De Aguilar v. Boeing Co.

Decision Date22 December 1993
Docket NumberNo. 92-5099,92-5099
Citation11 F.3d 55
PartiesAlma Torreblanca DE AGUILAR, et al., Plaintiffs-Appellants, v. The BOEING COMPANY, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Benton Musslewhite, Houston, TX, Mitchell A. Toups, Weller, Wheelus & Green, Beaumont, TX, Dennis C. Reich, Reich & Binstock, Houston, TX, for plaintiffs-appellants.

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

Gerald Leigh Bracht, Mayor, Day, Caldwell & Keeton, Houston, TX, for Goodrich & Goodyear.

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

G. Don Swain, 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 SNEED, * REYNALDO G. GARZA, and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The plaintiffs in this case are doggedly determined to find some court in the United States--any court--in which to try their foreign-based claims. Once again they fail. This suit is but the latest in a succession of wrongful death litigation arising out of the crash of a Mexicana Airlines plane in Mexico. In the first action, the plaintiffs filed suit in state court in Bexar County, Texas; the defendants removed to federal district court for the Western District of Texas; and the district court dismissed the action on federal forum non conveniens grounds stating that Mexico was the appropriate forum. Rodriguez Diaz v. Mexicana De Avion, S.A., (W.D.Tex.1987), aff'd mem., 843 F.2d 498 (5th Cir.), cert. denied, 488 U.S. 826, 109 S.Ct. 76, 102 L.Ed.2d 53 (1988). In the second action, the parties repeated the same pattern in Illinois resulting in dismissal based on federal forum non conveniens law. In the most recent action before the instant case, 1 the plaintiffs filed suit in Washington state court, which dismissed the action on state forum non conveniens grounds. Wolf v. Boeing Co., 61 Wash.App. 316, 810 P.2d 943 review denied, 117 Wash.2d 1020, 818 P.2d 1098 (1991). 2 After the Supreme Court of Texas ruled that the doctrine of forum non conveniens was no longer recognized under Texas law for wrongful death actions, 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 plaintiffs filed this suit in state court in Jefferson County, Texas, without pleading a specific amount of damages. After the defendants removed to federal district court, the plaintiffs argued, inter alia, that: (1) the district court should remand to Texas court because the amount in controversy per decedent was less than the minimum required for diversity jurisdiction; or alternatively, (2) the district court should apply Texas law instead of federal law in resolving the forum non conveniens issue. The district court denied the motion to remand for lack of subject matter jurisdiction and dismissed the case based on federal forum non conveniens law. Finding no error, we affirm.

I

On March 31, 1986, a Mexicana Airlines plane manufactured by the Boeing Company ("Boeing") crashed in Mexico killing all aboard. The personal representatives of the estates of those killed and the relatives of the victims filed this wrongful death action in Texas court. The plaintiffs did not specify the amount of damages in their complaint because Texas Rule of Civil Procedure 47(b) forbids such specificity. Boeing removed the case to federal district court pursuant to 28 U.S.C. Sec. 1441. The plaintiffs moved to remand arguing that the amount in controversy did not exceed $50,000 per plaintiff thus depriving the district court of diversity jurisdiction. In support of their position, the plaintiffs submitted the affidavits of their attorneys stating that the damages did not exceed $49,000 per plaintiff. Boeing and the other defendants contested the motion by proffering evidence that the plaintiffs in the instant case had claimed damages of up to $5,000,000 each in the previous actions filed in other courts.

The district court denied the motion to remand for lack of subject matter jurisdiction because the court found the amount in controversy at the time of removal exceeded $50,000. The court further held that the attorney affidavits constituted subsequent events that could not divest the court of jurisdiction. It then dismissed the case on two alternative grounds: First, the preclusive effect of the prior adjudications of the plaintiffs' forum non conveniens issue; and second, even if not bound by the other judgments, the federal law of forum non conveniens required dismissal in this case. The plaintiffs appeal this ruling.

II
A

The plaintiffs contend that the district court lacked diversity jurisdiction and, thus, should have remanded the case to Texas state court, because the amount in controversy did not exceed $50,000, as shown by their attorney's affidavits. Plaintiffs rely on Asociacion Nacional De Pescadores A Pequena Escala O Artesanales De Colombia (ANPAC) v. Dow Quimica De Columbia S.A., 988 F.2d 559, 566 (5th Cir.1993), for the proposition that their attorney's affidavits are dispositive of the jurisdictional question. The plaintiffs' argument fails because it overestimates the reach of Dow Quimica.

In Dow Quimica, we stated:

[A]t least where the following circumstances are present, [the removing party's burden to establish jurisdiction] has not been met: (1) the complaint did not specify an amount of damages, and it was not otherwise facially apparent that the damages sought or incurred were likely above $50,000; (2) the defendants offered only a conclusory statement in their notice of removal that was not based on direct knowledge about the claims; and (3) the plaintiffs timely contested removal with a sworn, unrebutted affidavit indicating that the requisite amount in controversy was not present.

Dow Quimica, 988 F.2d at 566 (emphasis added).

First, although the complaint in the instant case did not specify an amount of damages, it is facially apparent that damages sought by the plaintiffs here exceed $50,000. Unlike Dow Quimica, id. at 565, which involved damages for the skin rashes and lost income of small-scale Columbian fishermen, the instant case involves, inter alia, a claim for wrongful death. It is facially apparent that the claims in this case--claims for wrongful death, terror in anticipation of death, loss of companionship, and funeral expenses--did exceed $50,000 at the time of removal. Thus, the necessary predicate for consideration of the attorney affidavits under Dow Quimica is absent in this case and, consequently, the district court properly disregarded the affidavits.

Alternatively, even if the amount in controversy were not facially apparent, plaintiffs' reliance on Dow Quimica is nevertheless misplaced because the attorney affidavits that the plaintiffs offered in support of their motion to remand were rebutted by the defendant. Clearly, the affidavit of a lawyer without personal knowledge of the extent of each of the plaintiffs' claims sheds little, if any, light on the actual amount in controversy. 3 In Dow Quimica, 988 F.2d at 565-66 however, this court had before it only the unrebutted affidavit of the plaintiffs' attorneys and the defendant's conclusory statement in their notice of removal, i.e., a mere scintilla of evidence on each side of the amount in controversy issue. Left with nothing but minimal offsetting evidence, the Dow Quimica Court, id. at 566, held that the removing parties, the defendants, had not met their burden of establishing that the amount in controversy exceeded $50,000 and remanded to state court. In contrast, the defendants in the instant case offered testimonial evidence and published precedent showing that damages in the instant case and in similar cases would probably exceed $50,000 per plaintiff. Further, the defendants offered evidence that the plaintiffs in this action claimed damages of up to $5,000,000 in other courts for the same injuries. The inconsistency between the plaintiffs' prior claims and their current claims--at least as represented by the post-removal attorney affidavits--may indicate that the plaintiffs, rather than trying to clarify the actual amount in controversy, engaged in artful post-removal pleading in order to avoid the consequences of federal forum non conveniens law. Diversity jurisdiction, however, derives from Article III of the Constitution, is defined by Congress, and is not subject to delimitation by such imaginative post-hoc tactics of litigants.

B

Even if our precedent in Dow Quimica does not require our reversal of the district court, the plaintiffs nevertheless contend that the district court's denial of their motion to remand must be reversed because the removing parties have not met their burden of proving to...

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