Lawsuit Over Outing of Gay Saudis by Lufthansa in Saudi Arabia Can't Proceed in California

From Doe v. Deutsche Lufthansa AG, decided Friday by Judge Susan Illston (N.D. Cal.):

John Doe and Robert Roe are a gay couple who have been in a "committed, but discreet," relationship for 33 years, and who were married in California in 2013. Doe is a United States citizen and California resident who lives in Riyadh, Saudi Arabia most of the year, where he works for a company as legal counsel. Roe is a Saudi Arabian citizen who, until May 2021, was living full-time in Riyadh and working as a result estate [real estate? -EV] investor. Since 1989, Doe and Roe lived together in Saudi Arabia, but they were forced to keep their relationship and sexual orientation hidden because homosexuality has been treated as a capital offense in Saudi Arabia. "Living very carefully, they successfully kept their 33-year relationship a secret from the government, strangers, employers, friends, and family, alike."

In 2021, Doe and Roe were flying on Lufthansa from Riyadh to San Francisco. For complicated reasons related to U.S. 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 U.S. law, and the employee allegedly said that publicly; they also allege that the information about the marriage was conveyed to Saudi authorities. As a result,

Roe has not returned to Saudi Arabia since the May 25, 2021 flight for fear of harsh penalties faced by Saudi citizens for being gay, "with the most lenient punishment being the revocation of his passport and inability to ever leave Saudi Arabia, and escalating to potential harassment of his family, imprisonment, or the risk of being executed because of his sexual orientation and relationship with Roe." Doe has inquired of high-ranking officials at the United States consulate as to whether it might be safe for Roe to return to Saudi Arabia, and they have "unanimously concurred" that Roe's safety cannot be assured if he were to return. Roe was forced to quickly and at great expense obtain a vista that allowed him to legally remain 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 he hopes to become a United States citizen so that he may remain indefinitely in the United States.

Roe and Doe live with the uncertainty of whether Roe will be permitted to remain in the United States or if he will be required to leave and live elsewhere. Since leaving Saudi Arabia, Roe has not seen his family, who all live in Saudi Arabia. Doe, as a U.S. citizen, has been and will be able to return for work in Saudi Arabia with less risk of severe government retribution. Nevertheless, "Doe still fears that his sexual orientation and marital status will cost him his job, result in public shaming, and potential permanent deportation from Saudi Arabia." …

The court concluded, however, that it lacked personal jurisdiction over Lufthansa; though Lufthansa does business in California, the court concluded that "plaintiffs have failed to show that their claims arise out of or relate to defendants' activities in California:

With regard to Lufthansa AG, virtually all of the conduct giving rise to or related to plaintiffs' claims occurred in Saudi Arabia. Prior to the events in question, plaintiffs were living together in Saudia Arabia, they booked their flights from Saudi Arabia, plaintiffs encountered all of the difficulties with the check-in process at the Riyadh airport, and the disclosure of plaintiffs' marital status and sexual orientation took place at the Riyadh airport. The plaintiffs do have a connection to California in that Doe is a California citizen, and Roe was forced to relocate permanently to California as a result of Lufthansa's actions. However, the Supreme Court has repeatedly held that the fact that a forum resident experiences harm in a forum state, on its own, is not enough – there must be some conduct on the part of the defendant in the forum state that is connected to the plaintiff's claims to satisfy the minimum contacts analysis….

Similarly, the fact that plaintiffs were flying from Riyadh to San Francisco is not enough to create the type of relationship between plaintiffs' claims and California sufficient to establish personal jurisdiction…. [P]laintiffs do not allege that Lufthansa AG did anything in California except fail to mitigate the harm caused by Jamshed's disclosure of their private information in Saudi Arabia. The Court is also not persuaded that the fact that San Francisco was the destination of plaintiffs' flight is enough to tie the conduct that occurred in Saudi Arabia to California in light of the Supreme Court's caution in Ford Motor Company, that "the phrase 'relate to' incorporates real limits."

And the court concluded that, in any event, "the exercise of jurisdiction would be unreasonable" in this case:

The Ninth Circuit has cautioned that "[o]ne of the goals of minimum contacts analysis [under the Due Process Clause] is 'to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.'" This case contains significant "foreign policy overtones," as plaintiffs claim that the Saudi Arabian government learned of their marital status through covert monitoring of Lufthansa's emails and/or through the use of an informant system. In addition, assuming plaintiffs' claims were not preempted, plaintiffs' breach of contract claim would require this Court to interpret European and German data privacy laws, the EU General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG). In addition, the Court would be required to evaluate, under a choice-of-law analysis, whether plaintiffs could proceed under California law, and if they could, the Court would be required to apply California law regarding public disclosure of private facts and what constitutes "outrageous" behavior to conduct that occurred in Saudi Arabia, a society with very different societal and cultural norms….

[D]iscovery would [also] be extremely complicated, as plaintiffs would seek to prove a causal link between Lufthansa AG's disclosure of their marital status and sexual orientation and the Saudi Arabian government's changing of Doe's status from "single" to "married." Further, some discovery would presumably take place in Germany regarding Lufthansa AG's privacy and data policies.

The Court is sympathetic to plaintiffs' assertion that California is the only practical venue for them to pursue their claims, and the allegations of the complaint, taken as true, are quite problematic. However, in light of all of the foregoing, the Court concludes that this Court lacks personal jurisdiction over defendants and that the exercise of jurisdiction would be unreasonable….

Note that, in principle, personal jurisdiction and choice of law are two separate questions, so even if the court had concluded that it had jurisdiction over Lufthansa as to this conduct, it might have concluded that Saudi law should apply to conduct in Saudi Arabia.