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Loring v. Southern Air Charter Co. Ltd.

United States District Court, D. Maryland

June 26, 2018

AILA TUULIKKI LORING, et al., Plaintiffs,



         Pending before the Court is Defendant Alpha Gibbs' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(7) and the common law doctrine of forum non conveniens. See ECF No. 93. Gibbs alternatively requests transfer of this action to the Supreme Court of the Bahamas. ECF No. 93. Also pending is Plaintiffs' motion to strike the Defendants' surreply in support of the forum non conveniens motion. For the following reasons, the motion to strike, ECF No. 114, is GRANTED and the motion to dismiss, ECF No. 93, is DENIED.

         I. BACKGROUND[1]

         On December 2, 2014, Seldon Loring, a citizen of Massachusetts, boarded a Piper PA 31-350 aircraft in Governor's Harbour Airport, Eleuthera, Bahamas, with a final destination of Lynden Pindling International Airport, New Providence Island, Nassau, Bahamas. ECF No. 109 at ¶ 39. Loring had purchased his ticket from Southern Air Company, Ltd. (“Southern Air Bahamas”), and expected to make the short trip to New Providence Island on a Southern Air Bahamas aircraft. However, the Southern Air Bahamas flight was overbooked, so Southern Air rebooked Loring and his wife, Aila Tulikki Loring, also a Massachusetts citizen, on a Fergs Air Limited (“Fergs Air”) flight to the same destination. ECF No. 109 at ¶¶ 30-31. The Lorings did not pay Fergs Air for their tickets, and although the plane was registered to Fergs Air, the flight was operated by Southern Air Bahamas. ECF No. 109 at ¶¶ 30-31. All passengers on the Fergs Air flight purchased their tickets from Southern Air Bahamas, and seven of the eleven passengers were American citizens. ECF No. 98-5; see also ECF No. 100-2.

         As the aircraft approached New Providence Island, several technical problems forced a crash landing in the ocean. ECF No. 109 at 1. Loring died shortly thereafter from injuries sustained during the crash. ECF No. 109 at 1. All other passengers were taken to a local hospital and treated for their injuries. See ECF Nos. 98-5. Southern Air Bahamas employees and the company's lawyer visited the passengers in the hospital, and a Southern Air Bahamas supervisor issued a written report on the incident. See ECF No. 100-2.

         On or about November 30, 2016, Aila Tuulikki Loring, as Personal Representative of the Estate of Seldon Loring and Leila and Jaana Loring Melia, on behalf of their deceased father, Seldon Loring (collectively “Plaintiffs”), filed a wrongful death action under the Death on the High Seas Act (“DOHSA”), 46 U.S.C. §§ 762 et cet., against Southern Air Bahamas, Southern Air Charter Company, Ltd. (“Southern Air Maryland”), and Alpha Gibbs (“Gibbs”), the president of Southern Air Maryland and, through his accounting firm, the chief financial officer of Southern Air Bahamas. See ECF Nos. 71, 72, 73, 92-2 at 10:2-15:17, 92-4 at ¶ 1, 92-9 at ¶ 8. Southern Air Bahamas is a corporation organized under the laws of the Bahamas, whereas Southern Air Maryland is a Maryland corporation, incorporated on May 9, 2013, with its principal place of business in Prince George's County, Maryland. Gibbs is a citizen of the United States residing in Prince George's County, Maryland. See, e.g. ECF No. 109 at ¶¶ 4-6.

         All Defendants were served on January 10, 2017, and Southern Air Maryland timely answered the Complaint. ECF Nos. 7, 8, 9, 13. Defendant Gibbs then moved to dismiss the Complaint “for failure to state a claim upon which he can be held personally liable, ” and Southern Air Bahamas filed a motion to dismiss for lack of personal jurisdiction. ECF Nos. 11 & 12. On February 17, 2017, Plaintiffs moved for leave to conduct jurisdictional discovery under Federal Rule of Civil Procedure 56(d), arguing that this Court had general jurisdiction over all Defendants because Southern Air Bahamas and Southern Air Bahamas were alter-egos of each other, and that Southern Air Bahamas “continuously and systematically” conducted its business in Maryland through the activities and conduct of Defendant Gibbs. See ECF No. 25 at ¶¶ 13-14. The Court granted Plaintiffs' motion on March 29. The Court also set new deadlines for the Defendants to renew their motion to dismiss, if it wished, at the close of jurisdictional discovery.

         Thereafter, this Court granted multiple extensions of the deadlines for completion of jurisdictional discovery due to the Defendants' dereliction in the discovery process. Plaintiffs filed a letter motion to compel on November 17, explaining that discovery had stalled because Defendants had not provided financial documents for Southern Air Bahamas or Southern Air Maryland, and as such, Plaintiffs could not take the necessary corporate deposition of Southern Air Bahamas. See ECF No. 47. Plaintiffs also informed the Court that defense counsel was unresponsive to requests for subpoenaed documents. ECF No. 47; see also ECF Nos. 47-1, 47-2, 47-3. The Court held a recorded status conference on November 29, 2017 at which it found that Defendants were delinquent in producing discovery, and set a discovery of December 1, 2017, where Defendants were to fulfill its obligations or risk sanctions. See ECF No. 51.

         Defendants again failed to produce any documents, and on December 4, Plaintiffs moved formally to compel discovery and for sanctions. See ECF No. 52. Defendants opposed, arguing that Southern Air Maryland and Gibbs had attempted to complete discovery “to best of his ability” and had performed “an exhaustive search for responsive documents” and that “[i]nformation that does not exist cannot be compelled.” ECF Nos. 53 & 57.

         On January 12, 2018, Plaintiffs informed the Court, via letter pleading, Plaintiffs had received, by way of third-party subpoena, documents reflecting the sale of two aircraft to Southern Air Maryland, which it “leased” to Southern Air Bahamas for its use and operation. ECF No. 58. These documents, which were not provided during discovery, supported Plaintiffs' claim that Southern Air Maryland was the functional alter ego of Southern Air Bahamas. ECF No. 58; see also ECF No. 58-7. Plaintiff also submitted depositions of Alpha Gibbs in his personal capacity and as the corporate designee of Southern Air Maryland under Federal Rule of Civil Procedure 30(b)(6). See ECF Nos. 60 & 61. The depositions were rife with Gibbs' evasive or non-responsive answers, reflecting an overall intent to thwart rather than facilitate jurisdictional discovery. The Court, therefore, scheduled a motions hearing on the pending motion to compel for January 25, 2018 at which Gibbs' personal appearance was ordered. See ECF No. 59.

         Gibbs failed to appear at the January 25th motions hearing, prompting this Court to hold him in contempt. See ECF No. 64. As grounds in support, the Court noted that Defendants had not participated in discovery in good-faith and willfully ignored the deadlines established by the Court's previous Orders. ECF Nos. 64 & 65. The Court provided Gibbs an opportunity to purge the finding of contempt by appearing on February 1, 2018. ECF No. 65.

         At the January 25 hearing, argument was also heard on the pending motion to compel jurisdictional discovery. ECF No. 64. The Court noted that in light of Defendants' systematic dereliction with respect to conducting jurisdictional discovery, and because Southern Air Bahamas had failed to renew its motion to dismiss for lack of personal jurisdiction by the Court-ordered deadline, any affirmative defenses as to jurisdiction were waived. The Court determined that it retained personal jurisdiction over all three Defendants.[2]

         Plaintiffs' motion to compel discovery was also granted. ECF No. 64. As a gesture of good faith and to limit future discovery costs, Defendants volunteered to make all potential witnesses available for deposition near Plaintiffs' home in Boston, Massachusetts. At the same hearing where the Court discussed the propriety of initial disclosures under Federal Rule of Civil Procedure 26, defense counsel represented to the Court that Defendants did not have insurance to cover Plaintiffs' claims. ECF No. 64.

         The Court also put in place a series of specific conditions on how merits discovery would proceed so as to ensure Defendants' future compliance and facilitate the orderly progression of this case. Specifically, the Court required Gibbs to produce an under oath affirmation that Gibbs had performed a diligent search and provided in a timely manner all responsive documents within his possession, custody, or control. Further, the Court ordered that any future deposition of Gibbs would take place in the United States ...

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