Any State’s Courts of General Jurisdiction.
Whether SAS may be subject to specific jurisdiction in
New Jersey for this case is uncertain. But it is ultimately
irrelevant to our analysis because SAS has not claimed
so in court.
In Adams, this circuit joined the Seventh in adopting a
presumption that, “so long as a defendant does not concede
to jurisdiction in another state, a court may use 4(k)(2) to
confer jurisdiction.” 364 F.3d at 651 (citing ISI Int’l, Inc.
v. Borden Ladner Gervais LLP, 256 F.3d 548, 552 (7th
Cir. 2001)). Applied for the sake of judicial economy, this
presumption applies to pretermit any “piecemeal analysis
of the existence vel non of jurisdiction in all fifty states.”
Id.26
SAS has been on notice since, at least, Hardy’s
response to the motion to dismiss that, to rebut the
application of Rule 4(k)(2), it bears the obligation to
identify a jurisdiction within the U.S. where it is subject
to personal jurisdiction. Yet it has declined to name any.
26. See also Nagravision SA v. Gotech Int’l Tech. Ltd., 882
F.3d 494, 499 (5th Cir. 2018).
19a
Appendix A
Considering that SAS has no employees or property in
the United States, no jurisdiction obviously has general
jurisdiction over it. Further, like the defendant in Adams,
SAS “has generally challenged the existence of minimum
contacts with the United States as a whole,” id., by
contending that it is not at home in the United States and
that Hardy’s claims do not arise from SAS’s contacts in
the U.S. at all. Therefore, Rule 4(k)(2)(A) does not bar a
finding of personal jurisdiction.
4.
Whether Exercising Jurisdiction Is Consistent
with the United States Constitution and Laws.
Finally, we reach the key question: Whether the
exercise of jurisdiction over SAS by the Eastern District
of Louisiana comports with the federal Constitution and
laws.
This is the only prong of the Rule 4(k) analysis that
SAS contests, asserting both that it is not “at home” in
Louisiana and that Hardy’s claims do not sufficiently arise
out of SAS’s contacts with Louisiana to afford specific
personal jurisdiction. SAS, like the district court, is
correct that it is not “at home” in the United States, nor
in Louisiana. But SAS copies the district court’s error,
analyzing the specific-personal-jurisdiction prong for
connection with Louisiana, instead of connection with
the United States writ large. Because SAS has sufficient
minimum contacts with the U.S. so as not to offend the
traditional notions of fair play and substantial justice, the
exercise of specific personal by a federal district court is
constitutionally permissible.
20a
Appendix A
Rule 4(k)(2)(B)
“Rule 4(k)(2) is a procedural rule governing the
territorial limits of service. The text is expressly
subservient to the constitutional limits of due process.”
Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th
226, 233 (5th Cir. 2022) (en banc), cert. denied, 143 S. Ct.
1021 (2023). To determine the constitutional limits of
personal jurisdiction for federal claims, we analyze
their comportment with the due process clause of the
Fifth Amendment, not the Fourteenth. Id. at 231. But
the process of analysis should be familiar—“the Fifth
Amendment due process test for personal jurisdiction
requires the same ‘minimum contacts’ with the United
States as the Fourteenth Amendment requires with a
state.” Douglass, 46 F.4th at 235. 27
Hardy does not assert that SAS is subject to the general
personal jurisdiction of the district court. A wise choice,
as the court correctly concluded that Douglass forecloses
such a claim.28 Thus, our only question is whether the court
27. See also 46 F.5th at 238 & n.19 (“Every Fifth Circuit
decision addressing the scope of contacts required for personal
jurisdiction under the Fifth Amendment has applied the thenexisting Fourteenth Amendment framework.” (footnote collecting
cases)). Our practice also comports with most other circuits. See
id. at 238 n.24 (collecting cases from the Second, Sixth, Seventh,
Eleventh, Federal, and D.C. Circuits); 4 Wright & Miller § 1069.1,
nn.10, 31 (collecting cases).
28. See 46 F.4th at 234-35, 238 (expressly limiting the extent
of its analysis to general jurisdiction and distinguishing those
cases that apply 4(k)(2) in specific jurisdiction contexts); see also
21a
Appendix A
erred by finding that it could not exercise specific personal
jurisdiction over SAS in connection with Hardy’s claim.
“This circuit applies a three-step analysis
for the specific jurisdiction inquiry: (1) whether
the defendant has minimum contacts with
the forum state, i.e., whether it purposely
directed its activities toward the forum state
or purposefully availed itself of the privileges
of conducting activities there; (2) whether
the plaintiff ’s cause of action arises out of or
results from the defendant’s forum-related
contacts; and (3) whether the exercise of
personal jurisdiction is fair and reasonable.”
If a plaintiff establishes the first two prongs,
the burden shifts to the defendant to show that
the exercise of personal jurisdiction would be
unfair or unreasonable.[29]
Minimum Contacts and Purposeful Availment
As every first-year law student learns, personal
jurisdiction depends on whether the defendant “ha[s]
certain minimum contacts with [the forum] such that the
maintenance of the suit does not offend traditional notions
of fair play and substantial justice.” Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (internal quotations
Quick Techs., Inc. v. Sage Group PLC, 313 F.3d 338, 343-45 (5th
Cir. 2002).
29. E. Concrete Materials, 948 F.3d at 296 (quoting and citing
Monkton, 768 F.3d at 433).
22a
Appendix A
and citations omitted). Those minimum contacts must show
“some act by which the defendant purposefully avail[ed]
itself of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections
of its laws.” 30 “For federal claims filed in federal courts,
of course, the relevant minimum contacts are those with
the entire United States, not a forum state.” 31
SAS flies into/out of seven different metro areas in the
U.S. It also advertises to American buyers, participates in
the Star Alliance with United Airlines, owns and operates
a subsidiary in the United States, sells tickets online
across the U.S., and is regulated by the FAA. 32
30. Hanson v. Denckla, 357 U.S. 235, 253 (1958); see also
Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 592 U.S. 351,
359 (2021) (first citing Keeton v. Hustler Magazine, Inc., 465 U.S.
770, 774 (1984); and then citing Walden v. Fiore, 571 U.S. 277, 285
(2014)).
31. Douglass, 46 F.4th at 242; see also Adams, 364 F.3d at
651 (citing World Tanker, 99 F.3d at 723); DISH Network, L.L.C.
v. Elahmad, No. 23-20180, 2024 WL 1008585, at *2 (5th Cir. Mar.
8, 2024) (per curiam) (unpublished).
32. See 49 U.S.C. §§ 41101, 41301-02; cf. Ford, 592 U.S. at 365
(“Small wonder that Ford has here conceded ‘purposeful availment’
of the two States’ markets. By every means imaginable—among
them, billboards, TV and radio spots, print ads, and direct mail—
Ford urges Montanans and Minnesotans to buy its vehicles.”
(citation omitted)).
We do not suggest that selling tickets online would alone
suffice for specific personal jurisdiction, nor would merely
owning and operating a subsidiary or participating in an airline
alliance. But we may consider the relevance of those factors,
23a
Appendix A
Combined, these contacts more than meet the
minimum-contacts test and show that SAS has purposefully
availed itself of the protections of U.S. laws. 33
Arises Out of or Results From
The next prong of the test asks whether Hardy’s
claims arise out of or result from SAS’s minimum contacts.
Contrary to the district court’s rulings, they do. “[S]pecific
jurisdiction is confined to adjudication of issues deriving
from, or connected with, the very controversy that
establishes jurisdiction.” 34 In other words, Hardy must
provide a prima facie showing of a connection between
SAS’s actions in the United States and her injury.
particularly in conjunction with SAS’s other actions. Cf. E.
Concrete Materials, 948 F.3d at 296-97. We similarly discount
the personal-jurisdictional implications of SAS’s participation
in a multi-district class action as a plaintiff and its petitioning
for bankruptcy in U.S. courts. See Shambaugh & Son, L.P. v.
Steadfast Ins. Co., 91 F.4th 364, 374 (5th Cir. 2024) (“The mere
fact that a defendant participated in state court lawsuits in the
putative forum, without more, cannot meet this court’s standard
for specific personal jurisdiction.” (citation omitted)).
33. Cf. Kim v. Korean Air Lines Co., 513 F. Supp. 3d 462,
473-74 (D.N.J. 2021) (finding sufficient minimum contacts and a
causal relationship between New York and an injury sustained
midflight out of JFK Airport).
34. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 919 (2011); see also id. at 923-24 (“Adjudicatory authority
is ‘specific’ when the suit ‘arises out of or relates to the defendant’s
contacts with the forum.’” (quoting Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984)) (alterations
accepted)).
24a
Appendix A
In Ford, the Supreme Court described the standard
as having two prongs. First, we look to causation. But,
if we do not find causation, we may also “contemplate[ ]
that some relationships will support jurisdiction without
a causal showing.” 35
The district court focused solely on SAS’s selling the
ticket to Hardy in Mandeville. That, it determined, showed
insufficient causation of her injury, nor was it the type of
relationship that would otherwise support jurisdiction.
But that narrow focus was improper. Hardy’s claim arises
out of the ticket sale, yes, but it also stems from SAS’s
advertising in the United States and its operation of a
flight out of Newark. That her injury occurred during the
flight’s disembarkation in Oslo does not resolve the matter.
Instead, we must review those facts as pieces of a whole.
Put together, we see that SAS’s purposeful contacts in
the U.S. combined to create an unbroken causal chain
that ends with Hardy’s injury.
In other words, the district court erred because it
considered only the contacts with the Eastern District of
Louisiana, but it should have considered whether the claim
arose out of SAS’s intentional contacts with the United
35. Ford, 592 U.S. at 362; see id. (“In the sphere of specific
jurisdiction, the phrase ‘relate to’ incorporates real limits, as it
must to adequately protect defendants foreign to a forum. But
again, we have never framed the specific jurisdiction inquiry as
always requiring proof of causation—i.e., proof that the plaintiff ’s
claim came about because of the defendant’s in-state conduct.”).
25a
Appendix A
States as a whole. 36 The connection between Hardy’s
injury and SAS’s contacts with Louisiana may have been
overly attenuated, but the connection to its contacts with
the U.S. was not. Thus, Hardy’s injury “arises out of ”
SAS’s minimum contacts with the United States.
Fairness and Reasonableness
Finally, we turn to the fairness and reasonableness
prong of the analysis. As with the “arises out of or results
from” prong, the district court ruled that the connection
between Hardy’s claims and SAS’s contacts was “too
attenuated.” This too was error.
Now that we have determined that Hardy has met
her prima facie burden on the first two factors, SAS
must prove the unfairness of the exercise of personal
jurisdiction. E. Concrete Materials, 948 F.3d at 296, 299.
But SAS has made no such showing—nor even attempted
to make one. Even if the burden had not shifted to SAS,
though, the exercise of jurisdiction would be reasonable
and fair.
International Shoe derives its limitation of personal
jurisdiction to those forums that would not offend the
traditional notions of fair play and substantial justice
from the Due Process Clause’s protection of individual
liberty. Douglass, 46 F.4th at 236. We weigh five factors
36. Cf. Walden, 571 U.S. at 284 (holding that, for specific
jurisdiction, “the relationship must arise out of contacts that the
‘defendant [it]self ’ creates with the forum State” (quoting Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985))).
26a
Appendix A
to determine whether such an exercise is fair and just: “(1)
the burden on the nonresident defendant, (2) the forum
state’s interests, (3) the plaintiff ’s interest in securing
relief, (4) the interest of the interstate judicial system in
the efficient administration of justice, and (5) the shared
interest of the several states in furthering fundamental
social policies.” 37
The first factor is the most important, E. Concrete
Materials, 948 F.3d at 299 (citation omitted), and the
burden on SAS is weighty: It is based in the Scandinavian
countries, not the United States. Also, Hardy’s injury
occurred in Norway, and many of the relevant witnesses
and evidence will be located there. At the same time,
though, SAS regularly litigates in the U.S., including
having declared bankruptcy here. Further, that SAS is an
international airline suggests it may be better able than
many other defendants to mitigate the burden of litigating
this case in the United States. 38
But the second factor counters the first here. The
United States has a weighty interest in the dispute
because the plaintiff is an injured American citizen and
37. E. Concrete Materials, 948 F.3d at 298 (quoting Luv N’
care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 473 (5th Cir. 2006));
see also Douglass, 46 F.4th at 236 (first quoting World-Wide
Volkswagen v. Woodson, 444 U.S. 286, 292 (1980); and then quoting
Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S. Ct. 1773,
1781 (2017)).
38. See Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310
F.3d 374, 382 (5th Cir. 2002), abrogated on other grounds by Water
Splash, Inc. v. Menon, 581 U.S. 271 (2017).
27a
Appendix A
resident, and her claim arises under a treaty to which
the U.S. is a signatory. Further, as discussed earlier, her
flight took off from the United States.
The third factor, the plaintiff ’s interest, also weighs
heavily toward maintaining the case in the United States:
Hardy received her initial medical treatment in Norway,
but she received follow-up treatment here, and she
remains plagued by her injury. Moreover, she lives in and
had her lifecare plan prepared in the U.S. In other words,
Hardy has a vested interest in being able to pursue her
claim in the forum she has chosen, one where she will not
be unduly inconvenienced if she wishes to attend any of
the proceedings and where some of her experts may be
more readily available.
The fourth and the fifth factors are much less easily
weighed in this context. 39 American courts handle
personal injury cases every day, so we can presume our
courts will be efficient and competent. But neither party
has submitted evidence as to the efficiency or competence
39. One district court has even called into question whether
“the last two factors . . . logically appear to pertain to an action
where the relevant forum is the United States rather than any one
particular state.” Cambria Cnty. Employees’ Ret. Sys. v. Venator
Materials PLC, 532 F. Supp. 3d 440, 448 (S.D. Tex. 2021) (citing
Am. Dredging Co. v Miller, 510 U.S. 443, 447-49 & n.2 (1994)).
Because we can estimate the balance of the factors regardless of
these two, and SAS has not even attempted to meet its burden, we
take no position on the pertinence of the fourth and fifth factors.
Instead, we note that the question remains open and that another
panel, dealing with a case that more squarely presents the issue,
may need to resolve it.
28a
Appendix A
of the Norwegian courts. Similarly, the impact on social
policies of the United States and Norway, both being
signatories to the Montreal Convention, is unclear.
Additionally, as mentioned earlier, most of the evidence
and many witnesses are in Norway. In other words, these
factors could tilt either way.40
Despite that opacity on the fourth and fifth factors,
the second and the third factors lean heavily in favor of
a finding of fairness and reasonableness, outweighing
the “most important” first factor.41 Moreover, SAS bears
the burden of rebutting the prima facie case the first
two prongs establish and has not done so. Therefore, the
district court had specific personal jurisdiction over SAS.
*****
We sum up our ruling as follows:
The Montreal Convention’s Article 33 may be entitled
“Jurisdiction,” but it is only a venue prescription. We do
not stretch SAS’s incorporation of the Convention in its
contract of carriage into a waiver of personal jurisdiction
in countless fora because SAS only did as it was required
by law and the Treaty. See Montreal Convention art. 3(5).
The district court properly rejected Hardy’s Montreal
Convention claim.
40. See also Kim, 513 F. Supp. 3d at 475-76 (weighing the
same factors).
41. Cf. Burger King, 471 U.S. at 475-76 (discussing purposeful
availment).
29a
Appendix A
The district court erred in rejecting Hardy’s Rule 4(k)
(2) claim. It incorrectly analyzed SAS’s contacts with the
state of Louisiana, where it should have analyzed SAS’s
contacts with the United States writ large. SAS has
sufficient minimum contacts with the United States that
the exercise of personal jurisdiction under Federal Rule
of Civil Procedure 4(k)(2) is appropriate.
The judgment of dismissal is REVERSED and
REMANDED. We place no limitation on the matters
that the district court might address on remand, and we
indicate no view on what rulings it should make.
30a
Appendix B — Appendix
Order andBReasons of the
United States District Court for the Eastern
District of Louisiana, filed August 11, 2023
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL DOCKET NO. 21-1591
SECTION: “E” (3)
SUSAN HARDY,
Plaintiff,
versus
SCANDINAVIAN AIRLINES SYSTEM,
Defendant.
Filed August 11, 2023
ORDER AND REASONS
Before the Court is Defendant Scandinavian Airlines
System Denmark-Norway-Sweden’s motion to dismiss
for lack of personal jurisdiction.1 Plaintiff Susan Hardy
filed an opposition. 2 Defendant replied. 3 Defendant also
1. R. Doc. 31.
2. R. Doc. 32.
3. R. Doc. 35.
31a
Appendix B
filed a notice of supplemental authority.4 Plaintiff filed
a response. 5 On February 28, 2023, the Court held Oral
Argument on Defendant’s motion.6
BACKGROUND
This action arises from an incident at the Oslo
Gardermoen Airport on August 23, 2019.7 Plaintiff
departed on a United Airlines flight from New Orleans
to New Jersey. 8 In New Jersey, Plaintiff transferred to a
flight operated by Defendant, departing from New Jersey
to Oslo, Norway. 9 Plaintiff alleges that she fell to the
ground while disembarking the aircraft in Oslo, due to
a five-to-six-inch gap between the bottom of the aircraft
door and the passenger boarding bridge.10 As a result of
the fall, Plaintiff alleges she sustained severe fractures
to her right femoral shaft.11 On August 20, 2021, Plaintiff
filed suit in this Court, seeking to recover for her injuries.12
Defendant now seeks dismissal of Plaintiff ’s claims on
4. R. Doc. 44.
5. R. Doc. 45.
6. R. Doc. 47.
7. R. Doc. 25 at p. 5.
8. Id. at p. 3.
9. Id. at pp. 4-5.
10. Id. at pp. 5-6.
11. Id. at p. 6.
12. R. Doc. 1.
32a
Appendix B
the basis that the Court lacks personal jurisdiction over
Defendant.13
LEGAL STANDARD
The Due Process Clause of the Fourteenth Amendment
“operates to limit the power of a State to assert in
personam jurisdiction over a nonresident defendant.”14
For a court’s exercise of personal jurisdiction over a
non-resident defendant to be constitutional under the
Due Process Clause, (1) “that defendant [must have]
purposefully availed himself of the benefits and protections
of the forum state by establishing ‘minimum contacts’ with
the forum state”; and (2) “the exercise of jurisdiction over
that defendant [must] not offend ‘traditional notions of fair
play and substantial justice.’”15
Satisfaction of the “minimum contacts” test depends
on the type of jurisdiction the court seeks to exercise over
the defendant: general jurisdiction or specific jurisdiction.
I.
General Jurisdiction
A court may exercise general jurisdiction over a nonresident defendant when that defendant’s contacts with the
13. R. Doc. 31.
14. Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271
(5th Cir. 2006) (quoting Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 413-14 (1984)).
15. Eddy v. Printers House (P) Ltd., 627 F. App’x 323, 326
(5th Cir. 2015) (quoting Alpine View Co. v. Atlas Capco AB, 205
F.3d 208, 215 (5th Cir. 2000)).
33a
Appendix B
forum state are “continuous and systematic,” regardless
of whether such contacts are related to the plaintiff ’s
cause of action. Stated differently, “[g]eneral jurisdiction
will attach, even if the act or transaction sued upon is
unrelated to the defendant’s contacts with the forum
state, if the defendant has engaged in ‘continuous and
systematic’ activities in the forum state.”16 In Goodyear
Dunlop Tires Operations, S.A. v. Brown, the Supreme
Court stated that, “for an individual, the paradigm forum
for the exercise of general jurisdiction is the individual’s
domicile; for a corporation it is an equivalent place,
one in which the corporation is fairly regarded as at
home.”17 That is, the corporation must have substantial,
continuous, and systematic contacts with the forum state
so as to “render [it] essentially at home in the forum
state.”18 “It is, therefore, incredibly difficult to establish
general jurisdiction in a forum other than the place of
incorporation or principal place of business.”19
II. Specific Jurisdiction
When the defendant’s contacts are less pervasive,
a court may exercise specific jurisdiction over a non16. 721 Bourbon, Inc. v. House of Auth, LLC, 140 F. Supp. 3d
586, 592 (E.D. La. 2015) (citations omitted).
17. 564 U.S. 915, 924 (2011).
18. Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014).
19. Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 432 (5th
Cir. 2014) (citing Daimler AG, 134 S. Ct. at 760; Helicopteros, 466
U.S. at 411-12).
34a
Appendix B
resident defendant in a suit arising out of or related to
the defendant’s contacts with the forum. The Fifth Circuit
has enunciated a three-factor analysis to guide courts in
assessing the presence of specific personal jurisdiction:
(1) whether the defendant has minimum
contacts with the forum state, i.e., whether it
purposely directed its activities toward the
forum state or purposely availed itself of the
privileges of conducting activities there; (2)
whether the plaintiff ’s cause of action arises
out of or results from the defendant’s forumrelated contacts; and (3) whether the exercise
of personal jurisdiction is fair and reasonable. 20
To make a prima facie showing of specific personal
jurisdiction, the plaintiff need only satisfy the first two
factors. 21 If the plaintiff makes a prima facie showing, the
burden of proof with respect to the reasonableness factor
shifts to the defendant to “present a compelling case that
the presence of some other considerations would render
jurisdiction unreasonable.” 22
20. Libersat v. Sundance Energy, Inc., 978 F.3d 315, 319 (5th
Cir. 2020) (quoting Seiferth, 472 F.3d at 271).
21. Athletic Training Innovations, LLC v. eTagz, Inc., 955
F. Supp. 2d 602, 613 (E.D. La. 2013); see also 721 Bourbon, 140
F. Supp. 3d at 592-93; Autogenomics, Inc. v. Oxford Gene Tech.,
566 F.3d 1012, 1018-19 (Fed. Cir. 2009).
22. Athletic Training Innovations, 955 F. Supp. 2d at 613.
35a
Appendix B
III. Service Pursuant to Federal Rule of Civil Procedure
4(K)(2)
If service is conducted pursuant to Federal Rule of
Civil Procedure Rule 4(k)(2), the jurisdictional analysis is
slightly different. Rule 4(k)(2) states that, “[f ]or a claim
that arises under federal law, serving a summons . . .
establishes personal jurisdiction over a defendant if: (A) the
defendant is not subject to jurisdiction in any state’s court
of general jurisdiction; and (B) exercising jurisdiction is
consistent with the United States Constitution and laws.”23
While jurisprudence surrounding the role of Rule 4(k)
(2) has been plagued with confusion, the United States
Court of Appeals for the Fifth Circuit recently clarified
its role in a court’s jurisdictional analysis. 24 In Douglass v.
Nipon Yusen Kabushiki Kaisha the Fifth Circuit clarified
that, rather than an independent basis for jurisdiction,
“Rule 4(k)(2) is a procedural rule governing the territorial
limits of service.” 25 Thus, a summons pursuant to Rule
4(k)(2) establishes personal jurisdiction only when the
exercise of that jurisdiction is consistent with the United
States Constitution and laws—the traditional due process
analysis.
The Court explained: “the valid exercise of jurisdiction
through a summons requires (1) notice of the command and
23. Fed. R. Civ. P. 4(k)(2).
24. Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th
226 (5th Cir. 2022)
25. Id. at 233.
36a
Appendix B
(2) amenability to the command. The notice requirement
is procedural, and the amenability requirement is
substantive.” 26 “Historically, those requirements were
inextricably intertwined because federal courts had
jurisdiction over only defendants that voluntarily
appeared or where personally served in the district.” 27
“After International Shoe, states began authorizing
out-of-state service, and “[a]s the territorial scope of
service expanded, the due process limitations on personal
jurisdiction assumed greater independent significance.” 28
Since its inception, Rule 4(k)(2) has undergone a series
of amendments resulting in its current wording, although
it retained the original rule’s caption, “Territorial Limits
of Effective Service.” 29 However, the Fifth Circuit has
clarified that, “[n]otwithstanding the amendments,
Rule 4(k) is still just a procedural rule about issuing
summonses.” 30 “No doubt service of a summons under
Rule 4(k0(2) establishes personal jurisdiction when
procedurally authorized by the Federal Rules and
consistent with the Constitution.” 31 “But as the rule
expresses, the efficacy of service remains subject to the
constitutional question whether a defendant is amenable
to the Constitution.” 32
26. Id.
27. Id.
28. Id. at 233-34.
29. Id.
30. Id. at 234.
31. Id. (emphasis added).
32. Id.
37a
Appendix B
In other words, where a summons is issued pursuant
to Rule 4(k)(2), a plaintiff must demonstrate the following
in order for the Court to conclude it can properly exercise
of personal jurisdiction over a defendant: (1) the claims
against the defendant arise under federal law; (2) the
defendant “does not concede to jurisdiction in another
state;” and (3) the defendant has sufficient ties to the United
States as a whole to satisfy due process concerns. 33 When
applying Rule 4(k)(2) in the context of general or specific
personal jurisdiction, although the limits of due process
are measured under the Fifth Amendment, the Fifth
Circuit has affirmed courts are to adhere “to the same
legal standard developed in the Fourteenth Amendment
context—the ‘now-familiar minimum contacts analysis’—
but with one significant distinction.” 34 “[W]here Rule 4(k)
(2), and thus Fifth Amendment due process, is at issue,
the Fifth Circuit looks to the sufficiency of a party’s ties
with the United States as a whole, rather than to the
sufficiency of its ties with any individual state, in order
to determine whether the requisite showing of minimum
contacts has been made.” 35
33. Id.
34. Patterson v. Blue Offshore BV, No. 13-337, 2015 WL
4096581, at *9 (E.D. La. July 6, 2015), affirmed by Patterson
v. Aker Solutions Inc., 826 F.3d 231 (5th Cir. 2016). See also
Douglass, 46 F.4th at 242 (“For federal claims filed in federal
courts, of course, the relevant minimum contacts are those with
the entire United States, not a forum state.”) (affirming Patterson).
35. Id.
38a
Appendix B
LAW AND ANALYSIS
Plaintiff ’s amended complaint sets forth a claim
against Defendant under the Montreal Convention. 36
Defendant argues the Court lacks personal jurisdiction
over Defendant with respect to Plaintiff ’s claim. 37 In
opposition, Plaintiff argues the Court has (1) personal
jurisdiction over Defendant provided by the Montreal
Convention, and (2) specific personal jurisdiction over
Defendant, under a traditional theory and because
summons was issued pursuant to Rule (4)(k)(2). 38 The
Court will address each of Plaintiff ’s grounds for personal
jurisdiction in turn.
I.
The Montreal Convention
Plaintiff contends the Montreal Convention provides
an independent basis for exercising personal jurisdiction
over Defendant in this action. 39 In response, Defendant
36. R. Doc. 25.
37. R. Doc. 31.
38. R. Doc. 32. While Plaintiff initially argued the Court had
general jurisdiction over Defendant, Plaintiff seems to withdraw
this argument in its supplemental briefing. R. Doc. 45 at p. 2
(“[T]he Fifth Circuit’s reasoning in Douglass must be applied
to the facts of this case in the context of Plaintiff ’s assertion of
specific personal jurisdiction over SAS, not general jurisdiction.”).
However, even if Plaintiff did not intend to withdraw its argument,
the Court does not have general jurisdiction over Defendant
following the Fifth Circuit’s decision in Douglass. 46 F.4th 226.
39. R. Doc. 32 at pp. 9-14.
39a
Appendix B
argues the Montreal Convention provides the Court with
only subject matter jurisdiction, not personal jurisdiction.40
“The Montreal Convention sets forth the types of
claims that can be brought relating to international air
carriage.”41 “It is well established that the treaty ‘preempts
state law and provides the sole avenue for damages claims
that fall within the scope of its provisions.’”42 “The treaty
also includes jurisdictional provisions dictating where such
claims can be brought.”43
T h e Mo n t r e a l C o n v e n t i o n ’s p r i m a r y
jurisdictional provision, Article 33, provides
that “an 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.44
40. R. Doc. 35 at pp. 1-2.
41. Nat’l Union Fire Ins. Co. of Pittsburgh v. UPS Supply
Chain Sols., Inc., No. 21-2867, 2023 WL 4610772, at *4 (2d Cir.
July 19, 2023).
42. Id. (quoting Cohen v. Am. Airlines, Inc., 13 F.4th 240,
246 (2d Cir. 2021)).
43. Id.
44. Id. at *5 (quoting Montreal Convention art. 33(1)-(2)).
40a
Appendix B
“Article 33 also dictates that ‘questions of procedure shall
be governed by the law of the court seised of the case.’”45
Although Article 33 of the Montreal Convention
provides federal courts with subject matter jurisdiction,
a growing body of case law recognizes the Montreal
Convention does not provide the Court with personal
jurisdiction over all defendants merely because a suit
is brought pursuant to its terms. Although the United
States Court of Appeals for the Fifth Circuit has not yet
considered the issue, the United States Court of Appeals
for the Second Circuit addressed this exact question in
detail in National Union Fire Insurance Company of
Pittsburgh, Pennsylvania v. UPS Supply Chain Solutions,
Inc.46 In National Union Fire Insurance Co., the Second
Circuit held the Montreal Convention does not provide
an independent basis for personal jurisdiction, but rather
provides only a basis for subject matter jurisdiction in the
United States.47 The Second Circuit undertook a detailed
analysis of treaty interpretation, looking both to the text
of the treaty and the intent of the drafters.48 Because “[t]
he interpretation of a treaty, like the interpretation of the
statute, begins with its text,” the court first looked to the
language of the Montreal Convention itself:49
45. Id. (quoting Montreal Convention art. 33(4)).
46. Id. at *4.
47. Id. at *5.
48. Id. at *5-7.
49. Id. at *5-6.
41a
Appendix B
[N]othing 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 fora must entertain
such actions without regard for other potential
barriers to jurisdiction. To the contrary, . . .
Article 33 specifies that “questions of procedure
shall be governed by the law of the court seised
of the case.” 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 requirements. We conclude that
personal jurisdiction is such a requirement. 50
Next, the Second Circuit noted that precedent also
supported its “conclusion that the Montreal Convention’s
jurisdictional provisions do not pertain to domestic
personal jurisdiction.” 51 The Court interpreted “the
Montreal Convention’s provisions ‘in accordance with
case law arising from substantively similar provisions of
50. Id. at *6.
51. Id.
42a
Appendix B
its predecessor, the Warsaw Convention.’”52 The Montreal
Convention was drafted in 1999 to replace the Warsaw
Convention, and, although it “improved upon essential
aspects of its predecessor, the drafters tried ‘to retain
existing language and substance of other provisions to
preserve judicial precedent related to other aspects of
the Warsaw Convention, in order to avoid unnecessary
litigation over issues already decided by the courts under
the Warsaw Convention.’” 53 Article 28 of the Warsaw
Convention served as the predecessor to the Montreal
Convention’s Article 33(1) and is similar “in both language
and substance.”54 The Second Circuit addressed in detail
its previous decisions holding that Article 28 of the
Warsaw Convention did not convey personal jurisdiction.55
52. Id. (quoting Cohen, 13 F.4th at 245).
53. Id. (quoting Cohen, 13 F.4th at 244).
54. Id.
55. Id. (quoting Campbell v, Air Jam., Ltd., 863 F.2d 1, 1 (2d
Cir. 1988) (“‘[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.’”); and Smith v. Canadian Pac.
Airways, Ltd., 452 F.2d 798, 800 (2d Cir. 1971) (“In 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.”)).
43a
Appendix B
On these bases, the Second Circuit held “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.”56 “The power
to assert jurisdiction over a claim is distinct from the
power to assert jurisdiction over a party, which must be
separately established.”57
The Court finds the Second Circuit’s decision in
National Union Fire Insurance Co. highly persuasive
in the instant matter. Because the Fifth Circuit has
not yet considered the issue, and the Court agrees with
the reasoning employed by the Second Circuit, the
Court expressly adopts it herein. Moreover, the Second
Circuit’s well-reasoned decision is consistent with the
body of district court cases around the country rejecting
Plaintiff ’s argument. 58 On this basis, the Court rejects
Plaintiff ’s arguments and holds the Montreal Convention
does not provide the Court with an independent basis for
personal jurisdiction over Defendant.
56. Id. at *5.
57. Id.
58. See, e.g., Diab v. British Airways, PLC, No. 20-3744,
2020 WL 8970607, at *3 (E.D. Penn. Nov. 23, 2020) (“Courts
have consistently concluded that the jurisdictional article of the
Montreal Convention addresses subject matter jurisdiction, not
personal jurisdiction.”) (finding jurisdiction on other grounds,
thereby not reaching the merits of the issue, but collecting cases).
44a
Appendix B
II. Specific Personal Jurisdiction
Plaintiff has failed to demonstrate that this Court
has specific personal jurisdiction over Defendant under
a traditional theory or because summons was issued
pursuant to Rule (4)(k)(2). The Fifth Circuit has enunciated
a three-factor analysis to guide courts in assessing the
presence of specific personal jurisdiction:
(1) whether the defendant has minimum
contacts with the forum state, i.e., whether it
purposely directed its activities toward the
forum state or purposely availed itself of the
privileges of conducting activities there; (2)
whether the plaintiff ’s cause of action arises
out of or results from the defendant’s forumrelated contacts; and (3) whether the exercise
of personal jurisdiction is fair and reasonable.59
To make a prima facie showing of specific personal
jurisdiction, the plaintiff need only satisfy the first two
factors.60 If the plaintiff makes a prima facie showing, the
burden of proof with respect to the reasonableness factor
shifts to the defendant to “present a compelling case that
59. Libersat v. Sundance Energy, Inc., 978 F.3d 315, 319 (5th
Cir. 2020) (quoting Seiferth, 472 F.3d at 271).
60. Athletic Training Innovations, LLC v. eTagz, Inc., 955
F. Supp. 2d 602, 613 (E.D. La. 2013); see also 721 Bourbon, 140
F. Supp. 3d at 592-93; Autogenomics, Inc. v. Oxford Gene Tech.,
566 F.3d 1012, 1018-19 (Fed. Cir. 2009).
45a
Appendix B
the presence of some other considerations would render
jurisdiction unreasonable.”61
Where Rule 4(K)(2) is at issue, the specific personal
jurisdiction inquiry is the same, except that courts in “the
Fifth Circuit look[ ] to the sufficiency of a party’s ties with
the United States as a whole, rather than the sufficiency
of its ties with any individual state, in order to determine
whether the requisite showing of minimum contacts has
been made.”62 Said differently, when Rule 4(k)(2) is at
issue, the Fifth Circuit’s three-step analysis to determine
specific jurisdiction is as follows: (1) whether the defendant
has minimum contacts with the [United States as a whole];
(2) whether the plaintiff ’s cause of action arises out of
or results from the defendant’s forum-related contacts
[with the United States]; and (3) whether the exercise of
personal jurisdiction is fair and reasonable.
Whether the forum is the state of Louisiana or
the United States as a whole, Plaintiff has failed to
demonstrate her cause of action arises out of Defendant’s
61. Athletic Training Innovations, 955 F. Supp. 2d at 613.
62. Patterson, No. 13-337, 2015 WL 4096581, at *9; see also
CGC Holding Co., LLC v. Hutchens, 974 F.3d 1201, 1208-09 (10th
Cir. 2020) (considering a defendant’s contacts with the United
States as a whole in its specific personal jurisdiction inquiry
under 4(K)(2)). Moreover, the defendant must not be “subject
to jurisdiction in any state’s court of general jurisdiction.” Fed.
R. Civ. P. 4(k)(2). However, because the Court concludes that
Plaintiff ’s cause of action does not arise out of or result from
Defendant’s forum-related contacts with the United States as a
whole, the Court need not reach this issue.
46a
Appendix B
forum-related contacts—element two of the specific
personal jurisdiction inquiry. Plaintiff contends her
claim arises out of Defendant’s sale of a plane ticket to
her in her home state of Louisiana.63 However, as aptly
noted by Defendant, Plaintiff ’s claim does not arise out
of Defendant’s sale of the plane ticket. Instead, Plaintiff ’s
cause of action arises out of the alleged negligent conduct
which occurred in Oslo, Norway.64 Courts have consistently
held, in the context of personal injury suits, that “the fact
that the plaintiff purchased a ticket in [the forum state]
is insufficient to endow a [forum] court with personal
jurisdiction over a non-resident defendant, because the
defendant’s alleged negligence and the plaintiff ’s injury
are too far removed from the business the defendant
transacted in [the forum].”65 Had Plaintiff ’s claim arisen
from “fraudulent inducement, false advertising, or any
other theory relating to the sale and purchase of the
63. R. Doc. 32 at p. 8.
64. Kelly v. Syria Shell Petrol. Dev. B.V., 213 F.3d 841, 855
(5th Cir. 2000) (affirming the district court’s decision concluding
there was no specific jurisdiction where the defendant’s claims
did not arise out of contractual contacts with the United States
but instead arose out of alleged tortious acts committed by the
defendant in Syria).
65. H.B. by Barakati v. China S. Airlines Co. Ltd., 20-CV9106 (VEC), 2021 WL 2581151, at *5 (S.D. N.Y. June 23, 2021);
Luna v. Compania Panamena De Aviacion, S.A., 851 F. Supp.
826, 832 (S.D. Tex. 1994) (holding the plaintiff ’s death due to an
airplane crash did not result from the fact that she purchased the
ticket for her air travel in the forum state); Pesa v. Scandinavian
Airlines System, No. 2:19-cv-20415, 2021 WL 1660863, at *8 (D.
N.J. Apr. 27, 2021) (collecting cases).
47a
Appendix B
ticket,” the outcome may be different.66 However, that is
not the case here.
Whether the forum is Louisiana, under a traditional
theory, or the United States as a whole, because Rule 4(k)
(2) is implicated, the outcome is the same. Plaintiff ’s cause
of action arises out of her alleged injuries which occurred
in Oslo, Norway, not from her purchase of the ticket in the
United States.67 Plaintiff ’s argument fails on this point.68
66. Bavikatte v. Polar Latitudes, Inc., A-15-CV-00437-LYML, 2015 WL 8489997, at *6 (W.D. Tex. Dec. 8, 2015); see also
Huzinec v. Six Flags Great Adventure, LLC, 2018 WL 1919956,
at *6 (D. N.J. Apr. 24, 2018) (finding the analysis of a party’s
jurisdictional exposure “would have presented a closer call if
the underlying claims centered on allegations related to those
tickets”).
67. Plaintiff did not argue that the New Jersey origin of the
flight alone provides the Court with jurisdiction. However, even
if she did make such an argument, the mere fact that a flight
originates in a forum in still insufficient to establish specific
jurisdiction over an airline for personal injury claims based on
negligence in a foreign forum. See id.
68. Even if the Court found Plaintiff had satisfied the second
element, Plaintiff would also fail on the third element. Plaintiff
failed to demonstrate that the connection between her cause
of action and Defendant’s forum-related activities is not “too
attenuated,” making the exercise of jurisdiction unreasonable.
Benson v. Rosenthal, 116 F. Supp. 3d 702, 711-12 (E.D. La. 2015).
Courts have held that the connection between a plaintiff ’s cause
of action for a personal injury occurring in another forum and a
defendant’s ticket sale to a plaintiff in the forum are too attenuated
to make the exercise of jurisdiction over a defendant reasonable.
Bavikatte, A-15-CV-00437-LY-ML, 2015 WL 8489997, at *6
48a
Appendix B
Accordingly, Plaintiff has failed to carry her burden
of demonstrating that this Court has personal jurisdiction
over Defendant based on traditional theories of personal
jurisdiction.
CONCLUSION
IT IS ORDERED that Defendant’s motion to dismiss
is GRANTED.
New Orleans, Louisiana, this 11th day of August,
2023.
/s/
Susie Morgan
United States District Court
(“Plaintiff ’s allegations do not relate to fraudulent inducement,
false advertising, or any other theory relating to the sale and
purchase of the ticket. Instead, Plaintiff alleges he suffered a
fall due to unsafe conditions in his cabin. . . . The circumstances
of Plaintiff ’s injury are far too attenuated from the sale of the
cruise package in Texas to support specific personal jurisdiction
here.”). Accordingly, Plaintiff fails on the third element as well.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.