D.C. Circuit, Overruling Its Prior Caselaw, Holds That Local Access of Airline’s Website Does Not Support Personal Jurisdiction

In Erwin-Simpson v. AirAsia Berhad, No. 19-7034 (D.C. Cir. Jan. 19, 2021), the panel affirms an order dismissing a claim for injuries on a 2016 flight from Malaysia to Cambodia, holding that the allegations “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 plaintiff was burned by a flight attendant who spilled boiling water on her. She sued for negligence; her spouse also claimed loss of consortium. The couple brought their action “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 . . . . AirAsia is a low-cost airline that provides service across Asia; it does not operate any flights to or from the United States.”

“The claimed basis for jurisdiction” in the U.S. District Court for the District of Columbia was Article 33(2) of the Montreal Convention, 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 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.” Lacking controlling authority, the district court held that “the third clause requires that the carrier conduct business through a physical presence in the forum.”

“[T]he 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.” Although plaintiffs sought “jurisdictional discovery to determine the frequency and volume of AirAsia’s contacts with the District of Columbia through its website,” the court denied the request and dismissed on personal jurisdiction grounds.

The D.C. Circuit affirms. “Under section 13-334(a) [of the D.C. Code]—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.’” The statute has been held to reach the length of constitutional due process. Because the accident occurred outside of D.C., the only potential basis for personal jurisdiction is general jurisdiction, i.e., contacts “so substantial and of such a nature as to render [the party] at home in that State.”

The exercise of general jurisdiction over AirAsia, the panel holds, fails as a matter of due process. “The airline operates no flights to the District and has no physical presence in the forum.” The only contact asserted was a website where “D.C. residents can find and purchase tickets,” and plaintiffs sought discovery on the extent of local sales through that website. The panel holds, though, that there was no basis to believe “that AirAsia’s website alone could be sufficient to support general jurisdiction.”

In two recent decisions, Daimler AG v. Bauman, 571 U.S. 117, 139 (2014), and Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011), the Supreme Court clarified and narrowed the “continuous and systematic” standard to require that such contacts “to render [it] essentially at home in the forum State.” The panel used this occasion to overrule two early-2000s cases, Gorman and FC Investment Group, that enunciated a lower threshold and had suggested that a website might confer jurisdiction. While the panel does not rule out entirely the possibility of a website creating personal jurisdiction, “no facts alleged about AirAsia’s website or its use plausibly suggest that this could be such a case.”

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