Virgilio v. City of New York
| Decision Date | 29 April 2005 |
| Docket Number | Docket No. 04-1942-CV. |
| Parties | Lucy VIRGILIO, Personal Representative of Lawrence Virgilio, Plaintiff, Geraldine Halderman, Personal Representative of Lt. David Halderman, Eileen Tallon, Personal Representative of Sean Patrick Tallon, Gergard J. Prior, Personal Representative of Kevin M. Prior, Catherine Regenhard, Personal Representative of Christian Regenhard, Maureen L. Dewan-Gilligan, Personal Representative of Gerard P. Dewan, James Boyle, Personal Representative of Michael Boyle, Barbara Boyle, Personal Representative of Michael Boyle, Edward Sweeney, Personal Representative of Brian Sweeney, Gerald Jean-Baptiste, Co-Personal Representative of Gerard Jean Baptiste, Jr., Alexander Santora, Personal Representative of Christopher Santora, Maureen Santora, Personal Representative of Christopher Santora, Raffaela Crisci, Personal Representative of John A. Crisci and Patricia Deangelis, Personal Representative, Plaintiffs-Appellants, v. CITY OF NEW YORK and Motorola, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Eric M. Lieberman (Carrie Corcoran, Keith M. Donoghue, on the brief) Rabinowitz, Boudin, Standard, Krinsky & Lieberman, New York, New York (Richard Salem, Salem Law Group, Tampa, Florida, William A. Reppy, Jr., Charles L.B. Lowndes Emeritus Professor of Law, Duke University School of Law, Durham, North Carolina; William Van Alstyne, Lee Professor of Law, Marshall-Wythe School of Law, Williamsburg, Virginia, on the brief), for Plaintiffs-Appellants.
Belina Anderson (Michael A. Cardozo, Corporation Counsel, Kenneth A. Becker, on the brief) Corporation Counsel of the City of New York, New York, New York, for Defendant-Appellee the City of New York.
Michael D. Schissel, Arnold & Porter LLP, New York, New York, for Defendant-Appellee Motorola, Inc.
Before: NEWMAN, STRAUB, and WESLEY, Circuit Judges.
In a series of tragic and terrifying attacks on September 11, 2001, terrorists killed thousands in Pennsylvania, Virginia, and New York, caused extensive damage to the Pentagon, and brought about the collapse of the North and South Towers of the World Trade Center ("WTC"). As with other catastrophes, true heros responded, not the least among them the brave firefighters, police, and first-response units of the City of New York. Plaintiffs are the personal representatives of firefighters who lost their lives in responding to the WTC following the attacks. Plaintiffs' complaint focuses on the failure of radio-transmission equipment in the North and South Towers that prevented firefighters from receiving evacuation orders before the Towers' collapse. Plaintiffs commenced this action for wrongful death against New York City (the "City") on December 22, 2003, and filed an amended complaint as of right on January 20, 2004, that added Motorola, Inc. ("Motorola") as a defendant.
Plaintiffs claim that Motorola negligently and intentionally provided the City with radio-transmission communication equipment for firefighters that Motorola knew to be ineffective in high-rise structures like the Towers of the WTC, that Motorola made fraudulent material misrepresentations to secure contracts with the City, and that those acts and representations caused decedents' deaths.1 Plaintiffs also press a series of wrongful death claims against the City based upon its alleged failure to meet duties imposed on the City under New York law to provide adequate and safe radio-transmission equipment.2 Finally, in Count 8 of the Amended Complaint, plaintiffs allege that the City and Motorola engaged in concerted action in an attempt to deprive firefighters of adequate protection and to "engage in fraudulent misrepresentations and deceitful conduct."
Shortly after the disaster, Congress passed the Air Transportation Safety and System Stabilization Act (the "Air Stabilization Act" or the "Act"). Pub.L. No. 107-42, 115 Stat. 230 (2001). The statute limited liability for the air carriers involved in the tragedy to their insurance coverage, see Air Stabilization Act § 408(a); created the Victim Compensation Fund (the "Fund") to provide no-fault compensation to victims who were injured in the attacks and to personal representatives of victims killed in the attacks, see id. §§ 402(3), 405(a)(1), (b), (c); and provided an election of remedies — all claimants who filed with the Fund waived the right to sue for injuries resulting from the attacks except for collateral benefits, see id. § 405(c)(3)(B)(i). On November 19, 2001, the Act was amended by the Aviation and Transportation Security Act (the "Aviation Security Act"). Pub.L. No. 107-71, 115 Stat. 597 (2001). Significantly, the amendments extended liability limits to aircraft manufacturers, those with a proprietary interest in the WTC, and the City of New York, see id. § 201(b), while allowing Fund claimants to sue individuals responsible for the attacks notwithstanding the waiver, see id. § 201(a).
Under the Act, the final date by which claimants could submit claims to the Fund was December 22, 2003. See Air Stabilization Act §§ 405(a)(3), 407; 28 C.F.R. 104.62. The Special Master appointed to oversee the Fund, Kenneth R. Feinberg, extended the filing date to January 22, 2004, for those claimants who previously submitted incomplete claims. The Special Master promulgated an application form that notified claimants of the waiver provision and required claimants to sign an acknowledgment of waiver. The acknowledgment of waiver tracked the language of the statutory waiver provision.
A number of September 11-related cases were consolidated before Judge Hellerstein.3 On December 19, 2003, Judge Hellerstein issued an order addressing when the waiver via assertion of Fund claims would become effective. See In re September 11 Litig., 21 MC 97, 2003 WL 23145579 (S.D.N.Y. Dec.19, 2003). Judge Hellerstein held that "submission" of Fund claims — triggering the waiver provision — occurs on the earlier of when a Fund filing is substantially complete as determined by the Special Master or January 22, 2004. Id. at *2.
A day after filing their amended complaint, plaintiffs moved by Order to Show Cause on January 21, 2004, asking that the court permit them to continue their lawsuit against defendants despite having filed claims with the Fund. Alternatively, plaintiffs asked the court to stay Judge Hellerstein's earlier orders — which required that cases brought by 9/11 victims with Fund awards pending as of January 22, 2004, be dismissed — or to place their case on the suspense docket of the consolidated In re September 11 Litigation docket until a general consolidated conference previously set by Judge Hellerstein for February 6, 2004, took place.4 Because of the January 22nd deadline for completing previously filed but incomplete Fund claims, Judge Haight held a hearing on the 22nd on the motion and issued a ruling from the bench finding that the statute's waiver provision barred the suit against the City or Motorola: "`the plaintiffs' claims against both the City and Motorola are subject to the limitation on civil actions provided for in Section 405(c)(3)(B)(i) of the statute.'" Virgilio v. Motorola, Inc., 307 F.Supp.2d 504, 514 (S.D.N.Y.2004) (Haight, J.) (quoting transcript).
On January 29, 2004, Judge Haight issued a detailed decision that set forth his reasons for finding that plaintiffs' claims were barred as a result of their decision to file with the Fund. See id. at 514-20. Although the court denied the relief requested in the Order to Show Cause on a finding that the waiver provision barred plaintiffs' claims, it did not dismiss the amended complaint as defendants had yet to file answers and had little time to oppose the Order to Show Cause other than through argument of counsel before Judge Haight. Because plaintiffs' case raised 9/11 claims similar to those in In re September 11 Litigation, Judge Haight transferred the case to Judge Hellerstein's "suspense docket" of the consolidated In re September 11 Litigation docket. Id. at 521.5
On January 30, 2004, the next day, the City moved to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) or for summary judgment on several grounds, including the Act's waiver provision; the expiration of the statute of limitations for wrongful death actions against municipalities; and plaintiffs' failure to serve timely notices of claim against the City. Motorola moved to dismiss the amended complaint on the ground of waiver.
Judge Hellerstein dismissed the complaint in an unpublished decision. See Virgilio v. Motorola, Inc., No. 03 Civ. 10156(AKH), 2004 WL 433789 (S.D.N.Y. Mar.10, 2004). The district court adopted Judge Haight's decision noting that Id. at *2 (quoting Air Stabilization Act § 405(c)(3)(B)(i)).
Plaintiffs appealed, and we now affirm.
When confronted with an appeal from the dismissal of a complaint, we review the matter anew, see, e.g., Conopco, Inc. v. Roll Int'l, 231 F.3d 82, 86 (2d Cir.2000), and take as true the complaint's allegations. A complaint may be dismissed for failure to state a claim only if there are no legal grounds upon which relief may be granted. See Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir.2005); Fed.R.Civ.P. 12(b)(6). The task at hand reduces itself to examining the statute and assessing its impact on this case.
The Air Stabilization Act establishes the Fund and delegates to the Attorney General the authority to appoint a Special Master to oversee victim compensation. See Air Stabilization Act §§ 401-09. As Congre...
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