The opinion of the court was delivered by: Dearie, District Judge.
Plaintiff, a resident of the State of Washington, contracted in 2008 with Global Services Group (Middle East) FZE ("Global FZE") to provide airport security services in Baghdad, Iraq. Plaintiff's journey to Baghdad did not proceed as intended. After a flight cancellation while in transit, plaintiff was re-routed through Abu Dhabi with assurances that weapons in his checked baggage would pose no problems with the authorities. Instead, plaintiff was imprisoned for over one month under harsh conditions.
Again a free man, plaintiff brings an assortment of federal and state law claims against defendants Etihad Airways P.J.S.C. ("Etihad") and Deutsche Lufthansa AG ("Lufthansa") (collectively, the "Airline Defendants"), and against defendants Global Defense & Technology Systems, Inc. ("GTEC"), Global Strategies Group (United Kingdom) Limited ("Global UK") and Global Strategies Group Holding S.A. ("Global S.A.") (collectively, the "Global Defendants"). Finally, plaintiff seeks leave to amend his Complaint for a second time to assert additional claims against the Global Defendants and add Global FZE--the party with whom plaintiff contracted.
All defendants move to dismiss plaintiff's Amended Complaint (the "Complaint" or "Compl.") under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Additionally, the Global Defendants move to dismiss under Rule 12(b)(2) for lack of personal jurisdiction, and the Airline Defendants argue that the Montreal Convention limits or eliminates their potential liability. Etihad claims sovereign immunity under the Foreign Sovereign Immunity Act, 28 U.S.C. § 1602, et seq. For the reasons set forth below, the Global Defendants' motion to dismiss for lack of personal jurisdiction is granted, plaintiff's request for leave to file an amended complaint is denied, and the Airline Defendants' motions to dismiss are granted in part, but denied with respect to plaintiff's negligence claim.
The following facts are derived from Plaintiff's Amended Complaint and appended supporting materials.
Plaintiff is a United States Air Force veteran and former Aviation Security Inspector with the Department of Homeland Security. Compl. ¶ 4. Between 2006 and 2008, plaintiff provided security services to Iraq's Ministry of Transportation through Global FZE. Compl. ¶ 4, 10, 28, 32-33.
Lufthansa, a German corporation, is a foreign air carrier, which "regularly operates commercial air service into the Eastern District of New York at John F. Kennedy International Airport" ("JFK"). Compl. ¶ 6. Lufthansa maintains two offices in New York. Id.
Etihad, an Abu Dhabi public joint stock company, is a foreign air carrier, which also operates regular commercial air service into JFK. Compl. ¶ 7. Etihad is authorized to do business in New York by the Department of State. See ECF Docket # 2, Proof of Service. Etihad also maintains two offices in New York and sells tickets for carriage at JFK. Compl. ¶ 7. GTEC is a Delaware corporation headquartered in McLean, Virginia. Compl. ¶ 8. Global UK is an English corporation headquartered in London. Compl. ¶¶ 8-9. Global S.A. is a Luxembourg holding corporation. Compl. ¶ 8. According to the Complaint, these Global Defendants*fn1 sought "to take advantage of security and intelligence businesses on a worldwide level by holding themselves out to the public" and "conduct[ing themselves] as a single economic unit and enterprise." Id. For example, Global UK personnel in London "perform[ed] functions for other Global entities around the globe," such as responding to email and telephone inquiries. Compl. ¶ 9.
B. Factual Background 1. Plaintiff Contracts to Provide Airport Security Services Within Iraq In or about 2006, a Global employee in London solicited plaintiff "to facilitate Global's objectives at the Baghdad International Airport in Iraq." Compl. ¶ 28. Between 2006 and 2008, plaintiff completed three tours for Global FZE as a security consultant for the Iraq Ministry of Transportation at the Baghdad Airport. Compl. ¶¶ 30-33, 35.
In the summer of 2008, plaintiff again agreed "to return to work for Global in Baghdad at the airport as [plaintiff] had done several times before." Compl. ¶ 36. Having previously had "numerous difficulties with the provision of weaponry required for his employment," however, plaintiff received permission from Global to bring his own weapons for use during his impending fourth tour in Iraq.*fn2 Compl. ¶¶ 37-41.
Plaintiff's travel to Baghdad consisted of three legs. First, plaintiff flew via United Airlines from Washington to Frankfurt, Germany, where he was booked on a flight with Lufthansa to Dubai, in the United Arab Emirates ("UAE"). Compl. ¶ 42. Plaintiff would then remain "in transit" in Dubai for an Iraq airline flight directly to Baghdad.*fn3 Id. These flight arrangements "were approved by Global." Id. Nonetheless, plaintiff "was very concerned about the manner in which the firearms he had purchased would be transported to Baghdad." Id. Plaintiff inquired of representatives of United Airlines and Lufthansa, who informed plaintiff that "so long as his arrival at his destination with his firearms was approved and lawful, [they] would be pleased to carry his firearms." Compl. ¶¶ 44-45. Plaintiff "confirmed his arrangements with Global and with United." Compl. ¶ 46.
2. Plaintiff's Travels to Iraq Are Disrupted
On July 30, 2008, plaintiff arrived in Frankfurt to learn that his connecting flight to Dubai was cancelled due to a strike. Compl. ¶ 51. A Lufthansa representative then offered plaintiff two options: Plaintiff could remain in Germany and fly to Dubai the following day-in which case, plaintiff would miss his connecting flight to Baghdad-or fly that same day with Etihad to Abu Dhabi "and travel onward to Dubai on a Lufthansa chartered 'shuttle.'" *fn4 Id. Plaintiff opted for the latter option, but not before informing the Lufthansa agent of his concern about the weapons in his checked luggage. Compl. ¶ 52. The Lufthansa agent replied: "'This is no problem, now go, quickly, before the Etihad flight closes, pick up your boarding pass down the hall at the Etihad desk, and your bag will travel on the flight with you.'" Compl. ¶ 53. Prior to picking up his boarding pass, plaintiff also told an Etihad employee "face-to-face" about the contents of his baggage.*fn5 Compl. ¶ 56.
3. Abu Dhabi Officials Imprison Plaintiff
Upon entering the public terminal in Abu Dhabi, plaintiff could not immediately locate his luggage and Abu Dhabi police and customs officials then became involved. Compl. ¶ 59. Plaintiff claimed his luggage, identified his employer as "Global in Iraq," and explained the circumstances leading to the change in his itinerary, as well as the contents of his luggage, to "Etihad employees, to the police who investigated, and to the Customs Authorities who investigated." Id. Only then did plaintiff discover "that being 'shuttled' to Dubai meant entering the country of Abu Dhabi," necessitating an appropriate visa and a weapons license.*fn6 Compl. ¶¶ 59-60, 92 (emphasis in original). Plaintiff possessed a valid entry visa for Iraq alone. Compl. ¶ 62.
Ensuing events are hazy. Plaintiff spent the next several days "in a police controlled airport hotel." Compl. ¶ 64. "Within a day or so of his confinement at the airport," Lufthansa and Etihad offered plaintiff the opportunity to purchase a ticket back to Frankfurt and then on to Dubai, which would keep plaintiff "in transit" without having to enter Abu Dhabi. Compl. ¶ 86. According to a Lufthansa representative, this travel arrangement "'was something that they had done before for a group of English paramilitaries who had run into the same problem." Id. Plaintiff booked a flight on Etihad but "was told [by Abu Dhabi authorities] he could not fly out," and instead was transferred to a police station for interrogation. Compl. ¶¶ 65, 87.
On or about August 3, 2008, the Abu Dhabi police telephoned a Global employee named Martin Strutton to confirm the details of plaintiff's employment. Compl. ¶ 66. "[A]uthorities in Abu Dhabi" told plaintiff that had Strutton confirmed his employment, plaintiff "would have gone free." Id. A Global FZE employee named Kevin Pye instructed Strutton to "den[y] any knowledge of plaintiff's employment or involvement with Global." Id. Following Strutton's subsequent denial, plaintiff was convicted and incarcerated within the "Al Wathba Prison on the charges of unlawfully importing firearms into Abu Dhabi and entry without a visa." Compl. ¶ 69.
Plaintiff spent a total of thirty-seven days inside of Al Wathba. The conditions of plaintiff's confinement were "terrible," "revolting" and "deplorable." Compl. ¶¶ 72-75. For example, plaintiff's cell was overcrowded and unsanitary, he was deprived of both sleep and his blood pressure medication, and "[c]orporal punishment was frequent." Id. After plaintiff's release, authorities ordered plaintiff to remain in an expensive Abu Dhabi hotel, at his own expense, for an additional seventeen days. Compl. ¶¶ 77-78. According to plaintiff, his treatment and confinement has led to "life-long physical and mental damage," including a heart condition, a worsening of his blood pressure condition, and symptoms of Post-Traumatic Stress Disorder. Compl. ¶¶ 89-92. Later, upon checking his mail and email, plaintiff learned that Global FZE had terminated his employment only a few days after his arrest, on August 6, 2008, for his failure to arrive in Baghdad on schedule or inform Global FZE of his whereabouts. Compl. ¶ 78.
In July 2009, plaintiff commenced this action against the Airline Defendants. In November 2009, plaintiff amended the Complaint to include claims against all Global entities except for his alleged employer in the Middle East, Global FZE.*fn7 Defendants separately moved to dismiss the Amended Complaint in March 2010. By Order dated March 31, 2011, this Court granted the Global Defendants' motion to dismiss in its entirety and granted in part and denied in part the motions to dismiss by the Airline Defendants. See ECF Docket # 96. That Order describes the relevant procedural history in more detail; this Memorandum explains the Court's decisions.
A. The Court Lacks Personal Jurisdiction over the Global Defendants The Global Defendants moved the Court to dismiss all of Plaintiff's claims for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2).*fn8
In deciding a pre-trial motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), a district court has "considerable procedural leeway," and may make its determination on the "basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion." Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). A plaintiff is not entitled to jurisdictional discovery where the allegations are insufficient to "establish a prima facie case of [personal jurisdiction]." Jazini v. Nissan Motor Co., 148 F.3d 181, 185-86 (2d Cir. 1998). Nevertheless, when deciding a 12(b)(2) motion based solely on affidavits, a plaintiff may "defeat the motion [to dismiss on personal jurisdiction grounds] by pleading in good faith legally sufficient allegations of jurisdiction," Id. at 184 (internal citations and quotations omitted), all of which "are construed in the light most favorable to the plaintiff [with] . . . doubts . . . resolved in the plaintiff's favor." Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001) (internal quotations omitted).
The Court's inquiry is governed by Federal Rule of Civil Procedure 4(k)(1)(A), which "establishes personal jurisdiction over a defendant . . . who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located," Id., provided that "such an exercise of jurisdiction comports with the Fifth Amendment's Due Process Clause." Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 94 (2d Cir. 2000). For our purposes, therefore, the critical question is "whether the defendants may be subjected to the jurisdiction of the courts of the State of New York." Id. The sole alleged basis for personal jurisdiction over the Global Defendants is that they were "doing business" in New York State at the time the Complaint was filed and thus subject to "general personal jurisdiction." N.Y. C.P.L.R. § 301.
The "doing business" standard entails a high threshold showing. "[A] corporation is 'doing business' and is therefore 'present' in New York and subject to personal jurisdiction with respect to any cause of action, related or unrelated to the New York contacts, if it does business in New York 'not occasionally or casually, but with a fair measure of permanence and continuity.'" Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir. 1985) (quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267 (N.Y. 1917)). "[N]ecessarily fact intensive," the inquiry requires a district court to "analyze a defendant's connections to the forum state not for the sake of contact-counting, but rather for whether such contacts show a continuous, permanent and substantial activity in New York." Landoil Res. Corp. v. Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1990) (internal quotations omitted).
Each individual defendant company under the Global Defendant umbrella need not be subject to personal jurisdiction in their own right for this Court to exercise jurisdiction over them. "'Federal courts have consistently acknowledged that it is compatible with due process for a court to exercise personal jurisdiction over an individual or a corporation that would not ordinarily be subject to personal jurisdiction in that court when the individual or corporation is an alter ego or successor of a corporation that would be subject to personal jurisdiction in that court." Transfield ER Cape Ltd. v. Indus. Carriers, Inc., 571 F.3d 221, 224 (2d Cir. 2009) (quoting Patin v. Thoroughbred Power Boats, 294 F.3d 640, 653 (5th Cir. 2002)); see also ...