Aviation Defendants Contend with Challenges to Federal Jurisdiction

by Holland & Knight LLP


  • 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).


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Holland & Knight LLP | Attorney Advertising

Written by:

Holland & Knight LLP

Holland & Knight LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.