In re Aircrash Disaster Near Roselawn, Indiana

Decision Date17 November 1995
Docket NumberNo. 95 C 4593.,95 C 4593.
Citation909 F. Supp. 1083
PartiesIn re AIRCRASH DISASTER NEAR ROSELAWN, INDIANA ON OCTOBER 31, 1994.
CourtU.S. District Court — Northern District of Illinois

COPYRIGHT MATERIAL OMITTED

Robert L. Alpert, Chapel Hill, NC, Jerold S. Solovy, Anton R. Valukas, Sidney J. Scheukier, Jenner & Block, Chicago, Illinois, Charles W. Douglas, Sara J. Gourley, Sheila A. Sundvall, Sidley & Austin, Chicago, Illinois, for: American Eagle, Simmons Airlines, Inc., AMR Eagle, Inc. AMR Leasing Corporation, and Robert H. Mittelman.

Michael P. Connelly, Thomas F. Tobin, Connelly & Schroeder, Chicago, Illinois, Stephen C. Johnson, Hugh Richard Koss, Lillick & Charles, San Francisco, California, for: Avions de Transport Regional; ATR Support, Inc., and ATR Marketing, Inc.

Richard Palmer, Wildman Harrold Allen & Dixon, Chicago, Illinois, for Honeywell, Inc.

Robert E. Bennett, Robert E. Bennett & Associates, Chicago, Illinois, for: Plaintiffs, Sithole and Dhlamini (Masilo).

James T. Crouse, Speiser, Krause, Madole & Mendelsohn, San Antonio, Texas, for: Plaintiffs, Begeny, Bonneau, Bramley, Elam (Readings), Griffo, LaRoche, Robitaille and Wright.

Kevin P. Durkin & Robert A. Clifford, Clifford Law Offices, Chicago, Illinois, for: Plaintiffs MacKenzie (Tweedie), DeMarco, Guba, Modaff, Snyder and Thompson.

Michael K. Demetrio & Thomas A. Demetrio, Corboy & Demetrio, P.C., Chicago, Illinois, for: Plaintiffs Bailenson, Spencer, MacDonald, Melamed (Johnson), Parmar, Sjoberg, Cunningham, and Dwyer.

James P. Kreindler, Kreindler & Kreindler, New York City, for: Plaintiffs, Droy and MacMillin, Stackhouse, Sayles Grimberg decedents (Fla.).

Kevin M. Forde, Kevin M. Forde, Ltd., Chicago, Illinois, for: Plaintiff, Fulle.

Martin E. Klein, Law Offices of Martin E. Klein, Chicago, Illinois, for: Plaintiff, Harast (Patrick Henry).

John R. Leach, O'Quinn, Kerensky, McAninch & Laminack, Houston, Texas, for: Plaintiff, Holberg.

William F. Maready & T.C. Comerford, Robinson, Maready, Lawing & Comerford, LLP., Winston-Salem, North Carolina, for: Plaintiffs Anglemeyer and Shellberg.

Clifford M. Panek, Parrillo, Weiss & O'Halloran, Chicago, Illinois, for: Plaintiff, Calderon.

Michael F. Pezzulli, Pezzulli & Associates, Dallas, Texas, for: Plaintiffs, Ramm and Leech.

Donald L. Salem, Law Offices of D.L. Salem, San Diego, California, for: Plaintiff Ganong.

David Ian Katzman, Wilson & Katzman, Schaden, Wilson & Katzman, Broomfield, Colorado, for: Plaintiffs, Kim (Ko), Ramm and Leach.

Michael L. Slack, Slack & Davis, L.L.P., Austin, Texas, for: Plaintiff, Buck (Tribble).

Herbert F. Stride, Stride, Craddock & Stride, Chicago, Illinois, William J. Harte, William J. Harte, Ltd., Chicago, Illinois, for: Plaintiff, Ernst.

Gerard R. Lear, Speiser, Krause, Madole & Lear, Rosslyn, Virginia.

Terry O'Reilly, Law Offices of O'Reilly & Collins, Menlo Park, California.

Donald Nolan & Bill Jovan, Chicago, IL, for Severin, Moore, Cunningham, W Thomas P. Meehan, Sherman, Meehan & Curtin, P.C., Washington, DC, for Robert Holberg.

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

On October 31, 1994, while in a holding pattern for its approach to O'Hare International Airport, American Eagle Flight 4184 from Indianapolis, Indiana to Chicago, Illinois crashed near Roselawn, Indiana. Tragically, all 64 passengers and the 4 crew members aboard the flight were killed. Today, this Court finds that it has jurisdiction to preside over the numerous actions arising out of the crash of Flight 4184 that are presently pending on this Court's docket.1 Of these 32 actions, 21 were originally filed in the Circuit Court of Cook County, Illinois (we shall refer collectively to these actions as the state court actions). Thereafter, Avions de Transport, Regional, G.I.E. ("ATR"), which is named in all the cases either as a defendant or a third-party defendant, removed the state court actions to federal court pursuant to 28 U.S.C. § 1441(d).2 The plaintiffs in the state court actions now move to remand the cases back to the Circuit Court of Cook County. For the reasons that follow, plaintiffs' motion to remand is denied.

BACKGROUND

The plaintiffs in these related actions are representatives of the estates of the crash victims. The named defendants are the airline and related entities (the "AMR defendants") as well as—in most cases—ATR and entities related to it.3 In a very small minority of cases, only the airline and related entities are named as defendants, with ATR brought in to the action as a third party defendant. ATR allegedly manufactured the ATR72-210 aircraft involved in the crash.

ATR removed these actions from state court contending that it is a "foreign state" as that term is defined by the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602 et seq. ("the FSIA" or "the Act"). ATR's removal petitions state in pertinent part:

This Court would have, and does have, original subject matter jurisdiction over this action under the provisions of 28 U.S.C. sections 1330 and 1331 in that ATR, at all relevant times, was, and is, a "foreign state" as defined in 28 U.S.C. section 1603 (Foreign Sovereign Immunities Act). ATR was, and is, a separate legal person, the majority of whose shares or other ownership interest were, and are, owned by the governments of the counties of France and Italy, it was not, and is not, a citizen of any of these United States, nor was it created under the laws of any third country.

ATR's Petition for Removal in Severin v. American Eagle, No. 95 C 252 ¶ 3; see also ATR's Petition for Removal in Spencer v. AMR Corp., No. 95 C 629 ¶ 2. (These particular petitions are cited as representative exemplars of ATR's removal petitions filed in all of the state court actions.)

As evidence of its corporate structure and ownership, ATR has submitted the declaration of its Corporate Secretary, Francesco Paolo Giobbe. Giobbe states that ATR is an entity formed under French law, is not constituted under the laws of any other country, and is not incorporated in any state of the United States. Giobbe Decl. ¶¶ 2, 3. Giobbe further states that at least 65% of ATR's shares are owned by the governments of France and Italy. Id. ¶ 3. Specifically, Giobbe attests that:

Fifty percent (50%) of the shares of ATR are owned by the French government national aerospace concern, Société Nationale Industrielle Aerospatiale ("SNIA"). SNIA, in turn, is majority (91.42%) owned by the French government. Of the French government's 91.42% ownership interest, 62.16% is owned directly. Another 20% is owned by SOGEPA (a 100% owned holding entity of the French Government). Another 17.81% is owned through Crédit Lyonnais. Crédit Lyonnais is itself 52% owned by the French Government.
The other fifty percent (50%) of the shares of ATR are owned by Alenia. Alenia is a division of Finmeccanica S.p.A. Finmeccanica is the Italian government national aerospace concern, and is majority, minimum sixty-two (62%), owned by I.R.I.4 (a 100% owned holding entity of the Italian government).

Id. ¶¶ 4, 5.

ATR has also submitted the declarations of Roberto Camiz, Alenia's Legal Counsel, and Philippe Simon, Deputy General Counsel for SNIA. Camiz states that Alenia is formed under Italian law, is not constituted under the laws of any other country, and is not incorporated in any state of the United States. Camiz Decl. ¶ 2. Camiz' declaration repeats the ownership information concerning Alenia contained in Giobbe's declaration and adds that Finmeccanica is "an Italian government national industrial concern acting in the aerospace field through Alenia," is formed under Italian law, is not constituted under the laws of any other country and is not incorporated in any state of the United States. Id. ¶ 3. Similarly, Simon's declaration states that SNIA, SOGEPA, and Crédit Lyonnais are "separate juridical entities formed under French law." Simon Decl. ¶¶ 3, 4. Simon's declaration repeats the ownership information concerning SNIA contained in Giobbe's declaration and confirms that SNIA "is the French government national aerospace concern." Id. ¶ 2.

Plaintiffs contest ATR's invocation of the FSIA, arguing principally that ATR's ownership structure does not entitle it to "foreign state" status under the Act. Specifically. plaintiffs contend that ATR's connection to its foreign state ownership interests is achieved through both "pooling" and "tiering" of such interests and that the FSIA does not recognize such mechanisms for purposes of determining whether an entity may be considered a foreign state under the Act. Plaintiffs also raise several Seventh Amendment objections to ATR's invocation of the Act.

ANALYSIS

Plaintiffs' motion to remand requires this Court to wrestle with the vague and circuitous language of the FSIA. Federal courts that have had the opportunity to interpret the FSIA have remarked on its user-unfriendly nature with some frequency. See e.g., Vencedora Oceanica Navigacion, S.A. v. Compagnie Nationale Algerienne De Navigation (C.N.A.N.), 730 F.2d 195, 205 (5th Cir.1984) ("The FSIA presents a peculiarly twisted exercise in statutory construction."); Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 302 (2d Cir.1981) (referring to the FSIA as a "vaguely worded statute"), cert. denied, 454 U.S. 1148, 102 S.Ct. 1012, 71 L.Ed.2d 301 (1982); Gibbons v. Udaras na Gaeltachta, 549 F.Supp. 1094, 1106 (S.D.N.Y.1982) (referring to the FSIA as "remarkably obtuse"). Indeed, in Udaras, the court described the FSIA as "a six-year-old labyrinth that, owing to the numerous interpretive questions engendered by its bizarre structure and its many deliberately vague provisions, has during its brief lifetime been a financial boon for the private bar but a constant bane of the federal judiciary." 549 F.Supp. at 1105. Although the foregoing remarks have been elicited by provisions of the FSIA other than those we confront in the instant case, we find them no...

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