Arango v. Guzman Travel Advisors Corp., No. 79-1280

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GOLDBERG, GARZA and REAVLEY; REAVLEY
Citation621 F.2d 1371
PartiesRamiro ARANGO and Gabriella Arango, Individually, etc., et al., Plaintiffs- Appellants, v. GUZMAN TRAVEL ADVISORS CORPORATION, etc., et al., Defendants-Appellees.
Docket NumberNo. 79-1280
Decision Date25 July 1980

Page 1371

621 F.2d 1371
Ramiro ARANGO and Gabriella Arango, Individually, etc., et
al., Plaintiffs- Appellants,
v.
GUZMAN TRAVEL ADVISORS CORPORATION, etc., et al.,
Defendants-Appellees.
No. 79-1280.
United States Court of Appeals,
Fifth Circuit.
July 25, 1980.

Page 1373

Rollo E. Karkeet, Coral Gables, Fla., Ramiro Arango, pro se, for plaintiffs-appellants.

Shaw, Pittman, Potts & Trowbridge, Matias F. Travieso-Diaz, James M. Burger, Washington, D. C., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before GOLDBERG, GARZA and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

Plaintiffs-appellants, Ramiro Arango and his family, attack the district court's dismissal of their tort and breach of contract claims against appellee, Compania Dominicana de Aviacion ("Dominicana"), the national airline of the Dominican Republic. Dominicana, one of four defendants against whom suit had originally been filed in a Florida state court, had removed the claims to federal district court pursuant to 28 U.S.C. § 1441(d). We conclude that § 1441(d) operated to remove the claims against the remaining state court defendants, as well, and, consequently, that the order dismissing Dominicana, alone, did not constitute a final judgment appealable under 28 U.S.C. § 1291 because it failed to adjudicate the rights and liabilities of all parties properly before the court. Fed.R.Civ.P. 54(b). Therefore, we dismiss the appeal.

The Arangos' claims arose from the events of an abortive package vacation tour from Miami, Florida to the Dominican Republic. The Arangos' jaunt terminated abruptly and prematurely when Dominican immigration officials denied them entry into that country upon their arrival at the airport in Santo Domingo, apparently because of their inclusion on an official list of "undesirable aliens." The officials then compelled the Arangos' immediate, "involuntary re-routing" back to the United States via Dominicana, the air carrier on which they had arrived. Because of the unavailability of immediate return flights directly to Miami, the requirement that the Arangos leave the country resulted in their being shunted first to San Juan, Puerto Rico, and the next day to Port-au-Prince, Haiti, where they apparently were left to arrange and pay for their own return to Miami, which they finally were able to accomplish four days later.

Based on the non-performance of the vacation contract and the sundry injuries and inconveniences suffered in their "involuntary re-routing", the Arangos brought suit in state court against four defendants, all alleged to have collaborated in the marketing and formation of the package tour so as to create a joint venture for purposes of the action arising therefrom: Guzman Travel Advisors Corp., a Florida corporation and the actual purveyor of the package tour;

Page 1374

Trailways Travel & Tourism International Corp., also a Florida corporation and the tour organizer; Sheraton Hotels & Inns, World Corp., a foreign corporation whose local hotel was to provide food and lodging; and the appellee here, Dominicana, which was to provide air transportation and "tourist cards" necessary for entering the Dominican Republic and which had been responsible for the Arangos' carriage during their "re-routing" to the United States. Wholly owned by the Dominican government, Dominicana exercised its prerogative under the relevant provisions of the Foreign Sovereign Immunities Act of 1976 ("FSIA") as a "foreign state," 28 U.S.C. § 1603, 1 to remove the action to federal district court pursuant to 28 U.S.C. § 1441(d). 2 Once in federal court, Dominicana moved to dismiss the action under Fed.R.Civ.P. 12(b)(1), (6), arguing first, that as a foreign sovereign, it was immune from the jurisdiction of the court under the pertinent provisions of the FSIA, 28 U.S.C. §§ 1604-07; and second, that the Arangos' complaint stated no claim upon which relief could be granted because all alleged injuries derived from the official acts of Dominican immigration authorities, which acts are insulated from judicial scrutiny in United States courts by the "act of state" doctrine. Without specifying upon which ground it relied, the district court granted the motion and dismissed the suit against Dominicana.

I. APPEALABILITY OF THE ORDER

The question that must precede review of the order of dismissal as to Dominicana is whether that order is at this point a final judgment within our appellate jurisdiction, 28 U.S.C. § 1291. Though neither party raised the issue of appealability, it is axiomatic that this court may, indeed must, undertake such a jurisdictional inquiry sua sponte. Oswalt v. Scripto, Inc., 616 F.2d 191, 192 (5th Cir. 1980).

The basis for our concern here is whether the order dismissing the suit with respect to Dominicana disposed of all parties before the district court. Ordinarily, under Fed.R.Civ.P. 54(b) an order, however designated, that adjudicates the rights and liabilities of fewer than all parties is not final or appealable under § 1291 unless the district court "certifies" appealability by making an express determination that there is no just reason for delay and then explicitly directs the entry of judgment on the order. Oswalt v. Scripto, Inc., 616 F.2d at 194; Huckeby v. Frozen Food Express, 555 F.2d 542, 545-46 (5th Cir. 1977). See Curtiss-Wright Corp. v. General Electric Co., --- U.S. ----, 100 S.Ct. 1460, 1465-67, 64 L.Ed.2d 1 (1980) (guidelines for issuance of rule 54(b) "certificate"). This principle applies even to dismissals based on jurisdictional or immunity grounds not pertinent to the rights and liabilities of the remaining parties. See, e. g., Morrison v. City of Baton Rouge, 614 F.2d 77 (5th Cir. 1980); Cason v. Owen, 578 F.2d 572, 573-74 (5th Cir. 1978); Huckeby v. Frozen Food Express, 555 F.2d at 545-49.

Since Dominicana was the sole proponent and subject of the dismissal order and since

Page 1375

no rule 54(b) "certificate" accompanied that order, our inquiry is directed merely to whether or not there were any other parties properly before the court. This ordinarily simple question is complicated here by the uncertain scope of removal under § 1441(d). If only the claims against Dominicana were removed to federal court, the order dismissing Dominicana obviously was final. If, on the other hand, Dominicana's § 1441(d) petition precipitated a removal of the entire case involving all defendants, the rights and liabilities of those other defendants have yet to be adjudicated, and, consequently, the dismissal of Dominicana is not yet final or appealable.

The district court, as well as the state court and all the parties involved, apparently understood the removal to have encompassed only the claims against Dominicana. Neither the record nor minutes of the federal proceeding reflect any filings by any of the other three defendants or any judicial recognition of their presence. 3 The state court proceeded with the claims against the supposedly remaining defendants, and, in fact, later dismissed the action as to Sheraton and Trailways Travel. 4 Nonetheless, while the confusion of the parties and trial courts here is understandable this appears to be a question of first impression we are convinced that the better interpretation of § 1441(d) is that when a "foreign state" defendant in a multi-party suit removes under that provision, the entire action against all defendants accompanies it to federal court.

The language of § 1441(d) does not expressly address its operation in multi-party lawsuits. Cf. 28 U.S.C. § 1441(c) (explicitly providing for removal of "entire case" when otherwise removable claims are joined with a "separate and independent" non-removable claim). Nonetheless, its legislative history indicates a rather clear congressional intent that when a "foreign state," joined with other non-foreign codefendants in state court, petitions for removal, it is the action embracing all defendants that is to be transferred to federal court. The Report of the House Judiciary Committee in its section-by-section analysis of the FSIA, states that "(n)ew subsection (d) of section 1441 permits the removal of any such action at the discretion of the foreign state, even if there are multiple defendants and some of these defendants desire not to remove the action or are citizens of the State in which the action has been brought." H.R.Rep. No. 94-1487, 94th Cong., 2d Sess. 32, reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 6604, 6631 (emphasis added) (hereinafter "H.R.Rep."). See also 14 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3729 (Supp.1979).

Since § 1441(d) by its terms requires no defendant other than the "foreign state" to assent to or to join the removal petition, the desires as to removal and the citizenship of the non-foreign defendants obviously would be wholly irrelevant and would have warranted no comment by the Committee if the action with respect to them were not also to be removed. Further, by its explicit delineation of the immateriality of domestic, forum-state citizenship of some of the defendants, we are given a reflection of Congress' specific intent that removal of multi-party actions under the aegis of this limited new provision should not be susceptible to the general bar of 28 U.S.C. § 1441(b) against

Page 1376

removal of multi-party non-federal-question suits where any defendant is a citizen of the forum state. Thus, the strong inference from the statement quoted above is that Congress understood that a petition under § 1441(d) would effect the removal of the entirety of an action against multiple defendants, foreign or domestic.

The language of the section, though it does not compel this interpretation, certainly accommodates it nicely. Section 1441(d) provides for the removal of "civil actions," not simply claims, involving "foreign state" defendants. The same phrase in the remaining...

To continue reading

Request your trial
134 practice notes
  • Maseda v. Honda Motor Co., Ltd., Nos. 87-5866
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 19, 1988
    ...court. IMFC Professional, Etc. v. Latin Am. Home Health, 676 F.2d 152, 158 (5th Cir.1982); 3 Argano v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1375 (5th Cir.1980); Allman v. Hanley, 302 F.2d 559, 562 (5th Cir.1962); 4 Further, the remand statute, 28 U.S.C. Sec. 1447(c), provides that r......
  • Al-Quraishi v. Nakhla, Civil No. PJM 08-1696
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • July 29, 2010
    ...Yearsley v. W.A. Ross Constr. Corp., 309 U.S. 18, 20-21, 60 S.Ct. 413, 84 L.Ed. 554 (1940); Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1379 (5th Cir.1980) (when operating "merely as an arm or agent of the ... government in carrying out [an]728 F.Supp.2d 734assigned role," contra......
  • Simmons v. State of Cal., Dept. of Indus. Rel., No. Civ. S-89-1347 LKK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 20, 1990
    ...the entirety of the proceedings in 740 F. Supp. 786 question, not merely" claims or parties. Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1376 (5th Cir.1980); see also Agosto v. Barcelo, 594 F.Supp. 1390, 1392 (D.P.R.1984) ("As used in Section 1441 `civil action' is a civil suit")......
  • Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian, Nos. H003831
    • United States
    • California Court of Appeals
    • March 14, 1990
    ...owned corporation formed for a governmental purpose. (See § 1603, subds. (a), (b); Arango v. Guzman Travel Advisors Corp. (5th Cir.1980) 621 F.2d 1371; Barragan v. Banco BCH (1986) 188 Cal.App.3d 283, 293, 232 Cal.Rptr. 758.) Accordingly, it is immune from the jurisdiction of United States ......
  • Request a trial to view additional results
135 cases
  • Maseda v. Honda Motor Co., Ltd., Nos. 87-5866
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 19, 1988
    ...court. IMFC Professional, Etc. v. Latin Am. Home Health, 676 F.2d 152, 158 (5th Cir.1982); 3 Argano v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1375 (5th Cir.1980); Allman v. Hanley, 302 F.2d 559, 562 (5th Cir.1962); 4 Further, the remand statute, 28 U.S.C. Sec. 1447(c), provides that r......
  • Al-Quraishi v. Nakhla, Civil No. PJM 08-1696
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • July 29, 2010
    ...Yearsley v. W.A. Ross Constr. Corp., 309 U.S. 18, 20-21, 60 S.Ct. 413, 84 L.Ed. 554 (1940); Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1379 (5th Cir.1980) (when operating "merely as an arm or agent of the ... government in carrying out [an]728 F.Supp.2d 734assigned role," contra......
  • Simmons v. State of Cal., Dept. of Indus. Rel., No. Civ. S-89-1347 LKK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 20, 1990
    ...the entirety of the proceedings in 740 F. Supp. 786 question, not merely" claims or parties. Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1376 (5th Cir.1980); see also Agosto v. Barcelo, 594 F.Supp. 1390, 1392 (D.P.R.1984) ("As used in Section 1441 `civil action' is a civil suit")......
  • Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian, Nos. H003831
    • United States
    • California Court of Appeals
    • March 14, 1990
    ...owned corporation formed for a governmental purpose. (See § 1603, subds. (a), (b); Arango v. Guzman Travel Advisors Corp. (5th Cir.1980) 621 F.2d 1371; Barragan v. Banco BCH (1986) 188 Cal.App.3d 283, 293, 232 Cal.Rptr. 758.) Accordingly, it is immune from the jurisdiction of United States ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT