[00:00:00] Speaker 04: Thank you, your honor. [00:00:01] Speaker 04: Good morning and may it please the court. [00:00:03] Speaker 04: Donald Putterman for plaintiffs Doe and Rowe and with me is my partner Danielle Campbell. [00:00:12] Speaker 04: This is a motion to dismiss with all the usual rules that apply. [00:00:18] Speaker 04: Facts are taken as true. [00:00:21] Speaker 04: Well-plated facts are taken as true. [00:00:25] Speaker 04: Inferences favor the dismissed party and so on. [00:00:32] Speaker 04: The basic problem, as we see it here with the district courts, [00:00:37] Speaker 04: decision on the first two prongs is the district court in both instances was more rigid or pigeonholing the law compared with what the law in this circuit actually is and the controlling United States Supreme Court law including Volkswagen Burger King and Ford Motor on the second prong. [00:01:06] Speaker 04: This court has made very clear that on both prongs that a flexible standard should be applied to achieve substantial justice. [00:01:18] Speaker 04: Now, with regard to the issue of minimum contacts, [00:01:26] Speaker 04: The court did not actually decide that, but simply opined that if the standard was purposeful availment, the plaintiffs had made out a sufficient case, but if that the standard was purposeful direction, [00:01:41] Speaker 04: that the plaintiffs had not made out a sufficient case. [00:01:46] Speaker 04: The problem with this is that, first of all, the claims for relief in plaintiffs' complaint are mixed. [00:01:54] Speaker 04: There's a contract claim. [00:01:56] Speaker 04: There's intentional tort. [00:01:59] Speaker 04: There's negligent tort. [00:02:03] Speaker 04: All of this arises not from an intentional tort, but from the original contract of carriage that underlies this and what that contract incorporates in it. [00:02:14] Speaker 04: And this court has said in numerous cases, Yahoo, Davis, and others, that some combination is sufficient. [00:02:28] Speaker 04: In addition, the negligent tort [00:02:33] Speaker 04: itself does not require application of the purposeful direction standard. [00:02:40] Speaker 04: The standard in this case under both the old case of Holland America, which defendants claim to have been an isolated old case, but in fact was stated in the more recent 2023 Herbal Brands case to reflect the current law of the Ninth Circuit, is that [00:03:00] Speaker 04: A tort of negligence is satisfied with purposeful availment standard. [00:03:08] Speaker 01: Let me ask you this. [00:03:09] Speaker 01: You're obviously a very good lawyer, doing a good job for your client, but here's what troubles me. [00:03:17] Speaker 01: As I understand the facts, virtually everything that occurred here occurred in Riyadh. [00:03:24] Speaker 01: You alleged that there was failure to mitigate and transit, but of course, mitigation is a damages issue. [00:03:30] Speaker 01: It's not a cause of action. [00:03:32] Speaker 01: It's a question of how much you get if you have an original cause of action. [00:03:36] Speaker 01: So what, what is it that occurred in Riyadh that basically deals with California? [00:03:45] Speaker 01: The statute we're talking about jurisdiction has to do with the defendant, not with your clients. [00:03:49] Speaker 01: And by the way, I have great empathy for your clients. [00:03:53] Speaker 01: So understand that, but we're just talking about whether we have personal jurisdictions here. [00:03:56] Speaker 01: And I'm really struggling with this because I do not see. [00:04:01] Speaker 01: What occurred in Riyadh has anything to do with California. [00:04:06] Speaker 01: And indeed, taking your argument, why wouldn't anyone who experienced a check-in problem anywhere in the world claim that California, if that's the destination, would be an appropriate jurisdiction? [00:04:21] Speaker 04: Well, Your Honor, I think the answer is in both earlier Ninth Circuit authority, such as the Ballard v. Savage case and, of course, the Shute v. Carnival cruise lines, with which I know Judge Fletcher is quite familiar since he authored it. [00:04:38] Speaker 04: That was my mother. [00:04:43] Speaker 04: My apologies. [00:04:47] Speaker 02: We have two Thomases, two Stimus, and two Fletchers, so it's easy on our court. [00:04:53] Speaker 04: In any event, also the Impossible Foods case and the Ford Motor case. [00:05:01] Speaker 04: It's clear under all of these cases, Shute is very specific about it. [00:05:06] Speaker 04: The transaction does not have to take place in the forum and the tort does not have to take place in the forum. [00:05:13] Speaker 01: With respect, we can talk about this the whole day, but the cases that you've cited in every instance had at least [00:05:19] Speaker 01: one or more things that occurred specifically in California, like the ticket was bought there, or there was a car there, or something like that. [00:05:29] Speaker 01: We don't have anything like that here that I'm aware of. [00:05:32] Speaker 01: I think those places that you're citing are completely distinguishable. [00:05:36] Speaker 04: Your Honor, I believe it's enough that the destination [00:05:40] Speaker 04: was California, and that the destination was known to Lufthansa and the agent to be California. [00:05:46] Speaker 03: Let me ask you this. [00:05:47] Speaker 03: The source of the problem is really the behavior of the deputy station chief in Riyadh. [00:05:53] Speaker 03: So what did he know? [00:05:55] Speaker 03: He had the two men in front of him. [00:06:00] Speaker 03: Is that right? [00:06:01] Speaker 03: I'm sorry, Your Honor. [00:06:02] Speaker 03: I didn't quite catch that. [00:06:03] Speaker 03: Okay, so what did the deputy station chief know? [00:06:07] Speaker 03: He had the two men in front of him. [00:06:09] Speaker 03: Correct. [00:06:10] Speaker 03: He knew that they were flying to California. [00:06:13] Speaker 03: He knew that they... Let me keep going. [00:06:15] Speaker 03: I'm sorry. [00:06:16] Speaker 03: He knew that one of them was a United States citizen and I assume he looked at his passport so he knew like where there was an address in California. [00:06:26] Speaker 03: Do we know that he was a Californian? [00:06:28] Speaker 03: He was a domiciliary in California. [00:06:32] Speaker 03: Did the deputy station chief know that from the material in front of him? [00:06:38] Speaker 03: That he was a domiciliary of California? [00:06:40] Speaker 03: Would the passport have told him that? [00:06:42] Speaker 04: I cannot unequivocally answer that. [00:06:44] Speaker 04: I assume he did from the passport. [00:06:47] Speaker 03: But that's a question that could be proved up? [00:06:52] Speaker 03: I believe so. [00:06:53] Speaker 03: And he knows that they are wanting to travel together in California, and he knows that he's got a United States citizen, I'll assume can be proved up, that he is a resident of California, and if there's going to be harm that results from his action, it will be suffered by someone who is a California domiciliary. [00:07:09] Speaker 04: But there is more than that. [00:07:10] Speaker 03: Okay. [00:07:11] Speaker 04: And this is important. [00:07:15] Speaker 04: he was shown a copy of the California marriage certificate between the two plaintiffs. [00:07:26] Speaker 04: And his comments, which were referenced specifically in the complaint, essentially attacked the entire notion that they could be married. [00:07:39] Speaker 04: In effect, they attacked [00:07:42] Speaker 04: the right in California of gay couples to marry under California law. [00:07:50] Speaker 04: And that's an important distinction here. [00:07:53] Speaker 01: Why counsel, with respect, why is that? [00:07:56] Speaker 01: We're not talking about, you know, we're not talking about whether what they believe is anything good, quite the contrary, but we're talking about Riyadh, we're talking about a country that feels quite differently [00:08:10] Speaker 01: about this issue than we do in California. [00:08:13] Speaker 01: The fact that the agent there may know that one of these people is a U.S. [00:08:19] Speaker 01: citizen, what difference does that make since we're really talking about the conduct of the defendant and what happened occurred exclusively in Riyadh. [00:08:29] Speaker 01: What was said occurred exclusively in Riyadh. [00:08:33] Speaker 01: Your client wanted to try to mitigate this. [00:08:36] Speaker 01: But only to determine what occurred thereafter, you'd have to get into the Saudi, if you will, security apparatus, which gets us into yet another question. [00:08:46] Speaker 04: Actually, Your Honor, I respectfully disagree. [00:08:50] Speaker 04: And again, I am responsible. [00:08:56] Speaker 04: I don't think that our briefs below were a model of clarity. [00:09:02] Speaker 04: But regardless, [00:09:07] Speaker 04: the under impossible foods, under Ford, under Chute, and under Ballard versus Savage. [00:09:17] Speaker 04: First of all, no causation required. [00:09:20] Speaker 04: Second of all, the tort does not have to take place. [00:09:23] Speaker 04: The fact is there was, as this court and the Supreme Court has generally referred to, an unbroken line [00:09:33] Speaker 04: between the fact that Lufthansa had a presence in San Francisco and indeed elsewhere in California, that that motivated them to buy the tickets to fly from Riyadh to California, that [00:09:55] Speaker 04: and that that contract included the privacy provisions, that the deputy station manager was a Lufthansa employee who, regardless of what they may think about things in Saudi Arabia, it was obvious that he had to comply with Lufthansa's rules and regulations in which he presumably was trained. [00:10:21] Speaker 04: And to that end, they presented themselves at the Riyadh airport to board the flight that would eventually take them to California. [00:10:34] Speaker 04: Now, under the rule in Ford Motor, followed by this court in Impossible Foods, there is enough of a relationship, a nexus, and so on. [00:10:49] Speaker 04: to satisfy that. [00:10:50] Speaker 04: No causation is required. [00:10:53] Speaker 04: They obviously can. [00:10:55] Speaker 01: Let's just say, yes. [00:10:57] Speaker 01: Say we agree with you. [00:10:59] Speaker 01: What about the reasonableness factor here? [00:11:01] Speaker 01: Now that's one of the alternatives that Judge Ilson relied on here. [00:11:06] Speaker 01: You've got, obviously from your client's perspective, you don't want to try this in Germany, you don't want to try it in Saudi Arabia. [00:11:14] Speaker 01: But in order to get discovery, you're going to have to go against the Saudi Arabian [00:11:18] Speaker 01: who take such information. [00:11:23] Speaker 01: How are you going to get that information? [00:11:25] Speaker 01: What about the witnesses who saw this? [00:11:27] Speaker 01: Everybody's there. [00:11:29] Speaker 01: Nobody's here. [00:11:31] Speaker 01: Aren't we back to my original question of, if you're right, can anybody who boards an airline anywhere in the world who says the destination is California and they have a contract to that effect, [00:11:46] Speaker 01: can have jurisdiction in California. [00:11:49] Speaker 01: Isn't that what you're saying? [00:11:53] Speaker 04: I can't say that unequivocally, but to answer your question, potentially, yes, depending on the claim and the conduct. [00:12:02] Speaker 04: And Your Honor, the real problem here is Lufthansa. [00:12:05] Speaker 04: First of all, our clients obviously can't go to Saudi Arabia for trial. [00:12:10] Speaker 04: And the fact that that would even be suggested by Lufthansa is a little egregious, since they would likely be arrested immediately. [00:12:23] Speaker 04: or at least plaintiff Rowe would be arrested immediately. [00:12:28] Speaker 04: In addition, the issue is really where are Lufthansa's witnesses? [00:12:35] Speaker 04: What witnesses do they need to prevent? [00:12:37] Speaker 04: We pointed out in our papers that there's authority, including in this circuit, talking about the fact that with modern communication, modern transportation, and so on, [00:12:50] Speaker 04: That is much less of a problem than it might have been many years ago, just like the issues of law have been made much easier by the enactment of Federal Rule of Civil Procedure 44.1. [00:13:03] Speaker 04: If Lufthansa wants to present witnesses at trial, whether remotely or otherwise, it's going to have to make those witnesses available for deposition. [00:13:16] Speaker 04: In terms of getting Lufthansa's documents in Germany, there's longstanding California authority, the old Volkswagen case, which authorizes that, that they have to produce documents from Germany. [00:13:32] Speaker 04: The plain fact is, first of all, and I really have to mention this, I had thought that we were long done with briefing by ambush. [00:13:45] Speaker 04: As the district court itself recognized, this was only brought up in a reply brief. [00:13:51] Speaker 04: That's entirely inappropriate. [00:13:54] Speaker 01: But the court dealt with it. [00:13:56] Speaker 01: And that's the big question there, right? [00:13:58] Speaker 04: Your Honor, the court dealt with it in a page and a half, and the court did not deal with it consistent with the requirements of this circuit. [00:14:06] Speaker 04: The court did not make a finding that there was a compelling showing, which was required because the burden here was on Lufthansa. [00:14:18] Speaker 04: The court did not review each of the seven factors that had to be considered, which we did review now in our briefs here. [00:14:29] Speaker 04: And the court didn't do a balancing. [00:14:31] Speaker 04: The court said, well, I'm bothered by this and I'm bothered by that, which is why we actually quoted the entirety of the opinion devoted to that. [00:14:42] Speaker 04: And that's not dealing with it. [00:14:45] Speaker 04: It's especially not dealing with it when the court itself recognized in the opinion that we had not had an opportunity to respond to that. [00:14:55] Speaker 04: So the case law is overwhelming. [00:15:00] Speaker 04: And we've cited to it that you simply cannot do that. [00:15:05] Speaker 04: That's bushwhacking. [00:15:07] Speaker 02: Your time has expired. [00:15:08] Speaker 02: We'll give you a couple of minutes for rebuttal. [00:15:11] Speaker 04: Thank you, Your Honor. [00:15:28] Speaker 00: Good morning. [00:15:29] Speaker 00: May it please the court, Ivy Nowinski of Condon and Forsyth, on behalf of a defendant and appellee, Deutsch Lufthansa Akian Gieselschaft, who I will refer to as Lufthansa today for ease of reference. [00:15:42] Speaker 00: The issue before the court today is whether it should exercise specific personal jurisdiction over Lufthansa, a German airline in connection with claims that arose exclusively in Saudi Arabia, and which are in fact unique to the government, law, and culture of Saudi Arabia. [00:16:00] Speaker 00: Plaintiffs are two gay men who affirmatively allege in their complaint that they have lived together continuously in Saudi Arabia since 1989. [00:16:07] Speaker 00: No, wait a minute. [00:16:09] Speaker 03: They don't quite allege that. [00:16:10] Speaker 03: That is to say one of them is a Californian. [00:16:13] Speaker 03: He lives sometimes in California. [00:16:16] Speaker 03: He spends much of his time in Saudi Arabia. [00:16:19] Speaker 03: Is that correct? [00:16:20] Speaker 00: That is correct, Your Honor, although there is an allegation in the complaint stating that both plaintiffs have lived together covertly in Saudi Arabia since 1989. [00:16:28] Speaker 03: No, I understand that. [00:16:29] Speaker 03: The question is whether or not the American lived exclusively in Saudi Arabia, and I don't think he did. [00:16:35] Speaker 00: Understood, Your Honor. [00:16:36] Speaker 00: Plaintiffs have also alleged that they were both employed, well, rather that defendant, I believe it's John Doe, the U.S. [00:16:42] Speaker 00: citizen, was employed in Saudi Arabia. [00:16:44] Speaker 03: I understand that. [00:16:47] Speaker 00: In any event, this lawsuit is their claim that Lufthansa personnel intentionally and wrongfully disclosed their marital status at the airport in Riyadh. [00:16:56] Speaker 03: Well, and not only disclosed it at the airport, but apparently there was electronic communication between the airport and Lufthansa headquarters in Germany. [00:17:08] Speaker 00: Correct, Your Honor. [00:17:09] Speaker 00: And there is a further allegation that [00:17:12] Speaker 00: This information was then somehow relayed back to the government of Saudi Arabia, be that by a covert monitoring system of emails or an informant. [00:17:22] Speaker 00: So the government of Saudi Arabia is clearly implicated in this case. [00:17:26] Speaker 00: The nature of plaintiff's damages is that this was relayed to the government of Saudi Arabia and that now plaintiff Robert Roe cannot return to Saudi Arabia out of fear of retribution. [00:17:36] Speaker 03: Or whether actually actively relayed to Saudi Arabia, the Saudis somehow discovered it. [00:17:42] Speaker 00: Exactly. [00:17:43] Speaker 00: Exactly. [00:17:44] Speaker 00: Your Honor, these claims implicate Saudi culture, Saudi law, and the very practices of the Saudi government. [00:17:51] Speaker 00: Plaintiffs cannot satisfy their heavy burden to establish the first two prongs of the specific jurisdiction test. [00:17:58] Speaker 00: The Supreme Court cautioned in worldwide Volkswagen that the goal of the minimum contacts analysis is to ensure that the states, through their courts, do not reach out beyond the limits imposed by them. [00:18:10] Speaker 00: on them rather, by their status as co-equal sovereigns. [00:18:13] Speaker 00: And here the plaintiffs are asking this court to do just that. [00:18:17] Speaker 00: Plaintiffs urge the court to exercise personal jurisdiction over a German airline in connection with an incident that occurred in Riyadh and which implicates the government of Saudi Arabia. [00:18:25] Speaker 03: And so how much did the station agent know about any connections to California? [00:18:32] Speaker 00: Your Honor, all I am privy to are the allegations and the complaint at this point, but my understanding is that a U.S. [00:18:41] Speaker 00: passport was presented and that a California marriage, or rather a California marriage certificate was presented, as Mr. Putterman stated. [00:18:49] Speaker 03: And would the California passport say anything about the connection, excuse me, the U.S. [00:18:54] Speaker 03: passport say anything about a connection to California, or would it just say United States? [00:18:59] Speaker 00: That is my understanding, Your Honor, is that a U.S. [00:19:02] Speaker 00: passport does not specify which state the owner of the passport resides in. [00:19:07] Speaker 01: Yeah, it'll say it's important to ask this. [00:19:12] Speaker 01: My understanding is that the only reason this even came up was that this was during COVID. [00:19:19] Speaker 01: And during that period of time, the United States government required that for someone [00:19:26] Speaker 01: in this particular case, who was living in Saudi Arabia, who wanted to come home, if they wanted to come in with someone else, it had to be a member of their family. [00:19:36] Speaker 01: And so that's the only reason why the agent asked for family connections. [00:19:42] Speaker 01: He wasn't trying to pry into their personal lives any more than that. [00:19:45] Speaker 01: He needed to set, they needed to show him. [00:19:48] Speaker 01: So they then went, he wanted to talk to him in the back room. [00:19:51] Speaker 01: He told them that they provided the information. [00:19:54] Speaker 01: It ultimately went to Germany. [00:19:55] Speaker 01: They got approval. [00:19:56] Speaker 01: These folks, in fact, did travel to California. [00:19:59] Speaker 01: They were not prevented from traveling. [00:20:01] Speaker 01: So what we're really talking about here is two things. [00:20:05] Speaker 01: Number one, the agent, in my view, properly said out loud, some people are at the desk, so you're married to this man. [00:20:15] Speaker 01: That was a fancy, but the second thing was, did the Saudi government pick this up? [00:20:20] Speaker 01: They assumed that it did. [00:20:23] Speaker 01: But we don't know in what way. [00:20:24] Speaker 01: And the only way that would be determined would be through discovery that would involve the government of the country of Saudi Arabia. [00:20:32] Speaker 01: And that gets tough. [00:20:34] Speaker 01: That opens things up. [00:20:36] Speaker 01: Do I misstate any part of what happened from your perspective? [00:20:40] Speaker 00: No, Your Honor, that's absolutely correct. [00:20:42] Speaker 00: Absolutely correct. [00:20:44] Speaker 00: And to turn to the three prongs of the specific personal jurisdiction analysis, [00:20:51] Speaker 00: The first issue is, of course, whether the purposeful of element or the purposeful direction standard or both applies here. [00:20:59] Speaker 00: The Ninth Circuit has stated that purposeful direction typically applies in tort cases. [00:21:05] Speaker 00: The Ninth Circuit has unequivocally stated that the purposeful direction test applies in intentional tort cases. [00:21:11] Speaker 02: And the Ninth Circuit has also... What about the contract claim? [00:21:14] Speaker 02: There is a contract claim. [00:21:15] Speaker 02: That's a freestanding claim. [00:21:17] Speaker 02: Why doesn't that satisfy prong one as to that claim? [00:21:21] Speaker 00: Understood, Your Honour. [00:21:22] Speaker 00: So what the courts that have addressed this precise issue, because of course most lawsuits involve mixed claims involving both tort and contract, what the courts that have analyzed this precise issue have done is that they have looked at the overall flavour of the case. [00:21:38] Speaker 00: And there are, let me see, [00:21:43] Speaker 00: All district court opinions, but I think we've cited five or six district court opinions that hold that when the plaintiff has alleged causes of action sounding in both contract and tort, and where the claims arise primarily from a tort or an intentional tort, that the purposeful direction test will apply. [00:22:05] Speaker 02: We don't have a case that really addresses that specifically. [00:22:07] Speaker 02: We say, generally, it applies. [00:22:10] Speaker 02: We use hedging language. [00:22:13] Speaker 02: And so what would, if they just alleged a contract claim, wouldn't that satisfy prong one? [00:22:22] Speaker 00: Yes, Your Honor, if only a contract claim. [00:22:25] Speaker 02: But what you're saying is that because they alleged some torts, that deprives them of their specific personal jurisdiction argument on the contract claim. [00:22:36] Speaker 00: Well, not exactly, Your Honor. [00:22:39] Speaker 00: Lutanzo's position on this, rather, is that even where you are analyzing just a breach of contract claim, the court looks, and I'm speaking now of Ninth Circuit authority in Davis versus Cranfield, [00:22:50] Speaker 00: and also in global commodities. [00:22:53] Speaker 00: In analyzing the purposeful availment standard for a breach of contract case, what the court looks at, and both decision mentions this, is the center of gravity of the contract. [00:23:05] Speaker 00: They look to those particular contacts. [00:23:07] Speaker 00: And here, analyzing it the way the court did, analyzing the purposeful availment analysis the way the court did in Davis versus Cranfield, they looked at contract negotiations, [00:23:21] Speaker 00: contract terms, contemplated consequences, and the course of dealings between the parties. [00:23:26] Speaker 02: So they allege the contract called for privacy and you didn't provide it? [00:23:33] Speaker 00: Understood, Your Honor, but there is no connection with California under that, applying that analysis. [00:23:41] Speaker 03: But the contract was for carriage to California. [00:23:43] Speaker 00: Yes, Your Honor, that is true. [00:23:45] Speaker 00: But as Judge Smith referenced earlier during opposing councils, [00:23:51] Speaker 00: statements. [00:23:53] Speaker 00: By that logic, if you have a contract of carriage from the United States to anywhere else in the world, then potentially any one of your stopping points could be a point for jurisdiction on that contract claim. [00:24:03] Speaker 00: It could be Mozambique or Timbuktu or some jurisdiction that has very little connection to the contract between the parties. [00:24:12] Speaker 01: Council, for our purposes, obviously our district courts have gone all over the place between [00:24:18] Speaker 01: purposeful availment and purposeful direction. [00:24:25] Speaker 01: But if we just assume without deciding that they meet that qualification, isn't your stronger argument they don't meet the second prong and it's not reasonable? [00:24:37] Speaker 00: Yes, Your Honor, exactly. [00:24:38] Speaker 00: And I will turn to the second prong now, the nexus prong. [00:24:44] Speaker 00: What plaintiffs are urging in this case is essentially [00:24:47] Speaker 00: a general jurisdiction, a general personal jurisdiction inquiry. [00:24:52] Speaker 00: Plaintiffs are urging this court to look at Lufthansa's general contacts with the state of California and somehow impute a nexus relationship between those contacts and this incident, which occurred in Riyadh. [00:25:03] Speaker 03: But at the end of the day... Well, not when you're pushing on an open door. [00:25:06] Speaker 03: There's no way there's general jurisdiction here. [00:25:08] Speaker 03: This is clearly specific. [00:25:10] Speaker 03: If there's a jurisdiction at all. [00:25:13] Speaker 00: Agreed, Your Honor, agreed. [00:25:15] Speaker 00: So I would like to go through quickly, you know, the last 10 years has seen a substantial shift in jurisprudence on specific personal jurisdiction, starting with Daimler. [00:25:25] Speaker 00: As your honor notes, Daimler stands for the proposition that there is no general jurisdiction unless a company is at home in a forum. [00:25:33] Speaker 00: Bristol Myers came next. [00:25:35] Speaker 00: That stands for the proposition that a plaintiff cannot attempt to circumvent Daimler, Daimler's prohibition on general personal jurisdiction in all circumstances. [00:25:45] Speaker 00: by claiming that a company's general contacts with the forum permit the exercise of specific personal jurisdiction over claims unrelated to those contacts. [00:25:52] Speaker 02: While we're talking about Bristol Myers, I think the opinion really focuses on let's get back to due process. [00:26:06] Speaker 02: And we've felt all these subsidiary tests to try to answer that question. [00:26:13] Speaker 02: So can you tell me what violates your client's due process by having to defend this case in California, given its extensive contacts with California? [00:26:25] Speaker 00: Surely, Your Honor. [00:26:27] Speaker 00: Lufthansa is, of course, a German airline. [00:26:29] Speaker 00: It's the flag carrier of Germany up until just shortly before this incident, at least in a substantial portion owned by the German government. [00:26:37] Speaker 00: The claims implicate [00:26:39] Speaker 00: Saudi Arabian law and culture, and in fact, a Lufthansa employee who was working in Riyadh, who is a Saudi Arabian citizen. [00:26:49] Speaker 00: Basically, everything pertaining to this lawsuit implicates Saudi Arabia and or German privacy law with respect to the breach of contract claim. [00:26:59] Speaker 00: And it will involve the application of German law, no less than two sets of different German privacy laws which plaintiffs claim were violated in connection with this incident. [00:27:07] Speaker 02: But courts do that. [00:27:09] Speaker 02: So explain to me your theory about why this is a due process violation. [00:27:14] Speaker 00: Well, Your Honor, actually, I did prepare Asahi. [00:27:18] Speaker 00: The Supreme Court decision in Asahi really addresses this. [00:27:22] Speaker 00: And I did prepare a rather lengthy quote that I would like to. [00:27:26] Speaker 00: I can read it. [00:27:28] Speaker 00: I know you can. [00:27:29] Speaker 00: But you know, these decisions are long. [00:27:30] Speaker 00: And sometimes the ones that are really, really, really pertinent [00:27:35] Speaker 00: kind of get lost in the shuffle. [00:27:37] Speaker 00: But in any event, I have it right here, but Lufthansa is an alien. [00:27:45] Speaker 00: Lufthansa is not just a citizen of another state. [00:27:47] Speaker 00: Lufthansa is actually a citizen of Germany. [00:27:51] Speaker 00: And what the Supreme Court said in Asahi is that the procedural and substantive interests of other nations in estate courts, assertion of jurisdiction over an alien defendant will differ from case to case. [00:28:02] Speaker 00: In every case, however, those interests [00:28:04] Speaker 00: as well as the federal interest in government's foreign relations policies will be best served by it carefully into the reasonableness of the assertion of jurisdiction in the particular case. [00:28:14] Speaker 00: And again, going into the reasonableness factors here. [00:28:17] Speaker 03: That's just general language. [00:28:18] Speaker 03: As I recall in Asahi, we had one foreigner suing another foreigner. [00:28:22] Speaker 03: Is that correct? [00:28:24] Speaker 00: Your Honour, I do know that in Asahi, the defendant was based in Asia, it was the manufacturer of something related to a tire. [00:28:32] Speaker 03: It was a tire valve. [00:28:33] Speaker 00: Yes, exactly. [00:28:34] Speaker 00: I am not sure of the identity of the plaintiff. [00:28:38] Speaker 03: You can go back and look. [00:28:40] Speaker 00: Thank you, Your Honour. [00:28:41] Speaker 00: But again, in this case, we also do have aliens on both sides of the bee. [00:28:46] Speaker 00: Plaintiff Robert Rowe is also an alien, and, you know, Leptons is an alien as well. [00:28:51] Speaker 03: And one of the plaintiffs, of course, is an American citizen. [00:28:54] Speaker 00: That is true, Your Honor. [00:28:55] Speaker 00: But to address that point, this is an American citizen who has chosen to live his life in Saudi Arabia and play the very nature of plaintiff's damage claims in this case. [00:29:06] Speaker 03: You just said that again. [00:29:07] Speaker 03: How much evidence do we have as to how much time the American spends in Saudi Arabia and how much time he spends in the United States? [00:29:14] Speaker 00: Well, there's an allegation. [00:29:15] Speaker 00: I believe it's either. [00:29:16] Speaker 00: It's in the record somewhere. [00:29:17] Speaker 00: I don't have the specific evidentiary site right now. [00:29:19] Speaker 00: But I believe there's an allegation that John Doe, the US citizen, travels to the US quarterly to see Robert Rowe now. [00:29:30] Speaker 00: But John Doe, the US citizen, has affirmatively decided to continue living in Saudi Arabia following this incident, which I think demonstrates the lack of an interest in California [00:29:43] Speaker 00: the lack of an interest in California courts for adjudicating this case. [00:29:48] Speaker 02: Before you sit down, I need to ask an unrelated question. [00:29:54] Speaker 02: I don't understand quite why there's federal jurisdiction here. [00:29:57] Speaker 02: If you had a foreign national suing a foreign entity, so there's no diversity. [00:30:03] Speaker 02: And you don't have any complete preemption under any decision by this court. [00:30:08] Speaker 02: So explain to me why we have federal jurisdiction. [00:30:13] Speaker 00: Well, Your Honor, it's not just an alien versus an... My understanding, and I did not of course prepare for this today, but my understanding is that... I apologize, but it's a jurisdictional question. [00:30:25] Speaker 00: You discount the alien on both sides of the V, right? [00:30:28] Speaker 00: You discount the citizenship of both aliens. [00:30:30] Speaker 00: And that leaves John Doe, who is alleged to be a citizen of California, and LGBS, Lufthansa's affiliate, which is a citizen of Delaware? [00:30:41] Speaker 00: So you have a California citizen versus a Delaware citizen for the purposes of diversity jurisdiction. [00:30:48] Speaker 02: I'm not sure you have complete diversity, but you're relying on diversity. [00:30:53] Speaker 00: I'm sorry. [00:30:53] Speaker 02: You're relying on diversity. [00:30:54] Speaker 00: Yes, Your Honor. [00:30:56] Speaker 00: And agreed. [00:30:56] Speaker 00: I understand that the state of the law is a little bit. [00:30:59] Speaker 02: You can't have a suing a foreigner in federal courts. [00:31:05] Speaker 00: Understood. [00:31:05] Speaker 00: And it's LGBS, the Lufthansa affiliate, that creates the diversity here. [00:31:12] Speaker 01: Let me just follow up on that, though. [00:31:14] Speaker 01: One of the defendants is no longer involved in this case, if I understand correctly. [00:31:19] Speaker 01: Was that the Lufthansa parent, or is that the one that is, if you will, the true defendant in this case? [00:31:26] Speaker 00: Well, Your Honor, the true defendant in this case is Lufthansa, Deutsch Lufthansa Aktien, Gesellschaft, the other defendant [00:31:33] Speaker 00: the Delaware entity, it's called Lufthansa Group Business Services, and it's an entity that provides business services like IT and such to see Lufthansa here in the United States. [00:31:44] Speaker 01: And my understanding is, and perhaps I'm mistaken, they got dropped, basically. [00:31:50] Speaker 01: Is that wrong? [00:31:51] Speaker 00: Well, Your Honor, both Lufthansa and LGBS were dismissed by way of the same order. [00:31:55] Speaker 00: It's the same order that's on appeal. [00:31:57] Speaker 01: OK, but on this appeal, are your opponents still going after [00:32:02] Speaker 01: the Delaware-based entity? [00:32:05] Speaker 01: Or do we know? [00:32:05] Speaker 00: Your Honor, the plaintiff's brief is silent on that point. [00:32:09] Speaker 00: Lufthansa chose not to address the LGBT issues because they were not raised by plaintiff in the opening brief, but it is not stated either way. [00:32:18] Speaker 02: My question took you away from your conclusion, so if you can sum up in a [00:32:23] Speaker 00: Of course, I haven't gotten to the reasonableness prong in detail yet, but as Judge Smith stated during opposing counsel's opening remarks, those factors simply cannot be meant here. [00:32:37] Speaker 00: Even if you do analyze each one point by point, virtually all of those factors favor Lutonza here. [00:32:45] Speaker 00: This case just has no connection to the United States. [00:32:49] Speaker 02: Thank you, counsel. [00:32:50] Speaker 00: Thank you. [00:32:55] Speaker 02: I'll give you two minutes for a bottle. [00:32:58] Speaker 04: Thank you, Your Honor. [00:32:59] Speaker 04: A couple of things. [00:33:01] Speaker 04: First of all, I do have a 2024 case, which by my own neglect was not cited in the appellate papers, but in which Judge Freeman of the Northern District found that it was sufficient that because a flight was boarded at San Francisco Airport, even though the negligence [00:33:22] Speaker 04: which American Airlines was charged with, occurred on a second flight from, I believe, Dallas, Fort Worth. [00:33:33] Speaker 04: It was a sufficient connection that, under Impossible Foods, that the flight had been boarded in San Francisco. [00:33:42] Speaker 01: But there you have the dislike in Ford. [00:33:44] Speaker 01: You actually have a physical instance that occurred in the state of California. [00:33:49] Speaker 01: They boarded in California. [00:33:51] Speaker 01: You have nothing like that here. [00:33:53] Speaker 04: Well, no, but the destination was California, and either way, that's a sufficient nexus under Impossible Foods and under Ford Motors. [00:34:03] Speaker 04: I understand that, Your Honor, and I see that differently. [00:34:07] Speaker 04: The Saudi Arabia thing is a red herring, quite honestly. [00:34:11] Speaker 04: First of all, Saudi Arabia is not going to allow anybody to take any discovery of any Saudi Arabian government entity. [00:34:20] Speaker 04: I think we can all safely assume that. [00:34:23] Speaker 04: However, the Lufthansa employees, or Lufthansa employees, they were obligated to conform to Lufthansa's obligations. [00:34:35] Speaker 04: If Lufthansa wants to present their testimony at trial, it's going to have to present them for deposition, and presumably it has the ability to do so. [00:34:45] Speaker 04: Second of all, in addition to the contract claim, we also have a negligent infliction of emotional distress claim, which is another claim which under Ninth Circuit law is not subject to the purposeful direction test. [00:35:03] Speaker 04: Third, the part that I have trouble understanding is we cited in our reply brief a very large number of cases [00:35:14] Speaker 04: in which Lufthansa has been a party in California, we don't understand either the issues about... Now, I have not reviewed them to see whether there were jurisdictional issues and so on, but it appears a lot in California, and it clearly is no burden for it to do so. [00:35:32] Speaker 04: Thank you, counsel. [00:35:33] Speaker 04: Thank you, your honor. [00:35:34] Speaker 02: Thank you both for your arguments today. [00:35:36] Speaker 02: The case just argued will be submitted for decision.