Tucker v. Whitaker Travel, Ltd.

• Decision Date: 25 October 1985
• Docket Number: 85-1685.,Civ. A. No. 84-5123
• Citation: 620 F. Supp. 578
• Parties: Louis and Jacqueline H. TUCKER h/w and Christina Tucker, by her parents and guardians Louis and Jacqueline Tucker, v. WHITAKER TRAVEL, LTD., Atkinson & Mullin Travel, Inc., R.M. Tours a/k/a Richard Moss Tours, Ltd., Happy Trails Stables, Commonwealth of the Bahamas, Ministry of Tourism. Louis and Jacqueline TUCKER h/w and Christina Tucker, by her parents and guardians Louis and Jacqueline Tucker, v. The COMMONWEALTH OF the BAHAMAS and Ministry of Tourism.
• Court: U.S. District Court — Eastern District of Pennsylvania

620 F. Supp. 578

Louis and Jacqueline H. TUCKER h/w and Christina Tucker, by her parents and guardians Louis and Jacqueline Tucker, v. WHITAKER TRAVEL, LTD., Atkinson & Mullin Travel, Inc., R.M. Tours a/k/a Richard Moss Tours, Ltd., Happy Trails Stables, Commonwealth of the Bahamas, Ministry of Tourism.

Louis and Jacqueline TUCKER h/w and Christina Tucker, by her parents and guardians Louis and Jacqueline Tucker, v. The COMMONWEALTH OF the BAHAMAS and Ministry of Tourism.

Civ. A. Nos. 84-5123, 85-1685.

United States District Court, E.D. Pennsylvania.

October 25, 1985.

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John J. O'Brien, III, Philadelphia, Pa., for plaintiffs.

Augustus R. Sigismondi, Philadelphia, Pa., for Whitaker Travel, Ltd.

John W. Walter, Philadelphia, Pa., for Atkinson & Mullin Travel, Inc.

William R. Herman, Philadelphia, Pa., William A. Bradford, Jr., Hogan & Hartson, Washington, D.C., for Commonwealth of the Bahamas and Ministry of Tourism.

OPINION

LUONGO, Chief Judge.

Plaintiffs brought these related actions to recover for personal injuries which Jacqueline and Christina Tucker sustained while horseback riding in the Bahamas. Defendants are the Commonwealth of the Bahamas (the Bahamas), the Ministry of Tourism, several travel agencies and Happy Trails Stables. The complaints were filed in the Court of Common Pleas of Philadelphia County and were removed to this court by the Bahamas and the Ministry of Tourism (foreign government defendants, hereinafter government defendants). Plaintiffs have moved to remand Civil Action No. 84-5123 to state court or, in the alternative, to sever and remand the claims against all but the government defendants. The government defendants have moved to dismiss both cases for insufficient service of process, lack of personal and subject matter jurisdiction, and failure to state a cause of action. I will consider the motions filed in these two cases together. For the reasons set forth below, I will deny plaintiffs' motion to remand No. 84-5123 to state court and will grant the government defendants' motions to dismiss on the ground of foreign sovereign immunity. Because dismissal of the government defendants removes the basis for federal jurisdiction, the remaining defendants will be remanded to state court. Plaintiffs' motion to sever and remand the claims against these defendants will therefore be dismissed as moot.

I. Plaintiffs' Motion to Remand

Plaintiffs assert as the first ground for their motion to remand that under the Foreign Sovereign Immunities Act (FSIA) the state courts may hear actions against a foreign government. See 28 U.S.C. §§ 1602, 1605. A companion case is currently pending in the Philadelphia Court of Common Pleas. The Hotel Corporation of the Bahamas, a named defendant in that case, did not act to remove the case to federal court. Plaintiffs argue that the Hotel Corporation is an agent of the Bahamas and that its failure to remove constitutes a waiver binding upon the government defendants in this case. Plaintiffs argue further that remand would permit their cases to be tried together, thus ensuring uniformity of result and efficient use of judicial resources, and, finally, that remand is required because the government defendants did not obtain the consent of all defendants to the removal petition.

The government defendants argue that as "foreign states" under the FSIA they have an absolute right of removal, that they do not need the consent of co-defendants, and that they cannot be deprived of this right on grounds of judicial efficiency. The government defendants deny that the Hotel Corporation's failure to remove a case in which they were not parties bars them from removing these cases.

The Bahamas and the Ministry of Tourism are "foreign states" under 28 U.S.C. § 1603.¹ Thus, they have the right under 28 U.S.C. § 1441(d)² to remove these actions to federal court. I agree with defendants' contention that co-defendants need not join in the removal petition. The Court of Appeals for the Fifth Circuit has noted that "§ 1441(d) by its terms requires no defendant other than the `foreign state' to assent to or join the removal petition." Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1375 (5th Cir.1980). The legislative history of the FSIA establishes that the consent of co-defendants is not necessary: "new subsection (d) of section 1441 permits the removal of any such action at the discretion of the foreign state, even if there are multiple defendants and some of these defendants desire not to remove the action or are citizens of the State in which the action has been brought." H.R.Rep. No. 1487, 94th Cong., 2d Sess. 32, reprinted in 1976 U.S.Code Cong. & Ad.News 6604, 6631. See also 1A J. Moore, Moore's Federal Practice ¶ 0.1683.-2-2 at 559 (2d ed. 1985).

In addition, when a "foreign state" defendant removes under § 1441(d), "the entire action against all defendants accompanies it to federal court." Arango, 621 F.2d at 1375. See also Mori v. Port Authority, 100 F.R.D. 810, 812 (S.D.N.Y. 1984); 1A Moore's Federal Practice ¶ 0.163-1 at 369. These cases were therefore properly removed to federal court on the petition of the government defendants.

I also reject plaintiffs' contention that the government defendants waived their right to remove these actions. Plaintiffs have cited, and my research has disclosed, no authority for the proposition that a defendant's failure to remove an action is binding upon different defendants in a different, though related, action.³ The cases upon which plaintiffs rely are inapposite.

The defendant in Laughlin v. Dow Chemical Co., 563 F.Supp. 271 (S.D.Tex. 1983), an American subsidiary of a French-nationalized corporation, had no independent right of removal. The court held that the parent corporation's removal of a related but separate action did not confer the right to remove upon its subsidiary. Id. at 272-73. The holding in Laughlin has no relevance to the instant cases, in which the government defendants are "foreign states" with an independent right to remove under § 1441(d).

Plaintiffs also cite Blue Ox Corp. v. Murphy Oil Corp., 524 F.Supp. 1019 (D.Mont.1981), in which the court held that a defendant's failure to remove a lawsuit constituted a waiver of his right to remove a later suit based on the same occurrence. The court reasoned that the two complaints "named the same parties and alleged the same wrong." Id. at 1020. The state action had been pending for ten years, and the court was reluctant "to allow the defendant to `test the water' in state court and now come before this court with essentially the same action." Id. at 1022.

These concerns are not implicated here, where the defendants seeking to remove the second action were not parties to the first. The Hotel Corporation's failure to remove a separate action should not bar defendants in these actions from exercising their right of removal. The Hotel Corporation asserted in the state court action that it is a corporate entity established by the Bahamian legislature, entitled to invoke the defense of sovereign immunity. This is not inconsistent with the government defendants' allegation that the Hotel Corporation remains an entity distinct from the Bahamian government and other agencies such as the Ministry of Tourism. The Supreme Court has held that "government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such." First National City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 626-27, 103 S.Ct. 2591, 2599-2600, 77 L.Ed.2d 46 (1983). Plaintiffs have set forth no grounds upon which I can conclude that the Hotel Corporation's separate status should be disregarded.

Finally, considerations of judicial efficiency do not provide a basis for remanding this case to state court. The right granted to foreign states by § 1441(d) is a significant one. According to the House Judiciary Committee, "in view of the potential sensitivity of actions against foreign states and the importance of developing a uniform body of law in this area, it is important to give foreign states clear authority to remove to a Federal forum actions brought against them in the State courts." H.R.Rep. No. 1487 at 32, 1976 U.S.Code Cong. & Ad.News at 6631. The government defendants have exercised their right to remove, and I cannot deprive them of a federal forum simply because remand to state court may promote judicial efficiency. See, e.g., Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976) (district court may not remand a case properly removed and within its jurisdiction for discretionary reasons not authorized by 28 U.S.C. § 1447(c)). Plaintiffs' motion to remand No. 84-5123 to state court will be denied.

II. Defendants' Motions to Dismiss

The government defendants have moved to dismiss on two grounds. They claim first that service of process was insufficient under the FSIA, and second that they are entitled to sovereign immunity and this court therefore lacks personal and subject matter jurisdiction. Because I conclude that the complaints against the government defendants must be dismissed on the basis of their sovereign immunity, I need not, and do not, decide whether the government defendants were properly served.

Under the FSIA, a foreign state is immune from the jurisdiction of federal and state courts unless one of several specified exceptions applies.⁴ 28 U.S.C. § 1604. Section 1605(a)(2) creates exceptions for actions

based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the

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