In re Crash of Aircraft N93PC on July 7

          ORDER

          H. RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE

         Motion to Dismiss

         On January 26, 2018, defendant Stolairus Aviation Inc. moved to dismiss the claims against it.^[1] Plaintiffs moved to continue the motion in order to take jurisdictional discovery.^[2]On April 3, 2018, the court granted plaintiffs' motion to continue, giving plaintiffs time in which to conduct jurisdictional discovery related to specific jurisdiction and giving the parties an opportunity to file supplemental briefing.^[3] The parties have timely filed their supplemental briefing, ^[4] and Stolairus' motion to dismiss is ready for disposition as the parties did not request oral argument on the motion nor is oral argument deemed necessary.

         Background

         On July 7, 2013, a deHavilland DHC-3 “Otter” aircraft operated by Rediske Air, Inc. and piloted by Walter Rediske crashed shortly after take-off from the Soldotna Airport. Rediske and all of the passengers on board were killed in the crash. Rediske's estate and the estates of the passengers (referred to collectively as “plaintiffs” herein) assert wrongful death, negligence, products liability and breach of warranty claims against Stolairus.

         Plaintiffs allege that in April 2010, “Defendant Recon Air Corporation . . . modified the subject aircraft when it installed an upgross kit known as Stol Kit STC SA00287NY, a Baron Stol Kit manufactured by Stolairus Aviation, Inc. (‘the Stol Kit') on the DHC-3 Otter.”^[5]Plaintiffs further allege that “on February 8, 2016 the Stol Kit was the subject of an Airworthiness Directive published by Transport Canada.”^[6] Plaintiffs allege that “[t]he Airworthiness Directive stated that it was being issued to correct an unsafe condition for DHC-3 airplanes that are modified with the Baron Short Take Off and Landing (STOL) kit. . . .”^[7]Plaintiffs allege that [t]he Airworthiness Directive stated that an investigation of a fatal crash of a turbo-propeller powered DHC-3 airplane modified with a Baron STOL kit determined that the probable cause was a rearward shift in the center of gravity, which resulted in a stall during takeoff. A center of gravity that is too far aft can contribute to a stall during takeoff and may result in loss of control during other phases of flight.^[8]

         Plaintiffs allege that the Stol Kit installed on the subject aircraft caused the aircraft to crash into the ground. The Stol Kit changed the center of gravity, making the center of gravity too far aft and contributing to and causing a stall and or loss of control of the aircraft. Defendant Stolairus failed to inspect, identify and warn of the change in the center of gravity.^[9]

         Plaintiffs allege that Stolairus is a Canadian corporation with “its principal place of business” in British Columbia.^[10] Plaintiffs allege that jurisdiction of Stolairus is appropriate in this court because Stolairus “provides support for aircraft worldwide, including the United States and specifically Alaska.”^[11]

         Pursuant to Rule 12(b)(2), Federal Rules of Civil Procedure, Stolairus now moves to dismiss plaintiffs' claims against it for lack of personal jurisdiction. In the alternative, pursuant to Rule 12(b)(6), Stolairus moves to dismiss plaintiffs' claims because they are barred by the statute of limitations.

         Discussion

         “Where [a] defendant[] move[s] to dismiss a complaint for lack of personal jurisdiction, [the] plaintiffs bear the burden of demonstrating that jurisdiction is appropriate.” Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1108 (9th Cir. 2002). If “the motion is based on written materials rather than an evidentiary hearing, ‘the plaintiff need only make a prima facie showing of jurisdictional facts.'” Id. (quoting Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990)). “In determining whether [a plaintiff has] met this prima facie burden, uncontroverted allegations in [the] complaint must be taken as true, and ‘conflicts between the facts contained in the parties' affidavits must be resolved in [the plaintiff's] favor. . . .'” Ochoa v. J.B. Martin and Sons Farms, Inc., 287 F.3d 1182, 1187 (9th Cir. 2002) (quoting Am. Tel. & Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996)). “Additionally, any evidentiary materials submitted on the motion ‘are construed in the light most favorable to the plaintiff and all doubts are resolved in [the plaintiff's] favor.'” Id. (quoting Metro. Life Ins. Co. v. Neaves, 912 F.2d 1062, 1064 n.1 (9th Cir. 1990)).

         “Where, as here, there is no applicable federal statute governing personal jurisdiction, the district court applies the law of the state in which the district court sits.” Dole Food Co., 303 F.3d at 1110. Alaska's long-arm statute reaches “to the maximum extent permitted by the due process clause of the Fourteenth Amendment[.]” Alaska Telecom, Inc. v. Schafer, 888 P.2d 1296, 1299 (Alaska 1995).

         “[T]here are two forms that personal jurisdiction may take: general and specific.” Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015). The only remaining issue here is whether the court has specific jurisdiction.

         The court employ[s] a three-part test to assess whether a defendant has sufficient contacts with the forum state to be subject to specific personal jurisdiction:

(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;

(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and

(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.

Id. (citation omitted).

         “For claims sounding in tort, ” such as plaintiffs assert against Stolairus, the court applies “a ‘purposeful direction' test. . . .” Id. at 1212. The “court evaluates purposeful direction using the three-part ‘Calder-effects' test[.]” Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010). “Under this test, [‘]the defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.'” Id. (quoting Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1206 (9th Cir. 2006)).

         “There is no requirement that the defendant have any physical contacts with the forum.” Id.

         There is no dispute that Stolairus sold the STOL Kit that was installed on the subject aircraft. But, Stolairus argues that plaintiffs cannot establish that this intentional act was expressly aimed at Alaska because “[t]he placement of a product into the stream of commerce, without more, is not an act purposefully directed toward a forum state.” Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 459 (9th Cir. 2007). “Even a defendant's awareness that the stream of commerce may or will sweep the product into the forum state does not convert the mere act of placing the product into the stream of commerce into an act purposefully directed toward the forum state.” Id. However, “[t]here is purposeful direction when a defendant places a product into the stream of commerce and additional conduct ‘indicate[s] an intent or purpose to serve the market in the forum State.'” Trishan Air, Inc. v. Dassault Falcon Jet Corp., No. CV 08-7294-VBF(JTLx), 2009 WL 10673286, at *2 (C.D. Cal. Oct. 14, 2009) (quoting Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 112 (1987)).

         Examples of such additional conduct are: “designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State.” Id. (quoting Asahi Metal, 480 U.S. at 112).

         Plaintiffs originally relied on the fact that Stolairus's STOL Kits have been FAA certified in the United States, primarily for use in Alaska. Plaintiffs suggested that STOL Kits are pervasive in Alaska because they “are made specifically for the terrain that pilots must navigate in Alaska.”^[12] And, plaintiffs offered evidence that there are a number of Otters and Beavers in Alaska.^[13] Plaintiffs argued that this evidence, in connection with Stolairus's admitted contacts with Alaska (the 2009 sale of a STOL Kit to Talkeetna Air Taxi and the 2017 visit to Alaska by two Stolairus employees to give advice to a customer)^[14] was sufficient to show that Stolairus did something more than just put its product into the stream of commerce.

         The foregoing evidence is not sufficient to make out a prima facie case of specific jurisdiction. All this evidence shows is that the stream of commerce may sweep a STOL Kit into Alaska. It does not show that Stolairus took any action that indicated that it intended to serve the Alaskan market.

         But, plaintiffs now have additional evidence. Plaintiffs now have evidence that, at one point in time, Stolairus had a contract with someone in Alaska to purchase the STOL Kit that was installed on the subject aircraft. Plaintiffs argue that this contract is sufficient to show that Stolairus purposefully directed ...