United States District Court, D. Alaska
In re Crash of Aircraft N93PC on July 7, 2013, at Soldotna, Alaska
RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE
January 26, 2018, defendant Stolairus Aviation Inc. moved to
dismiss the claims against it. Plaintiffs moved to continue the
motion in order to take jurisdictional
discovery.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. The parties have timely filed their
supplemental briefing,  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.
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.
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.”Plaintiffs further allege that “on
February 8, 2016 the Stol Kit was the subject of an
Airworthiness Directive published by Transport
Canada.” 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. . . .”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.
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
allege that Stolairus is a Canadian corporation with
“its principal place of business” in British
Columbia. 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.”
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.
[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)).
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
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.
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).
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
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
is no requirement that the defendant have any physical
contacts with the forum.” Id.
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)).
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).
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.” And, plaintiffs offered evidence that
there are a number of Otters and Beavers in
Alaska. 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) was sufficient to show that Stolairus
did something more than just put its product into the stream
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.
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