Mignogna v. Sair Aviation, Inc.

• Decision Date: 09 February 1988
• Docket Number: No. 87-CV-1281.,87-CV-1281.
• Citation: 679 F. Supp. 184
• Parties: James MIGNOGNA, Plaintiff, v. SAIR AVIATION, INC., Exxon Corporation, Mooney Aircraft Corporation, Hancock Field Aero Club, and General William D. Stewart, Defendants. MOONEY AIRCRAFT CORPORATION, Third-Party Plaintiff, v. UNITED STATES of America, Shaw Aero Devices, Inc., and Kingston Flying Club, Third-Party Defendants.
• Court: U.S. District Court — Northern District of New York

679 F. Supp. 184

James MIGNOGNA, Plaintiff, v. SAIR AVIATION, INC., Exxon Corporation, Mooney Aircraft Corporation, Hancock Field Aero Club, and General William D. Stewart, Defendants.

MOONEY AIRCRAFT CORPORATION, Third-Party Plaintiff, v. UNITED STATES of America, Shaw Aero Devices, Inc., and Kingston Flying Club, Third-Party Defendants.

No. 87-CV-1281.

United States District Court, N.D. New York.

February 9, 1988.

F. Lee Bailey and Aaron Broder, New York City (G. Michael Simmon and Michael C. Zwal, of counsel), for plaintiff.

Greene, Hershdorfer & Sharpe, Syracuse, N.Y. (Hilbert I. Greene, of counsel), for defendant Sair Aviation, Inc.

Hiscock & Barclay, Syracuse, N.Y. (Robert A. Barrer, of counsel), and McBreen & McBreen, Chicago, Ill., for defendant and third-party plaintiff Mooney Aircraft.

MacKenzie Smith Lewis Michell & Hughes, Syracuse, N.Y. (Jay W. Wason, Jr., of counsel), for defendant Stewart.

Torts Branch, Civil Div., U.S. Dept. of Justice, Washington, D.C. (Daniel Reich, of counsel).

Hon. Frederick J. Scullin, Jr., U.S. Atty., N.D.N.Y., Syracuse, N.Y. (William H. Pease, Asst. U.S. Atty., of counsel).

John M. Downing & Associates, P.C., New York City (John M. Downing, of counsel), for third-party defendant Shaw Aero Devices, Inc.

Sands, Gay & Kemp, Kingston, Ontario, Canada (Wayne C. Gay, of counsel), for third-party defendant Kingston Flying Club.

MEMORANDUM-DECISION AND ORDER

MUNSON, Chief Judge.

This action raises a number of interesting and difficult questions regarding Congress' recent abrogation of the long-established derivative jurisdiction doctrine when subsection (e) was added to the general removal statute, 28 U.S.C. § 1441. Unfortunately, because this case was improvidently removed, this court lacks the jurisdiction to entertain these questions at this time.¹

Plaintiff was injured when the single-engine airplane he was piloting crashed at the Burlington, Vermont International Airport on September 24, 1983. On March 22, 1985, plaintiff commenced this action sounding in tort in New York State Supreme Court, Onondaga County, against General William D. Stewart, the owner of the plane, Mooney Aircraft Corporation ("Mooney"), the manufacturer of the plane, Sair Aviation, Inc., which sold fuel to plaintiff on the day of the accident, and the Hancock Field Aero Club ("Aero Club"), to whom the plane had been leased by General Stewart. The Aero Club, now defunct, was an instrumentality of the United States at the time of the accident. See 5 U.S.C. § 2105(c); 10 U.S.C. § 9779(c). On August 26, 1985, the United States removed the action to this court, and in a written decision dated March 6, 1986, plaintiff's claim against the Aero Club was dismissed for failure to file an administrative claim with the United States Air Force, as required by the Federal Tort Claims Act ("FTCA"). 28 U.S.C. § 2675(a). The case was then remanded to state court. Mignogna v. Sair Aviation, Inc., No. 85-CV-1158 (N.D.N.Y. March 6, 1986) available on WESTLAW, 1986 WL 20587.

On August 24, 1987, defendant Mooney commenced a third-party action for contribution against the United States and two other private parties. Under the FTCA, the United States may "be impleaded as a third-party defendant and held to answer the claim of a joint tortfeasor for contribution as if the United States were a private individual." United States v. Yellow Cab Co., 340 U.S. 543, 544, 71 S.Ct. 399, 401, 95 L.Ed. 523 (1951); see also Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 198, 103 S.Ct. 1033, 1038, 74 L.Ed.2d 911 (1983); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 669-70, 97 S.Ct. 2054, 2056-57, 52 L.Ed.2d 665 (1977). The federal courts are given exclusive jurisdiction over claims arising under the FTCA. 28 U.S.C. § 1346(b). On September 17, 1987, the United States again removed this action to this court, purportedly pursuant to 28 U.S.C. § 1442(a), and moved to dismiss the third-party complaint against it pursuant to Fed.R.Civ.P. 12(b)(1). The Government argues that the derivative jurisdiction doctrine still controls this case, and that since the state court lacked jurisdiction over Mooney's third-party claim, this court acquired no jurisdiction upon removal. See, e.g., Lambert Run Coal Co. v. Baltimore & Ohio R. Co., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922). Mooney cross-moved to remand this case to state court, but subsequently withdrew its cross-motion. The court will nonetheless address the propriety of removal of this action, since the subject-matter jurisdiction of the court is implicated. See Gainesville v. Brown-Crummer Investment Co., 277 U.S. 54, 59, 48 S.Ct. 454, 455-56, 72 L.Ed. 781 (1928) (issue of federal court's jurisdiction over removed action cannot be waived); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908) (federal courts have fundamental duty to consider question of subject matter jurisdiction, even if jurisdictional issue is not raised by parties); Republic of Philippines v. Marcos, 806 F.2d 344, 352 (2d Cir.1986) (same), cert. denied, ___ U.S. ___, 107 S.Ct. 2178, 95 L.Ed.2d 835 (1987).

At issue is whether and under what circumstances the United States, drawn into a personal injury action in state court on a third-party contribution claim under the FTCA, may remove the action to federal court when the federal court lacks jurisdiction over the original claim. In its removal petition, the United States relied solely on 28 U.S.C. § 1442(a). Section 1442(a) allows the removal of any action brought in state court against "any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office," 28 U.S.C. § 1442(a)(1), against any "property holder whose title is derived from any such officer, where such action or prosecution affects the validity of any law of the United States," id. § 1442(a)(2), or against any federal judicial or legislative officer for any act committed in the discharge of his official duties. Id. § 1442(a)(3) & (4). By its terms, § 1442 is not applicable when the United States itself, rather than one of its officers, is the named party in state court seeking removal to federal court. See, e.g., New England Explosives Corp. v. Maine Ledge Blasting Specialist, Inc., 542 F.Supp. 1343, 1346 n. 4 (D.Me.1982); State of New Mexico ex rel. Reynolds v. United States, 408 F.Supp. 1029, 1030 (D.N.M. 1975); cf. Lance International, Inc. v. Aetna Casualty & Surety Co., 264 F.Supp. 349, 355-56 (S.D.N.Y.1967) (plain language of § 1442(a)(1) limits right to remove to an "officer" or "person acting under him," and does not extend removal right to Government corporations).

The Government's failure to make reference to an applicable removal provision in its removal petition is not fatal, however, but instead is merely a technical defect, since all that is required in a petition for removal is "a short and plain statement of the facts which entitle the petitioner to removal." 28 U.S.C. § 1446(a); Harlem River Produce Co. v. Aetna Casualty & Surety Co., 257 F.Supp. 160, 163-64 (S.D.N.Y.1965); cf. White v. Wellington, 627 F.2d 582, 587 (2d Cir.1980) (petition to remove "is analogous to a pleading," and "shall be so construed as to do substantial justice." (quoting Rule 8(f), Fed.R.Civ.P.)). Consequently, the court will address whether the Government could properly remove this action pursuant to the general removal statute, 28 U.S.C. § 1441.

The pertinent provisions of § 1441 are as follows:

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.

28 U.S.C. § 1441. Section 1441 is a jurisdictional statute, and as such the court may not hazard beyond a reasonable construction of its terms to find a basis for removal. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941).

The courts are sharply divided on the question of whether a third-party defendant may utilize the removal provisions of § 1441. A majority of courts have adopted the view that "the absence of federal jurisdiction over the main claim is not remedied by the commencement of an ancillary third-party claim as to which federal jurisdiction would exist if asserted in an independent action." Harris v. G.C. Services Corp., 651 F.Supp. 1417, 1418-19 (S.D.N.Y.1987); see also Thomas v. Shelton, 740 F.2d 478, 488 (7th Cir.1984) (Posner, J.) ("We think that section 1441(c) does not authorize removal by third-party defendants in general or by the United States in particular," at least "in the broad run of cases"); Crawford v. Hospital of Albert Einstein College of Medicine, 647 F.Supp. 843, 846 (S.D.N.Y.1986); Elsis v. Hertz Corp., 581 F.Supp. 604, 608 (E.D.N. Y.1984); Share v. Sears, Roebuck & Co., 550 F.Supp. 1107, 1108-09 (E.D.Pa.1982); Continental Resources & Mineral Corp....