Although strategy often affects which defenses a party will raise in a motion to dismiss, it is critically important to consider whether the failure to raise one defense might undercut others.
Mr. Agasino was a passenger flying from Tokyo, Japan to Dallas, Texas on an American Airlines flight. During the flight, a bag fell from an overhead compartment and hit him in the head. He lost consciousness and sustained numerous injuries. He brought a claim against American Airlines under the Convention for the Unification of Certain Rules for International Carriage by Air (the "Montreal Convention" or "Convention") in the United States District Court for the Northern District of California, seeking at least $400,000 in damages. No facts connected Mr. Agasino's accident to the Northern District of California. In addition, he was not a California resident.
American moved to dismiss the action for lack of venue, or, in the alternative, to transfer venue to the Northern District of Texas for the convenience of the parties and witnesses. Although there were no jurisdictional facts connecting the accident to the Northern District of California, and although American is a citizen of Texas for jurisdictional purposes, American did not move to dismiss for lack of specific personal jurisdiction. Mr. Agasino countered that venue was proper under the Montreal Convention and argued that the Convention supersedes the general venue statute, 28 U.S.C. § 1391.
The court rejected Mr. Agasino's argument, explaining that the Convention does not govern venue within the United States. Quoting the pertinent language of the Convention, the court explained that Montreal Convention Article 33 describes which state parties may entertain a claim arising from injury to a passenger (i.e., "Article 33 confers jurisdiction on the courts of a nation-state, rather than a particular court within that nationstate").
However, the court found venue nevertheless existed under the general federal venue statute, noting a corporate defendant is deemed to reside— and therefore may be sued—in any district in which it is subject to personal jurisdiction. Even though the undisputed facts of the case showed there was no connection whatsoever between the accident and the forum, the court ruled that venue was proper: American waived any personal jurisdiction defense by failing to raise one in its motion to dismiss. As a result, American was deemed to reside in the Northern District of California for venue purposes.
Luckily for American—and for its lawyers—the court granted American's motion to transfer venue, transferring the case to the Northern District of Texas pursuant to the change of venue statute, 28 U.S.C. § 1404, for the convenience of the parties and witnesses in the interests of justice. Agasino v. Am. Airlines Inc., No. 19-cv-03243-LB, 2019 U.S. Dist. LEXIS 125062 (N.D. Cal. July 26, 2019).
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