In re Air Crash Disaster at Gander, Newfoundland

• Citation: 660 F. Supp. 1202
• Decision Date: 20 April 1987
• Docket Number: MDL No. 683.
• Court: United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
• Parties: In re AIR CRASH DISASTER AT GANDER, NEWFOUNDLAND ON DECEMBER 12, 1985.

660 F. Supp. 1202

In re AIR CRASH DISASTER AT GANDER, NEWFOUNDLAND ON DECEMBER 12, 1985.

MDL No. 683.

United States District Court, W.D. Kentucky, Paducah Division.

April 20, 1987.

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Stanley M. Chesley, Waite, Schneider, Bayless & Chesley, Cincinnati, Ohio, Lee S. Kriendler, Kreindler & Kreindler, New York City, Paul D. Welker, Clarksville, Tenn., Geneva F. Parris, Futrell, Hopson & Parris, Cadiz, Ky., for plaintiffs.

John J. Martin, Bigham, Englar, Jones & Houston, New York City, for defendants.

Edward H. Stopher, Boehl, Stopher, Graves & Deindoerfer, Louisville, Ky., John J. Martin, Bigham, Englar, Jones & Houston, New York City, and Albert R. Vermeire, Monbleau, Vermeire & Turley, P.C., Phoenix, Ariz., for Arrow Air and Batch Air, Inc.

Barry L. Davis, Thornton, David & Murray, P.A., and Harry Weisberg, Miami, Fla., for Arrow Air, Batch Air, Intern. Air Leases and Jane Griffin.

Michael R. Gallagher, Gallagher, Sharp, Fulton & Norman, Cleveland, Ohio, for Arrow Air, Intern. Air Leases, Inc. and John Doe No. 1, 2 and 3.

Leonard E. Nagi, Zamplas, Paskin, Nagi, Baster, Johnson & Walker, P.C., Detroit, Mich., Scott W. Pink and Michael R. Marron, Marron, Reid & Sheehy, San Francisco, Cal., for Arrow Air, Batch Air and Intern. Air Leases, Inc.

R.K. Christovich, New Orleans, La., Robert F. Ruckman, H. Dudley Chambers, David T. Moran and Bryan C. Collins, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, Tex., Larry S. Kaplan and James F. Murphy, Conklin & Adler, Ltd., Chicago, Ill., J. Grant McCabe, III, Philadelphia, Pa., Michael Penick, Boehl, Stopher, Graves & Deindoerfer, Paducah, Ky., Robert W. Wilson, Evans & Dixon, Edwardsville, Ill., Samuel H. Franklin and Norman Jetmundsen, Jr., Bradley, Arant, Rose & White, Birmingham, Ala., William A. Pietragallo, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., Richard F. Allen and David T. Hunter, Lane, Powell, Moss & Miller, Seattle, Wash., Russell B. Holloway and A. Scott Johnson, Holloway, Dobson, Hudson & Bachman, Oklahoma City, Okl., for Arrow Air, Inc.

Richard C. Roberts and E.F. Straub, Whitlow, Roberts, Houston & Russell, Paducah, Ky., Stephen C. Kenney, Roland R. Stevens and Thomas M. Frieder, Fisher & Hurst, San Francisco, Cal., Fred Meyers and Denny Walters, Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Seattle, Wash., Robert Beshears, O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix, Ariz., John R. Muth, Miller, Johnson, Snell & Cummiskey, Grand Rapids, Mich., and Tom Frieder, Fisher & Hurst, San Francisco, Cal., for World Airways, Inc.

William T. Warner, Confliff, Sandmann, Gorman & Sullivan, Louisville, Ky., Michael B. McKinnis and Terrence J. O'Toole, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., Steven M. Edwards, Davis, Markel, Dwyer & Edwards, New York City, Norman J. Barry and Daniel Cummings, Rothschild, Barry & Myers, Chicago, Ill., and Robert J. Dwyer, Bryan, Cave, McPheeters & McRoberts, New York City, for McDonnell Douglas Corp.

Diego A. Ramos, San Juan, P.R., for Associated Aviation Underwriters.

Curtis, Mallet-Prevost, Colt & Mosle, New York City, Edgar A. Zingman and Robert C. Ewald, Wyatt, Tarrant & Combs, Louisville, Ky., for Pratt Whitney Group.

MEMORANDUM OPINION

JOHNSTONE, Chief Judge.

This matter is before the court upon Arrow Air Corporation's, Batch Air Corporation's, and World Air Incorporated's Motions to Dismiss for lack of in personam jurisdiction. Plaintiffs claim both diversity jurisdiction, 28 U.S.C. § 1332, and federal question jurisdiction under 28 U.S.C. § 1331.

FACTS

This litigation was precipitated by the crash of Flight 950, a McDonnell-Douglas DC-8, owned by Arrow Air Corporation and chartered by the Multinational Force and Observers (the MFO). At the time of its crash, Flight 950 was transporting two hundred and forty-eight members of the 3rd Batallion 503d Infantry 101st Airborne Division from active duty in the Middle East to Fort Campbell, Kentucky. All passengers and crew aboard were killed in the crash.

After the crash, over fifty Complaints seeking damages for wrongful death were filed in the United States District Court for the Western District of Kentucky against Arrow Air Corporation (Arrow), Batch Air Corporation (Batch), and World Airways Incorporated (World). The Complaints allege that Arrow operated the accident aircraft, and that Batch and World serviced and maintained it. Pursuant to the Judicial Panel on Multidistrict Litigation's Order of April 10, 1986, 633 F.Supp. 50, all of these actions were consolidated in MDL # 683 with actions transferred from other jurisdictions.

I. LONG ARM JURISDICTION OVER ARROW

Plaintiffs brought this action¹ pursuant to 28 U.S.C. § 1332. Accordingly, this court must look to the law of Kentucky, particularly the Kentucky long arm statute, KY.REV.STAT. § 454.210 (hereinafter referred to as K.R.S.),² to determine whether there is personal jurisdiction over the defendants. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The defendants contest the assertion of jurisdiction over them pursuant to the Kentucky long arm statute on three basic grounds: 1) the defendants neither acted nor caused injury "in" Kentucky, 2) the plaintiffs' claims do not "arise from" the defendants' acts in Kentucky, and 3) the defendants do not have sufficient "minimum contacts" with Kentucky such that it would be fair and reasonable under due process to exercise jurisdiction over them.

A. Statutory Analysis

Defendant Arrow contends that one must begin the analysis of an assertion of in personam jurisdiction with a review of the relevant long arm statute. Davis H. Elliot Co. v. Caribbean Utilities Co., 513 F.2d 1176 (6th Cir.1975). According to Arrow's review of the Kentucky long arm statute, none of its activities fall within any of the actions enumerated in K.R.S. § 454.210(2)(a) which give rise to jurisdiction in Kentucky. Defendant Arrow argues that that if its actions cannot be pigeonholed into one of the subsections of 454.210(2)(a), that this court has no jurisdiction over it regardless of whether constitutional due process would permit the exercise of jurisdiction.

The court declines to follow Arrow's method of analyzing the Kentucky long arm statute. The determination of the reach of the Kentucky long arm statute and the reach of due process are one in the same. Handley v. Indiana & Michigan Electric Co., 732 F.2d 1265, 1268-1270 (6th Cir.1984); First National Bank of Louisville v. J.W. Brewer Tire Co., 680 F.2d 1123, 1125 (6th Cir.1982); Poyner v. Erma Werke GMBH, 618 F.2d 1186, 1188 (6th Cir.1980); Mohler v. Dorado Wings, Inc., 675 S.W.2d 404 (Ky.Ct.App.1984). Accordingly, the Kentucky statute is measured in whole and in part by the extent of due process.

B. Acts "in this Commonwealth"

The defendants argue that the assertion of long arm jurisdiction over them is improper because the defendants did not act "in" Kentucky. Defendants' argument is grounded upon the premise that their actions on Fort Campbell were not "in" Kentucky for the purposes of Kentucky jurisdiction.

Fort Campbell is a military enclave situated partly within the confines of the state of Kentucky and partly within the confines of the state of Tennessee.³ The Kentucky portion of Fort Campbell was created in the early 1940's by condemnation or purchase, and not by special cession of the Kentucky legislature.⁴ Arrow claims that under the Kentucky law in existence at the time of Fort Campbell's creation,⁵ and Article I, section 8, clause 17, of the United States constitution,⁶ Kentucky ceded exclusive jurisdiction over the area comprising Fort Campbell to the United States. As a result of this cession, Arrow claims that the Kentucky courts do not have any jurisdiction over the persons or activities carried out at Fort Campbell, and that the laws of the Commonwealth of Kentucky are without effect in that enclave except to the extent those laws have been adopted as the federal law of the enclave or as otherwise authorized by Congress. Accordingly, the defendants conclude that any transactions between them and persons on Fort Campbell were not "in" Kentucky within the meaning of K.R.S. § 454.210(2)(a).

Article I, section 8, clause 17 of the Constitution grants Congress the power of "exclusive Legislation" over federal enclaves. U.S. CONST., art. I, § 8, cl. 17. Defendants contend that the assumption of jurisdiction over Fort Campbell under this section of the Constitution precludes an action in a Kentucky court as to matters occurring on the grounds of Fort Campbell. The court cannot agree. "Nothing inherent in exclusive federal sovereignty over a territory precludes a state court from entertaining a personal injury suit concerning events occurring in the territory and governed by the federal government." Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 101 S.Ct. 2870, 2877, 69 L.Ed.2d 784 (1981); Ohio River Contract Co. v. Gordon, 244 U.S. 68, 37 S.Ct. 599, 601, 61 L.Ed. 997 (1917). Moreover, state courts routinely exercise subject matter jurisdiction over civil cases arising from events in other states. The fact "that the location of the event giving rise to suit is an area of exclusive federal jurisdiction rather than another State, does not introduce any new limitation on the forum State's subject matter jurisdiction." Gulf Offshore 101 S.Ct. at 2877.

This is not to say that the states may exercise long arm jurisdiction over parties acting within a federal enclave in every case. If the United States has assumed exclusive jurisdiction over territory, and there is a conflict between the federal government's exercise of territorial sovereignty and the exercise of jurisdiction by the state, the state must give way. U.S. CONST., art. VI, cl. 2. Absent an actual conflict however,

the fiction of a state within a state can have no validity to prevent the state from exercising its

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