De Aguilar v. Boeing Co., 93-5333

Citation47 F.3d 1404
Decision Date07 March 1995
Docket NumberNo. 93-5333,93-5333
PartiesAlma Torreblanca DE AGUILAR, et al., Plaintiffs-Appellants, v. BOEING COMPANY, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Benton Musslewhite, Mary Blair Martin, Houston, TX, Mitchell A. Toups, Weller & Green, Beaumont, TX, Dennis C. Reich Reich & Binstock, Houston, TX, for appellants.

Howard Louis Close, Orgain Bell & Tucker, Beaumont, TX, Richard C. Coyle, Seattle, WA, for Boeing Co.

Gerald Leigh Bracht, Laura Jean Ware, Mayor Day Caldwell & Keeton, Houston, TX, for BF Goodrich Co./Goodyear Tire.

Michael J. Holland, Condon & Forsyth, New York City, for Delta Air Lines.

Don Swaim, George Steven McCall, Kern & Wooley, Irving, TX, for Parker Hannifin Corp.

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

Before SMITH and EMILIO M. GARZA, Circuit Judges, and STAGG, * District Judge.

JERRY E. SMITH, Circuit Judge:

Plaintiffs, the relatives of persons who died in an airline crash in Mexico, appeal the district court's denial of their motion to remand to state court, the failure of the district court to strike or sever the third party complaint by defendant Boeing Company ("Boeing"), and the dismissal on the ground of forum non conveniens ("f.n.c."). Concluding that the district court did not err, we affirm.

I.

On March 31, 1986, a Mexicana Airlines jet crashed near Mexico City, killing everyone on board. An investigation concluded that a tire exploded in the wheel well while the plane was in flight, causing an in-flight fire that eventually caused the plane to explode.

II.

Relatives and personal representatives of the estates of those who died filed several lawsuits throughout the United States and in Mexico. In every lawsuit filed in the United States, the action has been either voluntarily dismissed by the plaintiffs or dismissed on the basis of foreign sovereign immunity or f.n.c. 1

Plaintiffs have been determined to find a United States forum in which to try their case. In November 1992, they filed this action in Texas state court, claiming to be the personal representatives of the estates of each decedent and the legal heirs of the decedents pursuant to the Texas Survival Statute, TEX.CIV.PRAC. & REM.CODE ANN. Sec. 71.021 (Vernon 1986). The plaintiffs charged negligence and products liability against Boeing, B.F. Goodrich, Goodyear Tire and Rubber, Delta Airlines, and Parker Hannifin Corporation. Under TEX.R.CIV.P. 47, plaintiffs were not allowed to plead for a specific amount of damages. 2

After defendants removed the case to federal court in the Eastern District of Texas, plaintiffs filed affidavits executed by certain plaintiffs and by the plaintiffs' attorneys, purporting to limit the damages they were seeking, and moved to remand on the ground that the $50,000 jurisdictional amount requirement was not satisfied. See 28 U.S.C. Sec. 1332. The district court denied remand, holding that the affidavits were irrelevant because "jurisdiction attaches at the time of removal, and subsequent events do not oust the court of jurisdiction." De Aguilar v. Boeing Co., 790 F.Supp. 693, 694 (E.D.Tex.1992). Subsequently, however, this court decided Asociacion Nacional de Pescadores v. Dow Quimica de Colombia S.A. ("ANPAC "), 988 F.2d 559 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 685, 126 L.Ed.2d 653 (1994), concluding that post-removal affidavits sometimes can be relevant where the jurisdictional amount question is unresolved. Id. at 565.

The district court a quo further noted that, even if it had considered the affidavits relevant, the complaint named one hundred unknown plaintiffs who were not bound by the affidavits, and plaintiffs' counsel could not bind minor beneficiaries (constituting approximately twenty of the named plaintiffs) to judgments in wrongful death suits without leave of court. De Aguilar, 790 F.Supp. at 695. The claims later were dismissed on f.n.c. grounds. De Aguilar v. Boeing Co., 806 F.Supp. 139 (E.D.Tex.1992). The court held that direct estoppel barred the plaintiffs from relitigating the f.n.c. dismissal. Courts in Illinois, Washington, and the Western District of Texas had already ruled on this matter. Id. at 142. Alternatively, the court found that under traditional f.n.c. criteria, the Eastern District of Texas would not be a convenient forum. Id. at 142-43.

This court affirmed the denial of the motion to remand and the dismissal on estoppel and f.n.c. grounds. De Aguilar v. Boeing Co. ("de Aguilar I "), 11 F.3d 55 (5th Cir.1993). We held that the district court had properly disregarded the affidavits because it was "facially apparent" that the damages sought by each plaintiff exceeded $50,000. Id. at 57. Alternatively, we noted that the attorney affidavits were not unrebutted by evidence from the defendants. Id. at 57-58. These points distinguished de Aguilar I from ANPAC.

ANPAC involved claims that were not facially likely to exceed the jurisdictional amount. ANPAC, 988 F.2d at 565. In addition, in ANPAC, the only "evidence" the defendants produced to rebut the plaintiffs' attorneys' affidavits was the original notice of removal, which merely stated that the matter in controversy exceeded $50,000. Id. The de Aguilar I court noted that the defendants in that case had produced testimonial evidence and published precedent that indicated that the matter in controversy indeed exceeded $50,000. De Aguilar I, 11 F.3d at 58.

In the alternative, the plaintiffs in de Aguilar I argued that the original notice of removal was invalid because the defendants failed to prove that the amount in controversy exceeded $50,000. We rejected this argument because defendants had shown that plaintiffs had pled damages of up to $5,000,000 in other fora for the same injuries. Id.

In the instant case, shortly after the district court had dismissed the original claims, plaintiffs' attorneys filed another petition in state court. In this petition, at issue now, the plaintiffs dropped forty-two of the heirs, including all of the minors, and any mention of unnamed "Doe" plaintiffs. More importantly, plaintiffs, in apparent violation of TEX.R.CIV.P. 47, described the amount of their claim by specifically alleging that their damages did not exceed $50,000. Plaintiffs attached to the original petition an affidavit of attorney Dennis Reich stating that plaintiffs had agreed to an irrevocable cap on the amount of damages that could be awarded.

After service, defendants attempted to clarify whether Reich's affidavit constituted a binding limitation on the respective estates' damages. Howard Close, counsel for Boeing, sent Reich a letter asking for an amendment to the affidavit, or a new affidavit, in which Reich would attest that the plaintiffs had been appointed the personal representatives of the estates and had expressly authorized Reich to make a binding and irrevocable admission on their behalf.

One of the plaintiffs' attorneys, Mitchell Toups, had a discussion with Close about the proposed amendments to Reich's affidavit. The parties appear to dispute exactly what took place, though both sides agree that plaintiffs' counsel refused to say that the plaintiffs had been appointed by a qualified court as the personal representatives of the estates. According to defendants, Toups also said that none of the plaintiffs' American attorneys had actually talked to the plaintiffs. Plaintiffs claim that the reason they refused to acknowledge that they had been appointed the personal representatives of the estates was that they were suing as heirs, not representatives.

Defendants concluded that the plaintiffs named in the petition were simply some of the heirs of the decedents and did not have the authority to limit damages. As a result, defendants once again removed to federal court in the Eastern District of Texas, establishing in their notice of removal that the amount in controversy exceeded $50,000.

Three months after removal, plaintiffs filed a supplemental motion to remand for lack of jurisdiction and attached an affidavit from a Mexican lawyer, Guadalupe Bistrain, who was one of the plaintiffs' attorneys. Bistrain swore that she had received explicit authority from each of the named plaintiffs to limit damages to $50,000. The district court determined that the plaintiffs had not shown the necessary authority to limit damages and ruled that the amount in controversy exceeded $50,000.

Defendants alleged an additional basis for federal jurisdiction. In December 1992, Boeing filed a third party complaint against Mexicana Airlines, which on January 15, 1993, filed a memorandum that claimed status as a "foreign state" under the Foreign Sovereign Immunities Act, 28 U.S.C. Secs. 1602-1611. Plaintiffs filed a motion to strike or, in the alternative, sever Boeing's third party claim. The district court denied this motion when it denied the motion to remand. Defendants subsequently moved to dismiss on f.n.c. grounds; the court granted this motion. 3

III.

Since the crash, plaintiffs have made repeated attempts to locate an American forum. There are actions pending in the Mexican courts also. The Supreme Court of Texas had held that the doctrine of f.n.c. no longer applied in Texas wrongful death actions. See Dow Chemical Co. v. Alfaro, 786 S.W.2d 674 (Tex.1990), cert. denied, 498 U.S. 1024, 111 S.Ct. 671, 112 L.Ed.2d 663 (1991). The Texas Legislature then overruled Alfaro. See TEX.CIV.PRAC. & REM.CODE ANN. Sec. 71.051; '21' Int'l Holdings v. Westinghouse, 856 S.W.2d 479 (Tex.App.--San Antonio 1993, no writ). The new statute, however, applies only to causes of action filed on or after September 1, 1993. Thus, plaintiffs obviously prefer Texas state court to federal court, where f.n.c. applies.

IV.

As we have stated, plaintiffs' state court petition averred that they were seeking no recovery in excess of $50,000. During oral argument, plaintiffs characterized their claim as a plea...

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