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.

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