Selke et al v. United Airlines et al

Filing 51

MEMORANDUM OPINION AND ORDER - Defendants' Motion to Dismiss 42 is DENIEDIN PART as to Defendants Germanwings and Lufthansa and GRANTED IN PART as toDefendant Eurowings. Thus, all claims against Defendant Eurowings GmbH are DISMISSED; IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment 42 is GRANTED as to Defendant Lufthansa. Thus, all claims against Defendant Deutsche Lufthansa AG are DISMISSED. Signed by District Judge Gerald Bruce Lee on 07/20/2017. (dvanm, )

IN THE UNITED STATES DISTRICT COURT FORTHE
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

RAYMOND C. SELKE, et al.,
Plaintiffs,

Case No. l:17-cv-00121-GBL-TCB

v.

GERMANWINGS GMBH, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on Defendants Germanwings GmbH

("Germanwings"), Deutsche Lufthansa AG ("Lufthansa"), and Eurowings GmbH's

("Eurowings") (collectively "Defendants") Motion to Dismiss and/or for Summary Judgment1
Pursuant to Federal Rules of Civil Procedure 12(b)(2) and 56. (Dkt. No. 42.) This case concerns

a suit for money damages brought by Plaintiffs Raymond C. Selke and Trevor J. Selke

("Plaintiffs") on two claims against Defendants for liability in the crash of Germanwings Flight
9525, which resulted in the death ofPlaintiffs' family members, Yvonne C. Selke and Emily E.

Selke ("Selke decedents"). First, Plaintiffs allege that Defendants owe money damages under
the liability parameters ofthe Convention for the Unification ofCertain Rules for International

Carriage by Air ("Montreal Convention"),2 an international air carriage treaty ratified by the
United States. Second, Plaintiffs in the alternative charge that Defendants are liable for the
deaths of the Selke decedents based on a claim of negligence underVirginia state law.
1The Court notes that Defendant Germanwings does not join Defendants' Motion for Summary

Judgment. (Dkt. No. 42 at 1.) Accordingly, the Court considers only Defendants' Motion to
Dismiss as it pertains to Germanwings.

2Conventionfor the Unification ofCertain Rules ofInternational Carriage by Air, ICAO Doc.
9740, reprinted in Treaty Doc. No. 106-45,1999 WL 33292734 (2000) [hereinafter Montreal
Convention].

There are five issues before the Court. The first issue is whether, under Federal Rule of

Civil Procedure 12(b)(2), the Court should grant Defendant Germanwings' Motion to Dismiss

for lack of personal jurisdiction, where Germanwings maintained no physical presence in

Virginia but sold tickets to Virginia residents through an agent located in the Commonwealth.
The Court denies Germanwings' Motion to Dismiss because Germanwings expressly authorized
another airline to sell its tickets in Virginia, thus availing itself of the privilege of conducting
business in the forum.

The second issue is whether the Court should grant Defendant Lufthansa's Rule 12(b)(2)

Motion to Dismiss for lack of personal jurisdiction, where Lufthansa authorized another airline

to sell tickets in Virginia on its behalf and maintained steady operations from aVirginia airport.
The Court denies Lufthansa's Motion to Dismiss because in addition to selling its tickets to

Virginia residents through an agent based in the forum, Lufthansa also employs Virginia citizens
and operates daily flights from Dulles International Airport.
The third issue is whether the Court should grant Lufthansa's Rule 56 Motion for

Summary Judgment, where Lufthansa did not provide the actual carriage that resulted in the
deaths of Plaintiffs' decedents. The Court grants Lufthansa's Motion for Summary Judgment
because the Montreal Convention exclusively governs Plaintiffs' claims and Lufthansa's status

as a "successive carrier" under the Convention does not confer liability for the crash of
Germanwings Flight 9525.

The fourth issue is whether the Court should grant Defendant Eurowings' Motion to

Dismiss for lack of personal jurisdiction, where the airline has no physical presence in Virginia,

was not party to the transaction that provided the Selke decedents with carriage to Europe, and
did not sell tickets via its contractual relationship with an agent in Virginia. The Court grants

Eurowings' Motion to Dismiss because Eurowings does not have minimum contacts in Virginia
sufficient for the Court to assert jurisdiction under the requirements of the Due Process Clause.
The fifth issue is whether the Court should grant Eurowings' Rule 56 Motion for

Summary Judgment where the airline did not participate in nor contribute to any ofthe carriage
that resulted in the crash of Germanwings Flight 9525. Because the Court may not exercise

jurisdiction over Eurowings, the Court does not address the issues raised by Eurowings' Rule 56
motion.

I. BACKGROUND
A. The Parties

Plaintiffs Raymond C. Selke and Trevor J. Selke ("Plaintiffs") arethe surviving members
of the Selke family. Plaintiff Raymond C. Selke is the surviving husband of Yvonne C. Selke
and father of decedent Emily E. Selke. (Dkt. No. 1 ^ 2.) Plaintiff Raymond C. Selke is also
administrator of the decedents' estates. Id. Plaintiff Trevor J. Selke is the surviving son of
Yvonne C. Selke and brother of Emily E. Selke. (Id. ffi[ 13, 14.)

Defendant Germanwings GmbH is a commercial airline organized and existing under the

laws of Germany. (Dkt. No. 42 U2.) Germanwings also maintains its headquarters and its
principal place of business in Cologne, Germany. (Id. \ 3.) Germanwings is an international air
carrier that operates flights to 103 destinations worldwide, none of which have ever operated to
or from Virginia, or any other state in the United States. (Dkt. No. 45.) Germanwings does not
have an office in Virginia, or in any other state of the United States, and does not employ any

citizens of either Virginia or the United States as a whole. (Id. at 10.) Germanwings is a wholly
owned subsidiary of Defendant Lufthansa. (Dkt. No. 43-1 at 2.)
Defendant Deutsche Lufthansa AG is a commercial airline organized and existing under

the laws of Germany, with a headquarters and principal place of business in Cologne, Germany.

(Dkt. No. 43-1 at 11.) Lufthansa operates flights to 205 international destinations, 19 of which
are located in the United States, including one in Virginia. (Id. at 10.) Lufthansa also employs
430 citizens of the United States, 17 of whom are residents of Virginia. Id. Lufthansa is the

parent corporation of both Germanwings and Eurowings. (Dkt. No. 43-1 at 2.)
Defendant Eurowings GmbH is a commercial airline organized and existing under the
laws of Germany. (Dkt. No. 42 at 6.) Eurowings' headquarters and principal place of business
are located in Dtisseldorf, Germany.

Id.

Eurowings offers flights to 124 international

destinations, operating approximately 2,767 flights per week. (Id. at 11.) Eurowings provides

carriage to several destinations in the United States, including Seattle, Washington; Las Vegas,
Nevada; and Miami, Florida. Id. Eurowings has never operated any flights from or to Virginia,
does not maintain an office in Virginia, and has never employed any Virginia residents. Id.

Eurowings is a wholly owned subsidiary of DefendantLufthansa. (Dkt. No. 43-1 at 2.)
Defendant United Airlines, Inc. ("United") is a Delaware corporation with its principal

place of business in Illinois. (Dkt. No. 11) 15.) United is a domestic and international air carrier
that operates flights to and from five destinations within the Commonwealth of Virginia and
employs 5,700 Virginia citizens. (Dkt. No. 15-1 H34.)
B. Defendants' Business Relationships with United Airlines, Inc.

Defendants maintain business agreements with United that permit United to sell tickets
for flights performed by Germanwings, Eurowings, and Lufthansa.

(Dkt. 43-1 at 4-6.)

Defendants' ticketing agreements with United fall into two categories: "interline" agreements
and "codeshare" agreements. Id. Germanwings, Eurowings, and Lufthansa maintain interline
agreements with United, which involve business relationships where the carriers engage in

mutual acceptance of tickets and baggage, but operate independently from one another. Id.
Germanwings, Eurowings, and Lufthansa each also have separate codeshare agreements with
United wherein United may sell under its own authority passage on one of the other carriers.

(Dkt. No. 43-1 at 6.) Under these codeshare sales, United assumes responsibility for any flights
booked despite the performance of actual carriage byanother airline. Id.
Lufthansa and United, along with 27 other airlines, are members of the "Star Alliance,"

an international group of air carriers sharing mutual connection locations, reciprocal frequent

flier membership benefits, and flight check-in recognition.

(Dkt. 43-1 at 7.)

Neither

Germanwings nor Eurowings is a member of the StarAlliance. Id.
C. Crash of Germanwings Flight No. 9525

Plaintiffs allege that in or around February 2015, the Selke decedents booked air carriage
on five flights through United's website for a European vacation scheduled from March 20,2015
to March 29, 2015. (Dkt. 45 at 8.) Decedents were scheduled to travel from Washington Dulles

Airport in Virginia to Munich, Germany on United, and then from Munich to Barcelona, Spain
on March 20, 2015 via Lufthansa. Id. On March 24, 2015, the Selke decedents were scheduled

to travel from Barcelona to Dtisseldorf, Germany on Germanwings, and then from Dtisseldorf to

Manchester, England on Germanwings.

Id.

Finally, on March 29, 2015, decedents were

scheduled to return home from Manchester to Washington Dulles via carriage provided by
United. Id.

On the flight between Barcelona and Dusseldorf on Germanwings Flight No. 9525

("Flight 9525"), co-pilot Andreas Lubitz locked himself in the cockpit and caused the plane to
rapidly descend and crash into the French Alps. (Dkt. No. 1 K 1.) Tragically, all 6 crew
members and 144 passengers, including the Selke decedents, were killed. Id.

Plaintiffs allege that by not maintaining safety measures requiring two crew members to

remain present in the cockpit at all times, Germanwings and, by association, Eurowings,
Lufthansa and United negligently operated Flight 9525, proximately causing the crash that killed
the Selke decedents. Id.
II. DISCUSSION
A. Standards of Review

1. Rule 12(b)(2)

Under Federal Rule of Civil Procedure 12(b)(2), the Court may dismiss a case for lack of

personal jurisdiction.

Fed. R. Civ. P. 12(b)(2). Plaintiffs bear the burden of proving that

personal jurisdiction exists by a preponderance of the evidence. Combs v. Bakker, 886 F.2d 673,
676 (4th Cir. 1989). When a court rules on personal jurisdiction without an evidentiary hearing,
the plaintiff must make a. prima facie showing of a sufficient jurisdictional basis to survive the

challenge. Id. In such circumstances, a court must view all relevant allegations in the light most
favorable to the plaintiff and draw all reasonable inferences for the existence of jurisdiction.
Combs, 886 F.2d at 676; see also Mylan Labs v. Akzo, N.V.,2 F.3d 56, 59-60 (4th Cir. 1993).

Determining whether a person is subject to personal jurisdiction requires a two-step
analysis. First, a court must conclude that jurisdiction is authorized by the state's long-arm
statute. Mitrano v. Howes, 317 F.3d 402, 406 (4th Cir. 2004). Second, the court must find that

the exercise of personal jurisdiction is consistent with the constitutional requirements of the Due
Process Clause of the Fourteenth Amendment. Id. Virginia's long-arm statute extends personal
jurisdiction to the constitutionally permissible limits of the Due Process Clause of the Fifth

Amendment. ePlus Tech., Inc. v. Aboud, 313 F.3d 166, 176 (4th Cir. 2002).

Accordingly,

"[b]ecause Virginia's long-arm statute is intended to extend personal jurisdiction to the extent
6

permissible under the due process clause, the statutory inquiry merges with the constitutional
inquiry." ConsultingEng'rs Corp. v. Geometric Ltd, 561 F.3d 273,277 (4th Cir. 2009).
2. Rule 56

Pursuant to Federal Rule of Civil Procedure 56, the Court must grant summary judgment

if the moving party establishes that there is no genuine dispute as to any material fact. Fed. R.
Civ. P. 56(a).

When reviewing a motion for summary judgment, the Court views the facts in a light
most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., All U.S. 242, 255

(1986). If a motion for summary judgment under Federal Rule of Civil Procedure 56 is properly
made and sufficiently supported, an opposing party has the burden of showing that a genuine

dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Furthermore, "the mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact." Anderson, All U.S. at 247—48.

A "material fact," for the purposes of the summary judgment inquiry, is a fact that might

affect the outcome of a party's case. Id. at 248; JKCHolding Co. v. Wash. Sports Ventures, Inc.,
264 F.3d 459, 465 (4th Cir. 2001).

Similarly, whether a fact is considered "material" is

determined by the substantive law governing the claims alleged in the complaint. Anderson, All
U.S. at 248. Accordingly, "only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment." Id.; see also
Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001). Likewise, a "genuine" dispute
concerning a "material" fact exists when the evidence is sufficient to allow a reasonable jury to
return a verdict in the non-moving party's favor. Anderson, All U.S. at 248. Additionally,

Federal Rule of Civil Procedure 56(e) requires that the non-moving party go beyond the
pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for trial.
Celotex Corp. v. Catrett, All U.S. 317, 324 (1986).
B. Analysis

The Court denies Germanwings' Rule 12(b)(2) Motion to Dismiss because Germanwings
expressly authorized United to sell its tickets in the forum of Virginia, thus reaching into the

state to conduct business using an agent as a sales proxy.
The Court likewise denies Lufthansa's Rule 12(b)(2) Motion to Dismiss because
Lufthansa employs Virginia citizens, enjoys the protection of Virginia laws while conducting
business in the forum, and operates daily flights from Dulles International Airport in Virginia.

However, the Court grants Lufthansa's Rule 56 Motion for Summary Judgment because
Lufthansa's role as an interline carrier in the travel of the Selke decedents does not confer

liability under the governing articles of the Montreal Convention, which expressly preempts
Plaintiffs' state law claims.

Lastly, the Court grants Eurowings' Rule 12(b)(2) Motion to Dismiss because Eurowings

does not have sufficient contacts in Virginia to satisfy the constitutional requirements for the
Court to assert specific personal jurisdiction. Specifically, because Eurowings was not in any

way a party to United's sale of tickets to the Selke decedents, the transaction does not implicate
Eurowings, which otherwise has no contacts with Virginia whatsoever.
Because the Court cannot assert personal jurisdiction, the Court need not address
Eurowings' Rule 56 Motion for Summary Judgment.
1. Personal Jurisdiction Over Germanwings
8

The Court has personal jurisdiction over Germanwings because the airline purposely

availed itself of Virginiaby transacting business in the Commonwealth through its agent, United.
This business activity resulted in the sale of tickets that gave rise to Plaintiffs' cause of action.
Furthermore, because Plaintiffs are citizens of Virginia and adjudicating the matter in this forum

would not unduly inconvenience Germanwings, the Court's assertion of personal jurisdiction

comports with the reasonableness requirements of the Due Process Clause.
When considering a challenge to personal jurisdiction, the Court first asks whether

Virginia's long-arm statute authorizes personal jurisdiction over the defendant, and, second,
whether the assertion of jurisdiction runs afoul of the requirements of the Due Process Clause of
the Fourteenth Amendment. Because Virginia's long-arm statute sweeps as broadly as permitted

by due process, the two inquiries collapse into the same analysis of whether the assertion of

personal jurisdiction can withstand due process scrutiny. See Peanut Corp. ofAm. v. Hollywood
Brands, Inc., 696 F.2d 311, 313 (4th Cir. 1982).

For a court's assertion of personal jurisdiction to withstand this review, a defendant must
have "certain minimum contacts . . . 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) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Such "minimum
contacts" exist if a defendant has "purposely avail[ed] itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections of its law." Hanson

v. DencMa, 357 U.S. 235, 253 (1958); see also Burger King Corp. v. Rudzewicz, All U.S. 462,

475 (1985) ("This 'purposeful availment' requirement ensures that a defendant will not be haled
into a jurisdiction solely as a result of 'random,' 'fortuitous,' or 'attenuated' contacts."). In the
Fourth Circuit, courts consider three factors when analyzing personal jurisdiction over a
9

nonresident defendant: "[1] the extent to which the defendant purposefully availed itself of the

privilege of conducting activities in the forum state; [2] whether the plaintiffs' claimsarise out of
those activities; and [3] whether the assertion of personal jurisdiction is constitutionally
reasonable." Tire Eng'g & Distribution, LLC v. Shandong Linglong Rubber Co., 682 F.3d 292,
301-02 (4th Cir. 2012); see also Careflrst of Maryland, Inc. v. Carefirst Pregnancy Centers,
Inc., 334 F.3d 390, 397 (4th Cir. 2003). Each prong must be satisfied. Consulting Eng'rs, 561
F.3d at 278-79.

a. Germanwings' PurposefulAvailment ofthe Virginia Forum

Although Germanwings has no physical presence in Virginia, its ticketing arrangements

with United and express authorization of United selling its services to Virginia citizens reflects
sufficientpurposeful availment of the forum to justify the assertion of personaljurisdiction.
Generally, if a defendant has created a "substantial connection" to the forum, then it has

purposefully availed itself of the privilege of conducting business there. Ellicott Mack Corp. v.
John Holland Party Ltd., 995 F.2d 474, 477 (4th Cir. 1993) (citing Burger King, All U.S. at

476). A non-exhaustive list of factors includes: (1) whether the defendant maintains offices or
agents in the forum state; (2) whether the defendant owns property in the forum state; (3)
whether the defendant reached into the forum state to solicit or initiate business; (4) whether the

defendant deliberately engaged in significant long-term business activities in the forum state; (5)
whether the parties contractually agreed that the law of the forum state would govern disputes;

(6) whether the defendant made in-person contact with the resident of the forum in the forum
state regarding the business relationship; (7) the nature, quality, and extent of the parties'
communications about the business being transacted; and (8) whether the performance of
contractual duties was to occur within the forum. Consulting Eng'rs, 561 F.3d at 278.
10

Plaintiffs argue that because Germanwings had in place certain business agreements
related to ticket sales, Germanwings transacted business within the Virginia forum when United
sold interline tickets to the Selkes for air carriage on Germanwings Flight 9525. (Dkt. No. 45 at

13.) Even if the tickets were sold pursuant to an interline agreement, Plaintiffs contend, the
nature of the agreement was such that United's sale of the tickets reflected not only United's

solicitation ofbusiness inVirginia, but also Germanwings.3 (Id. at 15.) In support ofthis theory,
Plaintiffs cite to several cases of persuasive authority where courts held foreign airlines subject

to personal jurisdiction in the forum where they sold tickets through an express agreement with
an agent. See Vergara v. Aeroflot, 390 F. Supp. 1266, 1269 (D. Neb. 1975); Mohler v. Dorado

Wings, Inc., 675 S.W.2d 404, 406-07 (Ky. Ct. App. 1984). The District Court of Nebraska's
holding in Vergara best illustrates Plaintiffs' contention. In Vergara, two residents of Nebraska

pursued claims under the Warsaw Convention in federal court against a Russian airline
("Aeroflot"), alleging that the plaintiffs were forcibly detained in Pakistan after Aeroflot failed to
obtain permission to enter Pakistani airspace. Vergara, 390 F. Supp. at 1267-68. In response,
Aeroflot, which had no offices and no employees in Nebraska, moved to dismiss for lack of

personal jurisdiction. The District Court of Nebraska denied Aeroflot's motion, noting that in
expressly authorizing a Nebraska travel agent to sell tickets on its behalf, Aeroflot "transacted
business" in the forum. Id. Similarly, in Mohler, the Kentucky Court of Appeals held that

although Delta Airlines did not have any assets or employees in Kentucky, Delta nevertheless

3The Court notes that this argument for personal jurisdiction appears to be different than the
"partnership, joint venture, joint adventure, orjoint enterprise" theory for personal jurisdiction
advanced at times by Plaintiffs in their Complaint. (Dkt. No. 1 at 4.) Under that theory, which
Plaintiffs appear to abandon in their Reply to Defendants' Motion, Plaintiffs seem to argue that
the nature of the relationship between United and Germanwings, Eurowings, and Lufthansa is
such that the minimum contacts of each are attributable to the partners. Because Plaintiffs do not
address this argument in their Reply, and because the Court finds the matter of personal
jurisdiction resolvable without it, the Court does not address it in this opinion.
11

availed itself of the forum because Delta authorized the sale of its tickets through a Kentuckybased travel agent. Mohler, 675 S.W.2d at 406.
In response, Defendants call into question the persuasive weight of these cases based on

their age and "recent Supreme Court cases addressing the issue of specific personal jurisdiction."
(Dkt. No. 47 at 7.) But Defendants cite to no authority that expressly contradicts or renders
obsolete the holdings in Vergara and Mohler.

By quoting Walden v. Fiore, Defendants

analogize that because a "substantial connection with the forum state . . . must arise out of

contacts that the 'defendant himself creates with the forum state," United's sale of the tickets in

Virginia cannot reflect Germanwings' contacts with the forum. Id. (quoting 134 S. Ct. 1115,
1121 (2014)).

However, this characterization of modern federal procedure jurisprudence

misconstrues the central holdings of both Walden and Burger King. Principally, while the
assertion of personal jurisdiction requires that the defendant himself create contacts with a forum

state, this condition does not preclude a defendant from establishing those contacts through a
contractual relationship with a resident party. To the contrary, the Supreme Court of the United
States in Burger King distinguished that, even absent physical contacts in a forum, a defendant

can be subjected to the personal jurisdiction of that state based solely on "a carefully structured .

. . relationship that envision[s] continuing and wide-reaching contacts [with a party in the
forum]." 471 U.S. at 480.

By entering into ticketing agreements with United and expressly authorizing United to
sell tickets to Virginia residents on its behalf, it was Germanwings itself who established
contacts in Virginia.

Defendants' argument to the contrary—that the mere existence of a

business intermediary between Germanwings and the physical forum is sufficient to shield

Germanwings from jurisdiction—is inapposite to the Walden holding and the principle
12

articulated in Burger King. Thus, the Court finds more persuasive the standard established in

Vergara, which speaks directly to the jurisdictional relevance of an agent selling tickets on a
foreign airline's behalf. Here, as in Vergara, tickets were sold through contracts arising from
mutual membership in the International Air Transport Association ("IATA"). (Dkt. No. 15-1 at
12.) Article 2 of the ticketing agreement between Germanwings and United also includes

explicit references to how and when United will be reimbursed for the sale of Germanwings
tickets, including billing information, billing addresses, and invoice scheduling.

Id.

Furthermore, the preamble to the bilateral ticketing agreement states that "the Parties hereto

operate scheduled air transportation services and desire to enter into arrangements under which

United Airlines may sell transportation over the routes of [Germanwings]." Id. These factors,

which proved decisive in Vergara, are controlling here as well. Germanwings had an express
agency agreement with United to sell tickets on its behalf and paid a commission when United

sold those tickets in Virginia. Thus, when Plaintiffs purchased tickets from United for carriage
on Germanwings Flight 9525, Germanwings was transacting business in Virginia.
b. Plaintiffs' Cause ofAction Arisesfrom Germanwings' Contacts with Virginia
Because Germanwings purposefully availed itself of Virginia, the Court next considers

the second prong of specific jurisdiction analysis: whether the Plaintiffs' cause of action arises
from Germanwings' contacts in the forum.

The portions of Virginia's long-arm statute governing the second prong of this analysis
appear in Section 8.01-328.1, which holds that a court may assert personal jurisdiction over a
person:

[W]ho acts directly or through an agent, as to a cause of action arising from the
person's:
1. Transacting any business in this Commonwealth;...
3. Causing tortious injury by an act or omission in this Commonwealth;
13

4. Causing tortious injury in this Commonwealth by an act or omission outside
this Commonwealth if he regularly does or solicits business, or engages in any
other persistent course of conduct, or derives substantial revenue from goods used
or consumed or services rendered, in this Commonwealth;

Va. Code Ann. § 8.01-328.1, amended by 2017 Virginia Laws Ch. 480 (H.B. 1737).
The Court notes that Virginia courts have spoken previously on the meaning of the phrase

"arising from" in Section 8.01-328.1, with the controlling interpretation requiring that there be a
causal link between the acts relied on for personal jurisdiction and the claims detailed in the

complaint. Chedid v. Boardwalk Regency Corp, 756 F. Supp. 941, 943 (E.D. Va. 1991); see
also Verosol B.V. v. Hunter Douglas, Inc., 806 F. Supp. 582, 589 (E.D. Va. 1992) ("The plain

meaning of the phrase 'arising from' is 'caused by.'"). However, the causation contemplated by
the statute requires more than bare "but for" causation; instead, the connection between forum
contacts and the cause of action must rise to the level of legal or proximate causation. Chedid,
756 F. Supp. at 943.

Defendants posit that the causation requirement should be viewed through the lens of a
recent United States Supreme Court decision in OBB Personenverkehr AG v. Sachs, arguing that
because Plaintiffs' cause of action arises from the crash of Germanwings Flight 9525 and not

from Germanwings' contacts in Virginia, there is no specific personal jurisdiction over
Germanwings. (Dkt. No. 43 at 16 (citing 196 S. Ct. 390, 396 (2015)). In Sachs, the United States

Supreme Court held that a claim under the Foreign Sovereign Immunities Act ("FSIA") for
personal injuries sustained in a train accident in Austria did not "arise from" the purchase of
tickets in California. Sachs, 196 S. Ct. at 396. However, the central holding in Sachs does not

readily apply here. First, the Supreme Court in Sachs involved the interpretation of the phrase
"based upon" as it applied to the commercial activity exception for sovereign immunity under
the FSIA. Id. at 392. No part of the Court's holding concerned in any way the causation
14

standard required by Virginia's long-arm statute or the interpretation of "arising from" in Va.
Stat. Ann. § 8.01-328.1. Second, the Court's interpretation of "based upon" under the FSIA
commercial activity exception has not been extended to all other exceptions of the FSIA itself.
Rather, the Circuit Court for the District of Columbia recently noted the "limited usefulness" of

the Sachs holding, distinguishing that the Sachs interpretation of "based upon" was isolated to
the commercial activity exception of the FSIA and did not apply to the non-commercial tort

exception. Doe v. Fed. Democratic Republic ofEtk, 851 F.3d 7, 12 (D.C. Cir. 2017). Because
Sachs does not control all exceptions to the FSIA, much less the causation standard for
Virginia's long-arm statute, the Court does not find it relevant here.

The standard for causation that controls in this matter is better articulated as an inquiry
into whether Germanwings' activity in the forum state precipitated Plaintiffs' claims. In the

Fourth Circuit, courts acknowledge that a plaintiffs claims arise out of a defendant's activity in a
forum when the defendant's activity is "the genesis of [the] dispute." CFA Inst. v. Inst, of
Chartered Fin. Analysts of India, 551 F.3d 285, 295 (4th Cir. 2009). Thus, if "substantial
correspondence and collaboration between the parties, one of which is based in the forum state,

forms an important part of the claim," then a plaintiffs claims properly "arise from" a

defendant's activities in the forum. Tire Eng'g andDistrib., LLC v. Shandong Linglong Rubber
Co., 682 F.3d 292, 303 (4th Cir. 2012).

Applied to Germanwings, the CFA and Shandong standards yield the conclusion that
Germanwings' connections with Virginia were the catalyst for Plaintiffs' cause of action.

Certainly, if Germanwings had not expressly authorized United to sell tickets on its behalf, the

Selke decedents would nothave been able to book the "conjunction tickets" United provided that
included passage on Germanwings Flight 9525. (Dkt. No. 15-1 \ A.) Nor is the crash of that
15

flight so far removed from the sale of the tickets necessary for carriage as to sever the causal
nexus between the act of selling the tickets and Plaintiffs' cause of action. It was Germanwings

that engaged with Virginia when it authorized United to sell tickets for Flight 9525 to Virginia
citizens, and it was Germanwings' sale of those tickets through United that formed the "genesis

of [the] dispute" as contemplated in CFA. 551 F.3d at 295. Thus, Germanwings' activities in
Virginia proximately resulted in Plaintiffs' cause of action, satisfying the second prong of the
specificpersonaljurisdiction inquiry.
c. Personal Jurisdiction over Germanwings is Constitutionally Reasonable
The matter remains as to whether it is constitutionally reasonable for Virginia to exercise

personal jurisdiction over Germanwings. However, because Plaintiffs and their decedents are
both Virginia residents and the Commonwealth has a strong interest in adjudicating this dispute,
the Court finds that it is not constitutionally unreasonable to assert jurisdiction over
Germanwings.

Whether a state jurisdiction is an appropriate forum for the adjudication of a dispute
involving a particular defendant requires taking into account: (1) the burden on the defendant;

(2) the interests of the forum state; (3) the plaintiffs interest in obtaining relief; (4) the efficient
resolution of controversies as between states; and (5) the shared interests of the several states in

furthering fundamental substantive social policies. SeeLesnick v. Hollingsworth & Vose Co., 35
F.3d 939, 946 (4th Cir. 1994).

Defendants in their Motion to Dismiss do not raise any arguments as to there being a

forum better-suited for this dispute, nor do they reference any difficulty Germanwings might

have in litigating in Virginia. Plaintiffs, on the other hand, have a strong interest in obtaining
relief in this matter, which resulted in the loss of family members who were also Virginia
16

residents.

Plaintiffs are also residents of Virginia, which has considerable interest in the

resolution ofa dispute involving citizens ofthe Commonwealth and an airline doing business in

the forum. Germanwings, based in Germany, may face some inconveniences in litigating in
Virginia, but seeing as the airline's business centers around international travel, it can hardly be
considered a burden of such magnitude as to render the assertion of personal jurisdiction
unreasonable.

Because the Court finds that the Commonwealth of Virginia and Plaintiffs have great

interest in adjudicating this matter in this forum, and because Germanwings will not be unduly

burdened by litigation here, the Court's assertion ofpersonal jurisdiction is not constitutionally
unreasonable. Accordingly, the Court denies Germanwings' Motion to Dismiss pursuant to Rule
12(b)(2).
2. Personal Jurisdiction Over Lufthansa

The Court holds that Lufthansa is subject to the personal jurisdiction of the Court because

in addition to authorizing United to sell its tickets in Virginia, Lufthansa operates flights out of
Virginia and employs Virginia citizens. Additionally, as was the case with Germanwings, were

it not for Lufthansa's authorization ofUnited in the sale oftickets that placed Plaintiffs on Flight
9525, this action would not be before the court. It is also not constitutionally unreasonable for
this Court to assert jurisdiction because Lufthansa operates daily flights to and from Dulles

Airport in Virginia, demonstrating that the forum is neither wholly alien nor a problematic
setting for litigation.

As outlined above, the extension of Virginia's long-arm statute to the constitutionally

permissible limits essentially reduces the inquiry into whether the Court may assert personal

17

jurisdiction over Lufthansa pursuant to the three-prong test articulated in Shandong. 682 F.3d at
302.

a. Lufthansa'sPurposely Availed Itselfof Virginia's Jurisdiction

Lufthansa, like Germanwings, expressly authorized United to sell its tickets in Virginia,

purposely availing itself via proxy of the commercial opportunities of the forum. However,
unlike Germanwings, Lufthansa also maintains an office in Virginia and operates regularly
scheduled flights to and from Dulles International Airport. (Dkt. No. 1 at 5-6.)
Defendants in their motion do not dispute the existence of Lufthansa's interline ticketing

agreement with United, choosing instead to focus on the second prong of the personal
jurisdiction inquiry. Because the Court finds that expressly authorizing an agent located in a

forum to sell tickets to forum residents equates to the privilege ofconducting business there,4 the
Court recognizes that Lufthansa demonstrated purposeful availment of Virginia in the same
manner as Germanwings.

That activity, even absent the additional contacts evident in

Lufthansa's operations at Dulles airport, is sufficient to satisfy the purposeful availment

requirement of the personal jurisdiction test employed by the Fourth Circuit.
b. Plaintiffs' Cause ofActionArisesfrom Lufthansa's Contactswith Virginia
Just as Germanwings' contacts with Virginia were the genesis of the dispute now at hand,
so too was Lufthansa's sale of tickets through United an inseparable contribution to the

transaction that gave rise to Plaintiffs' cause of action.
As articulated above, the controlling interpretation of the phrase "arising from" in
Virginia's long-arm statute is best simplified as a question as to whether Lufthansa's contacts in
Virginia were the "genesis of the dispute." While simple "but for" causation is too tenuous a

4See Vergara, 390 F. Supp. at 1269; Mohler, 675 S.W.2d at 406-07.
18

connection, contacts that stand up to the rigors of a proximate cause standard are sufficient.
Chedid, 756 F. Supp. at 943.

Defendants argue that because Lufthansa was not involved in the operation of Flight
9525 and the resulting crash, Lufthansa's contacts with Virginia cannot satisfy the causal

requirement of Virginia's long-arm statute. But the Court has already clarified that the sale of

airline tickets to Plaintiffs' decedents was the genesis of the dispute, not solely the crash itself.
Lufthansa, along with United and Germanwings, was integral to the transaction and
transportation schedule that ultimately brought Plaintiffs' decedents to Dtisseldorf for their

carriage on Flight 9525.

It was this transaction, and not the crash of Flight 9525, that

encompasses the causal nexus representing the genesis of the dispute now before the Court.
Accordingly, because it was Lufthansa's contacts with Virginia that made that transaction

possible, Defendants cannot exclude Lufthansa from the jurisdiction of the Court by narrowing
the basis for jurisdiction to only the crash of Flight 9525.

Lufthansa purposely availed itself of the privilege of transacting business in Virginia
when it expressly authorized United to sell its tickets to Virginia citizens, resulting in its
involvement in a ticket transaction that gave rise to Plaintiffs' cause of action. As a result, the

Court holds thatLufthansa's contacts satisfy the second prong of personal jurisdiction analysis.
c. Personal Jurisdiction Over Lufthansa is Constitutionally Reasonable
The final question concerning the assertion of personal jurisdiction over Lufthansa is
whether it is constitutionally reasonable to do so.

As mentioned above, the Fourth Circuit considers several factors, including the burden on

the defendant, the interest of the forum state, the plaintiffs interest in obtaining relief, the

19

efficient resolution of possible controversies between states, and the shared interests of several
states. Lesnick, 35 F.3d at 946.

Applied to Lufthansa, the assertion of personal jurisdiction does not offend traditional
considerations of reasonableness because the Plaintiffs' interest in obtaining relief is great and

Lufthansa's consistent presence in the forum demonstrates that it would not be difficult for the

airline to litigate in Virginia. While it might be preferable for Lufthansa to litigate in its home
forum, the Court is not persuaded that such convenience in any way outweighs Plaintiffs'

significant interest in resolving this matter in Virginia or the Commonwealth's interest in the
case.

Because Lufthansa will not be unduly burdened by litigating in Virginia, the Court's

assertion ofpersonal jurisdiction does not offend considerations of constitutional reasonableness.
Accordingly, the Court denies Lufthansa's Motion to Dismiss pursuant to Rule 12(b)(2).
3. Summary Judgment for Lufthansa

Because the Court has personal jurisdiction over Lufthansa, the Court now turns to the

question ofwhether Summary Judgment is appropriate infavor ofLufthansa under Rule 56. The
Court holds that Lufthansa is entitled to judgment as a matter of law because the Montreal

Convention expressly preempts Plaintiffs' state law claims, and there is no genuine dispute of
material fact that Lufthansa is not liable under the controlling provisions of the treaty.

Summary judgment in favor of Lufthansa is appropriate because Plaintiffs fail to raise
allegations amounting to a genuine dispute of material fact regarding whether Lufthansa is liable
for the crash of Flight 9525 based on a theory of negligence under state law or based on the

liability articles of the Montreal Convention. Plainitffs' Complaint alleges two counts based on
these theories, giving rise to two issues which this Court must address. The first issue is whether
20

Plaintiffs may charge negligence under state law against Lufthansa in the alternative, or in
addition to, their claim for liability under the Montreal Convention. The second issue concerns
whether Lufthansa may be held liable under the relevant articles of the Montreal Convention. In

response to Defendants' Rule 56 motion, Plaintiffs bear the burden of demonstrating that a
genuine dispute exists. See Matsushita, 475 U.S. at 587.

a. The Montreal Convention Preempts State Law Claims

Plaintiffs allege in Count I of the Complaint that United failed to require its commoncarrier, codeshare, interline contractual partners, and fellow Star Alliance members Lufthansa

and Germanwings to maintain certain safety requirements. Specifically, Plaintiffs contend that

United's failure to ensure Germanwings had in place a safety policy preventing a single crew
member from taking sole possession of the cockpit directly and proximately caused the crash of

Germanwings Flight 9525, which resulted in the deaths of the Selke decedents. (Dkt. No. 1 |
78-81; see also Dkt. No. 15 at 5.) Further, Plaintiffs contend that "[defendants Germanwings,
Lufthansa, and Eurowings represented or held out United to [decedents] as their agent and
induced reliance by [decedents] on the appearance of agency." (Dkt. No. 11 80.) Based on the

existence of agency, partnership, and/or joint venture relationships with Germanwings, Plaintiffs
allege that regardless of whether United sold tickets for Germanwings under a codeshare or
interline agreement, all Defendants, including Lufthansa, are liable for the deaths of the Selke

decedents. (Id. ^ 81, 94; see also Dkt. No. 36 at 25.)

The Court finds that Plaintiffs' state law negligence claims cannot stand because the

Montreal Convention provides the exclusive remedy for claims expressly contemplated in its
governing articles. The District Court for the Southern District of New York directly addressed
this issue when it held that when state law claims mirror the liability provisions set forth in the
21

Montreal Convention, those state law claims are preempted. Paradis v. Ghana Airways, Ltd.,
348 F. Supp. 2d 106, 111 (S.D.N.Y. 2004), aff'd, 194 F. App'x 5 (2d Cir. 2006). The District
Court for the Southern District ofNew York has also specifically recognized state law claims of

negligence, breach of warranty, and negligent misrepresentation as substantive charges that are

replicated in the Montreal Convention. Shirobokova v. CSA Czech Airlines, Inc., 316 F. Supp.
2d 439, 441 (S.D.N.Y. 2005). Furthermore, this Court very recently recognized and affirmed the
same basic holding: additional claims brought under liability theories provided for under the

Montreal Convention are expressly preempted. Asiedu-Ofei v. South African Airlines, 2016 WL

8229875, at *2 (E.D. Va. June 17, 2016). This Court must also follow binding precedent from

the Supreme Court of the United States, which in El Al Israel Airlines, Ltd. v. Tseng spoke
directly to this issue, stating that the "Convention's preemptive effect is clear: The treaty
precludes passengers from bringing actions under local law when they cannot establish air carrier

liability under the Treaty."5 525 U.S. 155, 175 (1999).

Plaintiffs argue that their state law negligence claims are not preempted by the Montreal

Convention because Lufthansa was in an "agency, partnership, and/or joint venture relationship"

with Germanwings, which contemplates an alternate basis for liability that is not precluded by
the treaty. (Dkt. No. 45 at 22.) In support, Plaintiffs cite to a Southern District of Florida case

where plaintiffs were permitted to pursue state law doctrines of alter ego and joint venture
While the Court notes that Tseng involved the Warsaw Convention, the predecessor to the
Montreal Convention, persuasive authority makes clear that decisions involving the Warsaw
Convention should be recognized inliability matters involving the successor Montreal

Convention treaty. See Eli Lilly &Co. v. Air Express Int'l USA, Inc., 615 F.3d 1305,1308 (11th
Cir. 2010) (acknowledging that the Montreal Convention replaced the Warsaw Convention); In
re Nigeria Charter Flights Contract Litig., 520 F. Supp. 2d 447, 453 (E.D.N.Y. 2008) ("Because
the two conventions' preemptive language is substantially similar, they have 'substantially the
same preemptive effect.'") (citing Paradis v. Ghana Airways, Ltd., 348 F. Supp. 2d 106 111
(S.D.N.Y. 2004)).
22

liability against third parties despite the applicability ofthe Montreal Convention to their cause

of action. In re Air Crash Near Rio Grande Puerto Rico on Dec. 3, 2008, No. 10-CV-81551,
2015 WL 328219, at *4 (S.D. Fla. Jan. 23, 2015). However, that case is easily distinguishable

because the plaintiffs in Rio Grande brought alternate liability claims against parties not
involved in the events that gave rise to the crash. The District Court for the Southern District of

Florida even clarified that the state law claims were not preempted only because they involved
parties that "were not direct participants in the event or transaction." Id. Conversely, in this case
Lufthansa was a direct participant in the transaction that gave rise to Plaintiffs' claim, thus

rendering the exception noted in Rio Grande inapplicable for the purposes of liability.
Lufthansa's role in the ticket transaction with the Selke decedents and its ensuing participation in
the chain of flights that brought decedents to Germany place it firmly within the ambit of the

Montreal Convention. Specifically, because the Montreal Convention explicitly covers carrier
liability in Articles 1(3), 36, 39, and 40, Plaintiffs cannot bring state law claims for negligence or

agency, partnership, or joint-partnership liability.6 Thus, Plaintiffs' alternate theories for liability
based on state law claims are expressly preempted.
b. Lufthansa Cannotbe Held Liable Under the Montreal Convention

The Court grants Lufthansa judgment as a matter of law because Plaintiffs do not raise a

genuine dispute as to whether Lufthansa qualifies for liability under the Montreal Convention.

This issue turns on whether Lufthansa qualifies as a "successive carrier" or a "contracting
carrier" under Articles 36 and 39 of the Montreal Convention.

See Montreal Convention, supra, note 2, at *30 (defining carriage by several successive carriers
as one undivided operation inArticle 1(3)); Id. at *40 (limiting liability ofsuccessive carriers to
"case[s] where, by express agreement, the first carrier has assumed liability for the whole

journey" in Article 36); Id. (defining "contracting carrier" and "actual carrier" in Article 39); Id.
at *41 (detailing liability ofcontracting and actual carriers in Article 40).
23

Plaintiffs allege in Count II ofthe Complaint that Lufthansa is liable for the deaths of the

Selke decedents because the crash of Germanwings Flight 9525 was an "accident" within the

meaning of Article 17(1) of the Convention. (Dkt. No. 1 K85.) Plaintiffs also allege that

because Lufthansa maintained acontractual ticketing relationship with Germanwings and wholly
owned Germanwings at the time ofthe crash, the Montreal Convention assigns vicarious liability
pursuant to Articles 39,40, and 41. (Id. 191; see also Dkt. No. 36 at 27.)

However, the Montreal Convention in Article 36 excludes from liability air carriers that

contribute independent flights as separate legs of a larger travel plan. Montreal Convention,
1999 WL 33292734, at *40. Under such circumstances, those carriers are deemed successive

carriers and held liable for an accident on aseparate leg ofthe travel plan only if "by express
agreement, the first carrier assumed liability for the whole journey." Id. Additionally, Article 39

provides for liability ofmultiple carriers when there exists between them an express agreement

that the "actual carrier," the carrier engaged in actual transport, acted by "virtue ofauthority" of
the "contracting carrier," the carrier acting as the agent for the entire transaction. Id.

Lufthansa fits none ofthe parameters that confer liability. Lufthansa, although it sold its
ticket through United to the Selke decedents, was not the agent for the entire transaction. That

was United's role. Thus, it cannot qualify as the contracting carrier. Similarly, because

Lufthansa did not operate Flight 9525, it cannot qualify as the actual carrier for the purposes of
liability. There is therefore no avenue for Montreal Convention liability under Article 39. The

remaining question concerns whether Article 36 confers any liability based on Lufthansa's
participation in the overall travel plan.

Article 36(2) of the Montreal Convention stipulates that inthe case of successive carriers

only the carrier that performed the flight on which the accident occurred and the first carrier,
24

subject to certain conditions, can be held liable. Id. Thus, if Lufthansa qualifies as a successive
carrier, it is exempt from Montreal Convention liability because it was neither the actual carrier
nor the first carrier in the travel schedule.

Plaintiffs appear to argue that Lufthansa's whole ownership of Germanwings subjects
Lufthansa to liability for the crash of Flight 9525. (Dkt. No. 1 K93.) However, aside from a

cursory reference to Article 17(1) in setting forth the scope ofthe treaty, Plaintiffs do not identify
in the Complaint any specific provisions ofthe Montreal Convention that apply to Lufthansa, or
in what manner they confer liability. Nor do Plaintiffs' arguments in opposition to Defendants'

Motions contain any mention of how the Montreal Convention applies to Lufthansa. Instead,

Plaintiffs seek to reinforce state law claims involving a partnership or joint venture relationship
between the Defendants. But as the Court has already established, the Montreal Convention is

the sole remedy for the Plaintiffs. Hence, because Plaintiffs set forth no theory as to how

allegations of a partnership or joint venture relationship tie into Montreal Convention liability,
the Court finds unavailing Plaintiffs' arguments concerning the existence of such a business
relationship.

Rather, the Court finds decisive on this issue persuasive authority from the Eastern

District ofNew York concerning the relevancy ofinterline ticketing agreements to the liability
provisions ofthe Montreal Convention. In Best v. BWIA West Indies Airways Ltd., the District

Court for the Eastern District ofNew York held that the Montreal Convention does not place
liability on sellers of interline tickets because they fall within the definition of successive carrier

arrangements, which are expressly excluded from the Convention's liability scheme. 581 F.

Supp. 2d 359, 364 (E.D.N.Y. 2008); see also Kapar v. Kuwait Airways Corp., 845 F.2d 1100,

1103 (D.C. Cir. 1988) (holding that the drafters ofthe Convention "precluded the possibility that
25

the actual carrier for one leg of a scheduled multi-leg trip could be held liable for injuries
suffered on another airline during a different legof thetrip."). Thus, because Lufthansa provided
air carriage subject to an interline agreement between itself and United, the first carrier, and
because there is no evidence Lufthansa directly authorized Germanwings Flight 9525, it cannot
be held liable under the Montreal Convention.

As a result, because there is no dispute of fact that would alter the result of this case at

trial, the Court grants Lufthansa's Motion for Summary Judgment.
4. Personal Jurisdiction Over Eurowings

The Court does not have personal jurisdiction over Eurowings because Eurowings does
not have any physical contacts with Virginia, and although the airline did maintain a contractual
agreement with United, the ticket transaction that gave rise to Plaintiffs' cause of action did not

involve Eurowings. Additionally, alternative means of asserting jurisdiction over Eurowings
through Federal Rule of Civil Procedure 4(k)(2) and Article 33 of the Montreal Convention do

not apply because Plaintiffs do not allege facts sufficient to make a prima facie case for
jurisdiction.

First, Plaintiffs allege that Eurowings is subject to the Court's jurisdiction because its
contractual ticketing agreements with United hold Eurowings accountable for United's ticket

sales in Virginia. (Dkt. No. 4 K 10.) However, while an agent relationship is sufficient to reflect
purposeful availment by both Germanwings and Lufthansa, the transaction cannot reflect

purposeful availment by Eurowings because no Eurowings tickets were sold as part of the
transaction. The conjunction ticket United sold to the Selke decedents shows that only United,

Germanwings, and Lufthansa were contracted to provide carriage.

(Dkt. No. 15-1 ^| 4.)

Similarly, it was only United, Germanwings, and Lufthansa who, in exercising their bilateral
26

interline contracts, purposely availed themselves of conducting business in Virginia. Eurowings,
by comparison, had no role whatsoever in the transaction. Furthermore, absent its bilateral

interline and codeshare agreements with United—neither of which were implicated in the

transaction giving rise to Plaintiffs' cause of action—Eurowings has no contacts with Virginia
that could satisfy the constitutional requirements of specific personal jurisdiction. Thus, the

Court cannot assert personal jurisdiction over Eurowings through Virginia's long-arm statute.

Plaintiffs in the alternative urge that personal jurisdiction over Eurowings is properunder
Federal Rule of Civil Procedure 4(k)(2), which provides:

For a claim that arises under federal law, serving a summons or filing a waiver of
service establishes personal jurisdiction over a defendant if:

(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.

FED.R.Civ.P.4(k)(2).

Plaintiffs argue that Rule 4(k)(2) ensnares Eurowings because their claim arises under the

Montreal Convention, a federal treaty; Eurowings is not subject to any state's courts of general
jurisdiction; and the Court's assertion of personal jurisdiction over Eurowings is consistent with
the Constitution. (Dkt. No. 1 U 7.) While the Court acknowledges that Plaintiffs' claim arises

under federal law, Plaintiffs' argument as to the applicability of Rule 4(k)(2) is unavailing
because Plaintiffs fail to demonstrate that Eurowings is not subject to personal jurisdiction in the
courts of any other state.

In the Fourth Circuit, Plaintiffs are permitted to pursue alternate theories of personal
jurisdiction, but Rule 4(k)(2) requires some attempt to demonstrate that the defendant is not

subject to personal jurisdiction in any state. Base Metal Trading, Ltd. v. OJSC "Novokuznetsky
Aluminum Factory", 283 F.3d 208, 215 (4th Cir. 2002); see also United States v. Swiss Am.
27

Bank, Ltd., 191 F.3d 30, 41 (1st Cir. 1999) ("The plaintiff, moreover, must certify that, based on
the information that is readily available to the plaintiff and his counsel, the defendant is not

subject to suit in the courts of general jurisdiction of any state."). At no point in the Complaint

or in Plaintiffs' supporting memoranda do Plaintiffs make any such attempt.7 To the contrary,
Plaintiffs acknowledge that Defendant Eurowings "engages in continuous and systematic

business in this District as well as many other United States districts . . . ." (Dkt. No. 1 K21.)
Plaintiffs also agree that Eurowings operates flights to and from at least Nevada, Florida, and

Washington.

(Id. f 23.) This admission, which specifies alternative fora where personal

jurisdiction over Defendant Eurowings conceivably exists, fatally undermines Plaintiffs'

argument for the assertion of Rule 4(k)(2) personal jurisdiction under the standards required by
the Fourth Circuit.

Finally, Plaintiffs urge that the Montreal Convention itself confers personal jurisdiction
pursuant to specific parameters of Article 33 of the treaty. (Id. H 6.) Both Plaintiffs and

Defendants argue at length over whether Article33 speaks to personal jurisdiction, but the Court
Plaintiffs instead cite to Silver Ring Splint Co. v. Digisplint, Inc., arguing that the burden is on
Defendants to "show either that one or more specific states exist in which [Eurowings] would be
subjectto suit or that its contacts with the United States are constitutionally insufficient." 508 F.
Supp. 2d 508, 516 (W.D. Va. 2007). However, the District Court for the Western District of

Virginia in Silver Ring clarified thatthe burden of proofremains on the plaintiff, not the
defendant, in all circumstances whenthe plaintiff invokes Rule4(k)(2). Id. ("Although there is
room under Rule 4(k)(2) for shifting the burden of production, let there be no mistake: 'when a
defendant moves to dismiss for lack of personal jurisdiction, the plaintiffbears the burden of
proving to the district court judge the existence ofjurisdiction overthe defendant by a
preponderance ofthe evidence.'") (quoting New Wellington Fin. Corp. v. Flagship Resort Dev.
Corp., 416 F.3d 290,294 (4th Cir. 2005)). Because Plaintiffs have not made any arguments as to
Eurowings lacking contacts in anyother state, Plaintiffs have not established aprimafacie case
for the application of Rule 4(k)(2) per the requirements of the Fourth Circuit. See Saudi v.
Northrop Grumman Corp., All F.3d 271,275 (4th Cir. 2005) ("In order to obtain jurisdiction
under Rule 4(k)(2) ... three requirements must be met. First, the suit must arise under federal

law. Second, the defendant mustnotbe subject to personal jurisdiction in any state. Third, the
defendant must have contacts with the United States consistent with the Constitution and laws of

the United States.") (quoting Fed. R. Civ. P. 4(k)(2)).
28

need not reach a decision on the matter because the provision in question does not apply to
Eurowings.

Article 33 of the Montreal Convention, the article in dispute, reads as follows:
Article 33 - Jurisdiction

1. An action for damages must be brought, at the option of the plaintiff, in the
territory of one of the States Parties, either before the court of the domicile of the

carrier or of its principal place of business, or where it has a place of business
through which the contract has been made or before the court at the place of
destination.

2. In respect of damage resulting from the death or injury of a passenger, an
action may be brought before one of the courts mentioned in paragraph 1 of this
Article, or 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.
3. For the purposes of paragraph 2,

(a) "commercial agreement" means an agreement, other than an agency
agreement, made between carriers and relating to the provision of their joint
services for carriage of passengers by air;

(b) "principal and permanent residence" means the one fixed and permanent
abode of the passenger at the time of the accident. The nationality of the
passenger shall not be the determining factor in this regard.
4. Questions of procedure shall be governed by the law of the court seised of the
case.

Montreal Convention, 1999 WL 33292734, at *39.

Even assuming the Montreal Convention provides an alternative means of asserting
personal jurisdiction, paragraphs 2 and 3 of Article 33 are fatal to Plaintiffs' arguments for its

application. While the Selke decedents had their principal and permanent residences in Virginia

at the time of the Flight 9525 crash, paragraph 2 requires that the carrier assigned liability
operate services to or from that forum. As acknowledged by both Plaintiffs and Defendants,

Eurowings does not operate flights in Virginia. (Dkt. No. 45 at7.). Eurowings does not fall into

the exception either, for while Article 33 contemplates jurisdiction over a carrier that operates
29

"on another carrier's aircraft pursuant to a commercial agreement," paragraph 3(a) clarifies that
an agency agreement is exempt from the meaning of "commercial agreement." Thus, even

assuming United's sale of the tickets implicated Eurowings for the purposes of personal
jurisdiction, the mere existence of an agency agreement would not satisfy the requirements of
Article 33.

Accordingly, because the Court finds that Plaintiffs do not make a prima facie case for
personal jurisdiction over Eurowings, the Court grants Eurowings' Motion to Dismiss pursuant
to Rule 12(b)(2).

Because the Court finds it cannot assert personal jurisdiction over Eurowings, the Court

need not address the merits of Eurowings' Rule 56 Motion for Summary Judgment.
Consequently, the Court holds that Plaintiffs' claims against defendant Eurowings are
DISMISSED.

III. CONCLUSION

The Court DENIES Germanwings' Rule 12(b)(2) Motion to Dismiss because

Germanwings expressly authorized United to act as its agent in the sale of tickets in Virginia,
thus availing itself of the privilege of conducting business in the forum.

The Court DENIES Lufthansa's Rule 12(b)(2) Motion to Dismiss because in addition to

selling its tickets through United to Virginia residents, Lufthansa employs Virginia citizens and
operates daily flights from Dulles International Airport, demonstrating its considerable contacts
with the Commonwealth.

However, the Court GRANTS Lufthansa's Rule 56 Motion for

Summary Judgment because Lufthansa's tickets were sold by United as part of an interline
agreement, which identifies Lufthansa as a successive carrier free from liability under the
controlling provisions of the Montreal Convention.
30

Finally, the Court GRANTS Eurowings' Rule 12(b)(2) Motion to Dismiss because

Eurowings does not have sufficient minimum contacts with Virginia and is not subject to
personaljurisdiction through other proceduralmeans. Accordingly,
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss (Dkt. No. 42) is DENIED
IN PART as to Defendants Germanwings and Lufthansa and GRANTED IN PART as to
Defendant Eurowings. Thus, all claims against Defendant Eurowings GmbH are DISMISSED;
IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment (Dkt. No.

42) is GRANTED as to Defendant Lufthansa. Thus, all claims against Defendant Deutsche
Lufthansa AG are DISMISSED.
IT IS SO ORDERED.

ENTERED this 20th day of July, 2017.
Alexandria, Virginia
7/20/17

-

,

herald Bruce Lee

l3l

United States District Judge

31