A company’s internet presence is no longer sufficient to subject it to general jurisdiction in the District of Columbia, unless the company’s online contacts with D.C. are so continuous and systematic as to render it essentially at home there.
D.C. Circuit cases holding to the contrary are overruled.
The D.C. Circuit declined to reach the alternative ground that the court lacked subject matter jurisdiction under Montreal Convention Article 33(2), but the district court’s opinion continues to provide important guidance for airlines with no physical presence in the United States.

The United States Court of Appeals for the D.C. Circuit has affirmed the dismissal of a personal injury lawsuit brought against the Malaysian-based airline AirAsia by a passenger and her husband. Erwin-Simpson v. AirAsia, No. 19-7034 (D.C. Cir. Jan. 19, 2021). This recent decision sets a new standard for establishing personal jurisdiction in the Circuit.1

District Court Dismissed Case Against AirAsia

The plaintiffs, who are DC residents and U.S. citizens, filed suit in the United States District Court for the District of Columbia against both AirAsia and its affiliate, AirAsia X, for injuries they allegedly sustained aboard an AirAsia flight from Malaysia to Cambodia. The plaintiffs brought suit under Article 33(2) of the Montreal Convention, which provides that most personal injury claims can be brought in the plaintiff’s home jurisdiction, provided the forum is a signatory to the Convention, the air carrier does business there and the forum has jurisdiction under local law.

The district court dismissed the plaintiffs’ claims against AirAsia on two independent grounds. First, as a matter of first impression, the court held that it did not have subject matter jurisdiction under Article 33(2) of the Montreal Convention which, by its terms, only provides the basis for jurisdiction in a U.S. court when the air carrier (1) conducts passenger air flights to or from the United States, and (2) maintains a physical presence in the United States. Because AirAsia operates entirely within Asia, the court did not have subject matter jurisdiction under Article 33(2). The court also held that it did not have subject matter jurisdiction over AirAsia X—a separate carrier that operates a single route to and from the United States (between Hawaii and Malaysia)—because it was not the carrier involved in the alleged injury. Nor could AirAsia X’s presence in the United States be imputed to AirAsia.

Second, the district court held it lacked personal jurisdiction over AirAsia. While there was D.C. Circuit precedent providing that a company’s website can provide the basis for general jurisdiction (or at least jurisdictional discovery) if it is interactive and used by DC residents in a continuous and systematic way, the district court concluded that the reasoning underlying that precedent had been abrogated by the Supreme Court’s rulings in Daimler AG v. Bauman, 571 U.S. 117 (2014) and Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011).

D.C. Circuit Affirms the Dismissal and Overrules Contrary Precedent

The plaintiffs conceded that the district court lacked subject matter jurisdiction over their claims against AirAsia X, but appealed the dismissal of their claims against AirAsia.

The D.C. Circuit described the district court’s Montreal Convention ruling in detail, but ultimately declined to rule on that issue because it was a matter of first impression and a complicated inquiry. It ruled solely on the issue of personal jurisdiction, as it was “relatively straightforward.”

The D.C. Circuit first found that there was no basis for exercising specific jurisdiction over AirAsia because the alleged injury occurred in Asia and there were no facts suggesting the alleged injury related to or arose from any contacts with the District.

It next found that the plaintiffs failed to establish a statutory basis for exercising general jurisdiction over AirAsia. The D.C. Circuit explained that D.C. Code section 13-334(a) allows courts to exercise general jurisdiction over a foreign corporation “doing business in the District,” provided the plaintiff serves the foreign corporation in the District. But the plaintiffs had served AirAsia by mailing copies of the summons and complaint to its address in Malaysia, presumably because AirAsia has no physical presence in the District and it was impossible for the plaintiffs to serve them there. The circuit court therefore held that AirAsia was not subject to general jurisdiction under section 13-334(a).

The D.C. Circuit then went on to hold that exercising general jurisdiction over AirAsia would violate constitutional due process. AirAsia does not operate any flights to or from the United States and has no physical presence in the United States. The plaintiffs nevertheless argued that AirAsia was subject to general jurisdiction in the District because DC residents can find and purchase tickets on AirAsia’s website.

The D.C. Circuit acknowledged that it previously held that a court may have general jurisdiction over a foreign corporation based on its online presence alone. In Gorman v. Ameritrade Holding Corp., 293 F.3d 506 (D.C. Cir. 2002), the court permitted jurisdictional discovery into the frequency and volume of a defendant’s online transactions with DC residents. And in FC Investment Group LC v. IFX Markets, Ltd., 529 F.3d 1087 (D.C. Cir. 2008), the court found that under certain circumstances, a foreign corporation’s maintenance of a website accessible in the District standing alone can satisfy general jurisdiction requirements.

The D.C. Circuit overruled both decisions as inconsistent with Daimler and Goodyear. It explained that Daimler and Goodyear require that a foreign corporation’s contacts be “so ‘continuous and systematic’ as to render it essentially at home in the forum.” Thus, a company’s website alone is not sufficient to establish general jurisdiction, unless its online contacts are so continuous and systematic as to render it essentially at home in the District. Because no such facts were alleged about AirAsia’s website, the circuit court affirmed its dismissal.

The D.C. Circuit also noted in a footnote that to avoid the administrative burdens of en banc review, it had sought the full court’s endorsement of its decision. It explained that the opinion had been circulated to and approved by the full court, “and thus constitutes the law of the circuit.”

The D.C. Circuit’s decision provides support for other foreign companies moving to dismiss lawsuits brought against them in the United States for lack of personal jurisdiction, especially if they may maintain websites accessible from the United States but have no physical presence here. And while the D.C. Circuit did not rule on the Montreal Convention issue, the district court’s ruling and rationale provide important guidance for airlines with no physical presence in the United States.

1 The authors represented AirAsia in this litigation.

These and any accompanying materials are not legal advice, are not a complete summary of the subject matter, and are subject to the terms of use found at: https://www.pillsburylaw.com/en/terms-of-use.html. We recommend that you obtain separate legal advice.