30 F.3d 592 (5th Cir. 1994), 93-7479, Linton v. Airbus Industrie

Docket Nº:93-7479.
Citation:30 F.3d 592
Party Name:Laura Howell LINTON, Individually and as the Personal Representative of the Estates of Andrew Jay Howell and Sarah Stoll Howell, Deceased, and on Behalf of Rena Howell, et al., Plaintiffs-Appellees, v. AIRBUS INDUSTRIE, et al., Defendants, Airbus Industrie and Aeroformation, Defendants-Appellants. Mr. and Mrs. Stan MOSS, Individually and as Tempora
Case Date:August 16, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 592

30 F.3d 592 (5th Cir. 1994)

Laura Howell LINTON, Individually and as the Personal

Representative of the Estates of Andrew Jay Howell

and Sarah Stoll Howell, Deceased, and on

Behalf of Rena Howell, et al.,



AIRBUS INDUSTRIE, et al., Defendants,

Airbus Industrie and Aeroformation, Defendants-Appellants.

Mr. and Mrs. Stan MOSS, Individually and as Temporary

Administrators of the Estate of Alison Leslie

Moss, Plaintiffs-Appellees,


AIRBUS INDUSTRIE, et al., Defendants,

Airbus Industrie and Aeroformation, Defendants-Appellants.

No. 93-7479.

United States Court of Appeals, Fifth Circuit

August 16, 1994

Rehearing and Suggestion for Rehearing En Banc Denied Sept. 13, 1994.

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Jacques E. Soiret, Kirtland & Packard, Los Angeles, CA, Charles W. Schwartz, Thad T. Dameris, Raybourne Thompson, Jr., Vinson & Elkins, Houston, TX, for appellants.

Francis I. Spagnoletti, David A. Bickham, Spagnoletti & Assoc., Houston, TX, for Laura Howell Linton, et al.

Michael J. Maloney, Fisher, Gallagher & Lewis, David Holman, Houston, TX, for Mr. and Mrs. Stan Moss, etc.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, KING and WIENER, Circuit Judges.

WIENER, Circuit Judge.

Defendants-Appellants Airbus Industrie, G.I.E. ("Airbus") and its subsidiary, Aeroformation ("AeF"), (collectively "Airbus Defendants") were sued in state court. The Airbus Defendants removed this case to federal court, where they sought immunity from suit under the Foreign Sovereign Immunities Act ("FSIA"). 1 Jurisdiction for this removal was based on two distinct grounds: diversity jurisdiction under 28 U.S.C. Sec. 1332, and "federal question" jurisdiction under the FSIA and 28 U.S.C. Secs. 1441 & 1330.

In an earlier order, the district court had concluded that the Airbus Defendants did not qualify as instrumentalities of foreign states. The Airbus Defendants immediately appealed that order, but in an unpublished opinion ("Airbus I ") 2 we dismissed that appeal for lack of jurisdiction and remanded the case to the district court. On remand, the district court concluded that there was no diversity jurisdiction--hence no subject matter jurisdiction--and accordingly remanded the case to state court under 28 U.S.C. Sec. 1447.

Once again the Airbus Defendants are before us seeking review, claiming, inter alia, that the FSIA order is an order that may be considered separate from the order to remand under the "separable order" doctrine; hence appellate review of the FSIA order is not precluded by Sec. 1447. As explained below, however, the FSIA order is not "conclusive" and thus not a separable order under controlling jurisprudence. Moreover, as the FSIA order will have no preclusive effect on

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state courts, we can find no injustice here that would warrant recalling our mandate in Airbus I so as to consider the merits of that order.

The Airbus Defendants also claim that we may review the remand order because the remand was erroneously based on a "post-removal" event, i.e., a stipulation that effectively made one of the plaintiffs "stateless," thereby destroying diversity jurisdiction. We conclude, however, that Sec. 1447 interdicts our jurisdiction to review remands for lack of subject matter jurisdiction, even if such remands are erroneously based on post-removal events. Accordingly, this appeal is dismissed.



Two sets of plaintiffs sued, among others, the Airbus Defendants in two separate suits in a Texas state court for damages caused by a plane crash in India. The Airbus Defendants removed these cases to federal court, where they were consolidated without objection into one case "for all purposes." The Airbus Defendants asserted two independent bases for jurisdiction: 1) diversity jurisdiction under 28 U.S.C. Sec. 1332, and 2) "federal question" jurisdiction under the FSIA and 28 U.S.C. Secs. 1441(d) & 1330(a). Once in federal court, the Airbus Defendants filed a motion for dismissal, claiming that: 1) they were immune from suit under the FSIA; and 2) they were not subject to in personam jurisdiction. In addition, the Airbus Defendants requested dismissal on forum non conveniens grounds. In response, the plaintiffs filed a motion to remand.

In a published order, the district court ruled that neither Airbus nor its subsidiary, AeF, were instrumentalities of foreign states. 3 The essence of that ruling by the district court is that, even assuming that the interests of several foreign countries may be combined ("pooling"), the interest of one of the foreign countries here at issue--Germany--could not be included in this particular pool. According to the district court, Germany's interests could not be pooled with the interests of other countries because Germany did not own a majority interest in the companies through which Germany held its ownership interest in the Airbus Defendants ("tiering"). 4 Absent inclusion of Germany's interest, neither Airbus Defendant had a majority of its shares owned by a foreign state (or states) as required by 28 U.S.C. Sec. 1603(b)(2).

The Airbus Defendants immediately appealed this order of the district court. In that appeal--Airbus I--we dismissed for lack of appellate jurisdiction. 5 We concluded that, although denials of motions to dismiss for lack of FSIA immunity generally are appealable despite their interlocutory nature, the district court had failed to rule on the entirety of the motion before it, specifically, on the issues of jurisdiction in personam and forum non conveniens. In remanding, we required the district court to "rule on plaintiffs' motions to remand and defendants' motions to dismiss expeditiously." 6

Sometime after we remanded to the district court but before it ruled on the remanded issues, the Airbus Defendants entered into joint stipulations with plaintiffs regarding the residency and travel patterns of certain of those plaintiffs. Presumably the Airbus Defendants agreed to enter into these stipulations in an effort to bolster their forum non conveniens argument. Unfortunately for those defendants, though, these stipulations were to have an undesired effect.

When the district court did issue its final order on remand from Airbus I, it addressed--but did not rule upon--the issues remaining in the Airbus Defendants' motion to dismiss, ruling only on the plaintiffs' motion to remand. After noting that it would have dismissed on either in personam jurisdiction or forum non conveniens grounds, the district court observed that there was "a fly in this ointment." That fly had been

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spawned by the joint stipulations that had the effect of recognizing one of the plaintiffs to be a "stateless" person for jurisdictional purposes, thereby destroying diversity jurisdiction. As that court's earlier order had rejected the FSIA as a basis for "federal question" jurisdiction, the district court concluded that it lacked subject matter jurisdiction altogether, and remanded accordingly, stating: "It is further ORDERED that Plaintiffs' Motion to Remand is GRANTED FOR LACK OF SUBJECT MATTER JURISDICTION...." Presumably due to its lack of jurisdiction, the district court declined to issue any order or ruling on the Airbus Defendants's motion to dismiss.

Encouraged to do so by the district court, 7 the Airbus Defendants timely appealed; and the district court stayed its remand order pending resolution of this appeal.



  1. Jurisdictional Bar of Sec. 1447(d) and the FSIA

    Subsection (c) of Sec. 1447 provides in pertinent part that: "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 8 Subsection (d) of that same section provides: "An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." 9 The Supreme Court has made abundantly clear that subsection (d) operates as an absolute bar to appellate review, stating that Sec. 1447(d) speaks in terms of an "unmistakable command" so as to preclude review of remands for grounds stated in Sec. 1447(c) "by appeal, mandamus, or otherwise." 10

    Albeit under distinguishable circumstances, we addressed the relationship between the FSIA and the jurisdictional bar of Sec. 1447(d) in Mobil Corp. v. Abeille General Insurance Co. 11 Mobil had sued several insurance companies in a declaratory judgment action in state court. One of those insurance companies, the Insurance Company of Ireland ("ICI"), claimed that it was an instrumentality of a foreign state under the FSIA and removed to federal court. Presumably because it was engaged in a commercial activity in the United States, ICI made no claim to immunity 12; ICI nonetheless contended that its status as an instrumentality of a foreign state entitled it to a bench trial in a federal forum under the FSIA and 28 U.S.C. Sec. 1441(d). The district court disagreed, concluding that ICI was not an instrumentality of a foreign state, and consequently remanded to the state court--at least in part--for lack of subject matter jurisdiction. 13

    On appeal, ICI argued that the FSIA fell within an exception to Sec. 1447(d). Specifically, it claimed that the decision on FSIA immunity is typically a substantive one that would terminate the litigation before remand if immunity were granted. ICI also observed that denials of sovereign immunity are subject to interlocutory appeal. ICI thus reasoned that unique FSIA concerns justified reviewing the district court's "substantive" decision denying foreign-state status. 14

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    In Mobil we flatly rejected ICI's argument. We first stated that Congress...

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