Air Crash Over The Southern Indian Ocean, on March 8, 2014

MOTION to Dismiss for Lack of Jurisdiction Rule 12

D.D.C.October 1, 2016

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN RE: AIR CRASH OVER THE SOUTHERN INDIAN OCEAN ON MARCH 8, 2014 MDL Docket No: 2712 Misc. No. 16-1184 (KBJ) This Document Relates To: 1:16-cv-00439-KBJ Smith v. Malaysia Airlines Berhad; 1:16-cv-01048-KBJ Zhang, et al. v. Malaysia Airlines Berhad; 1:16-cv-01062-KBJ Kanan, et al. v. Malaysia Airlines System Berhad; 1:16-cv-01063-KBJ Huang, et al. v. Malaysia Airlines Berhad. DEFENDANT ALLIANZ GLOBAL CORPORATE & SPECIALTY SE’S RULE 12(b)(2) MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Subject to, and without waiver of any rights, privileges or defenses or conceding the convenience of this forum for resolution of this dispute, Defendant, ALLIANZ GLOBAL CORPORATE & SPECIALTY SE (“AGCS SE”), incorrectly sued as “Allianz Global Corporate and Specialty”, respectfully moves this Court for an Order dismissing it from the above- captioned actions for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12 (b)(2). Defendant AGCS SE relies upon the points and authorities set forth in its Memorandum in Support of this Motion to Dismiss for Lack of Personal Jurisdiction, supporting exhibits, supporting declarations, and all other pleadings on file with the Court. WHEREFORE, for the foregoing reasons, Defendant AGCS SE respectfully requests that this Court dismiss it from the above-captioned actions, and for any additional relief this Court deems fit to grant. Case 1:16-mc-01184-KBJ Document 35 Filed 10/01/16 Page 1 of 3 2 Dated: October 1, 2016 Respectfully submitted, KAPLAN, MASSAMILLO & ANDREWS LLC By: /s/ Richard A. Walker Telly Andrews, IL Bar No. 6242431 tandrews@kmalawfirm.com Richard A. Walker, IL Bar No. 6196947 rwalker@kmalawfirm.com 200 W. Madison Street, 16th Floor Chicago, Illinois 60606 Telephone: (312) 345-3000 Facsimile: (312) 345-3119 Attorneys for Defendant Allianz Global Corporate & Specialty SE Case 1:16-mc-01184-KBJ Document 35 Filed 10/01/16 Page 2 of 3 CERTIFICATE OF SERVICE The undersigned certifies that, on October 1, 2016, pursuant to Fed. R. Civ. P. 5 and LCvR 5.3, a true and correct copy of the foregoing Defendant Allianz Global Corporate & Specialty SE’s Rule 12(b)(2) Motion To Dismiss For Lack of Personal Jurisdiction was filed with the Clerk of Court using the CM/ECF System, which will send notification of such filing to the attorneys of record at the email addresses on file with the Court. /s/ Richard A. Walker Richard A. Walker Case 1:16-mc-01184-KBJ Document 35 Filed 10/01/16 Page 3 of 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN RE: AIR CRASH OVER THE SOUTHERN INDIAN OCEAN ON MARCH 8, 2014 MDL Docket No: 2712 Misc. No. 16-1184 (KBJ) This Document Relates To: 1:16-cv-00439-KBJ Smith v. Malaysia Airlines Berhad; 1:16-cv-01048-KBJ Zhang, et al. v. Malaysia Airlines Berhad; 1:16-cv-01062-KBJ Kanan, et al. v. Malaysia Airlines System Berhad; 1:16-cv-01063-KBJ Huang, et al. v. Malaysia Airlines Berhad. DEFENDANT ALLIANZ GLOBAL CORPORATE & SPECIALTY SE’S MEMORANDUM IN SUPPORT OF ITS RULE 12(b)(2) MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 1 of 27 ii TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION ...........................................................................................................................1 BACKGROUND ............................................................................................................................2 LEGAL STANDARD .....................................................................................................................8 ARGUMENT ...................................................................................................................................8 I. COURTS IN NEW YORK, THE DISTRICT OF COLUMBIA, AND CALIFORNIA LACK SPECIFIC PERSONAL JURISDICTION OVER AGCS SE ...........................................................................................................................10 A. Plaintiffs Cannot Allege Any Forum-Related Activities by AGCS SE in Connection with the Accident ......................................................................10 B. Plaintiffs Cannot Impute MAS’ Alleged Forum Contacts to AGCS SE ...........................................................................................................................13 II. COURTS IN THE DISTRICT OF COLUMBIA, CALIFORNIA AND NEW YORK LACK GENERAL PERSONAL JURISDICTION OVER AGCS SE ...........................................................................................................................15 A. Plaintiffs Fail to Plead a Sufficient Basis to Support General Personal Jurisdiction ..............................................................................................16 B. The Court Should Reject Plaintiffs’ Unsupportable Personal Jurisdiction Allegations .........................................................................................17 C. AGCS SE is a European Union Company Headquartered in Germany .................................................................................................................19 D. AGCS SE Did Not Directly Insure MAS ..............................................................20 CONCLUSION ..............................................................................................................................21 Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 2 of 27 iii TABLE OF AUTHORITIES Cases Alkanani v. Aegis Def. Servs., LLC, 976 F. Supp. 2d 13 (D.D.C. 2014) .......................... 11, 12, 16 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................... 13 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) .......................................................... 11, 14 Cordice v. LIAT Airlines, No. 14-CV-2924 RRM LB, 2015 WL 5579868 (E.D.N.Y. Sept. 22, 2015) ................................................................... 4 Crane v. N.Y. Zoological Soc., 894 F.2d 454 (D.C. Cir. 1990) ...................................................... 8 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) ..................................................................... passim Estate of Klieman v. Palestinian Auth., 82 F. Supp. 3d 237 (D.D.C. 2015) ................................... 8 First Chicago Int'l v. United Exchange Co., 836 F.2d 1375 (D.C.Cir.1988) ................................. 8 Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438 (D.C. Cir. 1990) ............. 3, 4 Freedman v. Suntrust Banks, Inc., 139 F. Supp. 3d 271 (D.D.C. 2015) ................................. 15, 16 Frost v. Catholic Univ. of Am., 960 F. Supp. 2d 226 (D.D.C. 2013).............................................. 8 Fuentes-Fernandez & Co., PSC v. Caballero & Castellanos, PL, 770 F. Supp. 2d 277 (D.D.C. 2011) .................................................................................... 8 Goodyear Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011) .................................. 9, 11, 16 Gorman v. Ameritrade Holding Corp., 293 F.3d 506 (D.C.Cir.2002) ......................................... 15 Ibrahim v. D.C., 357 F. Supp. 2d 187 (D.D.C. 2004) ................................................................... 18 In re Papst Licensing GMBH & Co. KG Litig., 602 F. Supp. 2d 10 (D.D.C. 2009) .................... 12 Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945) ................................................................ 11, 16 J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 131 S. Ct. 2780 (2011) ................................ 11 Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883 (7th Cir. 2011) .................................. 20 Livnat v. Palestinian Auth., 82 F. Supp. 3d 19 (D.D.C. 2015) ......................................... 11, 17, 19 Mehr v. Fed'n Internationale de Football Ass'n, 115 F. Supp. 3d 1035 (N.D. Cal. 2015) ........... 14 Rann v. Chao, 154 F. Supp. 2d 61 (D.D.C. 2001) ........................................................................ 18 Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 3 of 27 iv Second Amend. Found. v. U.S. Conf. of Mayors, 274 F.3d 521 (D.C. Cir. 2001) ...................... 8, 9 Silha v. ACT, Inc., 807 F.3d 169 (7th Cir. 2015) .......................................................................... 13 Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221 (2d Cir.) ..................................... 16 Terry v. Dewine, 75 F. Supp. 3d 512 (D.D.C. 2014) .................................................................... 14 Thackurdeen v. Duke Univ., 130 F. Supp. 3d 792 (S.D.N.Y. 2015) ............................................. 14 Toumazou v. Turkish Republic of N. Cyprus, 71 F. Supp. 3d 7 (D.D.C. 2014) ............................ 16 Travelers Indem. Co. v. Scor Reinsurance Co., 62 F.3d 74 (2d Cir. 1995) .................................. 20 United States v. Philip Morris, Inc., 116 F. Supp. 2d 116 (D.D.C. 2000) ................................ 8, 18 Walden v. Fiore, 134 S. Ct. 1115 (2014) ................................................................................ 11, 13 Weinberg v. Grand Circle Travel, LCC, 891 F. Supp. 2d 228 (D. Mass. 2012) ............................ 4 Statutes 28 U.S.C. § 1330(a) ........................................................................................................................ 4 28 U.S.C. § 1330(b) .................................................................................................................... 3, 4 28 U.S.C. § 1332(a) ........................................................................................................................ 3 28 U.S.C. § 1391 ............................................................................................................................. 3 28 U.S.C. § 1407 ....................................................................................................................... 3, 12 28 U.S.C. § 1602 ......................................................................................................................... 3, 4 Cal. Civ. Proc. Code § 410.10 (West)........................................................................................... 12 D.C. Code Ann. § 13-423(E) (West) ............................................................................................ 12 N.Y. C.P.L.R. 302(a) & (a)(1) (McKinney) ................................................................................. 12 Rules Fed. R. Civ. P. 5 ............................................................................................................................ 22 Fed. R. Civ. P. 12(b)(2)............................................................................................................... 1, 8 Fed. R. Civ. P. 12(b)(6)................................................................................................................... 2 Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 4 of 27 v Other Authorities Federal Practice and Procedure § 1351 (1990) ............................................................................. 18 Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 5 of 27 1 DEFENDANT ALLIANZ GLOBAL CORPORATE & SPECIALTY SE’S MEMORANDUM IN SUPPORT OF ITS RULE 12(b)(2) MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Without waiver of any rights, privileges and defenses, and without conceding the appropriateness of any United States forum for resolution of these lawsuits, Defendant, ALLIANZ GLOBAL CORPORATE & SPECIALTY SE (“AGCS SE”), incorrectly sued as “Allianz Global Corporate and Specialty,” submits this memorandum of law in support of its Fed. R. Civ. P. 12(b)(2) Motion to Dismiss the captioned actions (the “Lawsuits”) for Lack of Personal Jurisdiction.1 INTRODUCTION Plaintiffs seek to hail AGCS SE, a Societas Europaea organized and existing under the laws of the European Union that maintains its principal place of business in Munich, Germany, into court in in United States even though AGCS SE has extremely limited contact with the United States and Plaintiffs cannot allege any actions by AGCS SE in the United States (or anywhere) that played a role in the loss of Malaysia Airlines Flight MH370 over the southern Indian Ocean on March 8, 2014 (the “Accident”) or form the basis of their claims. The Plaintiffs in the Huang, Smith, Zhang and Kanan Lawsuits (hereinafter, “Plaintiffs”) filed their actions in the United States District Courts for the Southern District of New York, the District of Columbia and the Central District of California against AGCS SE seeking to make AGCS SE the involuntary legal representative of defendant Malaysian Airline System Berhad (Administrator Appointe)(“MAS”) as a means of recovery against MAS for their losses arising from the 1 This Memorandum and Motion apply to the following four actions transferred to this Court for consolidated or coordinated proceedings: Min Huang, et al. v. Malaysia Airlines Berhad, et al., 1:16-cv-01063 (First Amended Complaint) (“Huang FAC”); Elizabeth Smith v. Malaysia Airlines Berhad, et al., 1:16-cv-00439 (Original Complaint) (“Smith OC”); Jianguo Zhang, et al. v. Malaysia Airlines Berhad, et al., 1:16-cv-01048 (Second Amended Complaint) (“Zhang SAC”); Sri Devi Kanan, et al. v. Malaysia Airlines System Berhad, et al., 1:16-cv- 01062 (Original Complaint) (“Kanan OC”). Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 6 of 27 2 accident. In addition to the failure to state a claim, addressed in a separate motion,2 the Lawsuits against AGCS SE also fail because personal jurisdiction does not exist over AGCS SE in any of the Plaintiffs’ chosen forums. In an attempt to anchor the Lawsuits in the United States, Plaintiffs mechanically recite a host of non-specific allegations against “all Defendants” regarding personal jurisdiction. However, Plaintiffs fail to allege any factual or legal basis establishing personal jurisdiction, either specific or general, over AGCS SE, because it is a foreign company that did not engage in any conduct in the District of Columbia, New York or California causally connected to the loss of Flight MH370. Further, even if this Court were to accept Plaintiffs’ unsupported allegations that MAS is “dead,” and thus AGCS SE (somehow) is MAS’ involuntary legal representative for purposes of the Lawsuits, the Courts of the respective transferor forums still lack both specific and general jurisdiction over AGCS SE. BACKGROUND These Lawsuits arise out of the crash of Malaysia Airlines Flight MH370 (“Flight MH370”). Flight MH370 was a scheduled international passenger flight operated by Malaysian Airline Systems Berhad (“MAS”), which departed from Kuala Lumpur International Airport bound for Beijing Capital International Airport on March 8, 2014. See Huang FAC at ¶ 14; Smith OC at ¶ 25; Zhang SAC at ¶ 27; Kanan OC at ¶ 14. Flight MH370 never arrived at Beijing Capital International Airport. Id. All 227 passengers and 12 crew members perished in the loss of Flight MH370. Id. Following the Accident, plaintiffs filed suit in three separate United States District Courts in New York, Washington DC and California in connection with the Accident, naming, inter alia, AGCS SE as a defendant. See Huang FAC at ¶¶ 3, 5-7, 86-96; Smith OC at ¶¶ 2 For further discussion of the complete lack of legal justification for the claims authored by Plaintiffs against AGCS SE, see defendants AGCS SE and Henning Haagen’s Fed. R. Civ. P. 12(b)(6) Motion to Dismiss Plaintiffs’ claims for failure to state a cause of action, filed concurrently with this Motion. Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 7 of 27 3 3, 5-7, 97-105, 113; Zhang SAC at ¶¶ 3, 5-7, 30, 97-107, 111; 103; Kanan OC at ¶¶ 3, 5-7, 41-52, 60. On June 2, 2016, the four Lawsuits, along with other related actions, were transferred to this Court pursuant to 28 U.S.C. § 1407 for coordinated pretrial proceedings. A review of Plaintiffs’ complaints does not easily reveal the purported basis for the exercise of personal jurisdiction over AGCS SE in the United States. Plaintiffs mistakenly assert that personal jurisdiction is proper pursuant to diversity jurisdiction under 28 U.S.C. § 1332(a), which governs subject matter jurisdiction statute. Huang FAC at ¶ 10; Smith OC at ¶ 10; Zhang SAC at ¶ 12; Kanan OC at ¶ 10. Plaintiffs in Huang and Kanan go on to plead that “[p]ursuant to 28 U.S.C. § 1391” - a venue statute - “all Defendants are subject to personal jurisdiction in this Court.” Huang FAC at ¶ 11; Kanan OC at ¶ 11. In Smith and Zhang, Plaintiffs repeat the allegations regarding Section 1391, but go on to add through a series of disjointed allegations that personal jurisdiction exists over all Defendants (including AGCS SE) pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 et. seq. (“FSIA”).3 See Smith OC at ¶¶ 11, 15, 17 - 19, 21; Zhang SAC at ¶¶ 13, 19 - 20, 24. In several instances across, and even within, the complaints, Plaintiffs plead inconsistent jurisdictional allegations against the Defendants, often times flipping back and forth between asserting personal jurisdiction allegations against all Defendants, but then elsewhere asserting the same jurisdictional theories 3 For reasons explained in its separate Motion to Dismiss for Failure to State a Claim, AGCS SE is not a proper defendant in the Lawsuits and cannot be held liable for the loss of Flight MH370. However, in the event that this Court accepts the Plaintiffs’ unprecedented contentions, which AGCS SE expressly denies, AGCS SE contends that it stands in the shoes of MAS and therefore adopts and incorporates by reference each and every argument asserted by MAS in its Motion to Dismiss Plaintiffs’ claims pursuant to the Foreign Sovereign Immunities Act. 28 U.S.C. § 1602 et seq. Even if the Court concludes that it has statutory authority to assert jurisdiction over AGCS SE pursuant to an exception to foreign sovereign immunity, see 28 U.S.C. § 1330(b), Plaintiffs still must show that the exercise of such jurisdiction would be consistent with the constitutional requirements of due process. See Foremost- McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 442 n.10 (D.C. Cir. 1990). Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 8 of 27 4 against only MAS and MAB.4 Id. Finally, Plaintiffs in all four Lawsuits ambiguously assert that “[the Montreal Convention] confers jurisdiction” in the United States courts pursuant to Articles 32 and 33 Paragraph 1, without clarifying whether the allegation pertains to personal jurisdiction or, as is more likely, subject matter jurisdiction.5 Notwithstanding the unclear basis on which Plaintiffs assert personal jurisdiction over AGCS SE, they do make unsupported allegations that AGCS SE is the insurer of MAS and indicating that the insurance policy was issued in or from the United States. See Huang FAC at ¶¶ 92-96; Smith OC at ¶¶ 101-105; Zhang SAC at ¶¶ 103-107; Kanan OC at ¶¶ 48-52. Plaintiffs make no allegation of wrongdoing on behalf of AGCS SE in the United States or anywhere for that matter, only that AGCS SE is MAS’s legal representative. But AGCS SE is not the insurer of MAS, but rather the reinsurer of a retrocession of reinsurance issued by a Malaysian company to the actual direct insurer of MAS. AGCS SE’s role as one of a number of reinsurers of a reinsurer is remote. Any activity relating to AGCS SE’s role as one of a number of reinsurers took place in the United Kingdom and it has no contact with the United States or any State. 4 For example, the Plaintiffs in Smith and Zhang plead in one paragraph that personal jurisdiction over only MAS and MAB exists pursuant to 28 U.S.C. § 1330, but later plead that Section 1330(a) operates to confer personal jurisdiction over all Defendants. Smith OC at ¶¶ 16, 18 - 19, 21; Zhang SAC at ¶¶ 18, 21, 24. As another example, in Paragraph 15 of Smith OC, Plaintiffs allege that the Court has “personal jurisdiction over the Defendants under FSIA”; whereas in a parallel allegation in Paragraph 17 of Zhang SAC, Plaintiffs allege that the Court only has “personal jurisdiction over the Defendants MAS and MAB under the FSIA.” Smith OC at ¶ 15; Zhang SAC at ¶ 17. 5 AGCS SE also is not a proper defendant in the Lawsuits under the Montreal Convention and cannot be held liable for the loss of Flight MH370. However, in the event that this Court accepts the Plaintiffs’ unprecedented accusations, which AGCS SE expressly denies, AGCS SE stands in the shoes of MAS and adopts and incorporates by reference each and every argument asserted by MAS in its Motion to Dismiss Plaintiffs’ claims under the Montreal Convention. Even if plaintiffs establish subject matter jurisdiction over AGCS SE pursuant to the Montreal Convention, the court must still address the issue of personal jurisdiction. See Weinberg v. Grand Circle Travel, LCC, 891 F. Supp. 2d 228, 237 (D. Mass. 2012); Cordice v. LIAT Airlines, No. 14-CV-2924 RRM LB, 2015 WL 5579868, at *1 (E.D.N.Y. Sept. 22, 2015). Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 9 of 27 5 The facts demonstrating the absence of any specific personal jurisdiction are established through the Declaration of Brendan Baxter (“Baxter Decl.”), attached hereto as Exhibit A, as follows:  AGCS SE is not an insurer of MAS or Malaysia Airlines Berhad (“MAB”) and has not issued a policy to MAS or MAB which provides insurance coverage for the loss of Malaysia Airlines Flight MH370 on March 8, 2014. See Ex. A, Baxter Decl. at ¶ 20.  AGCS SE’s records show that MAS purchased insurance as set forth in Airline Hull (Including Spares and Equipment) All Risks and Liabilities Insurance, Policy No. CAV-12518149-CI, for the Period 01 December 2013 to 30 November 2014, policy of insurance from Etiqa Insurance Berhad (and possibly other Local Malaysian Companies), which covers the loss of Flight MH370. Etiqa Insurance Berhad (“Etiqa”) is an insurance company located in Kuala Lumpur, Malaysia. Id. at ¶ 21.  AGCS SE’s records also show that Etiqa then obtained reinsurance of the Etiqa policy through Delima Insurance (Labuan) Limited (“Delima”), another Malaysian insurance company. Id. at ¶ 22.  AGCS SE’s records show further that Delima then solicited reinsurance (also described as a retrocession) of its policy of reinsurance issued to Etiqa in the international reinsurance markets. Id. at ¶ 23.  AGCS SE, through its United Kingdom branch, along with a number of other reinsurers, severally agreed to reinsurance (the “Retrocession”) of Delima’s reinsurance of the Etiqa insurance policy issued to MAS. Id. at ¶ 24. Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 10 of 27 6  To the extent that AGCS SE severally participates in the Retrocession of Delima’s reinsurance of the Etiqa insurance policy issued to MAS, the Retrocession was underwritten and placed through AGCS SE’s United Kingdom branch. Id. at ¶¶ 24- 25.  The Retrocession policy was not issued in the United States nor was it issued to a United States citizen or legal entity, nor was it negotiated or purchased in the United States and does not pertain to a claim by Delima in the United States. Id. at ¶¶ 26 - 28.  Neither AGCS SE nor Mr. Henning Haagen ever agreed to be a legal representative of MAS or MAB to be sued in their stead. Id. at ¶ 29.  All records of AGCS SE relating to the Retrocession are located in the United Kingdom or Germany. Id. at ¶ 30. Similarly, the facts demonstrating the absence of any general personal jurisdiction are established through the Declaration of Brendan Baxter as follows:  AGCS SE is a Societas Europaea organized and existing under the laws of the European Union, with its registered and principal place of business in Munich, Germany. See Ex. A, Baxter Decl. at ¶ 5.  AGCS SE does not maintain any place of business in the United States, including California, New York or the District of Columbia. Id. at ¶ 12.  AGCS SE does not own, lease, or rent any real property anywhere in the United States. Id. at ¶ 11  AGCS SE does not maintain any bank accounts anywhere in the United States. Id. at ¶ 13. Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 11 of 27 7  With the exception of a few individuals, AGCS SE has no officers, directors or employees located anywhere in the United States. Id. at ¶ 10.  AGCS SE is not authorized, and has never sought to be authorized, to transact business anywhere in the United States. Id. at ¶ 14.  AGCS SE does not hold any licenses issued by the United States or any State within the United States. Id. at ¶ 15.  AGCS SE does not maintain a registered agent for service of process anywhere in the United States. Id. at ¶ 16.  AGCS SE is a wholly owned direct subsidiary of Allianz SE which is also a Societas Europaea organized and existing under the laws of the European Union with its registered and principal place of business in Munich, Germany. Id. at ¶ 17.  AGCS SE does not have any ownership interest or operational or managerial control in Allianz Global Risks US Insurance Company Corp. (“AGR US”), Allianz Underwriting Insurance or AGCS Marine Insurance Company (which are both subsidiaries of AGR US) - and none of these entities are subsidiaries of AGCS SE. Id. at ¶ 18.  Allianz Global Risks US Insurance Company Corp., Allianz Underwriting Insurance and AGCS Marine Insurance Company are subsidiaries of Allianz SE and not subsidiaries of AGCS SE. Id. at ¶ 19  Only 5.1% of AGCS SE’s global gross written premium revenue in 2015 derived from business in the United States as a whole. Id at ¶ 9 and only 3.65% of AGCS SE’s premiums were derived from the United States in 2014, the year of the Accident. Id. Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 12 of 27 8 LEGAL STANDARD When a defendant moves to dismiss under Rule 12(b)(2), “[t]he plaintiff has the burden of establishing a factual basis for the exercise of personal jurisdiction over the defendant.” Fed. R. Civ. P. 12(b)(2); Crane v. N.Y. Zoological Soc., 894 F.2d 454, 456 (D.C. Cir. 1990). The Plaintiffs bear the burden of establishing a prima facie showing that the Court has personal jurisdiction over AGCS SE. See Estate of Klieman v. Palestinian Auth., 82 F. Supp. 3d 237, 243 (D.D.C. 2015) (internal citation omitted). A plaintiff cannot rest on bare allegations or conclusory statements but must demonstrate “specific acts connecting [the] defendant with the forum.” Second Amend. Found. v. U.S. Conf. of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001) (citing First Chicago Int'l v. United Exchange Co., 836 F.2d 1375, 1378-79 (D.C.Cir.1988)). “The imposition of such a burden on [a] plaintiff[] exempts personal jurisdiction analysis from the general rule that all allegations must be taken as true for the purposes of ruling on a motion to dismiss.” Frost v. Catholic Univ. of Am., 960 F. Supp. 2d 226, 231 (D.D.C. 2013) (citing United States v. Philip Morris, Inc., 116 F. Supp. 2d 116, 120 n.4 (D.D.C. 2000)). Indeed, courts may consider extrinsic evidence in disposing of a motion to dismiss for lack of personal jurisdiction. See id. Ultimately, if plaintiffs fail to meet their burden of establishing personal jurisdiction, their claims must be dismissed. See Fuentes-Fernandez & Co., PSC v. Caballero & Castellanos, PL, 770 F. Supp. 2d 277, 281 (D.D.C. 2011). ARGUMENT Plaintiffs attempt to summon AGCS SE - a foreign company, organized and existing under the laws of the European Union with its principal place of business in Munich, Germany - into three separate U.S. jurisdictions with which it has less than minimal contacts or affiliations. In the realm of personal jurisdiction, Constitutional law draws a sharp distinction between two Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 13 of 27 9 types of personal jurisdiction: specific or case-linked jurisdiction, and general, or all-purpose, jurisdiction. “Specific jurisdiction” exists when “specific acts connect[] [the] defendant with the forum.” Second Amendment Found., 274 F.3d at 524 (internal quotation marks omitted). “General jurisdiction” exists where a foreign defendant’s “constant and pervasive” contacts render it “essentially at home” in the forum state and it may be sued in connection with any conduct. Daimler AG v. Bauman, 134 S. Ct. 746, 751 (2014) (“Daimler AG”). In reviewing the Lawsuits it is difficult to decipher Plaintiffs’ theory of personal jurisdiction over AGCS SE. However, regardless of the theory on which Plaintiffs eventually rely, the result is the same - AGCS SE is not subject to specific or general personal jurisdiction anywhere in the United States, including New York, California, and the District of Columbia (the “Plaintiffs’ Forums” or “Forums”), in connection with the Lawsuits. Plaintiffs cannot establish specific personal jurisdiction over AGCS SE because AGCS SE has very limited (if any) contacts with Plaintiffs’ Forums and none of its contacts with Plaintiffs’ Forums give rise to their claims. Likewise, Plaintiffs cannot establish general jurisdiction over AGCS SE in the United States or any of the Plaintiffs’ Forums because AGCS SE’s limited contacts with those Forums are not so “continuous and systematic” as to render it “essentially at home” in any of them. See Goodyear Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011). As a result, Plaintiffs lack any Constitutional basis for asserting either specific or general personal jurisdiction over AGCS SE in the Plaintiffs’ Forums, or anywhere in the United States, and the lack of personal jurisdiction requires the immediate dismissal of AGCS SE from the Lawsuits. Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 14 of 27 10 I. COURTS IN NEW YORK, THE DISTRICT OF COLUMBIA AND CALIFORNIA LACK SPECIFIC PERSONAL JURISDICTION OVER AGCS SE Plaintiffs cannot establish specific personal jurisdiction over AGCS SE because AGCS SE has extremely limited (if any) contacts with Plaintiffs’ Forums and none of its contacts with Plaintiffs’ Forums gave rise to their claim based solely on AGCS SE’s alleged status as an insurer of MAS. Plaintiffs’ claims against AGCS SE in the Plaintiffs’ Forums are premised on the following contrived series of conclusory allegations: MAS is “dead” due to an act of Malaysian Parliament; AGCS SE issued the insurance policy covering the loss of MH370; and because MAS is “dead”, AGCS SE now acts as MAS’ legal representatives and therefore may be sued in connection with MAS’ alleged wrongful conduct. Huang FAC at ¶ 80; Smith OC at ¶ 91; Zhang SAC at ¶ 93; Kanan OC at ¶ 36; Absent from Plaintiffs’ allegations - in addition to any factual or legal basis for these conclusions - is any allegation of specific conduct by AGCS SE in any of the Plaintiffs’ Forums that gives rise to the Plaintiffs’ cause of action against AGCS SE. Given Plaintiffs’ failure to meet the requirements for establishing specific personal jurisdiction over AGCS SE in any of Plaintiffs’ Forums, specific personal jurisdiction does not exist over AGCS SE. A. Plaintiffs Cannot Allege Any Forum-Related Activities by AGCS SE in Connection with the Accident Plaintiffs’ do not - and cannot - allege a single specific act by AGCS SE in any of Plaintiffs’ Forums that give rise to their claims. Plaintiffs’ entire theory of liability against AGCS SE is predicated on its alleged status as MAS’ legal representative and its alleged status as the insurer of MAS. The Constitution’s Due Process Clause prohibits the exercise of personal jurisdiction over an out-of-state defendant unless it has certain “minimum contacts” with the forum and the exercise of such jurisdiction would not offend “traditional notions of fair play and Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 15 of 27 11 substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316-320 (1945). This standard ensures that defendants have “fair warning that a particular activity may subject [it] to the jurisdiction of a foreign sovereign.” Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). Courts may only exercise specific jurisdiction over a foreign defendant when the plaintiff can show that the foreign defendant has continuous and systematic in-state activities and those in- state activities give rise to the liabilities sued upon: “[s]pecific jurisdiction requires a nexus between a foreign corporation's particular contact with the forum state and the claim that the plaintiff asserts.” Alkanani v. Aegis Def. Servs., LLC, 976 F. Supp. 2d 13, 21 (D.D.C. 2014), appeal dismissed, No. 14-7056, 2014 WL 4628907 (D.C. Cir. Aug. 11, 2014)(citations omitted); Daimler AG, 134 S. Ct. at 754 (citing Int’l Shoe, 326 U.S. at 310, 317)); see also J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 131 S. Ct. 2780, 2784 (2011) (noting that a foreign corporation subjects itself to personal jurisdiction only when it targets the forum state through its activities and that activity gives rise to the claim). The Supreme Court recently reiterated that, “[f]or a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State.” Walden v. Fiore, 134 S. Ct. 1115, 1120 (2014) (“[t]he inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant focuses on the relationship among the defendant, the forum, and the litigation”) (internal quotations omitted); see also Goodyear, 131 S. Ct. at 2851 (referring to specific jurisdiction as “case- linked” jurisdiction, and noting that it “depends on an affiliatio[n] between the forum and the underlying controversy”) (internal quotation marks omitted); Livnat v. Palestinian Auth., 82 F. Supp. 3d 19, 35 (D.D.C. 2015) (noting the Supreme Court construed specific jurisdiction “narrowly” in Walden). Additionally, a plaintiff seeking to establish specific jurisdiction over a Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 16 of 27 12 non-resident defendant must also establish that specific jurisdiction does not violate due process. See Alkanani, 976 F. Supp. 2d at 21(citations omitted). In the MDL context, the transferee court must apply the law of the transferor courts in determining the existence of personal jurisdiction over a particular defendant. See 28 U.S.C. § 1407; In re Papst Licensing GMBH & Co. KG Litig., 602 F. Supp. 2d 10, 14 (D.D.C. 2009) (“In multidistrict litigation such as this, the transferee court must apply the law of the transferor forum to determine personal jurisdiction.”). Here, however, this Court need not wade into the particularities of each of the respective long-arm statutes of New York, District of Columbia or the District of Columbia for two reasons: first, Plaintiffs do not allege the application of any long-arm statute of any of their complaints; and second, the Constitutional limits on the exercise of specific personal jurisdiction apply in all three jurisdictions. The District of Columbia and California explicitly exercise specific personal jurisdiction to the full extent allowed by the Constitution. See D.C. Code Ann. § 13-423(E) (West) (“Notwithstanding the provisions of subparagraphs (A) through (D), the court may exercise personal jurisdiction if there is any basis consistent with the United States Constitution for the exercise of personal jurisdiction”); see also Cal. Civ. Proc. Code § 410.10 (West) (“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.”). The New York long arm statute is expansive and therefore meets the Constitutional limits for the exercise of personal jurisdiction. See N.Y. C.P.L.R. 302(a) & (a)(1) (McKinney)(“As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent: transacts any business within the state or contracts anywhere to supply goods or services in the state . . .”). Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 17 of 27 13 Here, despite federal pleading standards, Plaintiffs fail to articulate even minimal facts to support the contention that there is a “relationship among [AGCS SE], the forum[s], and the litigation” sufficient to establish specific jurisdiction over AGCS SE for the Lawsuits. See Walden, 134 S.Ct. at 1121; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that “a complaint must contain sufficient factual matter … that is plausible on its face”); Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015) (same). Indeed, given the absence of any continuous and systematic contacts with any of these forums and the facts set forth above - in particular that AGCS SE is not the insurer of MAS and any role it had as one of a number of reinsurers took place in the United Kingdom (see Ex. A, Baxter Decl. at ¶¶ 20-28) - demonstrates the complete absence of the required contact and the absence of any action taken by AGCS SE, a reinsurance company, in any of Plaintiffs’ Forums, which could give rise to Plaintiffs’ claims. Plaintiffs’ allegations are lacking and, at best, are so remote and speculative as to be functionally impossible. Accordingly, specific personal jurisdiction does not exist over AGCS SE in any of Plaintiffs’ Forums. B. Plaintiffs Cannot Impute MAS’ Alleged Forum Contacts to AGCS SE Because AGCS SE lacks even minimal contacts with the Plaintiffs’ Forums, Plaintiffs appear to assert personal jurisdiction by imputing the contacts of another defendant, MAS, to AGCS SE. The Supreme Court has addressed this issue directly and has rejected contentions such as Plaintiffs make here holding that the relationship between a defendant and the forum state must “arise out of contacts that the defendant himself creates with the forum State.” Walden, 134 S. Ct. at 1122 (emphasis in original) (internal quotation marks omitted). Indeed, the Supreme Court has “consistently rejected attempts to satisfy the defendant-focused ‘minimum contacts’ inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 18 of 27 14 State.” Id. (emphasis added). In this case Plaintiffs attempt just this sort of switch by citing to MAS’ contacts with the United States and then implicitly imputing those contacts to AGCS SE. See Huang FAC at ¶¶ 3, 5, 6, 9; Smith OC at ¶¶ 3, 5, 6, 9; Zhang SAC at ¶¶ 3, 5, 6, 11; see also Kanan OC at ¶¶ 3, 5, 6, 9. This effort to blur the distinction between re-insurer, insurer, and insured falls short as the Plaintiffs fail to provide a factual basis for finding personal jurisdiction over AGCS SE in any of the forum states or in the United States independent of its lack of direct relationship with MAS. Additionally, as discussed in more detail in Section II. D. below, no direct relationship exists between AGCS SE and MAS because did not directly insure MAS. Thus, given AGCS SE’s lack of contacts with the Plaintiffs’ Forums in the United States giving rise to their claims against AGCS SE as the alleged insurer and legal representative of MAS, Plaintiffs fail to meet the Constitutional requirements for the exercise of specific personal jurisdiction over AGCS SE in any of the Plaintiffs’ Forums, requiring the immediate dismissal of these lawsuits for lack of personal jurisdiction over AGCS SE. See Burger King, 471 U.S. at 472; see e.g., Thackurdeen v. Duke Univ., 130 F. Supp. 3d 792, 802 (S.D.N.Y. 2015), aff'd sub nom. Thackurdeen v. Duke Univ., No. 15-3082-CV, 2016 WL 4578662 (2d Cir. Sept. 1, 2016) (dismissing case for lack of personal jurisdiction where the injury arose outside of New York); Mehr v. Fed'n Internationale de Football Ass'n, 115 F. Supp. 3d 1035, 1048 (N.D. Cal. 2015) (dismissing case because plaintiffs “failed to show that their claims would not have arisen ‘but for’ [defendant’s] contact with the forum”) (internal citation omitted); Terry v. Dewine, 75 F. Supp. 3d 512, 522 (D.D.C. 2014) (holding that because plaintiff failed to allege any conduct connected to the District of Columbia, the court lacked specific jurisdiction). Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 19 of 27 15 II. COURTS IN THE DISTRICT OF COLUMBIA, CALIFORNIA, AND NEW YORK LACK GENERAL PERSONAL JURISDICTION OVER AGCS SE Even though the Plaintiffs’ complaints do not specifically allege general jurisdiction over AGCS SE, general jurisdiction is nevertheless lacking in the Plaintiffs’ Forums because AGCS SE is a Societas Europaea, organized and existing under the laws of the European Union, with its principal place of business in Munich, Germany. See Ex. A, Baxter Decl. at ¶ 5. Currently. AGCS SE has only four employees in the United States, and in 2014, the year of the Accident, it had only one employee in the United States. Id. at ¶ 10. AGCS SE does not own, lease, or rent any real property, does not maintain any place of business, and does not maintain any bank accounts anywhere in the United States, including California, New York or the District of Columbia. Id. at ¶¶ 11-13. Further, AGCS SE does not hold any licenses, does not maintain a registered agent for service of process, and is not authorized to transact business anywhere in the United States, including California, New York, or the District of Columbia. Id. at ¶¶ 14-16. As compared to its gross written premium revenue across the world, AGCS SE derives 5.1% of its revenue from the United States, and derived only 3.65% of its global revenue from the United States in 2014. Id. at ¶ 9. Consequently, general personal jurisdiction does not exist of AGCS SE in any of the Plaintiffs’ Forums or in the United States. AGCS SE does not have “constant and pervasive” contacts with the United States so as to render it “essentially at home” in the forum. See Daimler AG, 134 S. Ct. at 751; Freedman v. Suntrust Banks, Inc., 139 F. Supp. 3d 271, 280 (D.D.C. 2015) (citing Daimler AG); Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 510 n. 2 (D.C.Cir.2002) (“[B]ecause general jurisdiction is not related to the events giving rise to the suit, courts impose a more stringent minimum contacts test than for specific jurisdiction”) (citation and internal quotation marks omitted). Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 20 of 27 16 A. Plaintiffs Fail to Plead a Sufficient Basis to Support General Personal Jurisdiction Although Plaintiffs’ complaints do not provide any basis to find that AGCS SE could be subject to general jurisdiction in the United States, such an attempt would nevertheless be futile given that a non-resident defendant is subject to general jurisdiction only when its contacts with the forum are “so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” Goodyear, 131 S.Ct. at 2851 (quoting Int’l Shoe, 326 U.S. at 317). Emphasizing the rigorous standard for establishing general jurisdiction, the Supreme Court clarified that, for a corporation, “the place of incorporation and principal place of business are ‘paradig[m] … bases for general jurisdiction.” Daimler AG, 134 S.Ct. at 760; see also Freedman, 139 F. Supp. 3d at 278. Although the Supreme Court recognized in Daimler AG that a corporation might be “at home” outside its place of incorporation and principal place of business, Daimler AG, 134 S.Ct. at 760, it cautioned that this would be an “exceptional case,” id. at 761 n.19, and rejected as “unacceptably grasping” the view that general jurisdiction exists any place where a corporation’s contacts “can be said to be in some sense continuous and systematic.” Id. at 761 (internal quotation marks omitted). Courts within the Second Ninth and the District of Columbia Circuits have applied Daimler AG in dismissing cases against corporations and other entities for lack of personal jurisdiction, while stressing the heightened burden on plaintiffs in demonstrating general jurisdiction. See, e.g., Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 223 (2d Cir.), cert. denied, 134 S. Ct. 2888 (2014); Toumazou v. Turkish Republic of N. Cyprus, 71 F. Supp. 3d 7 (D.D.C. 2014) (noting that Daimler had done away with “substantial business activity” test for general jurisdiction and dismissing defendant Cypriot entity for lack of personal jurisdiction); Alkanani, 976 F. Supp. 2d at 29-30 (dismissing claim for lack of personal Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 21 of 27 17 jurisdiction over British company under Daimler even though defendant held meetings in the District of Columbia, had a website accessible in the District of Columbia, filed taxes in the District of Columbia, and met clients in the District of Columbia). Indeed, this Court recently confirmed the limits of general personal jurisdiction as enunciated in Daimler AG when it held that it lacked general personal jurisdiction over the Palestinian Authority in Livnat v. Palestinian Auth., 82 F. Supp. 3d 19 (D.D.C. 2015). Livnat reiterates the holding in Daimler AG that in the usual case the sole question for purposes of general personal jurisdiction over a corporation is whether or not the corporation is headquartered in, or incorporated in, the forum jurisdiction. Livnat, 82 F. Supp. 3d at 28, citing Daimler AG, 134 S.Ct. at 763. If a corporation does business - even “substantial, continuous, and systematic” business - in the forum, but nothing more, a court cannot exercise general personal jurisdiction over the corporation in that forum. Daimler AG at 754. Further, while the Supreme Court in Daimler AG hypothesized there may be limited exceptions to the “paradigm,” jurisdictions of the place of a corporation’s incorporation and its principal place of business, the exception requires such overwhelming activity in the forum that it is as if the corporation were headquartered there and thus truly “at home” in the forum. Id. at 761 n.19. Based on the extremely limited contacts AGCS SE has with the Plaintiffs’ Forums as discussed above, Plaintiffs’ jurisdictional allegations miss the level of contact that a foreign corporation must have with a state as required by Daimler AG by at least several orders of magnitude. B. The Court Should Reject Plaintiffs’ Unsupportable Personal Jurisdiction Allegations Plaintiffs cannot establish general personal jurisdiction over AGCS SE based on the conclusory allegations that AGCS SE maintains its “principle place of business” in “in three locations in California and six other locations: Burbank, Los Angeles, San Francisco, Chicago, Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 22 of 27 18 New York, Atlanta, Englewood (Colorado), St. Louis and Alpharetta (Georgia), in the United States of America.” See Huang FAC at ¶¶ 5, 6, 9; Smith OC at ¶¶ 5, 6, 9; Zhang SAC at ¶¶ 5, 6, 11; Kanan OC at ¶¶ 5, 6, 9 (pleading differently than in Smith and Zhang by only indicating New York as AGCS SE’s principle place of business). However, as this District has recognized, the Court need not treat all of the Plaintiffs’ allegations as true when determining whether personal jurisdiction exists over the defendants. Ibrahim v. D.C., 357 F. Supp. 2d 187, 191 (D.D.C. 2004). Instead, the Court “may receive and weigh affidavits and any other relevant matter to assist in determining the jurisdictional facts.” Philip Morris, Inc., 116 F. Supp. 2d at 120 n. 4 (citing R. Miller, Federal Practice and Procedure § 1351 (1990)); Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C. 2001), aff'd as modified, 346 F.3d 192 (D.C. Cir. 2003) (“The court is not required, however, to accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations.”). AGCS SE’s contacts with Plaintiffs’ Forums, to the extent that any contacts actually exist, do not even come close to satisfying the “at home” standard required for general jurisdiction. See Daimler AG, 134 S.Ct. at 761-62. At first glance the Court can see that Plaintiffs’ allegations cannot meet the Daimler AG test for “at home” personal jurisdiction “because Plaintiffs’ allege the AGCS SE has multiple principal places of business in Burbank, Los Angeles, San Francisco, Chicago, New York, Atlanta, Englewood (Colorado), St. Louis and Alpharetta (Georgia). See Huang FAC at ¶¶ 5, 6, 9; Smith OC at ¶¶ 5, 6, 9; Zhang SAC at ¶¶ 5, 6, 11; Kanan OC at ¶¶ 5, 6, 9. An argument asserting that any corporation can have nine “principal places of business” in the United States alone flies in the face of the Supreme Court’s Daimler AG decision - not to mention the clear evidence established through the Baxter Decl. at ¶ 5 that Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 23 of 27 19 AGCS SE is a European company with its principal place of business in Germany - must be rejected by this Court. C. AGCS SE is a European Union Company Headquartered in Germany Despite Plaintiffs’ unsupported factual allegations, AGCS SE’s “paradigm jurisdictions” are in fact Munich, Germany (principle place of business) and the European Union (place of incorporation). Id. at 60; see Ex. A, Baxter Dec. at ¶ 5. Further, AGCS SE does not own, lease, or rent any real property anywhere in the United States and does not maintain any bank accounts anywhere in the United States. Id. at ¶¶ 11 - 13. With the exception of few employees, AGCS SE has no officers, directors or employees located anywhere in the United States. Id. at ¶ 10. Further, AGCS SE is not authorized, and has never sought to be authorized, to transact business anywhere in the United States; does not hold any licenses issued by the United States or any State within the United States; and does not maintain a registered agent for service of process in the United States. Id. at ¶¶ 14 - 16. Additionally, AGCS SE does not have any ownership interest or operational or managerial control in AGR US, Allianz Underwriting Insurance or AGCS Marine Insurance Company - and none of these entities are subsidiaries of AGCS SE. Id. at ¶¶ 18 - 19. Although AGCS SE conducts minimal business in the United States, id. at ¶ 9, the Court must look at the “entirety” of AGCS SE’s activities including how it operates on a “worldwide” basis. Daimler AG, 134 S.Ct. at 762 n.20. Notably, only 5.1% of AGCS SE’s global gross written premium revenue in 2015 derived from business in the United States. Id. Only 3.65% of premiums were derived from the United States in 2014, the year of the Accident. Id. Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 24 of 27 20 D. AGCS SE Did Not Directly Insure MAS Plaintiffs improperly conflate the concepts of insurance versus reinsurance in an effort to assert its claims against AGCS SE in the Plaintiffs’ Forums. Insurance companies, such as Etiqa, “insure risks” by issuing policies to insureds. See Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 890 (7th Cir. 2011). Reinsurers, such as AGCS SE in this case, do not insure those risk; rather reinsurers enter into wholly separate contracts with insurers under which they “indemnif[y] the ceding [re]insurer for any liability that is covered” by that reinsurance contract. Travelers Indem. Co. v. Scor Reinsurance Co., 62 F.3d 74, 76 (2d Cir. 1995) (emphasis added). Unlike the insurance company, “[t]he reinsurer has no privity with, and is generally not liable to, the original purchaser of the underlying policy.” Id. Here, AGCS SE did not issue an insurance policy to MAS providing insurance coverage for the MH370 loss, but rather the Malaysian insurance company Etiqa issued the relevant policy to MAS, in Malaysia. See Ex. A, Baxter Dec. at ¶ 21. AGCS SE’s connection with Etiqa and MAS stems solely from its agreement to participate in the Retrocession of Delima’s reinsurance of the original policy. Id. at ¶ 24. Notwithstanding Plaintiffs’ allegations, and to the extent it is even relevant to this analysis, the Retrocession policy was neither issued, negotiated nor purchased in the United States, nor is it the subject of a claim by Delima in the United States. Id. at ¶¶ 25 - 28. Given these circumstances, AGCS SE’s contacts with Plaintiffs’ Forums are virtually non-existent and therefore cannot render it “essentially at home” in any of the Plaintiffs’ Forums for purposes of general jurisdiction. Therefore, under the facts of this case, Supreme Court precedent and the Constitution require that the Lawsuits against AGCS SE be dismissed for lack of general personal jurisdiction. Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 25 of 27 21 CONCLUSION This Court may not properly exercise any form of personal jurisdiction over AGCS SE because Plaintiffs claims do not arise out of AGCS SE’s activities in any of the Plaintiffs’ Forums (or its activities anywhere in the world) and because AGCS SE’s handful of contacts with Plaintiffs’ Forums does not even come close to the type of contact required for the assertion of general personal jurisdiction over a non-resident foreign corporation. Plaintiffs offer no factual or legal basis for the proper assertion of personal jurisdiction over AGCS SE in any of the Plaintiffs’ Forums and/or in the United States, and therefore AGCS SE is entitled to immediate dismissal from each of the Lawsuits for lack of personal jurisdiction. October 1, 2016 Respectfully submitted, KAPLAN, MASSAMILLO & ANDREWS LLC By: /s/ Richard A. Walker Telly Andrews, IL Bar No. 6242431 tandrews@kmalawfirm.com Richard A. Walker, IL Bar No. 6196947 rwalker@kmalawfirm.com 200 W. Madison Street, 16th Floor Chicago, Illinois 60606 Telephone: (312) 345-3000 Facsimile: (312) 345-3119 Attorneys for Defendant Allianz Global Corporate & Specialty SE Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 26 of 27 22 CERTIFICATE OF SERVICE The undersigned certifies that, on October 1, 2016, pursuant to Fed. R. Civ. P. 5 and LCvR 5.3, a true and correct copy of the foregoing Defendant Allianz Global Corporate & Specialty SE’s Memorandum in Support of its Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction, along with supporting exhibits, were filed with the Clerk of Court using the CM/ECF System, which will send notification of such filing to the attorneys of record at the email addresses on file with the Court. /s/ Richard A. Walker Richard A. Walker Case 1:16-mc-01184-KBJ Document 35-1 Filed 10/01/16 Page 27 of 27 Exhibit A Declaration of Brendan Baxter Case 1:16-mc-01184-KBJ Document 35-2 Filed 10/01/16 Page 1 of 6 Case 1:16-mc-01184-KBJ Document 35-2 Filed 10/01/16 Page 2 of 6 Case 1:16-mc-01184-KBJ Document 35-2 Filed 10/01/16 Page 3 of 6 Case 1:16-mc-01184-KBJ Document 35-2 Filed 10/01/16 Page 4 of 6 Case 1:16-mc-01184-KBJ Document 35-2 Filed 10/01/16 Page 5 of 6 Case 1:16-mc-01184-KBJ Document 35-2 Filed 10/01/16 Page 6 of 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN RE: AIR CRASH OVER THE SOUTHERN INDIAN OCEAN ON MARCH 8, 2014 MDL Docket No: 2712 Misc. No. 16-1184 (KBJ) This Document Relates To: 1:16-cv-00439-KBJ Smith v. Malaysia Airlines Berhad; 1:16-cv-01048-KBJ Zhang, et al. v. Malaysia Airlines Berhad; 1:16-cv-01062-KBJ Kanan, et al. v. Malaysia Airlines System Berhad; 1:16-cv-01063-KBJ Huang, et al. v. Malaysia Airlines Berhad. [PROPOSED] ORDER GRANTING DEFENDANT ALLIANZ GLOBAL CORPORATE & SPECIALTY SE’S RULE 12(b)(2) MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Upon consideration of Defendant ALLIANZ GLOBAL CORPORATE & SPECIALTY SE’s (“AGCS SE”) Rule 12(b)(2) Motion to Dismiss For Lack of Personal Jurisdiction, Memorandum of Law in support thereof, declaration, all responses and replies, and any argument relating thereto, it is hereby ORDERED that AGCS SE’s Motion to Dismiss for Lack of Personal Jurisdiction is GRANTED, and Defendant AGCS SE is hereby DISMISSED from the above- captioned cases. Dated this ___ day of _______________, 2017. ______________________________ KETANJI BROWN JACKSON United States District Judge Case 1:16-mc-01184-KBJ Document 35-3 Filed 10/01/16 Page 1 of 3 CERTIFICATE OF PERSONS ENTITLED TO BE NOTIFIED OF ENTRY Pursuant to Local Civil Rule 7(k), the following is a list of the names and address of all attorneys entitled to be notified of the entry of this Proposed Order: Counsel for Plaintiffs: Mary Schiavo MOTLEY RICE LLC 28 Bridgeside Blvd. Telephone: (843) 216-9000 Facsimile: (843) 216-9450 mschiavo@motleyrice.com Attorneys for Plaintiffs in: 1:16-cv-00439-KBJ Smith v. Malaysia Airlines Berhad; 1:16-cv-01048-KBJ Zhang, et al. v. Malaysia Airlines Berhad; 1:16-cv-01063-KBJ Huang, et al. v. Malaysia Airlines Berhad. Eric J. Rhine SPAGNOLETTI & CO. 401 Louisiana Street, 8th Floor Houston, TX 77002 Telephone: (713) 653-5600 Facsimile: (713) 653-5656 erhine@spaglaw.com Attorneys for Plaintiff in: 1:16-cv-01062-KBJ Kanan, et al. v. Malaysia Airlines System Berhad Counsel for Defendant: Telly Andrews Richard A. Walker KAPLAN, MASSAMILLO & ANDREWS LLC 200 W. Madison Street, 16th Floor Chicago, Illinois 60606 Telephone: (312) 345-3000 Facsimile: (312) 345-3119 Case 1:16-mc-01184-KBJ Document 35-3 Filed 10/01/16 Page 2 of 3 tandrews@kmalawfirm.com rwalker@kmalawfirm.com Attorneys for Defendant Allianz Global Corporate & Specialty SE John D. Dillow Eric B. Wolff Mack H. Schultz PERKINS COIE LLP 1201 3rd Avenue, Suite 4900 Seattle, WA 98101 Telephone: (206) 359-8000 Facsimile: (206) 359-9000 jdillow@perkinscoie.com ewolff@perkinscoie.com mshultz@perkinscoie.com Attorneys for Defendant The Boeing Company Case 1:16-mc-01184-KBJ Document 35-3 Filed 10/01/16 Page 3 of 3