Surinam Airways Holding Co., In re
| Decision Date | 23 September 1992 |
| Docket Number | No. 92-4456,92-4456 |
| Citation | 974 F.2d 1255 |
| Parties | In re SURINAM AIRWAYS HOLDING COMPANY, Air Crews International, Incorporated, International Air Leases, Incorporated, Aircraft Tenders Associates, Incorporated, Estate of Wilburt Rogers, Estate of Glyn Tobias, Estate of Warren Rose, Surinaamse Luchtvaart Maatschappij, N.V., a/k/a Surinam Airways, Ltd., a foreign corporation, Petitioners. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Aurora Ares, Ralph P. Richard, Thornton, David, Murray, Richard & Davis, P.A., Miami, Fla., for Sahc, IAL, Surinam Airways, Estates.
David McDonald, McDonald & McDonald, Miami, Fla., for Aircrews.
Carl H. Hoffman, Jr., Hoffman & Hertzig, P.A., Coral Gables, Fla., for opposing counsel.
Arthur Moller, III, Miami, Fla., for Aircraft Tenders.
On Petition for Writ of Mandamus to the United States District Court for the Southern District of Florida.
Before FAY, KRAVITCH, and COX, Circuit Judges.
This case comes before the court on a joint petition for a writ of mandamus. The petitioners are the defendants and third-party defendant in two consolidated wrongful death actions. They claim that this court should issue a writ of mandamus because the district court erroneously concluded that it had discretion to remand the plaintiffs' claims to state court despite its acknowledged jurisdiction over both the plaintiffs' claims and the third-party claims asserted in the consolidated actions. In an alternative attempt to obtain relief from the district court's partial remand order, the petitioners have also filed a notice of appeal. For the reasons that follow, we now GRANT the joint petition for writ of mandamus.
This case arose from the June 7, 1989 crash of a transatlantic flight originating in Amsterdam, the Netherlands, and destined for Paramaribo, Surinam. As a result of the air crash, Carmelita Dolores Tauwnaar and Eveline Esseline Susana Kogeldans-Pinas each filed a wrongful death action in the Circuit Court for the Eleventh Judicial Circuit in and for Dade County, Florida. Each complaint sought relief from a number of Florida-based corporations and from the estates of the deceased cockpit crew. 1 The plaintiffs' claims, premised on state law, alleged that the named defendants--not the air carrier--were "actually responsible for the operation, maintenance and piloting of the aircraft." See, e.g., Tauwnaar Complaint at 6. As a result, the plaintiffs deliberately chose not to name the air carrier, Surinaamse Luchtvaart Maatschappij, N.V., a/k/a Surinam Airways, Ltd. ("Surinam Airways"), as a defendant. Nonetheless, one of the named defendants, Air Crews International, Inc., impleaded Surinam Airways into each state court action as a third-party defendant. The third-party complaints asserted indemnity, contribution, and breach of contract claims against Surinam Airways.
Having been brought into the two state court actions as a third-party defendant, Surinam Airways filed notices of removal pursuant to 28 U.S.C. § 1441(d). The defendants also joined in these notices, setting forth an alternative basis for removal under 28 U.S.C. § 1441(b). 2
Shortly after the notices of removal were filed, the parties filed a number of motions in the district court. Included among these motions were the plaintiffs' motions to remand their cases to state court. The district court consolidated the two cases and referred all pretrial matters to a United States magistrate judge. That magistrate judge then recommended that the motions to remand be denied. Nonetheless, in its "Order of Remand in Part," the district court decided to remand the plaintiffs' claims and to retain jurisdiction solely over the third-party claims asserted against Surinam Airways. The petitioners then sought review of that order in this court, filing both a petition for writ of mandamus and a notice of appeal. The petitioners also filed a motion seeking to stay the partial remand order pending review in this court. We granted that motion and stayed the district court's order.
Normally, an order remanding a case to state court is not reviewable by appeal or otherwise. 28 U.S.C. § 1447(d). However, the Supreme Court has recognized a narrow exception to this rule in cases where a remand order is based on reasons not authorized by 28 U.S.C. § 1447(c). 3 Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). According to the Court, "only remand orders issued under § 1447(c) and invoking the grounds specified therein ... are immune from review under § 1447(d)." Id. at 346, 96 S.Ct. at 590. In this case, we find that the district court's "Order of Remand in Part" falls within that narrow exception set forth in Thermtron.
In remanding the plaintiffs' claims to state court, the district court concluded neither that it lacked jurisdiction over the plaintiffs' claims nor that a defect in removal procedure had occurred. See Order of Remand in Part at 6 (). 4 Instead, the district court determined that its jurisdiction over the plaintiffs' claims was in the nature of supplemental jurisdiction conferred by 28 U.S.C. § 1367. Because the court concluded that its jurisdiction over the plaintiffs' claims was supplemental, the court further determined that it could decline the exercise of that supplemental jurisdiction as a discretionary matter governed by § 1367(c). The court then declined the exercise of supplemental jurisdiction over the plaintiffs' removed claims and directed that those claims be remanded to state court.
These conclusions and this basis for remanding the plaintiffs' claims bring the district court's partial remand order within the Thermtron exception to § 1447(d). A remand order pursuant to 28 U.S.C. § 1367(c) is not premised on § 1447(c) because it is a discretionary decision declining the exercise of expressly acknowledged jurisdiction. It is not a remand premised on either a defect in removal procedure or a lack of jurisdiction. As a result, an order expressly remanding pursuant to § 1367(c) is reviewable. See Thermtron, 423 U.S. at 346, 351-52, 96 S.Ct. at 590, 593; cf. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (). As in Thermtron, the appropriate basis for reviewing such an order is on petition for writ of mandamus. See 423 U.S. at 352-53, 96 S.Ct. at 593; In re Amoco Petroleum Additives Co., 964 F.2d 706, 712 (7th Cir.1992).
The actions now before this court were removed to district court pursuant to 28 U.S.C. § 1441(b) and (d). Under § 1441(d), "[a]ny civil action brought in State court against a foreign state" may be removed to federal court by the foreign state. 5 Clearly, Surinam Airways is an "agency or instrumentality of a foreign state" under 28 U.S.C. § 1603(b), 6 and it is thus a "foreign state" for purposes of § 1441(d). See 28 U.S.C. §§ 1441(d), 1603. Moreover, Surinam Airways waived any immunity to which it may have been entitled as a "foreign state." See 28 U.S.C. § 1605. Accordingly, removal pursuant to § 1441(d) was proper. 7 Yet, the mere fact that § 1441(d) authorized removal under these circumstances does not resolve the issues before this court. We must still determine: (1) which claims were removed under § 1441(d), and (2) which of the removed claims, if any, could then be remanded to state court.
Because the language of § 1441(d) authorizes removal by a "foreign state" after it has been impleaded into a case as a third-party defendant, it should be clear that § 1441(d) must remove, at a minimum, the third-party claims asserted against the "foreign state." Accordingly, the notices of removal filed in the plaintiffs' cases removed the third-party claims against Surinam Airways to federal court. We must next determine, however, whether § 1441(d) also removed the plaintiffs' claims against the defendants.
In making this determination, we recognize that "a grant of jurisdiction over claims involving particular parties does not itself confer jurisdiction over additional claims by or against different parties." Finley v. United States, 490 U.S. 545, 556, 109 S.Ct. 2003, 2010, 104 L.Ed.2d 593 (1989). Moreover, "with respect to the addition of parties, as opposed to the addition of only claims, we will not assume that the full constitutional power has been congressionally authorized, and will not read jurisdictional statutes broadly." Id. at 549, 109 S.Ct. at 2007. Thus, if § 1441(d) grants removal jurisdiction to a district court only on claims involving a foreign state, then the main claims asserted by the plaintiffs could not have been removed pursuant to § 1441(d).
The district court's partial remand order focussed on the "civil action ... against a foreign state" language in § 1441(d), apparently finding that language to mean that either a "third-party action against a foreign state" or a "main action against a foreign state" could be removed pursuant to § 1441(d), depending upon whether the claims asserted against the foreign state were set forth in the initial complaint or in the third-party complaint. See Order of Remand in Part at 3. Although we agree that the language of § 1441(d) can conceivably be read in such a way, we simply do not believe that Congress intended that interpretation. Instead, the language and legislative history of § 1441(d) lead us to conclude that, where a claim has been filed against a foreign state, Congress did not intend removal jurisdiction to be limited to some subset of the claims or parties involved in that action.
The language of § 1441(d) provides the starting point for our analysis. In that section, Co...
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