Saadat v. Ukraine International Airlines

• Court: District Court, S.D. California
• Decided: August 21, 2023
• Docket: 3:22-cv-00014
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ADDAS SAADAT and ARMIN REA Case No.: 3:22-cv-00014-H-JLB SAADAT, Individually and as Personal 12 Representatives and Successor-in-Interest ORDER GRANTING DEFENDANT’S 13 to the Estate of SARA SAADAT, MOTION TO DISMISS

14 Plaintiffs, [Doc. No. 12.] 15 v.

16 UKRAINE INTERNATIONAL AIRLINES, 17 Defendant. 18

19 On January 6, 2022, Plaintiffs Addas Saadat and Armin Rea Saadat (collectively, 20 “Plaintiffs”) filed a complaint against Defendant Ukraine International Airlines 21 (“Defendant.”) (Doc. No. 1.) On September 9, 2022, Plaintiffs filed a motion for an order 22 permitting service by publication, which the Court granted on October 17, 2022. (Doc. 23 Nos. 4, 7.) On April 26, 2023, Plaintiffs filed a request for entry of clerk default against 24 Defendant. (Doc. No. 11.) On May 4, 2023, Defendant filed the present motion to dismiss. 25 (Doc. No. 12.) On June 26, 2023, Plaintiffs filed their opposition to the motion to dismiss. 26 (Doc. No. 15.) On July 17, 2023, Defendant filed its reply in support of Defendant’s 27 motion to dismiss. (Doc. No. 18.) For the reasons below, the Court grants Defendant’s 28 1 motion to dismiss. 2 BACKGROUND 3 On January 6, 2022, Plaintiffs Addas Saadat and Armin Rea Saadat (“Plaintiffs”) 4 filed a complaint against Defendant Ukraine International Airlines (“Defendant”). (Doc. 5 No. 1.) Plaintiffs allege that on or about January 8, 2020, Defendant operated a Boeing 6 737-800 flight from Khomeini International Airport in Tehran, Iran to Boryspil 7 International Airport in Kyiv, Ukraine. (Doc. No. 1.) The decedent, Sara Saadat, was a 8 passenger onboard this flight. (Doc. No. 1.) Sara Saadat was a clinical psychology student 9 at Alliant International University in San Diego, California at the time of the accident. 10 (Doc. No. 1.) On or about January 8, 2020, Sara Saadat was ticketed to land in Kyiv, 11 Ukraine where she was to connect with another flight operated by Defendant to Toronto, 12 Canada and then on to Edmonton, Canada. (Doc. No. 1.) Plaintiffs allege that on or about 13 January 8, 2020, Sara Saadat was on her way to her final destination of San Diego, 14 California and that Sara Saadat began her round-trip travels in San Diego, California. (Doc. 15 No. 1.) While the decedent was onboard the flight, approximately three minutes after 16 taking off from Tehran, Iran, the aircraft was struck by two surface-to-air missiles. (Doc. 17 No. 1.) 18 In the days leading up the crash, Iran and other nations were openly engaged in acts 19 of aggression. (Doc. No. 1.) On January 8, 2020, at 2 a.m. local time, Iran launched a 20 series of ballistic missiles which struck two Iraqi bases housing U.S. troops. (Doc. No. 1.) 21 An hour and a half later, at 3:37 a.m. local time, the U.S. Federal Aviation Administration 22 issued an Emergency Order NOTAM which prohibited all U.S. operators from flying over 23 the airspace of Iran “due to heightened Military activities and increased political tensions 24 in the Middle East, which present an inadvertent risk to U.S. civil aviation operations due 25 to the potential for miscalculation or mis-identification.” (Doc. No. 1.) Although this 26 emergency order was only binding on U.S. air carriers and commercial operators, it was 27 immediately available to all air carriers, including Defendant. (Doc. No. 1.) Plaintiffs 28 allege that Defendant knew or should have known about the emergency order and should 1 have had updated risk assessments for their flight as a result. (Doc. No. 1.) 2 Despite the F.A.A. order, Defendant dispatched the flight for take-off from Tehran, 3 Iran to Kyiv, Ukraine on January 8, 2020. (Doc. No. 1.) As a result of the missile strike, 4 the plane crashed just minutes after taking off from the airport in Iran, and Sara Saadat, 5 along with all the other passengers, passed away. (Doc. No. 1.) 6 DISCUSSION 7 I. Legal Standards 8 Defendant argues that the Court should dismiss this complaint pursuant to Federal 9 Rules of Civil Procedure 12(b)(2) and 12(b)(5) on the grounds of lack of personal 10 jurisdiction and insufficient service of process. (Doc. No. 12 at 5.) Defendant also argues 11 that the Court should dismiss the complaint on the grounds of lack of subject matter 12 jurisdiction and forum non conveniens. (Doc. No. 12 at 6.) 13 a. Legal Standards for Forum Non Conveniens 14 “A defendant invoking forum non conveniens ordinarily bears a heavy burden in 15 opposing the plaintiff’s chosen forum.” Sinochem Intern. Co. Ltd. V. Malaysia Intern. 16 Shipping Corp., 549 U.S. 422, 430 (2007). “To prevail on a motion to dismiss based upon 17 forum non conveniens, a defendant bears the burden of demonstrating an adequate 18 alternative forum, and that the balance of private and public interest factors favors 19 dismissal.” Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011). 20 “The forum non conveniens determination is committed to the sound discretion of the trial 21 court.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). 22 b. Legal Standards for 12(b)(1) Motion to Dismiss 23 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 24 Co. of Am., 511 U.S. 375, 377 (1994). Under Federal Rule of Civil Procedure 12(b)(1), a 25 complaint may be dismissed for lack of subject matter jurisdiction. Fed. R. Civ. P. 26 12(b)(1). “Rule 12(b)(1) jurisdictional attacks can be either facial or factual.” White v. 27 Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “In a facial attack, the challenger asserts that 28 the allegations contained in a complaint are insufficient on their face to invoke federal 1 jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the 2 allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for 3 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 4 Federal district courts can only adjudicate cases “arising under the Constitution, 5 laws, or treaties of the United States.” Mims v. Arrow Financial Services, LLC, 565 U.S. 6 368, 376-77 (2012). The Montreal Convention “provides the exclusive remedy for 7 international passengers seeking damages against airline carriers.” Narayanan v. British 8 Airways, 747 F.3d 1125, 1127 (9th Cir. 2014). Where there is no jurisdiction under the 9 terms of the Montreal Convention, there is not federal subject matter jurisdiction under 28 10 U.S.C. Section 1331(a). See Sopcak v. N. Mountain Helicopter Serv., 52 F.3d 817, 818- 11 19 (9th Cir. 1995). 12 c. Legal Standards for 12(b)(2) Motion to Dismiss 13 Under Federal Rule of Civil Procedure 12(b)(2), a complaint may be dismissed for 14 lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). “Personal jurisdiction over a 15 nonresident defendant is tested by a two-part analysis. First, the exercise of jurisdiction 16 must satisfy the requirements of the applicable state long-arm statute. Second, the exercise 17 of jurisdiction must comport with federal due process.” Dow Chemical Co. v. Calderon, 18 422 F.3d 827, 830 (9th Cir. 2005) (quoting Chan v. Society Expeditions, 39 F.3d 1398, 19 1404-05 (9th Cir. 1994)). California's long-arm statute permits a court to “exercise 20 jurisdiction on any basis not inconsistent with the Constitution of [California] or of the 21 United States.” Cal. Civ. Proc. Code § 410.10. Thus, California's long-arm statute permits 22 courts to exercise personal jurisdiction within the limits of due process. Daimler AG v. 23 Bauman, 571 U.S. 117, 125 (2014). 24 “For a court to exercise personal jurisdiction over a nonresident defendant, that 25 defendant must have at least ‘minimum contacts’ with the relevant forum such that the 26 exercise of jurisdiction ‘does not offend traditional notions of fair play and substantial 27 justice.’” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) 28 (quoting International Shoe Co. v. Washington, 326 U.S. 210, 216 (1945)). There are two 1 bases for exercising personal jurisdiction over a non-resident defendant: (1) general 2 personal jurisdiction, and (2) specific personal jurisdiction. 3 “For a court to exercise general personal jurisdiction over a defendant corporation, 4 the defendant’s contacts with the forum state must be ‘so continuous and systematic as to 5 render [it] essentially at home in the forum state.’” Yamashita v. LG Chem, Ltd., 62 F.4th 6 496, 503 (9th Cir. 2023) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 7 U.S. 915, 919 (2011)). In general, a corporation is “at home” such that personal jurisdiction 8 exists in its “place of incorporation and principal place of business.” Daimler AG v. 9 Bauman, 571 U.S. 117, 118 (2014). 10 The Ninth Circuit employs a three-part test for determining specific personal 11 jurisdiction. A defendant is subject to specific personal jurisdiction in a particular state if 12 “(1) the defendant performed an act or consummated a transaction by which it purposely 13 directed its activity toward the forum state; (2) the claims arose out of defendant’s forum- 14 related activities; and (3) the exercise of personal jurisdiction is reasonable.” San Diego 15 County Credit Union v. Citizens Equity First Credit Union, 65 F.4th 1012, 1034-35 (9th 16 Cir. 2023). 17 The plaintiff bears the burden of establishing personal jurisdiction. Martinez v. Aero 18 Caribbean, 764 F.3d 1062, 1066 (9th Cir. 2014). “[T]he plaintiff need only make a prima 19 facie showing of jurisdictional facts.” Glob. Commodities Trading Grp. V. Beneficio de 20 Arroz Choloma, S.A., 972 F.3d 1101, 1106 (9th Cir. 2020). 21 d. Legal Standards for 12(b)(5) Motion to Dismiss 22 This Court lacks jurisdiction over defendants who have not been properly served in 23 accordance with Federal Rule of Civil Procedure 4. S.E.C. v. Ross, 504 F.3d 1130, 1138 24 (9th Cir. 2007). Rule 12(b)(5) of the Federal Rules of Civil Procedure permits a court to 25 dismiss an action for insufficient service of process. Fed. R. Civ. P. 12(b)(5). The burden 26 is on the plaintiff to prove that service was valid under Rule 4. Brockmeyer v. May, 383 27 F.3d 798, 801 (9th Cir. 2004). 28 / / / 1 II. Analysis 2 a. Forum Non Conveniens 3 Defendant argues that this action should be dismissed on the grounds of forum non 4 conveniens. (Doc. No. 12 at 22.) Defendant asserts that Canada, where two actions related 5 to the decedent for the same accident are currently pending, is an available and adequate 6 forum and that the private and public interest factors favor dismissal. (Doc. No. 12 at 22- 7 23); see Carijano, 643 F.3d at 1224. In response, Plaintiffs do not dispute that “Canada has 8 courts which undoubtedly can handle such cases and dispense justice.” (Doc. No. 15 at 9 14-15.) Instead, Plaintiffs assert that Defendant is not arguing whether Canada has courts 10 that can handle such cases, but rather, that Defendant is arguing that it can be served, or 11 will accept service, in Canada. (Doc. No. 15 at 14-15.) The Court disagrees. Defendant 12 first argues that Canada is an available and adequate forum and then states that “to the 13 extent Plaintiffs believe a third action for decedent’s death needs to be commenced in 14 Canada, UIA Canadian counsel will accept service of process on behalf of UIA.” (Doc. 15 No. 12 at 22-23.) 16 Plaintiffs, in their opposition, do not argue that Canada is not an adequate alternative 17 forum. Nor do Plaintiffs argue that the balance of private and public interest factors favor 18 dismissal. Instead, Plaintiffs merely assert that the decedent does not need a liability trial, 19 as “her case is ready for and deserves a damages trial here” and that the decedent’s damages 20 evidence is in San Diego. (Doc. No. 15 at 15.) Plaintiffs are incorrect that the decedent’s 21 case is ready for a damages trial in this Court. The Clerk of Court has yet to enter default 22 against the Defendant in this case. (Doc. No. 11.) Further, it is longstanding Ninth Circuit 23 policy that as a general rule, “default judgments are ordinarily disfavored” and “[c]ases 24 should be decided upon their merits whenever reasonably possible.” NewGen, LLC v. Safe 25 Cig, LLC, 840 F.3d 606, 616 (9th Cir. 2016) (quoting Eitel v. McCool, 782 F.2d 1470, 26 1472 (9th Cir. 1986)). 27 With this in mind, the Court first considers whether Canada is an adequate 28 alternative forum. “An alternative forum is deemed adequate if: (1) the defendant is 1 amenable to process there; and (2) the other jurisdiction offers a satisfactory remedy.” Id. 2 at 1225 (citing Piper, 454 U.S. at 254 n. 22.) Whether an alternative forum offers a 3 satisfactory remedy is a relatively low bar. The Ninth Circuit and Supreme Court have 4 made clear that “a foreign forum will be deemed adequate unless it offers no practical 5 remedy for the plaintiff’s complained of wrong.” Lueck v. Sundstrand Corp., 236 F.3d 6 1137, 1144 (9th Cir. 2001) (citing Piper, 454 U.S. at 250, 254 n.22.). It is undisputed that 7 Canada offers a satisfactory remedy for Plaintiffs. Indeed, Plaintiffs, in their opposition to 8 Defendant’s motion to dismiss, state that “[t]here is no question Canada has courts which 9 undoubtedly can handle such cases and dispense justice.” (Doc. No. 15 at 14-15.) It is 10 also clear that the Defendant is amenable to process in Canada. There are already 100 11 actions related to this incident pending in Canada, including two actions related to this 12 decedent. (Doc. No. 12-2, Hunter Decl.; Exh. B, Choupennejad Statement of Claim; Exh. 13 C, Hakimi Statement of Claim.) Further, Defendant has explicitly stated that to the extent 14 Plaintiffs want to commence a third action in Canada, Defendant will accept service in 15 Canada. (Doc. No. 12 at 23.) The Court concludes that Canada is an adequate, alternative 16 forum. 17 Having determined that Canada is an adequate, alternative forum, the Court must 18 now balance the private and public interest factors. See Carijano, 643 F.3d at 1224. “There 19 is ordinarily a strong presumption in favor of the plaintiff’s choice of forum, which may 20 be overcome only when the private and public interest factors clearly point towards trial in 21 the alternative forum.” Piper, 454 U.S. at 255. The strong presumption in favor of a 22 plaintiff’s choice of forum is lessened for foreign plaintiffs. See Carijano, 643 F.3d at 23 1227. Here, the decedent was a Canadian citizen who was living in San Diego, California 24 while completing her doctoral program. (Doc. No. 12-2, Hunter Decl.; Exh. E, Saadat 25 Passport). Plaintiffs have not provided any evidence that the decedent was a legal 26 permanent resident in the United States, nor that she was a citizen of the United States. 27 Keeping in mind that although Plaintiffs are not entitled to a strong presumption in favor 28 of the plaintiffs’ forum, “less deference is not the same thing as no deference.” Ravelo 1 Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir. 2000). Recognizing this, the Court considers 2 the private and public interest factors. 3 The private interest factors favor dismissal. The private interest factors include “(1) 4 relative ease of access to sources of proof; (2) the availability of compulsory process for 5 attendance of hostile witnesses, and cost of obtaining attendance of willing witnesses; (3) 6 possibility of viewing subject premises; and (4) all other factors that render trial of the case 7 expeditious and inexpensive.” Ranza v. Nike, Inc., 793 F.3d 1059, 1078 (9th Cir. 2015) 8 (quoting Loya v. Starwood Hotels & Resorts Worldwide, Inc., 583 F.3d 656, 664 (9th Cir. 9 2009)). Defendant Ukraine International Airlines is headquartered in and has its principal 10 place of business in Ukraine. (Doc. No. 12-1, Kabolina Decl.) However, because of the 11 100 pending actions in Toronto, Canada, discovery in Canada has been ongoing for 12 months. (Doc. No. 12-1, Hunter Decl.) Relevant witnesses and physical evidence related 13 to liability are located outside of the United States. On the contrary, no evidence or sources 14 of proof as to Defendant’s liability is in California. Defendant does not operate any flights 15 to or from the state of California and Defendant has no physical presence in the state of 16 California. (Doc. No. 12-1, Kabolina Decl.) 17 Finally, the public interest factors favor dismissal. The public interest factors 18 include “(1) administrative difficulties flowing from court congestion; (2) imposition of 19 jury duty on the people of a community that has no relation to the litigation; (3) local 20 interest in having localized controversies decided at home; (4) the interest in having a 21 diversity case tried in a forum familiar with the law that governs the action; [and] (5) the 22 avoidance of unnecessary problems in conflicts of law.” Ranza, 793 F.3d at 1078 (quoting 23 Loya, 583 F.3d at 664). Here, related cases are already pending before the courts in 24 Canada, and a trial on liability is scheduled for November 2023. (Doc. No. 12-2, Hunter 25 Decl.) The courts in Canada will almost certainly reach a verdict on the claims pending in 26 Canada before any court in the United States would be able to litigate the merits of this 27 action. As the Ninth Circuit concluded in Ranza, “the United States’ interest is 28 significantly diminished here because the district court would be relitigating claims already 1 decided in a foreign proceeding.” 793 F.3d at 1079. This controversy is far from localized 2 in San Diego – the crash involved a Defendant headquartered in the Ukraine and an injury 3 that occurred on a flight between Iran and Ukraine. Accordingly, because the Court 4 concludes that Canada is an adequate alternative forum and the private and public interest 5 factors favor dismissal, the Court grants Defendant’s motion to dismiss on the basis of 6 forum non conveniens. 7 b. Subject Matter Jurisdiction 8 Defendant argues that this Court does not have subject matter jurisdiction to hear 9 this claim under Article 33 of the Montreal Convention. (Doc. No. 12 at 18-22.) The 10 Montreal Convention, which was signed in 1999 and entered into force in November 2003, 11 governs the “international carriage of persons, baggage or cargo performed by aircraft for 12 reward.” Montreal Convention, art. 1(1). The Montreal Convention establishes a system 13 for passenger claims, including personal injury and wrongful death, arising out of an airline 14 accident. Montreal Convention, arts. 17-19. The Montreal Convention “provides the 15 exclusive remedy for international passengers seeking damages against airline carriers.” 16 Narayanan v. British Airways, 747 F.3d 1125, 1127 (9th Cir. 2014). “‘Questions of 17 jurisdiction and procedure . . . are governed by Article 28’ of the Warsaw Convention and 18 Article 33 of the Montreal Convention.” Wendelberger v. Deutsche Lufthansa AG, No. 19 18-cv-01055-PJH, 2018 WL 2387858, at *3 (N.D. Cal. May 25, 2018) (quoting Hosaka v. 20 United Airlines, Inc., 305 F.3d 989, 994-96 (9th Cir. 2002)). Because Article 33 of the 21 Montreal Convention was adopted from Article 28 of the Warsaw Convention, “in 22 interpreting the Montreal Convention, courts have routinely relied upon Warsaw 23 Convention precedent where the equivalent provision in the Montreal Convention is 24 substantively the same.” Narayanan, 747 F.3d at 1127 n.2. Where there is not jurisdiction 25 under the terms of the Montreal Convention, there is not federal subject matter jurisdiction 26 under 28 U.S.C. Section 1331(a). See Sopcak v. N. Mountain Helicopter Serv., 52 F.3d 27 817, 818-19 (9th Cir. 1995) (affirming dismissal of a claim under the Warsaw Convention 28 for “lack of subject matter jurisdiction” where “plaintiffs had failed to allege subject matter 1 jurisdiction under Article 28(1)”); see also Hornsby v. Lufthansa German Airlines, 593 F. 2 Supp. 2d 1132, 1135-36 (C.D. Cal. Jan. 6, 2009) (“Under the terms of the [Montreal] 3 Convention, this remedy can be pursued only in certain jurisdictions; if the United States 4 is not one of these jurisdictions under the particular facts of this case, than this Court does 5 not have treaty jurisdiction, and must dismiss the matter for lack of subject matter 6 jurisdiction.”) 7 Under Article 33 of the Montreal Convention, a passenger injured on an international 8 flight must bring an action for damages in one of the following five places: “(1) where the 9 carrier has its domicile; (2) where the carrier has its principal place of business; (3) where 10 [the carrier] has a place of business through which the contract has been made; (4) at the 11 place of destination; or (5) in the territory of a State Party in which at the time of the 12 accident the passenger has his or her principal and permanent residence (so long as the 13 carrier operates services to/from – and conducts business from leased or owned premises 14 in – such territory.)” Motlagh v. Qatar Airways, Q.C.S.C., 445 F. Supp. 3d 852, 855-56 15 (S.D. Cal. Apr. 3, 2020) (internal quotation marks omitted); see also Montreal Convention, 16 art. 33(1)-(3). Plaintiffs argue that this Court has jurisdiction under the Montreal 17 Convention because San Diego was the decedent’s place of destination. (Doc. No. 15 at 18 12.) Defendant argues that Plaintiffs have failed to provide sufficient evidence to establish 19 that the United States was the decedent’s destination for purposes of Article 33 of the 20 Montreal Convention, and thus, this Court lacks subject matter jurisdiction over the present 21 matter. (Doc. No. 18 at 9-10.) 22 Under the Montreal Convention, as under the Warsaw Convention, there can “only 23 be one destination” and “intermediate stops on trips are to be construed as agreed stopping 24 places that do not disturb that final destination.” Coyle v. P.T. Garuda Indonesia, 363 F.3d 25 979, 991 (9th Cir. 2004). Under Article 33, the place of destination is determined by the 26 “intention of the parties as expressed in the contract of transportation, i.e., the ticket or 27 other instrument.” Sopcak v. Northern Mountain Helicopter Service, 52 F.3d 817, 819 (9th 28 Cir. 1995). “Such contracts should be interpreted according to the objective, rather than 1 the subjective, intent of the parties.” Id. Although “a passenger’s intent is accorded 2 considerable weight in ascertaining the final destination, ‘[w]hen a contract is 3 unambiguous, the instrument alone is taken the express the intent of the parties.’” Id. 4 (quoting Swaminathan v. Swiss Air Transport Co., 962 F.2d 387, 389 (5th Cir. 1992)). 5 Courts in the Ninth Circuit have expressly considered whether tickets were purchased at 6 the same time and place in determining whether the parties intended “a single operation of 7 undivided transportation.” Petrire v. Spantax, S.A., 756 F.2d 263, 266 (2d Cir. 1985). See 8 e.g., In re Air Crash at San Francisco, California, on July 6, 2013, No. 14-cv-02038, 2017 9 WL 3484643 (N.D. Cal. Aug. 14, 2017) (concluding that the purchased tickets were part 10 of a “single operation of undivided operation transportation” in part because the plaintiffs 11 purchased their tickets at the same time and place and the tickets bear sequential numbers). 12 In determining whether there was a single undivided operation, “one party’s unilateral 13 expectation that a domestic flight is part of a single international trip is not enough to 14 convert that expectation into a reality.” Kruger v. United Air Lines, Inc., No. C-06-04907- 15 MHP, 2007 WL 3232443, at *5 (N.D. Cal. Nov. 1, 2007) (quoting Lemly v. Trans World 16 Airlines, Inc., No. 85-cv-7043-MJL, 1986 WL 5107, at *1 (S.D.N.Y. Apr. 29, 1986) aff’d 17 807 F.2d 26 (2d Cir. 1986)). 18 Here, the evidence presented by Defendant demonstrates that the decedent had 19 purchased a round-trip ticket from Edmonton, Canada to Tehran, Iran, with stops in 20 Toronto, Canada and Kiev, Ukraine. (Exh. A, PNR of Sara Saadat). Plaintiffs have 21 submitted two affidavits from their attorneys stating that the decedent intended to travel to 22 San Diego following her arrival in Edmonton, Canada. (Doc. No. 15-1, Schiavo Decl.; 23 Doc. No. 15-2, Genova Decl.) Despite these affidavits, Plaintiffs have submitted no 24 evidence demonstrating that these flights were part of one larger itinerary connected to San 25 Diego. Plaintiffs have not proffered evidence demonstrating that the decedent purchased 26 her round-trip tickets from San Diego to Edmonton at the same time and place as her round- 27 trip tickets from Edmonton to Tehran. Plaintiffs’ flights to and from San Diego are not 28 reflected on the itinerary from Edmonton, Canada to Tehran, Iran. Thus, the clear 1 “intention of the parties as expressed in the contract of transportation” suggests that the 2 incident occurred while the decedent was travelling round-trip between Edmonton, Canada 3 and Tehran, Iran. See Sopcak, 52 F.3d at 819. 4 The Ninth Circuit’s decision in Coyle is instructive. In Coyle, plaintiffs were 5 residents of Oregon who decided to visit Indonesia. 363 F.3d at 982. While in Indonesia, 6 Plaintiffs purchased two tickets for a round-trip flight from Jakara, Indonesia to Medan, 7 Indonesia aboard Flight 152. Id. While plaintiffs were aboard, Flight 152 crashed into the 8 side of a mountain, and all passengers died. Id. Plaintiffs’ estate filed suit in the United 9 States District Court for the District of Oregon. Id. at 983. The Ninth Circuit concluded 10 that the federal courts lacked subject matter jurisdiction to hear this case because the 11 objective evidence presented demonstrates that “the [plaintiffs’] flight to Medan was a 12 side-trip, unconnected to their larger international itinerary.” Id. at 993-94. The Ninth 13 Circuit noted that they “do not doubt the [plaintiffs’] desire to return to their Oregon home 14 at the end of their vacation” recognizing that “the final destination of their international 15 trip was Portland.” Id. at 991. Nonetheless, the court emphasized that “the crux of this 16 litigation is whether Flight 152 was a part of that larger international trip for purposes of 17 the Warsaw Convention – whether it was a component of “one undivided transportation . . 18 . regarded by the parties as a single operation . . .” Id. Here, Plaintiffs have not provided 19 any evidence to suggest that the flight from Edmonton to Tehran was part of a “single 20 operation of undivided transportation” between San Diego and Tehran, rather than a “side- 21 trip” unconnected to her trip to visit Edmonton from San Diego. Accordingly, because 22 jurisdiction is not proper in this Court under the Montreal Convention, this Court lacks 23 subject matter jurisdiction over the claims. 24 c. Personal Jurisdiction 25 Defendant also argues that the Court lacks personal jurisdiction over Plaintiffs. 26 (Doc. No. 12 at 15-17.) Plaintiffs, in their opposition, do not address whether or not this 27 Court has personal jurisdiction over the Defendant. “In opposition to a defendant’s motion 28 to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing 1 that jurisdiction is proper.” Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008). 2 Because Plaintiffs fail to address whether this Court has personal jurisdiction, the Court 3 concludes that Plaintiffs have failed to meet their burden of establishing personal 4 jurisdiction. Nonetheless, the Court concludes that Defendant is not subject to personal 5 jurisdiction in this Court. 6 Plaintiffs fail to establish that this Court has general jurisdiction over Defendant. 7 “With respect to a corporation, the place of incorporation and principal place of business 8 are paradigm bases for general jurisdiction.” Daimler AG v. Bauman, 671 U.S. 117, 137 9 (2014). Here, Defendant Ukraine International Airlines has its place of incorporation and 10 principal place of business in Ukraine. Defendant has no offices in California and operates 11 no flights to and from California, such that it could be considered “at home” in California. 12 The Court does not have general jurisdiction over Defendant. 13 The Court next considers whether there is specific personal jurisdiction over 14 Defendant. A defendant is subject to specific personal jurisdiction in a particular state if 15 “(1) the defendant performed an act or consummated a transaction by which it purposely 16 directed its activity toward the forum state; (2) the claims arose out of defendant’s forum- 17 related activities; and (3) the exercise of personal jurisdiction is reasonable.” San Diego 18 County Credit Union v. Citizens Equity First Credit Union, 65 F.4th 1012, 1034-35 (9th 19 Cir. 2023). The activity in issue here – the missile strike – occurred on a flight between 20 Iran and Ukraine. The evidence shows that the decedent on this flight booked a roundtrip 21 ticket between Edmonton, Canada and Tehran, Iran, with stops in Toronto, Canada and 22 Kiev, Ukraine. The fact that the decedent was attending school in San Diego, California, 23 is insufficient to confer specific personal jurisdiction upon Defendant for this claim. 24 Defendant does not operate flights to and from California, maintain offices in California, 25 or have employees in California. Defendant did not at the time of the missile strike and 26 does not at the present moment have any minimum contacts with California. Accordingly, 27 the Court concludes that it lacks personal jurisdiction over Defendant in this action. 28 / / / 1 d. Service of Process 2 Defendant argues that Plaintiffs failed to properly serve Defendant and moves for 3 || dismissal on the basis of insufficient service of process. (Doc. No. 12 at 7-15.) This Court, 4 ||on October 17, 2022, issued an order granting service by publication. (Doc. No. 7.) In that 5 || order, this Court explained that service by publication is permitted under Fed. R. Civ. P. 6 ||4(f)(3) “so long as it is both ordered by the court and not prohibited by an international 7 ||agreement.” (Doc. No. 7.) The Court found no language in the Hague Convention that 8 || would prohibit service by publication and other courts in this circuit have found the same. 9 || See, e.g., Indep. Film Dev. Corp. v. Junior Cap. Inc., No. cv-13-00259-BRO-RNB, 2015 10 || WL 12778352, at *3 (C.D. Cal. July 9, 2015). Accordingly, this Court concludes that 11 service by publication was permissible and denies Defendant’s motion to dismiss on the 12 || basis of insufficient service of process. 13 CONCLUSION 14 The Court grants Defendant’s motion to dismiss on the basis of forum non 15 || conveniens, and due to a lack of personal jurisdiction and subject matter jurisdiction. 16 || Because this Court cannot assert subject matter jurisdiction over the case based on any 17 modified complaint Plaintiffs may file, the Court dismisses the case with prejudice. The 18 || Clerk is directed to close the case. 19 IT IS SO ORDERED. 20 | DATED: August 21, 2023 | | | ul |. | | 21 59 MARILYN L. HUFF, Distric ge UNITED STATES DISTRICT COURT 23 24 25 26 27 28