Sia et al v. Airasia Berhad et al

Filing 70

ORDER granting Defendant Artus, S.A.S' 50 Motion to Dismiss; granting Defendant Airasia Berhad 58 Motion to Dismiss; plaintiffs' claims against defendant Artus and defendant AirAsia Berhad are DISMISSED without prejudice, by Judge Thomas S. Zilly.(SWT)

Download PDF
1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 4 5 HENRY TANAYA SIA, et al., 6 Plaintiffs, C16-1692 TSZ 7 v. ORDER 8 AIRASIA BERHAD, et al., 9 Defendants. 10 11 12 13 14 THIS MATTER comes before the Court on defendant Artus S.A.S’s (“Artus”), and defendant AirAsia Berhad’s (collectively “defendants”), motions to dismiss for lack of personal jurisdiction, docket nos. 50, 58. Having reviewed the motions and all relevant filings, the Court enters the following Order.1 Background 15 16 17 This case arises from the tragic December 28, 2014, crash of an Airbus A320 airplane operating as AirAsia Flight 8501 (“Flight 8501”). Complaint, docket no. 1, Common Allegations of Fact ¶ 6. In the early morning on December 28, Flight 8501 18 19 20 21 22 23 Plaintiffs filed no opposition to defendant Artus’s motion. Pursuant to LCR 7(b)(2) “[i]f a party fails to file papers in opposition to a motion, such failure may be considered by the Court as an admission that the motion has merit.” Local Civil Rule 7(b)(2). The Court considers plaintiffs’ failure to respond to Artus’s motion to be an admission that the motion has merit. With regard to AirAsia Berhad’s motion, plaintiffs’ filed a response on April 19, 2017, well after the March 31, 2017, noting date. LCR 7(d)(3) requires that “papers” in opposition to a motion to dismiss “be filed and served not later than the Monday before the noting date.” Local Civil Rule 7(d)(3). Plaintiffs’ counsel should review Local Civil Rule 7(d) to ensure that in the future, counsel are apprised of the deadlines for filing an opposition to another party’s motion. In any case, the Court separately addresses the merits of both defendants’ motions as well as the single argument raised in plaintiffs’ late-filed response. 1 ORDER - 1 1 crashed into the Java Sea while carrying passengers from Indonesia to Singapore, killing 2 everyone on board. Complaint, Common Allegations of Fact at ¶¶ 6-7. None of the 3 passengers or crew were United States citizens. Decl. of Paul Devaux, docket no. 51, 4 ¶ 25. 5 Plaintiffs in this action are the children of passengers Soetikno Sia and Christien 6 Yuanita Jou and the Administrators of their estates. Complaint, Common Allegations of 7 Fact at ¶¶ 2-3. Plaintiffs filed this multi-defendant action in federal court pursuant to 28 8 U.S.C. § 1369, commonly known as the Multiparty, Multiforum Jurisdiction Act. 9 Complaint, Jurisdiction and Venue at ¶ 2. 10 A. Defendant Artus 11 Plaintiffs allege that the cause of the fatal crash was, in part, a defective Rudder 12 Travel Limiter Unit (“RTLU”) manufactured, assembled, designed, and sold by Artus 13 and defendant Danaher Corporation “individually as principal-agent, and/or as a joint 14 enterprise.” Complaint, Count IV at ¶ 10-12. Artus is a legal entity organized under the 15 laws of France with its headquarters and principal place of business in Avrillè, France. 16 Devaux Decl. at ¶ 4. The allegedly defective RTLU installed on Flight 8501 was 17 manufactured by Artus in France in May of 2008 and sold to Airbus in Toulouse, France 18 the same month. Id. at 19, 21-22. 19 Artus does not maintain offices or own or rent any real property, maintain bank 20 accounts, or hold any other type of asset in the United States. Id. at 8-9, 11. Artus does 21 not pay taxes or manufacture products in the United States nor is it authorized to do 22 business in the United States. Id. at 11-12, 14. All sales of Artus’s products are made in 23 France and only a small portion of Artus’s global sales revenue, approximately 10.8%, is ORDER - 2 1 derived from products ultimately delivered to customers in the United States. Id. at 15. 2 Artus has no agent for service of process in the United States, and it has no ownership 3 interest in any United States-based company. Id. at 13-14. 4 B. Defendant AirAsia 5 Flight 8501 was operated by PT Indonesia AirAsia, a partially owned affiliate of 6 AirAsia Berhad. Decl. of Amir Faezal Zakaria, docket no. 60, ¶ 22. Plaintiffs allege that 7 AirAsia Berhad breached its duty of care to Soetikno Sia and Christien Yuanita Jou by 8 failing to adequately maintain, monitor, and repair the Airbus A320 aircraft operated by 9 its affiliate and/or to instruct PT Indonesia AirAsia to repair the “dangerous and unsafe” 10 condition of the airplane. Complaint, Count I at ¶ 14-15. PT Indonesia AirAsia is 11 organized under Indonesian law with its principal place of business in Indonesia. Zakaria 12 Decl. at ¶ 23. AirAsia Berhad is organized under Malaysian Law with its principal place 13 of business in Malaysia. Id. at ¶ 5. Neither AirAsia Berhad nor PT Indonesia AirAsia 14 operated flights to the United States during the time period relevant to this litigation. Id. 15 at ¶¶ 6, 25. 16 Like Artus, neither AirAsia Berhad nor PT Indonesia AirAsia have offices or own 17 property in the United States. Id. at ¶¶ 8, 12, 26-27. And neither airline has paid taxes, is 18 registered to do business, or has employees or a registered agent in the United States. Id. 19 at ¶¶ 9-12, 27, 29-31. 20 Discussion 21 A. Legal Standard 22 When a defendant invokes Federal Rule of Civil Procedure 12(b)(2) in a motion to 23 dismiss for lack of personal jurisdiction and the Court holds no evidentiary hearing, the ORDER - 3 1 plaintiff need only make a prima facie showing of personal jurisdiction. See Harris 2 Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1128-29 (9th Cir. 3 2003). Though a plaintiff generally cannot rest on the bare allegations of its complaint, 4 uncontroverted allegations must be taken as true. Mavrix Photo, Inc. v. Brand 5 Technologies, Inc., 647 F.3d 1218, 1223 (9th Cir. 2011) (citing Schwarzenegger v. Fred 6 Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004)). The Court should resolve factual 7 disputes in the plaintiff’s favor, but may not assume the truth of allegations in a pleading 8 which are contradicted by affidavit. Id. 9 B. Analysis Where, as here, a federal statute confers nationwide service of process,2 whether a 10 11 court may exercise personal jurisdiction depends upon whether the party has sufficient 12 contacts with the United States as a whole, rather than any particular state. See Securities 13 Investor Protection Corp. v. Vigman, 764 F.2d 1309, 1315-16 (9th Cir. 1985); see also 14 Siswanto v. Airbus Americas, Inc., No. 15-CV-5486, 2016 WL 7178459, at *4 (N.D. Ill. 15 December 9, 2016). 16 The Due Process Clause of the United States Constitution prohibits the exercise of 17 personal jurisdiction over a non-resident defendant unless the defendant has sufficient 18 “minimum contacts” with the forum such that the exercise of jurisdiction would not 19 offend “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. 20 Washington, 326 U.S. 310, 316, 320 (1945). Depending on the strength of those 21 contacts, courts recognize two types of personal jurisdiction: general and specific. 22 2 AirAsia Berhad and Artus were served pursuant to 28 U.S.C. § 1697, which authorizes nationwide 23 service of process in cases brought under the Multiparty, Multiforum Jurisdiction Act, 28 U.S.C. § 1369. ORDER - 4 1 Bancroft & Masters, Inc. v. August Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2002). A 2 defendant with “substantial” or “continuous and systematic” contacts with the forum is 3 subject to general jurisdiction, and can be haled into court in any action, even one 4 unrelated to its contacts in the forum. Id. Specific jurisdiction on the other hand is 5 tethered to a relationship between the forum and the claim, and depends upon an 6 “affiliation between the forum and the underlying controversy.” Goodyear Dunlop Tires 7 Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011); see also Holland Am. Line, Inc. 8 v. Warsila N. Am., Inc., 485 F.3d 450, 460 (9th Cir. 2007). Here, as discussed below, 9 plaintiffs have failed to make a prima facie showing sufficient to establish either general 10 or specific jurisdiction over defendants Artus and AirAsia Berhad. 11 1. General Jurisdiction 12 Outside of exceptional circumstances showing that a foreign corporation is 13 “essentially at home in the forum,” general jurisdiction over a corporation is limited to its 14 place of incorporation or principal place of business. See Daimler AG v. Bauman, 134 S. 15 Ct. 746, 761 n. 19 (2014). Artus and AirAsia Berhad are foreign entities with principal 16 places of business outside the United States and neither has sufficient contacts with the 17 United States to render them “essentially at home” here.3 See Daimler, 134 S. Ct. at 758 18 19 20 21 22 23 Plaintiffs’ allegations that “Artus S.A.S. was a wholly owned subsidiary of Defendant, Danaher Corporation” and that Danaher Corporation and Artus “individually as principal-agent, and/or as a joint enterprise” designed, manufactured, assembled and/or sold the allegedly defective RTLU are insufficient to impute Danaher’s jurisdictional contacts to Artus. In the context of “‘imputed’ general jurisdiction,” the Ninth Circuit has held that a parent corporation’s jurisdictional contacts may be imputed to a subsidiary only if the two entities are “alter ego[s].” See Ranza v. Nike, Inc., 793 F.3d 1059, 1071-72 (9th Cir. 2015). To satisfy the alter ego test, a plaintiff “must make out a prima facie case (1) that there is such unity of interest and ownership that the separate personalities [of the two entities] no longer exist and (2) that failure to disregard [their separate identities] would result in fraud or injustice.” Id. at 1072 (quoting Doe v. Unocal Corp., 248 F.3d 915, 926 (9th Cir. 2001). Plaintiff has not alleged facts sufficient to satisfy either prong of the alter ego test. 3 ORDER - 5 1 n. 11; see also Siswanto, 2016 WL7178459, at *5-8. General jurisdiction calls for an 2 appraisal of a corporation’s activities in their entirety, nationwide and worldwide, and 3 any determination of whether a corporation’s contacts with a particular forum are 4 sufficiently “continuous and systematic” must be evaluated in that context. See Daimler, 5 134 S. Ct. at 761-62 & n. 20. A corporation “that operates in many places can scarcely 6 be deemed at home in all of them.” Id. at 762 n. 20. 7 Artus and AirAsia Berhad are organized under foreign law, conduct business 8 outside the United States, serve a primarily foreign constituency, and derive only a small 9 fraction of their global revenue from U.S. customers. The minimal contacts plaintiffs 10 allege Artus and AirAsia Berhad have with the United States are not so continuous and 11 systematic “that it would be fundamentally fair” to require them to answer “in any 12 litigation arising out of any transaction or occurrence taking place anywhere in the 13 world.” See Siswanto, 2016 WL 7178459, at *4 (emphasis in original) (quoting Purdue 14 Research Foun. V. Sanofi-Synthelabo, S.A., 338 F.3d 773, 787 (7th Cir. 2003)); see also 15 Schwarzenegger, 374 F.3d 807 (holding that general jurisdiction must be premised on 16 “continuous and systematic general business contacts” that “approximate physical 17 presence” in the forum such that the Corporation can be sued there for any act it has 18 committed anywhere in the world). As in Daimler, an exercise of general jurisdiction 19 over either Artus or AirAsia Berhad “would scarcely permit [non-resident] defendants ‘to 20 structure their primary conduct with some minimum assurance as to where that conduct 21 22 23 ORDER - 6 1 will and will not render them liable to suit.’”4 Daimler, 134 S Ct. 746 (quoting Burger 2 King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)). 3 2. Specific Jurisdiction 4 Courts in the Ninth Circuit apply a three-part test to determine whether an alleged 5 tortfeasor has sufficient forum-related contacts for a Court to exercise specific 6 jurisdiction: (1) the non-resident defendant must purposefully direct his activities or 7 consummate some transaction with the forum or resident thereof; (2) the claim must arise 8 out of or relate to the defendant’s forum-related activities; and (3) the exercise of 9 jurisdiction must comport with fair play and substantial justice. Picot v. Weston, 780 10 F.3d 1206, 1211 (9th Cir. 2015) (quoting Schwarzenegger v. Fred Martin Motor Co., 374 11 F.3d 797, 802 (9th Cir. 2004). A lawsuit “arises out of or relates to” a defendant’s 12 contacts with the forum state if “a direct nexus exists between those contacts and the 13 cause of action.” In re Western States Wholesale Natural Gas Antitrust Litigation, 715 14 F.3d 716, 742 (9th Cir. 2013). The plaintiff has the burden of proving the first two 15 prongs of the test. Picot, 780 F.3d at 1211. If the plaintiff fails to satisfy either of these 16 prongs, personal jurisdiction is not established in the forum. Schwarzenegger, 374 F.3d 17 at 802. 18 19 Plaintiffs’ late-filed response advances a single argument: that AirAsia Berhad is subject to general jurisdiction because its website,, through which AirAsia Berhad solicits customers and accepts reservations and payments for tickets and ancillary services, is hosted on a server owned by 21 Akami Technologies Inc. in Seattle, Washington. District courts in this circuit, however, have squarely rejected the argument that server location within the forum can constitute a basis for the exercise of 22 general jurisdiction. See Pfister v. Selling Source, LLC, 931 F. Supp. 2d 1109, 1115-16 (D. Nevada 2013); see also Man-D-Tec, Inc. v. Nylube Products Co., LLC, No. CV-11-1573-PHX-GMS, 2012 WL 1831521, at *2 (D. Ariz. May 18, 2012) (citing Chang v. Virgin Mobile, 2009 WL 111570, at *3 (N.D. 23 Tex. Jan. 16, 2009)). 4 20 ORDER - 7 1 a. Defendant Artus 2 With regard to Artus, plaintiffs cannot establish specific jurisdiction because their 3 claims do not arise out of or relate to any of Artus’s forum-related activity. Plaintiffs 4 allege that Artus is liable for their injuries because it “designed, manufactured, assembled 5 and/or sold” the RTLU that allegedly failed and resulted in the crash. None of this 6 activity, however, occurred in the United States or involved a transaction with a forum 7 resident. Artus designed, manufactured, and sold the allegedly defective RTLU to Airbus 8 S.A.S. (“Airbus”), a French entity, in France. Devaux Decl. at ¶ 18-19, 21. Plaintiffs’ 9 allegations fail to establish any causal connection between any of Artus’s actual forum10 related contacts, such as products delivered to customers in the United States or its single 11 U.S.-based employee,5 and an aircraft accident involving an aircraft originating in 12 Indonesia and operated by a domestic Indonesian airline that crashed into Indonesian 13 waters. 14 b. Defendant AirAsia Berhad 15 As with Artus, plaintiffs cannot establish specific jurisdiction over AirAsia Berhad 16 because their claims do not arise out of or relate to forum-related activity undertaken by 17 AirAsia Berhad. The sole allegations concerning AirAsia’s jurisdictional contacts with 18 the United States provide that AirAsia Berhad (1) conducts business with Akamai 19 Technologies, Inc., including hosting of AirAsia Berhad’s website on a dedicated server 20 in Seattle, Washington; (2) engaged in a joint venture with Expedia, Inc. in Bellevue, 21 Washington; and (3) engaged in numerous other commercial transactions with companies 22 5 Artus’s United States based employee is a sales representative who works out of his home in Virginia. 23 Devaux Decl. at ¶ 16. This employee has no involvement with the sales of RTLUs. Id. at ¶ 19. ORDER - 8 1 located within the State of Washington. Complaint, Count I at ¶ 9. But plaintiffs’ 2 complaint draws no nexus between any of these activities and an alleged breach of 3 AirAsia Berhad’s duty to maintain, repair, and supervise PT Indonesia AirAsia’s 4 operation of an aircraft involved in a Crash occurring halfway around the world. Without 5 allegations connecting AirAsia Berhad’s alleged negligence to its forum-related 6 activities, plaintiffs have failed to demonstrate the “direct nexus” required to support 7 specific jurisdiction over AirAsia Berhad. See Faalele v. Sinapore Technologies Marine, 8 Ltd., No. 14-CV-2321-H (KSC), 2016 WL 6330585, at *7 n. 12 (S.D. Cal. Jan. 28, 2016) 9 (noting that contacts with a particular forum are irrelevant for the purposes of 10 determining specific jurisdiction absent a “direct nexus” between those contacts and the 11 cause of action at issue). 12 Conclusion 13 For the foregoing reasons, defendant Artus’s and defendant AirAsia Berhad’s 14 motions to dismiss for lack of personal jurisdiction, docket nos. 50, 58, are GRANTED 15 and plaintiffs’ claims against defendant Artus and defendant AirAsia Berhad are 16 DISMISSED without prejudice. 17 IT IS SO ORDERED. 18 Dated this 20th day of April, 2017. 20 A 21 Thomas S. Zilly United States District Judge 19 22 23 ORDER - 9

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?