937 F.2d 37 (2nd Cir. 1991), 1041, Mignogna v. Sair Aviation, Inc.
| Citation | 937 F.2d 37 |
| Party Name | James MIGNOGNA, Plaintiff-Appellant, v. SAIR AVIATION, INC., Exxon Corporation, Mooney Aircraft Corporation, Hancock Field Aero Club and General William D. Stewart, Defendants-Appellees. |
| Case Date | June 21, 1991 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Second Circuit |
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Argued April 11, 1990.
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Howard M. Fifer, New York City (G. Michael Simon, F. Lee Bailey and Aaron J. Broder, New York City, of counsel), for plaintiff-appellant James Mignogna.
Daniel L. Reich, Trial Atty., Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C. (Stuart M. Gerson, Asst. Atty. Gen., Civ. Div., U.S. Dept. of Justice, Washington, D.C., Frederick J. Scullin, Jr., U.S. Atty. for the Northern District of New York, Syracuse, New York, of counsel), for defendant-appellee Hancock Field Aero Club.
Before LUMBARD, FRIEDMAN, [*] and MAHONEY, Circuit Judges.
MAHONEY, Circuit Judge:
Plaintiff-appellant James Mignogna appeals from an order of the United States District Court for the Northern District of New York, Howard G. Munson, then-Chief Judge, that dismissed Mignogna's claim against Hancock Field Aero Club ("Hancock") for failure to file an administrative claim as required by 28 U.S.C. Sec. 2675(a) (1988), a provision of the Federal Tort Claims Act ("FTCA"). 1 We reverse and remand, with directions to remand Mignogna's claim against Hancock to state court, on the basis that the removal to federal court was improper.
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Background
On September 24, 1983, a single-engine Mooney aircraft piloted by Mignogna crashed at the Burlington, Vermont International Airport. Thereafter, Mignogna commenced an action in the Supreme Court of the State of New York, County of Onandoga, against Hancock and others, alleging, inter alia, that Hancock had leased the aircraft to Mignogna, and that Mignogna suffered injuries in the plane crash as a result of "negligence, recklessness and carelessness" on the part of Hancock and the other named defendants. Service was effected upon an agent of Hancock on July 25, 1985.
On August 26, 1985, the United States filed a petition for removal of the action in the United States District Court for the Northern District of New York pursuant to 28 U.S.C. Sec. 1442(a)(1) (1988) on the ground that Hancock, a "Nonappropriated Fund Instrumentality (NAFI) activity," was an instrumentality of the federal government by virtue of 5 U.S.C. Sec. 2105(c) (1988) and 10 U.S.C. Sec. 9779(c) (1982). 2 Asserting that the "case involve[d] an aviation accident with numerous complex technical and legal issues," the government also sought "an extension of 60 days from the date of removal to answer or otherwise respond to the complaint."
Mignogna did not oppose the application, and the district court granted it in an order entered September 5, 1985. Thereafter, on October 1, 1985, the government filed a motion to dismiss the complaint on several grounds, including Mignogna's alleged "fail[ure] to exhaust his administrative remedies." The government's supporting memorandum made clear that the failure in question was Mignogna's noncompliance with the requirements of section 2675(a). At the time the government made its motion, more than two years after the incident giving rise to his suit, Mignogna was barred by another provision of the FTCA, 28 U.S.C. Sec. 2401(b) (1988), from curing the failure to comply with section 2675(a). 3
In opposing the motion, Mignogna stressed that the government, having "lulled" him into a "false sense of security" and "successfully acquired an extension beyond the September 24, 1985 statute of limitations for filing an administrative claim," had filed its motion to dismiss promptly after the passage of that deadline. He further contended that "the law in this Circuit clearly permits the plaintiff to maintain his instant action in federal court against this defendant without filing an administrative claim, since a state action was begun within the two year limitation period."
The district court granted the government's motion to dismiss in a memorandum decision and order entered March 6, 1986. The court first rejected the government's contention that there was no state court jurisdiction over the action, and accordingly no federal court jurisdiction upon removal under the principle of derivative jurisdiction. The court went on, however, to rule adversely to Mignogna on the section 2675(a) issue, stating:
[A]n extension of time within which to answer a complaint does not toll the statute of limitations. Plaintiff faults the government for seeking dismissal for failure to file a claim after the two-year statute of limitations had expired. However, the government's petition for removal should have put the plaintiff on notice that the provisions of the FTCA would apply as to Hancock.
The district court distinguished our decision in Kelley v. United States, 568 F.2d 259 (2d Cir.), cert. denied, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978), upon
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which Mignogna relied, because there the government did not substitute itself as a defendant until after the time for filing an administrative claim had expired, and the person bringing the action was unaware before that time that the United States was the proper defendant. The court then remanded the case to state court (as to the remaining defendants), since the dismissal "remove[d] from the case the party which petitioned for removal to this court."
Mignogna then filed a timely notice of appeal. By stipulation, the appeal was dismissed pending the conclusion of the state court litigation against the other defendants, and thereupon reinstated.
Discussion
Mignogna argues on appeal, as he did below, that: (1) the government's request for an extension of time lulled him into a "false sense of security in regards [sic] to any requirements to file an administrative notice of claim;" and (2) the state court complaint served upon Hancock gave "such notice of the claim as to eliminate and/or functionally fulfill the requirement of 28 U.S.C. Sec. 2675(a) to file an administrative claim prior to proceeding" with the present case. We do not reach these contentions, in view of our conclusion that the action was improperly removed in purported reliance upon 28 U.S.C. Sec. 1442(a)(1) (1988), and must therefore be remanded (as to Hancock) to state court.
The parties have not raised the issue of removal jurisdiction on this appeal, but it is our obligation to do so sua sponte. See, e.g., City of Gainesville v. Brown-Crummer Inv. Co., 277 U.S. 54, 58-59, 48 S.Ct. 454, 455-456, 72 L.Ed. 781 (1928) (removal jurisdiction); Louisville & N.R.R. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908) (subject matter jurisdiction); Natale v. Town of Ridgefield, 927 F.2d 101, 104 (2d Cir.1991) (appellate jurisdiction).
28 U.S.C. Sec. 1447(c) (1988), which deals with procedure after removal, provides in part that: "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." Furthermore, if the federal court never could have exercised original jurisdiction over the case, remand is required even after the entry of final judgment. See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 18, 71 S.Ct. 534, 542, 95 L.Ed. 702 (1951) ("To permit a federal trial court to enter a judgment in a case removed without right from a state court where the federal court could not have original jurisdiction of the suit even in the posture it had at the time of judgment, would by the act of the parties work a wrongful extension of federal jurisdiction and give district courts power the Congress has denied them."); 14A C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure Sec. 3739, at 578-80 & n. 16 (2d ed. 1985 & Supp.1990) (same, collecting cases).
We therefore address initially the question whether the district court could have exercised original jurisdiction over this case. The Federal Tort Claims Act would not have conferred such jurisdiction, since an action thereunder must be brought against the United States rather than an agency thereof. See 28 U.S.C. Sec. 2679(a) (1988); C.P. Chemical Co. v. United States, 810 F.2d 34, 37 n. 1 (2d Cir.1987); Sprecher v. Graber, 716 F.2d 968, 973 (2d Cir.1983); Myers & Myers, Inc. v. United States Postal Serv., 527 F.2d 1252, 1256 (2d Cir.1975). Furthermore, there would have been no other basis for federal jurisdiction. The parties are all citizens of New York, and the claim asserted rests on state negligence law.
Accordingly, under the doctrine of American Fire & Casualty Co., the conclusion that the district court would not have had original jurisdiction of this case brings us to the issue whether it was...
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