Nolan v. Boeing Co.
| Decision Date | 27 December 1990 |
| Docket Number | No. 89-3793,89-3793 |
| Citation | 919 F.2d 1058 |
| Parties | Kenneth P. NOLAN, As Administrator of the Estate of Jean Johnson, et al., Plaintiffs-Appellants, v. The BOEING COMPANY, Defendant-Third Party Plaintiff-Appellee. GENERAL ELECTRIC COMPANY and CFM International, Inc., Defendants-Appellees, v. SOCIETE NATIONALE d'ETUDE et de CONSTRUCTION de MOTEURS d'AVIATION, S.A., Third-Party Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Stephen B. Murray, C. Joseph Murray, M. Allyn Stroud, Murray Law Firm, New Orleans, La., Charles F. Krause, James Teague Crouse, Speiser, Krause & Madole, San Antonio, Tex., for Kenneth P. Nolan, et al.
Howard J. Daigle, Jr., Anita M. Warner, Keith Gerrard, Richard Coyle, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for Boeing Co.
Kenneth H. Laborde, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, La., for General Elec. Co., CFM Intern. and Societe Nationale.
Randal R. Craft, Jr., Haight, Gardner, Poor & Havens, New York City, for Societe Nationale.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before GARZA, JOLLY, and JONES, Circuit Judges.
The principal questions presented for decision here are: (1) the scope, indeed the existence, of pendent party jurisdiction under the removal provision of the Foreign Sovereign Immunities Act, 28 U.S.C. Sec. 1441(d); (2) the effect on third-party removal of a state court order separating the third party claims from those in the main action for purposes of trial; (3) the right to conduct discovery for purposes of proving collusion to create federal subject matter jurisdiction; and (4) the applicability of forum non conveniens to a case removed from a jurisdiction that does not recognize that doctrine. The complex procedural course that preceded this appeal empirically validates the construction of the removal provision of the Foreign Sovereign Immunities Act that we adopt. We affirm the district court's determination that, although it had subject matter jurisdiction over the parties' claims, the claims were properly dismissed on grounds of forum non conveniens.
This case arises out of the crash of a Boeing 737-400 aircraft en route from London, England to Belfast, North Ireland. The aircraft was operated and maintained by British Midland Airways (BMA), a United Kingdom (U.K.) corporation. Virtually all the passengers carried by the aircraft were U.K. subjects or residents; none of them were American citizens or residents. Notwithstanding the passengers' foreign citizenship, the plaintiffs are Kenneth P. Nolan and Vernon T. Judkins, American attorneys who were appointed administrators, curators, and/or tutors of the 225 persons (or family members of persons) injured or killed in the accident. 1
Nolan and Judkins commenced this action on April 12 and 13, 1989 by filing sixteen separate personal injury suits in Louisiana state court. 2 Named as defendants were the Boeing Company, the designer and manufacturer of the aircraft; General Electric Company (GE), the designer and manufacturer of portions of the aircraft's engines; and CFM International, Inc. (CFMI), a participant in the marketing of the aircraft's CFM56-3C-1 engines. On May 11, the defendants removed all sixteen cases to the United States District Court for the Eastern District of Louisiana on grounds of diversity jurisdiction. 28 U.S.C. Sec. 1332. The plaintiffs sought remand, claiming lack of complete diversity among the parties.
Boeing is a Delaware corporation with its principal place of business in the State of Washington; CFMI is a Delaware corporation with its principal place of business in Ohio; and GE is a New York corporation with its principal place of business in New York. Nolan and Judkins, the plaintiffs' appointed representatives, are citizens and residents of New York and Washington, respectively. As the plaintiffs admitted, their sole reason for appointing domiciliaries of those states to act as administrators was to avoid diversity of citizenship and prevent the removal of their actions to federal court. Bound at that time to recognize the citizenship of the plaintiff's appointed representatives for diversity purposes, 3 the federal district court granted plaintiffs' motion to remand the cases to state court.
Back in state court, the judge scheduled a status conference at which Boeing obtained leave to file third-party demands for contribution and indemnity against Societe Nationale d'Etude et de Construction de Moteurs d'Aviation, S.A. (SNECMA), a concern owned by the French government that manufactured the aircraft's engines. Engine malfunction or pilot error are prime suspects as the cause of the crash.
Two days later, the plaintiffs arranged, in an ex parte proceeding, for the state judge to "sever" Boeing's third-party demands against SNECMA from the principal actions. Each case, however, remained as one action with one docket number.
On August 17, 1989, SNECMA removed these sixteen civil actions to federal district court pursuant to 28 U.S.C. Sec. 1441(d) and relevant provisions of the Foreign Sovereign Immunities Act of 1976 (FSIA). SNECMA, as a commercial entity owned by a foreign sovereign, is authorized to insist upon the protection afforded by the FSIA. The plaintiffs immediately filed another motion to remand, urging that, at best, SNECMA's actions resulted only in the removal of the third-party demands, not removal of the actions in their entirety. Alternatively, the plaintiffs requested discovery on two jurisdictional issues: whether Boeing's third-party demand against SNECMA was a product of improper collusion filed solely for purposes of creating removal jurisdiction; and whether the federal court lacked subject matter jurisdiction over the entire case because SNECMA was immune from suit in the United States under the FSIA. The district court, consolidating the actions, rejected the plaintiffs' motions.
Following the district court's order denying remand, Boeing moved to dismiss the sixteen actions on the ground that the United States constituted an inconvenient forum in which to resolve these disputes. The district court granted this motion, noting that "this tragedy's slight contacts with the United States and its complete lack of contact with Louisiana, in comparison with the extensive contacts these events have with the United Kingdom," plainly demonstrated that "the record [was] without any justification for imposing the burden of this litigation on this forum." The plaintiffs filed a timely appeal.
Appellants initially challenge the district court's refusal to remand the entirety of the cases, or at least appellants' claims against the defendants, to state court. According to the appellants
[t]he district court erred as a matter of law when it denied Plaintiffs' Motion to Remand and held that removal by third-party defendant SNECMA effectuated removal of the entire case under 28 U.S.C. Sec. 1441(d). First of all, there is no independent basis for the exercise of federal jurisdiction over the main actions, and there is no constitutional or statutory basis for the exercise of "pendent party" jurisdiction over those actions. Secondly, 28 U.S.C. Sec. 1441(d) only authorizes the removal of civil actions "brought ... against a foreign state ..." Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003 (1989). The only actions brought against a foreign state were the third-party actions asserted by Boeing. Therefore, only the third-party demands are removable and the district court should have remanded the main actions to state court. Alifieris v. American Airlines, Inc., 523 F.Supp. 1189 (E.D.N.Y.1981).
The linchpin of this argument is its reliance on Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989), which, in appellants' interpretation, excludes the possibility that a third-party defendant such as SNECMA may ever remove an entire civil action to federal court, or alternatively, compels the conclusion that section 1441(d) does not so provide. These are not frivolous contentions, but careful examination reveals flaws in their logic.
Finley articulates a deceptively seamless web governing the analysis of "pendent party" jurisdiction. 4 The opinion begins with the indisputable premise that the jurisdiction of the federal courts is limited by both the Constitution and enabling statutes. The problem confronting the Supreme Court in Finley was the extent to which a federal court has jurisdiction to determine a case against a party based on a non-diverse, non-federal cause of action, simply because the court also had jurisdiction over a Federal Tort Claims Act case against the United States arising from the same set of facts. Without undermining the long-established doctrine of pendent claim jurisdiction, the Court in Finley differentiated and limited "pendent party" jurisdiction, defined as "jurisdiction over parties not named in any claim that is independently cognizable by the federal court." 109 S.Ct. at 2006. The Court assumed without deciding that if pendent party jurisdiction accords with Article III, its constitutional formulation is analogous to that which supports pendent claim jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). From there, two additional analytical factors were deemed significant. First, the Court considered the "posture in which the non-federal claim is asserted," and found that the added claims in Finley "involve[d] added parties over whom no independent basis of jurisdiction exists." 109 S.Ct. at 2008. Second, the Court found that the language of the jurisdictional statute governing the federal claim, 28 U.S.C. Sec. 1346(b), suggested that Congress authorized federal courts to exercise jurisdiction only over claims against the United States "and no one else." Id.
Purporting to rely on Finley, the appellants...
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