Appendix — Airbus Industrie, G. I. E. v. Linton
Supreme Court brief1994
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Supreme Court, U.S.
FILED
Y 94 684 0CT 17 19%
OFFiUc Ur in— CLERK
No.
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1994
AIRBUS INDUSTRIE, ET AL.,
Petitioners,
Vv.
LAURA HOWELL LINTON, ET AL.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
Charles W. Schwartz Jacques E. Soiret
Thad T. Dameris Counsel of Record
Dana C. Livingston KIRTLAND & PACKARD
VINSON & ELKINS L.L.P. 1900 Avenue of the Stars
2300 First City Tower Los Angeles, California 90067
1001 Fannin Street Telephone: (310) 552-9700
Houston, Texas 77002-6760 Facsimile: (310) 552-0192
Telephone: (713) 758-3852
Facsimile: (713) 758-2346
Counsel for Petitioners
i
TABLE OF CONTENTS
Opinion Dismissing Appeal and Writ of Mandamus
(Court of Appeals, August 16, 1994)....... Appendix A
Order Remanding Case to State Court
(District Court, June 24, 1993): ......... Appendix B
Order Modifying Remand Order
(District Court, July 8, 1993)........... Appendix C
Order Denying Motion to Remand
(District Court, April 30, 1993).......... Appendix D
Order Denying Airbus’ and Aeroformation’s
Foreign Sovereign Immunity
(District Court, July 21, 1992).......... Appendix E
Order Staying Remand Order
(District Court, June 29, 1993).......... Appendix F
Order Denying Petition for Rehearing and
Suggestion for Rehearing En Banc
(Court of Appeals, September 13, 1994) . . . . Appendix G
Judgment Dismissing Appeal and Writ of
Mandamus
(Court of Appeals, August 16, 1994)....... Appendix H
Order Dismissing Prior Appeal
(Court of Appeals, February 24, 1993)... ... Appendix I
Order Denying Petition for Rehearing in
Prior Appeal
(Court of Appeals, March 18, 1993)....... Appendix J
A-1
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-7479
LAURA HOWELL LINTON, INDIVIDUALLY
AND AS THE PERSONAL REPRESENTATIVE
OF THE ESTATES OF ANDREW JAY HOWELL AND
SARAH STOLL HOWELL, DECEASED, AND ON
BEHALF OF RENA HOWELL, ET AL.,
Plaintiffs-Appellees,
versus
AIRBUS INDUSTRIE, ET AL.,
Defendants,
AIRBUS INDUSTRIE AND AEROFORMATION,
Defendants-Appellants.
nsoli Wi
MR. AND MRS. STAN MOSS, INDIVIDUALLY
AND AS TEMPORARY ADMINISTRATORS OF THE
ESTATE OF ALISON LESLIE MOSS,
Plaintiffs-Appellees,
versus
AIRBUS INDUSTRIE, ET AL.,
Defendams,
AIRBUS INDUSTRIE AND AEROFORMATION,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
(August 16, 1994)
A-2
WIENER, Circuit Judge.
Defendants-Appellants Airbus Industrie, G.1.E.
("Airbus") and its subsidiary, Aeroformation ("AeF"),
(collectively "Airbus Defendants") were sued in state court.
The Airbus Defendants removed this case to federal court,
where they sought immunity from suit under the Foreign
Sovereign Immunities Act ("FSIA").' Jurisdiction for this
removal was based on two distinct grounds: diversity
jurisdiction under 28 U.S.C. § 1332, and "federal question"
jurisdiction under the FSIA and 28 U.S.C. §§ 1441 & 1330.
In an earlier order, the district court had concluded
that the Airbus Defendants did not qualify as
instrumentalities of foreign states. The Airbus Defendants
immediately appealed that order, but in an unpublished
opinion ("Airbus I")? we dismissed that appeal for lack of
jurisdiction and remanded the case to the district court. On
remand, the district court concluded that there was no
diversity jurisdiction—hence no_ subject matter
jurisdiction—and accordingly remanded the case to state
court under 28 U.S.C. § 1447.
Once again the Airbus Defendants are before us
seeking review, claiming, inter alia, that the FSIA order is
an order that may be considered separate from the order to
remand under the “separable order" doctrine; hence appellate
review of the FSIA order is not precluded by § 1447. As
explained below, however, the FSIA order is not
"conclusive" and thus not a separable order under controlling
jurisprudence. Moreover, as the FSIA order will have no
' Codified at 28 U.S.C. §§ 1602-11.
2 Airbus Industrie v. Linton, No. 92-7564 (Sth Cir. Feb. 24. 1993).
A-3
preclusive effect on state courts, we can find no injustice
here that would warrant recalling our mandate in Airbus I so
as to consider the merits of that order.
The Airbus Defendants also claim that we may review
the remand order because the remand was erroneously based
on a “post-removal" event, i.e., a stipulation that effectively
made one of the plaintiffs “stateless,” thereby destroying
diversity jurisdiction. We conclude, however, that § 1447
interdicts our jurisdiction to review remands for lack of
subject matter jurisdiction, even if such remands are
erroneously based on post-removal events. Accordingly, this
appeal is dismissed.
|
FACTS AND PROCEEDINGS
Two sets of plaintiffs sued, among others, the Airbus
Defendants in two separate suits in a Texas state court for
damages caused by a plane crash in India. The Airbus
Defendants removed these cases to federal court, where they
were consolidated without objection into one case “for all
purposes." The Airbus Defendants asserted two independent
bases for jurisdiction: 1) diversity jurisdiction under 28
U.S.C. § 1332, and 2) “federal question” jurisdiction under
the FSIA and 28 U.S.C. §§ 1441(d) & 1330(a). Once in
federal court, the Airbus Defendants filed a motion for
dismissal, ciaiming that: 1) they were immune from suit
under the FSIA; and 2) they were not subject to in personam
jurisdiction. In addition, the Airbus Defendants requested
dismissal on forum non conveniens grounds. In response,
the plaintiffs filed a motion to remand.
In a published order, the district court ruled that
neither Airbus nor its subsidiary, AeF, were instrumentalities
A-4
of foreign states.’ The essence of that ruling by the district
court is that, even assuming that the interests of several
foreign countries may be combined, ("pooling"), the interest
of one of the foreign countries here at
issue—Germany—could not be included in this particular
pool. According to the district court, Germany’s interests
could not be pooled with the interests of other countries
because Germany did not own a majority interest in the
companies through which Germany held its ownership
interest in the Airbus Defendants ("tiering").4 Absent
inclusion of Germany’s interest, neither Airbus Defendant
had a majority of its shares owned by a foreign state (or
states) as required by 28 U.S.C. § 1603(b)(2).
The Airbus Defendants immediately appealed this
order of the district court. In that appeal—Airbus I—we
dismissed for lack of appellate jurisdiction.’ We concluded
that, althougn denials of motions to dismiss for lack of FSIA
immunity generally are appealable despite their interlocutory
nature, the district court had failed to rule on the entirety of
the motion before it, specifically, on the issues of jurisdiction
in personam and forum non conveniens. In remanding, we
required the district court to “rule on plaintiffs’ motions to
remand and defendants’ motions to dismiss expeditiously. "®
Sometime after we remanded to the district court but
before it ruled on the remanded issues, the Airbus
Defendants entered into joint stipulations with plaintiffs
regarding the residency and travel patterns of certain of those
> Linton v. Airbus Industrie, 794 F.Supp. 650 (S.D.Tex. 1992).
* Id. at 652-53
; Airbus Industrie v. Linton, No. 92-7564 (Sth Cir. Feb. 24, 1993).
‘a
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plaintiffs. Presumably the Airbus Defendants agreed to enter
into these stipulations in an effort to bolster their forum non
conveniens argument. Unfortunately for those defendants,
though, these stipulations were to have an undesired effect.
When the district court did issue its final order on
remand from Airbus I, it addressed—but did not rule
upon—the issues remaining in the Airbus Defendants’ motion
to dismiss, ruling only on the plaintiffs’ motion to remand.
After noting that it would have dismissed on either in
personam jurisdiction or forum non conveniens grounds, the
district court observed that there was "a fly in this ointment."
That fly had been spawned by the joint stipulations that had
the effect of recognizing one of the plaintiffs to be a
"stateless" person for jurisdictional purposes, thereby
destroying diversity jurisdiction. As that court’s earlier order
had rejected the FSIA as a basis for "federal question"
jurisdiction, the district court concluded that it lacked subject
matter jurisdiction altogether, and remanded accordingly,
stating: "It is further ORDERED that Plaintiffs’ Motion to
Remand is GRANTED FOR LACK OF SUBJECT MATTER
JURISDICTION...." Presumably due to its lack of
jurisdiction, the district court declined to issue any order or
ruling on the Airbus Defendants’ motion to dismiss.
Encouraged to do so by the district court,’ the Airbus
Defendants timely appealed; and the district court stayed its
remand order pending resolution of this appeal.
? Despite its remand for lack of subject matter jurisdiction, the
district court believed that the FSIA Order was separable and appealable,
stating:
As the Court understands it, an order remanding a case for lack
of subject matter jurisdiction is not reviewable on appeal.
However, Defendants are entitled to appeal the Court’s previous
ruling that they are not foreign sovereigns as defined by the
Foreign Sovereign Immunities Act ("FSIA").
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I]
DISCUSSION
A. Jurisdictional Bar of § 1447(d) and the FSIA
Subsection (c) of § 1447 provides in pertinent part
that: "If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall
be remanded."* Subsection (d) of that same _ section
provides: "An order remanding a case to the State court from
which it was removed is not reviewable on appeal or
otherwise."® The Supreme Court has made abundantly clear
that subsection (d) operates as an absolute bar to appellate
review, Stating that § 1447(d) speaks in terms of an
“unmistakable command" so as to preclude review of
remands for grounds stated in § 1447(c) “by appeal,
mandamus, or otherwise."'°
Albeit under distinguishable circumstances, we
addressed the relationship between the FSIA and the
jurisdictional bar of § 1447(d) in Mobil Corp. v. Abeille
General Insurance Co.'' Mobil had sued several insurance
companies in a declaratory judgment action in state court.
One of those insurance companies, the Insurance Company
of Ireland ("ICI"), claimed that it was an instrumentality of
a foreign state under the FSIA and removed to federal court.
* 28 U.S.C. § 1447(c) (emphasis added).
* 28 U.S.C. § 1447(d).
10 See Gravitt v. Southwesterm Bell Tel. Co., 430 U.S. 723, 97
S.Ct. 1439, 52 L.Ed.2d 1 (1977) (per curiam); Thermtron Products, Inc.
v. Hermansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 589, 46 L.Ed.2d
542 (1976).
"984 F.2d 664 (Sth Cir. 1993).
A-7
Presumably because it was engaged in a commercial activity
in the United States, ICI made no claim to immunity'’?; ICI
nonetheless contended that its status as an instrumentality of
a foreign state entitled it to a bench trial in a federal forum
under the FSIA and 28 U.S.C. § 1441(d). The district court
disagreed, concluding that ICI was not an instrumentality of
a foreign state, and consequently remanded to the state
court—at least in part—for lack of subject matter
jurisdiction.’
On appeal, ICI argued that the FSIA fell within an
exception to § !447(d). Specifically, it claimed that the
decision on FSIA immunity is typically a substantive one that
would terminate the litigation before remand if immunity
were granted. ICI also observed that denials of sovereign
immunity are subject to interlocutory appeal. ICI thus
reasoned that unique FSIA concerns justified reviewing the
district court’s “substantive” decision denying foreign-state
status."
In Mobil we flatly rejected ICI’s argument. We first
stated that Congress enacted § 1447(d) so that state court
actions could proceed without delay if the district court
remanded for lack of jurisdiction—regardless of me
correctness of the district court’s jurisdictional decision."”
We then rejected any attempt to cloak an FSIA jurisdictional
call with a substantive mantel, stating that “[a]lthough the
existence of removal jurisdiction may depend on substantive
> See 28 U.S.C. § 1605(a)(2) (providing that immunity does not
apply to certain types of commercial activity).
'3 Id. at 665-66.
4 Id. at 666.
1S Id.
A-8
matters, the absence of removal jurisdiction is a procedural
defect governed by § 1447(c)."'© We concluded with the
recognition that even though an unreviewed remand may—as
a practical matter—work a deprivation of immunity, such a
risk was implicit in Congress’s decision not to create in the
FSIA an express exception to non-reviewability."”
B. Attempts to Avoid the § 1447 Jurisdictional Bar
Against the harsh backdrop of Mobil and § 1447 the
Airbus Defendants raise a plethora of imaginative theories to
encourage our finding of jurisdiction to hear this appeal.
Unfortunately for the Airbus Defendants, however, none of
these theories "hang together."
1. Separability Doctrine
The Airbus Defendants contend that the district
court’s ruling on their status under the FSIA is a “separable
order" reviewable apart from the decision to remand. They
urge that Mobil does not control here because—unlike the
defendant in Mobil—the Airbus Defendants do not seek
review of the district court’s order of remand; rather, they
seek review of the FSIA order itself. Additionally, note the
Airbus Defendants, the defendant in Mobil did not claim
immunity and likely could not have, given the commercial
activity exception,’* whereas the Airbus Defendants
vigorously assert their entitlement to immunity—which
'6 Id. (quoting Hopkins v. Dolphin Titan Int'l, Inc., 916 F.2d 924,
926 (Sth Cir. 1992)).
'7 Jd. The court in Mobil also noted that this circuit had refused to
create implicit exceptions to § 1447(d) in other contexts. /d.
% See 28 U.S.C. § 1605(a)(2).
A-9
typically gives rise to an order that is immediately appealable
under the Cohen collateral order doctrine. Although the
Airbus Defendants make an appealing argument, we must
conclude that the FSIA order is not "separable" and hence
not reviewable on appeal.
The notion that certain orders may be reviewed on
appeal if such orders are "separable" from the order of
remand originated with the Supreme Court’s decision in City
of Waco v. United States Fidelity & Guaranty Co., 293 U.S.
140, 55 S.Ct. 6, 79 L.Ed. 244 (1934). In City of Waco,
Curtis Boggs filed suit in Texas state court against the city of
Waco, Texas, and its contractor, Combs & Glade, for
damages Boggs allegedly caused by a street obstruction.'”
The city then brought United States Fidelity Company &
Guaranty Company ("Fidelity"), surety on a bond of Combs
& Glade, into the suit by way of a “cross-action," alleging
that Fidelity “was liable under the bond to pay whatever
amount might be adjudged due by the City by reason of the
fault [Combs & Glade]."" Fidelity removed the case to
federal court, and Boggs moved for a variety of relief,
including that the entire case be remanded or that the case
against Fidelity be dismissed and the remainder of the case
remanded.’!
In a single order, the district court denied Boggs’
motion to remand the entire case but granted the motion to
dismiss the cross-action, finding that as to Boggs’ cause of
action “the Fidelity Company was an unnecessary and
"9 City of Waco, 293 U.S. at 141, 55 S.Ct. at 6.
» Ia.
2 Jd. at 141-42, 55 S.Ct. at 6-7.
A-10
improper party." Because this dismissal eliminated
diversity jurisdiction, the court remanded the remainder of
the case for lack of subject matter jurisdiction. ”
The Supreme Court eventually determined that the
remand order did not preclude appellate review of the
dismissal order, stating:
True, no appeal lies from the order of remand; in
logic and in fact the decree of dismissal preceded that
of remand and was made by the District Court while
it had control of the cause. Indisputably, this order
is the subject of an appeal; and, if not reversed or set
aside, is conclusive upon the [city of Waco].
The Court also explained that although "a reversal cannot
affect the order of remand, ... it will at least, if the dismissal
of the [city’s] complaint was erroneous, remit the entire
controversy, with the Fidelity Company as a party, to the
state court for such further proceedings as may be in
accordance with law." ”
In determining whether an order is "separable" and
thus can be afforded appellate review under City of Waco,
we have focused on language in the Court’s opinion
suggesting that an order is “separable” from an order of
remand if it precedes that of remand “in logic and in fact”
and is "conclusive," i.e., it will have the preclusive effect of
2 Id. at 142, 55 S.Ct. at 6-7.
> id.
* Id. at 143-44, 55 S.Ct. at 7.
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being functionally unreviewable in the state court.”°
Although the district court’s FSIA order in the instant case
may have preceded the court’s order of remand "in logic and
in fact,” we cannot say that it was “conclusive.” In light of
the district court’s ultimate conclusion that the entire case
had to be remanded for lack of subject matter jurisdiction,
the district court’s determination that the FSIA is inapplicable
to the Airbus Defendants can be deemed a jurisdictional
finding under the facts of this case and, as such, can be
reviewed by the state court upon remand.” Under City of
Waco and the jurisprudence of this circuit, the district court’s
> See, e.g., John G. & Marie Stella Kenedy Memorial Found. v.
Mauro, 21 F.3d 667, 670 (Sth Cir. 1994) (determining that the district
court’s dismissal of § 1983 claims barred by the Eleventh Amendment
before its remand of pendent state law claims was reviewable on appeal);
Mitchell v. Carlson, 896 F.2d 128 (Sth Cir. 1990) (concluding that the
portion of a remand order that resubstituted an individual for the United
States as defendant and thus destroyed removal jurisdiction was
reviewable on appeal because it was separable from the remand order and
final for purposes of appeal); Adams v. Sidney Schafer & Assocs. Inc. (In
re Adams), 809 F.2d 1187, 1189 (Sth Cir. 1987) (explicitly observing
that unless the district court’s “reinstatement” order were reviewed on
appeal, it would be “functionally unreviewable” by the state court); of
Soley v. First Nat'l Bank of Commerce, 923 F.2d 406, 419 (Sth Cir.
1991) (explaining that district court's determination that the plaintiff's
claims were not within the boundaries of ERISA pre-emption was a
"jurisdictional finding” under the facts of the case that could be reviewed
by the state court on remand and thus was not “separable”).
% Soley, 923 F.2d at 409-410 (indicating that findings made for the
purpose of determining federal jurisdiction have no preclusive effect on
the state court); see Nutter v. Monongahela Power Co., 4 F.3d 319, 322
(4th Cir. 1993); Baldridge v. Kentucky-Ohio Transp., Inc., 983 F.2d
1341, 1347-50 (6th Cir. 1993); Whitman v. Raley’s Inc. , 886 F.2d 1177,
1181 (9th Cir. 1989); see also Mobil, 984 F.2d at 666 (rejecting an
attempt to cloak an FSIA jurisdictional call with a substantive mani.).
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FSIA order is therefore not “conclusive” upon the Airbus
Defendants so as to be "separable" and hence reviewable by
this court.
2. Non-Preclusive Nature of FSIA Order
In apparent recognition of our inability to review the
FSIA order simpliciter, the Airbus Defendants proffer two
arguments. First, they suggest that if no other alternative
method exists for acquiring jurisdiction, we should exercise
our inherent powers to recall our earlier mandate "to prevent
injustice." In support of this contention, the Airbus
Defendants point out that they have assiduously pursued their
claim of immunity, both at trial and on appeal. Yet their
appeal in Airbus I was dismissed as premature and their
second appeal is being treated at “too late." 7’ The Airbus
Defendants conclude that such a result effectively deprives
them of immunity, thereby working an injustice that—given
the absence of other options—can only be prevented here by
a recall of the mandate. The poignancy of this claim is
enhanced by the fact that the Airbus Defendants have, at
least facially, presented a strong factual and legal claim of
immunity.”*
27 We observe the Airbus Defendant recognized this problem early-
on in their Petition for Panel Rehearing presented to the Airbus I panel.
Unfortunately, such foresight is of little help here.
% As noted in Part I, the resolution of the Airbus Defendants’ claim
of immunity turns on whether through "“tiering" a foreign state’s
ownership interest can be attributed when that foreign state did not own
a majority interest in the company that held the ownership interest in
Airbus. The district court answered this question in the negative. See
Linton, 794 F.Supp. at 653-54. Hence, Germany’s interests could not be
pooled since Germany failed to own a majority interest in the companies
through which Germany held its ownership interest in the Airbus
Defendants. The controlling statute, however, erects no explicit bar to
A-13
Although the Airbus Defendants are correct in
asserting that we have authority to recall our mandate “to
present injustice," we discern no such injustice here.
Significantly, the district court’s conclusions regarding the
FSIA status of the Airbus Defendants were “jurisdictional”
under the facts of this case; they thereby have no preclusive
effect on the state courts.*° Thus, the only consequence of
the methods by which a foreign state may own an instrumentality, merely
requiring that the entity claiming immunity—not its parent—have "a
majority of [its] shares or other ownership interest ... owned by a foreign
state or a political subdivision thereof." 28 U.S.C. § 1603(b)(2). There
is no mention of “voting” or “control” majority, thus equitable or
beneficial majority ownership is not expressly prohibited from serving.
We also observe that the district court questioned whether the
interests of two or more foreign states could be combined, commenting
that "pooling" appears to be foreclosed by the use of the state (“singular”)
in the FSIA. Linton, 794 F.Supp at 652. This reasoning probably should
be examined in light of the rules of statutory construction, e.g., 1 U.S.C.
§ 1 (providing that “words importing the singular include and apply to
several persons, parties, or things” unless the context indicates
otherwise), and in light of the cases in which the pooling issue has been
considered. See e.g., LeDonne v. Gulf Air, Inc., 700 F.Supp. 1400,
1405-06 (E.D.Va. 1988) (concluding that pooling was allowed);
International Ass'n of Machinists & Aerospace Workers v. OPEC, 477
F.Supp. 553, 568-69 (C.D.Cal. 1979) (assuming same), aff'd on other
grounds, 649 F.2d 1354 (9th Cir. 1981), cert. denied, 454 U.S. 1163,
102 S.Ct. 1036, 71 L.Ed.2d 319 (1982); Rios v. Marshall, 530 F.Supp.
351, 371 (S.D.N.Y. 1981) (assuming same).
® See Sth Cir.R. 41.2; see also, e.g., Masinter v. Tenneco Oil Co.,
934 F.2d 67, 68 (Sth Cir. 1991) (stating that a mandate may be recalled
only to prevent injustice); Canal Ins. Co. v. First Gen. Ins. Co., 901
F.2d 45, 46-47 (Sth Cir. 1990) (recalling mandate to modify it so that the
district court could consider awarding interest).
%® See Soley v. First Nat'l Bank of Commerce, 923 F.2d 406, 409
(Sth Cir. 1991) (concluding that orders construed as "jurisdictional" and
that lead to remand under § 1447 do not have preclusive effects on state
A-14
not recalling the mandate here is that the Airbus Defendants
must have the merits of their FSIA claims determined by a
state court rather than by a federal court. As such, there is
no “injustice,” for our counterparts in the state system are
competent to address the Airbus Defendants’ claims of
immunity under the FSIA.*' Accordingly, we decline their
invitation to recall the mandate of Airbus I.
The Airbus Defendants argue in the alternative that
the district court’s failure to rule is itself an appealable denial
of immunity. In support of this claim the Airbus Defendants
cite Helton v. Clements,” in which we held that a failure to
rule on a motion for immunity may itself constitute an
appealable decision. They point out correctly that Helton is
premised on the notion that a refusal to rule on a motion for
immunity effectively denies that immunity by subjecting the
defendants to the burdens of trial—the same expense and
exposure that foreign sovereign immunity is designed to
prevent.*?> The Airbus Defendants complain that they are
indeed suffering here from the very harm that Helton
envisioned and sought to prevent. They insist that, by
"refusing" to rule on their motion to dismiss, the district
court has subjected them to a remand and the likelihood of
trial in state court.
Although we sympathize with the Airbus Defendants’
plight, we do not read Helton as applicable to the instant
courts); Mobil, 984 F.2d at 666 (observing that state courts would be able
to reconsider the FSIA issues after remand).
3} See 28 U.S.C. §§ 1602, 1603-11 (providing statutory grant of
concurrent jurisdiction to state courts to resolve FSIA suits).
2 787 F.2d 1016, 1017 (Sth Cir. 1986).
3 Jd. at 1017.
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facts. In Helton, the refusal to rule subjected the defendants
to the burdens of trial, thereby effectively negating the
defendant’s immunity. As noted here, however, the refusal
to rule—even if it can be properly characterized as
such*—merely means that the Airbus Defendants’ claims to
immunity will be considered by the state courts instead of by
a federal appellate court. Thus, unlike the defendants in
Helton, the Airbus Defendants have not been effectively
denied their claimed immunity; they simply must have that
issue resolved in a different forum—one which undoubtedly
consider federal jurisprudence to be instructive, albeit non-
binding.
3. Mandamus and § 1447
The Airbus Defendants also contend that 1) the
district court remand was based on a “post-removal
event"—the citizenship stipulation—2) such remand meant
that the case was originally “properly removable," and 3) the
remand for this post-removal event was thus not based on a
ground enumerated in § 1447(c). Therefore, conclude the
* The district court refused to rule on the motion to dismiss on
remand because it concluded that it lacked subject matter jurisdiction.
Refusing to rule under these circumstances was proper. See, e.g., In re
Carter, 618 F.2d 1093, 1098 (Sth Cir. 1980). Thus, the only valid
complaint left is that the district court refused to rule before the first
appeal. But unlike the court in Helton—which explicitly refused to rule
on the immunity issue—the district court in the instant case did in fact
make such a ruling; it merely did so in a form that was presumed to be
unappealable owing to that court's failure to rule on the other grounds
raised in the motion to dismiss. Because we conclude that the Airbus
Defendants’s are not precluded from reurging their immunity defense in
state court, we need not, and therefore do not, decide whether a ruling
on immunity in a form that is deemed unappealable is itself a “refusal to
rule” subject to appeal.
A-16
Airbus Defendants, this remand is reviewable by
mandamus.”
We find this argument intriguing yet unpersuasive.
Initially, we note that mandamus adds nothing to the
authority of this court to review jurisdictional remands under
§ 1447. When such a remand order is not reviewable by
appeal it is not reviewable “otherwise."”°
Turning to the merits of the Airbus Defendants’
contention, we observe that—even if this stipulation can
properly be considered a “post-removal" event*’—we have
35 The Airbus Defendants also argue that this stipulation applied to
only one of the two cases that had been consolidated here. Hence, the
order remanding both cases for lack of subject matter jurisdiction was in
error. Such an argument misapprehends the nature of the bar in § 1447:
If a district court remands for lack of subject matter jurisdiction, then that
remand order may not be reviewed even if it were clearly erroneous.
E.g., Tillman v. CSX Transportation, 929 F.2d 1023, 1028 (Sth Cir.
1991).
% See 28 U.S.C. § 1447(d); Gravitt, 430 U.S. at 723, 97 S.Ct. at
1439 (holding that we cannot use mandamus to review a remand order
that would not be reviewable by direct appeal).
7 The plaintiffs argue that no post-removal event is involved here,
as the stipulation merely related to the plaintiffs status at the time of
removal. CF. Asociacion Nacional de Pescadores v. Dow Quimica, 988
F.2d 559, 565 (Sth Cir. 1993) (concluding that affidavit which. merely
clarified the amount in controversy at time of removal was not a post-
removal event). The Airbus Defendants claim that the stipulation itself
is the post-removal event; according to them the stipulation did not relate
back to the plaintiffs status at the time of removal because the district
court had previously held that the plaintiffs’ petition estopped them from
contesting that status. Cf. St. Paul Mercury Indem. Co. v. Red Cab Co.,
303 U.S. 283, 290, 58 S.Ct. 586, 590-91, 82 L.Ed. 845 (1938) (events
occurring subsequent to removal generally do not oust a district court of
jurisdiction). As we conclude that this stipulation is not reviewable even
A-17
twice before concluded that jurisdictional remands premised
on post-removal events are not reviewable. In Tillman v.
CSX Transportation, the district court remanded for lack
of subject matter jurisdiction based on a post-removal
event—the joinder of a state agency. Despite the fact that
this decision was clearly wrong—and that it was based on a
post-removal event—we held that it was nonetheless non-
reviewable because the remand was granted on § 1447(c)
jurisdictional grounds.” Tillman merely followed our prior
precedent, /n re Merrimack Mutual Fire Insurance Co. ,*° in
which we stated that such remands are not reviewable in light
of Supreme Court precedent and the statutory policy of
avoiding substantial delays caused by appellate review.
Finally, we conclude that the attempt by the Airbus
Defendants to distinguish cases such at Tillman simply does
not work.’ The Airbus Defendants argue that Tillman
involved the joinder of a party, one of the grounds expressly
enumerated in § 1447(e). Accordingly, insist the Airbus
Defendants, as this is a ground enumerated in subsection (e)
if it were classified as a post-removal event, we need not decide which
of the foregoing characterizations is more apt.
8% 999 F.2d 1023, 1025 (Sth Cir.), cert. denied, — U.S. —, 112
S.Ct. 176, 116 L.Ed.2d 139 (1991).
% ‘Id. at 1028-29.
® 587 F.2d 642, 647-49 (Sth Cir. 1978).
‘| The Airbus Defendants also cite recent precedent in the Sixth
Circuit and the Seventh Circuit that authorizes review of remands based
on post-removal events. See Baldridge v. Kentucky-Ohio Transp. , 983
F.2d 1341, 1348-49 (6th Cir. 1993); In re Shell Oil Co., 966 F.2d 1130,
1132 (7th Cir. 1992). Airbus and AeF do not argue, however, that these
cases recognize any grounds—such as a favorable statutory change—that
would negate the precedential force of Tillman and Merrimack.
A-18
of § 1447, it falls within the bar contained in subsection (d)
of that same section. The instant case is thus different, they
urge, because it involves a remand based on a non-
enumerated ground—the loss of diversity jurisdiction caused
by a change in citizenship status.
But our cases, such as Tillman, are not based on any
purported "enumerated-non-enumerated" distinction between
the various grounds for the lack of jurisdiction. Rather,
these cases are premised on the concept that when the district
court declares that it is remanding for lack of subject matter
jurisdiction, its remand order may not be reviewed on
appeal, no matter how erroneous. The “operative fact" is the
ultimate one—the districts court’s conclusion that it no longer
has jurisdiction. Efforts to dissect the reasoning of that
conclusion so as to find appellate jurisdiction are little more
than veiled attempts to investigate indirectly the correctness
of the district court’s conclusion. Our concluding statement
in Tillman regarding the non-reviewability of such error is
instructive:
Consequently, having been erroneously
remanded on § 1447(c) jurisdictional grounds, this
case is irretrievably beyond anything we can do about
it. We cannot review it by any means. We
emphasize our complete inability to do anything about
the trial court’s joinder order, whether interlocutory
or final, because what we cannot review we cannot
by some juridical self-help get back to federal
court.”
@ — Tillman, 929 F.2d at 1029.
A-19
Ill
CONCLUSION
I call them the Wards in Jarndyce. They are caged
up with all the others. With Hope, Joy, Youth,
Peace, Rest, Life, Dust, Ashes, Waste, Want, Ruin,
Despair, Madness, Death, Cunning, Folly, Words,
Wigs, Rags, Sheepskin, Plunder, Precedent, Jargon,
Gammon, and Spinach!**
Like the poor Wards in Jarndyce, the Airbus
Defendants have searched in vain for resolution of their
claim. We take comfort, though, in the fact that, unlike the
Wards in Jarndyce—who were forever consigned to wander
about in the fog of Chancery court—the Airbus Defendants
will be able to have the merits of their claim of FSIA
immunity heard, albeit in state court. We are confident that
there the FSIA immunity claim and its central issues of
pooling and tiering will receive the full, objective and
learned consideration to which they are clearly entitled.
As we conclude that, under the peculiar circumstances
of this matter, the district court’s remand for lack of subject
matter jurisdiction deprives us of jurisdiction to review the
instant case, the motions of the Airbus Defendants that we
recall the mandate in Number 92-7564 and that we issue a
writ of mandamus are denied; and the motion of appellees
that this appeal be dismissed is granted.
DISMISSED.
© CHARLES DICKENS, BLEAK HOUSE, ch. 60 (1853).
B-1
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
LAURA HOWELL LINTON,
ET AL.,
Plaintiffs;
VS.
AIRBUS INDUSTRIE, ET AL.,
Defendants;
MR. & MRS. STAN MOSS,
ET AL.,
Plaintiffs;
VS.
AIRBUS INDUSTRIE, ET AL.,
Defendants.
ORDER
§
§
§
§
§ CIVIL ACTION NO.
§ G-92-102
§
§ CONSOLIDATED
§ WITH
§
§
§
§ CIVIL ACTION NO.
§ G-92-103
§
§
Before the Court is the Motion to Dismiss of
Defendants Airbus Industrie and Aeroformation. ' In their
first responsive pleading filed in this Court, Defendants
moved to dismiss all claims against them for, inter alia, lack
of personal jurisdiction and forum non conveniens. The
Court considers each of these contentions in turn.
! Hereinafter referred to collectively as “Defendants.”
B-2
I. PERSONAL JURISDICTION
A federal court may not consider a forum non conveniens
motion if it lacks jurisdiction over the parties. Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 504 (1947); Allstate Life
Ins. Co. v. Linter Group Ltd,, 782 F.Supp. 215, 219 (S.D.
N.Y. 1992). If personal jurisdiction is challenged, the
burden is on the plaintiff to prove the existence of
jurisdiction by a preponderance of the evidence. Linter, 782
F. Supp. at 219-220. Initially, however, the plaintiff is only
required to make a prima facie showing that jurisdiction
exists. See, e.g., id., Villar v. Crowley Maritime Corp.,
780 F.Supp. 1467, 1481 (S.D. Tex. 1992), aff'd, Nos. 92-
7162, 93-7036, slip op. 4369, 4379 (Sth Cir. May 25, 1993).
In the instant case, Plaintiffs have failed to respond to
Defendants’ motion. As the other evidence in the record
fails to establish prima facie evidence of this Court’s ability
to exercise personal jurisdiction over Defendants, the Court
must conclude that it lacks personal jurisdiction over them.
Il. FORUM NON CONVENIENS.
If this Court could exercise jurisdiction over
Defendants, the Court would dismiss this action for forum
non conveniens.
A. Choice of Law
Plaintiffs recognize that “the Fifth Circuit has
previously held that the Federal law of forum non conveniens
applies in a diversity case," but then go on to argue that this
B-3
Court should apply Texas forum non conveniens law, ”
rather than federal law, in this case. However, in In re Air
Crash Disaster,’ the Fifth Circuit, in a carefully considered
opinion, expressly held that federal courts must apply federal
forum non conveniens law. Id. at 1156-59. The Fifth
Circuit has repeatedly affirmed this conclusion. See, ¢.g.,
Villar v. Crowley Maritime Corp., Nos. 92-7162, 93-7036,
slip op. 4369, 4379 (Sth Cir. May 25, 1993); Nolan v.
Boeing Co., 919 F.2d 1058, 1068 n.11 (Sth Cir. 1990), cert.
denied, 111 S.Ct. 1587 (1991). Thus, Plaintiffs’ argument
to the contrary is patently frivolous and exceeds the bounds
of zealous advocacy. Villar, slip op. at 4381. The only
forum non conveniens issue before the Court is whether
dismissal is appropriate under federal law.
ye Application of Federal Forum Non
Conveniens Law.
Before dismissing a case for forum non conveniens,
a court must first determine whether an adequate foreign
forum exists. In re Air Crash Disaster, supra, 821 F.2d at
1165. A forum is adequate if all the parties are subject to
jurisdiction there, the entire case can be heard there, and all
the parties will be treated fairly. Id.
2 In Dow Chem. Co. v. Castro Alfaro, 786 S.W.2d 674, 677-79
(Tex. 1990), cert. denied, 498 U.S. 1024 (1991), the Texas Supreme
Court held that, under Texas law, a district court may not dismiss a
wrongful death or personal injury action for forum non conveniens.
Recently, this decision was legislatively overruled. See 6! U.S.L.W.
2580 (March 30, 1993).
> $21 F.2d 1147 (Sth Cir. 1987) (en banc), vacated on other
1032 (1989).
490 U.S.
B-4
Several federal courts have found that both India and
France are adequate forums for resolving claims similar to
those asserted in the instant case. See, e.g., Piper Aircraft
Co. v. Reyno, 454 U.S. 235, 252 n.18 (1981) (France);
Chhawchharia v. Boeing Co., 657 F. Supp. 1157, 1159-60
(S.D. N.Y. 1987) (India); In re Union Carbide Corp. Gas
Plant Disaster, 634 F.Supp. 842, 845-52 (S.D. N.Y. 1986)
(India), aff'd as modified, 809 F.2d 195 (2d Cir.), cert.
denied sub nom, Exacuniie Cott heii ac Metoe. of
India, 484 U.S. 871 (1987). The Court has considered these
decisions and other similar ones and is in agreement with
their conclusions.
Additionally, in the instant case, Defendants have
agreed to submit to the jurisdiction of the Courts of either
India or France, to waive all limitations defenses, and to
condition dismissal from this Court to allow for reinstate if
the foreign courts decline to exercise jurisdiction. Under
these circumstances, both India and France are adequate
foreign forums.
Plaintiffs’ only argument to the contrary is that,
because neither India or France permits contingent fee
arrangements, a forum non conveniens dismissal will
effectively end this litigation. While this may be true, it is
not a persuasive argument. To say that Plaintiffs will not,
for economic reasons, pursue their claims in French or
Indian courts is not to say that those courts would not afford
them a remedy. _ Plaintiffs’ preference for an American
forum does not render either France or India inadequate.
Once it is determined that an adequate foreign forum
exists, a court must balance the public and private interest
factors outlined by the Supreme Court in Gulf Oil Corp. v.
Gilbert, 330 U.S. 501, 508-09 (1947). eae interest
factors include:
B-5
[T]he relative ease of access to sources of proof;
availability of compulsory process for attendance of
unwilling, and the cost of obtaining attendance of
willing, witnesses; possibility of view of premises, if
view would be appropriate to the action; and all other
practical problems that make trial of a case easy,
expeditious and inexpensive. There may also be
questions as to the enforceability of a judgment if one
is obtained.
Id. at 508.
The relevant public factors include
the administrative difficulties caused by crowded
dockets, the burden of imposing jury duty on citizens
of a forum with no relation to the dispute, the local
interest in having localized controversies decided in
that locality, and the appropriateness of deciding
diversity cases in the forum whose law provides the
substantive rules of decision.
, supra, 780 F. Supp. at
1484-85 (citing id. at 508-09).
In the instant case, after carefully examining the
record, the Court is convinced that, assuming it has
jurisdiction and that venue was properly laid, a forum non
conveniens dismissal is appropriate. As to the private
factors, many of the Plaintiffs are not United States citizens’
and none of the few that are are residents of Texas.
Moreover, this accident occurred in India. Should a view of
the crash site be necessary, India would be a much more
convenient forum and France would be at least as
* However, several are citizens of India.
B-6
convenient. Also, many of the witnesses with knowledge of
Defendants’ manufacturing and design procedures are located
in France. Similarly, many of the witnesses with knowledge
of the crash and of related activities subsequently undertaken
are in India. Likewise, there is no evidence that the cost of
obtaining witnesses will be any greater in France or India
than it would be in Texas.* Thus, on balance, the Court
believes that the private interest factors favor dismissal.
Similarly, the public interest factors also favor
dismissal. This action is probably governed by foreign law.°
The courts of India and France are in a better position to
apply their own law and in at least as good a position to
apply each other’s law as is this Court. Moreover both
France, because of its relationship with Defendants, and
India, because of the situs of the crash, have an interest in
deciding this case. Texas has none, beyond a general
commitment, now legislatively abolished and never, in any
case, recognized by the federal courts, to serving as the
world’s courthouse. Thus, retention of this case in this
Court would be an extreme imposition to Texas jurors, Texas
court personnel, and other litigants with cases pending before
this Court.
* Presumably it would be ‘less since this case has no relationship
whatsoever to Texas and very little to the United States.
é Under Texas choice-of-law rules, the law of the forum with the
most significant relationship to the controversy applies. Duncan _v.
Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex. 1984). Texas has no
significant relationship to this controversy, and there is no evidence that
any state has a more significant relationship than either India or France.
Thus, if this case were heard in this Court, Indian or French law would
most likely control. a TY * tees vowel
B-7
3. Dismissal vs. Remand.
Finally, Plaintiffs argue that the Court should remand
this action to state court rather than dismiss it for forum non
conveniens. Even assuming that the Court has the discretion
to remand this case rather than to dismiss it for forum non
conveniens, it is not required to do so. See Nolan v, Boeing
Co., supra, 919 F.2d at 1069-70. This case has no
connection with Texas, thus a Texas state court would be no
more convenient than this Court. Likewise, Plaintiffs have
an adequate, alternative forum, thus remand would serve no
purpose other than to allow Plaintiffs to maintain a
contingent fee arrangement with their attorneys. Thus, in the
normal course of events, the Court would dismiss this case
for lack of personal jurisdiction and, in the alternative for
forum non conveniens; it would not remand it back to state
Ccouir.
III. SUBJECT MATTER JURISDICTION.
There is, however, a fly in this ointment. In their
Motion to Remand, Plaintiffs asserted that complete diversity
was lacking because Andrew and Sarah Howell (the
“Howells"), the parents of Plaintiff Laura Howell Linton,
were stateless citizens of the United States. As the Personal
Representative of the Howells’ estates, Plaintiff Linton, in
her representative capacity, was also stateless for
jurisdictional purposes.’ Because the presence of a stateless
citizen of the United States on either or both sides of a
controversy destroys diversity, remand was proper.
7 28 U.S.C. § 1332(c\2) provides that "the legal representative of
the estate of a decedent shall be deemed to be a citizen only of the same
State as the decedent... .”
B-8
After noting that the initial removal was proper
because, according to both the original state-court petition
and the state-court pleadings on file at the time of removal,
Plaintiff Linton was a resident of Maryland in both her
individual and representative capacities,* the Court held that
Plaintiffs were estopped from controverting these
jurisdictional facts because the facts relating to the Howells’
domicile were, or should have been, within the knowledge of
Plaintiffs at the time suit was filed. Thus, in the Court’s
view, Plaintiffs’ allegation that the Howells’ only domicile
was in Korea was suspect, especially given that Plaintiffs
offered no reason for their failure to so allege prior to
removal.
Subsequently, however, the Linton Plaintiffs entered
into several stipulations with Defendants. In particular, these
parties stipulated that
l. the Howells lived and worked in Korea from
1985 until their deaths;
en the Howells maintained their sole place of
residence in Korea; and
3. the Howells did not have a permanent
residence in the United States.°
In other words, it now appears that Defendants have admitted
what the Court previously held Plaintiffs were estopped from
* * See, e.g., 14A Charles A. Wright et al., Federal Practice &
Procedure § 3723, at 312 (2d ed. 1985) (removal based on diversity
proper if complete diversity exists at the time of filing and at the time of
removal) [hereinafter Wright & Miller].
* See Exhibit B, Def.s* Supp. Mot. Dismiss.
B-9
asserting, viz. that the Howells were stateless citizens of the
United States.'° If the parties are willing to stipulate to
these facts, the Court does not feel compelled to ignore them
in considering the question of its subject matter jurisdiction.
As noted above, this case was properly removed
given the allegations in the initial pleadings and those on file
at the time of removal. Normally, once a case is properly
removed, the subsequent actions of the plaintiff will not
divest the court of jurisdiction. However, a post-removal
event that goes to the essence of subject matter jurisdiction
may require remand. See, e.g., 14A Wright & Miller §
3723, at 324.
In the instant case, Plaintiffs, following removal,
sought leave to amend their Complaint to assert that the
Howells were stateless United States citizens. In the Court’s
view, the stipulations discussed above, in the absence of any
evidence to the contrary, establishes the truth of these
allegations. The presence of even one stateless United States
citizen as a party destroys diversity.'' Therefore, based on
'© For jurisdictional purposes, a United States citizen is a citizen of
a state if he is domiciled within that state. Other than Plaintiffs’
pleadings filed prior to removal, the record is barren of evidence that the
Howells were domiciled in any state. The stipulations entered into by the
parties indicate that their only legal domicile was in Korea. While it is
true that residence is not, in all cases, the same as domicile, the fact that
they resided in Korea coupled with the complete lack of evidence of a
legal domicile in any state compels the conclusion that the Howell's were
stateless.
"' [F]or diversity purposes a United states citizen normally is
considered to be a citizen of the state in which he has a legal
domicile. Accordingly, it has been held consistently that a
diversity suit may not be maintained under Section 1332(a)(1) by
or against a United States citizen who is domiciled in a foreign
country. Moreover, an American living abroad is not by virtue
B-10
the admissions of the parties, the Court must conclude that
it lacks subject matter jurisdiction.
Therefore, it is hereby ORDERED, ADJUDGED,
and DECREED that that portion the Court’s Order of May
3, 1993 denying Plaintiffs’ Motion for Leave to Amend is
hereby VACATED.
It is further ORDERED that Plaintiffs’ Motion for
Leave to Amend is GRANTED and Plaintiffs’ previously
offered Amended Complaint is hereby accepted and made a
part of the record for all purposes.
It is further ORDERED that that portion of the
Court’s Order of May 3, 1993 denying Plaintiffs’ Motion to
Remand on the ground that Plaintiffs’ were estopped from
asserting that Plaintiff Linton is, in her representative
Capacity, a stateless United States citizen is VACATED.
It is further ORDERED that Plaintiffs’ Motion to
Remand is GRANTED FOR LACK OF SUBJECT MATTER
JURISDICTION on the ground that complete diversity does
not exist between the parties because Plaintiff Linton is, in
her representative Capacity, a stateless United States citizen.
It is further ORDERED | that this action is
REMANDED to the state court from whence it came.
of that domicile a citizen or subject of the foreign state in which
he resides so as to permit invocation of lienage jurisdiction
prescribed in Section 1332(a)(2) of the Judicial Code
13B Wright & Miller, § 3621, at 577-79 (footnotes omitted).
B-11
It is further ORDERED that THE PARTIES FILE
NO FURTHER PLEADINGS IN THIS COURT.”
IT IS SO ORDERED.
DONE at Galveston, Texas this 24th day of June,
1993.
/s/ Samuel B. Kent
SAMUEL B. KENT
UNITED STATES DISTRICT JUDGE
'? As the Court understands it, an order remanding a case for lack
of subject matter jurisdiction is not reviewable on appeal. However,
Defendants are entitled to appeal the Court’s previous ruling that they are
not foreign sovereigns as defined by the Foreign Sovereign Immunities
Act ("FSIA"). If that judgment is reversed on appeal, then the instant
Order is a nullity. Assuming Defendants are foreign sovereigns, the
Court would dismiss the action for lack of subject matter jurisdiction
under the FSIA and lack of personal jurisdiction. Alternatively, the
Court would, as outlined above, dismiss this action for forum non
conveniens.
C-]
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
LAURA HOWELL LINTON, ET AL., §
Plaintiffs; §
VS. § CIVIL ACTION
§ NO. G-92-102
AIRBUS INDUSTRIE, ET AL.., §
Defendants; §
§
§ CONSOLIDATED
§ WITH
MR. & MRS. STAN MOSS §
ET AL., §
Plaintiffs; §
VS. § CIVIL ACTION
§ NO. G-92-103
AIRBUS INDUSTRIE, ET AL.., §
Defendants. §
ORDER
Recently, the Court entered an Order of Remand in the
aboved-captioned actions. In that Order, the Court stated that
Plaintiffs had failed to respond to outstanding motions to dismiss
for lack of personal jurisdiction. Due to an oversight, the Court
was unaware that the relevant parties had stipulated to the Court’s
personal jurisdiction.
‘Therefore, it is hereby ORDERED, ADJUDGED, and
.DECREED that that portion of the Court’s Order of Remand
addressing this Court’s personal jurisdiction is VACATED FOR
ALL PURPOSES.
It is further ORDERED that, to the extent that this Court
presently lacks jurisdiction to enter such an Order, this Order shal!
C-2
serve as notice to the court or courts with jurisdiction of the
previous oversight.
It is further ORDERED that, to the extent this Court lacks
jurisdiction, this Order will be effective immediately should this
Court ever regain jurisdiction.
IT IS SO ORDERED.
DONE at Galveston, Texas this 8th day of July, 1993.
/s/_ Samuei B. Kent
SAMUEL B. KENT
UNITED STATES DISTRICT JUDGE
D-1
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
LAURA HOWELL LINTON, §
ET AL., §
Plaintiffs; §
VS. § CIVIL ACTION NO.
§ G-92-102
AIRBUS INDUSTRIE, ET AL., §
Defendants; §
§ CONSOLIDATED
§ WITH
MR. & MRS. STAN MOSS, §
ET AL., § CIVIL ACTION NO.
Plaintiffs; § G-92-103
VS. §
§
AIRBUS INDUSTRIE, ET AL., §
Defendants.
ORDER
Before the Court is Plaintiffs’ Motion to Remand and
Motion for Leave to file Amended Complaint.' For the
reasons stated below, the Court is of the opinion that both
motions should be DENIED.
The action arises out of an air crash that occurred on
or about February 14, 1990, in Bangalore, India. Plaintiffs
! . Plaintiffs’ proposed Amended Complaint asserts that Plaintiff
Linton in her representative capacity is a stateless United States citizen
rather than a citizen of Maryland. See Part I(C), infra.
D-2
initiated this action in Texas state court. Defendants
subsequently removed to this Court. Defendants assert that
1) pursuant to the Foreign Sovereign Immunities Act, 28
U.S.C. § 1602 et seq. ("FSIA"), Defendant Airbus Industrie
("AI") and Defendant Aeroformation ("AeF") are each an
agency or instrumentality of a foreign state; and 2) complete
diversity exists between the parties. Therefore, Defendants
contend, this action was properly removed pursuant to both
28 U.S.C. § 1441(d? and 28 U.S.C. § 1441(a).’
The Court has previously held that, under the FSIA,
neither Al nor AeF is an agency or an instrumentality of a
foreign state. Linton v. Airbus Industrie, 794 F. Supp. 650
(S.D. Tex. 1992). The Court now considers whether this
action was properly removed pursuant to 28 U.S.C. §§ 1332
and 1441(a). Plaintiffs assert three arguments in favor of
remand. The Court considers each in turn.
First, Plaintiffs assert that Defendants failed to timely
assert diversity as a ground for removal. This argument is
specious.
On March 13, 1992, Al and AeF filed a Notice of
Removal, which asserted only the FSIA and 28 U.S.C. §
Any civil action brought in a State court against a foreign state
as defined in section 1603(a) of this title may be removed by the
foreign state to the district court of the United States for the
district and division embracing the place where such action is
pending... .
3 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. . . .
D-3
1441(d) as a basis for federal jurisdiction. Thereafter, on the
same day, the other Defendants that had been served (except
those allegedly fraudulently joined) filed a Notice of Removal
asserting diversity as a jurisdictional basis. Plaintiffs argue
that this second removal was a nullity because "the state
court was already divested of jurisdiction by virtue of the
first removal." Pl.s’ Mot. Rem. at 12.
This argument is without merit. The removal of a
case from state court is accomplished by unilateral acts (the
filing of a Notice of Removal etc.) of the removing parties.
No action by the state court is necessary, and, indeed, the
state court’s jurisdiction, or lack thereof, is irrelevant. tt
28 U.S.C. § 1441(e). Thus, while it is true that the removal
of a case divests the state court of jurisdiction to conduct
further proceedings,’ it does not follow that multiple
removals are therefore not allowed. See Albonetti v. GAF
Corp.-Chem. Group, 520 F. Supp. 825, 828 (S.D. Tex.
1981) (holding that requirement that all defendants join in
removal is satisfied if, following filing of notice of removal
by one defendant, other defendants either timely join in first
removal or file their own notices of removal).”
Moreover, even assuming that multiple removals are
not allowed, Defendants amended their Notice of Removal to
assert diversity as a basis for jurisdiction. A case may be
removed within thirty days of the date the first defendant
receives notice of the action. 28 U.S.C. § 1446(a).
\
4 See, e.g., 14A Charles A. Wright, et al., Federal Practice &
Procedure § 3737, at 549-53 (2d ed. 1985) (footnotes omitted).
5 Moreover, hypertechnical constructions of the removal statute are
disfavored in this circuit, and thus, even assuming that multiple removals
were not allowed, the Court would look to the substance of the second
Notice of Removal, rather than the title, and treat it as an amendment to
the original notice.
D-4
Thereafter, the removal petition may be amended any time
within this thirty-day period. Richardson v. United
Steelworkers, 864 F.2d 1162 (1989), cert. denied, 495 U.S.
946 (1990).
In the instant case, it is undisputed that the first
defendant to receive notice sufficient to start the running of
section 1446(b)’s thirty-day period received such notice on
February 14, 1992. Thus, the thirty-day period began to run
on February 15, 1992 and expired on March 15, 1992. Fed.
R. Civ. P. 6(a). Because March 15 was a Sunday, however,
Defendants had until the end of March 16, 1992 to amend
their removal petition. Thus, Defendants’ Amended Notice
of Removal, which was filed on March 16, was timely.
B.
Next, Plaintiffs assert that diversity removal was
improper because Plaintiffs Mr. & Mrs. Stan Moss, in their
representative capacities, Defendant Airbus Services
Company, Inc. ("ASC") and Defendant Honeywell Space
Systems Support Group ("HSSSG") are all citizens of
Florida. Defendants argue that HSSSG is not a legal entity
and is therefore not capable of joinder as a party defendant
and that ASC was fraudulently joined.
1. HSSSG
Defendants have presented uncontroverted evidence
that HSSSG is an unincorporated division of Defendant
Honeywell, Inc. and is not a separate entity. Therefore, the
attempted joinder of HSSSG as a party defendant is not a bar
to removal.
| ie a «
D-5
2. ASC
Defendants admit that ASC is a citizen of Florida but
argue that it was fraudulently joined. In general, the
fraudulent joinder of a nondiverse party will not defeat
removal. However, to sustain removal, the removing party
must demonstrate “that there is ‘absolutely no possibility’
that the nondiverse defendant will be liable to plaintiff in
state court." Robinson v. National Cash Register Co., 808
F.2d 1119, 1123 (Sth Cir. 1987) (quoting Green v. Amerada
Hess Corp., 707 F.2d 201, 205 (Sth Cir. 1983), cert. denied,
464 U.S. 1039 (1984)).
In the instant case, construing Plaintiffs’ Complaint in
the light most favorable to them, Plaintiffs assert that
removal was improper because ASC is an “alter ego” of
either AI or AeF.° Because a corporation is deemed to be
a citizen of the state, or states, in which its "alter ego" is
incorporated, AI or AeF, whichever is the parent
corporation, is a citizen of Florida, and, consequently,
complete diversity is lacking.
Apparently, however, Plaintiffs misapprehend the
nature and scope of the “alter ego" doctrine. In general, the
corporate form insulates the owners, directors, and officers
of a corporation from individual liability for acts committed
by the corporation. Under certain circumstances, however,
6 Plaintiffs’ Complaint alleges that Al, AeF, ASC, and Defendant
Airbus Industrie of North America are all “sham corporate structures,
failed to follow corporate formalities and as such, the act of one is the act
of the other and their corporate identities should be disregarded. Such an
allegation is silly: corporations cannot be the “alter egos” of one another.
Elsewhere, Plaintiffs allege that ASC was controlled by AeF and allege
other allegations against Al. Therefore, the Court will treat Plaintiffs’
“alter ego" allegations as allegations that ASC is the “alter ego" of Al or
AeF.
D-6
courts will disregard the corporate fiction and hold some or
all of the owners, directors, etc. liable for actions ostensibly
undertaken on behalf of the corporation. The “alter ego"
doctrine allows a court to disregard the corporate fiction
because the degree of unity between the corporation and its
owners is such that the corporation has ceased to be a
separate entity and holding only the corporation liable would
result in injustice. See, e.g., Castleberry v. Branscum, 721
S.W.2d 270, 271-72 (Tex. 1986). For jurisdictional
purposes, the “alter ego’s" owners, directors, and the like
are treated as citizens of the state, or states, of which the
"alter ego" is a citizen. Panalpina Welttransport GMBH v.
Geosource, Inc., 764 F.2d 352, 353 (Sth Cir. 1985).
The "alter ego" doctrine does not, however, allow a
plaintiff to seek recovery from an alleged "alter ego" for acts
taken on behalf of an owner, director, etc. of the “alter ego."
Thus, even assuming that ASC is an “alter ego" of AI or
AeF or both, this fact is not significant unless Plaintiffs seek
to hold Al or AeF liable for an act committed by ASC. In
other words, for jurisdictional purposes, regardless of the
relationship between AI, AeF, and ASC, neither AI nor AeF
will be treated as a citizen of Florida unless Plaintiffs seek to
hold either or both liable for an act of ASC.
In the instant case, Plaintiffs have not alleged that
either AI or AeF is so liable. Rather, Plaintiffs make
general, conclusory assertions of liability against AI, AeF,
ASC, and Defendant Airbus Industrie of North America
sounding in negligence and strict liability and a general
assertion that some sort of “alter ego" relationship exists
between these Defendants. By contrast, Defendants have
presented uncontroverted evidence that ASC did not 1)
design, specify, manufacture, fabricate, assemble, market,
promote, distribute, test, supply, sell, or otherwise place into
the stream of commerce the aircraft involved in the accident
D-7
underlying this litigation or any of its component parts; 2)
train or certify any of the pilots involved in that accident; or
3) make any written or oral warranties regarding the aircraft
or the pilots. While Plaintiffs’ allegations might, in the first
instance, be sufficient to withstand a motion to dismiss for
failure to state a claim,’ Defendants’ uncontroverted
evidence establishes that there is absolutely no possibility that
Plaintiffs will recover from ASC in state court. The fact that
ASC may be the "alter ego" of AI or AeF is irrelevant to
this determination: the "alter ego" doctrine simply does not
apply in this case.
Third, Plaintiffs assert that complete diversity does
not exist because Andrew and Sarah Howell (the Howells"),
the parents of Plaintiff Laura Howell Linton, were stateless
citizens of the United States. As the Personal Representative
of the Howells’ estates, Plaintiff Linton, in her representative
capacity, is also stateless for jurisdictional purposes."
Because the presence of a stateless citizen of the United
States on either or both sides of a controversy destroys
diversity, complete diversity does not exist in this case.
Plaintiffs are correct that the presence of even one
stateless United States citizen as a party destroys diversity.
[Flor diversity purposes a United States citizen
normally is considered to be a citizen of the state in
which he has a legal domicile. Accordingly, it has
been held consistently that a diversity suit may not be
7 However, it must be remembered that “Texas courts are loathe to
merge the separate legal identities of a parent and subsidiary . ,
Miles v. American Tel. & Tel. Co., 703 F.2d 193, 195 (Sth Cir. 1983).
® 28 U.S.C. § 1332(c)(2) provides that "the legal representative of
the estate of a decedent shall be deemed to be a citizen only of the same
State as the decedent... ."
D-8
maintained under Section 1332(a)(1) by or against a
United States citizen who is domiciled in a foreign
country. Moreover, an American living abroad is not
by virtue of that domicile a citizen or subject of the
foreign state in which he resides so as to permit
invocation of the alienage jurisdiction prescribed in
Section 1332(a)(2) of the Judicial Code.
13B Wright & Miller, supra, § 3621, at 577-79 (footnotes
omitted).
However, according to both the original state-court
petition and the state-court pleadings on file at the time of
removal, Plaintiff Linton was a resident of Maryland. Thus,
diversity removal was proper. Id. § 3723, at 312 (removal
based on diversity proper if complete diversity exists at the
time of filing and at the time of removal). The general rule
is that once a case is properly removed, the subsequent
actions of the plaintiff will not divest the federal court of
jurisdiction. In the instant case, the Court does not believe
that Plaintiffs’ attempt to reallege the relevant jurisdictional
facts requires remand.
The facts relating to the Howells’ domicile were, or
should have been, within the knowledge of Plaintiffs at the
time this suit was filed. Thus, in the Court’s view,
Plaintiffs’ new allegation that the Howells’ domicile was in
Korea is suspect, especially given that Plaintiffs offer no
reason for their failure to so allege prior to removal.
The Court recognizes that a post-removal event that
goes to the essence of subject matter jurisdiction, such as the
addition of an indispensable, nondiverse party, may require
remand. Id. at 324. Such is not the case here, however. At
all relevant times, Plaintiffs knew, or should have known, of
the relevant jurisdictional facts. Defendants were entitled to
D-9
rely on Plaintiffs allegations, and Plaintiffs will not,
following a proper removal, be heard to allege different
jurisdictional facts regarding themselves that would, if
accepted, defeat diversity.
D.
Finally, Plaintiffs argue that, even if complete
diversity exists, removal was barred by 28 U.S.C. § 1441(b)
because Defendant FlightSafety Texas, Inc., ("FST") is a
citizen of Texas.? Defendants do not dispute this contention
but assert that FST was fraudulently joined. Plaintiffs assert
that FST was properly joined because FST is an “alter ego"
of Defendant FlightSafety International, Inc. rs: ).”
Defendants, however, have submitted unrebutted evidence
that FST did not exist as of the date of the accident
underlying this suit, and there is no allegation or evidence
that FST was created (subsequent to the accident) merely to
shield FSI from liability. Thus, despite Plaintiffs’ allegations
of negligence against FST, the Court can say that there is no
way Plaintiffs will be able to recover from FST in state
court. Therefore, FST was fraudulently joined, and removal
was not barred by 28 U.S.C. § 1441(b).
9 Under section 1441(b), a diversity case is 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 if brought."
1 Although Plaintiffs’ allege negligence against both FSI and FST,
it is not alleged that FSI is liable to Plaintiffs because of a tort committed
by FST. Therefore, the “alter ego" doctrine has no application.
D-10
II.
Therefore, it is hereby ORDERED, ADJUDGED,
and DECREED that Plaintiffs’ Motion for Leave to File
Amended Complaint is DENIED.
It is further ORDERED that Plaintiffs’ Motion to
Remand is DENIED.
It is further ORDERED that the parties file no further
pleadings on this issue in this Court. In particular, the Court
will not consider any motions for reconsideration or the like.
It is further ORDERED that, consistent with the
Court’s prior Order, Plaintiffs’ have ten days from the date
of this Order to respond to all outstanding dispositive
motions (e€.g., motions to dismiss and motions for summary
judgment). The Court will grant no extensions of time for
the filing of such responses.
IT IS SO ORDERED.
DONE at Galveston, Texas this _30th_ day of April,
1993.
/s/ Samuel B. Kent
SAMUEL B. KENT
UNITED STATES DISTRICT JUDGE
E-1
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
LAURA HOWELL LINTON, ET AL.,§
Plaintiffs; §
VS. § CIVIL ACTION
§ No. G-92-102
AIRBUS INDUSTRIE, ET AL.. §
Defendants; §
§ CONSOLIDATED
MR. & MRS. STAN MOSS, ET AL., § WITH
Plaintiffs; §
VS. § CIVIL ACTION
AIRBUS INDUSTRIE, ET AL., § No. G-92-103
Defendants. §
ORDER
This action arises out of an aircrash that occurred on or
about February 14, 1990, in Bangalore, India. Plaintiffs initiated
this action in Texas state court. Defendants subsequently removed
to this Court, and, thereafter, Plaintiffs moved to remand.
Defendants Airbus Industrie ("AI"), Aeroformation
("AeF"), Airbus Industrie of North America, Inc., and Airbus
Service Company, Inc.,' argue that removal was proper under the
Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602 et
seq., because Al and AeF are “foreign states” within the meaning
of FSIA. For the reasons stated below, the Court does not agree.
| Hereinafter referred to collectively as the "Airbus Defendants. "
E-2
28 U.S.C. § 1441(d) provides that
Any civil action brought in a State court against a foreign
state as defined in section 1603(a) of this title may be
removed by the foreign state to the district court of the
United States for the district and division embracing the
place where such action is pending....
Thus, this action was properly removed if AI or AeF or
both is a foreign state with the meaning of FSIA.
The Airbus Defendants argue that Al and AeF are foreign states
for purposes of FSIA because each is an “agency or instrumentality
of a foreign state" as defined by 28 U.S.C. § 1603. Section 1603
provides, in part,
(a) A “foreign state” ... includes a political subdivision of
a foreign state or an agency or instrumentality of a foreign
state ....
(b) An “agency or instrumentality of a foreign state"
means any entity—
(1) which is a separate legal person, corporate or
otherwise, and
(2) which is an organ of a foreign state or political
subdivision thereof, or a majority of whose shares
or other ownership interest is owned by a foreign
state or political subdivision thereof, and
(3) which is neither a citizen of a State of the
United States ... nor created under the laws of any
third country.
This Order considers only whether the second requirement
E-3
of section 1603(b) is satisfied. The Airbus Defendants contend
that “a majority of the shares or other ownership interest" of both
Al and AeF are owned by “a foreign state or a political
subdivision thereof.” However, it is undisputed that no single
foreign state has more than a 50% ownership interest in Al. The
Airbus Defendants argue, however, that where an entity is owned
by several entities which are themselves at least partially owned by
foreign states, the various foreign government ownership interests
may be pooled together for purposes of determining whether a
majority of the shares or other ownership interest is owned by a
foreign state.
Defendants correctly point out that every court that has
considered the issue has approved this type of pooling.’ For
example, in LeDonne v. Gulf Air, Inc., 700 F.Supp. 1400
(E.D.Va. 1988) the court held that FSIA applied to a suit against
a foreign airline that was owned by four Persian Gulf states,
notwithstanding that no single state owned more than 50% of the
airline. Similarly, in Rios v. Marshall, 530 F.Supp. 351
(S.D.N.Y. 1981), the court held that British West Indies Central
Labour Organization, an unincorporated association serving as the
administrative arm of the Caribbean Regional Labour Board, was
an instrumentality of its members for purposes of section
1603(b)(2). Also, in International Ass'n of Machinists v.
Organization of Petroleum Exporting Countries, 471 F.Supp. 553
(C.D.Cal 1979) ("OPEC"), tse court apparently assumed, without
explicitly holding, that OPEC is covered by FSIA.
The instant case, however, differs from these cases in one
important respect. In LeDonne, Rios, and OPEC each owner
which was allowed to pool its interest for purposes of satisfying
section 1603(b)(2)’s 50% requirement was itself a foreign state as
defined by FSIA. Had an individual owner been sued or had any
of the individual owners owned more than 50% of the entity that
was sued, FSIA would have unquestionably applied.
2 Neither the Fifth Circuit nor the Supreme Court has considered the
issue.
a *,.
E-4
Not so in the instant case. AI is owned by four
corporations. Two of these corporations, which, according to
Defendants’ calculations,> own 42.1% of Al, are controlled by
foreign states. Another owner, which controls 20% of Al, is
privately owned. The remaining 37.9% is owned by Deutsche
Airbus GmbH ("DA"). Thus, assuming that pooling is allowed,
the critical question is whether this interest can be pooled with the
42.1% owned by foreign states. If so then FSIA applies;
otherwise it does not.
DA is owned by two companies. 20% is owned by
Kreditanstalt fur Wiederaufbau ("KfW"), an agency of the German
government. The remaining 80% is owned by Messerschmitt-
Bolkow-Blohm ("MBB"), a German corporation. Only 36.56% of
MBB’s shares are owned by foreign states. The other 63.44%
privately owned. Thus, only 49.25% of DA’s shares are owned
by foreign states.
The Airbus Defendants argue that this is irrelevant. To
determine whether more than 50% of the shares or other
ownership interest of an entity is owned by a foreign state or
states, the Court need only consider the total amount owned by
foreign states, and need not consider whether the entities
contributing ownership interests to be pooled together are
themselves foreign states. In the Airbus Defendanis’ view, since
60.04% of Al’s shares are owned by foreign states, it is a foreign
state, even though more than 10.04% this ownership interest is
asserted through companies a majority of whose shares are held by
private owners. Similarly, since 90% of AeF is owned by Al,
AeF is also a foreign state.
2 Plaintiffs dispute the accuracy and admissibility of several of the
Airbus Defendants’ calculations. Because the Court has determined that
FSIA does not apply even if these calculations are correct, the Court
accepts the Airbus Defendants’ calculations for purposes of this Order
only. The Court does not reach any of Plaintiffs’ objections, however,
and the use of the Airbus Defendants’ calculations for purposes of this
Order does not imply any final acceptance.
n Ee | ee ee eee ee —
och a inn RN DAN,
E-5
In the Court’s view, the Airbus Defendants’ position is
difficult to reconcile with either the plain language or the structure
and purpose of FSIA. First, it is far from clear that pooling is
allowed under FSIA. To approve pooling, the Court must assume
that FSIA applies to entities 50% or more of whose shares are
owned by foreign states, even though no single foreign state owns
more that 50%. Section 1603, however, speaks only of entities
50% or more of whose shares are owned by a foreign state,
singular. Arguably, had Congress wished to permit pooling, it
could have easily defined a foreign state as an entity 50% or more
of whose shares are owned by a foreign state or states. Because
Congress did not so define foreign state, it is not for the courts to
substitute this definition for the one provided.
Moreover, even assuming that pooling is permitted, it is
one thing to say that where an entity is owned by several other
entities, FSIA applies to the first entity if more than 50% of its
shares are owned by entities which are themselves foreign states.
It is quite another thing to say that entities which are not foreign
states or their instrumentalities may nevertheless pool their
ownership interests in another entity such that FSIA applies to the
latter.
Obviously FSIA applies to foreign states. Likewise, under
section 1603, an entity 50% or more of whose shares are owned
by a foreign state is itself a foreign state. In the Court’s view,
although reasonable minds could disagree, it does not do too much
violence to either the plain language or the spirit of FSIA to hold
that foreign states may pool their interests in an entity for purposes
of determining whether that entity is a foreign state under FSIA.
FSIA would unquestionably apply if any owner were a party or if
more than 50% of the entity in question were owned by any single
foreign state. It is not, therefore, too much of a stretch to assume
that Congress intended FSIA to apply to an entity owned by
several foreign states, even if no single foreign states Owns a
majority; a majority of the entity’s stock or other ownership
interest is still owned by foreign states to which Congress clearly
intended FSIA to apply.
E-6
Just as clearly, however, FSIA does not apply to entities
that are not foreign states, nor does it apply to entities owned by
entities which are not foreign states. In the Airbus Defendants’
view, however, FSIA may apply to an entity, even if a majority of
the shares of that entity are owned by an entity which is not a
foreign state. For example, if 48% of the shares of “Entity A" are
owned by a foreign state, and “Entity B" is wholly owned by
“Entity A," FSIA does not apply to either. Under the Airbus
Defendant’s approach, however, if “Entity A" sells 5% of the
shares of “Entity B" to another entity which is entirely owned by
a foreign state, FSIA will apply to “Entity B," even though 95%
of the shares of "Entity B” are owned by an entity which is not a
foreign state and which is explicitly excluded from the protections
of FSIA. That more than 50% of the total ownership of "Entity B"
is controlled by one foreign state or another does not negate the
fact less than 5% of Entity B’s shares are actually owned by a
foreign state.
The notion that FSIA apples under these circumstances is
inconsistent with the statute’s text and purpose. By defining
"foreign state" as an entity 50% or more of whose shares are
owned by a foreign state, Congress clearly indicated its intention
that FSIA apply only to those entities wherein a majority interest
is owned by a foreign state. To accept the Airbus Defendants’
arguments would severely eviscerate the 50% requirement. Quite
simply, and in direct contradiction to the statute’s plain language,
FSIA would apply to numerous entities even though less than 50%
of their shares were owned by a "foreign state" as Congress has
chosen to define that term. The Court finds nothing to indicate
that Congress intended that FSIA be so applied.‘ No court has
4 The enactment of FSIA did not create a new federal cause of
action or change the substantive law concerning the liability of foreign
states. First Nat'l City Bank v. Banco Para El Comercio Exterior, 462
U.S. 611, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983). Rather, in enacting
FSIA, Congress intended only to codify the restrictive theory of sovereign
immunity. See, e.g., LeDonne v. Gulf Air, Inc. supra, 700 F.Supp. at
1405. The Court has found no pre-FSIA cases approving the type of
pooling suggested by the Airbus Defendants, or, indeed, any type of
E-7
ever approved an such application,® and the Court, in the absence
of any Congressional directive whatsoever, declines to craft a new
rule that would substantially broaden the reach of FSIA.
Therefore, the Court holds that the Airbus Defendants have
not met their burden of proof; FSIA does not apply to Airbus
pooling.
S The Airbus Defendants argue that the unreported decision in
Aluminum Distrib., Inc. v. Gulf Aluminum Rolling Mill Co., No. 87-C-
6477, 1989 WL 64174 (N.D.III. June 8, 1989) ("GARMCO") supports
their position. It does not. In GARMCO the ownership of the
defendant’s stock was as follows: Bahrain owned 25.47%; Iraq owned
11.32%; Oman owned 5.66%; Qatar owned 5.55%; Gulf Investment
Corporation, a Kuwait shareholding company owned by Bahrain, Saudi
Arabia, Oman, Qatar, Kuwait and the United Arab Emirates, owed
14.5%; and Saudi Basic Industries Corp., 70% of whose ownership was
heid by Saudi Arabia, owned 20.75%. In addition, 16.98% was owned
by the Industrial Bank of Kuwait, which was 31.4% owned by Kuwait.
The Airbus Defendants assert that, given this last fact,
GARMCO can be read as support for the proposition that entity's which
are partially owned by foreign states but are not themselves foreign states
may nevertheless pool their ownership interest in a third entity for
purposes of determining whether that third entity is a foreign state for
FSIA purposes. Nowhere in its opinion, however, does the GARMCO
court reach such a conclusion. Instead, the court merely stated in its
recitation of facts, the fact that the 16.98% of the defendant's shares were
held by the Industrial Bank of Kuwait. The court then rejected the
plaintiff's contention that to be a foreign state, more than 50% of an
entity’s shares must be held by a single foreign state and held that the
defendant was a foreign state. In GARMCO, in contrast to the instant
case, more than 50% of the defendant's shares were owned by entities
which were themselves foreign states. Thus, the court did not need to
consider whether the Industrial Bank of Kuwait could pool its ownership
interests with the others, and consequently, the court did not address this
issue.
E-8
Industrie and Aeroformation because Deutsche Airbus GmbH is
not a foreign state for purposes of FSIA.°
IT IS SO ORDERED.
DONE at Galveston, Texas this 2ist day of July, 1992.
/s/ Samuel B. Kent _
SAMUEL B. KENT
UNITED STATES DISTRICT COURT
¢ Similarly, in the Court's view, MBB, which owns 80% of DA,
should not be allowed to pool its interest because it is also not a foreign
F-]
APPENDIX F
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
G-92-103
AIRBUS INDUSTRIE, ET AL.,
Detendants.
LAURA HOWELL LINTON, §
ET AL., §
Plaintiffs, §
§
v. § CIVIL ACTION NO.
§ G-92-102
AIRBUS INDUSTRIE, ET.AL., §
Defendants. §
§ CONSOLIDATED
MR. & MRS. STAN MOSS, § WITH
ET AL., §
Plaintiffs, §
Vv. § CIVIL ACTION NO.
§
§
§
RDER
This Court grants the Airbus Defendants’ Motion to Stay.
This Court’s order of remand, dated June 24, 1993, is stayed
pending final determination of the Airbus Defendants’ Foreign
Sovereign Immunities Act appeal.
SIGNED this _29th_ day of _June_, 1993.
/s/ Samuel B. Kent
United States District Judge
G-1
APPENDIX G
4 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-7479
Me
LAURA HOWELL LINTON, INDIVIDUALLY AND AS THE
PERSONAL REPRESENTATIVE OF THE ESTATES OF
ANDREW JAY HOWELL AND SARAH STOLL HOWELL,
DECEASED, AND ON BEHALF OF RENA HOWELL, ET AL.,
Plaintiffs-Appellees,
versuS
AIRBUS INDUSTRIE, ET AL.,
Defendants,
Lease ah psthigabieenate
A ante ite ee
TY ae
AIRBUS INDUSTRIE and AEROFORMATION,
Defendants-Appellants.
S*e2-¢ & #822 @eaeaestkewetenesesas 8&8 te & 8 SR
MR. AND MRS. STAN MOSS, INDIVIDUALLY AND AS |
TEMPORARY ADMINISTRATORS OF THE ESTATE OF
ALISON LESLIE MOSS,
Plaintiffs-Appellees,
versus
AIRBUS INDUSTRIE, ET AL.,
Defendants,
AIRBUS INDUSTRIE and AEROFORMATION
Appeal from the United States District Court for the
Southern District of Texas
G-2
ON PETITION FOR REHEARING AND SUGGESTION
FOR REHEARING EN BANC
(Opinion 08/16/94, 5 Cir., 1994, ____ ees 2
( 09/13/94 )
Before GOLDBERG, KING, and WIENER, Circuit Judges.
PER CURIAM:
The Petition for Rehearing is DENIED and no member of
this panel nor Judge in regular active service on the Court having
requested that the Court be polled on rehearing en banc, (FRAP
and Local Rule 35) the Suggestion for Rehearing En Banc is also
DENIED.
ENTERED FOR THE COURT:
_/s/ Jacques L. Wiener, Jr.
United States Circuit Judge
H-1
APPENDIX H
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-7479
D.C. Docket No. CA G92 102 c/w G92 103
LAURA HOWELL LINTON, INDIVIDUALLY
AND AS THE PERSONAL REPRESENTATIVE OF
THE ESTATES OF ANDREW JAY HOWELL AND
SARAH STOLL HOWELL, DECEASED, AND ON
BEHALF OF RENA HOWELL, ET AL.,
I Plaintiffs-Appellees,
versus
AIRBUS INDUSTRIE, ET AL.,
Defendants,
AIRBUS INDUSTRIE and AEROFORMATION,
Defendants-Appellants.
* KKK KK KK KKK KK KK K
MR. AND MRS. STAN MOSS, INDIVIDUALLY
AND AS TEMPORARY ADMINISTRATORS OF
THE ESTATE OF ALISON LESLIE MOSS,
Plaintiffs-Appellees,
versus
AIRBUS INDUSTRIE, ET AL.,
Defendants,
AIRBUS INDUSTRIES and AEROFORMATION,
Defendants-Appellants.
H-2
Appeal from the United States District Court for the
Southern District of Texas
Before GOLDBERG, KING, and WIENER, Circuit Judges.
JUDGMENT
This cause came on to be heard on the record on
appeal and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now here
ordered and adjuged by this Court that the appeal in this
cause is dismissed.
IT IS FURTHER ORDERED that defendants-
appellants pay to plaintiffs-appellees the costs on appeal to be
taxed by the Clerk cf this Court
ISSUED AS MANDATE: August 16, 1994
I-1
APPENDIX I
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
CA-G-92-102
No. 92-7564
AIRBUS INDUSTRIE, ET AL.,
Appellants/Defendants,
\
versus
LAURA HOWELL LINTON, ET AL.,
Appellees/Plaintiffs.
Appeal from the United States District Court
for the Southern District of Texas
(February 24, 1993)
Before GARWOOD, JONES, and EMILIO M. GARZA,
Circuit Judges.
BY THE COURT:
IT IS ORDERED that appellees’ motion to dismiss
appeal is GRANTED. :
The district court’s finding—that the Foreign
Sovereign Immunities Act (FSIA"), 28 U.S.C.A. § 1602 et
seq. (West Supp. 1992) "does not apply to Airbus Industrie
and Aeroformation [(" Airbus Defendants" )] because Deutsche
Airbus GmbH is not a foreign state for the purposes of
FSIA"—did not dispose of plaintiffs’ motion to remand nor
1-2
Airbus defendants’ various motions to dismiss. See Linton
v. Airbus Industrie, 794 F. Supp. 650, 653-54 (S.D.Tex.
1992). Accordingly, the district court’s order is neither final
nor appealable under 28 U.S.C. § 1291 (1988). See Puerto
Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc.,
— U.S. —, 113 S. Ct. 684, 687 (1993) ("Appeal is thereby
precluded ‘from any decision which is tentative, informal or
incomplete,’ as well as from any ‘fully consummated
decisions, where they are but steps towards final judgment in
which, they will merge."" (quoting Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221,
1225, 93 L. Ed. 1528 (1949))).
Moreover, the Airbus defendants failed to seek
certification of the district court’s order pursuant to 28
U.S.C. § 1292(b) (1988) for discretionary review by this
Court. Accordingly, this Court lacks appellate jurisdiction
pursuant to 28 U.S.C. § 1292.
Lastly, we have not found, nor have we been referred
to, any authority to support that the district court’s
preliminary finding—that FSIA does not apply to Airbus
Industrie and Aeroformation—is appealable under the
collateral order doctrine, absent a ruling on the motion
before it. See United States v. Moats, 961 F.2d 1198, 1201
(Sth Cir. 1992) (finding that the court had appellate
jurisdiction from a non-final order denying a motion to
dismiss based on FSIA immunity). The district court having
failed to determine Airbus defendants’ motions to dismiss,
we lack jurisdiction under the collateral order rule. See id.
(finding appellate jurisdiction under the collateral order
doctrine where no other pending motions before it.
On remand, the district court should rule on plaintiffs’
motions to remand and defendants’ motions to dismiss
expeditiously.
ISSUED AS MANDATE: MAR 29 1993
J-1
APPENDIX J
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-7564
LAURA HOWELL LINTON,
Individually, Etc., ET AL.,
Plaintiffs-Appellees,
versus
AIRBUS INDUSTRIE, ET AL.,
Defendants,
AIRBUS INDUSTRIE, AIRBUS INDUSTRIE OF NORTH
AMERICA, INC., ET AL.,
Defendants-Appellants.
~
* *
MR. AND MRS. STAN MOSS,
Individually, Etc.,
Plaintiffs-Appellees,
versus
AIRBUS INDUSTRIE, ET AL.,
Defendants,
AIRBUS INDUSTRIE, AIRBUS INDUSTRIE OF NORTH
AMERICA, INC., ET AL.,
Defendants-Appellants.
Appeal from the United States District Court for the
Southern District of Texas
(March 18, 1993)
J-2
Before GARWOOD, JONES and EMILIO M. GARZA,
Circuit Judges.
BY THE COURT:
IT IS ORDERED that appellants’ motion for
reconsideration of this Court’s order of February 24, 1993
dismissing the appeal is denied.
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