Olympic Air, Inc. et al v. Helicopter Technology Company et al

Filing 55

ORDER granting Defendant's 47 MOTION to Dismiss. Signed by Judge Robert S. Lasnik. (MW)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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OLYMPIC AIR, INC. and CATLIN
INSURANCE COMPANY, INC.

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Plaintiffs,
v.
HELICOPTER TECHNOLOGY COMPANY,
et al.,
Defendants.

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ORDER GRANTING
DEFENDANT MD
HELICOPTER, INC.’S
MOTION TO DISMISS
AMENDED
CONSOLIDATED
COMPLAINT

WILLIAM G. REED and MARY E. REED,

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Case No. 2:17-CV-1257-RSL

Plaintiffs,
v.
HELICOPTER TECHNOLOGY COMPANY,
et al.
Defendants.
This matter comes before the Court on defendant MD Helicopter, Inc.’s (“MDHI”)

23 motion to dismiss plaintiffs’ First Amended Consolidated Complaint. Dkt. #47.
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BACKGROUND
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On July 22, 2014, plaintiff William G. Reed was piloting an MDHI Model (originally a
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28 Washington in the scope of his employment with Olympic Air, Inc. Dkt. #47 at ¶¶ 4.1, 5.1. The
ORDER GRANTING DEFENDANT HELICOPTER, INC.’S MOTION
TO DISMISS AMENDED CONSOLIDATED COMPLAINT - 1

1 Helicopter has five rotor blades. Id. at ¶ 4.1. Plaintiffs allege that one of the blades, Part No.
2 500P2100-105, Serial No. SN091B, failed and caused a crash. Id. at ¶¶ 4.1–4.2. The blade was
3 manufactured by defendant Helicopter Technology Company (“HTC”) and sold by defendant
4 HTC in October 2012 as one of a set of five blades to Olympic Air. Id. at ¶¶ 3.1, 4.1. Post-crash
5 inspection revealed that the blade had disbanded at the root fitting, and that a second blade was
6 in the process of failing at the time that it fractured. Id. at ¶ 4.2; see Ex. B, Dkt. #48 at 10–19.
7 The pilot had carried out inspections prior to the flight but had looked primarily at the root
8 fitting and the metal. The need to inspect the bond line for cracks was not clear to him until after
9 the accident, when new service advisories were issued to that effect. Ex. B, Dkt. #48 at 19.
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Defendant MDHI is a corporation organized and existing under the laws of the State of
Arizona, with its principal place of business in Mesa, Arizona. Id. at ¶ 3.2. Plaintiffs brought
action against MDHI pursuant to the common law of negligence and the Washington Product
Liability Act, see RCW 7.72.010 et seq. Their claims are based on HTC’s reliance on the rotor
blade designs promulgated by MDHI and MDHI’s creation and distribution of service
instructions, bulletins and other advisories that failed to provide adequate warning to users of
signs of imminent failure of the rotor blades.1 Dkt. #45 at ¶ 8.4. MDHI filed a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. Dkt. #47.

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DISCUSSION

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A. Legal Standard

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Plaintiffs must prove that the Court has personal jurisdiction over MDHI. Harris Rutsky

22 & Co. Ins. Servs. v. Bell & Clements Ltd., 328 F.3d 1122, 1128–29 (9th Cir. 2003) (citing Doe,
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Plaintiffs also state that the main rotor blades for the Helicopter were manufactured by HTC,
“supplied and sold directly to [MDHI] by [HTC], and subsequently sold by MDHI as MDHI produced
parts.” Dkt. #45 at ¶ 8.4. As per counsel for Olympic Air’s clarification at oral argument on May 22,
2019, the Court assumes this to be a reference to MDHI’s status as the Type Certificate Holder and legal
manufacturer of the Helicopter. Id. at ¶ 8.3, see Dkt. #54; see Dkt. #31 (Cousins Decl.) at ¶¶ 17–18
(“Olympic [Air] … reassembled the aircraft using MDHI manufactured parts, as well as main rotor
blades manufactured and sold by [HTC].”). HTC manufactured the rotor blade.
ORDER GRANTING DEFENDANT HELICOPTER, INC.’S MOTION
TO DISMISS AMENDED CONSOLIDATED COMPLAINT - 2

1 I v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001) (per curiam)). Where there is no applicable
2 federal statute governing personal jurisdiction, the district court applies the law of the state in
3 which the district court sits. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th
4 Cir. 2004) (citing Fed. R. Civ. P. 4(k)(1)(A)). As Washington’s long-arm statute is co-extensive
5 with the outer limits of due process, the Court need only ensure that the constitutional
6 requirements for personal jurisdiction are met. Cognigen Networks, Inc. v. Cognigen Corp., 174
7 F. Supp. 2d 1134, 1137 (W.D. Wash. 2001) (citing Chan v. Society Expeditions, Inc., 39 F.3d
8 1398, 1404–05 (9th Cir. 1994)).
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Due process requires that MDHI have “certain minimum contacts with [the forum] such
that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial
justice.’” Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326
U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Plaintiffs contend
that MDHI is subject to this Court’s specific personal jurisdiction. Dkt. #45 at ¶¶ 6.1–6.3. The
Ninth Circuit employs a three-part test to determine whether there is specific personal
jurisdiction. First, the non-resident defendant must purposefully direct its activities or
consummate some transaction with the forum or a resident of the forum, or perform some act by
which it purposefully avails itself of the privilege of conducting activities in the forum, thereby
invoking the benefits and protections of its laws. Second, the claim must be one that arises out
of or relates to the defendant’s forum-related activities. Third, the exercise of jurisdiction must
comport with fair play and substantial justice; i.e., it must be reasonable. Picot v. Weston, 780
F.3d 1206, 1211 (9th Cir. 2015) (citing Schwarzenegger, 374 F.3d at 802). As this is a claim
sounding in tort, we apply a “purposeful direction” test and look to evidence that MDHI directed
its activities at the State of Washington, even if those actions took place elsewhere. Id. (citing
Schwarzenegger, 374 F.3d at 802–03).
Plaintiffs have the burden of proving the first two prongs. Id. (citing CollegeSource, Inc.
v. AcademyOne, Inc., 653 F.3d 1066, 1076 (9th Cir. 2011)). If they do so, the burden shifts to

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ORDER GRANTING DEFENDANT HELICOPTER, INC.’S MOTION
TO DISMISS AMENDED CONSOLIDATED COMPLAINT - 3

1 MDHI to set forth a compelling case that the exercise of jurisdiction would not be reasonable.
2 Id. at 1212 (citing CollegeSource, 653 F.3d at 1076).
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B. MDHI’s Minimum Contacts with the State of Washington
Plaintiffs argue that MDHI purposefully directed its activities at the State of Washington
in several ways, and that their claims arise out of these forum-related activities. The Court
considers each rationale in turn.
1. Legal Manufacturer of the Helicopter
MDHI’s legal predecessor, Hughes Helicopters, manufactured the Helicopter in 1979.

10 Dkt. #45 at ¶ 6.3; Dkt. #12 (Black Decl.) at ¶ 9. Hughes Helicopters was sold to McDonald
11 Douglas in 1984. McDonald Douglas merged with Boeing in 1997. In 1999, the civilian line of
12 Hughes Helicopters was sold to MD Helicopters Holdings, Inc. In 2005, Patriarch Partners, LLC
13 purchased the civilian Hughes product line and recapitalized the company as MDHI. Dkt. #50 at
14 5–6; Dkt. #32 (Kovarik Decl.) at ¶ 4. Plaintiffs allege that MDHI and its predecessor companies
15 have had a business relationship with Olympic Air since 1980. Dkt. #24 at ¶ 6.3; Dkt. #31 at ¶ 6.
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MDHI is the Type Certificate Holder for the 369D aircraft. Id. at ¶ 3; Dkt. #45 at ¶ 6.3.
As the Type Certificate Holder, MDHI is required to publish safety bulletins and produce
manuals. It also has the right to produce and sell the product line covered by the Type
Certificate. Dkt. #47 at 6. It is required to warn owners and operators of any safety issues, to
maintain the airworthiness of its products, and to investigate and notify the Federal Aviation
Authority (“FAA”) of any issue involving flight safety. Dkt. #32 at ¶ 19. Plaintiffs argue that
MDHI is therefore legally deemed to be the manufacturer of the helicopter. It has successor
liability for the product line and the actions of its predecessor corporations are imputed to it for
the purposes of jurisdiction. Dkt. #45 at ¶ 6.3.
MDHI argues that being a Type Certificate Holder is “geographically agnostic” and

27 “jurisdictionally irrelevant.” Dkt. #47 at 7. That status cannot create a substantial connection
28 between a non-resident company and a state because a Type Certificate Holder cannot issue a
ORDER GRANTING DEFENDANT HELICOPTER, INC.’S MOTION
TO DISMISS AMENDED CONSOLIDATED COMPLAINT - 4

1 service bulletin to certain operators to the exclusion of others. Id. MDHI also points out that
2 aviation-related defendants who are Type Certificate Holders have prevailed on motions to
3 dismiss for lack of personal jurisdiction. See for e.g. Katz v. Spiniello Companies, 244 F. Supp.
4 3d 237, 256 (D. Mass. 2017).
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The Court agrees. Plaintiffs cite to cases that establish that a Type Certificate Holder can
be considered a manufacturer under the General Aviation Revitalization Act of 1994, but these
do not have implications for the question of personal jurisdiction. See Burton v. Twin
Commander Aircraft LLC, 171 Wn. 2d 204 (2011). MDHI was formed in 2005 when Patriarch
Partners purchased the Hughes 369D product line from RDM Holdings, Inc. Dkt. #50 at 5.
“Washington follows the general rule that ‘a corporation purchasing the assets of another
corporation does not become liable for the debts and liabilities of the selling corporation.’”
Columbia State Bank v. lnvicta Law Grp. PLLC, 199 Wn. App. 306, 319 (2017) (quoting
Cambridge Townhomes, LLC v. Pac. Star Roofing, Inc., 166 Wn.2d 475, 481–82 (2009)).
Furthermore, to establish personal jurisdiction, plaintiffs’ claim must arise out of or relate to
MDHI’s forum-related activities. Picot, 780 F.3d at 1211 (citing Schwarzenegger, 374 F.3d at
802). Plaintiffs’ cause of action arises out of an alleged defect in one of the main rotor blades of
the helicopter, manufactured by HTC and sold to Olympic Air in October 2012. Dkt. #45 at ¶
4.1. Plaintiffs’ allegations concerning the manufacture of the Helicopter by MDHI’s
predecessors are irrelevant. Plaintiffs’ stream of commerce argument is similarly inapplicable.
Dkt. #50 at 3, 16, 23; see J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011).
2. Design of Rotor Blades for Helicopter
Plaintiffs argue that HTC manufactures the blades for the Model 369D and 500

24 helicopters with MDHI’s approval and pursuant to an MDHI design. Dkt. #45 at ¶ 6.3. MDHI
25 refutes this, stating that the design and manufacture of the original Hughes 369D in 1979 cannot
26 be a source of liability “both because MDHI is the wrong party (the party would be Boeing) and
27 also because of the General Aviation Revitalization Act of 1994’s 18-year statute of repose.”
28 Dkt. #47 at 8–9; see Lyon v. Agusta S.P.A., 252 F.3d 1078, 1084 (9th Cir. 2001), as amended
ORDER GRANTING DEFENDANT HELICOPTER, INC.’S MOTION
TO DISMISS AMENDED CONSOLIDATED COMPLAINT - 5

1 (July 9, 2001). The Court agrees. Furthermore, plaintiffs do not show a connection between any
2 designs made by MDHI and the State of Washington. Picot, 780 F.3d at 1211. This cannot be a
3 basis for personal jurisdiction.
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3. Processing of Warranty Claims
Plaintiffs argue that MDHI processes warranty claims for customers in Washington,
either directly or through their distributors and service centers. Dkt. #45 at ¶ 6.3. A tab on
MDHI’s website indicates that warranty claims can be processed through MDHI’s service
centers. Dkt. #32 at ¶ 6; see Ex. H, Dkt. #32-1 at 41–43. However, plaintiffs’ claim does not
arise out of MDHI’s processing of any warranty claims. Picot, 780 F.3d at 1211 (9th Cir. 2015)
(citing Schwarzenegger, 374 F.3d at 802).
4. Selling of Products and Replacement Parts in Washington
Plaintiffs argue that MDHI has purposefully availed itself of the privilege of doing

14 business in the State of Washington by selling products and replacement parts in the forum,
15 directly and through distributors. Dkt. #45 at ¶ 6.3. At the time of the accident, MDHI
16 maintained two authorized dealers and service centers in the State of Washington, Cascade
17 Airframe Repair, Inc. (now Cascade Helicopter Services) and Northwest Helicopters. Dkt. #32
18 at ¶ 8. Out of 684 Model 369D helicopters worldwide, 26 are listed as being based in
19 Washington; i.e., just under 5%. Id. at ¶ 5. Plaintiffs also specifically allege that Olympic Air
20 has purchased a substantial number of MDHI factory parts since 1980. Id. Between 2002 and
21 2013, while operating three MDHI helicopters, Olympic Air purchased approximately $400,000
22 worth of MDHI-manufactured parts annually. Dkt. #31 at ¶ 8. These were predominantly
23 purchased from Heli-Mart, Inc., a factory authorized distributor of MDHI parts located in
24 California. Id.; see Dkt. #50 at 9–10. Olympic Air purchased the airframe of the Helicopter from
25 Cascade Airframe and rebuilt it using MDHI factory parts in 2002. Dkt. #48 (Bingham Decl.) at
26 ¶ 8. It has used Cascade Airframe’s services since 1982. Dkt. #31 at ¶ 16.
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ORDER GRANTING DEFENDANT HELICOPTER, INC.’S MOTION
TO DISMISS AMENDED CONSOLIDATED COMPLAINT - 6

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However, plaintiffs have conceded that the rotor blade of the Helicopter was

2 manufactured by HTC and sold by HTC to Olympic Air in October 2012. Dkt. #45 at ¶ 4.1.
3 Their claim does not arise out of MDHI’s sale of products and replacement parts in the State of
4 Washington. Nor does it pertain to the airframe sold to Olympic Air by Cascade Airframe, even
5 assuming specific personal jurisdiction might be established over MDHI based upon the actions
6 of Cascade Airframe as its “agent.” See Dkt. #47 at 8; see Williams v. Yamaha Motor Co., 851
7 F.3d 1015, 1024 (9th Cir. 2017) (finding that the appellants failed to make out a prima facie case
8 for an agency relationship, assuming that “some standard of agency continues to be relevant to
9 the exercise of specific jurisdiction”) (quoting Daimler AG v. Bauman, 571 U.S. 117, 135 n.13
10 (2014)) These allegations are irrelevant to whether the Court has specific personal jurisdiction
11 over MDHI. Picot, 780 F.3d at 1211 (citing Schwarzenegger, 374 F.3d at 802).
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5. Selling of Manuals and Service Bulletins to Olympic
Plaintiffs allege that MDHI issued “instructions, guidelines, warnings, cautions and
service information concerning the use of the subject model helicopter, and component parts
thereof, including the subject main rotor blade.” Dkt. #45 at ¶ 8.2. They argue that Olympic Air
has since 1980 maintained, serviced, inspected and operated its MDHI helicopters pursuant to
the manuals and service bulletins sold directly by MDHI or its predecessors. Dkt. #31 at ¶ 7.
The Helicopter itself has been serviced in Washington since at least 1988. Dkt. #48 at ¶ 8. The
manuals were always sent by MDHI to Olympic Air in Shelton, Washington. Id. When MDHI
became the owner of the Hughes Helicopter product line and its Type Certificate Holder,
Olympic Air purchased a multi-volume printed set of MDHI manuals from MDHI for
approximately $800 to $900. These volumes were periodically updated and reissued by MDHI
at a supplemental charge to Olympic Air. Id. at ¶ 9; see Ex. A, Dkt. #31-1 at 1–5. About 6 or 7
years ago, MDHI replaced its printed maintenance manuals with manuals on MDHI’s website.2
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Apart from the availability of manuals and service bulletins online, plaintiffs argue that the

27 MDHI’s interactive website subjects it to personal jurisdiction in Washington. Dkt. #45 at ¶ 6.3; Dkt.

#50 at 19–20; see Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir. 1997). For example, the

28 website advertises two service centers located in Washington, Cascade Helicopter Services and
ORDER GRANTING DEFENDANT HELICOPTER, INC.’S MOTION
TO DISMISS AMENDED CONSOLIDATED COMPLAINT - 7

1 Access was restricted to those customers, like Olympic Air, who were able to show ownership
2 of an MDHI helicopter since July 31, 2017. Id. at ¶¶ 10–11; Dkt. #50 at 10. Olympic Air paid an
3 annual fee for this access, but also continues to use the printed volumes. Id.; Dkt. #50 at 10.
4 These provide “guidelines, instructions, cautions, service, maintenance and inspection
5 procedures for the MDHI 369D helicopter in general, and more specifically for the subject
6 model rotor blade that failed, causing the crash at issue in the subject litigation.” Id. Olympic
7 Air relied on the manuals for servicing the Helicopter’s rotor blades. Id. at ¶ 12.
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MDHI also sold a Service Bulletin Package to Olympic Air that contained a complete set
of all Service Bulletins issued through February 5, 2010. Id. at ¶ 13. Olympic Air regularly
referred to this package while servicing and maintaining the Helicopter, including the allegedly
defective rotor blade. Id.; see Ex. B, Dkt. #31-1 at 6–8. The service letters and service bulletins
were routinely mailed by MDHI to Olympic Air. After the accident, MDHI mailed Olympic Air
a letter supplementing previously published main rotor blade inspection procedures with
illustrative photographs. Id. at ¶ 14; see Ex. C, Dkt. #31-1 at 9–13. Furthermore, every six
months, an MDHI service technician contacted Olympic Air to verify that Olympic Air still
owned and operated the MDHI helicopters and to inquire about their hours of operation and
their serial numbers. Id. at ¶ 15.
MDHI argues that plaintiff William Reed has conceded that he did not rely on the
manuals issued by MDHI and did not comply with the Service Bulletins. Dkt. #47 at 10; see Ex.
B, Dkt. #48 at 16. Whether the materials were actually consulted is not relevant to whether the
fact that MDHI sold and sent them to Olympic Air in Washington is sufficient to confer personal

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25 directs prospective customers to use a “Contact Form” to contact service centers. The Form includes a

“State” fillable field that allows customers to fill in “Washington.” Id. at ¶¶ 9, 15; see Ex. A, Dkt. #32-1

26 at 10. Customers can also register accounts for managing all aspects of owning and operating an MDHI
helicopter. Id. at ¶ 12. However, plaintiffs’ claims vis-à-vis MDHI arise out of MDHI’s manuals and
service bulletins. They do not concern the functionality of the website or any actions taken by MDHI’s
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ORDER GRANTING DEFENDANT HELICOPTER, INC.’S MOTION
TO DISMISS AMENDED CONSOLIDATED COMPLAINT - 8

1 jurisdiction upon MDHI. However, MDHI also argues that it was obligated as a Type Certificate
2 Holder to make the manuals and instructions available to owners and operators in order to
3 comply with mandatory airworthiness standards. Dkt. #47 at 10; see 14 CFR § 21.50(b). This
4 would have been true irrespective of where Olympic Air was located. Id. It reiterates that it is
5 unaware of any case in which a court has exercised personal jurisdiction on the basis of the non6 resident defendant being a Type Certificate Holder. Id. at 10–11.
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MDHI cites to the Tenth Circuit’s decision in Old Republic Ins. Co. v. Cont’l Motors,
Inc. In Old Republic, an airplane manufactured by an out-of-state defendant, Continental
Motors, Inc., crashed in Idaho on a flight from Colorado. The airplane’s insurer filed an action
against Continental Motors in Colorado, alleging that its online service manuals and bulletins
contained defective information that caused the crash. Those manuals and bulletins were
accessed and consulted by Colorado-based Arapahoe Aero, a fixed-based operator (“FBO”), in
servicing the airplane. 877 F.3d 895, 900 (10th Cir. 2017). The district court dismissed the case
for lack of personal jurisdiction. The Tenth Circuit affirmed. It held that Old Republic did not
allege that Continental Motors “specifically sought out Arapahoe Aero’s business or engaged in
any direct communications with it.” Id. at 912. FAA regulations required that it make its service
manuals available to certified repair stations and FBOs wherever they were located. Id. at 917.
Nothing about its webpage or its service manuals appeared to be deliberately targeted at
Colorado, in terms of content or its intended audience. Id. MDHI argues that it, too, was merely
complying with its obligations as a Type Certificate Holder. Dkt. #47 at 11–12.
The Court agrees. MDHI did not “purposefully avail[] itself of the privilege of
conducting activities in the forum” or direct its activities at the State of Washington. Picot, 780
F.3d at 1211. It sent manuals and service bulletins to Washington because Olympic Air was in
Washington. As defense counsel pointed out at oral argument, had Olympic Air been located
elsewhere, the materials would have been sent elsewhere. “The inquiry whether a forum State
may assert specific jurisdiction over a nonresident defendant focuses on the relationship among
the defendant, the forum, and the litigation.” Walden v. Fiore, 571 U.S. 277, 283–84 (2014)
ORDER GRANTING DEFENDANT HELICOPTER, INC.’S MOTION
TO DISMISS AMENDED CONSOLIDATED COMPLAINT - 9

1 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984)). “The relationship must
2 arise out of contacts that the ‘defendant himself’ creates with the forum State.” Id. (quoting
3 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)) (emphasis in original). The Court
4 must reject “attempts to satisfy the defendant-focused ‘minimum contacts’ inquiry by
5 demonstrating contacts between the plaintiff (or third parties) and the forum State.” Id. (citing
6 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984)). Furthermore, the
7 analysis looks to the “defendant’s contacts with the forum State itself, not the defendant’s
8 contacts with persons who reside there.” Id. (citing Int’l Shoe Co., 326 U.S. at 319).
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MDHI’s only contact with Washington is that it sent materials to Olympic Air in
Washington that it was federally required to send to all operators of its aircraft. The “plaintiff
cannot be the only link between the defendant and the forum. Rather, it is the defendant’s
conduct that must form the necessary connection with the forum State that is the basis for its
jurisdiction over him.” Walden, 571 U.S. at 285–86 (citing Burger King, 471 U.S. at 478). The
Court cannot “rely on a defendant’s ‘random, fortuitous, or attenuated contacts’ or on the
‘unilateral activity’ of a plaintiff.” Id. (citing Burger King, 471 U.S. at 475).
Plaintiff has not proven the first two prongs of specific personal jurisdiction. Picot, 780
F.3d at 1211. The Court need not reach the question of whether the exercise of jurisdiction
would be reasonable. See Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 2007) (citing CE
Distribution, LLC v. New Sensor Corp., 380 F.3d 1107, 1112 (9th Cir. 2004)).
CONCLUSION
For all the foregoing reasons, MDHI’s motion to dismiss is GRANTED.
DATED this 29th day of May, 2019.

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A
Robert S. Lasnik
United States District Judge
ORDER GRANTING DEFENDANT HELICOPTER, INC.’S MOTION
TO DISMISS AMENDED CONSOLIDATED COMPLAINT - 10