From Do v. Deutsche Lufthansa AGdecided Friday by Judge Susan Illston (N.D. Cal.):
John Doe and Robert Roe are a gay couple who have been in a “committed, but low-key” relationship for 33 years and who married in California in 2013. Doe is a United States citizen and California resident living in Riyadh, Saudi Arabia. He stays in Arabia for most of the year, where he works for a company as a legal consultant. Roe is a citizen of Saudi Arabia who, until May 2021, was living full-time in Riyadh and working in real estate [real estate? -EV] investor. Since 1989, Doe and Roe had lived together in Saudi Arabia, but were forced to keep their relationship and sexual orientation hidden because homosexuality was treated as a capital crime in Saudi Arabia. “By living very carefully, they managed to keep their 33-year relationship a secret from the government, strangers, employers, friends and family.”
In 2021, Doe and Roe were flying on Lufthansa from Riyadh to San Francisco. For complicated reasons related to US COVID-related travel rules, Doe and Roe ended up having to disclose to a senior Lufthansa employee at Riydah Airport that they were married under US law, and the employee allegedly stated this publicly; they also claim that information about the marriage was passed on to Saudi authorities. Consequentially,
Roe has not returned to Saudi Arabia since the May 25, 2021 flight for fear of harsh sanctions against Saudi citizens for being gay, “with the most lenient punishment being the revocation of his passport and the inability to leave Saudi Arabia, and an escalation to potential harassment of his family, incarceration, or risk of execution because of his sexual orientation and his relationship to Roe.” Doe asked high-ranking U.S. consulate officials whether it would be safe for Roe to return to Saudi Arabia, and they “unanimously agreed” that Roe’s safety could not be guaranteed if he were to return. Roe was forced to quickly and at great expense obtain a prospect that would allow him to remain legally in the United States instead of returning home to Saudi Arabia. In January 2023, Roe received a provisional green card for permanent residency in the United States and hopes to become a U.S. citizen so he can remain in the United States indefinitely.
Roe and Doe live with the uncertainty of whether Roe will be allowed to remain in the United States or whether he will be required to leave and live elsewhere. Since he left Saudi Arabia, Roe has not seen his family, all of whom live in Saudi Arabia. Doe, as a US citizen, has been and will be able to return to work in Saudi Arabia with less risk of serious retaliation from the government. However, “Doe still fears that his sexual orientation and marital status will cost him his job, result in public shame and potential permanent deportation from Saudi Arabia.” …
The court concluded, however, that it had no personal jurisdiction over Lufthansa; Although Lufthansa operates in California, the court concluded that “Plaintiffs have failed to demonstrate that their claims arise from or relate to Defendants’ activities in California:
With respect to Lufthansa AG, virtually all of the conduct giving rise to or relating to the plaintiffs’ claims occurred in Saudi Arabia. Prior to the events in question, the plaintiffs lived together in Saudi Arabia, they had booked their flights from Saudi Arabia, the plaintiffs had experienced all difficulties with the check-in process at Riyadh airport and the disclosure of marital status and sexual activity of the plaintiffs. the orientation took place at Riyadh airport. The plaintiffs have a connection to California as Doe is a California citizen and Roe was forced to permanently relocate to California as a result of Lufthansa’s actions. However, the Supreme Court has repeatedly held that the fact that a forum resident suffers harm in a forum state, in itself, is not sufficient: there must be conduct by the defendant in the forum state that is related to the Done. plaintiff’s claims to satisfy the minimum contact analysis….
Likewise, the fact that plaintiffs flew from Riyadh to San Francisco is not sufficient to create the kind of relationship between plaintiffs’ claims and California sufficient to establish personal jurisdiction…. [P]the plaintiffs do not allege that Lufthansa AG did anything in California except that it failed to mitigate the harm caused by Jamshed’s disclosure of their private information to Saudi Arabia. The Court is also not convinced that the fact that San Francisco was the destination of the appellants’ flight is sufficient to link the conduct in Saudi Arabia to California in light of the Supreme Court’s warning in Ford Motor Companythat “the expression ‘relate to’ has real limitations.”
And the Court concluded that, in any case, “the exercise of jurisdiction would be unreasonable” in this case:
The Ninth Circuit warned that “[o]one of the objectives of minimum contact analysis [under the Due Process Clause] is to “ensure that the States, through their courts, do not go beyond the limits imposed upon them by their status as co-equal sovereigns in a federal system.” The Saudi Arabian government learned of their marital status through covert monitoring of Lufthansa emails and/or through the use of an information system. Furthermore, assuming that the Claimants’ claims were not preempted, the Claimants’ breach of contract would require this Court to interpret European claims and German data privacy laws, the EU’s General Data Protection Regulation (GDPR ) and the German Federal Data Protection Act (BDSG). Furthermore, the Court would be required to consider, based on a choice of law analysis, whether the plaintiffs could proceed under California law, and if it could, the Court would be required to apply California law regarding disclosure public about private facts and what constitutes “outrageous” behavior for conduct that occurred in Saudi Arabia, a society with very different social and cultural norms….
[D]iscovery would [also] would be extremely complicated, as the plaintiffs would seek to demonstrate a causal link between Lufthansa AG’s disclosure of their marital status and sexual orientation and the Saudi Arabian government’s change of Doe’s status from “single” to “married”. Furthermore, discoveries regarding the privacy and data policies of Lufthansa AG would presumably take place in Germany.
The Court is sympathetic to the plaintiffs’ contention that California is the only practical venue to assert their claims, and the complaint’s allegations, taken as true, are quite problematic. However, in light of all of the foregoing, the Court concludes that this Court has no personal jurisdiction over the defendants and that the exercise of jurisdiction would be unreasonable….
Note that, in principle, personal jurisdiction and choice of law are two separate issues, so even if the court had concluded that it had jurisdiction over Lufthansa regarding this conduct, it could have concluded that Saudi law should apply to the conducted in Saudi Arabia.