Alifieris v. American Airlines, Inc.
Decision Date | 05 October 1981 |
Docket Number | No. 80 C 1397.,80 C 1397. |
Citation | 523 F. Supp. 1189 |
Parties | Panos ALIFIERIS and Cleo Alifieris, Plaintiffs, v. AMERICAN AIRLINES, INC., Don Cooper and Mary Cooper, a/k/a Maria Cooper, Defendants. Don COOPER and Maria Cooper, Third-Party Plaintiffs, v. The COUNTY OF SUFFOLK and Olympic Airways, Third-Party Defendants. |
Court | U.S. District Court — Eastern District of New York |
Lipsig, Sullivan & Liapakis, P. C. by Frank V. Floriani, New York City, for plaintiffs.
John Downing by James V. McGovern, New York City, for defendant American Airlines, Inc.
Meiselman, Boland, Reilly & Pittoni by Leonard J. Meiselman, Mineola, N. Y., for Cooper defendants.
Hill, Betts & Nash by Peter J. McHugh, New York City, for third-party defendant Olympic Airways.
In September 1979 Panos and Cleo Alifieris brought an action in the New York Supreme Court, Kings County, asserting causes of action against defendants Donald and Maria Cooper and their employer, American Airlines, based on an alleged assault and battery on Panos Alifieris in the American Airlines terminal at the John F. Kennedy Airport. Alifieris was at the time of the incident an employee of Olympic Airways, who pursuant to an agreement with American had been utilizing the latter's terminal for servicing Olympic's flights. The Coopers subsequently impleaded third-party defendants Olympic Airways and Suffolk County, based on Olympic's alleged failure to control Alifieris and Suffolk County's alleged obligations to defend and indemnify Donald Cooper. The Coopers also filed a cross-complaint against American and a counterclaim against Alifieris, claiming damages and indemnification.
Olympic thereafter removed the action to this Court on the ground that it is a "foreign state" as defined by the Foreign Sovereign Immunities Act, 28 U.S.C. § 1603(a), and therefore entitled to removal under 28 U.S.C. § 1441(d).1 Now before the Court is plaintiffs' motion to remand the action to the Kings County Supreme Court.
It is undisputed that Olympic satisfies the three criteria of § 1603(b); therefore it would appear to be entitled to removal under § 1441(d).2 However, plaintiffs contend that Olympic's third-party status dictates different treatment under § 1441(d), claiming that the right to removal applies only to "defendants" and not "third-party defendants." Thus, the question remains whether the Coopers' impleading of Olympic falls within the language, "any civil action brought," or whether such language limits removal to a party defending against claims brought by the plaintiff.
The question presented appears to be one of first impression. Although several courts have addressed the issue whether a third-party defendant may remove an action under the "separate and independent claim" removal section, 28 U.S.C. § 1441(c),3 that section focuses on the type of claim brought rather than the identity of the party sued. As Professor Moore points out, some courts permit removal by third-party defendants under § 1441(c), and some do not. 1A Moore's Federal Practice ¶ 0.16710, at 413-20 (2d ed. 1979). Compare Burlingham, Underwood, Barron, Wright & White v. Luckenbach Steamship Co., 208 F.Supp. 544 (S.D.N.Y.1962) ( ), with President and Directors of Manhattan Co. v. Monogram Assoc., Inc., 81 F.Supp. 739 (E.D. N.Y.1949) ( ). Without passing on whether the third-party action comprises a removable claim under § 1441(c), we proceed on what appears to be the better course: examination of the particular removal section at hand, § 1441(d), to determine the scope of Olympic's rights thereunder.
The Supreme Court has offered the following guidance for construing removal statutes:
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). Thus, strict construction is necessary to reduce the possibility of improper invasion into State court jurisdiction. Yet, this requirement must be balanced against the policy behind § 1441(d) to provide a single forum for all actions against foreign entities. In this regard, the House Report outlines the purpose of § 1441(d):
H.R.Rep.No.1487, 94th Cong.2d Sess. 32, reprinted in 1976 U.S.Code Cong. & Ad. News 6604, 6631.
Where Congress chose to expand the district courts' powers of removal by giving a particular class of parties the right to defend actions in federal court, the policy against undue impingement on State court jurisdiction would seem to defer to the goal of securing uniform treatment of claims against that class. Further, the Court is of the view that a foreign state's right of removal should not be defeated merely because local procedural rules allow third-party pleading rather than requiring defendants to bring suit as ordinary plaintiffs. We thus agree with the court's analysis in Industrial Lithographic Co. v. Mendelsohn, 119 F.Supp. 284, 286 (D.N.J.1954):
"
The Coopers' claim against Olympic for negligently failing to prevent the alleged assault by its employee could have been brought separately from the main action, and in that circumstance Olympic would have the clear right to remove under § 1441(d). Since that section evinces a congressional intent to afford foreign state defendants a federal forum, we hold that it is not an unwarranted extension into the independent sphere of State government to allow Olympic to remove the action, its third-party status notwithstanding. However, strictly construing the statute so as not to unduly extend our federal judicial power, the Court is of the view that only the third-party complaint comprises a "civil action brought in a State court against a foreign state" under § 1441(d). Main actions are procedurally distinct from third-party claims; a more expansive reading of the statute would not be justified. Therefore, all claims outside the third-party complaint are remanded to the New York Supreme Court, Kings County, for determination of the rights of the parties according to State law.
The final loose string which remains to be tied involves the position of Suffolk County, Olympic's co-third-party defendant, in relation to removal. Proceeding on the premise that the third-party complaint is properly removable under § 1441(d), reasoned analysis of the statute appears to require removal of the entire third-party action rather than merely the claim against the foreign state. The legislative history quoted above shows that Congress contemplated multi-defendant actions in which both foreign and non-foreign defendants were joined and intended that the action against all defendants would be susceptible to...
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