United States District Court, D. Maryland
XINIS UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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
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.
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.
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.
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.
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
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.
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