Saying Yes to the World, But No to Personal Jurisdiction

“Lufthansa” by Priit Tammets (CC BY 2.0 DEED)

The Northern District of California (Judge Susan Illston) recently dismissed for lack of personal jurisdiction a suit brought by California residents against the German airline Lufthansa for harms emanating from the plaintiffs’ experience boarding a flight in Saudi Arabia en route to San Francisco. As the court noted in Doe v. Deutsche Lufthansa Aktiengesellschaft, the “plaintiffs’ assertion that California is the only practical venue for them to pursue their claims” is “sympathetic,” and “the allegations of the complaint, taken as true, are quite problematic.” And yet, the court concluded, its hands were tied.

I’m not so sure. The court’s analysis of specific jurisdiction misapplied Supreme Court precedent on the requirement of relationship, and its analysis of the reasonableness factors was, frankly, unreasonable. A strong argument could be made that the exercise of personal jurisdiction was entirely proper in this case. Notably, the court’s concerns sound more like adjudicative comity considerations—yet forum non conveniens would be a poor fit for this case as well. The fact that dismissal for forum non conveniens would be inappropriate in this case lends further support for the appropriateness of personal jurisdiction in California courts.

The Allegations

The plaintiffs are a gay couple who have maintained a 33-year relationship and were married in California in 2013. John Doe is a U.S. citizen and California resident who lives part time in Riyadh, Saudi Arabia, where he works as legal counsel for a company. Robert Roe is a Saudi Arabian citizen who lived and worked full-time in Riyadh. Doe and Roe must keep their relationship and sexual orientation hidden because homosexuality is a serious crime in Saudi Arabia.

In 2021, Doe and Roe booked tickets from Riyadh to San Francisco with a layover in Frankfurt, Germany. At the airport in Riyadh, the Lufthansa agent asked Roe to identify his familial relationship with a U.S. citizen as a precondition for checking in. Roe sought out the most senior Lufthansa agent on duty, Iqbal Jamshed, in order to discreetly disclose his marriage with Doe. Jamshed, however, was not discreet, declaring loudly his disbelief that the two men could be married and openly questioning them about their relationship. He brought other Lufthansa employees into the conversation; demanded copies of their passports, marriage certificate, and visa to send to Lufthansa’s headquarters in Germany; and ignored Doe’s pleas to protect the sensitivity of their relationship, including Doe’s concerns that the Saudi Arabian government might intercept communications sent to Germany. Doe and Roe were not allowed to board the flight until immediately prior to its departure.

Doe and Roe tried to mitigate the possible damage by speaking with Lufthansa’s employees on board both their initial flight to Frankfurt and their connecting flight to San Francisco, with the captains of both flights purportedly sending telexes to Lufthansa’s global security team. They allege that despite Lufthansa’s assurances, the Saudi Arabian government learned of their sexual orientation because of their treatment at the Riyadh airport. In particular, after this incident, the Saudi Arabian government’s official online profile for Doe changed his marital status from “single” to “married.” Roe has not returned to Saudi Arabia since the flight out of concern for severe punishment for his sexual orientation; instead, he had to scramble to secure a visa to remain in the United States and has received a provisional green card for permanent residency. As a result, Roe has been separated from his family, including from Doe, who must still work in Saudi Arabia for significant portions of the year.

Doe and Roe brought suit in California state court against Lufthansa Aktiengesellschaft (Lufthansa AG), a German corporation, as well as Lufthansa Group Business Services New York LLC (LGBS), which is organized under the laws of Delaware and has its principal place of business in New York. Lufthansa AG operated plaintiffs’ flights between Saudi Arabia and California, whereas LGBS provides business services for Lufthansa AG, including IT services. The plaintiffs asserted five causes of action under California law: public disclosure of private facts, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of contract, and loss of consortium. The defendants removed the complaint to federal court and then moved to dismiss for lack of personal jurisdiction. The court granted their motion.

Personal Jurisdiction: Relatedness

Starting with Lufthansa AG, the court correctly ruled out the exercise of general personal jurisdiction against the German corporation. For specific personal jurisdiction, the plaintiffs had to establish that Lufthansa AG (1) purposefully availed itself of California and that (2) the claim arises out of or relates to the defendant’s forum-related activities. Even if these two requirements are met, specific jurisdiction can be defeated if the defendant can show that (3) the exercise of jurisdiction would not be reasonable.

The first requirement was easily met in this case as Lufthansa has indisputably availed itself of the privileges of conducting business in California. It “regularly operates flights between Saudi Arabia and California, and regularly operates flights to and from San Francisco, Los Angeles, and San Diego.” The airline is registered to do business in California and has an agent for service of process there, in addition to 41 employees in California and offices in the San Francisco and Los Angeles airports. The defendants tried to argue that because the plaintiffs allege some intentional torts, the Ninth Circuit’s test for “purposeful direction” should apply instead of its test for “purposeful availment.” As the district court correctly noted, however, there is neither a rigid dividing line between the two nor a strict categorization of claims. Here, there is no question that Lufthansa AG has purposefully established ongoing, direct connections with the state of California.

The court, however, concluded that the plaintiffs’ claims did not arise out of or relate to these California contacts because they booked their flights while in Saudi Arabia, their claims derive from the encounter at the Riyadh airport, and the disclosure of their personal information took place outside the United States. This analysis significantly underplayed the relationship between the plaintiffs’ claims and their chosen forum. As in Ford Motor Co. v. Montana Eighth Judicial District (2021), Lufthansa AG has deliberately cultivated a market in California. Doe, a California resident (even if only for part of the year), was induced by Lufthansa’s market presence in California to purchase Lufthansa tickets to fly to California, where he owns a residence. The service that Lufthansa provides in California is to fly people like Doe and Roe into California, and Doe and Roe’s causes of action derive from their flights bound for the state.

The court erroneously invoked Walden v. Fiore (2014) for the proposition that “the fact that a forum resident experiences harm in a forum state, on its own, is not enough—there must be some conduct on the part of the defendant in the forum state that is connected the plaintiff’s claims.” Walden was a case about purposeful availment, not the relationship between those purposeful state contacts and the plaintiff’s claim. Here, Lufthansa AG has ample volitional contacts with the state of California. Walden has nothing to say about the next step in the analysis: whether those contacts are sufficiently related to plaintiffs’ claims.

Perhaps the court was confused because Walden also involved allegations about the plaintiffs’ treatment at an airport. But in Walden, the defendant was a government agent whose job it was to investigate suspicious behavior regardless of passengers’ destination. The fact that the plaintiffs in Walden were about to board a flight to their home state of Nevada could not, on its own, establish the government agent’s purposeful availment of the state of Nevada. Here, in stark contrast, Lufthansa AG not only knew where the plaintiffs were heading, but itself provided the transport to get them there—and, significantly, the alleged harm arose from that act of transportation itself.

The court distinguished other cases involving claims by U.S. citizens against foreign airlines on the basis that in those cases, the plane tickets were purchased in the United States. By this reasoning, there would have been personal jurisdiction over Doe and Roe’s causes of actions based on their treatment in the Riyadh airport if they had been on the return leg of a roundtrip ticket purchased in California. This is not a sensible jurisdictional dividing line: it does not turn on any different behavior of the defendant, but on the happenstance of the plaintiffs’ ordering of their affairs. As in Ford, Lufthansa AG has purposefully developed a market in California; plaintiffs were induced to purchase Lufthansa tickets as a result of that California presence; and they allege harm resulting from their use of Lufthansa’s services to fly into the state. Those facts establish the requisite relationship between the forum, the defendant, and the dispute.

Personal Jurisdiction: Reasonableness

Still more shocking was the court’s alternative holding that, even if minimum contacts were established, the exercise of jurisdiction in this case would be unreasonable (a question the court reached even though it noted that the defendants, who bear the burden to establish unreasonableness, addressed the argument only in their reply briefs). The Ninth Circuit uses its own set of seven reasonableness factors:

(1) the extent of the defendant’s purposeful interjection into the forum state’s affairs; (2) the burden on the defendant of defending in the forum; (3) the extent of conflict with the sovereignty of the defendant’s state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff’s interest in convenient and effective relief; and (7) the existence of an alternative forum.

At least six of these factors strongly support the reasonableness of the California forum. Lufthansa AG has purposefully interjected itself into the forum: it maintains offices and dozens of employees in the state and regularly operates major flights into three different airports. That presence also means that defending within the forum should not be unduly burdensome. California has an interest in adjudicating the dispute given that both plaintiffs now reside in the state, and one of them was a California resident before the incident occurred. The case also pertains to the conduct of a major airline routinely ferrying passengers into the state. Litigation in California is efficient, given the presence of all parties there and the inability of Roe to travel outside of the United States while his U.S. citizenship is pending. And there is not a meaningful alternative forum: the plaintiffs cannot litigate this case in Saudi Arabia, and Germany would have no greater access to evidence than California would while significantly burdening the plaintiffs’ practical ability to seek relief.

The court focused solely on the third and fifth factors. It worried about the foreign policy implications of judging a claim that the Saudi Arabian government covertly monitored Lufthansa’s emails or used informants and about applying California tort law to Saudi Arabia, “a society with very different societal and cultural norms.” The court was also concerned about having to interpret European and German data privacy laws and to resolve choice-of-law questions.

Respectfully, the latter task is simply part of the workload of the federal courts, particularly in the exercise of diversity jurisdiction assigned by Congress. There is nothing novel or extraordinary in a U.S. court being asked to interpret the EU’s General Data Protection Regulation, and the choice-of-law questions in this case seem straightforward. On the former concern, international comity does not require the United States to forsake human rights principles for fear of offending nations that do not respect them. The court’s reasoning that Saudi Arabia’s “very different societal and cultural norms” requires special deference risks permitting other countries to override fundamental U.S. social policy.

Would Other Doctrines Warrant Dismissal?

What really seems to be motivating the court is a concern for offending Saudi Arabia by implication. That sounds most like the overbroad understanding of the act-of-state doctrine that the Supreme Court retired in W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp. (1990). As the Supreme Court there explained, just because a foreign government’s conduct might be cast in a negative light does not mean that a claim against a private party is nonjusticiable.

More generally, whether a U.S. court would be the most appropriate forum for a dispute is not a jurisdictional matter, but a question of abstention. And the most appropriate doctrine of negative adjudicative comity for a case like this (in which there is no parallel litigation and for which the act-of-state and political question doctrines are not applicable) would be forum non conveniens. But analyzing this case through the lens of forum non conveniens further illustrates why California was an appropriate forum for this dispute.

First, because both plaintiffs are U.S. residents, their choice of a U.S. forum (in their state of residence, no less) should receive the greatest deference. Second, Saudi Arabia is not an available alternative forum, primarily because Saudi Arabia would not recognize the harm that plaintiffs are alleging. Although Germany might be an available alternative forum, the balance of private and public interests weigh strongly towards the U.S. forum. On the private interest side of the equation, the only evidence in Germany would be corporate communications that are entirely within the control of Lufthansa AG to begin with. Meanwhile, forcing the plaintiffs to litigate in Germany would impose an undue burden, particularly for Roe, whose ability to travel outside of the United States is currently severely restricted. On the public interest side of the equation, this is not a controversy localized in Germany; there is a real California connection in the form of the plaintiffs’ residency and the continued operation of Lufthansa AG within the state. California law would likely apply to at least some of the claims, and the choice-of-law questions appear fairly typical and straightforward.

In short, the court appears to have used personal jurisdiction as a backdoor for prudential abstention, but the basis for declining jurisdiction in this case does not hold up on closer inspection. The fact that dismissal for forum non conveniens would not be warranted in this case lends further support to the existence of personal jurisdiction over Lufthansa AG.

Conclusion

The Supreme Court’s recent jurisprudence on personal jurisdiction is not easy to navigate. This decision may be an unfortunate casualty of that doctrinal muddle. It is to be hoped that the analysis is corrected by the Ninth Circuit on appeal.

Alternatively, the California legislature could step in. Given the extent of its operations within California, Lufthansa AG has unsurprisingly registered to do business within the state. According to the Supreme Court’s most recent personal jurisdiction decision, California could condition such registration on an acceptance of jurisdiction before California courts. California would not have to go as far as Pennsylvania has and require all foreign companies to submit to general jurisdiction on all claims. But claims against airlines arising from transportation to and from California would be an excellent candidate. One feels some sympathy for Justice Sonia Sotomayor, who may have joined that most recent decision precisely because of how severely the Supreme Court has curtailed both general and specific jurisdiction over large international corporations engaging in significant in-state business. Where stingy judicial opinions close one door, perhaps legislatures can open another.