Harraz v. EgyptAir Airlines Co., 18 Civ 12364 (ER)

• Decision Date: 06 December 2019
• Docket Number: 18 Civ 12364 (ER)
• Parties: IMAN HARRAZ, Plaintiff, v. EGYPTAIR AIRLINES COMPANY, VIRGIN ATLANTIC AIRWAYS LIMITED, GAMAL MAHER EMOM ALY, PAUL JOHN WESTON, and PORT AUTHORITY OF NEW YORK & NEW JERSEY, Defendants.
• Court: U.S. District Court — Southern District of New York

IMAN HARRAZ, Plaintiff, v. EGYPTAIR AIRLINES COMPANY, VIRGIN ATLANTIC AIRWAYS LIMITED,GAMAL MAHER EMOM ALY, PAUL JOHN WESTON, andPORT AUTHORITY OF NEW YORK & NEW JERSEY, Defendants.

18 Civ 12364 (ER)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

December 6, 2019

OPINION AND ORDER

Ramos, D.J.:

Before the Court is an action against two airlines, two pilots, and the Port Authority of New York and New Jersey (the "Port Authority") seeking damages for injuries allegedly suffered when the wings of two taxiing aircraft collided. Though initiated in state court, Defendants promptly removed the action to this Court. The Plaintiff, Iman Harraz, now seeks remand, claiming that removal was procedurally defective and that the Court would lack jurisdiction over the action in any event. For the reasons detailed below, the motion to remand is DENIED.

I. BACKGROUND

On the morning of November 27, 2017, Harraz was on board EgyptAir Airlines ("EgyptAir") flight 986, a passenger flight leaving John F. Kennedy International Airport ("JFK") and bound for Cairo International Airport in Egypt. Compl. ¶¶ 6, 9, 44, Doc. 12-1. All parties agree that as the plane was taxiing in preparation for takeoff, its wingtip collided with that of Virgin Atlantic Airways ("Virgin Atlantic") flight 4C, another taxiing passenger flight bound for Heathrow Airport in London. Id. ¶¶ 11, 25; Def.'s Notice of Removal 1-3, Doc. 2 (hereinafter the "Notice"); ¶ 7; EgyptAir Answer ¶ 25, Doc. 4; Port Authority Answer ¶ 25, Doc. 5; Virgin Atlantic Answer ¶ 25, Doc. 8. Harraz claims that, as a result of this collision, she sustained "severe and permanent" injuries, mental anguish, and a loss in ability to follow her regular vocation. Compl. ¶¶ 26-28.¹

On November 27, 2018, Harraz brought this action in the Supreme Court of the State of New York, Bronx County, against EgyptAir, Virgin Atlantic, EgyptAir pilot Gamal Maher Emom Aly ("Aly"), Virgin Atlantic pilot Paul John Weston ("Weston," and with Aly, the "Pilots"), and the Port Authority, seeking damages for the injuries allegedly sustained during the collision at JFK. On December 12, 2018, the action was removed to this Court on the basis of original jurisdiction, supplemental jurisdiction, and the removal provision of the Foreign Sovereign Immunities Act ("FSIA") due to the assertion that EgyptAir is an "agency or instrumentality" of Egypt. Notice 1-3.

As a technical matter, EgyptAir alone removed the action. Notice 1 ("defendant EgyptAir Airlines Company . . . by and through its attorneys, Clyde & Co US LLP ("Clyde & Co."), files its Notice of Removal to this Court . . . ."). Although the Notice avers that Virgin Atlantic and the Port Authority consented to removal, id. at 4, neither of them formally joined the Notice or explicitly confirmed EgyptAir's claim. However, both Virgin Atlantic and the Port Authority are represented by the same counsel as EgyptAir—Christopher Carlsen and Nicholas Magali of Clyde & Co. At the time that the Notice was filed, counsel had not entered an appearance on behalf of Virgin Atlantic or the Port Authority. But, on January 2, 2019, two daysafter the notice of removal was filed, the Port Authority filed their answer with this Court, listing Carlsen and Magali as their representatives. Five days later, on January 7, Virgin Atlantic did the same.

In response to EgyptAir's Notice, Harraz made the instant motion to remand for procedural defects and lack of subject matter jurisdiction. Pl.'s Mem. Supp. Mot. Remand 2-5, Doc. 13 (hereinafter "Pl.'s Mem."). Every filing in opposition to Harraz's motion was made jointly by EgyptAir, Virgin Atlantic, and the Port Authority, with Carlsen and Magali representing all three.

II. LEGAL STANDARDS

A. Removal and Remand

Federal law provides that when an action is brought in state court, defendants may remove the action to federal court in certain circumstances. Relevant here, an action may be removed if it falls within the original jurisdiction of the United States courts, 28 U.S.C. § 1441(a), or if it is brought against a foreign state, or an agency or instrumentality thereof, id. § 1441(d). General removal procedure provides that, within thirty days of effective service or receipt of initial pleadings, the defendant or defendants that wish to remove the action must file a notice of removal, including a short and plain statement of the grounds for removal, along with all process, pleadings, and orders, in "the district court of the United States for the district and division within which such action is pending . . . ." Id. § 1446(a), (b). All defendants properly joined and served must join the notice or consent to removal. Id. § 1446(c).

Once a defendant has filed his notice, the plaintiff may contest removal by filing a motion to remand. Id. § 1447(c). Removal may be challenged on a number of grounds, two of which are at issue here. First, if the court lacks clear subject matter jurisdiction, then it cannot consider theaction. Pan Atl. Grp., Inc. v. Republic Ins. Co., 878 F. Supp. 630, 638 (S.D.N.Y. 1995) ("Where federal jurisdiction on removal is doubtful, the action should be remanded."); see also Doe v. Zucker, No. 17 Civ. 1005 (GTS) (CFH), 2018 WL 3520422, at *4 (N.D.N.Y. July 20, 2018) (collecting cases). Second, failure to adhere to the relevant removal procedures warrants but does not require remand. Burr ex rel. Burr v. Toyota Motor Credit Co., 478 F. Supp. 2d 432, 437 (S.D.N.Y. 2006) (noting that defects in removal procedure are not jurisdictional issues triggering mandatory remand). In the face of a motion to remand, the burden falls on the defendant to demonstrate that removal is procedurally and jurisdictionally sound. Id. (citing Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000)).

Generally, there is a presumption against removal, and uncertainties tend to weigh in favor of remand. In re Village of Kiryas Joel, No. 11 Civ. 8494 (ER), 2012 WL 1059395, at *2 (S.D.N.Y. Mar. 29, 2012) (citing Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 274 (2d Cir. 1994)). However, that presumption may be overcome in certain circumstances, and numerous courts have denied remand even where the notice of removal was procedurally defective on its face. See, e.g., Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927 (8th Cir. 2012) (declining rigid enforcement of technical removal procedures); Zucker, 2018 WL 3520422, at *5 (denying remand for what amounted to a technical defect) (citing Esposito v. Home Depot, Inc., 590 F.3d 72 (1st Cir. 2009) (refusing to create a "wooden rule" on whether to remand for procedural defects)); Dunlop v. City of New York, No. 6 Civ. 433 (KMK), 2006 WL 2853972, at *2-3 (S.D.N.Y. Oct. 4, 2006) (same).

B. Jurisdiction

Two forms of jurisdiction are relevant to this motion. First, district courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the UnitedStates." 28 U.S.C. § 1331. Because the longstanding "well-pleaded complaint" rule applies in the removal context, there must be a jurisdictional basis for removal on the face of the plaintiff's complaint. Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826 (2002); Great N. Ry. Co. v. Alexander, 38 S. Ct. 237 (1918). However, the burden of establishing jurisdiction falls ultimately on the party invoking removal, and courts "look only to the jurisdictional facts alleged in the Notice of Removal," and, to the extent that they fall within the scope of that notice, any arguments made in response to a motion to remand. Backer v. Cooperatieve Rabobank U.A., 338 F. Supp. 3d 222, 231-32 (S.D.N.Y. 2018) (citing Dexia SA/NV v. Bear, Stearns & Co., Inc., 945 F. Supp. 2d 426, 429 (S.D.N.Y. 2013)).

Second, when a court has original jurisdiction over some claims in an action, it may also exercise supplemental jurisdiction over all remaining claims, subject to the requirement that they "form part of the same case or controversy." 28 U.S.C. § 1367(a). The central inquiry is whether the two sets of claims "arise from a common nucleus of operative fact," such that a plaintiff would ordinarily be expected to try them all in a single proceeding. Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 245 (2d Cir. 2011); Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 704 (2d Cir. 2000). Where the requisites of § 1367(a) are satisfied, a court may only decline supplemental jurisdiction if it is statutorily required, see § 1367(b) (restricting the exercise of supplemental jurisdiction when premised on diversity jurisdiction), or if they have the discretion to do so:

The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if—

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

28 U.S.C. § 1367(c) (emphasis added); see also Shahriar, 659 F.3d at 245 ("the discretion to decline supplemental jurisdiction is available only if founded upon an enumerated category of subsection 1367(c)." (quoting Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 422, 488 (2d Cir. 1998)). If, however, original jurisdiction is lacking, supplemental jurisdiction may not form an independent basis of jurisdiction over those claims for the purposes of removal. See Port Auth. of N.Y. & N.J. v. Allianz Ins. Co., 443 F. Supp. 2d 548 (S.D.N.Y. 2006).

III. DISCUSSION

Harraz urges this Court to remand the instant action on two distinct grounds. First, Harraz argues that the notice of removal ("Notice") lacked the unanimous consent of all Defendants and was thus procedurally defective. Pl.'s Mem. 2-3 (asserting that Pilots did not consent); ...