Motlagh v. Qatar Airways, Q.C.S.C.

• Court: District Court, S.D. California
• Decided: April 3, 2020
• Docket: 3:18-cv-02829
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 KEYVAN NASSIRI MOTLAGH, Case No.: 3:18-cv-2829-BTM-AHG 11

Plaintiff, 12 ORDER GRANTING MOTION TO v. DISMISS FOR LACK OF 13 SUBJECT MATTER QATAR AIRWAYS, Q.C.S.C, a 14 JURISDICTION foreign business corporation d/b/a

15 QATAR AIRWAYS; and DOES 1-

25, inclusive, 16 Defendants. [ECF NO. 4] 17 18 Before the Court is Defendant Qatar Airways, Q.C.S.C.’s (“Defendant”) 19 motion to dismiss for lack of subject matter jurisdiction based on matters collateral 20 to the merits of this case. (ECF No. 4.) “A jurisdictional challenge under Rule 21 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic 22 evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 23 2003) (citations omitted). “Where the jurisdictional issue is separable from the 24 merits of the case, the judge may consider the evidence presented with respect to 25 the jurisdictional issue and rule on that issue, resolving factual disputes if 26 necessary.” Thornhill Pub. Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th 27 Cir. 1979) (citations omitted). “No presumptive truthfulness attaches to [the] 28 plaintiff's allegations, and the existence of disputed material facts will not preclude 1 the trial court from evaluating for itself the merits of jurisdictional claims.” Id. 2 (quotations, citations, and alterations omitted)). As always, the burden rests upon 3 the party asserting subject matter jurisdiction to demonstrate its existence. Id.; see 4 also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“It is to 5 be presumed that a cause lies outside [the Federal courts’] limited jurisdiction, and 6 the burden of establishing the contrary rests upon the party asserting jurisdiction.” 7 (internal citations omitted)). 8 In her complaint, Plaintiff alleges she suffered injury when she was struck by 9 a runaway food and beverage cart aboard a flight operated by Defendant traveling 10 from Tehran, Iran to Los Angeles, California, United States via Doha, Qatar on 11 January 1, 2017. (ECF No. 1, §§ 7-8.) Plaintiff asserts that this January 1, 2017 12 flight was the inbound leg of roundtrip air travel from/to Los Angeles (with 13 intervening stops in Doha and Tehran) and that she purchased her ticket while 14 living in Oceanside, California from a travel agent located in Tehran. She argues 15 that this Court has subject matter jurisdiction over this personal injury action under 16 28 U.S.C. § 1331 based upon the Montreal Convention,2 which provides that a 17 passenger injured on an international flight may bring an action for damages: (1) 18 where the carrier has its “domicile”; (2) where the carrier has its “principal place of 19 business”; (3) “where [the carrier] has a place of business through which the 20 contract has been made”; (4) “at the place of destination”; or (5) “in the territory of 21

22 23 1 “[W]here the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going 24 to the merits, the jurisdictional determination should await a determination of the 25 relevant facts on either a motion going to the merits or at trial.” Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983) (citations omitted). 26

27 2 i.e., Convention for the Unification of Certain Rules Relating to International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106–45, 1999 WL 33292734 28 1 a State Party in which at the time of the accident the passenger has his or her 2 principal and permanent residence” (so long as the carrier operates services 3 to/from – and conducts business from leased or owned premises in – such 4 territory). Montreal Convention, art. 33(1)–(3).3 Plaintiff argues that this Court 5 qualifies under the third, fourth, and fifth of the preceding categories with regard to 6 this action.4 7 Defendant, however, asserts that Plaintiff’s January 1, 2017 flight was 8 actually the outbound leg of roundtrip air travel from/to Tehran (with intervening 9

10 11 3 “(1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the 12 carrier or of its principal place of business, or where it has a place of business 13 through which the contract has been made or before the court at the place of destination. (2) In respect of damage resulting from the death or injury of a 14 passenger, an action may be brought before one of the courts mentioned in 15 paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and 16 to or from which the carrier operates services for the carriage of passengers by air, 17 either on its own aircraft, or on another carrier's aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of 18 passengers by air from premises leased or owned by the carrier itself or by another 19 carrier with which it has a commercial agreement. (3) For the purposes of paragraph 2, (a) ‘commercial agreement’ means an agreement, other than an 20 agency agreement, made between carriers and relating to the provision of their 21 joint services for carriage of passengers by air; (b) ‘principal and permanent residence’ means the one fixed and permanent abode of the passenger at the time 22 of the accident. The nationality of the passenger shall not be the determining factor 23 in this regard.” Montreal Convention, art. 33(1)–(3).

24 4 Plaintiff does not argue that this Court qualifies under the carrier’s principal place 25 of business or domicile/residence) categories of either the Montreal Convention or the Warsaw Convention. (See ECF No. 5, at 4-6; see also ECF No. 1, ¶ 2 26 (Defendant “is a foreign business corporation organized under the laws of Doha, 27 Qatar.”); ECF No. 4-3, at 3 (“[Defendant] is a corporation duly organized and existing under the laws of Qatar and maintains its principal place of business and 28 1 stops in Doha and Los Angeles). Further, Defendant asserts that Iran is not a party 2 to the Montreal Convention.5 Based thereon, Defendant argues that “the place of 3 departure and the place of destination” for Plaintiff’s relevant roundtrip travel were 4 not situated within the territory of a party to the Montreal Convention and therefore 5 this action is governed by the Montreal Convention’s predecessor, the Warsaw 6 Convention (as amended by the Hague Protocol).6 See Montreal Convention, art. 7 1(2);7 see also Alemi v. Qatar Airways, 842 F. Supp. 2d 847, 850 n.2 (D. Md. 2012) 8 9 5 (ECF No.4-4, at 15-23; see also ECF No. 4-2, at 3.) Plaintiff does not contest 10 Defendant’s assertion that Iran is not a party to the Montreal Convention. 11 6 i.e., Convention for the Unification of Certain Rules Relating to International 12 Carriage by Air, Oct. 12, 1929, 49 Stat. 3000, 3014, T.S. No. 876 (1934), note 13 following 49 U.S.C. § 40105 (the “Warsaw Convention”), as amended by the Protocol to Amend the Convention for Unification of Certain Rules Relating to 14 International Carriage by Air, S. Treaty Doc. No. 107–14, 1955 WL 45606 (the 15 “Hague Protocol”). The United States, Iran, and Qatar are all parties to the Warsaw Convention as amended by the Hague Protocol. (See ECF No. 4-4, at 3-13; see 16 also ECF No. 4-2, at 2-3.).) 17 7 “For the purposes of this Convention, the expression international carriage 18 means any carriage in which, according to the agreement between the parties, the 19 place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two 20 States Parties, or within the territory of a single State Party if there is an agreed 21 stopping place within the territory of another State, even if that State is not a State Party.” Montreal Convention, art. 1(2); see also id. at art. 1(1) (“This Convention 22 applies to all international carriage of persons, baggage or cargo performed by 23 aircraft for reward.”); Warsaw Convention, art. 1(2) (“For the purposes of this Convention, the expression international carriage means any carriage in which, 24 according to the agreement between the parties, the place of departure and the 25 place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two High Contracting 26 Parties or within the territory of a single High Contracting Party if there is an agreed 27 stopping place within the territory of another State, even if that State is not a High Contracting Party.”), as amended by Hague Protocol, art. 1(1). (See also ECF No. 28 1 (concluding Montreal Convention inapplicable to roundtrip travel from/to Iran 2 because Iran is not a signatory thereto); Sajajed v. Emirates Airlines, 2017 WL 3 1150403, at *4 (N.D. Cal. Mar. 28, 2017) (same). Notably, the Warsaw Convention 4 provides that a passenger injured on an international flight may only bring an action 5 for damages: (1) “where the carrier is ordinarily a resident”; (2) “where the carrier 6 . . . has his principal place of business”; (3) “where the carrier . . . has an 7 establishment by which the contract has been made”; or (4) “at the place of 8 destination.” Warsaw Convention, art. 28(1);8 Coyle v. P.T. Garuda Indonesia, 363 9 F.3d 979, 986 (9th Cir. 2004) (“[U]nless one of these enumerated places is within 10 the United States, no American court can take cognizance of a suit predicated on 11 the Warsaw Convention.” (citations omitted)). Defendant argues that this Court 12 does not satisfy any of the foregoing categories and therefore lacks subject matter 13 jurisdiction over this action. See Warsaw Convention, art. 17, 24;9 El Al Israel 14 15 way international flights when both countries (departure and destination) have 16 ratified the Convention, and (2) roundtrip international travel that begins and ends 17 in a country that has ratified the Convention.”).)

18 8 “An action for damages must be brought, at the option of the plaintiff, in the 19 territory of one of the High Contracting Parties, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of 20 business, or has an establishment by which the contract has been made or before 21 the Court having jurisdiction at the place of destination.” Warsaw Convention, art. 28(1). 22

23 9 Warsaw Convention, art. 17 (“The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury 24 suffered by a passenger, if the accident which caused the damage so sustained 25 took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”); id. at art. 24 (“(1) In the cases covered by articles 26 18 and 19 any action for damages, however founded, can only be brought subject 27 to the conditions and limits set out in this convention. (2) In the cases covered by article 17 the provisions of the preceding paragraph shall also apply, without 28 1 Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 161, 175 (1999) (“[R]ecovery for 2 a personal injury suffered on board an aircraft or in the course of any of the 3 operations of embarking or disembarking [international air travel], if not allowed 4 under the [Warsaw] Convention, is not available at all. . . . The treaty precludes 5 passengers from bringing actions under local law when they cannot establish air 6 carrier liability under the treaty.” (internal quotations, citations, and alterations 7 omitted)). 8 Thus, the Court must determine the “place of departure” and “place of 9 destination” for Plaintiff’s roundtrip air travel of which the subject January 1, 2017 10 flight was a part. The parties agree that “[w]hen a passenger purchases a round 11 trip ticket, the destination is the place where the trip began.” (ECF No. 5, at 5 12 (citing Polanski v. KLM Royal Dutch Airlines, 378 F. Supp. 2d 1222 (S.D. Cal. 13 2005)).) See also Coyle v. P.T. Garuda Indonesia, 363 F.3d 979, 991 (9th Cir. 14 2004) (“[T]here can only be one ‘destination’ for Warsaw Convention purposes for 15 each passenger and . . . intermediate stops on trips are to be construed as ‘agreed 16 stopping places’ that do not disturb that final destination.” (citing In re Alleged Food 17 Poisoning Incident, Mar., 1984, 770 F.2d 3, 6-7 (2d Cir. 1985)); Swaminathan v. 18 Swiss Air Transp. Co., 962 F.2d 387, 389 (5th Cir. 1992) (“When a person 19 purchases a roundtrip ticket, there can be but one destination, where the trip 20 originated. This is true even when the flight number, time, and date on a return 21 trip are left open.” (citations omitted)). “[T]he intention of the parties as expressed 22 in the contract of transportation, i.e., the ticket or other instrument, determines the 23

24 25 suit and what are their respective rights.”); see also Montreal Convention, art. 29 (“In the carriage of passengers, baggage and cargo, any action for damages, 26 however founded, whether under this Convention or in contract or in tort or 27 otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are 28 1 final destination. Such contracts should be interpreted according to the objective, 2 rather than the subjective, intent of the parties.” Sopcak v. N. Mountain Helicopter 3 Serv., 52 F.3d 817, 819 (9th Cir. 1995); Klos v. Lotnicze, 133 F.3d 164, 167 (2nd 4 Cir. 1997) (“[T]he place of final destination for purposes of jurisdiction under the 5 Warsaw Convention is the return city appearing on a round-trip ticket.”). See, e.g., 6 Swaminathan, 962 F.2d at 388-89 (where passenger “purchased a roundtrip ticket 7 . . . which routed him from Dakar, Senegal to Geneva to New York to Geneva and 8 back to Dakar[,]” . . . New York City [was] merely an intermediate stopping point . 9 . . [and] Dakar, Senegal [was] the final destination”); In re Alleged Food Poisoning 10 Incident, 770 F.2d at 6 (where passenger “purchased one ticket, in two booklets, 11 for a round-trip journey” that “listed Riyadh as both the origin and destination of the 12 voyage[,] . . . the ultimate destination of th[e] journey was Riyadh, and not any 13 point within the United States. The stops in the United States were no more than 14 ‘agreed stopping places.’” (quoting Warsaw Convention, art. 1(2)) (citations 15 omitted)); Lee v. China Airlines Ltd., 669 F. Supp. 979, 980 (C.D. Cal. 1987) (where 16 “[t]he ticket . . . provided for transportation from Hong Kong to Taipei to San 17 Francisco to Hong Kong. . . . the departure point and the destination . . . must 18 officially be considered Hong Kong”); Sajajed v. Emirates Airlines, 2017 WL 19 1150403, at *3 (N.D. Cal. Mar. 28, 2017) (where ticket “provided roundtrip 20 transportation from and to Tehran, Iran, with intermediate stops in Dubai and San 21 Francisco[,] . . . [the] destination under Article 28 of the Warsaw Convention was 22 Iran.” (citations omitted)). “This focus on the tickets for passenger air 23 transportation does not, of course, necessarily mean that a court may not call upon 24 extrinsic evidence in order to make sense of the objective indicia presented by 25 those tickets—for instance, in deciphering an industry code affixed to a particular 26 flight coupon (by referring to trade usage); translating a foreign phrase or 27 expression (by referring to a dictionary); or observing that the record numbers 28 revealed on a particular flight coupon do not correspond to those on its asserted 1 companions (by, of course, referring to those asserted companions).” Coyle 363 2 F.3d at 988–89 (citations omitted). Indeed, “certain objective extrinsic evidence 3 may connect flights together as, or rule out the possibility that certain flights were, 4 part of an undivided transportation even when the flight coupons do not themselves 5 evince such a connection (or its absence).” Id. 6 While Plaintiff’s complaint is light on relevant details, she attests that her 7 roundtrip travel began with outbound air travel from Los Angeles to Tehran on 8 December 6, 2016 and ended with inbound air travel from Tehran to Los Angeles 9 on January 1, 2017. (ECF No. 6, at 2.) She further attests she ”booked [the] 10 round-trip ticket from Los Angeles . . . to Tehran . . . from a travel agency named 11 Setareh Elahiyeh in Tehran” while living in Oceanside, California. (Id.) Plaintiff 12 further attests that while she “had reserved a departure flight from [Los Angeles] 13 to Iran on April 4, 2017, [she] did not depart to Iran until July 4, 2017, which [she] 14 reserved on June 6, 2017 from . . . Setareh Elahiyeh” while living in Oceanside. 15 (Id.) Plaintiff provides an electronic ticket/itinerary for the December 6, 2016 air 16 travel from Los Angeles to Tehran (ECF No. 6-1, at 3-4 (the “12/06/2016 Ticket”)) 17 as well as the July 4, 2017 air travel from Los Angeles to Tehran (ECF No. 6-1, at 18 9-10 (the “07/04/2017 Ticket”)), but fails to provide any documentation for the 19 January 1, 2017 flight that is the subject of this action. (See ECF No. 6, at 2.) 20 In support of its arguments, Defendant submits two “Passenger Name 21 Records” associated with Plaintiff bearing booking reference numbers 7XMTZU 22 (ECF No. 8-1, at 5 (the “7XMTZU PNR”)) and 6VVPYP (ECF No. 4-4, at 25 (the 23 “6VVPYP PNR”), respectively.10 (See also ECF No. 4-3 (supporting affidavit of 24 25 26 10 “[W]here there is no individual passenger ticket for a court to examine at all[,] 27 attention to an ‘other instrument’ in determining the jurisdiction of this court for Warsaw Convention purposes is appropriate. In fact, it is quite necessary.” Coyle 28 1 Odete M. Costeira); ECF No. 8-1, at 1-3 (supplemental supporting affidavit)). The 2 7XMTZU PNR reflects roundtrip travel departing from Tehran to Los Angeles on 3 September 4, 2016 and returning to Tehran on December 6, 2016. (ECF No. 8-1 4 at 2-3, 5.) The 6VVPYP PNR reflects roundtrip travel departing from Tehran to 5 Los Angeles on January 1, 2017 and returning to Tehran on April 4, 2017. (ECF 6 No. 4-3, at 2; ECF No. 4-4, at 25; see also ECF No. 8-1, at 3.) Notably, the 7 12/06/2016 Ticket has the same reference number, ticket number, and “original” 8 ticket number as the 7ZMTZU PNR. (Compare ECF No. 6-1 at 3; with ECF No. 8- 9 1, at 5.) While the 07/04/2017 Ticket’s reference number and original ticket 10 number match those on the 6VVPYP PNR, it has a different flight date (4/4/2017 11 versus 7/4/2017) and a ticket number that does not appear on the 6VVPYP PNR. 12 (Compare ECF No. 6-1, at 9; with ECF No. 4-4, at 25.) A Customer Relations 13 Officer for Defendant attests that the 6VVPYP PNR indicates that Plaintiff 14 “travelled on the outbound leg of her roundtrip ticket” from Tehran to Los Angeles 15 on January 1, 2017 but did not travel “on the original dates for [her] return flight 16 from Los Angeles to Tehran” on April 4, 2017. (ECF No. 8-1, at 3 (citing ECF No. 17 4-4, at 25).) They further attest that all relevant tickets were “purchased in Iranian 18 Rial and . . . issued by Setareh Elahiyeh in Tehran.” (Id. at 2-3; see also ECF No. 19 4-3, at 3 (“As Setareh Elahiyeh is an IATA-accredited agency, it is permitted to sell 20 certain tickets for travel on behalf of IATA member airlines, including 21 [Defendant].”).) 22 Upon due consideration of the foregoing, the Court concludes that the 23 January 1, 2017 flight that is the subject of this action was part of the outbound leg 24 of roundtrip travel from/to Tehran. While Plaintiff attests that her understanding 25 was to the contrary, all of the objective evidence she presents to the Court is 26 consistent with roundtrip airfare from/to Tehran. Indeed, a comparison of the 27 tickets submitted by Plaintiff with the PNRs submitted by Defendant conclusively 28 demonstrate that the January 1, 2017 flight was part of roundtrip air travel 1 departing from Tehran on January 1, 2017 and returning to Tehran on April 4, 2017 2 (which Plaintiff subsequently rescheduled to return on July 4, 2017). Because 3 Tehran was therefore both “the “place of departure and place of destination” of the 4 roundtrip air travel upon which Plaintiff was injured and Iran is not a party to the 5 Montreal Convention, the Court concludes that the Warsaw Convention (as 6 amended by the Hague Protocol) governs this action and the Montreal Convention 7 is inapposite. Further, because Tehran was “the place of destination” – and Los 8 Angeles simply an “agreed stopping place” – for the relevant air travel, Plaintiff 9 may not rely upon “the place of destination” category of Article 28 of the Warsaw 10 Convention in bringing suit in this Court. See Warsaw Convention, art. 28(1); 11 Coyle, 363 F.3d at 991. 12 Thus, the only remaining basis upon which this Court would be a suitable 13 forum, and therefore have jurisdiction over this action, is if Plaintiff can 14 demonstrate the “where the carrier . . . has an establishment by which the contract 15 has been made” category of Article 28 of the Warsaw Convention is satisfied in 16 this forum. Plaintiff fails to make such a showing. As an initial matter, while Plaintiff 17 argues that she “purchased her ticket from her home in Oceanside” (ECF No. 5, 18 at 5), she attests only that she “was living in Oceanside at the time that [she] 19 booked” the relevant flights (ECF No.6, at 2). Nevertheless, even giving Plaintiff 20 the most generous reading of such equivocal testimony, she ignores that the 21 relevant standard is not where she “purchased” or “booked” her air travel (or even 22 where the relevant ticket was issued), but rather “where the carrier . . . has an 23 establishment by which the contract has been made.” Warsaw Convention, art. 24 28(1). Given Plaintiff’s attestation that she booked her air travel through a travel 25 agency located in Tehran and Defendant’s attestation that such travel agency had 26 the authority to sell tickets on Defendant’s behalf, the Court concludes that Tehran 27 is where Defendant “ha[d] an establishment by which the contract [with Plaintiff] 28 was made” for purposes of the Warsaw Convention. See id. Moreover, because 1 Plaintiff fails to identify any “establishment” maintained by Defendant or the 2 ||relevant travel agency that is located within the United States — let alone an 3 |}establishment “by which the contract [was] made” that is located within the 4 ||jurisdiction of this Court, this case is distinguishable from the only case Plaintiff 5 cites in support of her argument, Polanski. See Eck v. United Arab Airlines, Inc., 6 ||360 F.2d 804, 814 (2d Cir. 1966) (“The central purpose of Article 28(1)‘s third 7 ||provision was to make venue always proper in the country where the ticket was 8 || purchased—assuming it is a High Contracting Party— if, but only if, the defendant 9 ||has a place of business there.”); Polanski, 378 F. Supp. 2d at 1229-31 (“Although 10 || KLM is domiciled and maintains its principal place of business in The Netherlands, 11 ||it was registered as a foreign corporation in the State of Tennessee at the time of 12 || Andre Polanski's injury. Furthermore, as an alliance partner with Northwest, KLM 13 || essentially has a place of business in the United States through which it can make 14 |/contracts. Also, KLM admits that Northwest issues KLM tickets to United States 15 || residents, and refers to Northwest as KLM's ‘airline partner.’ Therefore, anywhere 16 || Northwest does business is a place of business in the United States through which 17 ||KLM can make contracts.” (citations omitted)); see also Kokkonen, 511 U.S. at 377 18 ||(“[T]he burden of establishing [the existence of subject matter jurisdiction] rests 19 |/upon the party asserting jurisdiction.”). Plaintiff fails to demonstrate any other 20 basis for subject matter jurisdiction. 21 Because Plaintiff fails to demonstrate that this Court has subject matter 22 ||jurisdiction over the instant action, Defendant's motion to dismiss for lack of 23 jurisdiction (ECF No. 4) is GRANTED and this action is DISMISSED FOR LACK 24 || OF SUBJECT MATTER JURISDICTION. 25 IT IS SO ORDERED. j 26 ||Dated: April 3, 2020 (led. Mitek 97 Honor le Barry Ted. Moskawitz United States District Judge