Fisher v. Qantas Airways Ltd.
| Decision Date | 23 February 2021 |
| Docket Number | No. CV-20-00362-TUC-JCH,CV-20-00362-TUC-JCH |
| Citation | 521 F.Supp.3d 847 |
| Court | U.S. District Court — District of Arizona |
| Parties | Radford FISHER, Plaintiff, v. QANTAS AIRWAYS LIMITED, Defendant. |
Rohit Talwar, Talwar Law PLLC, Tucson, AZ, for Plaintiff.
James Gary Linder, Jones Skelton & Hochuli PLC, Phoenix, AZ, Justin Miles Schmidt, Pro Hac Vice, Michelle A. Rahban, Pro Hac Vice, Scott David Cunningham, Pro Hac Vice, Condon & Forsyth LLP, Los Angeles, CA, for Defendant.
Before the Court is Specially Appearing Defendant Qantas Airways Ltd.’[s] Motion to Dismiss for Lack of Personal Jurisdiction and Plaintiff's Motion for Extension to Respond to Defendant's Motion to Dismiss and to Conduct Jurisdictional Discovery (Docs. 9, 13.) Both motions are fully briefed. (Doc. 14, 15, 16, 17.) The Court finds the motions suitable for disposition without oral argument and Defendant's request for oral argument will be denied. See FED. R. CIV. P. 78(b) ; Partridge v. Reich , 141 F.3d 920, 926 (9th Cir. 1998). As explained below, the Court will order the parties to brief whether the Court should transfer this matter pursuant to the federal transfer statute, 28 U.S.C. § 1631. Defendant's motion to dismiss will be held in abeyance pending that briefing. Plaintiff's request conduct jurisdictional discovery will be denied.
On August 24, 2020, Plaintiff Radford Fisher (Plaintiff), an Arizona resident, filed his Complaint against Defendant Qantas Airways Limited (Qantas) seeking to recover for personal injuries sustained in a fall while deplaning a Qantas flight in Auckland, New Zealand in October 2018. (Doc. 1 at ¶¶ 2, 13, 15-25; Doc. 9 at 6, n. 1.) Plaintiff's claim is brought under a treaty of the United States, the Convention for the Unification of Certain Rules for International Carriage by Air (hereinafter, the "Montreal Convention" or "Convention"). (Doc. 1 at 2-3, ¶¶ 10-11.)
On December 14, 2020, Qantas filed its motion to dismiss for lack of personal jurisdiction. (Doc. 9.) On January 12, 2021, Plaintiff filed his request for an extension of time to respond to Defendant's motion and to conduct jurisdictional discovery. (Doc. 13.) Both motions are fully briefed. (Docs. 14, 15, 16, 17.)
On October 18, 2018, Plaintiff and his wife flew from Tucson, Arizona to San Francisco, California on United Airlines. (Doc. 1 at ¶ 15.) On October 20, 2018, they flew from San Francisco, California to Sydney, Australia and continued to Auckland, New Zealand on Qantas aircraft. Id. Because Plaintiff's wife needed wheelchair assistance, he and his wife boarded their flight in Sydney via a lift through the galley. (Doc. 10-1 at ¶ 8; Doc. 10-2 at ¶ 7.) According to Plaintiff, a flight attendant represented to them that upon their arrival in Auckland they would deplane using a wheelchair accessible jetway. (Doc. 1 at ¶ 18.) Contrary to the flight attendant's representation, Plaintiff alleges Qantas did not provide any assistance when they arrived in Auckland and, as a result, they had to descend stairs to deplane. Id. at ¶¶ 19-21. Plaintiff proceeded down the stairs with his wife behind him and with their two roll-on bags in tow. Id. at ¶ 22. As they neared the bottom of the stairs, they both fell. Id. at ¶ 23. Plaintiff landed on his left hip and hit his head on the tarmac. Id. He seeks damages in the amount of at least "113,100 Special Drawing Rights of the International Monetary Fund."1 Id. at ¶¶ 27-28.
Qantas is a corporation organized under the laws of Australia that provides international flights from the United States and foreign countries. (Doc. 1 at ¶¶ 3-4.) It provides for ticket purchases and operation of flights from the United States to New Zealand. Id. at ¶ 5. It is also a member of Oneworld, an airline alliance that allows member airlines to provide codeshare flights among Oneworld member airlines. (Id. at ¶ 6; Doc. 10-1 at ¶ 10.) As a member of Oneworld, Plaintiff claims that Qantas operates flights originating and terminating at "TUS."2 (Doc. 1 at ¶ 7.) According to Plaintiff, "Qantas regularly conducts business in Arizona through its own operations and through other air carriers that are members of [O]neworld." Id. at ¶ 9.
Qantas agrees that it is a member of Oneworld and contends that Oneworld partners are not subsidiaries, agents, or affiliates of Qantas, but are members of an alliance that allows member airlines to permit codeshare flights on member airlines’ aircraft. (Doc. 10-1 at ¶ 11.) According to Qantas's Head of Legal, Nicholas Brodribb (Brodribb), United Airlines is not a Oneworld member and American Airlines is a Oneworld member. Id. at ¶¶ 2, 12-13. Brodribb avows that at all relevant times, Qantas did not have any scheduled flights of its aircraft to or from any airport in Arizona. Id. at ¶ 5. It did not have any employees, offices, real estate, personal property, or bank accounts in Arizona. Id. at ¶ 6. It is not registered or authorized to do business in Arizona, does not maintain an agent for service of process in Arizona and does not pay taxes in Arizona. Id. at ¶ 7. None of the flight crew members for the flight Plaintiff took from Sydney, Australia to Auckland, New Zealand, are in Arizona. Id. at ¶ 9. Qantas avows that no documents or other information relevant to this case that is in its custody, control or possession are in Arizona. Id.
To rebut Qantas’ representation that it lacks contacts with Arizona, Plaintiff explains that he purchased his airline tickets through Katsinas Travel Consultants (Katsinas), a travel agency in Tucson, Arizona. (Doc. 14 at 4, ¶ 16; Doc. 14-1 at 34, ¶ 2-3, and 36, ¶ 12.) According to owner Scott Katsinas, Katsinas is an independent contractor for Nexion Travel Group ("Nexion"). (Doc. 14-1 at 35, ¶ 4.) Scott Katsinas claims that Nexion has numerous travel suppliers, one of which is Qantas, that authorize Katsinas to sell Qantas tickets to Arizona residents. Id. at 35, ¶¶ 5-6. Scott Katsinas's understanding is that Nexion's contract with Qantas expressly authorizes Katisnas to issue Qantas tickets and permits Nexion and its independent contractors, including Katsinas, to issue tickets in the same manner as Qantas itself. Id. at 35, ¶ 8. Scott Katsinas admits to not having seen the "exact contract" but offers, based upon his reading of Nexion's website, that Nexion "maintains ‘commissionable airline contracts’ with its suppliers, which [...] include[s] Qantas." (Doc. 14-1 at 35, ¶ 8.) Under Katsinas's arrangement with Nexion and Qantas, Nexion retains a commission and forwards the remainder of the payment to Qantas. Id. at 35, ¶ 9. Thereafter, Katsinas receives a commission directly from Nexion twice a month. Id. Scott Katsinas states that before 2020, he would issue one Qantas ticket per month to Arizona residents on average. Id. at 35, ¶ 10.
Scott Katsinas explains that Plaintiff bought tickets from Tucson, Arizona to San Francisco using "United mileage tickets." Id. at 36, ¶ 12. Katsinas issued "Qantas Business Class revenue tickets from SFO to New Zealand, via Sydney, through tickets issued by Nexion." Id. Plaintiff's return tickets were originally on a Qantas flight for November 5, 2018. Id. at 36, ¶ 13. However, Plaintiff ended up returning to the United States on November 2nd on an Air New Zealand flight from Queenstown, New Zealand to Auckland, New Zealand. Id. Then he flew on a Qantas flight from Auckland, New Zealand to Los Angeles, California and continued on an American Airlines flight from Los Angeles, California to Tucson, Arizona. Id.
Plaintiff also claims Qantas operates in Arizona through codeshare agreements with other airlines. (Doc. 14 at 11-14.) He offers as support for this claim unauthenticated website printouts from the Arizona Corporation Commission and American Airlines. See Doc. 14-1 at 68-71 (Arizona Corporation Commission printouts), and 73-74 (American Airlines website printouts). He points out that his return flight from Los Angeles, California to Tucson, Arizona was on American Airlines and that the ticket invoice reflects he and his wife's American Airlines’ frequent flyer numbers. Id. at 76-77, 79-80. Plaintiff relies on the apparent website information to claim that American Airlines’ frequent flyers can earn AAdvantage miles when flying on Qantas marketed and operated flights, as well as on Qantas codeshare flights operated by Oneworld carriers and affiliates. Id. at 83-86. He likewise relies on website information for his claim that Qantas frequent flyers can earn points when flying on American Airlines and that Qantas’ website refers to its relationship with American Airlines as a partnership. Id. at 90.
Qantas disputes that it has sold tickets through "agents," however, here, Brodribb states that Qantas does not have a direct contractual relationship with Nexion. (Doc. 16-1 at 2, ¶ 9.) Brodribb explains that Nexion, headquartered in Canada, has a large network of travel agents across the United States and Canada. Id. at ¶¶ 5-6. These travel agents purchase into the Nexion franchise and become Nexion authorized agents. Id. According to Brodribb, Nexion is a subsidiary of Travel Leaders Group and Tzell Travel Group (collectively, "Tzell"), both of which are headquartered in New York. Id. at ¶ 7.
Brodribb explains that during the relevant time frame, Qantas had a contract with Tzell, under which Tzell agents were authorized to access Qantas commissions, fares, and inventory. Id. at ¶ 8. Brodribb admits he has not seen the Tzell contract. Id.
First and foremost, Plaintiff argues that Qantas’ motion to dismiss must be denied because the Montreal Convention confers both subject matter jurisdiction and personal jurisdiction over Qantas in this Court. (Doc. 14 at 1, 5-11.) This Court agrees that it has subject matter jurisdiction over this case under...
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Brogdon v. Roman Catholic Archbishop of L. A.
...to present evidence is triggered only when the defendant's motion is itself supported by evidence. See Fisher v. Qantas Airways Ltd., 521 F.Supp.3d 847, 856 (D. Ariz. 2021) (explaining that a plaintiff must respond with evidence only “if the defendant submits evidence contradicting an alleg......