1 2 1

- 2567

- cv Lensky v. Turk Hava Yollari A.O.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO TATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 2 2 n d day of S e p t e m b e r , two thousand twenty

- three

. 3 4 PRESENT: DENNY CHIN , 5 RAYMOND J. LOHIER, JR., 6 Circuit Judges

. * 7

------------------------------------------------------------------ 8 ALONA LENSKY , OTAR 9 DULARIDZE, 10 11 Plaintiff s

- Appell ants , 12 13

v. No. 21

- 2567

- cv 14
15 TURK HAVA Y O LLARI, A.O. , 16 17 Defendant

- Appell ee

. * 18

------------------------------------------------------------------ 19

* Judge Rosemary S. Pooler, originally a member of the panel, passed away on August 10 , 202 3

. The motion is being decided by the remaining members of the panel, who are in agreement. See 28 U.S.C. § 46(d) ; 2d Cir. IOP E(b).

* The Clerk of Court is directed to amend the caption as set forth above.2 FOR A P PELLANT : W ILLIAM T. W OODROW III 1 ( T HATCHER A. S TONE , on the 2 brief ), Stone & Woodrow LLP , 3 Charlottesville, VA 4
FOR APPELLEE : C HRISTOPHER C ARLSEN , Clyde 5 & Co US LLP , New York, NY 6 Appeal from a judgment of the United States District Court for the 7
Southern District of New York ( Gregory H. Woods , Judge ). 8
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 9

AND DECREED that the judgment of the District Court is AFFIRMED in part 10

and VACATED in part, and the case is REMANDED for further proceedings 11

consistent with t his order

. 12

Plaintiffs

- Appellants Alona Lensky and Otar Dularidze appeal from a 13
judgment of the District Court ( Woods , J. ) dismissing their claims against 14

Defendant

- Appellee Turk Hava Yollari, A.O. (THY). We assume the parties’ 15
familiarity with the underlying facts and the record of prior proceedings, to 16
which we refer only as necessary to explain our decision to affirm in part and 17
vacate and remand in part

. 18
The p laintiffs are United States citizens who reside in New York and who 19
bought airline tickets from THY, an air carrier incorporated and headquartered 20
in Turkey, to fly from New York City to Tbilisi, Georgia, with a layover in 213 Istanbul, Turkey. On their return to New York City , the p laintiffs were allegedly 1
denied boarding at the airport in Istanbul and injured by Turkish police acting 2
under the direction of THY employees. Plaintiffs sued THY in the Southern 3

District of New York , alleging negligence, negligent infliction of emotional 4
distress, intentional infliction of emotional distress, assault, and false 5
imprisonment, and , in the alternative, seeking damages under Article 17 of the 6

Montreal Convention. 7

The District Court dismissed the suit for lack of personal jurisdiction. 8
First, the District Court concluded that the Montreal Convention does not confer 9
personal jurisdiction over a defendant. Next, the District Court concluded that 10
New York’s long arm statute does not confer personal jurisdiction over THY 11

because the p laintiffs had not established a sufficient nexus between their claims 12

and THY’s contacts with New York , and because it found the situs of the 13

p laintiffs ’ injur ies to be located in Turkey, not New York

. Finally, the District 14

Court determined that Federal Rule of Civil Procedure 4(k)(2) also does not 15
confer personal jurisdiction over THY. As to general jurisdiction under Rule 16
4(k)(2), it reasoned that THY, which is incorporated and maintains its principal 17
place of business in Turkey, did not have sufficient contacts with the United 184 States to render THY “ at home ” in the United States. App’x 117

– 18. As to 1
specific jurisdiction under Rule 4(k)(2), the District Court reasoned that the 2

p laintiffs “fail[ed] to show how THY’s suit

- related conduct” had “ a substantial 3

connection with the United States .” App’x 119

– 20. The District Court thus 4
granted THY’s motion to dismiss. The p laintiffs now appeal the dismissal. 5

We review de novo the District Court’s dismissal of the complaint for lack 6
of personal jurisdiction. Porina v. Marward Shipping Co. , 521 F.3d 122, 126 (2d 7
Cir. 2008)

. 8

A. Montreal Convention 9
On appeal, the p laintiffs argue that the District Court erred in holding that 10
the Montreal Convention does not confer personal jurisdiction over THY. After 11
oral argument in this case , this Court held in UPS Supply Chain Solutions, Inc. v. 12
EVA Airways Corporation that “ the Montreal Convention does not confer 13
personal jurisdiction .” 74 F.4th 66, 69 (2d Cir. 2023)

. W e therefore affirm the 14

District Court’s judgment insofar as it concluded that the Montreal Convention 15

does not itself confer personal jurisdiction over THY. 165 B. Federal Rule of Civil Procedure 4(k)(2) 1
The p laintiffs alternatively offer Rule 4(k)(2) as a basis for personal 2
jurisdiction over THY because of THY ’s minimum contacts with the United 3

States

. That Rule , which is titled “ Federal Claim Outside State

- Court 4
Jurisdiction ,” provides: 5

F or a claim that arises under federal law, serving a 6
summons or filing a waiver of service establishes 7 personal jurisdiction over a defendant if: (A) the 8 defendant is not subject to jurisdiction in any state ’ s 9 courts of general jurisdiction; and (B) exercising 10 jurisdiction is consisten t with the United States 11 Constitution and laws. 12
13 Fed. R. Civ. P. 4(k)(2). Under subsection (A) of th e Rule , we have explained, “a 14
defendant sued under federal law may be subject to jurisdiction based on its 15
contacts with the United States as a whole, when the defendant is not subject to 16
personal jurisdiction in any state .” Dardana Ltd. v. Yuganskneftegaz , 317 F.3d 17
202, 207 (2d Cir. 2003) (emphasis added)

. 18

Here, all but one of the Rule’s central conditions for the exercise of 19
personal jurisdiction are satisfied

. The p laintiffs’ Montreal Convention claim 20

arises under federal law. See Mora v. New York , 524 F.3d 183, 192

– 93 (2d Cir. 21
2008) (“[A] treaty

. . . is a law of the land as an act of [C]ongress is, whenever its 226 provisions prescribe a rule by which the rights of the private citizen or subject 1
may be determined.” (quotation marks omitted)) ; see also Erwin

- Simpson v. 2

AirAsia Berhad , 985 F.3d 883, 889 n.1 (D.C. Cir. 2021) (noting that “a claim under 3
the Montreal Convention” “arise[s] under federal law” for Rule 4(k)(2) 4
(quotation marks omitted))

. And both parties agree that THY is not subject to 5
either general or specific personal jurisdiction in New York (the only State on 6
which the plaintiffs focus on appeal) or in any other S tate’s courts of general 7
jurisdiction. See Oral Arg. Recording at 1:00

– 1:15 , 24:50

– 25:30

. 8
The only remaining question under Rule 4(k)(2) is whether exercising 9
personal jurisdiction over THY would be “ consistent with the United States 10

Constitution and laws ”

– specifically, whether it would “ comport [] with the Due 11

Process Clause of the Fifth Amendment.” Dardana , 317 F.3d at 207. I t is an 12

“ open [] question whether the Fifth Amendment imposes the same restrictions 13
[as the Fourteenth Amendment] on the exercise of personal jurisdiction by a 14

federal court

. ” Bristol

- Myers Squibb Co. v. Super

. Ct. of Cal

. , San Francisco 15
Cnty. , 582 U.S. 255, 269 (2017) . But it is established that t he Due Process Clause 16

of the Fifth Amendment “ permits a court to exercise personal jurisdiction over a 17

non

- resident where the maintenance of the suit would not offend traditional 187 notions of fair play and substantial justice

. ” Porina , 521 F.3d at 127 (quotation 1
marks omitted). To make that assessment, we engage in a two

- step analysis

. See 2

id. “ F irst, we ask whether the defendant has sufficient minimum contacts with 3
the forum to justify the court ’ s exercise of personal jurisdiction

. . . . [T]he 4

q uestion is whether [the defendant] has sufficient affiliating contacts with the 5
United States in general , rather than with New York in particular [

. ] ” Id. 6
(emphasis added). “ If the defendant has sufficient minimum contacts, we 7
proceed to the second stage of the due process inquiry, and consider whether the 8
assertion of personal jurisdiction is reasonable under the circumstances of the 9
particular case.” Id. (quotation marks omitted). 10

T he constitutional minimum contacts inquiry distinguishes between 11
general personal jurisdiction and specific personal jurisdiction relating to “ the 12

United States as a whole

. ” Dardana , 317 F.3d at 207 ; see Porina , 521 F.3d at 12 7

– 13

28

. We address both theories of personal jurisdiction below

. 14
First, as to general jurisdiction, the District Court applied the standard 15
applicable to the inquiry under the Fourteenth Amendment , see App’x 117

– 18, 16

and considered whether THY’s contacts with the United States are sufficient to 17
render THY “essentially at home in the forum.” Daimler AG v. Bauman , 571 U.S. 188 117, 127 (2014) . But the District Court did so without first considering whether 1

Daiml er is applicable to Rule 4(k)(2)(B), which is limited by the Due Process 2

Clause of the Fifth Amendment. See Dardana , 317 F.3d at 207 . Ample case law 3
(albeit pre

- dating Daimler ) applied a different test to determine whether general 4
jurisdiction exists under Rule 4(k)(2)(B)

– that is, whether the defendant’s 5
contacts with the United States as a whole are “continuous and systematic” 6
rather than sporadic. Porina , F.3d at 128 ; see also In re Angeln GmBH & Co. KG , 7
510 F. App ’ x 90, 92 (2d Cir. 2013) (summary order); Synthes (U.S.A.) v. G.M. Dos 8
Reis Jr. Ind. Com de Equip. Medico , 563 F.3d 1285, 1297 (Fed. Cir. 2009) ; Saudi v. 9
Northrop Grumman Corp. , 427 F.3d 271, 276 (4th Cir. 2005) ; Saudi v. Acomarit 10
Maritimes Servs., S.A. , 114 F. App ’ x 449, 452 (3d Cir. 2004) . Accordingly, it is an 11
open question whether general jurisdiction under Rule 4(k)(2)(B) must be 12
determined pursuant to the “essentially at home” inquiry or the “continuous and 13
systematic” inquiry. And, assuming Porina is the applicable standard under 14
Rule 4(k)(2), w hether THY’s alleged contacts with the United States as a whole 15

are “continuous and systematic” is not an issue that the District Court clearly 16
addressed or that we should attempt to resolve in the first instance

. 179 Second, as to s pecific jurisdiction under Rule 4(k)(2) (B) , Due Process 1
requires that the defendant takes “ some act by which [it] purposefully avails 2
itself of the privilege of conducting activities within the forum , ” and the 3
plaintiff ’ s claims “ arise out of or relate to the defendant ’ s contacts with the 4

forum ”

– here the United States. Ford Motor Co. v. Mont

. Eighth Jud. Dist. Ct. , 5

141 S. Ct. 1017, 1024

– 25 (2021) (quotation marks omitted); see also Porina , 521 6

F.3d at 12 8. Plaintiffs have plausibly alleged facts sufficient to establish the first 7
prong of this inquiry

– that is, that THY has “ purposefully avail[ed] itself of the 8
privilege of conducting activities within the ” United States. Id

. For example, a s 9
the p laintiffs informed the District Court and THY d oes not dispute, THY 10
services airports in eight S tates and lists sales and cargo offices in each of those 11

S tates. See App’x 72. The p laintiffs also observe d that THY “transacts a great 12
deal of business in the United States, profiting from daily flights that travel in 13
and out of multiple US states daily , ” App’x 74, and it “facilitate[s] and 14
implement[s] this travel by way of cargo personnel, mechanics, flight crews, sales 15
agents, and executives , ” App’x 119

. 16
It is not clear to us, however, that t he District Court adequately consider ed 17

whether the plaintiffs’ claims “ arise out of or relate to ” THY’s contacts with the 1810 United States. Ford , 141 S. Ct. at 1025. The relevant language does not appear in 1

the District Court ’ s specific jurisdiction analysis under Rule 4(k)(2) (B)

. See App ’ x 2

118

– 20. Especially a fter Ford , the fact t hat the plaintiffs were allegedly injured 3

outside the United States cannot be the dispositive consideration in the specific 4
jurisdiction analysis under Rule 4(k)(2)(B)

. The District Court must consider 5
whether the plaintiffs’ claims more broadly “ arise out of or relate to ” THY’s 6

contacts with the United States , including all of THY’s activities referred to 7

above. 8

We therefore vacate the judgment of dismissal and remand th e case to the 9

District Court to determine whether there is a basis , consistent with this order , 10
for exercising general jurisdiction or specific jurisdiction over THY under Rule 11
4(k)(2). O n remand, the District Court may order jurisdictional discovery to 12
resolve any factual questions that may arise as to the extent of THY’s activities 13
and presence in the United States

. See Dardana , 317 F.3d at 208. 14
For the foregoing reasons, the judgment of the District Court is 15

AFFIRMED in part and VACATED in part , and the case is REMANDED for 16

further proceedings consistent with this order

. 17

FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk of Court 19 20