Sampson et al v. Delta Air Lines, Inc. et al
Filing
34
MEMORANDUM DECISION granting 23 Motion to Dismiss for Failure to State a Claim filed by Serviseg ; denying 25 Motion to Amend/Correct. Signed by Judge Ted Stewart on 12/9/13. (ss)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
CAROL SAMPSON and DAVID
SAMPSON, individuals,
Plaintiffs,
MEMORANDUM DECISION AND
ORDER ON PENDING MOTIONS
vs.
DELTA AIR LINES, INC., a Georgia
Corporation, and SERVISEG, S.A. de C.V., a
Mexican Company,
Case No. 2:12-CV-244 TS
Defendants.
This matter is before the Court on Defendant Serviseg, S.A. de C.V.’s (“Serviseg”)
Motion to Dismiss and Plaintiffs Carol Sampson and David Sampson’s Motion to Amend
Complaint.1 For the reasons discussed more fully below, the Court will grant Serviseg’s Motion
to Dismiss and will deny Plaintiffs’ Motion to Amend.
1
Docket Nos. 23, 25.
1
I. BACKGROUND
Plaintiffs Carol and David Sampson are Utah residents. Defendant Delta Air Lines, Inc.
(“Delta”), conducts business of carriage of persons by air from the Salt Lake City Airport and has
a registered agent in the State of Utah. Defendant Serviseg is a Mexican company with its
headquarters and principal place of business in Mexico City, Mexico.
In support of its Motion to Dismiss, Serviseg provided a declaration from one of its
employees, Alejandra Jimenez Campos. According to that declaration, Serviseg operates solely
in Mexico. Serviseg provides airport security services to multiple airlines that conduct flights in
and out of airports in Mexico. Serviseg has contracted with Delta to provide such services in
Mexico. One of the services that Serviseg provides for Delta is assisting passengers in
wheelchairs who are boarding or exiting Delta flights in Mexico.
The declaration further indicates that Serviseg does not provide any air-transport, travel
agent, or airline ticketing services. At no time has Serviseg conducted operations, transacted
business, or contracted to supply services within the United States or the State of Utah. Nor has
Serviseg maintained a registered agent anywhere within the United States. Finally, Ms. Jimenez
Campos attests that Serviseg has never employed any individual in the United States and
Serviseg has never owned, leased, or maintained real property in the United States or the State of
Utah.
This dispute arises from a personal injury that Plaintiff Carol Sampson suffered while
disembarking from a Delta plane in Cancun, Mexico. On or about March 26, 2011, Plaintiffs
boarded Delta Flight 463 at the Salt Lake City Airport, bound for Cancun, Mexico, with a
2
layover in Atlanta, Georgia. During the flight from Atlanta to Cancun, Mrs. Sampson became ill.
Upon arrival in Cancun, air stairs were brought to the plane and the passengers were instructed to
disembark down the air stairs to a waiting bus that would take them to the local air terminal.
Mrs. Sampson requested a wheelchair to disembark the airplane. Defendants attempted to carry
Mrs. Sampson down the air stairs in the wheelchair, however, in the act of descending the air
stairs, Defendants dropped Mrs. Sampson, causing her to hit her back and head on the metal
stairs. Mrs. Sampson was carried to the tarmac and was eventually taken by ambulance to a
hospital in Cancun.
Plaintiffs claim that, as a result of her fall, Mrs. Sampson suffered significant injuries to
her head, back, neck, and hands. According to Plaintiffs, Mrs. Sampson will require future back
surgeries to correct her injuries. Plaintiffs also allege that Mrs. Sampson suffered extreme pain,
suffering, and humiliation. Plaintiff David Sampson alleges that he suffered loss of consortium
because of this event and provided significant assistance to his wife in her care and treatment that
he otherwise would not have had to provide.
II. DISCUSSION
Defendant Serviseg moves to dismiss for (1) failure to state a claim, (2) lack of subject
matter jurisdiction, and (3) lack of personal jurisdiction. Plaintiffs move for leave to amend to
bring a state-law claim against Serviseg and to allege diversity jurisdiction.
3
“Federal courts are courts of limited jurisdiction.”2 Thus, “a federal court generally may
not rule on the merits of a case without first determining that it has jurisdiction over the category
of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction).”3 As to the
priority of jurisdictional issues, “there is no mandatory ‘sequencing of jurisdictional issues’” and
“[i]n appropriate circumstances . . . a court may dismiss for lack of personal jurisdiction without
first establishing subject-matter jurisdiction.”4
Plaintiffs bear the burden of showing that jurisdiction is proper in this case.5 “In the
preliminary stages of litigation, however, the plaintiff’s burden is light. Where, as in the present
case, . . . the motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and
other written material, the plaintiff need only make a prima facie showing that jurisdiction
exists.”6
Serviseg moves to dismiss for lack of subject matter and personal jurisdiction. Plaintiffs’
original claims arise under a treaty of the United States—the Montreal Convention. To the
2
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994) (internal citations
omitted).
3
Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430–31 (2007)
(citing Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 93–102 (1998)).
4
Id. (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999)).
5
Deeble v. Dyslin, 70 F.3d 1282, 1995 WL 694077, at *1 (10th Cir. Nov. 25, 1995)
(unpublished) (citing Far W. Capital, Inc. v. Towne, 46 F.3d 1071, 1075 (10th Cir. 1995); Henry
v. Office of Thrift Supervision, 43 F.3d 507, 512 (10th Cir. 1994)).
6
Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995) (citing Doe v. Nat’l Med.
Servs., 974 F.2d 143, 145 (10th Cir. 1992)).
4
extent they have properly pleaded such a claim, Plaintiffs have properly alleged federal question
jurisdiction. Further, Plaintiffs’ proposed amended complaint alleges a separate grounds for
subject matter jurisdiction—diversity jurisdiction. Under either ground for subject matter
jurisdiction, the Court must address the propriety of exercising personal jurisdiction over a
foreign defendant such as Serviseg.7 Therefore, the Court will begin its inquiry by determining
the propriety of exercising personal jurisdiction over Serviseg.
A.
PERSONAL JURISDICTION
The personal jurisdiction analysis varies slightly depending on whether Plaintiffs’ claims
are brought pursuant to federal question jurisdiction or diversity jurisdiction. “Before a federal
court can assert personal jurisdiction over a defendant in a federal question case, the court must
determine (1) ‘whether the applicable statute potentially confers jurisdiction’ by authorizing
service of process on the defendant and (2) ‘whether the exercise of jurisdiction comports with
due process.’”8 “‘To obtain personal jurisdiction over a nonresident defendant in a diversity
action, a plaintiff must show that jurisdiction is legitimate under the laws of the forum state and
7
See Weinberg v. Grand Circle Travel, LCC, 891 F. Supp. 2d 228, 237 (D. Mass 2012)
(citing Welch v. Am. Airlines, Inc., 970 F. Supp. 85, 88 (D. P.R. 1997); Luna v. Compania
Panamena De Aviacion, S.A., 851 F. Supp. 826, 831 (S.D. Tex. 1994)).
8
Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206, 1209 (10th Cir. 2000) (quoting
Republic of Pan. v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 942 (11th Cir. 1997)).
5
that the exercise of jurisdiction does not offend the due process clause of the Fourteenth
Amendment.’”9
Plaintiffs’ federal claims arise under the Montreal Convention. Thus, the first question
that the Court must address is whether the Montreal Convention authorizes service of process on
Serviseg. Article 33(4) of the Montreal Convention expressly provides that “[q]uestions of
procedure shall be governed by the law of the court seised of the case.”10 Based on this language,
other courts have held that the Montreal Convention does not affect a court’s interpretation and
application of its own procedural rules.11 Service of process is a procedural rule directly
addressed by the Federal Rules of Civil Procedure.12 Thus, the Court finds that the Montreal
Convention does not authorize nationwide service of process on Serviseg. The Court also notes
that it does not appear that the authors of the Montreal Convention intended to authorize
“worldwide service of process” thereby abrogating the service requirements of each signatory
state.13
9
Soma Med. Int’l v. Standard Chartered Bank, 196 F.3d 1292, 1295 (10th Cir. 1999)
(quoting Far W. Capital, Inc., 46 F.3d at 1074).
10
Convention for the Unification of Certain Rules for Int’l Carriage by Air art. 33, May
28, 1999, T.I.A.S. No. 13,0388, 1999 WL 33292734, at *39.
11
In re W. Caribbean Airways, S.A., 619 F. Supp. 2d 1299, 1311–28 (S.D. Fla. 2007).
12
See Fed. R. Civ. P. 4.
13
Peay, 205 F.3d at 111 n.4 (citing Application to Enforce Admin. Subpoenas Duces
Tecum of S.E.C. v. Knowles, 87 F.3d 413, 416 (10th Cir. 1996)).
6
Where the applicable federal statute—or treaty—does not provide for nationwide service
of process, Federal Rule of Civil Procedure 4(k)(1)(A) “commands the district court . . . to apply
the law of the state in which the district court sits.”14 As in diversity jurisdiction cases, under this
approach “[p]ersonal jurisdiction is established by the laws of the forum state and must comport
with constitutional due process.”15
“Utah’s long-arm statute confers the maximum jurisdiction allowed by due process of
law,”16 therefore “‘the first, statutory, inquiry effectively collapses into the second, constitutional,
analysis.’”17 To satisfy the constitutional requirement of due process, the defendant must have
such “minimum contacts” with the forum state such “that he should reasonably anticipate being
haled into court there.”18 If the Court finds that Serviseg had adequate minimum contacts with
the forum state, it must also determine whether personal jurisdiction is reasonable in light of the
14
Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008).
15
Fireman’s Fund Ins. Co. v. Thyssen Min. Const. of Can., Ltd., 703 F.3d 488, 492 (10th
Cir. 2012) (citing Intercon, Inc. v. Bell Atl. Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th
Cir. 2000)).
16
ICON Health & Fitness, Inc. v. Relax-A-Cizor Prods., Inc., 2013 WL 1750249, at *1
(D. Utah April 23, 2013) (citing Synergetics v. Marathon Ranching Co., 701 P.2d 1106, 1110
(Utah 1985)).
17
Id. (quoting Dudnikov, 514 F.3d at 1070); see also Sys. Designs, Inc. v. New
Customward Co., 248 F. Supp. 2d 1093, 1097 (D. Utah 2003) (holding that “[i]t is frequently
helpful to undertake the due process analysis first, because any set of circumstances that satisfies
due process will also satisfy the long-arm statute”).
18
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 297 (1980).
7
circumstances surrounding the case. In other words, exercising jurisdiction must not offend
traditional notions of “fair play and substantial justice.”19
The “minimum contacts” standard may be met by a finding of either general jurisdiction
or specific jurisdiction.20
1.
GENERAL JURISDICTION
For general jurisdiction to exist, a defendant must conduct substantial and continuous
local activity in the forum state.21 The allegations of Plaintiffs’ Complaint and the evidence
submitted in Serviseg’s affidavit demonstrate that Serviseg has not conducted substantial and
continuous local activity in this forum. Notwithstanding this lack of forum related activity
conducted by Serviseg, Plaintiffs argue that jurisdiction is proper because Serviseg is an agent of
Delta.
“The Tenth Circuit has recognized that a principal may be subject to the jurisdiction of
the court because of the activities of its agent within the forum state.”22 The realities of corporate
structuring give rise to the rule that “[t]he existence of a ‘general’ agency relationship” may
support general jurisdiction over a corporation through a subsidiary.23 The same reasoning has
19
Burger King v. Rudzewicz, 471 U.S. 462, 472–73 (1985).
20
OMI Holdings, Inc. v. Royal Ins. Co. of Can., 149 F.3d 1086, 1090–91 (10th Cir. 1998).
21
Soma Med. Int’l, 196 F.3d at 1295.
22
Fireman’s Fund, 703 F.3d at 493 (emphasis in original) (quoting Taylor v. Phelan, 912
F.2d 429, 433 (10th Cir. 1990)).
23
Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 459 (10th Cir. 1996).
8
been applied to allow general jurisdiction over partnerships and joint ventures where only one
party to the venture is subject to the general jurisdiction of the forum.24 “As all corporations
must necessarily act through agents, a wholly owned subsidiary may be an agent and when its
activities as an agent are of such a character as to amount to doing business of the parent, the
parent is subjected to the in personam jurisdiction of the state.”25
Plaintiffs have alleged at best that Serviseg is an agent of Delta. All of the actions
Serviseg is alleged to have taken on behalf of Delta occurred in Mexico. Indeed, nowhere in
Plaintiffs’ Complaint or Serviseg’s affidavit are there allegations or evidence that Delta was
acting on behalf of Serviseg or performing Serviseg’s business in Utah. In light of the absence of
conduct on the part of Serviseg directed at this forum, the Court cannot find that Serviseg
“transacted business” within Utah.26
While Plaintiffs’ Complaint contains sufficient allegations to maintain personal
jurisdiction over Delta, it does not follow that by virtue of that jurisdiction the Court may
exercise jurisdiction over any agent of Delta. To hold otherwise would be contrary to the
purposes of the minimum contacts analysis. Accordingly, the Court finds that Serviseg is not
subject to the general jurisdiction of this Court.
24
See Donatelli v. Nat’l Hockey League, 893 F.2d 459, 466 (1st Cir. 1990) (stating that
under the agency theory, a partner is deemed by law and contract to be the partnership’s general
agent); Quarles v. Fuqua Indus., Inc., 504 F.2d 1358, 1364–65 (10th Cir. 1974) (discussing the
application of alter ego theory to personal jurisdiction analysis).
25
Curtis Publishing Co. v. Cassel, 302 F.2d 132, 137 (10th Cir. 1962).
26
Quarles, 504 F.2d at 1362.
9
2.
SPECIFIC JURISDICTION
To meet the minimum contacts requirement in the specific jurisdiction context, a
defendant must purposefully direct its activities at the forum, and the plaintiff’s injuries must
arise out of those forum-related activities.27 The purposeful direction requirement has been
described as an “act by which the defendant purposefully avails itself of the privilege of
conducting activities within the forum state, thus invoking the benefits and protections of its
laws.”28 The salient factors that together indicate purposeful direction are: intentional action,
expressly aimed at the forum state, with knowledge that the brunt of the injury would be felt in
the forum state.29
Serviseg operates out of Mexico and has very limited contacts with the United States and
no contacts with the State of Utah. Serviseg contracted with Delta to perform flight-related
services for Delta. All of those services were to be performed in Mexico. Serviseg’s only
interaction with Plaintiffs was the carrying of Mrs. Sampson’s wheelchair down air stairs to a
tarmac in Cancun, Mexico. The fact that Serviseg contracted with Delta to provide such services
to Delta passengers in Mexico does not show a level of availment of Utah laws sufficient to meet
the specific jurisdiction requirement.
27
Dudnikov, 514 F.3d at 1071.
28
Hanson v. Denckla, 357 U.S. 235, 253 (1958) (citation omitted).
29
See Shrader v. Biddinger, 633 F.3d 1235, 1239–40 (10th Cir. 2011) (citing Dudnikov,
514 F.3d at 1072).
10
In short, Serviseg’s interaction with Utah residents was a “random, fortuitous, or
attenuated contact[]” resulting from the “unilateral activity of another party or a third person.”30
Therefore, the Court finds that Plaintiffs have failed to meet their burden to prove that Serviseg
availed itself of the benefits of the laws of Utah sufficient to establish minimum contacts.
3.
REASONABLENESS
Courts consider the following factors to decide whether exercise of
jurisdiction is reasonable: (1) the burden on the defendant; (2) the forum state’s
interest in resolving the dispute; (3) the plaintiff’s interest in receiving convenient
and effective relief; (4) the interstate judicial system’s interest in obtaining the
most efficient resolution of controversies; and (5) the shared interest of the several
states in furthering fundamental substantive policies.31
Applying these factors to the evidence presented in this case, the Court finds that the
burden on Serviseg in being required to defend in this forum would be high because Serviseg is a
Mexican company that does not conduct any business in Utah and has very little expectation of
being haled into court in Utah. That being said, Serviseg concedes that the forum state’s interest
in resolving the dispute is high because Plaintiffs are Utah residents.
As to Plaintiffs’ interests in pursuing their remedies against Serviseg in this forum,
Plaintiffs argue that this factor weighs in their favor because a resolution of the case in this forum
will provide them convenient and effective relief. However, as Serviseg notes, even without
Serviseg as a party to this case, Plaintiffs may still pursue their claims against Delta. In that
30
Burger King, 471 U.S. at 476.
31
Bell Helicopter Textron, Inc. v. Heliqwest Int’l, Ltd., 385 F.3d 1291, 1296 (10th Cir.
2004).
11
manner, Plaintiffs may receive convenient and effective relief. The interstate judicial system
favors the dismissal of Serviseg. Plaintiffs may pursue their claims against Delta in this forum
and Delta may in turn pursue any claim it may have against Serviseg in Mexico. Such an
approach respects the shared interest of the several states involved by respecting the authority of
the various jurisdictions implicated in this international dispute.
On the whole, the Court finds that a balance of the foregoing factors weigh in Serviseg’s
favor and, as such, the exercise of personal jurisdiction would offend traditional notions of fair
play and substantial justice.
B.
JURISDICTIONAL DISCOVERY
In the event the Court is inclined to grant dismissal on jurisdictional grounds, Plaintiffs
request leave to conduct jurisdictional discovery. Serviseg opposes such a request on the
grounds that Plaintiffs have failed to meet their burden of making a threshold prima facie case of
personal jurisdiction and failed to show how the discovery they seek would provide the Court
with a basis for jurisdiction. Serviseg also argues that because its entire operation is based out of
Mexico and it maintains no employees in the United States it will be extremely burdensome for it
to engage in any discovery in this forum.
At the outset, the Court notes that it is not required to recognize “a general request for
discovery” included in a “response [to a] dismissal motion.”32 A party seeking additional
32
World Wide Ass’n of Specialty Programs & Sch. v. Houlahan, 138 F. App’x 50, 52
(10th Cir. 2005) (unpublished).
12
discovery should file an “explicit, supported motion for discovery.”33 Due to the general nature
of Plaintiffs’ request for discovery, the Court is left guessing as to the potential probative value
of the evidence Plaintiffs seek to discover. This puts the parties and the Court at a disadvantage.
That being said, this Court is vested with broad discretion in deciding whether to allow
jurisdictional discovery.34 “‘A refusal to grant discovery constitutes an abuse of discretion if the
denial results in prejudice to a litigant. Prejudice is present where pertinent facts bearing on the
question of jurisdiction are controverted or where a more satisfactory showing of the facts is
necessary.’”35
Plaintiffs ask for discovery as to (1) “[h]ow many flights from Salt Lake City Serviseg
has provided service to in Mexico,” (2) “[h]ow many Utah citizens Serviseg has provided service
to,” and (3) “[w]hether Serviseg has entered contracts with choice of law of [sic] choice of forum
clauses involving Utah citizens or companies.”36 Discovery into the first two areas would not
modify the outcome in this case as the service provided undisputedly occurred in Mexico.
Plaintiffs do not seek information that demonstrates purposeful availment of the laws of this
forum. As to potential contracts with choice of law forums in the United States, it is possible,
though improbable, that Serviseg’s unrelated contracts may provide some evidence of purposeful
33
Id.
34
Budde v. Ling–Temco–Vought, Inc., 511 F.2d 1033, 1035 (10th Cir. 1975).
35
Grynberg v. Ivanhoe Energy, Inc., 490 F. App’x 86, 103 (10th Cir. 2012) (unpublished)
(emphasis in original) (quoting Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1326
(10th Cir. 2002)).
36
Docket No. 25, at 6.
13
availment of the protection of United States law. It is not clear, however, how such contracts
would provide specific jurisdiction in this case.
In sum, “it is difficult to imagine how the [discovery Plaintiffs seek] could possibly create
personal jurisdiction over [Serviseg] in Utah.”37 Rather, Plaintiffs’ request for discovery appears
to be an improper evidentiary fishing expedition.38 For these reasons, the Court will deny
Plaintiffs’ request for jurisdictional discovery.
C.
LEAVE TO AMEND
Plaintiffs seek leave to file an amended complaint. Plaintiffs have provided a copy of
their Proposed Amended Complaint for the Court’s review. As discussed previously, Plaintiffs’
Proposed Amended Complaint adds a state-law claim for negligence and alleges diversity
jurisdiction. Serviseg opposes Plaintiffs’ Motion on the grounds that the requested amendment
would be futile. Serviseg’s argument is premised on its assertion that the Court cannot exercise
personal jurisdiction over it for purposes of adjudicating the claims in either Plaintiffs’
Complaint or Proposed Amended Complaint. Serviseg also argues that amendment is futile
because it is not a “carrier” for purposes of the Montreal Convention.
Where, as in this case, a motion under Rule 12(b) has been served, Federal Rule of Civil
Procedure 15(a)(2) dictates that “a party may amend its pleading only with the opposing party’s
37
Bell Helicopter Textron, 385 F.3d at 1299.
38
See Martinez v. True, 128 F. App’x 714, 716 (10th Cir. 2005) (“[A] party may not use
discovery as a fishing expedition.” (internal quotation marks and citation omitted)).
14
written consent or the court’s leave.”39 The Rule specifies that “[t]he court should freely give
leave when justice so requires.”40 However, the Court may refuse to grant leave to amend where
it finds evidence of “undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, [or] futility of amendment.”41
“A proposed amendment is futile if the complaint, as amended, would be subject to
dismissal.”42 This is true of a proposed amended complaint that is subject to dismissal for lack of
personal jurisdiction.43 Because the Court finds that Plaintiffs’ Proposed Amended Complaint is
subject to dismissal for lack of personal jurisdiction, it follows that Plaintiffs’ Motion to Amend
is futile. Accordingly, the Court will deny Plaintiffs’ Motion.
III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED that Defendant Serviseg’s Motion to Dismiss (Docket No. 23) is GRANTED.
It is further
ORDERED that Plaintiffs’ Motion to Amend Complaint (Docket No. 25) is DENIED.
39
Fed. R. Civ. P. 15(a)(2).
40
Id.
41
Foman v. Davis, 371 U.S. 178, 182 (1962).
42
Jefferson Cnty. Sch. Dist. No. R–1 v. Moody’s Investors Servs., 175 F.3d 848, 859 (10th
Cir. 1999).
43
See Litster v. Alza Corp., 2006 WL 3327906 (D. Utah Nov. 15, 2006).
15
DATED December 9, 2013.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
16
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