An aircraft manufacturer's ability to remove a case to federal court based on admiralty jurisdiction involved consideration of whether "injury became inevitable" while the aircraft was still over water.
Illinois District Court permits removal of claims against an aircraft manufacturer based on FSIA jurisdiction over claims against the co-defendant airline.
When defending an aviation-related personal injury lawsuit in state court, airlines, aircraft manufacturers and component part manufacturers often will analyze potential jurisdictional bases to support removal to a more favorable federal forum. They may invoke multiple grounds for removal (some more successful than others), including diversity jurisdiction, complete preemption by federal law1 or by a treaty,2 and, for mass disasters, the Multiparty Multiforum Trial Jurisdiction Act.3 Two recent decisions addressing removal based on admiralty jurisdiction,4 the Foreign Sovereign Immunities Act (FSIA),5 and federal officer jurisdiction illustrate the recurring jurisdictional challenges confronted by aviation defendants.
Cases Remanded – No Admiralty Jurisdiction
In Yang ex rel. Xie v. The Boeing Co.,6 an Illinois District Court addressed whether there was removal jurisdiction in several related personal injury cases arising from the crash of Asiana Airlines Flight 214 into a seawall at San Francisco International Airport on July 6, 2013. Defendant manufacturer The Boeing Co. (Boeing) removed the case to federal court on the basis of admiralty jurisdiction and federal officer jurisdiction. The plaintiffs successfully moved to have the cases remanded to state court. In April 2014, Boeing's motion for reconsideration was denied.7
Federal admiralty jurisdiction over a tort claim requires a showing "'that the tort either occurred on navigable water or was caused by a vessel on navigable water.'"8 Flight 214 was flying over San Francisco Bay as it approached the airport. The plane's rear landing gear and tail hit the seawall and broke off, causing the plane to skid out of control on the runway. The central issue before the court was whether the tort actually occurred prior to the crash, such that the "injury became inevitable" while the plane was still over water.
The court compared the circumstances to those in In re Air Crash at Belle Harbor, N.Y.9and Brown v. Eurocopter S.A.,10 cases that considered similar questions concerning the location of the tort. In Belle Harbor, the aircraft's vertical stabilizer detached several minutes after takeoff while over Jamaica Bay, leaving the aircraft incapable of flight and certain to crash. In Eurocopter, the critical loss of tail rotor control occurred over water, making it incapable of landing safely on the oil rig. Despite these holdings, Boeing unsuccessfully argued that Flight 214's accident was set in motion over navigable water as to satisfy the requirement that the tort occurred on water. The court held that "locality is established when the tort is complete" either at the "crash landing" or "once the crash is inevitable."
In its motion for reconsideration, Boeing argued that while the plane was still over water the aircraft's approach had already passed a point where correction was not feasible. The court disagreed, finding that the plane was on "the verge of a safe landing and missed it by about five feet"; that "[t]he aircraft was functional and responsive up until the crash"; and "even once the airplane crashed, it was not yet clear whether injuries would be sustained."
Boeing also asserted federal officer jurisdiction11 because the plaintiffs' tort claims challenged work performed by Boeing employees, who certified the aircraft's safety according to a highly regulated Federal Aviation Administration (FAA) process. In short, Boeing contended that whenever airworthiness is challenged, certification is likewise challenged.
The court disagreed, finding that Boeing's position would mean that any product liability or negligence suit against an airplane manufacturer was "necessarily" also a suit against its employees for negligent certification. Tort cases finding federal officer jurisdiction, in contrast, generally involve claims related to the certification itself brought against the individual employee responsible for certifying the plane or express claims that the defendant manufacturer negligently failed to comply with the proper certification process.
Remand Denied – FSIA and Supplemental Jurisdiction
In Saunier v. The Boeing Co.,12an Illinois District Court denied the plaintiffs' motion to sever and remand claims against Boeing from the direct and third-party claims brought against LOT Polish Airlines (LOT), the government-owned airline of Poland. The plaintiffs had sued LOT and Boeing for personal injuries sustained when LOT Flight 16 from Newark, New Jersey, to Warsaw, Poland, engaged in a wheels-up landing in Poland on Nov. 1, 2011. Approximately 40 passengers brought suit against Boeing in Illinois state court, claiming that a failure in the aircraft's hydraulic system caused the landing gear to fail. Three plaintiffs sued LOT directly. After Boeing asserted third-party contribution and indemnity actions against LOT, LOT removed the entire case to federal court under the FSIA.
The court held that LOT properly removed the entire case, including the direct claims against Boeing, under the FSIA. The court found that 28 U.S.C. §1441(d), which states that "any civil action against a foreign state may be removed and tried by the court without a jury," governs and provides jurisdiction over the entire action. In so holding the court rejected the plaintiffs' contention that 28 U.S.C. §1441(c)(2)13 mandates that the claims against Boeing be severed, finding the section irrelevant because removal was based on the FSIA.14
The court followed the Seventh Circuit's broad interpretation of §1441(d) in In re Aircrash Near Roselawn, Ind. on Oct. 31, 1994,15 which held that §1441(d) provides federal jurisdiction over not only the third-party contribution and indemnity claims by the airline against the manufacturer, but the entire action as well. The court expressly recognized that "nearly all courts to consider this issue have ... held that where minimal diversity exists between parties, a foreign state may invoke §1441(d) to remove the entire suit." The Seventh Circuit found this approach consistent with congressional intent to establish the federal courts as "the preferred forum for cases involving foreign states."16
The court rejected the plaintiffs' policy argument for remand on the basis that the court would be simultaneously interpreting state products liability law and an indemnity agreement. The court found that "keeping the cases together would be more efficient because there is significant overlap between the facts necessary to decide plaintiffs' claims against Boeing and LOT and Boeing's third party claims – specifically what caused the landing gear to fail." That LOT would be entitled to a bench trial and a jury would decide the claims against Boeing also did not warrant remand in the court's view.
Lastly, the court was not persuaded by Lie v. Boeing,17which remanded an action sua sponte after the third-party defendant foreign sovereign removed the entire case to federal court. The Lie court remanded because the third-party defendant was not sued directly by the plaintiffs and distinguished Roselawn as a case where the foreign state had also been sued directly. Saunier noted that at least one circuit court has held that district courts do not even have discretion to remand any portion of a case that has been removed under §1441(d).18 Additionally, the Ninth and Eleventh Circuits have recognized that the legislative history of the FSIA demonstrates congressional intent to give foreign states an absolute right to a federal forum and a strong preference for consolidation of claims.
1See, e.g., Bennett v. Southwest Airlines Co., 484 F.3d 907, 912 (7th Cir. 2007) (rejecting argument that federal aviation standards support removal).
2Courts are split on whether the Warsaw and Montreal Conventions completely preempt state law claims to support removal. Cf. Nnebe ex rel. Nnebe v. Northwest Airline, No. 12-CV-7, 2012 WL 1079850 at *1, n.2 (D.N.J. Mar. 30, 2012) (removal proper); Mateo v. JetBlue Airways Corp., 874 F. Supp. 383 (E.D.N.Y. 2012) (same) with Jensen v. Virgin Atlantic, No. 12-CV-06227, 2013 WL 1207962, at *4 (N.D. Cal. Mar. 25, 2013) (treaty operates as an affirmative defense but does not preempt state law claims for removal purposes); Narkiewiecz-Laine v. Scandinavian Airlines Sys., 587 F. Supp. 2d 888, 890 (N.D. Ill. 2008) (same).
3See 28 U.S.C. §§ 1369, 1441(e)(1)(A), and 1446.
4See, e.g., In re Air Crash at Belle Harbor, N.Y., MDL 1448, 2006 WL 1288298, at *12 (S.D.N.Y. May 9, 2006).
528 U.S.C. §1602 et seq.
6No. 13 C 6846, 2013 WL 6633075 (N.D. Ill. Dec. 16, 2013) (granting plaintiffs' motion for remand).
7Lu ex rel. Shen v. The Boeing Co., No. 13 C 7418, 2014 WL 1409441 (N.D. Ill. Apr. 11, 2014) (denying motion to reconsider order granting plaintiffs' motion for remand in Yang).
8Id. at *2 (quoting Grubhart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995)). A nexus with traditional maritime activity is also required and generally satisfied in aviation cases when there is a flight involving transoceanic transportation. Belle Harbor, 2006 WL 1288298, at *12.
9MDL 1448, 2006 WL 1288298 (S.D.N.Y. May 9, 2006).
1038 F. Supp. 2d 515 (S.D. Tex. 1999).
11Federal officer jurisdiction requires a showing that the defendant was a "(1) 'person'; (2) 'acting under' the United States, its agencies, or its officers; (3) that has been sued 'for or relating to any act under color of such office'; and (4) has a colorable federal defense." See Yang, 2013 WL 6633075, at *4.
12No. 13C 8507, 2014 WL 1646953 (N.D. Ill. Apr. 23, 2014).
13This section states that a claim governed by §1331 jurisdiction and another claim not within a federal court's jurisdiction shall be severed when the latter claims are not within the court's original or supplemental jurisdiction.
14Notwithstanding FSIA jurisdiction, the court ruled it could exercise supplemental jurisdiction over the claims against Boeing because it had original jurisdiction over the claims against LOT.
1596 F.3d 932, 936 (7th Cir. 1996).
16 The Saunier court also cited other cases arising from the same accident and pending in the same district in which the courts likewise denied motions to sever and remand based on LOT's FSIA removal of the entire case..See Marshall v. Boeing Co., 940 F. Supp. 2d 819, 822 (N.D. Ill. 2013); Thornton v Hamilton Sundstrand Corp., __ F. Supp. 2d __, 2014 WL 1715437 (N.D. Ill. Apr. 29, 2014).
17311 F. Supp. 2d 725 (N.D. Ill. 2004).
18See In re Surinam Airways Holding Co., 974 F.2d 1255, 1260 (11th Cir. 1992).