Selke et al v. United Airlines et al

Filing 52

MEMORANDUM OPINION AND ORDER - United Airlines, Inc.'s Motion to Dismiss 14 is DENIED; IT IS FURTHER ORDERED that Defendant United Airlines, Inc's Motion for Summary Judgment 14 is GRANTED. Thus, all claims against Defendant United Airlines, Inc. are DISMISSED. Signed by District Judge Gerald Bruce Lee on 07/20/2017. (dvanm, )

IN THE UNITED STATES DISTRICT COURT FOR THE
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 Defendant United Airlines, Inc.'s ("Defendant" or

"United") Motion to Dismiss and/or for Summary Judgment Pursuant to Federal Rules of Civil
Procedure 12(b)(2) and 56. (Dkt. No. 14.) This case concerns a suit for money damages brought

by Plaintiffs Raymond C. Selke and Trevor J. Selke ("Plaintiffs") on two claims against
Defendant for liability in the crash of Germanwings Flight 9525, which resulted in the death of
Plaintiffs' family members, Yvonne C. Selke and Emily E. Selke. First, Plaintiffs allege that

Defendant owes money damages under the liability parameters of the Convention for the
Unification of Certain Rules for Internationa! Carriage by Air ("Montreal Convention" or

"Convention"),1 an international air carriage treaty ratified by the United States. Second,
Plaintiffs in the alternative charge that Defendant is liable for the deaths of Yvonne C. Selke and

Emily E. Selke ("Selke decedents") based on a claim of negligence under Virginia law.
There are two issues before the Court. The first issue is whether, under Federal Rule of

Civil Procedure 12(b)(2), the Court should grant Defendant's Motion to Dismiss for lack of

personal jurisdiction, where specific personal jurisdiction over a nonresident defendant is

1Conventionfor the Unification ofCertain Rules ofInternational Carriage by Air, ICAO Doc.
9740, reprintedin Treaty Doc. No. 106-45,1999 WL 33292734 (2000) [hereinafter Montreal
Convention].

permitted if the exercise of jurisdiction satisfies the constitutional requirements under the Due
Process Clause of the Constitution. The Court DENIES United's Motion to Dismiss because

Plaintiffs have made aprima facie showing that the Court has personal jurisdiction over United.

Specifically, the Court has personal jurisdiction over United because in registering for business
in Virginia, maintaining an agent for service of process in Virginia, and employing Virginia
residents, United purposefully availed itselfof the privilege of conducting activities in the forum.
Additionally, because United itself acknowledged that it has previously brought no fewer than
fourteen lawsuits in Virginia, the Court's exercise of personal jurisdiction does not offend

traditional notions of fair play and substantial justice asrequired by the Due Process Clause.
The second issue is whether, under Federal Rule of Civil Procedure 56, the Court should

grant Defendant's Motion for Summary Judgment, where Plaintiffs advance a theory of liability
under the Montreal Convention and, in the alternative, negligence under Virginia law. The Court

GRANTS United's Motion for Summary Judgment because even when viewing all alleged facts

in a lightmost favorable to the Plaintiffs, United demonstrates thatthere is no genuine dispute of
material fact for trial. Further, no theory of liability supports judgment in favor of the Plaintiffs
under the Montreal Convention, which expressly preempts any similar claims under the common
law.
I. BACKGROUND

This federal question action involves the surviving members of the Selke family alleging
that United is liable for selling Yvonne C. Selke and Emily E. Selke airline tickets in Virginia
that proximately resulted in their deaths. The Court has subject matter jurisdiction because the
Plaintiffs submitted a claim for damages under the Montreal Convention, a treaty ratified by the
United States Senate. {See Dkt. No. 1 ^ 2.) In the alternative, the Court has authority to hear the
2

case because the parties have diversity of citizenship, and the amount in question exceeds
$75,000. {See Id. <h 8.)

Plaintiff Raymond C. Selke is the surviving husband of Yvonne C. Selke and father of
decedent Emily E. Selke, as well as administrator of both decedents' estates. {Id. ^ 13.) Trevor
J. Selke is the surviving son of Yvonne C. Selke and brother of Emily E. Selke. (Id. ffi| 13, 14.)
Plaintiffs filed a two-count Complaint alleging state law negligence (Count I) and Montreal

Convention liability (Count II). (Id. ffi[ 70, 83.) Plaintiffs charge both Counts against Defendant
United Airlines and three other defendants: Germanwings GmbH ("Germanwings"); Deutsche

Lufthansa AG ("Lufthansa"); and Eurowings GmbH ("Eurowings"). (Id. ^ 3.)

Plaintiffs allege that United is a Delaware corporation with its principal place of business
in Illinois, and that United purposefully availed itselfof thejurisdiction of the Eastern District of

Virginia. (Id. K 15.) Plaintiffs contend that in or around February 2015, United sold airline
tickets to the decedents through United's online booking system. (Id. ^ 40.) Plaintiffs charge

that through United's contractual agreements and Star Alliance membership, United provided
decedents with round-trip air transportation from Washington Dulles airport in Virginia to
Manchester, England. (Id. ffl[ 35, 41.) Plaintiffs argue that the incentives associated with

United's loyalty membership program, United Mileage Plus, induced decedent Yvonne C. Selke
to book through United additional flights operated by defendants Germanwings and Lufthansa to
maximize membership rewards points. (Id. ^ 42.)
The Selke decedents were scheduled to travel March 20, 2015 from Washington Dulles

Airport in Virginia to Munich, Germany on United, and then from Munich to Barcelona, Spain
on Lufthansa. (Id. ^ 41.) On March 24, 2015, the Selke decedents were scheduled to travel from
Barcelona to Diisseldorf, Germany on Germanwings, and then from Diisseldorf to Manchester,
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England on Germanwings. Id. Finally, on March 29, 2015, the Selke decedents were set to
return home from Manchester to Washington Dulles via carriage provided by United. Id.

Tragically, on the leg between Barcelona and Diisseldorf on Germanwings Flight No.

9525 ("Flight 9525"), co-pilot Andreas Lubitz locked himself in the cockpit and caused the plane
to crash into the French Alps. (Id. K1.) All 6 crew members and 144 passengers, including the
Selkes, were killed. Id.

Plaintiffs allege that by not maintaining adequate safety measures requiring two crew

members present in the cockpit at all times, Germanwings, Eurowings, Lufthansa, and United
negligently controlled Flight 9525. (Id. 146.) Plaintiffs allege that as a result of this negligence,
Defendants proximately caused Flight 9525 to crash, resulting in the deathof the Selkes. Id.
II. DISCUSSION

A. Standards of Review

L 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 defendant is subject to specific personal jurisdiction requires a
two-step analysis. First, a court must conclude that jurisdiction is authorized by the state's long4

arm statute. Mitrano v. Howes, 311 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. 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 permissible under the due process clause, the

statutory inquiry merges with the constitutional inquiry." Consulting Eng'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; JKC Holding 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. 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." Anderson, All U.S. at 248; Hooven-Lewis v.
Caldera, 249 F.3d 259, 265 (4th Cir. 2001).

Likewise, a "genuine" issue concerning a

"material" fact exists when the evidence is sufficient to allow a reasonable jury to return a

verdict in the nonmoving party's favor. Anderson, All U.S. at 248. Additionally, Federal Rule
of Civil Procedure 56(e) requires that the nonmoving 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,
477 U.S. 317,324 (1986).
B. Analysis

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

purposefully availed itself of the jurisdiction of Virginia, and in exercising personal jurisdiction
the Court does not offend traditional notions of fair play and substantial justice under the Due
Process Clause.

The Court GRANTS Defendant's Rule 56 Motion for Summary Judgment

because the Montreal Convention expressly preempts any claim for state law negligence, and no
set of facts exist that result in liability for Defendant under the controlling articles of the treaty.

Accordingly, the Court DISMISSES all claims against United because there is no genuine
dispute of material fact as to United's role in the crash, and United is entitled to judgment as a
matter of law.

I. PersonalJurisdiction Under Rule 12(b)(2)

The Court has personal jurisdiction over United because in registering for business in
Virginia, maintaining an agent for service of process in Virginia, and employing Virginia
6

residents, United purposefully availed itselfof the privilege of conducting activities in the forum.

Additionally, because United itselfacknowledged that it has previously brought no fewer than
fourteen lawsuits in Virginia, the Court's exercise of personal jurisdiction does not offend
traditional notions of fair play and substantial justice as required by the Due Process Clause.

In analyzing a challenge to personal jurisdiction, the Court first considers whether

Virginia's long-arm statute authorizes personal jurisdiction over the defendants, and, second,
addresses whether the exercise of jurisdiction comports with the Due Process Clause. Because

Virginia's jurisdiction has been interpreted as applying as broadly as permitted by due process,
review largely concerns a single inquiry into 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).

Because of the singular nature of the inquiry, the sole question before the Court is
whether the Court's assertion of personal jurisdiction over United comports with the protections
of due process.

For a court's assertion of personal jurisdiction to withstand due process scrutiny, 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. Denckla, 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'
7

contacts.").

In the Fourth Circuit, courts consider three factors when analyzing personal

jurisdiction over a 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' claims arise 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 Carefirst ofMaryland, Inc.
v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 397 (4th Cir. 2003). Each prong must be
satisfied. ConsultingEng'rs, 561 F.3d at 278-79.

Plaintiffs also argue that the Court has personal jurisdiction over United pursuant to
Article 33 of the Montreal Convention. (Dkt. No. 36 at 14.) Because the Court can assert

personal jurisdiction over United absent the application of the Montreal Convention, the Court
will not address whether Article 33 applies.

a. United Purposely AvailedItselfof Virginia's Jurisdiction
United's activities in Virginia demonstrate purposeful availment because the airline

maintains a physical presence in the forum and enjoys the protection of Virginia courts in its
business dealings.

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. EllicottMack 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)
8

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.

United maintained significant and long-term business activities in Virginia, maintained
an office in Virginia, and, by the parameters of its contract of carriage with the decedents, agreed

to perform certain duties within the forum state, thus availing itself of Virginia's jurisdiction.
United acknowledges that it operates flights to five destinations within the Commonwealth of
Virginia, employing 5,700 individuals in the forum to facilitate these business activities. (Dkt.
No. 15-1 f 34.) Likewise, United does not dispute that it is registered to conduct business in the
Commonwealth. (Id. %
15.) Accordingly, by employing Virginia citizens, maintaining offices at

five separate locations within the forum, and registering to conduct business, United can hardly
be surprised that it is being haled into Virginia court. Also persuasive is that United has

previously availed itself of the utility of Virginia's courts on no less than fourteen separate
occasions, suggesting United is not only subject to Virginia jursidiction, but also more than
passinglyfamiliar with the Commonwealth's court system. (Dkt. No. 45 17.)
Furthermore, the parameters of United's own contract with the decedents stipulate that,

upon issuance of a ticket, United consented to "conditions of carriage upon which [United]
agree[d] to provide Domestic and International Carriage." (Dkt. No. 15-1 at 24.) Pursuant to its
contract of carriage, United was bound to provide air transportation for decedents from an airport
in Virginia to their destination in Europe. Thus, even absent United's other numerous and
substantial connections to Virginia, United's express agreement that certain contractual duties be

performed inthe forum is sufficient to demonstrate purposeful availment. See Peanut Corp., 696
F.2d at 314 (holding that a defendant's agreement that a substantial performance of contractual
duties take place in the forum state is dispositive on whether defendant purposefully availed
itself of that forum).

Because Unitedengaged in long-term business activities, specified Virginia as a forum in

which to perform contractual duties, and took advantage of the protection of Virginia's judicial

system, the Court finds thatUnited purposely availed itself of the Commonwealth's jurisdiction.
b. Plaintiffs' Cause ofAction Arisesfrom United's Contacts with Virginia

Although United purposefully availed itself of Virginia's jurisdiction, there is still a

question of whether Plaintiffs' claims arise out of activities directed at the forum. Defendant
correctly notes the relevancy of Section 8.01-328.1 of Virginia's long-arm statute, which is
controlling in this matter. The General Assembly of Virginia, in an amendment approved March
13,2017, established that a court may exercise 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;
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).
United challenges personal jurisdiction based on the theory that Plaintiffs' cause of action
does not "arise from" any actions of United that fall into the above subsections. As a threshold
matter, the Court notes that the reference to "arising from" in Section 8.01-328.1 requires that

there be a causal link between the acts relied on for personal jurisdiction and the claims detailed
in the complaint. Chedidv. Boardwalk Regency Corp., 756 F. Supp. 941, 943 (E.D. Va. 1991);
10

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, this causation element
requires more than bare "but for" causation; instead, the connection between the forum and the
cause of action must rise to the level of legal or proximate causation. Chedid, 756 F. Supp. at
943.

United argues that Plaintiffs' claims do not arise from United's sale of the tickets that

provided decedents with international air carriage. United also cites to OBB Personenverkehr
AG v. Sachs, where 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. 196 S. Ct. 390, 396 (2015). This

argument, and the analogical reasoning on which it relies, is unpersuasive. First, the Supreme
Court's holding in Sachs involved the interpretation of "based upon" in the commercial activity

exception for sovereign immunity under the FSIA. Id. at 392. No part of the Court's holding
relates to the causation standard required by Virginia's long-arm statute or the interpretation of

"arising from" in Va. Stat. Ann. § 8.01-328.1. It is therefore not dispositive on the issueat hand.
Also, the Supreme Court's interpretation of "based upon" under the FSIA has not been accepted
as controlling over all claims under the FSIA. See Doe v. Fed. Democratic Republic ofEtk, 851
F.3d 7, 12 (D.C. Cir. 2017) (distinguishing Sachs by noting that the Court's holding interpreted

only the commercial activity exception of the FSIA, not the noncommercial-tort exception).
Because Sachs does not articulate the causation standard applying to all exceptions to the FSIA,
the Court does not find it relevant to the interpretation of Virginia's long-arm statute.
To the contrary, the standard for causation that controls in this matter is better interpreted

as an inquiry into whether United's activity in the forum state directly precipitated Plaintiffs'
11

claims. In the Fourth Circuit, courts acknowledge that a plaintiffs claims arise out of a

defendant's activity in a forum where 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 & Distrib., LLC v. Shandong Linglong Rubber
Co., 682 F.3d 292, 303 (4th Cir. 2012).

Applied here, United's activities in Virginia proximately resulted in Plaintiffs' cause of
action. United, by its own admission, sold decedents tickets not only for the flight that carried
them to Europe, but also for air carriage on Lufthansa and Germanwings for the additional legs
between European destinations. (Dkt. No. 15 at 3.) Indeed, were it not for United's role as
intermediary and the contractual relationships United maintained with both Lufthansa and
Germanwings, decedents would not have been able to book passage using the "conjunction

tickets" provided by United. (Dkt. No. 15-1 ^f 4.) Furthermore, the crash of Germanwings Flight
9525, while not the direct result of United's sale of the tickets that placed the decedents on that

flight, was certainly the genesis of the dispute now before the Court.
Because the Court finds United's argument as to Va. Code Ann. Section 8.01-

328.1(A)(1) unavailing, there is no legitimate challenge to the Court's assertion of personal

jurisdiction over United. Similarly, because the Court finds that Plaintiffs' cause of action arises
from United transacting business in the Commonwealth of Virginia, there is no need to address
Defendant's arguments as to the applicability of Va. Code Ann. Sections 8.01-328.1(A)(2) or
(A)(3).

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c. Personal Jurisdiction Over United is Constitutionally Reasonable

A question remains as to whether it is constitutionally reasonable for Virginia to assert
personal jurisdiction over United. However, this inquiry is easily resolved because of United's
previous dealings with Virginia courts.

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. SeeLesnickv. Hollingsworth & Vose Co., 35
F.3d 939, 946 (4th Cir. 1994).

United's litigation history in Virginia courts demonstrates that there is no legitimate
burden on United in defending itself in the Commonwealth. Likewise, because the Plaintiffs in
this action are both citizens of Virginia, the Commonwealth has an interest in adjudicating this

matter. Because neither party has demonstrated that this action might be better suited to an
alternative forum, any deference to the interests of other states need not be considered.
In conclusion, because United has considerable experience with the Virginia judicial

system, the Court's assertion of personal jurisdiction does not run afoul of constitutional
reasonableness requirements.

Accordingly, the Court denies United's Motion to Dismiss

pursuant to Rule 12(b)(2).

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2. Summary Judgment Under Rule 56

The Court holds that United is entitled to judgment as a matter of law because the

Montreal Convention2 is the exclusive avenue through which Plaintiffs may assert a claim for

relief, and there exists no genuine dispute of material fact that United sold tickets to the Selke

decedents in a manner that does not qualify for liability under Articles 173 and 394 of the
Montreal Convention.

The Court must grant United's motion for summary judgment because Plaintiffs fail to

allege that there is a material fact in dispute regarding whether they may recover from United
based on a theory of state law negligence, or, in the alternative, based on the liability provisions
of the Montreal Convention.

There are therefore two issues at hand.

The first is whether

Plaintiffs may pursue a claim against United for state law negligence concurrently or, in the
alternative to, a claim for liability under the Montreal Convention. The second issue concerns

whether United may be held liable pursuant to the relevant articles of the Montreal Convention.

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

2TheMontreal Convention is an international treaty, signed by boththe United States and
Germany, that governs liability for international air carriage. (Dkt. No. 1 \ 2.) Entered into
force in the United States on November 4, 2003, the Montreal Convention updated and replaced
the Warsaw Convention, a uniform system of liability for "flights between the United States and

Foreign States also party to the Conventionand for international flights having their origin and
destination in the United States (round trips)." Montreal Convention, supra, note 1, at *6.

3Id. at *33 (articulating scope of Montreal Convention liability).
4Id. at *40 (differentiating between liability of airline "mak[ing] a contract of carriage" and an
airline "performpng], by virtue of authority from the contracting carrier, the whole or part of the
carriage").
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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 inthe deaths ofthe Selke decedents. (Dkt. No. 117881; 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. 1 ^ 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, United is liable for the deaths of the Selke decedents. (Id. fl 81, 94; see
also Dkt. No. 36 at 25.)

The Court finds that Plaintiffs' state law negligence and agency or joint partnership

theories of liability cannot stand because the Montreal Convention expressly preempts both
claims. The United States Supreme Court spoke directly on this issue in El Al Israel Airlines,

Ltd. v. Tseng, holding that the predecessor to the Montreal Convention, the Warsaw Convention,
provided the exclusive remedy for recovery for carrier liability. 525 U.S. 155, 175 (1999).
Persuasive authority also makes clear that it is appropriate to rely on cases interpreting Warsaw
Convention provisions when the equivalent provisions in the Montreal Convention are
substantially similar. See Eli Lilly & Co. v. Air Exp. Intern. USA, Inc., 615 F.3d 1305, 1308

(11th Cir. 2010) (acknowledging that the Montreal Convention replaced the Warsaw
15

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)). Thus, 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." Tseng, 525 U.S. at 175. Because the Montreal Convention
expressly addresses carrier liability in Articles 1(3), 36, 39, and 40, Plaintiffs cannot bring state
law claims for negligence or agency, partnership, orjoint-partnership liability.
Plaintiffs in support of their challenge to United's motion for summary judgment cite to

several cases where plaintiffs were allowed to recover from third parties on alter ego theories or

joint venture theories of liability despite the applicability of the Montreal Convention. However,
these cases are not persuasive in this matter because in each case the third parties involved did

not qualify as "carriers" under the relevant articles in the Montreal Convention. Plaintiffs'
central authority is illustrative. While the District Court for the Southern District of Florida
indeed held that plaintiffs could pursue state law doctrines imposing liability on third parties, the
court clarified that this was permitted only because they "were not direct participants in the event
or transaction." 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). Similarly, while Article 37 of the

Montreal Convention specifically states that a "person liable for damage in accordance with its

provisions has a right of recourse against any other person," Articles 40 and 41 explicitly state

5See Montreal Convention, supra, note 1, at *30 (defining carriage by several successive
carriage as one undivided operation in Article 1(3)); Id. at *40 (limiting liability of successive
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 of contracting and actual carriers in Article 40).
16

that the Convention governs all liability for parties involved in the event or transaction

precipitating a claim. Montreal Convention, supra, note 1, at *40-41.
Because United was directly involved in the transaction underlying Plaintiffs' theories for

liability, any claim for negligence or joint liability falls within the Montreal Convention's
substantive scope. Thus, the Montreal Convention expressly preempts Plaintiffs' parallel state
law claims. Accordingly, the Court grants United's motion for summary judgment on Plaintiffs'
claim for negligence (Count I).
b. United Cannot be Held Liable Under the Montreal Convention

Plaintiffs allege in Count II of the Complaint that United 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 K 85.) Plaintiffs also allege that
because United maintained an agency relationship with Germanwings at the time of the crash,
the Montreal Convention assigns vicarious liability pursuant to Articles 39,40, and 41. (Id. ^ 91;
see also Dkt. No. 36 at 27.)

The Court holds that United is entitled to judgment as a matter of law because United

selling Germanwings' tickets pursuant to an interline agreement is not a relationship that imputes
liability to United under the Montreal Convention.
The Montreal Convention in Article 39 provides for liability of multiple carriers when
there exists between them an express agreement that the "actual carrier," the carrier engaged in
actual transport, acts by "virtue of authority" of the "contracting carrier," the carrier acting as the
agent for the entire transaction. Montreal Convention, supra, note 1, Art. 39. Conversely, per
Article 36, the Montreal Convention stipulates that when multiple carriers contribute individually
to separate legs of a larger travel plan, those carriers are deemed "successive carriers." Montreal
17

Convention, supra, note 1, Art. 36. If an airline is a successive carrier, that airline is liable only
if it was the carrier that performed the carriage when the accident or delay occurred. Id. The
lone exception to this liability scheme is "in the case where, by express agreement, the first
carrier has assumed liability for the whole journey." Id. Thus, the key issue is whether United

qualifies as a contracting carrier under the Montreal Convention.
First, as a threshold matter, because the Montreal Convention provides the exclusive

remedy for Plaintiffs, any theory of agency liability concerning airlines involved in the
underlying ticket transaction or accident must arise from a provision of the Convention itself.
See 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 Conventions preempt all state law claims within theirscope."); see
also, Asiedu-Ofei v. South African Airlines, 2016 WL 8229875, at *2 (E.D. Va. June 17, 2016)

(holding that additional claims brought under state law are preempted by the Montreal
Convention); Shirobokova v. CSA Czech Airlines, Inc., 316 F. Supp. 2d 439, 441 (S.D.N.Y.

2005) (enumerating claims for negligence, breach of warranty, and negligent misrepresentation
as state law claims specificallypreempted by the Montreal Convention). Accordingly, Plaintiffs'

many arguments advancing a relationship of agency, partnership, and/or joint venture between
United and Germanwings based on Virginia law have no persuasive weight in defeating United's
motion for summary judgment.

Because United did not provide the actual carriage that resulted in the deaths of the Selke

decedents, United can only be liable for agency liability under the Montreal Convention pursuant
to the provisions of either Article 36 or Article 41. Article 36 governing "successive carriage"
applies if international carriage was contemplated as a single undivided carriage but was to be
performed by various successive carriers after the first. Montreal Convention, supra, note 1, Art.
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36. Thus, if United qualifies as a "successive earner," Plaintiffs can maintain a cause of action

only if United, by express agreement, assumed liability for the whole journey. To the contrary,
Article 41 governing mutual liability for "contracting carriers" and "actual carriers" applies if the
actual carrier (Germanwings) performed its segment of carriage by authority of the contracting

carrier (United). Montreal Convention, supra, note 1, Art. 41. Accordingly, if United qualifies
as a contracting carrier, Plaintiffs can charge United with liability for the crash of Germanwings
Flight 9525.

United argues that the Germanwings tickets sold to decedents were provided pursuant to
United's interline agreement with Germanwings and not through the airlines' codeshare

agreement. (Dkt. No. 37 at 11.) In support of this argument, United alleges that it sold tickets
for Germanwings Flight 9525 pursuant to its interline agreement with Germanwings,
demonstrated by the lack of United's code "UA" appearing on the Selkes' tickets for the flight

leg from Barcelona to Diisseldorf. (Dkt. No. 15-1 ^ 9.) United also states that when it sells an
interline ticket for transportation on another carrier, it has "no involvement in the operation of
the flight, and assumes no responsibility for the acts or omissions of the other carrier in the

operation of that air transportation." (Id. H 11.) United contends that the interline agreement
between United and Germanwings expressly stipulates that the two carriers are not in any
employment, agency, partnership, or joint venture relationship.

(Id. | 12.) Further, United

acknowledges that it had at the time of the Flight 9525 crash a codeshare agreement with

Germanwings, but clarifies that it did not exercise or employ this contractual option when it sold
its tickets to decedents. (Id. ^ 16.) United notes that when a carrier sells a codeshare flight, it
agrees to assume authority over that flight in a manner similar to how Article 39 of the Montreal

Convention distinguishes contracting carriers.
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(Id. ^ 17.)

United also offers evidence

demonstrating that its two-letter airline designator code, "UA," did not appear on decedents'
tickets for Germanwings Flight 9525, which United argues would have been required under the

provisions ofits own Contract ofCarriage had United provided acodeshare arrangement for the
flight. (Id. fl 19-21.) United concludes that because it did not sell the tickets through its
codeshare agreement with Germanwings, it does not qualify as acontracting carrier under Article
39 of the Montreal Convention. (Id. ^22.)

While there is scant case law interpreting the specific liability provisions of the Montreal

Convention, persuasive authority from the Eastern District of New York is instructive in its
holding regarding interline and codeshare flights. In Best v. BWIA West Indies Airways Ltd., the
District Court for the Eastern District of New York held that Article 39 of 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). Furthermore, the
District Court distinguished that "in a code sharing relationship, the airline from which a

passenger purchased her ticket (the contracting carrier) is liable for injuries suffered onthe flight
even though another airline was the actual carrier." Id. Courts from several other jurisdictions
echo this sentiment under similar fact patterns. See, e.g. Kapar v. Kuwait Airways Corp., 845

F.2d 1100, 1103 (D.C. Cir. 1988) (concluding thatthe drafters of the Convention "precluded the

possibility that 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 leg of the trip"); Shirobokova, 376 at 44243 (ruling that Delta, the initial carrier and ticket issuer, could not be held liable for an alleged
injury that occurred onboard a successive carrier's flight).

Accordingly, the Court finds

persuasive the interpretation that tickets sold pursuant to and for the purposes of an interline
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agreement qualify the carriers for each leg of the journey, even the first, as successive carriers
under the Montreal Convention.

Plaintiffs dispute that Germanwings Flight 9525 was a codeshare flight, but they do not

designate specific facts showing there is evidence for a jury to find to the contrary. Instead,
Plaintiffs argue that because interline and codeshare agreements existed between United and
Germanwings at the time of the Crash, United qualifies as a contracting carrier and is thus liable.

(Dkt. No. 36 at 27.) Similarly, Plaintiffs infer from United and Lufthansa's mutual participation
in the Star Alliance Membership that United is liable under the Montreal Convention. (Id. at 29.)
However, none of these charges detail or describe specific facts demonstrating that the mere
existence of relationships between United, Lufthansa, and Germanwings confers upon United

liability under the Montreal Convention.

Nor do Plaintiffs assert specific facts disputing

United's admission that Germanwings Flight 9525 was an interline flight, not a codeshare flight.
In sum, Plaintiffs' claims of agency and partnership are only tenuously connected to the
Montreal Convention, which expressly governs their claims.

Such unsupported claims are

merely conclusory in nature, and, as such, do not give rise to a genuine dispute of material fact.
Consequently, because there is no dispute of a fact that would alter the result of this case at trial,
the Court finds summary judgment is appropriate for Count II of Plaintiffs' Complaint.
III. CONCLUSION

The Court DENIES Defendant's Motion to Dismiss because the Court may exercise

personal jurisdiction over the Defendant pursuant to Rule 12(b)(2). United is registered for
business in Virginia, maintains an agent for service of process in Virginia, and employs Virginia
residents, clearly demonstrating that the Defendant has availed itself of the privilege of
conducting business activities in the Commonwealth.
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Additionally, because United itself

acknowledged that it has previously brought no less than fourteen lawsuits in Virginia, the
Court's exercise of personal jurisdiction does not offend traditional notions of fair play and
substantial justice as requiredby the Due Process Clause.
The Court GRANTS Defendant's Motion for Summary Judgment because Plaintiffs have

not discharged their burden of demonstrating that a genuine dispute exists. Plaintiffs' claims of

agency and partnership have explicit parallels under the Montreal Convention, which expressly
governs their cause of action. Accordingly,
IT IS HEREBY ORDERED that Defendant United Airlines, Inc.'s Motion to Dismiss (Dkt.
No. 14) is DENIED;
IT IS FURTHER ORDERED that Defendant United Airlines, Inc's Motion for Summary

Judgment (Dkt. No. 14) is GRANTED. Thus, all claims against Defendant United Airlines, Inc.
are DISMISSED.
IT IS SO ORDERED.

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

M
Gerald Bruce Lee

United States District Judge

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