United States District Court, E.D. Pennsylvania
S. Diamond, J.
tort action, Defendant Air India Limited moves to dismiss for
lack of jurisdiction. Pro se Plaintiff Chaman Popli
cross-moves to transfer to the District of New Jersey.
Because Air India is protected by sovereign immunity, I will
March 9, 2016, while waiting for his flight in Air
India's first-class lounge in Delhi, India, Plaintiff
purchased food. (Compl., Doc. No. 1, Ex. A, at 4.) As
alleged, the food was infested with live worms and bugs,
causing Plaintiff immediately to vomit. (Id.)
Plaintiff felt nauseated throughout the Air India flight to
New York City, but never received assistance from the flight
December 28, 2016, Plaintiff brought suit in Bucks County
Magisterial District Court, seeking $11, 500 in damages.
(Id. at 3.) Invoking the Foreign Sovereign
Immunities Act, Air India removed to this Court on January
24, 2017. (Doc. No. 1, ¶¶ 4-5); 28 U.S.C. §
India has moved to dismiss for want of personal jurisdiction,
arguing that it is not registered to do business in
Pennsylvania and does not operate any business in the
Commonwealth. (Doc. No. 10.) Rather than respond, Plaintiff
cross-moved to transfer to the New Jersey District Court.
(Doc. Nos. 12, 14.) Air India argues that transfer would be
pointless because: 1) the New Jersey Court could not exercise
personal jurisdiction; and 2) under the FSIA, the airline is
immune from suit. (Doc. No. 15.)
Plaintiff has declined to address personal jurisdiction, I am
obligated to do so. “Under Federal Rule of Civil
Procedure 4(k), a District Court typically exercises personal
jurisdiction according to the law of the state where it
sits.” O'Connor v. Sandy Lane Hotel Co.,
496 F.3d 312, 316 (3d Cir. 2007). Pennsylvania's long-arm
statute permits the exercise of jurisdiction “based on
the most minimum contact with th[e] Commonwealth allowed
under the Constitution of the United States.” 42 Pa.
C.S. § 5322(b). “Accordingly, in determining
whether personal jurisdiction exists, [I] ask whether, under
the Due Process Clause, the defendant has ‘certain
minimum contacts with Pennsylvania such that the maintenance
of the suit does not offend traditional notions of fair play
and substantial justice.” O'Connor, 496
F.3d at 316-17 (quoting Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)).
burden of demonstrating the facts that establish personal
jurisdiction' falls on the plaintiff.” Metcalfe
v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir.
2009) (quoting Pinker v. Roche Holdings, Ltd., 292
F.3d 361, 368 (3d Cir. 2002)). “‘[O]nce a
defendant has raised a jurisdictional defense, ' the
plaintiff must ‘prove by affidavits or other competent
evidence that jurisdiction is proper.'”
Id. (quoting Dayhoff Inc. v. H.J. Heinz
Co., 86 F.3d 1287, 1302 (3d Cir. 1996)).
a district court finds that it is lacking jurisdiction, the
court shall, if it is in the interest of justice, transfer
such action . . . to any other such court in which the action
. . . could have been brought at the time it was filed or
noticed . . . .” D'Jamoos ex rel. Estate
of Weingeroff v. Pilatus Aircraft Ltd., 566
F.3d 94, 106-07 (3d Cir. 2009) (quoting 28 U.S.C. §
1631). “Transfer is preferred over dismissal, so [the
Court should] decline to transfer the case only if [it]
find[s] transfer to not be in the interest of justice.”
Campbell v. Mars, Inc., No. 16-4035, 2016 WL
6901970, at *3 (E.D. Pa. Nov. 22, 2016) (citing Matthews
v. Am.'s Pizza Co., LLC, No. 13-690, 2014 WL
1407764, at *2 (E.D. Pa. Apr. 10, 2014)). “An action
can be brought only where the court has . . . jurisdiction
over the defendant, and thus a court does not have authority
to transfer a case” to a court that lacks jurisdiction.
Pac. Emps. Ins. Co. v. AXA Belgium S.A., 785
F.Supp.2d 457, 475 (E.D. Pa. 2011) (citing Hunt v. Global
Incentive & Meeting Mgmt., No. 09-4921, 2010 WL
3740808 at *8 (D.N.J. Sept. 20, 2010)).
FSIA provides the exclusive source of potential subject
matter jurisdiction over claims in United States courts
against foreign states and their agencies or
instrumentalities, ” which have “presumptive
immunity from suits in federal courts, absent a demonstration
by the plaintiff that the claim falls within a statutory
exception to immunity.” Ezeiruaku v. Bull, 617
F. App'x 179, 180-81 (3d Cir. 2015) (citing 28 U.S.C.
§ 1604). Once the defendant makes a prima facie showing
that it is an instrumentality protected by immunity, the
“burden shifts to the plaintiff to produce sufficient