Compania Mexicana De Aviacion, S.A. v. U.S. Dist. Court for Cent. Dist. of California
| Decision Date | 17 October 1988 |
| Docket Number | No. 88-7015,88-7015 |
| Citation | 859 F.2d 1354 |
| Parties | COMPANIA MEXICANA DE AVIACION, S.A., a corporation doing business as Mexicana Airlines, Petitioner, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent, and Adela Espinosa De Penasco, Carlos Penasco Garcia, Patricia Guadarrama Ortiz, Rodolfo Guadarrama Ortiz, Raul Guadaramma Ortiz, Ana Maria Esperanza Cuellar Marovilla, Federico Perez Munoz Lido, Amelia Neyra Perez, Pablo Eduardo Zuniga Escobar, Maria De Los Angeles Escobar Rodriguez, Rafael Mujica Bustos, Maria Luisa Susana Alarcon Mujica, Miguelangel Avila Rosales, Hector Avila Rosales, Rene Avila Rosales, Salvador Hernandez Amezcua, Maria Del Socorro Garcia Vizcaino, individually and as Guardian Ad Litem of Minors, Fernando Contreras Garcia and Liliana Contreras Garcia, Maria Teresa Alvarado Melgoza, Juan Rodriguez Guillen, Martha Rodriguez Guillen, Celia Rodriguez Guillen, Sylvia Rosaura Rodriguez Guillen, Rafael Palacios Ibarra, Enrique Rodriguez Guillen, individually and as Guardian Ad Litem of Minors, Cristobal Rodriguez Guillen and Pedro Rodriguez Guillen, Sophie Latrilleux, Fernando Gerardo, Michel Jimenez, Fernando Nicolas, Michel Vega, Rafaela Jimenez Michel, Leopoldo Raigoza Ortiz, Ana Luisa Sosa Ortiz, Alvaro Sosa Ortiz, Alfonso Sosa Ortiz, Arturo Sosa Ortiz, Alejandro Sosa Ortiz, Sergio Luis Velasco Ortiz, Rosa Leticia Velasco Ortiz, Martha Maria Velasco Ortiz, Lilia Rosa Velasco Ortiz, Alma Rosa Velasco Ortiz Carmen Fernandez Paredes, Luis Felipe Puente Bermudez, Carmen Espinosa Puente, Luis Felipe Puente Espinosa, Jose Haracio Robles Ramirez, Arturo Robles Casillas, Maria Asuncion Ramirez Robles, Maria Velasquez Rojas, Francisco Javier Velasquez Rojas, Jose Luis Velasquez Rojas, Sara Zaldivar Perez, Daniel Zaldivar Perez, Taide Zaldivar Perez, Ezperanza Zaldivar Perez, Enrique Zaldivar Perez, Guillermo Zaldivar Perez, Jaime Guzman Vasquez, Alicia Flores Guzman, Nelly Camacho Iniguez Ramirez, individually and as Guardian Ad Litem of Minors, Juan Joshua Ramirez Camacho, J |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael J. Holland, Condon & Forsyth, Los Angeles, Cal., for petitioner.
Carlos Hernandez, Capote, Hernandez, Labat & Planas, El Monte, Cal., for real parties in interest.
Appeal from the United States District Court for the Central District of California.
Before CANBY, BEEZER and KOZINSKI, Circuit Judges.
*
Compania Mexicana de Aviacion (Mexicana) flight 940 crashed at Michoacan, Mexico, shortly after takeoff from Mexico City on March 31, 1986, killing all aboard. This action is brought on behalf of 69 Mexican decedents who travelled on tickets purchased in Mexico for travel within Mexico.
Mexicana moved to dismiss the action for lack of jurisdiction because of foreign sovereign immunity and for forum non conveniens. The motion was denied by the District Court and Mexicana petitioned this court for a writ of mandamus. We conclude that denial of a motion to dismiss for foreign sovereign immunity is a collateral order which is immediately appealable. Segni v. Commercial Office of Spain, 816 F.2d 344 (7th Cir.1987); see Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We further find that there are compelling reasons for construing the petition as a notice of appeal. See Clorox Co. v. U.S. District Court, 779 F.2d 517 (9th Cir.1985).
Mexicana is an agency of a foreign government and is thus a foreign state for purposes of the Foreign Sovereign Immunities Act (FSIA). 28 U.S.C. Sec. 1603 (1973).
We conclude that the District Court lacks jurisdiction because none of the statutory exceptions to foreign sovereign immunity apply to this action. 28 U.S.C. Secs. 1605-1607. We reverse the denial of sovereign immunity and remand for a dismissal of the action. 1
After taking off from Mexico City, Mexicana flight 940 was scheduled to stop in Puerto Vallarta and Mazatlan, and then terminate in Los Angeles. As a result of the crash in Mexico, four actions were filed in the United States. 2 Plaintiffs filed the fourth of these in California Superior Court, suing Mexicana, Boeing, Delta Airlines, Western Airlines and B.F. Goodrich Co. On August 13, 1987, Mexicana removed the case to United States District Court for the Central District of California, pursuant to the provisions of the FSIA. 28 U.S.C. Secs. 1330, 1441(d) (1966). On the same day Mexicana answered the complaint, asserting lack of jurisdiction under the FSIA and forum non conveniens.
Plaintiffs responded to Mexicana's answer by seeking to file a notice of voluntary dismissal of the entire action without prejudice. Because Mexicana had answered the complaint, the clerk accepted but did not file the dismissal. See Fed.R.Civ.P. 41(a)(1). Mexicana then moved to dismiss the complaint for lack of subject matter jurisdiction and forum non conveniens. At the same time, Boeing moved to correct the docket to reflect that the voluntary dismissal was effective as to all defendants except Mexicana. After hearing the motions, the District Court granted Boeing's motion to correct the docket, dismissing the action against all defendants except Mexicana 3, and denied without written order Mexicana's motion to dismiss. Mexicana moved for reconsideration on December 3, 1987. The court denied the motion on January 11, 1988, following which Mexicana filed its petition for writ of mandamus.
Mandamus is an extraordinary remedy, and is not available when full relief is possible through a contemporaneous ordinary appeal. Badham v. U.S. District Court, 721 F.2d 1170 (9th Cir.1983); Clorox v. U.S. District Court, 779 F.2d 517 (9th Cir.1985). Because we find that denial of a motion to dismiss for sovereign immunity is an appealable collateral order, mandamus is not available in this case.
This court has jurisdiction over appeals from final judgments of the district court. 28 U.S.C. Sec. 1291 (1982). Notwithstanding the absence of a final judgment, under the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), a small class of interlocutory orders is immediately appealable. This class embraces orders that conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and are effectively unreviewable on appeal from a final judgment. Cohen, 337 U.S. at 546-547, 69 S.Ct. at 1225-1226.
A denial of a motion to dismiss based on a claim of absolute or qualified immunity of a public official is an appealable interlocutory order to the extent that it turns on an issue of law. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982); see Velasquez v. Senko, 813 F.2d 1509 (9th Cir.1987). The entitlement is an immunity from suit rather than a mere defense to liability; it is effectively lost if a case is erroneously permitted to go to trial. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815.
Only one court of appeals has decided whether sovereign immunity is similarly entitled to interlocutory review. In Segni v. Commercial Office of Spain, 816 F.2d 344 (7th Cir.1987), the Seventh Circuit held that an order denying immunity under the FSIA is appealable under the collateral order doctrine. Basing its decision on legislative history of the FSIA, the court stated that a foreign government should not be put to the expense of defending what may be a protracted lawsuit without a prior opportunity to obtain an authoritative determination of its amenability to suit. "The considerations that argue for allowing the denial of a public official's qualified immunity to be appealed immediately apply a fortiori to the denial of a foreign government's claim...
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