United States District Court, E.D. Virginia, Alexandria Division
RAYMOND C. SELKE, et al., Plaintiffs,
GERMANWINGS GMBH, et al., Defendants.
MEMORANDUM OPINION AND ORDER
Bruce Lee United States District Judge
MATTER is before the Court on Defendants Germanwings GmbH
("Germanwings"), Deutsche Lufthansa AG
("Lufthansa"), and Eurowings GmbH's
("Eurowings") (collectively "Defendants")
Motion to Dismiss and/or for Summary JudgmentPursuant to
Federal Rules of Civil Procedure 12(b)(2) and 56. (Dkt. No.
42.) This case concerns a suit for money damages brought by
Plaintiffs Raymond C. Selke and Trevor J. Selke
("Plaintiffs") on two claims against Defendants for
liability in the crash of Germanwings Flight 9525, which
resulted in the death of Plaintiffs' family members,
Yvonne C. Selke and Emily E. Selke ("Selke
decedents"). First, Plaintiffs allege that Defendants
owe money damages under the liability parameters of the
Convention for the Unification of Certain Rules for
International Carriage by Air ("Montreal
Convention"),  an international air carriage treaty
ratified by the United States. Second, Plaintiffs in the
alternative charge that Defendants are liable for the deaths
of the Selke decedents based on a claim of negligence under
Virginia state law.
are five issues before the Court. The first issue is whether,
under Federal Rule of Civil Procedure 12(b)(2), the Court
should grant Defendant Gennanwings' Motion to Dismiss for
lack of personal jurisdiction, where Germanwings maintained
no physical presence in Virginia but sold tickets to Virginia
residents through an agent located in the Commonwealth. The
Court denies Germanwings' Motion to Dismiss because
Germanwings expressly authorized another airline to sell its
tickets in Virginia, thus availing itself of the privilege of
conducting business in the forum.
second issue is whether the Court should grant Defendant
Lufthansa's Rule 12(b)(2) Motion to Dismiss for lack of
personal jurisdiction, where Lufthansa authorized another
airline to sell tickets in Virginia on its behalf and
maintained steady operations from a Virginia airport. The
Court denies Lufthansa's Motion to Dismiss because in
addition to selling its tickets to Virginia residents through
an agent based in the forum, Lufthansa also employs Virginia
citizens and operates daily flights from Dulles International
third issue is whether the Court should grant Lufthansa's
Rule 56 Motion for Summary Judgment, where Lufthansa did not
provide the actual carriage that resulted in the deaths of
Plaintiffs' decedents. The Court grants Lufthansa's
Motion for Summary Judgment because the Montreal Convention
exclusively governs Plaintiffs' claims and
Lufthansa's status as a "successive carrier"
under the Convention does not confer liability for the crash
of Germanwings Flight 9525.
fourth issue is whether the Court should grant Defendant
Eurowings' Motion to Dismiss for lack of personal
jurisdiction, where the airline has no physical presence in
Virginia, was not party to the transaction that provided the
Selke decedents with carriage to Europe, and did not sell
tickets via its contractual relationship with an agent in
Virginia. The Court grants Eurowings' Motion to Dismiss
because Eurowings does not have minimum contacts in Virginia
sufficient for the Court to assert jurisdiction under the
requirements of the Due Process Clause.
fifth issue is whether the Court should grant Eurowings'
Rule 56 Motion for Summary Judgment where the airline did not
participate in nor contribute to any of the carriage that
resulted in the crash of Germanwings Flight 9525. Because the
Court may not exercise jurisdiction over Eurowings, the Court
does not address the issues raised by Eurowings' Rule 56
Raymond C. Selke and Trevor J. Selke ("Plaintiffs")
are the surviving members of the Selke family. Plaintiff
Raymond C. Selke is the surviving husband of Yvonne C. Selke
and father of decedent Emily E. Selke. (Dkt. No. 1 ¶ 2.)
Plaintiff Raymond C. Selke is also administrator of the
decedents' estates. Id. Plaintiff Trevor J.
Selke is the surviving son of Yvonne C. Selke and brother of
Emily E. Selke. (Id. ¶¶ 13, 14.)
Germanwings GmbH is a commercial airline organized and
existing under the laws of Germany. (Dkt. No. 42 ¶ 2.)
Germanwings also maintains its headquarters and its principal
place of business in Cologne, Germany. (Id. ¶
3.) Germanwings is an international air carrier that operates
flights to 103 destinations worldwide, none of which have
ever operated to or from Virginia, or any other state in the
United States. (Dkt. No. 45.) Germanwings does not have an
office in Virginia, or in any other state of the United
States, and does not employ any citizens of either Virginia
or the United States as a whole. (Id. at 10.)
Germanwings is a wholly owned subsidiary of Defendant
Lufthansa. (Dkt. No. 43-1 at 2.)
Deutsche Lufthansa AG is a commercial airline organized and
existing under the laws of Germany, with a headquarters and
principal place of business in Cologne, Germany. (Dkt. No.
43-1 at 11.) Lufthansa operates flights to 205 international
destinations, 19 of which are located in the United States,
including one in Virginia. (Id. at 10.) Lufthansa
also employs 430 citizens of the United States, 17 of whom
are residents of Virginia. Id. Lufthansa is the
parent corporation of both Germanwings and Eurowings. (Dkt.
No. 43-1 at 2.)
Eurowings GmbH is a commercial airline organized and existing
under the laws of Germany. (Dkt. No. 42 at 6.) Eurowings'
headquarters and principal place of business are located in
Diisseldorf, Germany. Id. Eurowings offers flights
to 124 international destinations, operating approximately 2,
767 flights per week. (Id. at 11.) Eurowings
provides carriage to several destinations in the United
States, including Seattle, Washington; Las Vegas, Nevada; and
Miami, Florida. Id. Eurowings has never operated any
flights from or to Virginia, does not maintain an office in
Virginia, and has never employed any Virginia residents.
Id. Eurowings is a wholly owned subsidiary of
Defendant Lufthansa. (Dkt. No. 43-1 at 2.)
United Airlines, Inc. ("United") is a Delaware
corporation with its principal place of business in Illinois.
(Dkt. No. 1 ¶ 15.) United is a domestic and
international air carrier that operates flights to and from
five destinations within the Commonwealth of Virginia and
employs 5, 700 Virginia citizens. (Dkt. No. 15-1 ¶ 34.)
Defendants' Business Relationships with United Airlines,
maintain business agreements with United that permit United
to sell tickets for flights performed by Germanwings,
Eurowings, and Lufthansa. (Dkt. 43-1 at 4-6.) Defendants'
ticketing agreements with United fall into two categories:
"interline" agreements and "codeshare"
agreements. Id. Germanwings, Eurowings, and
Lufthansa maintain interline agreements with United, which
involve business relationships where the carriers engage in
mutual acceptance of tickets and baggage, but operate
independently from one another. Id. Germanwings,
Eurowings, and Lufthansa each also have separate codeshare
agreements with United wherein United may sell under its own
authority passage on one of the other carriers. (Dkt. No.
43-1 at 6.) Under these codeshare sales, United assumes
responsibility for any flights booked despite the performance
of actual carriage by another airline. Id.
and United, along with 27 other airlines, are members of the
"Star Alliance, " an international group of air
carriers sharing mutual connection locations, reciprocal
frequent flier membership benefits, and flight check-in
recognition. (Dkt. 43-1 at 7.) Neither Germanwings nor
Eurowings is a member of the Star Alliance. Id.
Crash of Germanwings Flight No. 9525
allege that in or around February 2015, the Selke decedents
booked air carriage on five flights through United's
website for a European vacation scheduled from March 20, 2015
to March 29, 2015. (Dkt. 45 at 8.) Decedents were scheduled
to travel from Washington Dulles Airport in Virginia to
Munich, Germany on United, and then from Munich to Barcelona,
Spain on March 20, 2015 via Lufthansa. Id. On March
24, 2015, the Selke decedents were scheduled to travel from
Barcelona to Dtisseldorf, Germany on Germanwings, and then
from Dtisseldorf to Manchester, England on Germanwings.
Id. Finally, on March 29, 2015, decedents were
scheduled to return home from Manchester to Washington Dulles
via carriage provided by United. Id.
flight between Barcelona and Dusseldorf on Germanwings Flight
No. 9525 ("Flight 9525"), co-pilot Andreas Lubitz
locked himself in the cockpit and caused the plane to rapidly
descend and crash into the French Alps. (Dkt. No. 1 ¶
1.) Tragically, all 6 crew members and 144 passengers,
including the Selke decedents, were killed. Id.
allege that by not maintaining safety measures requiring two
crew members to remain present in the cockpit at all times,
Germanwings and, by association, Eurowings, Lufthansa and
United negligently operated Flight 9525, proximately causing
the crash that killed the Selke decedents. Id.
Standards of Review
Federal Rule of Civil Procedure 12(b)(2), the Court may
dismiss a case for lack of personal jurisdiction.
Fed.R.Civ.P. 12(b)(2). Plaintiffs bear the burden of proving
that personal jurisdiction exists by a preponderance of the
evidence. Combs v. Bakker, 886 F.2d 673, 676 (4th
Cir. 1989). When a court rules on personal jurisdiction
without an evidentiary hearing, the plaintiff must make
& prima facie showing of a sufficient
jurisdictional basis to survive the challenge. Id.
In such circumstances, a court must view all relevant
allegations in the light most favorable to the plaintiff and
draw all reasonable inferences for the existence of
jurisdiction. Combs, 886 F.2d at 676; see also
Mylan Labs v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.
whether a person is subject to personal jurisdiction requires
a two-step analysis. First, a court must conclude that
jurisdiction is authorized by the state's long-arm
statute. Mitrano v. Howes, 317 F.3d 402, 406 (4th
Cir. 2004). Second, the court must find that the exercise of
personal jurisdiction is consistent with the constitutional
requirements of the Due Process Clause of the Fourteenth
Amendment. Id. Virginia's long-arm statute
extends personal jurisdiction to the constitutionally
permissible limits of the Due Process Clause of the Fifth
Amendment. ePlus Tech., Inc. v. Aboud, 313 F.3d 166,
176 (4th Cir. 2002). Accordingly, "[b]ecause
Virginia's long-arm statute is intended to extend
personal jurisdiction to the extent permissible under the due
process clause, the statutory inquiry merges with the
constitutional inquiry." Consulting Eng'rs Corp.
v. Geometric Ltd., 561 F.3d 273, 277 (4th Cir. 2009).
to Federal Rule of Civil Procedure 56, the Court must grant
summary judgment if the moving party establishes that there
is no genuine dispute as to any material fact. Fed.R.Civ.P.
reviewing a motion for summary judgment, the Court views the
facts in a light most favorable to the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S.242, 255
(1986). If a motion for summary judgment under Federal Rule
of Civil Procedure 56 is properly made and sufficiently
supported, an opposing party has the burden of showing that a
genuine dispute exists. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Furthermore, "the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact." Anderson, 477 U.S. at 247-48.
"material fact, " for the purposes of the summary
judgment inquiry, is a fact that might affect the outcome of
a party's case. Id. at 248; JKC Holding Co.
v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th
Cir. 2001). Similarly, whether a fact is considered
"material" is determined by the substantive law
governing the claims alleged in the complaint.
Anderson, 477 U.S.at 248. Accordingly, "only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment." Id.; see also Hooven-Lewis v.
Caldera, 249 F.3d 259, 265 (4th Cir. 2001). Likewise, a
"genuine" dispute concerning a "material"
fact exists when the evidence is sufficient to allow a
reasonable jury to return a verdict in the non-moving
party's favor. Anderson, 477 U.S.at 248.
Additionally, Federal Rule of Civil Procedure 56(e) requires
that the non-moving party go beyond the pleadings and by its
own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Court denies Germanwings' Rule 12(b)(2) Motion to Dismiss
because Germanwings expressly authorized United to sell its
tickets in the forum of Virginia, thus reaching into the
state to conduct business using an agent as a sales proxy.
Court likewise denies Lufthansa's Rule 12(b)(2) Motion to
Dismiss because Lufthansa employs Virginia citizens, enjoys
the protection of Virginia laws while conducting business in
the forum, and operates daily flights from Dulles
International Airport in Virginia. However, the Court grants
Lufthansa's Rule 56 Motion for Summary Judgment because
Lufthansa's role as an interline carrier in the travel of
the Selke decedents does not confer liability under the
governing articles of the Montreal Convention, which
expressly preempts Plaintiffs' state law claims.
the Court grants Eurowings' Rule 12(b)(2) Motion to
Dismiss because Eurowings does not have sufficient contacts
in Virginia to satisfy the constitutional requirements for
the Court to assert specific personal jurisdiction.
Specifically, because Eurowings was not in any way a party to
United's sale of tickets to the Selke decedents, the
transaction does not implicate Eurowings, which otherwise has
no contacts with Virginia whatsoever.
the Court cannot assert personal jurisdiction, the Court need
not address Eurowings' Rule 56 Motion for Summary
Personal Jurisdiction Over Germanwings
Court has personal jurisdiction over Germanwings because the
airline purposely availed itself of Virginia by transacting
business in the Commonwealth through its agent, United. This
business activity resulted in the sale of tickets that gave
rise to Plaintiffs' cause of action. Furthermore, because
Plaintiffs are citizens of Virginia and adjudicating the
matter in this forum would not unduly inconvenience
Germanwings, the Court's assertion of personal
jurisdiction comports with the reasonableness requirements of
the Due Process Clause.
considering a challenge to personal jurisdiction, the Court
first asks whether Virginia's long-arm statute authorizes
personal jurisdiction over the defendant, and, second,
whether the assertion of jurisdiction runs afoul of the
requirements of the Due Process Clause of the Fourteenth
Amendment. Because Virginia's long-arm statute sweeps as
broadly as permitted by due process, the two inquiries
collapse into the same analysis of whether the assertion of
personal jurisdiction can withstand due process scrutiny.
See Peanut Corp. of Am. v. Hollywood Brands, Inc.,
696 F.2d 311, 313 (4th Cir. 1982).
court's assertion of personal jurisdiction to withstand
this review, a defendant must have "certain minimum
contacts . . . such that the maintenance of the suit does not
offend 'traditional notions of fair play and substantial
justice.'" Int'l Shoe Co. v.
Washington,326 U.S. 310, 316 (1945) (quoting
Milliken v. Meyer,311 U.S. 457, 463 (1940)). Such
"minimum contacts" exist if a defendant has
"purposely avail[ed] itself of the privilege of
conducting activities within the forum State, thus invoking
the benefits and protections of its law." Hanson v.
Denclda,357 U.S. 235, 253 (1958); see also Burger
King Corp. v. Rudzewicz,471 U.S. 462, 475 (1985)
("This 'purposeful availment' requirement
ensures that a defendant will not be haled into a
jurisdiction solely as a result of 'random, '
'fortuitous, ' or 'attenuated'
contacts."). In the Fourth Circuit, courts consider
three factors when analyzing personal jurisdiction over a
nonresident defendant: " the extent to which the
defendant purposefully availed itself of the privilege of
conducting activities in the forum state;  whether the
plaintiffs' claims arise out of those activities; and 
whether the assertion of personal jurisdiction is
constitutionally reasonable." Tir ...