Byanjankar et al v. US Bangla Airlines Limited
Filing
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MEMORANDUM and ORDER: The defendants motion 20 to dismiss is GRANTED pursuant to Rules 12(b)(2) and 12(b)(5). Accordingly, the plaintiffs motion to compel is DENIED. See attached Memorandum and Order for details. Ordered by Judge Frederic Block on 11/18/2021. (Innelli, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SAMIRA BYANJANKAR ET AL.,
MEMORANDUM AND ORDER
Plaintiffs,
Case No. 1:20-CV-01316-FB-VMS
-againstUS-BANGLA AIRLINES LTD.,
Defendant.
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Appearances:
For the Plaintiffs:
KHAGENDRA GHARTI-CHHETRY
Chhetry & Associates, P.C.
363 Seventh Avenue
New York, NY 10001
For the Defendants:
ALLISON M. SURCOUF
Condon & Forsyth LLP
7 Times Square
18th Floor
New York, NY 10036
MICHAEL G. RADIGAN
Sobo & Sobo LLP
1 Dolson Avenue
Middletown, NY 10940
BLOCK, Senior District Judge:
This action arises from a plane crash that occurred in Kathmandu, Nepal on
March 12, 2018.1 The plane, which was flying a route from Dhaka, Bangladesh to
Kathmandu, crashed upon touchdown at its destination. Of the 71 people on board,
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Defendant US-Bangla Airlines erroneously refers to the date of the accident as
March 11, 2018 in its motion to dismiss. This order refers to the correct date of
March 12, 2018 referred to elsewhere in the parties’ filings.
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51 were killed. Plaintiffs,2 who are a survivor of the crash and the representatives
of victims’ estates, now assert claims against US-Bangla Airlines for wrongful
death, personal injury, and carrier liability under the Warsaw and Montreal
Conventions. In turn, US-Bangla Airlines moves to dismiss Plaintiffs’ complaint in
its entirety under Federal Rules of Civil Procedure (“FRCP”) 12(b)(2) and
12(b)(5). For the reasons discussed below, the motion to dismiss is granted under
both FRCPs 12(b)(2) and 12(b)(5). In addition, Plaintiffs cross-move to compel a
deposition of a key witness. Their motion is denied as moot.
I.
The following facts are taken from the complaint. For present purposes, the
Court accepts them as true and draws all reasonable inferences in favor of the
2
Throughout this order, “Plaintiffs” is used to collectively refer to the plaintiffs,
who are the following: Samira Byanjankar, Estate of Sila Bajgain, Estate of Algina
Baral, Estate of Charu Baral, Estate of Gyani Kumari Gurung, Estate of Purnina
Lohani, Estate of Prasanna Pandey, Estate of Sanjay Poudel, Estate of Saruna
Shrestha, Estate of Bal Krishna Thapa, Estate of Shweta Thapa, Ganesh Prasad
Baral, Ganga Kumari Baral, Arika Baral, Rajan Baral, Kamala Ghimire, Piyush
Baral, Bhola Bahadur Budhathoki, Binod Bushathoki, Rakhi Kumari Mandal,
Pramad Budhathoki, Sunita Lama, Bigya Budhathokis, Kaniska Budhathoki,
Prasan Budhathoki, Chitra Bahadur Lohani, Nur Bahadur Lohani, Yam Kumari
Lohani, Puja Lohani, Lelina Lohani, Thaman Bahadur Pandey, Nira Pandey,
Damodar Poudel, Annapurna Upadhaya Poudel, Anjali Poudel, Ram Shrestha,
Rajani, Shrestha, Saru Shrestha, Bishal Shrestha, Gambhir Dhoj Thapa, Sumitra
Thapa, Ram Krishna Thapa, Kalpana, Thapa, Irada Thapa, Shangharsha Thapa,
Abrigal Thapa, Asim Thapa, Urmila Pradhan, Gajendra Singh Thapa.
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plaintiff. See, e.g., Gamm v. Sanderson Farms, Inc., 944 F.3d 455, 458 (2d Cir.
2019).
On March 12, 2018, US-Bangla Airlines Flight BS211 departed Hazrat
Shahjahal International Airport in Dhaka, Bangladesh and crashed on the runway
at its destination, Tribhuvan International Airport in Kathmandu, Nepal. See
Complaint at ¶ 2. According to a post-accident report, the probable cause of the
crash was disorientation and loss of situational awareness of members of the flight
crew, including the pilot. See id. at ¶ 57-8. Specifically, the pilot was noted to have
been emotionally disturbed at the time of the accident and he failed to follow
standard operating procedures. See id. at ¶ 58. All four crew members were killed
along with 47 passengers. See id. at ¶ 56.
Plaintiffs bring claims for wrongful death and personal injury. US-Bangla
Airlines challenges all causes of action under FRCP 12(b)(5) and 12(b)(2).
II.
a. Rule 12(b)(5)
Federal Rule of Civil Procedure 12(b)(5) allows for dismissal of a complaint
for insufficient service of process. See Fed. R. Civ. P. Rule 12(b)(5). Plaintiff bears
the burden of establishing that adequate service was provided. See Howard v.
Klynveld Peat Marwick Goerdeler, 977 F. Supp. 654, 658 (S.D.N.Y. 1997), aff’d
173 F. 3d 844 (2d Cir. 1999). To decide if service of process was sufficient, the
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Court must look to FRCP 4 which governs summonses. See Fed. R. Civ. P. 4. With
regard to a foreign corporation or limited liability company, service within the
United States must be made in accordance with state law, by delivering a copy of
the summons and complaint to an officer or agent of the entity, or in accordance
with the FRCP governing foreign individuals. See Fed. R. Civ. P. 4(h).
FRCP 4(f) concerns service of individuals in a foreign country. It provides
that service may be effectuated: (1) by means of an international agreement, such
as those authorized by the Hague Convention on the Service Abroad of Judicial
and Extrajudicial Documents, (2) if there is no internationally agreed means, by a
method reasonably calculated to give notice as dictated by the foreign country’s
law for service, as the foreign country directs in a response to a letter rogatory, or
by delivering a copy of the summons and complaint to the individual personally or
via mail addressed and sent by the clerk of court, or (3) by another means ordered
by the court that is not prohibited by international agreement. See Fed. R. Civ. P.
4(f).
b. Rule 12(b)(2)
To survive a motion to dismiss for lack of personal jurisdiction under
Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of
establishing jurisdiction over the defendant. See Metro. Life Ins. Co. v. RobertsonCeco Corp., 84 F. 3d 560, 566 (2d Cir. 1996). At this early stage of pleading, the
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Court must view the pleadings in true light most favorable to the plaintiffs, and
resolve any dispute of fact in favor of the plaintiffs. See Robinson v. Overseas
Military Sales Corp., 21 F. 3d 502, 507 (2d Cir. 1994). Before the discovery phase,
a plaintiff may defeat a 12(b)(2) motion by making a prima facie showing of
jurisdiction with the support of the complaint’s allegations, affidavits, and other
supporting evidence. See Bank Brussels Lambert, 171 F. 3d 779, 784 (2d Cir.
1999). Not accepted as support for jurisdiction, however, are conclusory
statements. See Jacini v. Nissan Motor Co. Ltd., 148 F. 3d 181, 185 (2d Cir. 1998).
For a corporate entity, “[t]he paradigm all-purpose forums for general
jurisdiction are a corporation’s place of incorporation and principal place of
business.” Daimler AG v. Bauman, 571 U.S. 117, 118 (2014), citing Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 914, 924 (2011). With regard to
general jurisdiction, New York courts may exercise jurisdiction over all claims of
an entity, including claims unrelated to the entity’s contacts with the state, if the
entity’s contacts with New York state are so continuous and systematic as to render
it essentially at home in New York. See Goodyear at 919. The same analysis is
applied to corporations and limited liability companies. See Chufen Chen v.
Dunkin’ Brands, Inc., 954 F. 3d 492, 497 (2d Cir. 2020).
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III.
The Court first addresses the question of sufficiency of service of process,
then turns to the question of jurisdiction.
a. Service of Process
US-Bangla Airlines moves to dismiss for lack of proper service of process. It
argues that Plaintiffs failed to properly serve US-Bangla Airlines either in the
United States or abroad. Plaintiffs attempted to timely serve the Complaint by
priority overnight mail to US-Bangla Airlines at the alleged Queens office
location, which is discussed in more detail in the following section. US-Bangla
airlines argues that this service was improper because the airline does not have any
affiliation with this address and because service on a limited liability corporation
via mail is not proper.
Regardless of whether US-Bangla Airlines is affiliated with the alleged
Queens address, service via mail on a limited liability corporation is not proper
under either the FRCP or New York Civil Practice Law & Rules, making
Plaintiffs’ service in the United States improper. See Fed. R. Civ. P. 4(h)(1); CPLR
311-a(1).
US-Bangla Airlines also argues that service of process failed under FRCP
4(f), first because Bangladesh is not a party to the Hague Convention on the
Service Abroad of Judicial and Extrajudicial Documents or any other international
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agreement governing service of process. Plaintiffs do not contest this and make no
showing that Bangladesh is subject to any international agreement regarding
service of process.
US-Bangla Airlines also argues that service failed under part two of FRCP
4(f) because service was not made according to Bangladeshi law, according to a
response to a letter rogatory, or by mail addressed and sent by the clerk of court to
the entity being served. Plaintiffs again do not contest these arguments, but instead
cite the FRCP governing proof of service of process as support, which is not on
point, since US-Bangla Airlines has challenged the service itself and not the proof
thereof. See ECF 24 at 8. There is no allegation that Plaintiffs sent a letter rogatory,
and Bangladeshi law provides that summons issued by foreign courts be sent to
courts in Bangladesh, not to defendants. See Bangladesh Code of Civil Procedure
Rule 29. Also, Plaintiffs submitted an affidavit that supports that an individual, not
the clerk of court, sent the summons to US-Bangla Airlines. See ECF 12.
Lastly, US-Bangla Airlines argues that Plaintiffs failed to properly serve it
under the final method available under FRCP 4(f), which allows for the use of an
alternate method of service as ordered by the Court. See Fed. R. Civ. P. 4(f)(3).
Plaintiffs have made no showing that the Court granted approval for an alternate
method of service prior to attempting to serve US-Bangla Airlines outside of the
United States. Therefore, service of process fails under both FRCPs 4(f) and 4(h),
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as well as under New York state law. Accordingly, the motion to dismiss is granted
under Rule 12(b)(5).
b. Jurisdiction
Notwithstanding the above, if the Court had found that service was proper,
the Plaintiffs cannot surpass the bar required to establish jurisdiction over the
airline. The Court now addresses this question.
The plane crash at issue occurred in Nepal. See Complaint at ¶ 2. All
Plaintiffs were Nepali citizens at the time of the accident. See id. at ¶ 3. Plaintiffs
do not assert specific jurisdiction here. Therefore, we turn to an assessment of
general personal jurisdiction.
The parties agree that US-Bangla Airlines’s principal place of business is
Dhaka, Bangladesh and that the company is formed under the laws of Bangladesh.
See id. at ¶ 53. In the Complaint, Plaintiffs assert that “significant senior-level
elements of the management and control of the Airline were effected in part from
the State of New York by officers of the Airline based in New York. This included
decision-making relating to aircraft maintenance, crew training and operational
safety.” See id. at ¶ 53. However, Plaintiffs provided no support in their Complaint
for this allegation. The Court instructed Plaintiffs to provide supporting
information to make a showing of jurisdiction, which they did via letter to the
Court dated December 21, 2020 (“Letter”). See ECF 10.
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The Plaintiffs’ Letter includes a copy of a web page showing US-Bangla’s
office locations, which indicates an office located in Queens, an affidavit from a
person claiming to have personal knowledge that US-Bangla Airlines maintained
an office in Queens, an advertisement for the airline allegedly run in a local
newspaper, support for Plaintiffs’ allegation that one of US-Bangla’s alleged
shareholders, US-Bangla Assets Ltd., is based in Queens, and a copy of a web page
that provides support for the allegation that US-Bangla Assets Ltd. is a sister
company of US-Bangla Airlines. See id. Plaintiffs also provide information from
the New York Department of State database regarding US-Bangla Airlines, Ltd. to
support the allegation that this entity was formed in New York. See id. at Ex. D.
US-Bangla Airlines disputes that it maintained an office in Queens and
asserts that the office instead belonged to a related but separate entity, US-Bangla
Airlines Ltd. See ECF 25 at 1. The airline also disputes that the advertisement
Plaintiffs provided appeared in a local newspaper. However, at this stage of
pleading, the Court must draw all inferences in favor of Plaintiffs.
Even so, the information that Plaintiffs provided from the New York
Department of State database indicates that US-Bangla Airlines Ltd. was dissolved
on December 7, 2017, prior to the plane crash, making an assessment of this
entity’s relation to US-Bangla Airlines and citizenship irrelevant. See United
Mobile Techs., LLC v. Pegaso PCS, S.A. de C.V., 509 F. Appx. 48, 50 (2d. Cir.
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2013) (holding that the relevant time at which jurisdiction should be assessed is at
the time of the filing of the summons and complaint); ECF 10 at Ex. C. US-Bangla
Assets Ltd. was dissolved on December 13, 2018, which was more than a year
prior to the filing of the Complaint See ECF 10 at Ex. E. This renders the
assessment of this entity’s citizenship and relationship to US-Bangla Airlines
irrelevant, as well. See id.
Also, assuming that US-Bangla Airlines did maintain a branch office in
Queens, this would not suffice as a basis for establishing general jurisdiction over
the entity in New York. See Gucci Am., Inc. v. Weixing Li, 768 F. 3d 122, 135 (2d
Cir. 2014) (holding that the existence of a branch office in the forum was not
sufficient to establish general jurisdiction when an entity is headquartered
elsewhere). Finally, the Plaintiffs made no showing that the advertisement they
provided appeared in a newspaper in New York. However, assuming that it did,
this also would not be enough to establish general jurisdiction over US-Bangla
Airlines for the purposes of this Complaint. See A.W.L.I. Group, Inc. v. Amber
Freight Shipping Lines, 828 F. Supp. 2d 557, 566 (E.D.N.Y. 2011) (stating that
advertising directed at residents of New York is not enough to support jurisdiction
if it is not accompanied by business transactions occurring in the state or the
defendant’s continuous and substantial presence in New York). The Plaintiffs have
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made no showing that airline tickets were sold in New York or to residents in New
York, or offered any other support for jurisdiction by this means.
Plaintiffs have not sufficiently plead that US-Bangla Airlines is at home in
New York state or adequately connected to the state in any way to establish
personal jurisdiction. Therefore, US-Bangla Airlines’s motion to dismiss based on
lack of personal jurisdiction is granted.
IV.
Plaintiffs cross-move to compel oral deposition of US-Bangla Airlines’s
Managing Director, Mohammad A. Al Mamun, who they describe as a key
witness. See ECF 24 at 8-9. Because U.S.-Bangla Airlines’s motion to dismiss is
granted, Plaintiffs are not entitled to discovery. See Jazini v. Nissan Motor Co.,
Ltd. 148 F. 3d 181, 186 (2d Cir. 1998) (holding that denying discovery when
plaintiffs failed to establish personal jurisdiction over foreign defendant was
correct).
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CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss is GRANTED
pursuant to Rules 12(b)(2) and 12(b)(5). Accordingly, the plaintiffs’ motion to
compel is DENIED.
SO ORDERED.
_/S/ Frederic Block____________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
November 18, 2021
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