Firsov v. Aerovias Del Continente Americano S.A. Avianca

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SERGEY FIRSOV, et al., Case No. 25-cv-05481-NW 8 Plaintiffs, ORDER GRANTING MOTION TO 9 v. DISMISS AND DENYING OTHER PENDING MOTIONS 10 AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA, Re: ECF Nos. 29, 34, 45, 47, 59 11 Defendant. 12 13 Self-represented plaintiffs Sergey Firsov and Kateryna Pomogaibo (“Plaintiffs”) filed suit 14 against Defendant Aerovias Del Continente Americano S.A. Avianca (“Avianca”) alleging that the 15 airline violated their rights when, after purchasing business-class tickets on an international flight, 16 Avianca allegedly downgraded them to economy class and denied them boarding at the airport 17 after their tickets were cancelled and accidentally refunded. 18 Currently pending and fully briefed are four motions: (1) Defendant Avianca’s motion to 19 dismiss, (2) Plaintiffs’ motion to strike Avianca’s motion to dismiss, (3) Plaintiffs’ motion to 20 reconsider a prior order of this Court, and (4) Plaintiffs’ motion to compel. ECF Nos. 29, 34, 45, 21 47.1 Having considered the parties’ briefs and the relevant legal authority, the Court concludes 22 oral argument is not required, see N.D. Cal. Civ. L.R. 7-1(b), VACATES the February 25, 2026 23 hearing, GRANTS Avianca’s motion to dismiss, and DISMISSES the complaint without 24 prejudice. Plaintiffs’ three motions are DENIED for the reasons set forth below. Additionally, 25 because the February 25, 2026 hearing is vacated, the parties’ joint request for a remote hearing is 26 DENIED as moot. See ECF No. 59. 27 1 I. BACKGROUND 2 A. Factual Background2 3 On June 30, 2025, Plaintiffs filed a complaint against Avianca seeking relief under the 4 Montreal Convention as well as various California state laws. ECF No. 1. Plaintiffs’ travails 5 began on February 12, 2022, when they purchased two business class seats for a flight from Rio de 6 Janeiro, Brazil to Los Angeles, California departing on December 31, 2022. Plaintiffs paid for the 7 flight in miles (130,000 miles or $4,290) plus $104.98 in taxes. Plaintiffs also purchased a flight 8 from Los Angeles to San Francisco departing on January 1, 2023. 9 In April 2022, Avianca allegedly changed the aircraft (presumably on the flight from 10 Brazil, although the complaint is unclear) such that no lie-flat business class seats existed. 11 Plaintiffs were downgraded to economy class and called the airline in December 2022 to request a 12 refund of 70,000 miles. Allegedly by mistake, Avianca cancelled Plaintiffs’ tickets entirely and 13 issued a refund. When Plaintiffs arrived for their flight on December 31, 2022, they were unable 14 to board Avianca’s flight from Brazil and needed to purchase new tickets to travel to Los Angeles. 15 B. Procedural History 16 With their complaint, Plaintiffs submitted applications to proceed in forma pauperis and a 17 proposed summons. ECF Nos. 2, 3. Because Plaintiffs applied to proceed in forma pauperis, the 18 Clerk did not issue a summons at that time. See Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d), and 19 Puett v. Blandford, 912 F.2d 270, 273 (9th Cir. 1990) (stating that “a party proceeding in forma 20 pauperis is entitled to have the summons and complaint served by the U.S. Marshal”). On August 21 15, 2025, the Court denied Plaintiffs’ applications and ordered them to pay the filing fee. ECF 22 No. 7. Plaintiffs timely paid the filing fee, and the Clerk issued a summons. ECF Nos. 8, 9. 23 As detailed in several of the Court’s previous orders regarding service, Plaintiffs filed an 24 “affidavit of due diligence” regarding their efforts to serve the complaint and summons that named 25 the wrong defendant. ECF No. 11. After ordering Plaintiffs to submit a status report regarding 26 service, Plaintiffs instead filed a motion to recover the cost of service that the Court denied. ECF 27 1 No. 32. In denying Plaintiffs’ motion, the Court found that Plaintiffs could not be compensated 2 for the costs of service because Plaintiffs failed to show that they formally served Avianca after 3 trying to negotiate a service waiver. Id. at 2. 4 On October 24, 2025, Avianca filed a motion to dismiss Plaintiffs’ complaint on several 5 grounds. ECF No. 29. Plaintiffs opposed the motion and Avianca submitted a reply. ECF Nos. 6 37, 49. 7 II. LEGAL STANDARD 8 A federal court lacks personal jurisdiction over a defendant if service of process is 9 insufficient. See Omni Capital Int’l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). Under 10 the Federal Rules, a defendant may bring a motion to dismiss for insufficient service of process. 11 Fed. R. Civ. P. 12(b)(5). “Once service is challenged, plaintiffs bear the burden of establishing 12 that service was valid under Rule 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). If 13 the plaintiff is unable to satisfy this burden, a court “has discretion to dismiss an action or to quash 14 service.” S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006). 15 III. DISCUSSION 16 A. Insufficient Service of Process 17 A corporation must be served in a judicial district of the United States “in the manner 18 prescribed by Rule 4(e)(1) for serving an individual” or “by delivering a copy of the summons and 19 of the complaint to an officer, a managing or general agent, or any other agent authorized by 20 appointment or by law to receive service of process.” Fed. R. Civ. P. 4(h)(1). In turn, Rule 21 4(e)(1) allows service of an individual by “following state law for serving a summons in an action 22 brought in courts of general jurisdiction in the state where the district court is located.” Fed. R. 23 Civ. P. 4(e)(1). California law authorizes service of process upon a corporation by delivering the 24 summons and complaint “[t]o the president, chief executive officer, or other head of the 25 corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a 26 controller or chief financial officer, a general manager, or a person authorized by the corporation 27 to receive service of process.” Cal. Civ. Proc. Code § 416.10(b). 1 officers, managing agents, or agents appointed by law for the receipt of process,” but instead “can 2 be made upon a representative so integrated with the organization that he will know what to do 3 with the papers.” Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 4 688 (9th Cir. 1988) (internal quotation marks and citations omitted). Service is sufficient if made 5 “upon an individual who stands in such a position as to render it fair, reasonable and just to imply 6 the authority on his part to receive service.” Id. (citation omitted). A court must conduct a 7 “factual analysis of the employee’s authority within the company.” Elohim EPF USA, Inc. v. 8 Pondanet, Inc., No. 819CV00349SVWKES, 2019 WL 6448962, at *4 (C.D. Cal. July 24, 2019). 9 Here, Avianca argues that service, although attempted by Plaintiffs several times, was 10 inadequate because Plaintiffs failed to follow the Federal Rules or California’s parallel service 11 requirements. ECF No. 29 at 11. In particular, Plaintiffs filed three proofs of service in this case 12 and none demonstrate that Plaintiffs gave notice to an officer, general manager, or authorized 13 agent for service of process. See also ECF No. 32 at 2 (stating the same). 14 To start, Plaintiffs’ first proof of service, filed as the second page of a document titled 15 “Affidavit of Due Diligence” on September 12, 2025, states that Plaintiff Firsov served 16 “supervisor Zuwarya” of Qatar Airways Group, a company that is not a party to this action. ECF 17 No. 10 at 2. The affidavit itself states that Oleksandra Pomohaibo attempted to serve an employee 18 at the Avianca check-in counter at San Francisco International Airport. Id. at 1. 19 Plaintiffs’ remaining two proofs of service, which appear to be identical documents, state 20 that Myron Pomohaibo served a summons on “supervisor Daffny in Avianca uniform” again at 21 San Francisco International Airport. ECF No. 21 at 2; ECF No. 28 at 2. 22 An individual or supervisor at an Avianca check-in counter wearing a uniform is not an 23 officially designated officer or managing agent of the corporation. Further, a check-in counter 24 employee is not a president, chief executive officer, or other head of the corporation, a vice 25 president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief 26 financial officer, or a general manager. Plaintiffs have provided no proof that “supervisor Daffny 27 in Avianca uniform” was authorized by appointment or law to receive service. Therefore, 1 P. 4(h); Cal. Civ. Proc. Code § 416.10(b). 2 Nor is the check-in counter employee here “a representative so integrated with the 3 organization” that service was proper. See Direct Mail Specialists, Inc., 840 F.2d at 688. This 4 case is similar to Fuentes v. Nat'l Tr. Co. Deutsche Bank, No. 22-CV-04953-BLF, 2023 WL 5 2278701 (N.D. Cal. Feb. 27, 2023), where service to a receptionist was improper. Like in 6 Fuentes, neither Firsov nor Oleksandra or Myron Pomohaibo appear to have asked whether any 7 employees at the airport could accept service or whether the check-in counter employee was 8 instructed about how to receive service. Id. at *3. Instead, Plaintiffs argue that “[a]irline clothes 9 manager Daffny” had “apparent authority” to accept service. ECF No. 37 at 5. This conclusory 10 statement is contradicted by this Court’s own decisions in this case and others. See ECF No. 32 at 11 2-3; see also Firsov v. Alaska Airlines, Inc., No. 25-CV-05487-NW, 2025 WL 4324346, *3 (N.D. 12 Cal. Nov. 5, 2025); Firsov v. United Airlines, Inc., No. 5:25-CV-03784-BLF, 2025 WL 3179230, 13 *1 (N.D. Cal. Oct. 21, 2025). Further, there is no evidence that service on the check-in counter 14 employee resulted in actual notice to Avianca. Nor have Plaintiffs provided sufficient evidence to 15 determine that the check-in counter employee was “so integrated” with Avianca such that service 16 upon him was proper. See Fuentes, 2023 WL 2278701, at *3 (citing NGV Gaming, Ltd. v. 17 Upstream Point Molate, LLC, No. C-04-3955 SC (JCS), 2009 WL 4258550, at *2–3 (N.D. Cal. 18 Nov. 24, 2009)). The Court finds service was insufficient. 19 Having concluded service was insufficient, the Court must decide whether to dismiss the 20 action or quash service and grant Plaintiffs an opportunity to serve Avianca. See Stevens v. Sec. 21 Pac. Nat. Bank, 538 F.2d 1387, 1389 (9th Cir. 1976). 22 Rule 4(m) of the Federal Rules of Civil Procedure provides, in relevant part: 23 If a defendant is not served within 90 days after the complaint is filed, 24 the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order 25 that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service 26 for an appropriate period. 27 Fed. R. Civ. P. 4(m). 1 30, 2025 complaint. In that time, Plaintiffs had ample opportunity to serve Avianca. Indeed, the 2 Court has issued two orders relating to Plaintiffs’ requirements to effectuate service of process. In 3 the first, the Court requested a status report as to the Plaintiffs’ efforts to complete service on 4 Avianca. ECF No. 11 at 2. Although the order noted that if Plaintiffs “fail to respond to this order 5 or to otherwise timely obtain an extension of the service deadline for good cause shown, the Court 6 will have this matter reassigned to a district judge with the recommendation that the case be 7 dismissed,” Plaintiffs did not respond or file the required status report. Instead, Plaintiffs filed a 8 motion to recover the costs of service that the Court denied. Id. In denying Plaintiffs’ motion, the 9 Court noted that Plaintiffs “have not shown that they subsequently accomplished formal service on 10 Avianca” by complying with the requirements for service on a corporation. Id. Accordingly, the 11 Court finds dismissal without prejudice an appropriate remedy at this stage. 12 Because the Court finds it lacks personal jurisdiction over Avianca due to insufficient 13 service of process and dismisses the complaint accordingly, the Court need not consider Avianca’s 14 other grounds for dismissal. See Omni Capital Int’l, 484 U.S. at 104. That said, Plaintiffs are 15 cautioned that their claims may be time-barred, given that the events of this case arose in late 16 2022. 17 Finally, at the end of its motion, Avianca requests in a single paragraph “that the Court 18 exercise its authority under the All Writs Act to enjoin Plaintiffs from filing further airline-related 19 actions against Avianca in this District without prior leave of court.” ECF No. 29 at 20. Avianca 20 requests Rule 11 sanctions in the same paragraph. 21 “The All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the inherent power 22 to enter pre-filing orders against vexatious litigants.” Molski v. Evergreen Dynasty Corp., 500 23 F.3d 1047, 1057 (9th Cir. 2007). “Restricting access to the courts is, however, a serious matter.” 24 Ringgold-Lockhart v. Cty. of Los Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014). “[T]he right of 25 access to the courts is a fundamental right protected by the Constitution,” and “[p]rofligate use of 26 pre-filing orders could infringe this important right.” Id. at 1061-62 (cleaned up). Thus, “pre- 27 filing orders should rarely be filed,” and only when certain requirements are met. De Long v. 1 imposing pre-filing restrictions: the court must “(1) give litigants notice and ‘an opportunity to 2 oppose the order before it [is] entered’; (2) compile an adequate record for appellate review, 3 including ‘a listing of all the cases and motions that led the district court to conclude that a 4 vexatious litigant order was needed’; (3) make substantive findings of frivolousness or 5 harassment; and (4) tailor the order narrowly so as ‘to closely fit the specific vice encountered.’” 6 Ringgold-Lockhart, 761 F.3d at 1062 (quoting De Long, 912 F.2d at 1147-48). 7 Other than noting Plaintiffs’ many cases in this District and other courts, Avianca provides 8 no support for its request to declare Plaintiffs vexatious litigants. Avianca does not analyze any of 9 the factors, nor is there evidence that they are met at this moment. Similarly, Avianca fails to 10 describe why it is entitled to sanctions. Accordingly, the Court will not declare Plaintiffs 11 vexatious litigants and will not award sanctions here. 12 B. Plaintiffs’ Pending Motions 13 1. Motion to Strike 14 Plaintiffs moved to strike Avianca’s motion to dismiss for failing to serve Plaintiffs. ECF 15 No. 34. Avianca opposed this motion and Plaintiffs filed a reply. See ECF Nos. 48, 52. The 16 Court DENIES this motion as moot. Plaintiffs were in fact served with Avianca’s motion to 17 dismiss as shown by the submitted Certificate of Service indicating that Avianca sent the motion 18 materials via FedEx to Plaintiffs’ addresses of record. See ECF No. 30 at 2. 19 2. Motion for Reconsideration 20 Plaintiffs filed a motion for reconsideration of the order denying his motion to recover the 21 cost of formal service, without seeking leave to do so, as required by Civil Local Rule 7-9(a). 22 ECF No. 45. Putting aside that failure, Plaintiffs have shown no valid basis for reconsideration. 23 See Civil L.R. 7-9(b) (stating what a moving party must show in a motion for reconsideration). 24 Thus, the motion for reconsideration is DENIED. 25 3. Motion to Compel 26 Plaintiffs also move to compel Avianca to serve Plaintiffs the form indicating Avianca’s 27 consent or declination to magistrate judge jurisdiction. ECF No. 47. The Court DENIES this ] Service indicating that Avianca sent the document via FedEx to Plaintiffs’ addresses of record. 2 || See ECF No. 40 at 2. 3 || IV. CONCLUSION 4 For the forgoing reasons, Avianca’s motion to dismiss is GRANTED and the complaint is 5 || DISMISSED without prejudice. Plaintiffs’ motions to strike, for reconsideration, and to compel 6 || are DENIED. Additionally, the parties’ administrative motion requesting a remote hearing is 7 || DENIED as moot. 8 IT IS SO ORDERED. 9 || Dated: February 20, 2026 10 hid Noél Wise United States District Judge a 12 13 14 15 16 17 Z 18 19 20 21 22 23 24 25 26 27 28