Mary Erwin-Simpson v. AirAsia Berhad

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2020 Decided January 19, 2021

No. 19-7034

MARY ERWIN-SIMPSON AND KEVIN SIMPSON ,
APPELLANTS

v.

AIRASIA BERHAD AND AIRASIA X BERHAD ,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-00083)

Amanda C. Dure argued the cause and filed the briefs for
appellants. Doug P. Desjardins entered an appearance.

Cynthia Cook Robertson argued the cause for appellees.
With her on the brief was Kevin M. Fong.

Before: SRINIVASAN, Chief Judge, and HENDERSON and
PILLARD , Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.
 2
PILLARD , Circuit Judge: Mary Erwin-Simpson, a
resident of the District of Columbia, sued Malaysia-based
airline AirAsia in the District of Columbia for injuries
sustained on a 2016 flight from Malaysia to Cambodia. She
brought her claims under the Montreal Convention, a
multilateral treaty ratified by the United States that governs
airlines’ liability to passengers. The district court dismissed
the case for lack of both subject matter jurisdiction and
personal jurisdiction. We affirm on the latter ground. The
injuries Erwin-Simpson alleged did not arise from any activity
by AirAsia in the District of Columbia, and the only presence
that the airline identifies here is its website. The website on its
own is insufficient to render the corporation subject to suit in
the District.

BACKGROUND

Mary Erwin-Simpson alleges that she suffered injuries in
March 2016 on a flight from Malaysia to Cambodia with
Malaysia-based airline AirAsia Berhad (AirAsia) when a flight
attendant spilled boiling water on her. She and her husband
Kevin Simpson, both D.C. residents, sued AirAsia and its
affiliate AirAsia X Berhad (AirAsia X), also a Malaysia-based
airline, in the U.S. District Court for the District of Columbia,
claiming damages for personal injury and loss of consortium.
They sued under the Montreal Convention, a treaty to which
the United States is signatory that provides for airline liability
in the case of injuries that occur during flight. See Convention
for the Unification of Certain Rules for International Carriage
by Air, May 28, 1999, S. Treaty Doc. No. 106-45 (Montreal
Convention).

AirAsia and AirAsia X are separate corporate entities.
AirAsia is a low-cost airline that provides service across Asia;
it does not operate any flights to or from the United States.
 3
AirAsia X is a low-cost, long-haul airline that operates within
and outside Asia. Until 2017, when it began limited service to
and from Hawaii, AirAsia X, too, lacked any U.S. flights.

After the plaintiffs filed suit, AirAsia and AirAsia X
moved to dismiss for lack of subject matter jurisdiction and
personal jurisdiction. The district court granted the motion. It
first held that it lacked subject matter jurisdiction over the
claims that the plaintiffs asserted under the Montreal
Convention. A district court has federal question jurisdiction
over claims that arise under treaties. The plaintiffs contended
that the court had jurisdiction under Article 17 of the Montreal
Convention, which provides that “[t]he carrier is liable for
damage sustained in case of death or bodily injury of a
passenger” on board its aircraft. Montreal Convention art.
17(1). But the district court interpreted “carrier” in Article 17
as limited to the airline operating the particular aircraft carrying
the passenger when the injury occurred, relying on this court’s
precedent interpreting a similar provision in the Warsaw
Convention, the Montreal Convention’s predecessor treaty.
See Kapar v. Kuwait Airways Corp., 845 F.2d 1100, 1103
(D.C. Cir. 1988). Because AirAsia X was not the carrier
operating the flight on which Erwin-Simpson was injured, the
district court held that it lacked subject matter jurisdiction over
claims asserted against that airline.

As to AirAsia, the district court looked to Article 33 of the
Montreal Convention, which identifies the forums in which an
injured passenger may bring an action for damages, including
the airline’s domicile and principal place of business and the
place of destination. The claimed basis for jurisdiction here
was Article 33(2), which allows an action to be brought in a
forum (1) in which the injured passenger resides, (2) “to or
from which the carrier operates services . . . either on its own
aircraft, or on another carrier’s aircraft pursuant to a
 4
commercial agreement,” and (3) “in which that carrier
conducts its business . . . from premises leased or owned by the
carrier itself or by another carrier with which it has a
commercial agreement.” Montreal Convention art. 33(2).
Recognizing a lack of any precedent interpreting this provision,
the district court relied on text and drafting history to conclude
that the third clause requires that the carrier conduct business
through a physical presence in the forum. Because AirAsia
maintains no such presence in the United States, the court held
that it lacked subject matter jurisdiction over the damages
claim against AirAsia. It also dismissed the loss of consortium
claim on the ground that the court’s jurisdiction over it was
dependent on its power to decide the predicate personal injury
claim.

Given that Article 33(2)’s meaning was a question of first
impression, the district court proceeded to consider AirAsia’s
alternative ground for dismissal—lack of personal jurisdiction.
In their opposition to the motion to dismiss, the plaintiffs did
not identify any statutory basis for personal jurisdiction in the
District of Columbia or assert that the court had specific
jurisdiction over AirAsia. They instead limited their argument
to whether the court might be able to exercise general
jurisdiction over AirAsia on account of business the airline
does with D.C. residents through its website. As support, they
cited our precedent holding that a corporation’s website “can
satisfy general jurisdiction requirements” as a statutory and
constitutional matter if the website is both “interactive” and
used by D.C. residents in “a continuous and systematic way.”
FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1092 (D.C.
Cir. 2008) (quoting Gorman v. Ameritrade Holding Corp., 293
F.3d 506, 511-12 (D.C. Cir. 2002) (internal quotation marks
omitted)). To determine whether the requirement of
continuous and systematic use was met in this case, the
plaintiffs requested jurisdictional discovery to determine the
 5
frequency and volume of AirAsia’s contacts with the District
of Columbia through its website. Presumably because our
precedent recognized that the provision of the D.C. statute
authorizing personal jurisdiction over defendants “doing
business” in the District reaches as far as the Constitution
permits, see FC Inv. Grp., 529 F.3d at 1092, the plaintiffs did
not specify whether their arguments were statutory or
constitutional.

The district court denied the plaintiffs’ request for
discovery and held that it lacked personal jurisdiction over
AirAsia. The court concluded that the reasoning underlying
this court’s precedent had been abrogated by intervening
Supreme Court decisions that hold that the constitutionality of
an assertion of general jurisdiction over a foreign corporation
depends on proof of corporate contacts with the state that are
“so continuous and systematic as to render [the corporation]
essentially at home in the forum State.” Daimler AG v.
Bauman, 571 U.S. 117, 139 (2014) (quoting Goodyear Dunlop
Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)
(internal quotation marks omitted)). Because the plaintiffs
offered no explanation as to how AirAsia’s contacts through its
website alone could render the corporation at home in the
District of Columbia, the court deemed jurisdictional discovery
unjustified.

The district court also denied the plaintiffs’ alternative
request to transfer the case to the District of Hawaii. They
argued that AirAsia X’s flights to and from Hawaii could
establish general jurisdiction in the forum, but the court held
that the lack of subject matter jurisdiction over the claims
against AirAsia X precluded transfer.
 6
DISCUSSION

On appeal, the plaintiffs concede that the district court
lacked subject matter jurisdiction over claims against AirAsia
X, leaving at issue only their claims against AirAsia. As to
those latter claims, we typically would assess subject matter
jurisdiction before personal jurisdiction. But a court “does not
abuse its discretion by turning directly to personal jurisdiction”
when it “has before it a straightforward personal jurisdiction
issue presenting no complex question of state law, and the
alleged defect in subject-matter jurisdiction raises a difficult
and novel question.” Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 588 (1999); see also Forras v. Rauf, 812 F.3d 1102,
1105 (D.C. Cir. 2016). As the district court appreciated, such
is the case here: No federal court has interpreted Article
33(2)’s requirement of presence in a forum state, and an
examination of the Montreal Convention’s text and drafting
history makes for a complicated inquiry. The question of
personal jurisdiction, on the other hand, turns out to be
relatively straightforward. We thus begin and end there.

A. Personal Jurisdiction

We review the district court’s dismissal for lack of
personal jurisdiction de novo and its denial of jurisdictional
discovery for abuse of discretion. See Livnat v. Palestinian
Auth., 851 F.3d 45, 48 (D.C. Cir. 2017). “Federal courts
ordinarily follow state law in determining the bounds of their
jurisdiction over persons.” Daimler, 571 U.S. at 125 (citing
Fed. R. Civ. P. 4(k)(1)(A)). “The plaintiffs have the burden of
establishing the court’s personal jurisdiction” over the
defendant. FC Inv. Grp., 529 F.3d at 1091.

The Supreme Court has developed two distinct analyses of
the circumstances in which a forum state may, consistent with
due process, authorize its courts to exercise contact-based
 7
personal jurisdiction over a defendant. See Livnat, 851 F.3d at
56. The first, specific jurisdiction, “depends on an affiliatio[n]
between the forum and the underlying controversy, principally,
activity or an occurrence that takes place in the forum State and
is therefore subject to the State’s regulation.” Goodyear, 564
U.S. at 919 (alteration in original) (citation and internal
quotation marks omitted). The plaintiffs do not claim any
statutory basis for specific jurisdiction here, and there are no
facts to suggest the injury alleged relates to or arises from any
AirAsia contacts with the District of Columbia.

The second type of contacts-based personal jurisdiction,
general jurisdiction, “permits a court to assert jurisdiction over
a defendant based on a forum connection unrelated to the
underlying suit.” Livnat, 851 F.3d at 56 (quoting Walden v.
Fiore, 571 U.S. 277, 283 n.6 (2014)). Two District of
Columbia statutes provide for general jurisdiction.

Under D.C. Code § 13-422, a D.C. court can exercise
jurisdiction “over a person domiciled in, organized under the
laws of, or maintaining his[, her,] or its principal place of
business in, the District of Columbia,” without limitation to
claims arising from or related to the plaintiff’s D.C. domicile,
incorporation, or principal place of business.

Under section 13-334(a)—a service of process statute that
D.C. courts have interpreted to confer personal jurisdiction—a
D.C. court can exercise jurisdiction over a foreign corporation
“doing business in the District.” See Gonzalez v. Internacional
De Elevadores, S.A., 891 A.2d 227, 233 (D.C. 2006). To
establish jurisdiction under section 13-334(a), a plaintiff must
serve the defendant corporation in the District of Columbia. Id.
See generally Burnham v. Superior Court, 495 U.S. 604, 610-
15 (1990) (plurality opinion).
 8
The plaintiffs have failed to cite any statutory basis for
their assertion of general jurisdiction. But the defendant, a
Malaysian corporation without a principal place of business in
the District, clearly does not meet the conditions of section 13-
422. The only D.C. statute potentially supporting general
jurisdiction in this case is thus section 13-334(a), the “doing
business” provision, which was the basis addressed in our
precedent on which the plaintiffs relied. See FC Inv. Grp., 529
F.3d at 1091; Gorman, 293 F.3d at 509-10; see also El-Fadl v.
Cent. Bank of Jordan, 75 F.3d 668, 672-75 (D.C. Cir. 1996)
(accepting argument that defendant “has been doing business
in the District of Columbia” as invoking section 13-334(a)
despite plaintiff’s failure to cite it), abrogated on other grounds
by Samantar v. Yousuf, 560 U.S. 305 (2010).1

1
“For a claim that arises under federal law,” as a claim under the
Montreal Convention does, proper service of summons by a plaintiff,
even outside the forum state or the United States, establishes
personal jurisdiction in the forum state if (1) “the defendant is not
subject to jurisdiction in any state’s courts of general jurisdiction”
and (2) “exercising jurisdiction is consistent with the United States
Constitution and laws.” Fed. R. Civ. P. 4(k)(2); see also Mwani v.
bin Laden, 417 F.3d 1, 10 (D.C. Cir. 2005). The plaintiffs forfeited
Rule 4(k)(2) as a basis for personal jurisdiction by failing to raise it
before the district court or on appeal. See Herero People’s
Reparations Corp. v. Deutsche Bank, A.G., 370 F.3d 1192, 1196
(D.C. Cir. 2004); cf. Mwani, 417 F.3d at 11 n.10 (excusing plaintiffs’
failure to explicitly mention Rule 4(k)(2) where, unlike here, they
cited Rule 4 and made an argument based on “national contacts
personal jurisdiction”). They also forfeited a consent-based personal
jurisdiction argument—that an airline consents to personal
jurisdiction in any of the Article 33 forums when it operates in a
signatory state to the Montreal Convention—because their counsel
raised it for the first time at oral argument. Oral Arg. Rec. 3:18-4:07,
6:37-7:34; see Napleton 1050, Inc. v. NLRB, 976 F.3d 30, 50 (D.C.
Cir. 2020).
 9
“The D.C. Court of Appeals has indicated that the reach of
‘doing business’ jurisdiction under § 13-334(a) is co-extensive
with the reach of constitutional due process.” FC Inv. Grp.,
529 F.3d at 1092 (citation and internal quotation marks
omitted). The Constitution permits a court to exercise general
jurisdiction over a foreign corporation “when [its] affiliations
with the State are so ‘continuous and systematic’ as to render
[it] essentially at home in the forum State.” Goodyear, 564
U.S. at 919 (quoting Int’l Shoe Co. v. Washington, 326 U.S.
310, 317 (1945)). To be “essentially at home” in a state means
to be “comparable to a domestic enterprise in that State.”
Daimler, 571 U.S. at 133 n.11. The paradigm forums that meet
this standard are a corporation’s place of incorporation and its
principal place of business. Id. at 137. But the Supreme Court
has also recognized “the possibility that in an exceptional case”
another forum would qualify; provided other constitutional
criteria were met, a forum could exercise general personal
jurisdiction over a party whose contacts with the forum were
“so substantial and of such a nature as to render [the party] at
home in that State.” Id. at 139 n.19.

AirAsia is not subject to general jurisdiction in the District
for two independent reasons. First, the plaintiffs appear to have
failed to satisfy section 13–334(a)’s service of process
requirements. The district court did not address this issue
because it did not consider the statutory basis behind the
plaintiffs’ assertion of general jurisdiction. But the record
shows that the plaintiffs did not serve AirAsia in the District of
Columbia, as required by section 13–334(a). Instead, they
mailed copies of the summons and complaint to the defendant
in Malaysia. See Return of Service/Affidavit, Erwin-Simpson
v. AirAsia Berhad, No. 18-cv-83 (D.D.C. Mar. 29, 2018), ECF
No. 7. “Where the basis for obtaining jurisdiction over a
foreign corporation is § 13–334(a) . . . a plaintiff who serves
the corporation by mail outside the District is ‘foreclosed from
 10
benefitting from [the statute’s] jurisdictional protection.’”
Gorman, 293 F.3d at 514 (alteration in original) (quoting
Everett v. Nissan Motor Corp., 628 A.2d 106, 108 (D.C.
1993)).

Second, the exercise of general jurisdiction over AirAsia
fails as a matter of due process. As an initial matter, we note
that personal jurisdiction objections are forfeited if not
asserted, and neither defendant raised a statutory objection to
personal jurisdiction under section 13-334(a). They never
pointed out, for example, that they were not served within the
District as would be required for an assertion of general
personal jurisdiction under the statute. Cf. Foremost-
McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 453-
54 (D.C. Cir. 1990) (holding that defendant waived a
constitutional objection to personal jurisdiction where it raised
only a statutory objection before the district court). Because
section 13-334(a)’s requirement of service within the District
was not litigated, we consider the constitutional component of
personal jurisdiction on which the parties consistently focused
and the district court ruled: whether AirAsia’s contacts are so
substantial and of such a nature as to support general personal
jurisdiction over AirAsia in the District of Columbia.

There is no basis on which to conclude AirAsia’s contacts
are “so continuous and systematic as to render [it] essentially
at home” in the District. Daimler, 571 U.S. at 139 (alteration
in original) (citation and internal quotation marks omitted).
The airline operates no flights to the District and has no
physical presence in the forum. The only presence that it
identifies in the District is a website that is insufficient on its
own to render the airline “comparable to a domestic enterprise”
in the forum. Id. at 133 n.11. The plaintiffs focus on the fact
that D.C. residents can find and purchase tickets on AirAsia’s
website, arguing that such activity could support general
 11
jurisdiction if it were sufficiently voluminous. They
accordingly contend the district court should have granted
jurisdictional discovery into the extent and nature of such
transactions before dismissing for lack of personal jurisdiction.
But they do not identify any reason to think that use of
AirAsia’s website in the District would itself amount to forum
contact so substantial and of such a nature as to effectively
make AirAsia at home in the District of Columbia.

It is true that we have twice before held that a court might
be able to assert general jurisdiction over a nonresident
corporation on account of its in-forum online business alone.
See FC Inv. Grp., 529 F.3d at 1091-93; Gorman, 293 F.3d at
509-13. In Gorman, we permitted jurisdictional discovery into
the “frequency and volume” of an online broker’s internet
business transactions with D.C. residents to determine whether
those contacts could support general jurisdiction. 293 F.3d at
513. And in FC Investment Group, we said that there are
“certain circumstances” under which “a foreign corporation’s
maintenance of a website that is accessible in the District can
satisfy general jurisdictional requirements,” though we went on
to hold that that the “single District customer” the record in that
case reflected was insufficient to support general jurisdiction
or justify discovery seeking such support. 529 F.3d at 1092-
93. Applying the standard established by these cases to the
facts at hand might suggest that AirAsia’s website alone could
be sufficient to support general jurisdiction—or, at the very
least, to justify jurisdictional discovery.

As the district court correctly held, however, the reasoning
underlying our precedent has been eroded by intervening
Supreme Court decisions. Our precedent asked simply whether
the online business transactions between a foreign corporation
and D.C. residents were “continuous and systematic,”
following the way the Supreme Court’s sparse precedent on
 12
general jurisdiction had hitherto described its minimum
requirements. See Helicopteros Nacionales de Colombia, S.A.
v. Hill, 466 U.S. 408, 415-16 (1984); Perkins v. Benguet
Consol. Min. Co., 342 U.S. 437, 445-46 (1952). Since then,
Daimler and Goodyear have clarified that the proper inquiry
“is not whether a foreign corporation’s in-forum contacts can
be said to be in some sense ‘continuous and systematic,’” but
rather whether the contacts “are so ‘continuous and systematic’
as to render [it] essentially at home in the forum State.”
Daimler, 571 U.S. at 138-39 (alteration in original) (quoting
Goodyear, 564 U.S. at 919). Because Gorman and FC
Investment Group set a lower bar, we overrule our precedent
on that point as inconsistent with Daimler and Goodyear.2

This holding does not preclude the possibility that, under
the facts of some future case, a corporation’s online contacts
could support general jurisdiction. Cf. Kuan Chen v. U.S.
Sports Acad., Inc., 956 F.3d 45, 57 (1st Cir. 2020) (reserving
“the possibility that a corporation’s pervasive virtual presence
in a forum may be the linchpin for a finding that its business
2
Generally, a panel decision can be overruled only through en banc
review. But in cases that do not warrant the heavy administrative
burdens of en banc review, we have long recognized a panel can
instead seek the endorsement of the full court for its decision,
announcing that endorsement in a footnote of the panel decision. See
Irons v. Diamond, 670 F.2d 265, 268 n.11 (D.C. Cir. 1981); Policy
Statement on En Banc Endorsement of Panel Decisions 1 (Jan. 17,
1996). One type of case in which an Irons footnote is appropriate is
a decision “overruling a . . . precedent which, due to an intervening
Supreme Court decision . . . , a panel is convinced is clearly an
incorrect statement of current law.” Policy Statement 2-3. Because
this is just such a case, “this opinion has been circulated to and
approved by all of the active members of the court, and thus
constitutes the law of the circuit.” Nat’l Env’t Dev. Ass’n’s Clean
Air Project v. EPA, 891 F.3d 1041, 1052 n.* (D.C. Cir. 2018).
(Judge Garland did not participate in this matter.)
 13
contacts are so continuous and systematic as to render it at
home in the forum”). We hold only that, for online contacts
alone to be enough, they would need to render the corporation
“essentially at home” in the District, see id. at 57-58, and that
no facts alleged about AirAsia’s website or its use plausibly
suggest that this could be such a case. Because “we do not see
what facts additional discovery could produce that would affect
our jurisdictional analysis,” the district court did not abuse its
discretion in dismissing the case without granting discovery.
Goodman Holdings v. Rafidain Bank, 26 F.3d 1143, 1147
(D.C. Cir. 1994); see also Daimler, 571 U.S. at 139 n.20 (“[I]t
is hard to see why much in the way of discovery would be
needed to determine where a corporation is at home.”).

B. Request to Transfer

The plaintiffs also challenge the district court’s denial of
their alternative request to transfer this case to the District of
Hawaii. They sought transfer under 28 U.S.C. § 1406, which
permits a district court to either dismiss a case “laying venue in
the wrong division or district” or to transfer it to a court “in
which it could have been brought” if doing so would “be in the
interest of justice.” They argue the case could have been
brought in the District of Hawaii because, even if AirAsia’s
contacts with the District of Columbia were insufficient to
support general jurisdiction, its contacts with Hawaii could.
And, on appeal, they claim that transfer in this case would be
in the interest of justice because, if their claims here are
dismissed, any re-filing in Hawaii would be time-barred by the
Montreal Convention’s two-year statute of limitations.

We hold that the district court did not abuse its discretion
in denying plaintiffs’ request to transfer this case to the District
of Hawaii. See McFarlane v. Esquire Mag., 74 F.3d 1296,
1301 (D.C. Cir. 1996). The contacts on which the plaintiffs
 14
relied to support personal jurisdiction in arguing for transfer to
Hawaii were those of AirAsia X. But the district court
correctly recognized it had no authority to transfer claims
against AirAsia X, over which it lacked subject matter
jurisdiction. Assuming that the federal courts had subject
matter jurisdiction over the claims against AirAsia, the district
court’s lack of personal jurisdiction would not render our
district court powerless to transfer those claims. See Naartex
Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983).
But transfer would be permissible only if the district court
could determine that the District of Hawaii likely would have
personal jurisdiction over AirAsia. See Sharp Elecs. Corp. v.
Hayman Cash Reg. Co., 655 F.2d 1228, 1230 (D.C. Cir. 1981);
see also Sinclair v. Kleindienst, 711 F.2d 291, 294 (D.C. Cir.
1983).

Given that AirAsia has no contacts with Hawaii apart from
its website, the airline is no more at home in that forum than it
is in the District of Columbia. It is unlikely that AirAsia X’s
added contact with Hawaii—a flight it operates between
Honolulu and Malaysia—would support general jurisdiction
even if that contact could be imputed to AirAsia. See Daimler,
571 U.S. at 136 (“[S]ubject[ing] foreign corporations to general
jurisdiction whenever they have an in-state subsidiary or
affiliate . . . would sweep beyond even the ‘sprawling view of
general jurisdiction’ we rejected in Goodyear.” (citation
omitted)). Because the District of Hawaii is not a district “in
which [the action] could have been brought” against AirAsia
under 28 U.S.C. § 1406, we need not consider the plaintiffs’
claim that the transfer would have been in the interest of justice.
See Hoffman v. Blaski, 363 U.S. 335, 342-44 (1960)
(interpreting similar language in 28 U.S.C. § 1404).
 15
* * *

For the foregoing reasons, we affirm the district court’s
dismissal on the ground that it lacked personal jurisdiction over
AirAsia.

So ordered.