# Opposition Brief — Nolan v. Boeing Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 962

## Text

7 a
No. 90-1335

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

>

KENNETH P. NOLAN AND VERNON T. JUDKINS,
Petitioners,
—_—V—
THE BOEING COMPANY, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION
TO PETITION FOR CERTIORARI

Keith Gerrard Randal R. Craft, Jr.*

John D. Dillow* Michael S. Mitchell
Richard C. Coyle HAIGHT, GARDNER, POOR
Mark H. Lough & HAVENS

PERKINS COIE 195 Broadway

1201 Third Avenue New York, New York 10007
40th Floor (212) 341-7000

20s eprom sei0! Attorneys for Respondents
“ General Electric Company,
Attorneys for Respondent CFM International, Inc.,

The Boeing Company and Societe Nationale d'Etude
et de Construction de Moteurs
d’Aviation, S.A. (SNECMA)

*Counsel of Record

BEST AVAILABLE COP

QUESTIONS PRESENTED

Does this case present any issue appropriate for Supreme
Court resolution when (a) the Court of Appeals’ decision
does not conflict with any holding of this Court or any other
Court of Appeals, (b) statutory changes during the pendency
of this case give it a unique factual and procedural posture
unlikely to reoccur, and (c) further statutory changes substan-
tially redefine for future cases the issues resolved by Court of
Appeals?

Does the removal provision of the Foreign Sovereign
Immunities Act of 1976, 28 U.S.C. § 1441(d), permit a third-
party foreign state defendant to remove an entire civil action
where there is at least minimal diversity between the parties
to the other claims?

Should this Court alter the well-established and uniformly
applied rule that a party entitled to remove an action on the
basis of that party's identity or status removes an entire civil
action when the party is sued as a third-party defendant?

i
LIST OF PARTIES
Those parties not listed im the caption herein include the
following:
A. Defendants

1) General Electric Company (‘‘GE"’)
2) CFM International, Inc. (“‘CFMI, Inc.’’)

B. Third-Party Defendants

1) Societe Nationale d'Etude et de Construction de
Moteurs d'Aviation, S.A. (““SNECMA"’)

***

RULE. 29.1 LISTING OF AFFILIATED
CORPORATIONS

A. General Electric Company

The General Electric Company has a number of subsidi-
aries in the United States and elsewhere. There are, however,
only a limited number of these subsidiaries that have any out-
standing equity or debt securities that are publicly held.
These are:

Dart & Kraft Financial Corporation

GECC Financial Corporation

General Electric Capital Corporation (formerly General
Electric Credit Corporation)

General Electric Capital Canada, Inc.

General Electric Credit International, N.V.

General Electric Financial Services, Inc.

General Electric Overseas Capital Corporation
Montgomery Ward Credit Corporation

The public holdings of Dart & Kraft Financial Corpora-
tion, GECC Financial Corporation, General Electric Capital
Corporation, General Electric Capital Canada, Inc., General
Electric Credit International, N.V., General Electric Financial
Services, Inc., General Electric Overseas Capital Corporation,
and Montgomery Ward Credit Corporation are limited to
debt securities.

General Electric Company itself has common stock and
debt securities that are publicly traded.

In addition, General Electric Company owns 50% of
Montgomery Ward & Co., Incorporated, which has publicly
held debt securities and 51% of CAMCO, Inc. (Canada),
which has publicly held equity securities.

iv

B. CFM International, Inc.

There are no parent companies, subsidiaries, or affiliates to
list for this party.

C. Socicte Nationale d'Etude ct de Construction de Motecurs
d' Aviation, S.A. (SNECMA)

SNECMA has several subsidiaries and affiliates. They are:

Compagnie Generale des Turbomachines, S.A. (CGTM)

Corse Composites Aeronautiques, S.A.

Famer, S.A.

Fabrications Mecaniques de l'Atlantique, S.A. (FAMAT)

FN Moteurs

Hispano-Suiza, S.A.

Messier-Bugatti, S.A.

Office d’Exportation de Materiels Aeronautiques, S.A.
(OFEMA)

Sochata, S.A.

Societe Europeenne de Propulsion, S.A. (SEP)

Societe Europeenne d'Analyse et Programmation, S.A.
(SEDAP)

Societe de Reparation et d’Entretien de Compresseurs
Speciaux, S.A. (SORECOS)

Societe d’Exploitation des Materiels Martin Baker, S.A.
(SEMMB)

Vallaroche

Vallaroche Investissements

D. The Bocing Company

There are no parent companies, subsidiaries, or affiliates to
list for this party.

TABLE OF CONTENTS

QUES CRUING PUseC BEE? oo vccccecucncccestaceuas
LIST OF PACES vcccscsscaccceccsstseucneeee
RULE 29.1 LISTING OF AFFILIATED CORPORA-
TOGRED 6 oi ccvcncteushcceeeucesunsdebas eee
A. General Electric Company .............ee05-

BD. CoE BRUNO, BIR. 6060s cccccetevascens

C. Societe Nationale d'Etude et de Construction
de Moteurs d'Aviation, S.A. (SNECMA).....

D. The Besley Gael << ccccctscusunkescveues

REASONS FOR DENYING THE WRIT............

1. The decision of the Court of Appeals in this case
does not conflict with any decision of another
United States Court of Appeals .............0000-

ll. There are no other special or important reasons for
reviewing the judgment below ...............605:

A. Petitioners’ collusion argument is without
WRGUR va ccccncecscusenessceueeas cease

B. Petitioners’ Finley argument is without merit .

C. Petitioners’ argument concerning the purpose
of the FSIA is without merit ...............

iv

iv

vi

D. Petitioners’ ‘‘comity’’ and ‘‘federalism’’ argu-
ments are without Mefit .......ccccccccccces

CONCLUGION occcccsvcvcccssivecesesanuuaeee

PAGE

vii

TABLE OF AUTHORITIES

Cases PAGE

Arango v. Guzman Travel Advisors Corp., 621 F.2d

ROFE Ce a Ha hv nn.c Uedeccsdeeuvaceccsccecs 12, 15
Barney v. Latham, 103 U.S. 205 (1881) ..........4-- 8
Carnegie-Mellon University v. Cohill, 484 U.S. 343

Cs bis cakeceebeccadestadceuene anaes eeaareen 12
Chicago v. Mills, 204 U.S. 321 (1907)..........0005: 10
Falls Riverway Realty v. City of Niagara Falls, 732

POG SE Ge Gils Bee c ccc cvevacecccccdseccavene 7
Finley v. United States, 490 U.S. 545 (1989)......... 11, 13
Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d

~ Ff ee FPR rere ere 10
Goodrich v. Burlington Northern R.R. Co., 701 F.2d

Ss Gas Sc eisceeccetcanedevecteeunness 7
Herman v. El Al Israel Airlines, Ltd., 502 F. Supp.

BIT GAY .. FIs 0. cc cvccceckccvesvvccvecocvens 15

IMFC Professional Services of Florida, Inc. v. Latin
American Home Health, Inc., 676 F.2d 152 (Sth Cir.

Johnson v. Showers, 747 F.2d 1228 (8th Cir. 1984) .. 7
Kramer v. Caribbean Mills, Inc., 394 U.S. 823 (1969) 4, 10

Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183
CED <6 odes eevee voccccewecessustcanensusescetess 4

In re Metropolitan Ry. Receivership, 208 U.S. 90
CD ixccdbdecdwesducuvecccncastecciusveensnsee 10

Vili

PAGE
Mori v. Port Auth. of New York and New Jersey, 100
2s BS J fk ee) Sry Tr eee 15
Nolan v. Boeing Co., 22 Avi. Cas. (CCH) 17,811 (E.D.
ST dic nenbked GuAGeeeadhabasueeneuanedee 6, 10
In re Princess Louise Corp., 77 B.R. 766 (C.D. Cal.
Gch. ath oe eV cekens ee au bedaleenkes Gunns 8

Proyecfin de Venezuela, S.A. v. Banco Industrial de
Venezuela, 760 F.2d 390 (2d Cir. 1985) ........... 9

Shamrock Oil Corp. v. Sheets, 313 U.S. 100 (1941) .. 9

Teledyne, Inc. v. Kone Corp., 892 F.2d 1404 (9th Cir.
ced contuctsandabeduinevadeckcasieeuca veces 12

Texas Employers Insurance Association v. Felt, 150
Pee ee GE, DE os cus cceacectteeteescucee S

Texas Trading & Milling Corp. v. Federal Republic of
Nigeria, 647 F.2d 300 (2d Cir. 1982), cert. denied,
Se Say Ce EE oko co Raweacabbundenccentaces 3

Thomas v. Shelton, 740 F.2d 478 (7th Cir. 1984) .... 8
Thompson v. Wheeler, 898 F.2d 406 (3d Cir. 1990) .. 7

Verlinden B.V. v. Central Bank of Nigeria, 461 U.S.
SN Cp eCe a ee eed eek es Cela tate kt 9, 14

Urbanizadora Villalba, Inc. v. Banco Y Angecia de
Financiamiento de la Vivienda de Puerto Rico, 845

of ee fs Be Pere eee ee ee 7
Williams v. Shipping Corp. of India, 653 F.2d 875 (4th
Cir. 1981), cert. denied, 455 U.S. 982 (1982) ...... 1S

In re Wilson Industries, Inc., 886 F.2d 93 (Sth Cir.

PAGE
Statutes
Se bacaspaccedduccuuencsbasacueueunes 7
a: ED ccanpcsseseueuacnncenccotunctnes 14
ia ED inicdunvesccentaacasiuececerdsus 3
et Se PC cancendactcccoucccssueceuaed 4, 7, 12
ee i ctvetobcencewcunsesiunceancuens 1
ea Saad ante cetuaseccuceoneuvedeaeen 10
a8 U.S.C. § 1567... 000: dikedensaunaweneseesest 12, 13, 14
eS nnn cue cneabasebesesuseeaneinn 6, 9
ie: tt EE xncntancecass$aceseucaennsnunes 6, 8
ee Te ac nedvcéckcagnccccncedecuscevat passim
nn. oe cebuskcuseubeceeseue ?
I SD cd cncccevevnseeuseuseneeseeers s
Fe as Wie Kars vecccccenccccsecccsccesncnces $
Be es Ss Ses ceccvenunesdsexuccscecess 1}
eee 7

Judicial Improvements and Access to Justice Act, Pub.
L. No. 100-702, § 202(a), 102 Stat. 4642, 4646 (1988) 4, 12

Judicial Improvements Act of 1990, Pub. L. No. 101-
650, § 310, 104 Stat. S089, S113-14 .. 2... 6... eee 12

ne ev eenebsedeseus 5

Other Authorities

H.R. Rep. No. 101-734, 10lst Cong. 2d Sess.,
reprinted in 1990 U.S. Code Cong. & Admin. News

PAGE
H.R. Rep. No. 94-1487, 94th Cong., 2d Sess.,
reprinted in 1976 U.S. Code Cong. & Admin. News
DN dae oe Nolin sce ounewses owas Gab.00 beeen wenecee’ 15

IN THE
Supreme Court of the United States
OCTOBER TERM, 1990
No. 90-1335

>

KENNETH P. NOLAN AND VERNON T. JUDKINS,
Petitioners,
—_V—
THE BOEING COMPANY, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTIE CIRCUIT

>

RESPONDENTS’ BRIEF IN OPPOSITION
TO PETITION FOR CERTIORARI

OPINIONS BELOW

The Petition seeks the issuance of a Writ of Certiorari to
review the order and judgment of the United States Court of
Appeals for the Fifth Circuit, Nolan v. Boeing Co., 919 F.2d
1058 (Sth Cir. 1990) (pages 1-27 of the Appendix to the Peti-
tion), that unanimously affirmed orders of the United States
District Court for the Eastern District of Louisiana denying
Petitioners’ motion to remand (App. 28-33) and granting
Respondents’ motion to dismiss on the ground of forum non
conveniens. Petitioners challenge only the remand decision;
their Petition does not present to this Court any questions

2

concerning the propriety of the dismissal of their claims on
the ground of forum non conveniens.

COUNTERSTATEMENT OF THE CASE

These sixteen consolidated civil actions arise out of the
January 8, 1989 crash of a Boeing 737-400 aircraft operated
by British Midland Airways, Ltd. (“‘BMA"’), a regional air-
line operating principally within the United Kingdom. The
crash occurred while the aircraft was on a scheduled flight
from London, England, to Belfast, Northern Ireland. The
claimants in these actions, all of whom are citizens of foreign
countries (mostly the U.K.) and reside outside the United
States, are injured passengers, crew, bystanders, and the sur-
viving relations of forty-six persons killed in the accident.
Petitioners brought suit in Louisiana state court against Boe-
ing, the manufacturer of the aircraft, GE, one of the two
engine manufacturers, and CFMI, Inc., a corporation jointly-
owned by GE and SNECMA, the other engine manufacturer.
None of the events giving rise to the accident occurred in
Louisiana; Louisiana's sole contact with this matter is that
Boeing and GE have unrelated business activities there that
subject them to the general jurisdiction of the Louisiana
courts.

These cases present unusual facts in a unique procedural
context. Although Petitioners claim in this Court that they
criginally chose to file this lawsuit in Louisiana because
“they could obtain jurisdiction over all the primary defen-
dants’’ (Pet. 14), it is obvious that economy of litigation was
not Petitioners’ motivation. Petitioners failed to bring suit
against the inmost significant potential defendant: BMA.’
Indeed, the Air Accidents Investigation Branch (‘‘AAIB"’) of
the U.K. Department of Transport, which investigated the
accident, concluded that the cause of the accident was incor-
rect action on the part of the BMA crew. Petitioners presum-

1 Respondents are informed and believe that, after the Court of
Appeals’ decision, claimants sued BMA in England.

ably did not name BMA as a defendant in these actions
because BMA does no business in Louisiana and the Louisi-
ana courts could not obtain jurisdiction over BMA.

Petitioners also failed to sue SNECMA, an equal partici-
pant with GE in the design and manufacture of the accident
aircraft’s engines. Indeed, after Boeing added SNECMA,
Petitioners objected that SNECMA was not subject to the
jurisdiction of the Louisiana courts for claims arising out of
this accident—a contention they repeat in their Petition.’

(Pet. 3)

Petitioners’ real motivation for filing these actions in Loui-
siana was their hope that the Louisiana state courts would
not apply the doctrine of forum non conveniens to dismiss
the actions for refiling in the United Kingdom. Thus, claim-
ants tried to structure the cases so that the federal courts
would lack diversity jurisdiction even though all claimants
were foreign and all the defendants were United States corpo-
rations. In order to accomplish this goal, nominal plaintiffs
Kenneth P. Nolan and Vernon T. Judkins were appointed
representatives of the 255 foreign claimants in these actions.
Messrs. Nolan and Judkins had no contact with the claimants
they represented and, as Petitioners have admitted, were
retained by claimants’ U.S. counsel to lend their names to
these actions for the sole purpose of defeating diversity juris-
diction.’

The appointment of Nolan and Judkins to their various
representative capacities was a necessary but not sufficient

2 __— As Boeing advised the District Court, Petitioners’ argument was and
is without merit. Boeing pointed out that the FSIA provides for
nationwide personal jurisdiction over a non-immune ‘“‘foreign state.”’
See 28 U.S.C. § 1330(b) (1988); Texas Trading & Milling Corp. v. Fed-
eral Republic of Nigeria, 647 F.2d 300, 313 (2d Cir. 1982), cert.
denied, 454 U.S. 1148 (1982).

3. Judkins is a citizen of Washington, and Nolan is a citizen of New
York. Boeing is a Delaware corporation with its principal place of
business in the State of Washington, and GE is incorporated and has
its principal place of business in New York. Accordingly, should
Nolan’s and Judkins’ citizenship control, complete diversity between
plaintiffs and defendants would be absent.

4

element of Petitioners’ strategy. As soon as the appointments
were made (and in some cases even before), Petitioners filed
these actions in Louisiana state court and served the com-
plaints on defendants so that defendants’ statutory 30-day
removal period would expire prior to May 18, 1989, the
effective date of § 202(a) of the Judicial Improvements and
Access to Justice Act, Pub. L. 100-702, 102 Stat. 4642, 4646
(1988). This statute, which applied to actions removed on or
after May 18, 1989, amended 28 U.S.C. § 1332(c) to clarify
that the citizenship of a represented party, not the citizenship
of his or her representative, determines whether diversity
exists. Under this new law, there would unquestionably be
federal diversity jurisdiction over Petitioners’ claims against
Boeing, GE, and CFMI, Inc. The prior law was unclear,
however, because this Court had held 50 years ago that in
some cases the citizenship of the representative, rather than
the represented party, controls. See Mecom v. Fitzsimmons
Drilling Co., 284 U.S. 183 (1931).

Defendants timely removed these actions on May 11, 1989,
which was of necessity prior to the effective date of § 202(a)
of the new Act, on the basis that the citizenships of Nolan
and Judkins were not controlling. Respondents argued that,
even before this section became effective, the Mecom decision
was inapplicable to this situation in view of this Court's later
decision in Kramer v. Caribbean Mills, Inc., 394 U.S. 823
(1969). The District Court disagreed, however, and held that
in actions removed prior to May 18, 1989, the citizenship of
nominal parties controls. Consequently, the District Court
remanded the actions. The District Court also held that
§ 202(a) did not trigger a new 30-day removal period. Thus,
the posture of the case after remand was that complete diver-
sity existed between plaintiffs and defendants but the case
could not be removed by defendants because the law accom-
plishing that result became effective after the period to
remove had expired.

5

After the remand, Boeing moved in each action to add
SNECMA as a third-party defendant.‘ These motions were
granted without opposition, and SNECMA was served on
August 10, 1989.° On August 17, 1989, SNECMA removed
each of the sixteen civil actions to federal court. In its
removal notices SNECMA stated that, as a French corpora-
tion almost entirely owned by the French government, it
qualified as a ‘‘foreign state’’ under the Foreign Sovereign
Immunities Act (‘‘FSIA"’), 28 U.S.C. § 1602 ef seq. (1988).
The FSIA authorizes a foreign state to remove to federal
court “‘any civil action’’ brought against it in state court. 28
U.S.C. § 1441(d) (1988).

Petitioners’ motion to have their claims against Boeing,
GE, and CFMI, Inc. remanded to state court was denied on
September 23, 1989. The District Court held that, because

4 Boeing's third-party complaint set forth a prototypical claim by a
defendant in a product liability case for contribution or common law
indemnity against a component supplier whose product was alleged by
plaintiffs to have caused the accident. Boeing alleged SNECMA's role
in the design and manufacture of the engines, pointed out that ‘‘plain-
tiffs allege that the crash resulted from the failure of one of the air-
craft's CFM-S6-3C-1 engines,’’ and asserted that “‘[t]o the extent
plaintiffs’ damages, if any, were proximately caused by a failure of
one of the accident aircraft's engines," Boeing was entitled to indem-
nity or, at the least, contribution.

Notwithstanding these facts, Petitioners profess confusion about the
basis for Boeing's claim (Pet. 6 n.1, 13) and argue that Boeing's third-
party complaint ‘had litle, if any, connection to the main action."
(Pet. 6)

S On August 15, 1989, Petitioners, without giving notice to Respon-
dents, moved ex parte to “‘sever’’ the third-party claims pursuant to
Article 1038 of the Louisiana Code of Civil Procedure, which provides
for the separate trial of claims for the purpose of avoiding delay or for
the convenience of the parties or the court. Although the state court
judge signed Petitioners’ ex parte order, each of the main and third-
party claims continued to be combined in one suit under one cause
number and continued to constitute a single ‘‘civil action."" The Dis-
trict Court found that the state court's ex parte separate trials order
was irrelevant to the removal issue (App. 32), and the Court of
Appeals agreed. (App. 18-19) Those rulings are not challenged in this
Petition.

6

SNECMA had properly removed the entirety of these civil
actions, no portion of them should be remanded. Boeing then
moved to dismiss these actions under the doctrine of forum
non conveniens. On October 18, 1989, the District Court
granted Boeing's motion to dismiss, subject to certain condi-
tions. Nolan v. Boeing Co., 22 Avi. Cas. (CCH) 17,811
(E.D. La. 1989).

Petitioners appealed the order denying remand and the
order of dismissal to the United States Court of Appeals for
the Fifth Circuit, which affirmed.

REASONS FOR DENYING THE WRIT

I. The decision of the Court of Appeals in this case does not
conflict with any decision of another United States Court

of Appeals.

Petitioners’ lead argument, contained in Point | of their
Petition, is completely misleading. Contrary to Petitioners’
assertion, there is no conflict between the Fifth Circuit’s deci-
sion in this case and a ‘“‘similar decision of the Seventh Cir-
cuit... ."" (Pet. 5) In fact, neither the Seventh Circuit
decision nor any other case cited by Petitioners in Point |
even addressed the issues decided in this case. Therefore,
Petitioners’ suggestion that the cases are ‘‘hopelessly
divided"’ (Pet. 5) and their argument that this Court should
accept review to resolve ‘‘confusion’’ (Pet. 7) among the Cir-
cuits regarding the ability of a third-party defendant to
remove a civil action are without merit.

Petitioners’ argument misconceives the issues involved in
this case and relies on wholly inapplicable cases. The cases
cited by Petitioners discuss only whether: (1) a third-party
defendant qualifies as a ‘‘defendant’’ under 28 U.S.C.
§ 144l(a); or (2) a third-party claim can be ‘‘separate and
independent"’ from plaintiffs’ claims against the original
defendants and thereby form the basis for removal of the
entire civil action pursuant to 28 U.S.C. § 144l(c). Even if
there is some disagreement about these issues among courts,

-

these issues are not present in this case, which in no way
involves either of subsections 144](a) or 1441(c).

In this case, the Fifth Circuit addressed the scope of
removal under the FSIA, 28 U.S.C. § 1441(d). The Fifth Cir-
cuit held that ‘‘when a third party [foreign state] defendant
avails itself of removal jurisdiction under section 1441(d), at
least where minimal diversity exists between the parties to the
main claims, it removes not just the third party claims but
the main claims as well’’.° (App. 17-18) No Court of
Appeals, other than the Fifth Circuit in this case, has
addressed the application of 28 U.S.C. § 144i(d) to a third-
party defendant. However, numerous analogous statutes,
e.g., 28 U.S.C. § 1442(a) (1988), 28 U.S.C. § 2679(c) (1988),
and 12 U.S.C. § 1819 (1988), allow a party to remove a
“‘civil action’’ against that party on the basis of the party’s
identity or status. Court of Appeals decisions interpreting
these sections have uniformly held that a third-party defen-
dant can remove under these statutes and in doing so remove
the entire civil action, not merely the third-party claims.
These decisions are from the Courts of Appeals for the First,
Second, Third, Fifth, Eighth, and Tenth Circuits. See, e.g.,
Thompson v. Wheeler, 898 F.2d 406, 409 (3d Cir. 1990)
(applying 28 U.S.C. § 2679(c)); Urbanizadora Villalba, Inc.
v. Banco Y Angecia de Financiamiento de la Vivienda de
Puerto Rico, 845 F.2d 1 (ist Cir. 1988) (applying 12 U.S.C.
§ 1819); Falls Riverway Realty v. City of Niagara Falls, 732
F.2d 38 (2d Cir. 1984) (applying 28 U.S.C. § 1442(a)); John-
son v. Showers, 747 F.2d 1228, 1229 (8th Cir. 1984) (apply-
ing 28 U.S.C. § 1442(a)); Goodrich v. Burlington Northern

6 In addition to finding that minimal diversity existed between the par-
ties to the main claims, the Fifth Circuit also stated that, at the time
SNECMA removed the case to the District Court, ‘there was actually
complete diversity between the plaintiffs and defendants pursuant to
28 U.S.C. § 1332(c)."" (App. 10) (Emphasis in original.) Petitioners
nevertheless state in their Petition that ‘‘there is no independent federal
jurisdiction over the main action”’ (Pet. 5) and that ‘the Fifth Circuit
seems to have overlooked’’ that the ‘‘suit between original parties. . .
has no independent basis for federal jurisdiction.’’ (Pet. 16)

R.R. Co., 701 F.2d 129, 130 (10th Cir. 1983) (applying 28
U.S.C. § 1442(a)); IMFC Professional Services of Florida,
Inc. v. Latin American Home Health, Inc., 676 F.2d 152 (Sth
Cir. 1982) (applying 28 U.S.C. § 1442(a)). The decision below
is in accord with the unanimous rule of these cases.

Further, the holdings in this case and the other cited cases
that a third-party defendant’s removal removes the entire
case honor the longstanding Congressional preference that
the entire civil action is removed and not just the claims
against the removing party.’ See Barney v. Latham, 103 U.S.
205, 209 (1881); Texas Employers Ins. Ass'n v. Felt, 150 F.2d
227, 234-35 (Sth Cir. 1945). The instant case does not present
an appropriate occasion to reconsider this well-established
doctrine.

As for Petitioners’ claim that the Fifth Circuit's decision in
this case conflicts with a ‘“‘similar decision of the Seventh Cir-
cuit’’, the only decision of the Seventh Circuit (or any other
Circuit) even cited by Petitioners in Point 1 is Thomas v.
Shelton, 740 F.2d 478 (7th Cir. 1984), which appears in a
footnote (Pet. 7n.3) and is not otherwise discussed. In
Shelton, the Seventh Circuit addressed the issue of removal
by a third-party defendant under 28 U.S.C. § 1441(c). 740
F.2d at 482. The court was not faced with, and did not
address, the scope of removal under 28 U.S.C. § 1441(d).°

Petitioners’ use of cases decided under § 1441(c) to suggest
that the Fifth Circuit incorrectly interpreted § 1441(d) is not
only misleading but is also illogical. These statutes have dif-
ferent language and different purposes; further, they have
markedly different policies. The purpose of § 1441l(c) was
explained by the Seventh Circuit in Shelton:

7 The only present exception to this rule concerns bankruptcy remov-
als under 28 U.S.C. § 1452 (1988), which allows a party to remove
‘‘any claim or cause of action in a civil action."" See In re Princess
Louise Corp., 77 B.R. 766, 769 (C.D. Cal. 1987).

8 It is perhaps telling that this so-called ‘‘similar’’ case was never even
cited by Petitioners to either the District Court or the Court of
Appeals.

9

The apparent purpose of this provision and its predeces-
sor, 28 U.S.C. § 71 (1940 ed.), was to prevent a plaintiff
who sues a defendant in state court on a claim within
the federal court’s original jurisdiction from attempting
to defeat the defendant's right of removal by joining a
claim not within that jurisdiction.

740 F.2d at 482. Moreover, as is the case with removal under
28 U.S.C. § 1441(a) and § 1441(b), federal courts have nar-
rowly construed this particular removal provision in order to
demonstrate ‘‘due regard for the rightful independence of
state governments.’’ Shamrock Oil Corp. v. Sheets, 313 U.S.
100, 108-109 (1941).

On the other hand, § 1441(d) was enacted as part of the
FSIA, and its purpose is to concentrate litigation involving
foreign states in the federal courts in order to achieve uni-
form standards of decisional law. As this Court stated in
Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 497
(1983), § 1441(d) was enacted because ‘‘Congress deliberately
sought to channel cases against foreign sovereigns away from
the state courts and into federal courts... .”’

In the case of § 1441(d), Congress created a distinct prefer-
ence for removal by foreign states as compared to the right
of other parties to remove under provisions like §§ 1441(a)-
(c). As a result, federal courts have generally declined to
apply to § 1441(d) the proposition that removal statutes
should be strictly construed. See, e.g., Proyecfin de Venezu-
ela, S.A. v. Banco Industrial de Venezuela, 760 F.2d 390,
396-397 (2d Cir. 1985) (‘‘Congress’s intent to create a broad
removal right is further substantiated by reference to the leg-
islative history of the [Foreign Sovereign Immunities} Act’).

In summary, there is no conflict between this case and any
decision of any other Circuit. Petitioners ultimately admit
this fact in the first sentence of their Point Il: ‘*[NJone of the
cases cited in Point I deal with the precise issue presented
here... :”” (Pet. 8)

10

Il. There are no other special or important reasons for
reviewing the judgment below.

In Points Il and III of the Petition, Petitioners attempt in
various ways to persuade the Court that there are significant
issues here that warrant review. All of these arguments are
without merit.

A. Petitioners’ collusion argument is without merit.

Petitioners claim that Boeing’s assertion of third-party
clauns against SNECMA was a “‘collusive ploy’’ (Pet. 14) to
create jurisdiction in this matter. The Fifth Circuit correctly
determined that this argument was ‘‘frivolous.’’ (App. 20)
This Court decided long ago that the assertion of a good-
faith claim by a party with a real and substantial interest in
that claim cannot be ‘‘collusive’’ for purposes of 28 U.S.C.
§ 1359 and its predecessor statutes. Jn re Metropolitan Ry.
Receivership, 208 U.S. 90, 111 (1908); Chicago v. Mills, 204
U.S. 321, 330 (1907) (holding that a party’s motive for pre-
ferring a federal tribunal is immaterial).’

Petitioners assert that SNECMA’s waiver of jurisdictional
immunity somehow indicates collusion between itself and
Boeing regarding the removal of the action. (Pet. 6) SNEC-
MA’s waiver of immunity was not only irrelevant to the deci-
sions below,”° but Petitioners’ arguments ignore the fact that
SNECMA had good reason to waive any jurisdictional immu-
nity it might have in this case. SNECMA determined that,

9 Cases decided under the predecessors of 28 U.S.C. § 1359 have con-
tinuing validity in interpreting that section. Kramer v. Caribbean Mills,
Inc., 394 U.S. 823, 826 (1969).

10 SNECMA'’s waiver was filed the same day the District Court dis-
missed the actions and neither the District Court nor the Court of
Appeals even referred to the waiver. Furthermore, the District Court's
opinion cited a Fifth Circuit Case holding that if a case can be dis-
missed on forum non conveniens grounds the immunity issue need not
be decided. Nolan v. Boeing Co., 22 Avi. Cas. (CCH) 17,811, 17,812
n.1 (E.D. La. 1989), citing Forsythe v. Saudi Arabian Airlines Corp.,
885 F.2d 285 (Sth Cir. 1989).

1]

after carefully considering its alleged commercial activity in
the United States and the time, effort, and expense that
would result if it were to maintain its immunity defense, and
after considering the likelihood of an early dismissal of this
case in its entirety on the ground of forum non conveniens, it
was in SNECMA'’s best interest to waive (in this case only) its
immunity under the FSIA pursuant to 28 U.S.C. § 1605(a)(1)
(1988). In so doing, SNECMA reserved to itself all other
entitlements, rights, and privileges granted by the FSIA. In
addition, SNECMA determined that, although it is in its
interest to have this case litigated in the United Kingdom, it
is also in its interest to have this case litigated in a federal
forum if it is to be litigated in the United States. As the
Court of Appeals correctly observed, ‘‘[t]he outcome of the
main suit very much affects SNECMA'’s rights.”’ (App. 15)
In summary, Petitioners are not in a credible position to
assess the interests of SNECMA in this case.

Petitioners’ ‘‘collusion’’ claim was carefully considered and
rejected by both lower courts. In any event, Petitioners’ argu-
ments present no issue of general significance that this Court
should address.

B. Petitioners’ Finley argument is without merit.

Petitioners argue in Point II of the Petition that the Court
of Appeals’ decision ‘‘directly conflicts’’ with this Court's
recent decision in Finley v. United States, 490 U.S. 545
(1989), which held that a different statute, the Federal Tort
Claims Act (*‘FTCA’’), 28 U.S.C. § 1346(b) (1988), does not
authorize supplemental jurisdiction over non-federal claims.
(Pet. 10) This argument is legally incorrect and, in view of
the substantial statutory changes made since Finley, does not
present a significant issue for the Court.

First, as the Fifth Circuit carefully explained in its opinion,
there is no conflict between its decision and Finley. Unlike
the situation in Finley, when Congress enacted the FSIA it
expressly provided in § 1441(d) for federal jurisdiction over
the entire ‘‘civil action’’ in cases involving foreign states,

12

which necessarily includes claims involving other parties.
Teledyne, Inc. v. Kone Corp., 892 F.2d 1404 (9th Cir. 1990);
Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371°
(Sth Cir. 1980).

Second, notwithstanding Petitioners’ frequently repeated
contention that their claims are not within the District
Court's original diversity jurisdiction, these cases were prop-
erly removed by SNECMA after the effective date of the leg-
islation clarifying that the citizenship of the represented
parties should be considered in determining if diversity exists.
See 28 U.S.C. § 1332(c)(2) (as amended by Pub. L. 100-202,
§ 202(a), 102 Stat. 4642, 4646 (1988)). As a result, the Fifth
Circuit held that Petitioners’ claims against Boeing, GE, and
CFMI, Inc. were within the District Court's original jurisdic-
tion at the time of SNECMA's removal. (App. 10) The fact
that the defendants were unsuccessful initially in removing
these claims prior to the effective date of the amendment to
§ 1332(c) is irrelevant. Further, the statutory change gives this
case a unique factual and procedural posture. The improba-
bility of such a situation arising again is reason enough for
this Court to deny the Petition."

Third, and perhaps most importantly, Finley itself has been
legislatively overruled, and future cases will necessarily
present very different issues from this case. Section 310 of
the Judicial Improvements Act of 1990, Pub. L. No. 101-650,
104 Stat. 5089, 5113-14 (codified as 28 U.S.C. § 1367),
expressly provides for the sort of supplemental jurisdiction in

11 Because of the quirk that the main claims were within the original
jurisdiction of the federal court even though they could not be
removed, they would have remained in federal court even if SNECMA
had been dismissed. See, ¢.g., In re Wilson Industries, Inc., 886 F.2d
93, 96 (Sth Cir. 1989). Typically this will not be the case, and pendent
state law claims will be subject to remand if the federal claims are dis-
missed. Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988). See
U.S.C. § 1367/c\(3) (as amended by Pub. L. 101-650, § 310, 104 Stat.
$089, $113-14). This fact disposes of Petitioners’ claim that, if the
Fifth Circuit's decision is permitted to stand, foreign state defendants
will be impleaded on the meresit “‘pretense’’ (Pet. 8, 9) which ‘will
result in an avalanche of parties seeking removal. . . ."" (Pet. 8)

13

the federal courts that this Court found not to exist in Finley
and which Petitioners contend does not exist under the FSIA.
The new § 1367(a) provides, in relevant part:

{I]n any civil action of which the district courts have
Original jurisdiction, the district courts shall have supple-
mental jurisdiction over all other claims that are so
related to claims in the action within such original juris-
diction that they form part of the same case or contro-
versy under Article II] of the United States Constitution.
Such supplemental jurisdiction shall include claims that
involve the joinder or intervention of additional parties.

This new statute was Congress’s response to this Court's
comment in Finley that ‘‘[w]hatever we say regarding the
scope of jurisdiction conferred by a particular statute can of
course be changed by Congress"’, 490 U.S. at 556, and elimi-
nates for future cases the so-called conflict that the Petition-
ers allege exists in this action. As stated in the legislative
history to this new statute, ‘“‘[iJn providing for supplemental
jurisdiction over claims involving the addition of parties, sub-
section (a) explicitly fills the statutory gap noted in Finley v.
United States.’ H.R. Rep. No. 101-734, 101st Cong. 2d Sess.
29, reprinted in 1990 U.S. Code Cong. & Admin. News 6802,
6875. The statutory change after this case arose refutes Peti-
tioners’ claim that the Fifth Circuit's ruling has some broad
applicability to future cases.

Petitioners nevertheless try to give a semblance of public
significance to this case by arguing that the law under which
it was decided is unaffected by § 1367. Their argument seems
to be that § 1367 does not apply to FSIA jurisdiction and
that a Congressional intent to narrow FSIA jurisdiction
should be read into the fact that § 1441(d) was not itself
amended. While questions as to the relationship of the 1990
legislation to the FSIA are obviously for another day, Peti-
tioners’ argument that § 1367 is irrelevant can be easily dis-
missed.

14

Petitioners state that § 1367 permits supplemental (also
called ‘‘pendent party’’) jurisdiction ‘‘only in a case where a
well-pled federal question is the primary basis of federal
jurisdiction’’, apparently attempting to distinguish such cases
from FSIA cases for which, they say, ‘“‘pendent party juris-
diction of the federal court is not allowed.’’ (Pet. 12) In fact,
by its plain language, § 1367 applies to ‘‘any civil action of
which the district courts have original jurisdiction.’ Under 28
U.S.C. § 1330(a), the district courts have ‘‘original jurisdic-
tion of any nonjury civil action against a foreign state.’’
FSIA cases are squarely within the class of cases to which the
new legislation applies.

C. Petitioners’ argument concerning the purpose of the
FSIA is without merit.

In a further attempt to attract this Court’s attention to this
case, Petitioners have raised an issue that was not raised in
the Fifth Circuit. Petitioners argue that ‘‘the sole purpose”’
for allowing a foreign state to remove under 28 U.S.C.
§ 1441(d) is to provide a federal forum for the adjudication
of sovereign immunity. (Pet. 9-10, 13) This argument is with-
out supporting authority and is frivolous. When Congress
enacted the FSIA, it intended that a// issues in cases involving
a foreign state could be brought before a federal district
court, not just the issue of sovereign immunity. This conclu-
sion follows from the plain language of the statute. It is
made more clear by the legislative history and is confirmed
again by the case law. As this Court stated in Verlinden B.V.
v. Central Bank of Nigeria, 461 U.S. at 489, ‘‘the Act guar-
antees foreign states the right to remove any civil action from
a state court to a federal court.’ (Emphasis supplied.)

The legislative history to the FSIA specifically states that
**broad jurisdiction in the Federal courts should be cenducive
to uniformity in decision, which is desirable since a disparate
treatment of cases involving foreign governments may have
adverse foreign relations consequences’’ and that ‘‘[iJn view
of the potential sensitivity of actions against foreign states
and the importance of developing a uniform body of law in

15

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. 94-1487, 94th Cong., 2d
Sess. 13, 32, reprinted in 1976 U.S. Code Cong. & Admin.
News 6604, 6611, 6631. An even clearer statement of the leg-
islative purpose is contained in the report of the American
Bar Association Section of Internauonal Law to the House of
Delegates recommending passage of the FSIA:

The bill will ensure that the federal courts have subject
matter and personal! jurisdiction over foreign states that
are not entitled to immunity for claims against them by
American citizens. . . . [F]rom the perspective of the
foreign states, the removal provision in the bill will
allow them to seek in the federal courts what they may
regard as greater impartiality and uniformity of deci-
sion.

1976 A.B.A. Int'l L. Rep. 101B at 10. See Arango v. Guz-
man Travel Advisors Corp., 621 F.2d at 1376-77 n.6 (‘‘the
federal hearing is not restricted to [the sovereign immunity]
issue but must proceed to the merits when the foreign state is
found not to be immune."’)” Petitioner's accusations that
**SNECMA clearly did not invoke the federal court jurisdic-
tion in good faith since it waived its claim of immunity
immediately after removal’’ (Pet. 4) and that SNECMA ‘“‘did
not honestly seek the federal court for the determination of
its immunity’’ (Pet. 6) misconceive the scope of SNECMA's
right under the FSIA to litigate all issues in federal court.

12 A survey of the case law illustrates that foreign states often remove
without even making a claim of immunity. For example, a foreign
state which has engaged in commercial! activity in the United States
may remove a civil action originally commenced in state court simply
to extinguish a plaintiff's demand for a jury trial. See, e.g., Williams
v. Shipping Corp. of India, 683 F.2d 875 (4th Cir. 1981), cert. denied,
455 U.S. 982 (1982); Mori v. Port Auth. of New York and New Jersey,
100 F.R.D. 810 (S.D.N.Y. 1984); Herman v. El Al Israel Airlines,
Lid., $02 F.Supp. 277 (S.D.N.Y. 1980).

16

D. Petitioners’ “‘comity’’ and “federalism” arguments
are without merit.

There are no significant comity and federalism issues
present in this case that warrant this Court's attention.
SNECMA's removal of these actions pursuant to the FSIA
rests upon strong federal interests, namely relations with for-
eign governments. Moreover, because this case has no con-
nection whatsoever with Louisiana, there are no significant
State interests which might take precedence over these federal
interests.

This case arises out of an aircraft accident that occurred on
a domestic flight in a foreign country. The claimants are vir-
tually all citizens or residents of the United Kingdom; none
of them are residents of Louisiana or even of the United
States. Furthermore, none of the Respondents are incorpo-
rated in, or have their principal place of business in, Louisi-
ana, and none of Petitioners’ claims against Respondents
arise out of any acts or omissions that occurred in or had any
impact in Louisiana. There is simply no plausible, much less
compelling, policy of comity or federalism that dictates that a
Louisiana state court should decide this case.

17

CONCLUSION

The decision of the Fifth Circuit is not in conflict with any
decision of this Court or of any other Court of Appeals. Fur-
thermore, the decision of the Fifth Circuit does not raise any
important issues regarding the Foreign Sovereign Immunities
Act of 1976, this Court’s Finley decision, the existence of
supplemental jurisdiction, or the relationship between the
state and federal courts. Finally, the Fifth Circuit correctly
decided the scope of removal under 28 U.S.C. § 1441(d) and
correctly concluded that each removed civil action was within
its jurisdiction. Therefore, the Petition for a Writ of Certio-
rari should be, in all respects, denied.

Respectfully Submitted,

Keith Gerrard

John D. Dillow*

Richard C. Coyle

Mark H. Lough

PERKINS COIE

1201 Third Avenue

40th Floor

Seattle, Washington 98101

Randal R. Craft, Jr.*

Michael S. Mitchell

HAIGHT, GARDNER, POOR
& HAVENS

195 Broadway

New York, New York 10007

(212) 341-7000

Attorneys for Respondents

(206) 583-8888

Attorneys for Respondent
The Boeing Company

*Counsel of Record

General Electric Company,
CFM International, Inc.,
and Societe Nationale
d’Etude et de Construction
de Moteurs d’Aviation,
S.A. (SNECMA)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1707%3A2. Public record. Not legal advice.