Opposition Brief — de Aguilar v. Boeing Co.

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No. 95-102 AUG 9 1995

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

ALMA TORREBLANCA DE AGUILAR, ET AL.,

Petitioners,

—against—

THE BOEING COMPANY, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION OF RESPONDENT

DELTA AIR LINES, INC.

MICHAEL J. HOLLAND

CONDON & FORSYTH ~*~.

1251 Avenue of the Americas

New York, New York 10020

(212) 757-6870

Counsel for Respondent

DELTA AIR LINES, INC.

BEST AVAILABLE C COPY

QUESTION PRESENTED

Whether the court of appeals properly concluded that fed-

eral subject matter jurisdiction exists where petitioners

demanded “a sum not to exceed $50,000 per decedent” in

their state court complaint but where the same petitioners in

previous actions demanded damages in excess of $50,000 for

the same claims, where petitioners’ demand violates a state

statute which prohibits pleading a specific amount of damages

and where the petitioners failed to establish that they were

authorized to limit damages to $50,000 as legal heirs or legal

representatives of the estates.

RULE 29.1 STATEMENT

Respondent Delta Air Lines, Inc. has no parent companies

or any subsidiaries which are not wholly-owned.

ill

TABLE OF CONTENTS

PAGE

eee RAEe WURMEIPEEEW BOO sos con cececgicessceesasvresss i

ME WO OP PRN IEIEON ED ose ccvccavesivcacteccesavnces ii

NE OP EE OD nh cence dnc ckescsvedavcsacs ili

PRMENEY APE UR RRUUMRUEEESD Sec cccce veces ceccaevesecess V

Gk us dalc ab oso aaedeassinveass l

De RPRRUEONNEE SE GPE BURNS GPR 5 occ cece ic geccccscccsss 2

ig ENNIS PUCOIIIN 65s ccccestcccdrsansces 3

2 tme renasco Garcia Action ...........c00s. 3

ee ee IE PHONON ovo 5 ici deb vdccbenecneyes 5

Bes 0 rane en rere 5

Oa onc dupes xn xno e'e 06 0 6

6. The Pardo Action Presently Pending in

Sy Oe Cpe er ar ee ea 7

7. sere euen Ce Agmtior 18) ...... 6.6 ec cesees 7

REASONS FOR DENYING THE WRIT............... 8

A. The Court of Appeals Properly Concluded

That Federal Subject Matter Jurisdiction

PE SE POD oan ccvhetvacawstehens ee: 8

PAGE

B. The Court of Appeals Properly Held That

Petitioners Were Not Authorized to Limit

the Recovery of the Estates of the

Or rr re Pe pee rr ee ee 16

1. The Fifth Circuit Properly Held That

Petitioners Failed to Establish That

They are the Legal Representatives of

Og | eee rer rye re rors rere 17

2. The Fifth Circuit Properly Held That

Petitioners Failed to Establish That

They Have the Authority to Limit These

Claims as Legal Heirs on Behalf of the

PRINS hv vaecinsdacnsacciecnedcsavsnns eas 18

OG PIN 60 sd nung anys hens ees eaeeenn ceeenee es 21

Pg tt Err pre res rim pcepam ror treran mre operant la

DAWN ear oe

TABLE OF AUTHORITIES

Cases PAGE

Bowers v. Firestone Tire & Rubber Co., 800 F.2d 474

COU es See odo Wh ede i A ee 18

Bozeman v. Folliott, 556 S.W.2d 608 (Tex. Civ. App.

OFT F) sa ciavunddendsadeknve sub saneetne aeaveteees 17

SR ID caiverdeekincsdvcteendavacet hC4devaneent ree 19

Compania Mexicana de Aviacion, S.A. v. United States

District Court, 859 F.2d 1354 (9th Cir. 1988).... 4,5

Consolidated Cigar Co. v. Texas Commerce Bank,

749 Fide SIG CO GM. TPG i vscincevcaciecdaenes 18

De Aguilar v. Boeing Co., 47 F.3d 1404 (Sth Cir. 1995)

(De Aguilar II), petition for cert. filed, (U.S.

FRE Vy TOS) Cees Wr Ra de hic cc dnt cewetucnganwas passim

De Aguilar v. Boeing Co., 11 F.3d 55 (Sth Cir. 1993)

CRO I GF in si Sica ire bec sti beck uK inkss ees passim

De Aguilar v. Boeing Co., 790 F. Supp. 693 (E.D. Tex.

1992), aff'd, 11 F.3d 55 (Sth Cir. 1993) ......... passim

De Aguilar v. Boeing Co., 806 F. Supp. 139 (E.D. Tex.

1992), aff’d, 11 F.3d 55 (Sth Cir. 1993) ......... passim

Dow Chemical Co. v. Alfaro, 786 S.W.2d 674

(Tex. 1990), cert. denied, 498 U.S. 1024 (1991). 9

Esperanza Estavillo Dias v. Compania Mexicana De

Aviacion, S.A., No. CV 01792 (C.D. Cal. Nov. 28,

PAGE

Frazier v. Wynn, 472 S.W.2d 750 (Tex. 1971)......... 19

Gafford v. General Elec. Co., 997 F.2d 150 (6th Cir.

gg | OP EET OO TTT ET ECT EE ne ee re ey 11,12

Garza v. Bettcher Industries, Inc., 752 F. Supp. 753

CEA, I BP a nikon cn esapeer ed ecaneraneebees 11

Gaus v. Miles, Inc., 980 F.2d 564 (9th Cir. 1992)..... 13,14

Handley v. City of Seagoville, 798 F. Supp. 1267

EP, Ds FE a0 A ieee Pe ash dakes te diavessss 18

In the Matter of Shell Oil Co., 970 F.2d 355 (7th Cir.

SPEED < itddraeievvesey is teedereedweaamreraee ss 12

Kliebert v. Upjohn Co., 915 F.2d 142 (5th Cir. 1990),

vacated for reh’g en banc, 923 F.2d 47 (Sth Cir.),

appeal dism’d per settlement, 947 F.2d 736

CO GE, BED onsen vvasewcasnctsd jensen baseeseieses 15

Laughlin v. K-Mart Corp., 50 F.3d 871 (10th Cir. 1995),

petition for cert. filed, 64 U.S.L.W. 3068

(U.S. July 7, 1995) (No. 95-40) .................. 13,14

Lozano v. Smith, 718 F.2d 756 (Sth Cir. 1983)......... 19

Martinez v. Angerstein, 517 S.W.2d 811 (Tex. Civ.

PD, ROPER» ouscissnncevedanavnkseasaeabionartanins 18, 19

McNutt v. General Motors Acceptance Corp.,

Be Oe CEE hs Khe a teh heed enenbosdonkees 11

Pardo v. CIA Mexicana de Aviacion, S.A. de C.V.,

pr Bh: Fie.” ) es one (Pe Me

Penasco Garcia v. Mexicana de Avion, No. 87 C. 3920

ls Bees UE Be EE) 405 hoch cinasecuens 3, 4, 5,8

Phillips v. Teinert, 493 S.W.2d 584 (Tex. Civ. App.

PD aac ven cs ¥esddavedadaeeaNyeeeieesainawaea een 19

Vii

PAGE

Rodriguez v. Mexicana de Avion, S.A., 20 Av. Cas.

(CCH) 17,983 (W.D. Tex. 1987), aff’d mem.,

843 F.2d 498 (Sth Cir.), cert. denied,

SI AF ee a OE ods cd abncavav ctneladtiesnakeiess 3, 5,8

Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir. 1993),

reh’g, en banc, denied, 1993 U.S. App. LEXIS

pee ke ae, a rare 1]

Sneed Shipbuilding, Inc. v. Spanier Marine Corp.,

SSS cd. BAG Ueaedes BOM. THRO) ceivcescescsssess 18

St. Paul Mercury Indemnity Co. v. Red Cab Co.,

303 U.S. 283 (1938)........ OP SOE Te 9,10, 11

Sustaita v. Valle, 38 S.W.2d 638 (Tex. Civ. App.

ERE Sas ChScko CoN sed ego ce nhsiards FEARS EIA SeRee 19

Wolf v. Boeing Co., 61 Wash. App. 316, 810 P.2d 943,

review denied, 117 Wash.2d 1020, 818 P.2d 1098

(.__ , NEORRSAD Seale Sheu ane et leh eg ire ar neers te 5, 6,8

Statutes and Rules

ass ib bens = 656 Koda iis ince bac wadedsennans 4

Texas Civil Practices and Remedies Code § 71.021 .. passim

Texas Civil Practices and Remedies Code § 71.051 .. passim

Texas Probate Code §§ 178, 189..... , idee a ie a ee eal 18

Texas Rule of Civil Procedure 47(b)................ 9, 12, 16

Cit cA CN ROK A 00S tod Wb ae be 4 ee Be ee “

No. 95-102

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1995

ALMA TORREBLANCA DE AGUILAR, ET AL.,

Petitioners,

—against—

THE BOEING COMPANY, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION OF RESPONDENT

DELTA AIR LINES, INC.

OPINIONS BELOW

The opinion of the court of appeals (Appendix, infra, la-

21a)' is reported as De Aguilar v. Boeing Co., 47 F.3d 1404

(Sth Cir. 1995). The two opinions of the district court

(Appendix, infra, 22a-34a) are unreported. A prior opinion of

the Fifth Circuit Court of Appeals with respect to the claims

of the petitioners is reported as De Aguilar v. Boeing Co., 11

F.3d 55 (Sth Cir. 1993). The earlier decision of the Fifth Cir-

Respondent reproduced the opinions of the courts below as an

appendix to this brief because petitioners in their appendix incorrectly

retyped and omitted portions of those opinions.

cuit will be referred to in this brief as De Aguilar I and the

decision of the Fifth Circuit in this action below will be

referred to in this brief as De Aguilar I].

STATEMENT OF THE CASE

This action was commenced under the Texas survival

statute, § 71.021 of the Texas Civil Practices and Remedies

Code, seeking damages on behalf of the estates of 69 dece-

dents killed in the crash of Mexicana Airlines (“Mexicana”)

flight 940 on March 31, 1986 en route from Mexico City to

Puerto Vailarta, Mexico. The Boeing 727 aircraft crashed

shortly after take-off from Mexico City, killing all persons

aboard the aircraft.

The underlying facts of the accident have been set forth in

several prior decisions. An agency of the Mexican govern-

ment investigated the accident, concluding that a tire explo-

sion in the aircraft’s wheel well resulted in an in-flight fire

which disabled critical aircraft systems and caused the air-

plane to break-up in mid-air. De Aguilar v. Boeing Co., 806 F.

Supp. 139, 140 (E.D. Tex. 1992), aff’d, 11 F.3d 55 (Sth Cir.

1993).

The survival claims asserted on behalf of the estates of the

same 69 decedents invoived in this action have previously

been litigated and dismissed in numerous courts throughout

the United States on the ground of forum non conveniens. The

following is a brief summary of each of the prior actions,’

concluding with the decision of the court of appeals in this

action (De Aguilar II).

. A chart (Appendix, infra, 35a-39a) identifying the decedents

named in each of the actions arising out of the crash was annexed as

Exhibit “U” to the Affidavit of respondent Boeing’s counsel, Richard C.

Coyle, and was set forth in the record below at pages 422-427.

oT a oe Pees

statins:

1. The Rodriquez Action

The first wrongful death action (“the Rodriguez action”)

was commenced in Bexar County, Texas, in June 1986 by the

surviving relatives of 16 decedents, all Mexican nationals. All

of the decedents named in the original Rodriguez petition

were named in the petition in De Aguilar | and in this action

(De Aguilar II). The Rodriguez action was removed by Mex-

icana to the United States District Court for the Western Dis-

trict of Texas. The Boeing Company (“Boeing”) moved to

dismiss the action on the ground of forum non conveniens.

The court dismissed plaintiffs’ claims against both Mexicana

and Boeing on January 23, 1987 on the ground of forum non

conveniens. Rodriguez v. Mexicana de Avion, S.A., 20 Av.

Cas. (CCH) 17,983 (W.D. Tex. 1987), aff’d mem., 843 F.2d

498 (Sth Cir.), cert. denied, 488 U.S. 826 (1988).

2. The Penasco Garcia Action

In March 1987, while the Rodriguez action was still pend-

ing, another group of plaintiffs (“the Penasco Garcia plain-

tiffs”) suing on behalf of approximately 72 predominantly

Mexican decedents, commenced similar actions against Mex-

icana, Boeing, Delta Air Lines, Inc. (“Delta”), The B.F.

Goodrich Company (“B.F. Goodrich”) and Western Airlines

in the Western District of Texas and in state courts in Illinois

and California.* Sixteen of the decedents named in De Aguilar

/ and in the present action also were named in the Illinois

Penasco Garcia case, and of those sixteen, fourteen were also

named in the Penasco Garcia action in Texas.

; Boeing’s chart (Appendix, infra, 35a-39a) indicates minor dif-

ferences in the decedents named in the three different Penasco Garcia

actions. Sixty-five of the decedents were named in all three Penasco

Garcia actions, seven decedents were named in both Texas and Illinois

but not California and four decedents were named in the California action

who were not also named in the Texas or Illinois actions. Two of the

Penasco Garcia decedents had previously been named in the Rodriguez

action.

Mexicana removed the Illinois and California actions to the

appropriate federal courts on the ground that Mexicana was a

“foreign state” within the meaning of the Foreign Sovereign

Immunities Act of 1976. 28 U.S.C. § 1603 et seg. The West-

ern District of Texas action was voluntarily dismissed by

plaintiffs and the action in the Central District of California

was voluntarily dismissed by plaintiffs against all defendants

except Mexicana.

All defendants in the action in the Northern District of Illi-

nois moved for dismissal on the ground of forum non conve-

niens and Mexicana additionally moved for dismissal under

the Foreign Sovereign Immunities Act. The court granted

defendants’ motion on September 21, 1987:

We conclude that Mexico, not U.S. District Court, is the

appropriate forum given that all plaintiffs are Mexican

citizens and residents. The accident occurred and was

investigated in Mexico with the result that most if not all

of the witnesses and necessary exhibits are in that

country. We adopt the well reasoned opinion of Judge

Garcia, of the Western District of Texas, of January 23,

1987. Dismissal is premised upon the same conditions as

imposed by Judge Garcia.

Penasco Garcia v. Mexicana de Avion, No. 87 C. 3920, slip op.

at 2 (N.D. Ill. Sept. 21, 1987).

In the action pending in the Central District of California,

in which only Mexicana remained as a defendant, the district

court denied the motion to dismiss based upon forum non con-

veniens and Foreign Sovereign Immunities Act grounds. Mex-

icana filed a petition for Writ of Mandamus in the United

States Court of Appeals for the Ninth Circuit. The Ninth Cir-

cuit reversed the district court and remanded the case with

instructions to dismiss for lack of jurisdiction pursuant to the

Foreign Sovereign Immunities Act. Compania Mexicana de

Aviacion, S.A. v. United States District Court, 859 F.2d 1354,

1360 (9th Cir. 1988).

3. The Estavillo Action

Also in March 1987, a group of plaintiffs, some of whom

also were named in the Rodriguez and Penasco Garcia

actions, filed an action (“the Estavillo action’) in state court

in Los Angeles, California against Mexicana, Boeing and oth-

ers on behalf of the estates of 69 decedents named in De

Aguilar I and in the present action as well as 9 other dece-

dents. Plaintiffs served the petition on Mexicana only, and

Mexicana removed the action to federal court. The court

eventually dismissed all of the unserved defendants and, after

the Ninth Circuit ruled in Compania Mexicana De Aviacion,

S.A. v. United States District Court, 859 F.2d at 1354, dis-

missed Mexicana on the ground of foreign sovereign immu-

nity. Esperanza Estavillo Dias v. Compania Mexicana de

Aviacion, S.A., No. CV 01792, slip op. at 2 (C.D. Cal. Nov.

28, 1988).

4. The Wolf Action

In March 1989, alleged beneficiaries of the same 69 foreign

decedents who were named in De Aguilar / and are named in

the present action, De Aguilar II, filed suit against the present

respondents in King County, Washington, Superior Court. The

sole named plaintiff in that action (“the Wolf action”) was a

Washington State attorney named Bruce Wolf who was

appointed special administrator of the decedents’ estates. The

69 Wolf decedents were all part of the earlier dismissed

Estavillo action in Los Angeles.*

‘ In March 1989, six months after the Ninth Circuit decided Com-

pania Mexicana de Aviacion, S.A. v. United States District Court, 859

F.2d 1354 (9th Cir. 1988), plaintiff Bruce Wolf brought an action against

Mexicana only in the Superior Court of Washington State for King

County as the personal representative of the estates of the same 69 dece-

dents named in De Aguilar | and this action. Mexicana removed the Wolf

action to federal court and, in September 1989, moved to dismiss plain-

tiffs’ claims based on the res judicata effect of the Ninth Circuit’s deci-

sion. Plaintiff then voluntarily dismissed the Washington action against

Mexicana.

On January 19, 1990, the Wolf action was dismissed on

Boeing’s motion on the ground of forum non conveniens. On

May 20, 1991, the Washington Court of Appeals affirmed the

dismissal, and the Washington Supreme Court denied review

on October 2, 1991. Wolf v. Boeing Co., 61 Wash. App. 316,

810 P.2d 943, review denied, 117 Wash. 2d 1020, 818 P.2d

1098 (1991).

5. De AguilarI

Claims on behalf of the estates of the same 69 decedents

named in this action and in the Wolf action were next asserted

in an action filed in the 60th Judicial District Court of Jef-

ferson County, Texas on December 5, 1991. Defendants, Boe-

ing, B.F. Goodrich, The Goodyear Tire & Rubber Company

(“Goodyear”), Delta and Parker Hannafin Corporation

removed the action to the United States District Court for the

Eastern District of Texas. Plaintiffs thereafter moved to

remand and, in support of their motion, their counsel sub-

mitted two affidavits purporting to limit each plaintiff’s claim

to less than $50,000. The district court denied plaintiffs’

motion. De Aguilar v. Boeing Co., 790 F. Supp. 693 (E.D.

Tex. 1992), aff’d, 11 F.3d 55 (Sth Cir. 1993).

Boeing thereafter moved to dismiss the action on the

ground of forum non conveniens. The district court granted

the motion and a final judgment dismissing the action was

filed on September 22, 1992. De Aguilar v. Boeing Co., 806

F. Supp. 139 (E.D. Tex. 1992), aff’d, 11 F.3d 55 (Sth Cir. 1993).

The Fifth Circuit Court of Appeals affirmed the rulings of

the district court and rejected plaintiffs’ contention that the

action should be remanded for an insufficient amount in con-

troversy based on the post-removal affidavits of plaintiffs’

counsel purporting to limit damages not to exceed $49,000

per plaintiff. De Aguilar J, 11 F.3d 55 (Sth Cir. 1993). The

Fifth Circuit concluded that “it is facially apparent that dam-

ages sought by the plaintiffs here exceed $50,000.” Jd. at 57.

0 as a a at tos ATA OR aly CRB AM ab ES

The court concluded alternatively that even if the amount in

controversy were not “facially apparent,” the affidavits of

plaintiffs’ counsel were rebutted by “published precedent

showing that damages in the instant case and in similar cases

would probably exceed $50,000 per plaintiff” and “evidence

that the plaintiffs in this action claimed damages of up to

$5,000,000 in other courts for the same injuries.” De Aguilar

I, 11 F.3d at 58.

6. The Pardo Action Presently Pending in Mexico

Claims arising from the crash are presently pending against

Mexicana in an action entitled Pardo v. CIA Mexicana de

Aviacion, S.A. de C.V., Action 137/88 (D. Mexico). Several of

the plaintiffs in this action are parties in the Mexican action.

7. This Action (De Aguilar II)

Failing to defeat federal diversity jurisdiction by utilizing

post removal affidavits of counsel, claims on behalf of the

same 69 decedents dismissed in De Aguilar I were again

asserted in this action which was filed in the 60th Judicial

District Court, Jefferson County, Texas (the same court in

which the petition was filed in De Aguilar I) on November 5,

1992. Unlike the petition in De Aguilar | in which plaintiffs

did not plead a specific amount of damages, in De Aguilar II,

those same plaintiffs, petitioners herein, specifically alleged

damages of not more than $50,000 per decedent. The action

was removed and the Eastern District of Texas once again

denied petitioners’ motion to remand (and supplemental

motion to remand) and granted defendants’ motion to dismiss

based on forum non conveniens (Appendix, infra, 22a-23a).

Petitioners appealed both orders. The Fifth Circuit Court of

Appeals affirmed. De Aguilar I], 47 F.3d 1404 (Sth Cir.

1995). Petitioners filed their petition for writ of certiorari on

July 7, 1995.

In summary, claims asserted on behalf of the Mexicana

flight 940 decedents have been dismissed on numerous occa-

sions prior to their dismissal by the court of appeals below.

De Aguilar I, 11 F.3d 55 (Sth Cir. 1993), aff’g, 806 F. Supp.

139 and 790 F. Supp. 693 (E.D. Tex. 1992); Rodriguez v. Mex-

icana de Avion, S.A., 20 Av. Cas. (CCH) 17,983 (W.D. Tex.

1987), aff'd mem., 843 F.2d 498 (Sth Cir.), cert. denied, 488

U.S. 826 (1988) (all 16 decedents in the Rodriguez action are

named in the present action); Penasco Garcia v. Mexicana de

Avion, No. 87 C. 3920 (N.D. Ill. Sept. 21, 1987) (16 of the

Penasco Garcia decedents are named in this action); Wolf v.

Boeing Co., No. 89-2-06281-0, Judgment of Dismissal at 5-

6 (Super. Ct. Wash. Jan. 19, 1990), aff’d, 61 Wash. App. 316,

810 P.2d 943, review denied, 117 Wash. 2d 1020, 818 P.2d

1098 (1991) (plaintiffs in Wolf represented the same 69 dece-

dents named in De Aguilar | and the present action). More-

over, claims on behalf of the estates of the 69 decedents also

were dismissed in the Central District of California on the

ground that plaintiffs failed to serve their complaint within

120 days (and as against Mexicana under the Foreign

Sovereign Immunities Act). Esperanza Estavillo Dias v. Com-

pania Mexicana De Aviacion, S.A., No. CV 01792, slip op. at

2 (C.D. Cal. Nov. 28, 1988). Finally, the Pardo action, which

is pending in Mexico City, Mexico against Mexicana, names

six decedents who also are named in the action before this

Court.

REASONS FOR DENYING THE WRIT

A. The Court of Appeals Properly Concluded That Fed-

eral Subject Matter Jurisdiction Exists in This Action

Petitioners seek to avoid federal jurisdiction and another

forum non conveniens dismissal by placing an illusory cap on

the amount of damages demanded in their complaint to a sum

below the requisite amount in controversy. See De Aguilar I,

stmaisetlanecsentesian

11 F.3d at 58; De Aguilar I], 47 F.3d at 1408.° Petitioners

believe that they will avoid a forum non conveniens dismissal

if they can prevent the removal of this action from the Texas

state court because they filed their complaint during the lim-

ited period of time in which the doctrine of forum non con-

veniens was abolished in Texas.°®

Petitioners’ reliance on St. Paul Mercury Indemnity Co. v.

Red Cab Co., 303 U.S. 283 (1938), to shield these claims

from federal jurisdiction is misplaced. In St. Paul Mercury,

plaintiff commenced an action in the state court seeking

$4,000 in damages. Defendant removed the action based on

diversity (at the time, the minimum amount in controversy for

federal jurisdiction was $3,000). Plaintiff thereafter amended

the complaint and, although the amended complaint also

demanded $4,000, plaintiff annexed an exhibit to the amended

complaint alleging that plaintiff’s actual damages were only

$1,380.89. The district court entered judgment for $1,162.98

and plaintiff appealed. The court of appeals concluded that

the action should have been remanded for failure to meet the

statutory minimum amount in controversy requirement. This

Court reversed and held that the defendant was “entitled to

; Petitioners’ complaint demands damages “not to exceed $50,000

per decedent.” Petitioners’ Appendix, A78. Rule 47(b) of the Texas Rules

of Civil Procedure provides that “[aJn original pleading. . . shall con-

tain. . . (b) in all claims for unliquidated damages only the statement

that the damages sought are within the jurisdictional limits of the court.”

. As the Fifth Circuit Court of Appeals correctly noted in both De

Aguilar II, 47 F.3d at 1408, and De Aguilar I, 11 F.3d at 56, petitioners

contend that the decision of Dow Chemical Co. v. Alfaro, 786 S.W.2d 674

(Tex. 1990), cert. denied, 498 U.S. 1024 (1991) created an opportunity

for them to avoid another forum non conveniens dismissal. The court in

Dow held that Texas state courts no longer recognized the doctrine of

forum non conveniens in wrongful death actions. The statute was ulti-

mately modified by the Texas legislature to allow forum non conveniens

dismissals in actions commenced on or after September 1, 1993. Tex. Civ.

Prac. & Rem. Code Ann. § 71.051 (1994). This action and De Aguilar I

were both filed before the statute was modified.

invoke the jurisdiction of the Federal court, and a reduction

of the amount claimed after removal did not take away that

privilege.” St. Paul Mercury, 303 U.S. at 296.

Petitioners incorrectly rely on a single sentence in St. Paul

Mercury to support their erroneous contention that the amount

of damages set forth by a plaintiff in a state court complaint

absolutely controls for purposes of determining the minimum

amount in controversy:

If [plaintiff] does not desire to try his case in the Federal

court he may resort to the expedient of suing for less

than the jurisdictional amount, and though he would be

justly entitled to more, the defendant cannot remove.

303 U.S. at 294 (footnote omitted); see petitioners’ brief at 25.

The St. Paul Mercury decision, however, establishes that

the amount demanded in the complaint does not control for

purposes of determining whether federal jurisdiction exists

where it appears to a “legal certainty” that the claim seeks

less than the requisite amount to satisfy the minimum amount

in controversy requirement.

The rule governing dismissal for want of jurisdiction in

cases brought in the Federal court is that, unless the law

gives a different rule, the sum claimed by the plaintiff

controls if the claim is apparently made in good faith. It

must appear to a legal certainty that the claim is really

for less than the jurisdictional amount to justify dismiss-

al. . . . [I]f, from the face of the pleadings, it is appar-

ent, to a legal certainty, that the plaintiff cannot recover

the amount claimed or if, from the proofs, the Court is

satisfied to a like certainty that the plaintiff never was

entitled to recover that amount, and that his claim was

therefore colorable for the purpose of conferring juris-

diction, the suit will be dismissed. Events occurring sub-

sequent to the institution of suit which reduce the

— eR Te hy * ”

amount recoverable below the statutory limit do not oust

jurisdiction.

St. Paul Mercury, 303 U.S. at 288-290 (footnotes omitted).

Petitioners contend that the “legal certainty” test applies

only where the complaint is filed in federal court and they

allege a conflict among the circuits as to a defendant’s burden

to establish that removal from state court is proper. Peti-

tioners’ brief at 25-27. Petitioners are correct to the extent

that “[o]pinions regarding the defendant’s burden of proof

begin to diverge where a defendant seeks to remove a case

where the plaintiff has specifically claimed Jess than the fed-

eral amount-in-controversy requirement.” Gafford v. General

Elec. Co., 997 F.2d 150, 157 (6th Cir. 1993); compare

Gafford, 997 F.2d at 158 (preponderance of the evidence stan-

dard) and Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir.

1993), reh’g, en banc, denied, 1993 U.S. App. LEXIS 17,385

(7th Cir. July 13, 1993) (“Defendants seeking removal may

meet that burden by a preponderance of the evidence, McNutt

v. General Motors Acceptance Corp., 298 U.S. 178 [ ] (1936)

which we take to mean proof to a reasonable probability that

jurisdiction exists”) (footnote omitted); and Garza v. Bettcher

Industries, Inc., 752 F. Supp. 753, 763-64 (E.D. Mich. 1990)

(preponderance of the evidence standard adopted) with Burns

v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994)

(“defendant must prove to a legal certainty that plaintiff’s

claim must exceed $50,000”).

Although courts have applied different standards to a defen-

dant’s burden on removal, the decisions in De Aguilar II,

Gafford, Shaw, Garza and Burns demonstrate that despite a

plaintiff’s demand of less than the requisite amount in con-

troversy for federal jurisdiction, an action is properly

removed where the defendant establishes that the amount in

controversy exceeds $50,000. Accordingly, the view advanced

by petitioners at pp. 25-26 of their brief, that removal is

always improper where a plaintiff limits damages below the

requisite amount of controversy in a state court complaint, is

not followed by any court.

The court of appeals properly concluded that respondents

met their burden of establishing that federal jurisdiction exists

in this action. At the outset, petitioners’ demand in the com-

plaint is meaningless because it violated Rule 47(b) of the

Texas Rules of Civil Procedure which prohibits plaintiffs

from pleading specific amounts in cases of unliquidated dam-

ages. De Aguilar II, 47 F.3d at 1412. The court of appeals rea-

soned:

[t]hese new rules have created the potential for abu-

sive manipulation by plaintiffs, who may plead for dam-

ages below the jurisdictional amount in state court with

the knowledge that the claim is actually worth more, but

also with the knowledge that they may be able to evade

federal jurisdiction by virtue of the pleading. Such

manipulation is surely characterized as bad faith.

De Aguilar II, 47 F.3d at 1410; see also Gafford v. General

Elec. Co., 997 F.2d 150, 157-58 (6th Cir. 1993). Accordingly,

petitioners’ attempt to limit their recovery to $50,000 is illu-

sory because petitioners’ recovery in state court would not be

limited to this amount.’

If this action were remanded, the state court would simply dis-

regard the petitioners’ artificial limitation on damages. See e.g., In the

Matter of Shell Oil Co., 970 F.2d 355 (7th Cir. 1992). In Shell Oil, plain-

tiff sued for a sum in excess of $15,000 but less than $50,000 contrary to

an Illinois statute which precluded pleading specificity of damages. The

district court noted that the pleading violated the Illinois pleading rules

precluding such specificity but the district court remanded the action

based on a post-removal affidavit purporting to limit damages. The Sev-

enth Circuit issued a writ of mandamus directing the district court to

rescind its order remanding the action. Acknowledging that the initial

pleading of less than $50,000 could have been stricken from the petition

by the state court, the court of appeals held, “the factual allegations of the

complaint, and not empty words setting an illusory cap on damages,

inform the jurisdictional inquiry.” /d. at 356.

Moreover, petitioners’ demand in the complaint also is illu-

sory because these petitioners have asserted the same claims

in numerous prior actions wnere they demanded more than the

requisite amount in controversy.® Accordingly, the court prop-

erly concluded that the respondents met their burden of estab-

lishing that federal jurisdiction is proper. De Aguilar II, 47

F.3d at 1412 (“it is facially apparent that the damages rise to

a level above $50,000”).

The decisions on which petitioners rely are distinguishable

because, unlike respondents in this action, defendants in those

actions failed to meet their burden that the minimum amount

in controversy exceeded $50,000. See Laughlin v. K-Mart

Corp., 50 F.3d 871 (10th Cir. 1995), petition for cert. filed, 64

U.S.L.W. 3068 (U.S. July 7, 1995) (No. 95-40); Gaus v.

Miles, Inc., 980 F.2d 564 (9th Cir. 1992); Burns v. Windsor

Ins. Co., 31 F.3d 1092 (11th Cir. 1994).

In Laughlin, the complaint alleged that the amount in con-

troversy was in excess of $10,000 for each of the two claims

and the notice of removal did not refer to an amount in con-

troversy. Laughlin, 50 F.3d at 873. The Tenth Circuit held

that:

{t]he amount in controversy is ordinarily determined by

the allegations of the complaint, or, where they are not

dispositive, by the allegations in the notice of removal

. . The burden is on the party requesting removal to

set forth, in the notice of removal itself, the ‘underlying

facts supporting [the] assertion that the amount in con-

troversy exceeds $50,000.’ Gaus v. Miles, Inc., 980 F.2d

564, 567 (9th Cir. 1992).

. As the Fifth Circuit Court of Appeals noted in De Aguilar /, 11

F.3d 55, 58 (Sth Cir. 1993), “the same plaintiffs in this action pled dam-

ages up to $5,000,000 in other forums for the same injuries.” Moreover,

the plaintiffs in the Pardo action pending in Mexico claim substantial

damages including at least 375,000 for pre-impact pain and suffering.

Laughlin, 50 F.3d at 873 (citation omitted). The Laughlin court

determined that the action should be remanded because,

although defendant set forth facts alleging that the amount in

controversy exceeded the jurisdictional minimum of $50,000 in

its jurisdictional brief, defendant failed to include any of these

facts in its notice of removal. Jd. The court of appeals in this

action held that respondents established “in their notice of

removal that the amount in controversy exceeded $50,000.” De

Aguilar II, 47 F.3d at 1407.

Similarly, in Gaus v. Miles, Inc., 980 F.2d 564, 565 (9th

Cir. 1992), plaintiff filed an action in the state court seeking

damages “in excess of $10,000.” Defendant removed alleging

in the removal petition that “the matter in current controversy

... exceeds the sum of $50,000.” Jd. The court determined

that the action should be remanded because the defendant

“offered no facts whatsoever” to support federal jurisdiction.

Id. at 567.

Petitioners also rely on Burns v. Windsor Ins. Co., 31 F.3d

1092, 1093 (11th Cir. 1994). In Burns, plaintiff filed an action

in state court seeking “not more than $45,000” but admitted

to the federal court that “she may, if circumstances change”

amend the complaint to seek more damages. The defendant

removed and the district court denied plaintiff’s motion to

remand. The Eleventh Circuit vacated and remanded, holding:

[b]ecause removal is only permissible when plaintiff’s

claim could have been filed in federal court originally,

we must look to plaintiff’s claim to determine whether

removal was appropriate. Plaintiff’s complaint specifi-

cally requests $45,000 in damages. Therefore, no juris-

diction exist[s] on the face of plaintiff’s claim. So, the

critical question is to what extent must defendant prove

jurisdiction exists despite plaintiff’s express ciaim to

less than the minimum jurisdictional sum?

We believe the defendant’s burden of proof must be a

heavy one. . . . We will not assume—unless given rea-

son to do so—that plaintiff’s counsel has falsely repre-

sented, or simply does not appreciate, the value of his

client’s case.

Id. at 1095.

The Burns court held that defendant had not met its burden

of establishing that, notwithstanding the limited amount of

damages demanded in the complaint, the minimum amount in

controversy was sufficient to confer federal jurisdiction at the

time of removal. The reasoning in Burns differs from the Fifth

Circuit in this action in the extent of the burden on defendant

to establish that removal is proper. In Burns, the court held

that defendant “must prove to a legal certainty that plaintiff’s

claim must exceed $50,000.” Jd. at 1095. The Burns court

relied on the Fifth Circuit’s decision in Kliebert v. Upjohn

Co., 915 F.2d 142 (Sth Cir. 1990), vacated for reh’g en banc,

923 F.2d 47 (Sth Cir.), appeal dism’d per settlement, 947 F.2d

736 (Sth Cir. 1991).

The court of appeals in this action rejected the standard it

previously articulated in Kliebert because that standard fails

to “protect defendants from plaintiffs who seek to manipulate

their state pleadings to avoid federal court while retaining the

possibility of recovering greater damages in state court.” De

Aguilar Il, 47 F.3d at 1411. To prevent petitioners from suc-

cessfully engaging in such a bad faith manipulation of their

pleadings, the court of appeals below properly concluded that

the amount of plaintiff’s claim controls “unless the defendant

can show by a preponderance of the evidence that the amount

in controversy is greater than the jurisdictional amount.” De

Aguilar II, 47 F.3d at 1412.

The difference in the burden on defendant as enunciated in

Burns and by the Fifth Circuit in De Aguilar I] does not pro-

vide a basis to grant the writ in this action, however, because

even the Burns court acknowledged that where a plaintiff’s

counsel falsely represented the value of the case, the defen-

dant has met its burden of establishing that removal is proper.

Burns, 31 F.3d at 1095. Petitioners’ prior claims seeking more

than the minimum amount in controversy in numerous other

fora constitutes the type of bad faith effort to manipulate their

state pleadings, see De Aguilar I], 47 F.3d at 1411, that would

not be tolerated under any standard. Accordingly, the court of

appeals properly concluded that the respondents established

that petitioners’ claims exceed $50,000 and the decisions

relied upon by petitioners do not support their contention that

there is a conflict among the circuits which should be

resolved by granting the writ in this action.

B. The Court of Appeals Properly Held That Petitioners

Were Not Authorized to Limit the Recovery of the

Estates of the Decedents

The court of appeals properly concluded not only that

respondents established that the amount in controversy

exceeds $50,000, but also that petitioners were unable to

show that their recovery would not exceed $50,000. De

Aguilar II, 47 F.3d at 1412.

[A] plaintiff, in a case for unliquidated damages, cannot,

absent a further showing, avoid removal by pleading for

damages under the jurisdictional amount where a state

rule prevents such pleading and where defendants are

able to show that it is facially apparent that the amount

in controversy exceeds $50,000.

Id. at 1413.

The attempt of petitioners to cap their damages at $50,000

is thus illusory not only because the demand violates Rule

47(b) of the Texas Rules of Civil Procedure and because peti-

tioners have demanded far more than $50,000 in previous

actions, but also because petitioners did not make a “further

showing” that removal was improper by establishing that they

are the legal representatives or legal heirs authorized to limit

the damages recoverable by the estates. De Aguilar II, 47 F.3d

at 1414-15.

1. The Fifth Circuit Properly Held That Petitioners

Failed to Establish That They are the Legal

Representatives of the Estates

Petitioners alleged in the complaint that they are the legal

representatives of the estates of the decedents and brought

this action pursuant to Section 71.021 of the Texas Civil Prac-

tices and Remedies Code, the Texas survival statute.’ Peti-

tioners attached to their complaint an affidavit of one of their

attorneys stating that petitioners agreed to an irrevocable cap

on recoverable damages. De Aguilar I], 47 F.3d at 1407.

Respondents attempted to ascertain whether the affidavit of

counsel constituted a binding and irrevocable limitation on

the damages of the respective estates because it was not clear

from the affidavit whether the petitioners had been appointed

legal representatives of the estates and whether petitioners

had authorized their counsel to make such a binding and irre-

vocable admission. /d. Petitioners refused to confirm that they

had been appointed by a qualified court to be the legal rep-

resentatives of the estates and, thereafter, conceded that they

brought this action only as legal heirs and not as legal rep-

resentatives. Jd. at 1407, 1414-15.

Based on the foregoing, the Fifth Circuit properly con-

cluded that petitioners “abandoned” their claim as the legal

representatives of the estates. De Aguilar I], 47 F.3d at 1414-

15. Petitioners offered no proof that they are the legal rep-

resentatives of the estates of decedents and, accordingly, they

do not have the authority to pursue and limit these claims to

$50,000. See Bozeman v. Folliott, 556 S.W.2d 608, 614 (Tex.

Tex. Civ. Prac. & Rem. Code § 71.021(b) provides: “A personal

injury action survives to and in favor of the heirs, legal representatives,

and estate of the injured person. The action survives against the liable

person and the person’s legal representatives.”

Civ. App. 1977); Martinez v. Angerstein, 517 S.W.2d 811, 816

(Tex. Civ. App. 1974); Texas Probate Code §§ 178, 189.

The court of appeals also affirmed the district court’s rejec-

tion of petitioners’ argument that under Texas pleading rules,

respondents waived their right to challenge the authority of

petitioners to act as legal representatives because respondents

did not file a plea in abatement or a verified denial. Federal

pleading rules, rather than state pleading rules, apply in fed-

eral court. See Bowers v. Firestone Tire & Rubber Co., 800

F.2d 474, 479 (Sth Cir. 1986) (once an action is removed from

state court to federal court, Federal Rules of Civil Procedure

govern pleading requirements); Consolidated Cigar Co. v.

Texas Commerce Bank, 749 F.2d 1169, 1174 (Sth Cir. 1985).

Respondents complied with Rules 11 and 12 of the Federal

Rules of Civil Procedure and, as such, were not required to

file a plea in abatement or verified denial in this action. See

Sneed Shipbuilding, Inc. v. Spanier Marine Corp., 125 F.R.D.

438 (E.D. Tex. 1989). Accordingly, respondents did not waive

their right to challenge the authority of petitioners to bring

this action as the legal representative of the estates and to

limit the damages sought on behalf of the estates of dece-

dents.

2. The Fifth Circuit Properly Held That Petitioners

Failed to Establish That They Have the Author-

ity to Limit These Claims as Legal Heirs on

Behalf of the Estates

The requirements to pursue a claim as the legal heir of an

estate are different from the requirements to pursue a claim as

the legal representative of an estate. See Handley v. City of

Seagoville, 798 F. Supp. 1267, 1270 (N.D. Tex. 1992). Legal

heirs can prosecute a survival cause of action on behalf of an

estate if they allege (1) there is no administration of the estate

pending, (2) there is no necessity for administration of the

estate, and (3) they are the only heirs of the decedent. Lozano

v. Smith, 718 F.2d 756, 773 n. 38 (Sth Cir. 1983); Cole v.

Franklin Life Ins. Co., 93 F.2d 620, 624 (Sth Cir. 1937); Fra-

zier v. Wynn, 472 S.W.2d 750, 752 (Tex. 1971); see also Mar-

tinez v. Angerstein, 517 S.W.2d 811, 816-17 (Tex. Civ. App.

1974) (Plaintiff failed to offer evidence that she was the sole

heir of husband’s estate); Sustaita v. Valle, 38 S.W.2d 638,

640-41 (Tex. Civ. App. 1931) (Plaintiff did not offer evidence

that she was the sole surviving heir of her father’s estate).

Under Texas law, therefore, all potential legal heirs to an

estate are indispensable parties to a survival action involving

a decedent’s estate. See Martinez, 517 S.W.2d at 816; Phillips

v. Teinert, 493 S.W.2d 584, 585 (Tex. Civ. App. 1973). The

Fifth Circuit properly held that petitioners did not allege any

of the requisite elements in this action and, as a result, peti-

tioners cannot compromise the claims of the estates. De

Aguilar II, 47 F.3d at 1415.

It is undisputed that petitioners are not the sole heirs of

decedents named in this action. In fact, petitioners dropped 42

of the heirs, which includes all 20 minors, who were named as

plaintiffs in the De Aguilar I complaint. De Aguilar II, 47

F.3d at 1415. Moreover, petitioners also dropped the one hun-

dred “Doe” plaintiffs named in the previous complaint. /d.

The Fifth Circuit reasoned that the inclusion of “Doe” plain-

tiffs in the complaint in De Aguilar | indicates that there

exists uncertainty as to the identity of all the heirs. Jd. Coun-

sel for petitioners conceded that all legal heirs were not rep-

resented in this action and that prior complaints in other

actions noted additional survivors would be named at a later

date. Jd. Because petitioners failed to establish that all legal

heirs are parties to this action, they lack the authority as legal

heirs under Texas law to limit the damages recoverable on

behalf of the estates of the decedents.

The Fifth Circuit properly applied Texas law in determin-

ing whether petitioners have the authority as legal heirs to

limit the damages sought by the estates. The court correctly

held that in a diversity action a federal court must apply the

choice-of-law rules of the state in which it sits. De Aguilar II,

47 F.3d at 1413. Petitioners brought this action in Texas pur-

suant to the Texas survival statute, but seek to apply Mexican

law to the issue of their authority to maintain and compromise

the claims of the decedents. The Fifth Circuit correctly

applied the most significant relationship test and, after care-

ful analysis, held that under Texas law petitioners lack the

authority as legal heirs to bring this action on behalf of the

estates of decedents under the Texas survival statute. /d. at

1413-1414.

Moreover, even if Mexican law applied to this issue, peti-

tioners have not demonstrated that an individual heir can

compromise a claim on behalf of all of the persons who have

an interest in a decedent’s estate. Accordingly, petitioners

failed to provide support for their contention that under Mex-

ican law they would have the authority to pursue these claims

and limit damages to $50,000.

Based on the foregoing, the Fifth Circuit properly held that

petitioners failed to meet their burden in establishing that

they are the legal representatives or legal heirs authorized to

limit the damages recoverable to the estates of the decedents.

CONCLUSION

For these reasons, the petition for a writ of certiorari should

be denied.

Respectfully submitted,

/s/ MICHAEL J. HOLLAND

MICHAEL J. HOLLAND

CONDON & FORSYTH

1251 Avenue of the Americas

New York, New York 10020

(212) 757-6870

Counsel for Respondent

DELTA AIR LINES, INC.

Of Counsel:

Steven C Rickman

Christopher V. Della Pietra

APPENDIX

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 93-5333

March 7, 1995

Alma Torreblanca DE AGUILAR, et al.,

Plaintiffs-Appellants,

a, |

BOEING COMPANY, et al.,

Defendants-Appellees.

Benton Musslewhite, Mary Blair Martin, Houston, TX,

Mitchell A. Toups, Weller & Green, Beaumont, TX, Dennis C.

Reich, Reich & Binstock, Houston, TX, for appellants.

Howard Louis Close, Orgain Bell & Tucker, Beaumont, TX,

Richard C. Coyle, Seattle, WA, for Boeing Co.

Gerald Leigh Bracht, Laura Jean Ware, Mayor Day Cald-

well & Keeton, Houston, TX, for BF Goodrich Co./Goodyear

Tire.

Michael J. Holland, Condon & Forsyth, New York City, for

Delta Air Lines.

Don Swaim, George Steven McCall, Kern & Wooley, Irv-

ing, TX, for Parker Hannifin Corp.

Appeal from the United States District Court for the East-

ern District of Texas.

Before SMITH AND EMILIO M. GARZA, Circuit Judges, and

STAGG,* District Judge.

JERRY E. SMITH, Circuit Judge:

Plaintiffs, the relatives of persons who died in an airline

crash in Mexico, appeal the district court’s denial of their

motion to remand to state court, the failure of the district

court to strike or sever the third party complaint by defendant

Boeing Company (“Boeing”), and the dismissal on the ground

of forum non conveniens (“f.n.c.”). Concluding that the dis-

trict court did not err, we affirm.

On March 31, 1986, a Mexicana Airlines jet crashed near

Mexico City, killing everyone on board. An investigation con-

cluded that a tire exploded in the wheel well while the plane

was in flight, causing an in-flight fire that eventually caused

the plane to explode.

Il.

Relatives and personal representatives of the estates of

those who died filed several lawsuits throughout the United

States and in Mexico. In every lawsuit filed in the United

. District Judge of the Western District of Louisiana, sitting by

designation.

States, the action has been either voluntarily dismissed by the

plaintiffs or dismissed on the basis of foreign sovereign

immunity or f.n.c.!

Plaintiffs have been determined to find a United States

forum in which to try their case. In November 1992, they

filed this action in Texas state court, claiming to be the per-

sonal representatives of the estates of each decedent and the

legal heirs of the decedents pursuant to the Texas Survival

Statute, TEX.CIV.PRAC. & REM.CODE ANN. § 71.021 (Vernon

1986). The plaintiffs charged negligence and products lia-

bility against Boeing, B.F. Goodrich, Goodyear Tire and Rub-

ber, Delta Airlines, and Parker Hannifin Corporation. Under

TEX.R.CIv.P. 47, plaintiffs were not allowed to plead for a

specific amount of damages.’

After defendants removed the case to federal court in the

Eastern District of Texas, plaintiffs filed affidavits executed

by certain plaintiffs and by the plaintiffs’ attorneys, pur-

porting to limit the damages they were seeking, and moved to

remand on the ground that the $50,000 jurisdictional amount

requirement was not satisfied. See 28 U.S.C. § 1332. The dis-

trict court denied remand, holding that the affidavits were

irrelevant because “jurisdiction attaches at the time of

removal, and subsequent events do not oust the court of juris-

diction.” De Aguilar v. Boeing Co., 790 F.Supp. 693, 694

(E.D.Tex.1992). Subsequently, however, this court decided

Asociacion Nacional de Pescadores v. Dow Quimica de

Colombia S.A. (“ANPAC”), 988 F.2d 559 (Sth Cir. 1993),

cert. denied, __U.S. __, 114 S.Ct. 685, 126 L.Ed.2d 653

(1994), concluding that post-removal affidavits sometimes

| See de Aguilar v. Boeing Co., 11 F.3d 55 (Sth Cir.1993); Com-

pania Mexicana de Aviacion, S.A. v. United States Dist. Court, 859 F.2d

1354 (9th Cir.1988); Rodriguez v. Mexicana de Avion, S.A., 1987 WL

275695 (W.D.Tex 1987), affd mem., 843 F.2d 498 (Sth Cir.), cert. denied,

488 U.S. 826, 109 S.Ct. 76, 102 L.Ed.2d 53 (1988); Wolf v. Boeing Co.,

61 Wash.App. 316, 810 P.2d 943, review denied, 117 Wash.2d 1020, 818

P.2d 1098 (1991).

The rule states, “An original pleading. . . shall contain. . . (b)

in all claims for unliquidated damages only the statement that the dam-

ages sought are within the jurisdictional limits of the court.”

can be relevant where the jurisdictional amount question is

unresolved. /d. at 565.

The district court a quo further noted that, even if it had

considered the affidavits relevant, the complaint named one

hundred unknown plaintiffs who were not bound by the affi-

davits, and plaintiffs’ counsel could not bind minor benefi-

ciaries (constituting approximately twenty of the named

plaintiffs) to judgments in wrongful death suits without leave

of court. De Aguilar, 790 F.Supp. at 695. The claims later

were dismissed on f.n.c. grounds. De Aguilar v. Boeing Co.,

806 F.Supp. 139 (E.D.Tex.1992). The court held that direct

estoppel barred the plaintiffs from relitigating the f.n.c. dis-

missal. Courts in Illinois, Washington, and the Western Dis-

trict of Texas had already ruled on this matter. /d at 142.

Alternatively, the court found that under traditional f.n.c. cri-

teria, the Eastern District of Texas would not be a convenient

forum. /d at 142-43.

This court affirmed the denial of the motion to remand and

the dismissal on estoppel and f.n.c. grounds. De Aguilar v.

Boeing Co. (“de Aguilar 1”), 11 F.3d 55 (Sth Cir.1993). We

held that the district court had properly disregarded the affi-

davits because it was “facially apparent” that the damages

sought by each plaintiff exceeded $50,000. Jd. at 57. Alter-

natively, we noted that the attorney affidavits were not unre-

butted by evidence from the defendants. Jd. at 57-58. These

points distinguished de Aguilar I from ANPAC.

ANPAC involved claims that were not facially likely to

exceed the jurisdictional amount. ANPAC, 988 F.2d at 565. In

addition, in ANPAC, the only “evidence” the defendants pro-

duced to rebut the plaintiffs’ attorneys’ affidavits was the

original notice of removal, which merely stated that the mat-

ter in controversy exceeded $50,000. Jd. The de Aguilar |

court noted that the defendants in that case had produced tes-

timonial evidence and published precedent that indicated that

the matter in controversy indeed exceeded $50,000. De

Aguilar I, 11 F.3d at 58.

In the alternative, the plaintiffs in de Aguilar ] argued that

the original notice of removal was invalid because the defen-

dants failed to prove that the amount in controversy exceeded

$50,000. We rejected this argument because defendants had

Shown that plaintiffs had pled damages of up to $5,000,000 in

other fora for the same injuries. /d.

In the instant case, shortly after the district court had dis-

missed the original claims, plaintiffs’ attorneys filed another

petition in state court. In this petition, at issue now, the plain-

tiffs dropped forty-two of the heirs, including all of the

minors, and any mention of unnamed ‘Doe” plaintiffs. More

importantly, plaintiffs, in apparent violation of TEX.R.CIV.P.

47, described the amount of their claim by specifically alleg-

ing that their damages did not exceed $50,000. Plaintiffs

attached to the original petition an affidavit of attorney Den-

nis Reich stating that plaintiffs had agreed to an irrevocable

cap on the amount of damages that could be awarded.

After service, defendants attempted to Clarify whether

Reich’s affidavit constituted a binding limitation on the

respective estates’ damages. Howard Close, counsel for Boe-

ing, sent Reich a letter asking for an amendment to the affi-

davit, or a new affidavit, in which Reich would attest that the

plaintiffs had been appointed the personal representatives of

the estates and had expressly authorized Reich to make a

binding and irrevocable admission on their behalf.

One of the plaintiffs’ attorneys, Mitchell Toups, had a dis-

cussion with Close about the proposed amendments to Reich’s

affidavit. The parties appear to dispute exactly what took

place, though both sides agree that plaintiffs’ counsel refused

to say that the plaintiffs had been appointed by a qualified

court as the personal representatives of the estates. Accord-

ing to defendants, Toups also said that none of the plaintiffs’

American attorneys had actually talked to the plaintiffs.

Plaintiffs claim that the reason they refused to acknowledge

that they had been appointed the personal representatives of

the estates was that they were suing as heirs, not representa-

tives.

Defendants concluded that the plaintiffs named in the peti-

tion were simply some of the heirs of the decedents and did

not have the authority to limit damages. As a result, defen-

dants once again removed to federal court in the Eastern Dis-

trict of Texas, establishing in their notice of removal that the

amount in controversy exceeded $50,000.

Three months after removal, plaintiffs filed a supplemen-

tal motion to remand for lack of jurisdiction and attached an

affidavit from a Mexican lawyer, Guadalupe Bistrain, who

was one of the plaintiffs’ attorneys. Bistrain swore that she

had received explicit authority from each of the named plain-

tiffs to limit damages to $50,000. The district court deter-

mined that the plaintiffs had not shown the necessary

authority to limit damages and ruled that the amount in con-

troversy exceeded $50,000.

Defendants alleged an additional basis for federal juris-

diction. In December 1992, Boeing filed a third party com-

plaint against Mexicana Airlines, which on January 15, 1993,

filed a memorandum that claimed status as a “foreign state”

under the Foreign Sovereign Immunities Act, 28 U.S.C.

§§ 1602-1611. Plaintiffs filed a motion to strike or, in the

alternative, sever Boeing’s third party claim. The district

court denied this motion when it denied the motion to remand.

Defendants subsequently moved to dismiss on f.n.c. grounds;

the court granted this motion.’

III.

Since the crash, plaintiffs have made repeated attempts to

locate an American forum. There are actions pending in the

Mexican courts also. The Supreme Court of Texas had held

that the doctrine of f.n.c. no longer applied in Texas wrong-

ful death actions. See Dow Chemical Co. v. Alfaro, 786

S.W.2d 674 (Tex.1990), cert. denied, 498 U.S. 1024, 111 S.Ct.

671, 112 L.Ed.2d 663 (1991). The Texas Legislature then

overruled Alfaro. See TEX.CIV.PRAC. & REM.CODE ANN.

; There is no merit to the plaintiffs’ appeal of the f.n.c. dismissal.

We affirmed, in de Aguilar I, 11 F.3d at 58-59, the dismissal on f.n.c.

grounds. Thus, if we decide that there was federal jurisdiction in this

case, the f.n.c. dismissal is law of the case.

§ 71.051; ‘21’ Int’l Holdings v. Westinghouse, 856 S.W.2d

479 (Tex.App.—San Antonio 1993, no writ). The new statute,

however, applies only to causes of action filed on or after

September 1, 1992. Thus, plaintiffs obviously prefer Texas

state court to federal court, where f.n.c. applies.

IV.

As we have stated, plaintiffs’ state court petition averred

that they were seeking no recovery in excess of $50,000. Dur-

ing oral argument, plaintiffs characterized their claim as a

plea for a specific amount of damages. They argue that de

Aguilar I was premised on the fact that the complaint in that

case “did not specify an amount of damages.” De Aguilar I,

11 F.3d at 57.

Indeed, strictly speaking, plaintiffs have not alleged a spe-

cific amount of damages, as the amount they claim can range

from $1 to $50,000. We will treat the claim, however, as one

for a specific amount of damages.‘ Plaintiffs have labored to

specify one “magic” number in their complaint, i.e. $50,000.

We regard such a complaint as more like a claim for one sum

rather than a claim for an unlimited or an unspecified amount

of damages; to reason otherwise would put form over sub-

stance. As a functional matter, plaintiffs are attempting to

avoid federal jurisdiction. This goal is the same whether they

pick a number such as $49,999 or merely announce a ceiling

that, conveniently, is barely within the statutory limit.

Defendants, as on all previous occasions, seek to retain this

case in federal court. In general, defendants may remove a

civil action if a federal court would have had original juris-

diction. See 28 U.S.C § 1441(a). In this particular case, juris-

diction is asserted on the basis of diversity of citizenship. 28

U.S.C. § 1332. The removing party bears the burden of estab-

lishing that federal jurisdiction exists. Gaitor v. Peninsulur &

Occidental S.S. Co., 287 F.2d 252, 253-54 (Sth Cir.1961).

“Unless the law gives a different rule, the sum claimed by

the plaintiff controls if the claim is apparently made in good

i This critical distinction renders ANPAC inapposite.

faith.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303

U.S. 283, 288, 58 S.Ct. 586, 590 82 L.Ed. 845 (1938). Most

discussions of jurisdictional amount in removal cases begin

with St. Paul Mercury.

In St. Paul Mercury, the Court announced the now famous

“legal certainty” test for diversity cases: In order for a federal

court to decline jurisdiction, “[i]t must appear to a legal cer-

tainty that the claim is really for less than the jurisdictional

amount.” /d. at 289, 58 S.Ct. at 590. Many courts have

applied the “legal certainty” language to jurisdictional amount

questions in remand cases;° there is, however, disagreement

as to exactly what a plaintiff has to show to a legal certainty

to defeat federal jurisdiction

In St. Paul Mercury, the plaintiff originally alleged dam-

ages above the jurisdictional amount in state court but

amended the complaint in federal court to state less than the

required amount. The Court held that the subsequent amend-

ment could not strip the federal court of jurisdiction, provided

that the original claim for damages was made in good faith.

The “legai certainty” test was articulated in the Court’s more

general discussion of jurisdiction:

The intent of Congress drastically to restrict federal

jurisdiction in controversies between citizens of differ-

ent states has always been rigorously enforced by the

courts. The rule governing dismissal for want of juris-

diction in cases brought in the federal court is that,

unless the law gives a different rule, the sum claimed by

the plaintiff controls if the claim is apparently made in

good faith. It must appear to a legal certainty that the

claim is really for less than the jurisdictional amount to

justify dismissal. The inability of plaintiff to recover an

amount adequate to give the court jurisdiction does not

show his bad faith or oust the jurisdiction. Nor does the

fact that the complaint discloses the existence of a valid

defense to the claim. But if, from the face of the plead-

; E.g., Hale v. Billups of Gonzales, Inc., 610 F.Supp. 162, 164

(M.D.La.1985); Locklear v. State Farm Mut. Auto. Ins. Co., 742 F.Supp.

679 (S.D.Ga.1989).

ings, it is apparent, to a legal certainty, that the plaintiff

cannot recover the amount claimed, or if, from the

proofs, the court is satisfied to a like certainty that the

plaintiff never was entitled to recover that amount, and

that his claim was therefore colorable for the purpose of

conferring jurisdiction, the suit will be dismissed. Events

occurring subsequent to the institution of the suit which

reduce the amount recoverable below the statutory limit

do not oust jurisdiction.

Id. 303 U.S. at 288-90, 58 S.Ct. at 289-90 (footnotes omitted).

The above discussion and, hence, the legal certainty test,

contemplate the “typical” diversity situation.® As one court

has indicated, the legal certainty test “is explicitly premised

on the assumption that the amount in controversy is met by

the express allegations of the plaintiff’s complaint and is lim-

ited in utility to cases in which the plaintiff himself has

placed the requisite jurisdictional amount in controversy by

requesting damages in excess of the jurisdictional amount.”

Garza v. Bettcher Indus., Inc., 752 F.Supp. 753, 755

(E.D.Mich.1990).

This court has indicated that the legal certainty test does

not apply in a remand situation where the plaintiff has alleged

an indeterminate amount of damages. In de Aguilar I, we

stated that “[wJhen the plaintiff’s complaint does not allege

a specific amount of damages, the removing defendant must

prove by a preponderance of the evidence that the amount in

controversy exceeds $50,000.” 11 F.3d at 58 (citing Gaus v.

Miles, Inc., 980 F.2d 564, 567 (9th Cir.1992); Garza, 752

F.Supp. at 763). See also Burns v. Windsor Ins. Co., 31 F.3d

1092, 1094 (11th Cir.1994) (noting that in the “typical”

removal case “defendant can remove to federal court if he can

show, by a preponderance of the evidence, facts supporting

jurisdiction”).

The question in this case is different from that in both the

typical diversity situation and the typical removal situation.

In a typical diversity situation, the plaintiff files a suit in federal

court alleging damages in excess of the jurisdictional amount.

10a

Here, the plaintiffs, in a bold effort to avoid federal court,

have specifically alleged that their respective damages will

not exceed the jurisdictional amount.

Plaintiffs have correctly cited the provision in St. Paul

Mercury that a plaintiff who does not “desire to try his case in

federal court. . . may resort to the expedient of suing for

less than the jurisdictional amount, and though he would be

justly entitled to more, the defendant cannot remove.” 303

U.S. at 294, 58 S.Ct. at 593. The inquiry, however, does not

end merely because the plaintiff alleges damages below the

threshold. The face of the plaintiff’s pleading will not control

if made in bad faith.

Moreover, the above statement from St. Paul Mercury

plainly was premised on the notion that the plaintiff would

not be able to recover more in state court than what was

alleged in the state court complaint. So, for example, in

Woods v. Massachusetts Protective Ass’n, 34 F.2d 501

(E.D.Ky.1929), cited in St. Paul Mercury in support of the

above-quoted passage, the plaintiff sued for an amount under

the jurisdictional limit. Under the state provision in that case,

“if there had been no removal and an answer had been filed,

plaintiff would not have been entitled to judgment for more

than [the amount for which plaintiff sued].” Jd. at 504.’

See also lowa Cen. Ry. v. Bacon, 236 U.S. 305, 309, 35 S.Ct.

357, 358, 59 L.Ed. 591 (1915) (state pleading for less than jurisdictional

amount approved where “(t]he state court had authority to determine the

effect of the prayer to the petition and it decided that, under the petition,

no more than the amount prayed for could be recovered in the action”);

Harley v. Firemen’s Fund Ins. Co., 245 F. 471, 476 (W.D. Wash. 1913)

(noting that “the initial pleading, and the only pleading filed in the state

court. . . fixes the amount in controversy in this case at [an amount

below the jurisdictional amount] and no greater sum can be recovered”);

Maine v. Gilman, 11 F. 214, 215 (C.C.D.Me,1882) (“In the mode of

pleading adopted in Maine the ad damnum binds the plaintiff as a max-

imum, and a judgment for more is erroneous, or, at least, if not techni-

cally erroneous would be irregular and improper.”); 1A JAMES W.

MOORE ET AL., MOORE’S FEDERAL PRACTICE 9 0.157[6], at 133-34 (2d

ed. 1993) (stating that plaintiff “may prevent removal by the expedient

of suing for less than the jurisdictional amount unless his attempted

waiver of the balance is legally ineffective”).

PEATE 2 ae RT ey a

lla

The majority of states now, however, have followed the

example of FED.R.Civ.P. 54(c) and do not limit damage

awards to the amount specified in the ad damnum clause of

the state pleading. See Burns, 31 F.3d at 1097 n. 11. In fact,

many states, like Texas, have enacted rules that strictly pro-

hibit plaintiffs from pleading for specific amounts in cases of

unliquidated damages.

These new rules have created the potential for abusive

manipulation by plaintiffs, who may plead for damages below

the jurisdictional amount in state court with the knowledge

that the claim is actually worth more, but also with the knowl-

edge that they may be able to evade federal jurisdiction by

virtue of the pleading. Such manipulation is surely charac-

terized as bad faith. See Boelens v. Redman Homes, Inc., 759

F.2d 504, 507 (Sth Cir.1985) (stating that “tactical manipu-

lation [by the] plaintiff cannot. . . be condoned”) (quoting

Austwick v. Board of Educ., 555 F.Supp. 840, 842

(N.D.II1.1983)). Likewise, as one treatise has indicated,

if the prayer for relief must be ignored under applicable

principles of law and plaintiff can, therefore, recover

more on his state claim than the jurisdictional minimum,

the case is removable; and, where plaintiff’s cause of

action and the relief actually sought clearly involve a

controversy in excess of the required amount, removal is

not defeated by a monetary prayer for less than the

amount.

1A Moorg, supra, 9 0.158, at 204-05 (footnotes omitted).®

8 The Seventh circuit has stated:

St. Paul held that a plaintiff may not obtain a remand by amend-

ing the complaint to seek less than the jurisdictional amount.

This principle has led some courts to hold that removal is

proper, although the complaint asks for less than the jurisdic-

tional amount, when state law permits a court to award more and

the court is likely to do so if it decides in the plaintiff’s favor.

In re Shell Oil Co., 966 F.2d 1130, 1131 (7th Cir. 1992) (citing Cole v.

Freightliner Corp., 1991 WL 42163, 1991 U.S.Dist. LEXIS 3408

(N.D.IL.); Garza; Johnson v. Core-Vent Corp., 1990 WL 51253, 1990

U.S.Dist. LEXIS 4225 (N.D.IIl.); Locklear v. State Farm Mut. Auto. Ins.

12a

Accordingly, we hold that if a defendant can show that the

amount in controversy actually exceeds the jurisdictional

amount, the plaintiff must be able to show that, as a matter of

law, it is certain that he will not be able to recover more than

the damages for which he has prayed in the state court com-

plaint. Such a rule is necessary to avoid the sort of manipu-

lation that has occurred in the instant case.

The exact extent of the burden on the defendant in this sit-

uation was addressed by a panel majority of this court in

Kliebert v. Upjohn Co., 915 F.2d 142, 147 (Sth Cir.1990),

vacated for reh’g en banc, 923 F.2d 47 (Sth Cir.), appeal

dism’d per stipulation of settlement, 947 F.2d 736 (Sth

Cir.1991). Having been vacated, Kliebert is no longer prece-

dent in this court, but its analysis is useful.

In Kliebert, the plaintiffs alleged a specific dollar amount

of damages that was less than the federal jurisdictional

amount. The panel majority held that to remove, the defen-

dants would have to show that it was legally certain that

plaintiffs would recover more than the jurisdictional amount.

Id. at 146. Thus, the defendants would have to show that “if

a jury awarded less than [the jurisdictional amount] the court

would be required to grant a new trial.” Jd.

The onerous nature of this burden stands in direct contrast

to the analysis of several district courts that have stated the

removal inquiry as a type of “converse legal certainty test.”

Under this formulation, defendant “has the burden of proving

that it does not appear to a legal certainty that the claim is

actually for less than the requisite amount.” Hale, 610 F.Supp.

at 164. Courts elsewhere have restated the test and required

Co., 742 F. Supp. 679 (S.D.Ga.1989); Mutual First, Inc. v. O'Charleys,

Inc., 721 F.Supp. 281 (S.D.Ala.1989); Corwin Jeep Sales & Serv., Inc. v.

American Motors Sales Corp., 670 F.Supp. 591 (M.D.Pa. 1986); Steele v.

Underwriters Adjusting Co., 649 F.Supp. 1414 (M.D.Ala.1986); Hale v.

Billups of Gonzales, Inc., 610 F.Supp. 162 (M.D.La.1985)). Burt see

Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 (11th Cir.1994) (stating

that permitting removal where the plaintiff is not bound by his state

pleading but pleads an amount of damages below the jurisdictional

amount “would allow state rules of procedure to determine when federal

jurisdiction existed” and “could lead to inconsistent application of fed-

eral jurisdictional rules”) (footnote omitted).

13a

that the defendant show “‘that there is a probability that the

value of the matter in controversy’ exceeds the jurisdictional

amount.” Corwin Jeep Sales, 670 F.Supp. at 595 (quoting

Cunningham v. Ford Motor Co., 413 F.Supp. 1101, 1103

(D.S.C.1976)).

In the present case, the district court held that the removing

defendant had to establish that there is “some possibility” that

the plaintiff could recover over $50,000. This formulation is

supported by language from Foret v. Southern Farm Bureau

Life Ins. Co., 918 F.2d 534, 537 (Sth Cir.1990), in which we

held that it was not error for the district court to exercise

jurisdiction over a case where “the plaintiffs could have

recovered more than $50,000.”

Both sides argue that the preponderance of the evidence

standard announced in de Aguilar I should apply in this case.

We agree. As the dissenting judge indicated in Kliebert, the

strict test adopted by the Kliebert majority “seems to conflict

with our past decisions that have stated that the standard for

determining jurisdictional amount should favor ‘those parties

seeking to invoke the jurisdiction of a federal district court.’ ”

Kliebert, 915 F.2d at 148 (Jolly, J., dissenting) (quoting Ope-

lika Nursing Home v. Richardson, 448 F.2d 658, 663 (Sth Cir.

1971)).

The Kliebert standard also fails adequately to protect defen-

dants from plaintiffs who seek to manipulate their state plead-

ings to avoid federal court while retaining the possibility of

recovering greater damages in state court following remand.

This court has spoken adamantly of “preventing the plaintiff

from being able to destroy the jurisdictional choice that

Congress intended to afford a defendant in the removal

statute.” Boelens, 759 F.2d at 507.

We regard, however, the “some possibility” standard

applied by the district court and the “converse legal certainty”

test, which essentially require that the defendant merely show

that plaintiff could recover more than the jurisdictional

amount, as too permissive. See Burns, 31 F.3d at 1092 (“The

possibility that plaintiff may in the future seek or recover

more damages is insufficient to support federal jurisdiction

14a

now.”) (emphasis added). Plaintiff is, to some extent, still the

master of his own claim. See, e.g., Caterpillar, Inc. v.

Williams, 482 U.S. 386, 392 & n. 7, 107 S.Ct. 2425, 2429 &

n. 7, 96 L.Ed.2d 318 (1987); 14A CHARLES A. WRIGHT,

ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL

PRACTICE AND PROCEDURE § 3702, at 22 (2d Ed.1985).

Consequently, the plaintiff’s claim remains presumptively

correct unless the defendant can show by a preponderance of »

the evidence that the amount in controversy is greater than the

jurisdictional amount. The preponderance burden forces the

defendant to do more than point to a state law that might

allow the plaintiff to recover more than what is pled.’ The

defendant must produce evidence that establishes that the

actual amount in controversy exceeds $50,000.

Our court has already said, in the instant case, that it is

facially apparent that the damages rise to a level above

$50,000. De Aguilar I, 11 F.3d at 57. As a result, despite the

fact that the district court imposed the wrong burden, there is

no question that the preponderance burden, had the district

court applied it, easily would be met by these defendants. In

fact, in accordance with the law of the case principle, this

court is bound by what we held in de Aguilar I.

So, once a defendant is able to show that the amount in

controversy exceeds the jurisdictional amount, removal is

proper, provided plaintiff has not shown that it is legally cer-

tain that his recovery will not exceed the amount stated in the

state complaint. Thus, once the defendant has pointed to an

adequate jurisdictional amount, the situation becomes anal-

ogous to the “typical” circumstances in which the St. Paul

Mercury “legal certainty” test is applicable: The defendant

has established, by a preponderance, that federal jurisdiction

is warranted. At this point, “[i]t must appear to a legal cer-

tainty that the claim is really for less than the jurisdictional

amount to justify dismissal.” St. Paul Mercury, 303 U.S. at

289, 58 S.Ct. at 590.

Such a holding would render the jurisdictional amount all but

meaningless in states with rules analogous to FED.R.CIV.P. 54(c). See

14A WRIGHT, supra, § 3725, at 426.

RE mehuie, | ke

15a

We emphasize that this is not a burden-shifting exercise. In

light of St. Paul Mercury, plaintiff must make all information

known at the time he files the complaint.

Plaintiff’s “legal certainty” obligation might be met in var-

ious ways; we can only speculate, without intimating how we

might rule in such case. Plaintiff’s state complaint might cite,

for example, to a state law that prohibits recovery of damages

that exceed those requested in the ad damnum clause and that

prohibits the initial ad damnum to be increased by amend-

ment. Absent such a statute, “[l]itigants who want to prevent

removal must file a binding stipulation or affidavit with their

complaints; once a defendant has removed the case, St. Paul

makes later filings irrelevant.” In re Shell Oil Co., 970 F.2d

355, 356 (7th Cir.1992) (per curiam).'°

The state complaint in this case was filed in Texas, which

has the following procedural provision: “An original pleading

. . Shall contain. . . (b) in all claims for unliquidated dam-

ages only the statement that the damages sought are within

the jurisdictional limits of the court.” TEX.R.CIv.P. 47(b).

Plaintiffs acknowledged during oral argument that their filing

violated rule 47(b). Accordingly, there is no state provision

- The Eleventh Circuit has expressed reluctance to allow state

rules of procedure to determine when federal jurisdiction exists. See

Burns, 31 F.3d at 1097. We note, however, the cases that we have cited,

especially those mentioned by the St. Paul Mercury Court, which

expressly reference state procedural rules in the context of removal.

Moreover, while the Eleventh Circuit fears the “inconsistent applica-

tion of federal jurisdictional rules,” we observe that the same “rule” will

now hold throughout the circuit. The general principle is that plaintiffs

will have to show that that they are bound irrevocably by their state

pleadings in these situations. Certainly, plaintiffs who plead for specific

damages and who are in states that have procedural rules binding them

to their pleadings will satisfy their burden more easily. Others will have

the same opportunity to avoid federal court but will have to choose

another method to show their commitment to recovery below the federal

threshold.

l6a

that limits the amount of damages plaintiffs are seeking, or

can recover, to the amount they have asked for in the com-

plaint, i.e., an amount not to exceed $50,000. In summary,

therefore, a plaintiff, in a case for unliquidated damages, can-

not, absent a further showing, avoid removal by pleading for

damages under the jurisdictional amount where a state rule

prevents such pleading and where defendants are able to show

that it is facially apparent that the amount in controversy

exceeds $50,000.

In the case sub judice, plaintiffs also attached to the orig-

inal state court petition an attorney affidavit that purported to

limit the amount of damages recoverable. The federal district

court reasoned, however, that the plaintiffs could not effec-

tively limit the amount of damages they could obtain unless

they had the authority to bind the estates by limiting damages.

In order to do so, they had to be the legal representatives or

legal heirs of the estates.

On this issue, plaintiffs’ initial argument is that Mexican

law rather than Texas law should apply. Specifically, they

assert that under Mexican law, they are the lawful heirs of the

decedents and have lawful authority to limit the damages

sought by the estates.

In a diversity action, a federal court must apply the choice-

of-law rules of the state in which it sits. Klaxon v. Stentor

Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85

L.Ed. 1477 (1941). According to Texas law, “in all choice-of-

law cases, except those contract cases in which the parties

have agreed to a valid choice-of-law clause, the law of the

state with the most significant relationship to the particular

substantive issue will be applied to resolve that issue.” Dun-

can v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.1984).

Texas follows RESTATEMENT (SECOND) OF CONFLICT OF

LAWS § 6, which provides:

(1) A-court, subject to constitutional restrictions, will

follow a statutory directive of its own state on

choice of law.

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17a

(2) When there is no such directive, the factors relevant

to the choice of the applicable rule of law include

(a) the needs of the interstate and international

systems,

(b) the relevant policies of the forum,

and the relative interests of those states in the

determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular

field of law,

(f) certainty, predictability and uniformity of

result, and

(g) ease in the determination and application of

the law to be applied.

Furthermore, section 145 lists the factual matters that a Texas

court will consider when applying section 6:

(1) The rights and liabilities of the parties with respect

to an issue in tort are determined by the local law of

the state which, with respect to that issue, has the

most significant relationship to the occurrence and

the parties under the principles stated in § 6.

Contacts to be taken into account in applying the

principles of § 6 to determine the law applicable to

an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury

occurred,

incorporation and place of business of the par-

ties, and

18a

(d) the place where the relationship, if any,

between the parties is centered.

These contacts are to be evaluated according to their rel-

ative importance with respect to the particular issue.

RESTATEMENT (SECOND) OF CONFLICT OF LAws § 145

(1971); Crisman v. Cooper Indus., 748 S.W.2d 273, 276-77

(Tex.App.—Dallas 1988, writ denied).

Furthermore, the application of the significant relationship

test does not “turn on the number of contacts, but more

importantly on the qualitative nature of those contacts as

affected by the policy factors enumerated in Section 6.”

Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex.1979).

Defendants apparently relied upon only Texas cases when

arguing before the district court that Texas law should apply,

as plaintiffs did not argue that Mexican law should apply on

this issue until they filed their motion to remand two months

after removal. The district court, however, did address and

reject the choice-of-law argument in its memorandum opin-

ion, and we follow suit.

We will first identify all relevant contacts as a Texas court

would. Duncan, 665 S.W.2d at 421. All defendants conduct

business in Texas, the forum is Texas, and the underlying

cause of action is based upon Texas law. All of the plaintiffs

are from Mexico, all decedents were from Mexico, and the

crash itself and the injuries took place in Mexico. There is no

particular relationship between the plaintiffs and the defen-

dants.

The matter at issue is whether Texas or Mexican law will be

used to determine the extent of plaintiffs’ authority to limit

damage recoveries for the estates. As noted, plaintiffs plainly

are seeking damages under the Texas Survival Statute.

This “particular substantive issue” has nothing to do with

the actual alleged tort itself. Duncan, 665 S.W.2d at 421 (the

law of the place with the “most significant relationship to the

particular substantive issue will be applied to resolve that

issue”). In other words, the choice-of-law question in this

case is unrelated to the conduct and injury underlying the

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19a

cause of action in the same way that, for example, the choice

of the substantive products liability law of one of the places

would be." See, e.g., Perry v. Aggregate Plant Prods. Co.,

786 S.W.2d 21 (Tex.App.—San Antonio 1990, writ denied)

(products liability law of Indiana applies to conduct and

injury occurring in Indiana); Crisman (products liability law

of Florida applies to conduct and injury occurring in Florida).

The fact that the accident took place in Mexico, or that

there was an accident at all, is fortuitous and simply not rel-

evant to our particular choice-of-law decision. Rather, the

important fact is that the plaintiffs chose to file a suit in Texas

under Texas law. Whether the plaintiffs could effectively limit

the damage recovery to the estates of the decedents relates

more directly to the “procedural” aspects of the suit and not

to the substantive portions of the cause of action.'”

Mexico has no underlying interest in the application of its

law to determine who can bring a cause of action or bind the

estate in a Texas cause of action. Texas certainly has an inter-

est in requiring those who seek to take advantage of Texas

“ Obviously, in a tort case, the locus of the conduct has a greater

interest in seeing that its standard of care is applied, because it affects the

way that parties tailor their conduct in that state. See RESTATEMENT

(SECOND) OF CONFLICT OF LAws § 145, cmt.d, at 417-18:

Experience and analysis have shown that certain issues that

recur in tort cases are most significantly related to states with

which they have particular connections or contacts. So, for

example, a state has an obvious interest in regulating the con-

duct of persons within its territory and in providing redress for

injuries that occurred there. Thus, subject only to rare excep-

tions, the local law of the state where the conduct and injury

occurred will be applied to determine whether the actor satisfied

minimum standards of acceptable conduct and whether the inter-

est affected by the actor’s conduct was entitled to legal pro-

tection (see §§ 146- 147).

The particular issue in our case is more akin to the situation where “a

court under traditional and prevailing practice applies its own state’s

rules to issue involving process, pleadings, joinder of parties, and the

administration of the trial. . . .” Jd. at 417.

Strictly speaking, this is not a procedural issue; otherwise, the

federal procedural rules would apply.

20a

law to meet certain requirements. In addition, uniformity and

predictability in Texas courts would be promoted when decid-

ing who has the authority to pursue actions on behalf of

estates. This is a false conflict, and Texas law applies. See

Duncan, 665 S.W.2d at 422. In this situation, we have no

doubt that a Texas court would choose to apply Texas law.

Plaintiffs originally claimed to be the personal represen-

tatives and legal heirs of the decedents’ estates. Boeing’s

attempt to amend the Reich affidavit, and the conversations

which followed, however, have called this claim into sub-

stantial doubt. In fact, plaintiffs appear essentially to have

abandoned their claim as personal representatives and instead

purport to be plaintiffs’ legal heirs.

The plaintiffs can pursue their claims as the individual heirs

of the estates under TEX.CIV.PRAC. & REM.CODE ANN.

§ 71.021 (Vernon’s 1986). Legal heirs can sue on behalf of an

estate if they allege that “there is no administration [of the

estate] pending and no necessity for same and that they are

the only heirs (or devisees) of the deceased.” Lozano v. Smith

718 F.2d 756, 773 n. 38 (Sth Cir. 1983); see also Frazier v.

Wynn, 472 S.W.2d 750, 752 (Tex.1971); Johnson v. Holly

Farms, Inc., 731 S.W.2d 641, 647 (Tex. App.—Amarillo

1987, no writ).

Plaintiffs have not alleged any of these elements. They now

argue that the district court erred in not requiring the defen-

dants to offer evidence that the above elements could not be

satisfied. Plainly, though, the rule is that the plaintiffs must

affirmatively allege the above elements. See Johnson, 73i

S.W.2d at 647.

In any event, defendants did offer evidence that the plain-

tiffs in this case are not the sole heirs. Forty-two persons

alleged in de Aguilar | to be heirs of the decedents, as well as

twenty minors, were dropped as plaintiffs. It appears that

known heirs were deleted from this case because plaintiffs

knew that they would not be able to limit the damage claim

with these heirs as part of the action.” The one hundred

“Doe” plaintiffs from the first action were also eliminated.

a For example, a court must approve the limiting of a claim when

minors are involved.

2la

The inclusion of “Doe” plaintiffs in de Aguilar I suggests that

the plaintiffs’ attorneys were not aware of who all of the heirs

were, and the plaintiffs have contended nothing that appears

to change this circumstance.

In fact, plaintiffs’ attorney acknowledged at oral argument

that he does not represent all of the legal heirs. Defendants

also argue that in a previous complaint, all of the present

plaintiffs and all of the plaintiffs from de Aguilar I were

included, and the plaintiffs still said that this was only a par-

tial listing and that additional survivors would be named.

Plaintiffs plainly have failed to meet the requirements of

Texas law to limit the damages recoverable to the estates in

this case. As a result, plaintiffs have failed to defeat removal

jurisdiction.'*

The judgment of the district court dismissing the complaint

is AFFIRMED.

” As this issue is dispositive, we find it unnecessary to address the

issue of Boeing’s third party complaint.

22a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

1:92-CV-537

August 11, 1993

ALMA TORREBLANCA DE AGUILAR, et al.,

Plaintiffs,

= 5.

‘

{

THE BOEING COMPANY, et al.,

Defendants.

ORDER GRANTING DEFENDANT’S MOTION TO

DISMISS BASED ON FORUM NON CONVENIENS

CAME ON TO BE CONSIDERED Defendant The Boeing Com-

pany’s motion for summary judgment and motion to dismiss

on the basis of forum non conveniens, which are joined in by

all other defendants and the third-party defendant. After

reviewing the motions, the lack of response in opposition, and

the pleadings of record, the court is of the opinion that the

Defendants’ motion to dismiss should be GRANTED and,

therefore, the court does not reach Defendants’ motion for

summary judgment.

On June 8, 1993 this court denied Plaintiffs’ motion to

remand this case to Texas state court. On July 8, 1993 Boeing

soc st PL eI NF A Ah cong oo TBE TE PRR ED Pep

23a

filed a motion for summary judgment based on limitations and

in the alternative a motion to dismiss Plaintiffs’ claims based

on forum non conveniens. Shortly thereafter, all other defen-

dants, Delta Air Lines, Inc., the Goodyear Tire and Rubber

Company, the B.F. Goodrich Company, Parker Hannifin Cor-

poration, as well as the third-party defendant, Compania Mex-

icana de Aviacion, S.A., d/b/a Mexicana Airlines, joined in

Boeing’s motions.

This case has been dismissed by four other federal courts

on the basis of forum non conveniens. In fact, these same

plaintiffs were dismissed on that basis by Judge Howell Cobb

of the Eastern District of Texas. Torreblanca de Aguilar v.

Boeing Co., 806 F. Supp. 139 (E.D. Tex. 1992). Judge Cobb

found that direct estoppel precluded Plaintiffs from reliti-

gating the forum non conveniens issue. In the alternative,

Judge Cobb ruled the case would be dismissed on an inde-

pendent determination under the doctrine of forum non con-

veniens. The court agrees with Judge Cobb’s sound reasoning

in the previous case. The court adopts that reasoning and

results for this case. Because the court finds this is not a

proper and convenient forum to try this case, it declines to

rule on Defendants’ motion for summary judgment.

IT 1S, therefore, ORDERED that Defendants’ Motion to Dis-

miss on the grounds of forum non conveniens is GRANTED,

and this action is DISMISSED at Plaintiffs’ cost.

SIGNED this the 11th of August, 1993.

RICHARD A. SCHELL

Richard A. Schell

United Staies District Judge

24a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

1:92-CV-537

June 8, 1993

ALMA TORREBLANCA DE AGUILAR, et al.,

Plaintiffs,

THE BOEING COMPANY, et al.,.

Defendants.

MEMORANDUM OPINION AND ORDERS DENYING

MOTIONS TO REMAND AND MOTION TO STRIKE

THIRD PARTY COMPLAINT OR ALTERNATIVELY

SEVER THIRD PARTY ACTION

The Plaintiffs have filed a motion to remand, a supple-

mental motion to remand, and a motion to strike third party

complaint or alternatively sever third party action. After

reviewing the motions, the responses in opposition, the mem-

oranda in support of the motions and responses, the pleadings

of record and attached affidavits, the court is of the opinion

that the motions should be DENIED.

25a

BACKGROUND

On March 31, 1986 a Mexicana Airlines passenger jet

crashed shortly after takeoff from a Mexico City airport. The

crew and all passengers aboard the plane were killed. An

investigation conducted by the Mexican government con-

cluded that a tire explosion in the aircraft’s wheel well

resulted in an in-flight fire that disabled critical aircraft sys-

tems and caused the airplane to explode in flight.

Following the crash, relatives of Mexican citizens who per-

ished in the crash filed several different lawsuits in several

different state and federal courts in the United States, as well

as Mexico. In each lawsuit filed in the United States, the

action was either voluntarily dismissed by the plaintiffs, dis-

missed on the basis of foreign sovereign immunity, or dis-

missed on the basis of forum non conveniens. In fact, a

similar lawsuit involving these same defendants and many of

the same plaintiffs, was dismissed last year on the basis of

direct estoppel and forum non conveniens by the Honorable

Howell Cobb, also of the Eastern District of Texas. Torre-

blanca De Aguilar v. Boeing Co., 806 F. Supp. 139 (E.D. Tex.

1992).

On November 5, 1992 relatives of some of the Mexican cit-

izens who perished in the crash (hereinafter “Plaintiffs”) filed

this lawsuit in the 60th District Court of Jefferson County,

Texas. The original petition in state court alleges negligence

and product liability claims on behalf of Plaintiffs as personal

representatives of the estates or as the legal heirs of the dece-

dents pursuant to the Texas Survival Statute, TEx. Civ. PRAC.

& REM. CODE ANN. § 71.021 (Vernon 1992). The petition

charges acts of negligence and claims of product liability

against The Boeing Company, The B.F. Goodrich Company,

The Goodyear Tire and Rubber Company, Delta Air Lines,

Inc., and Parker Hannifin Corporation (hereinafter “Defen-

dants”). The petition, in an apparent attempt to defeat diver-

sity jurisdiction, also alleges that Plaintiffs do not seek to

recover more that $50,000 per decedent.

26a

Defendants removed the lawsuit to this court. Defendants

allege that after conducting an investigation of Plaintiffs’ pur-

ported damages limitation, they have determined that not all

indispensable parties are included as plaintiffs. Thus, Defen-

dants allege the purported limitation is ineffective and cannot

defeat diversity jurisdiction.

Plaintiffs then filed their motion to remand. Plaintiffs claim

that the damages limitation set forth in their petition limits,

to a legal certainty, the amount in controversy to less than

$50,000. Plaintiffs also claim that whether they are the legal

representatives of the estates of the decedents or the legal

heirs entitled to bring these causes of action and limit the

amount of damages sought, the case can and should be liti-

gated in state court.

Boeing subsequently filed a third-party complaint against

Mexicana Airlines. The third-party complaint alleges that any

injuries or damages suffered by Plaintiffs were caused by the

acts or omissions of Mexicana. Boeing claims that Mexicana

is required to indemnify Boeing from and against any judg-

ment arising out of Plaintiffs’ claims against Boeing. Because

Mexicana was owned by the government of Mexico, Boeing

argues that this third-party complaint, independent of any

diversity of citizenship argument, gives the court jurisdiction

over this lawsuit pursuant to the Foreign Sovereign Immu-

nities Act of 1976 (hereinafter “FSIA”), 28 U.S.C. §§ 1330,

1332, 1391(f), 1441(d), and 1602-1611. Mexicana has

answered the third party complaint, denying any liability and

opposing Plaintiffs’ motion to remand on the same basis of

jurisdiction under the FSIA asserted by Boeing. Plaintiffs

were then granted leave to file a supplemental motion to

remand. In the supplemental motion to remand, Plaintiffs

included an affidavit signed by their Mexican attorney

wherein she states, without further proof, that each plaintiff

is “an heir at law and/or personal representative of the respec-

tive decedents” and that she has been given explicit authority

to limit their damages to $50,000. Plaintiffs have also moved

to strike Boeing’s third-party complaint alleging that the only

reason Boeing has filed a claim against Mexicana is to pre-

27a

vent the lawsuit from being remanded. Plaintiffs have moved

in the alternative for a severance of the third-party claim.

ANALYSIS

I. Establishing Federal Jurisdiction

The burden of establishing that federal jurisdiction exists

rests upon the party seeking to invoke it. Gaitor v. Peninsu-

lar & Occidental Steamship Company, 287 F.2d 252 (Sth Cir.

1961) citing Carson v. Dunham, 121 U.S. 421, 7 S.Ct. 1030,

30 L.Ed. 992 (1887). To invoke the diversity jurisdiction of

this court, it must be shown that the matter in controversy

exceeds $50,000 and is between citizens of a state and citi-

zens or subjects of a foreign state. 28 U.S.C. § 1332(a)(2).

There is no dispute that complete diversity exists here. How-

ever, there has been much dispute over the amount in con-

troversy. As the removing parties, Defendants bear the burden

of showing that federal jurisdiction exists and must establish

that the amount in controversy exceeds $50,000. Jd. at 253.

II. Legal Certainty Test

The “legal certainty” test governs questions of jurisdic-

tional amount. St. Paul Mercury Indem. Co. v. Red Cab Co.,

303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845, 848 (1938). Exactly

what a removing party must establish to a “legal certainty” to

discharge its burden is unclear in the Fifth Circuit. A test was

announced in Kliebert v. Upjohn Co., 915 F.2d 142, 146-47

(Sth Cir. 1990), opinion vacated on grant of reh’g en banc,

923 F.2d 47 (Sth Cir.), dism’d per settlement, 947 F.2d 736

(Sth Cir. 1991). If it had not been vacated, the panel decision

in Kliebert would have required Defendants to establish to a

legal certainty that a successful plaintiff would “recover at

least the minimum jurisdictional amount.” Jd. However, a

more relaxed standard, one used by Judge Cobb in denying a

motion to remand in an earlier lawsuit concerning this same

crash, only requires Defendants to prove that there is not a

legal certainty that the claim is actually below the jurisdic-

28a

tional amount. See De Aguilar v. Boeing Co., 790 F. Supp.

693, 694 (E.D. Tex. 1992)(hereinafter “De Aguilar I’). In

other words, the removing defendant must establish that there

is some possibility that the plaintiff could recover over

$50,000. Apparently, this is the rule in the Fifth Circuit. Foret

v. Southern Farm Bureau Life Insurance Co., 918 F.2d 534,

537 (Sth Cir. 1990).

III. Amount in Controversy

Defendants argue that there is certainly a possibility that

Plaintiffs could recover over $50,000 for a wrongful death

cause of action. Defendants contend that Plaintiffs’ damages

limitation is ineffective and therefore the court should look to

the recovery of typical wrongful death actions in order to

determine the amount in controversy. Defendants point to

Judge Cobb’s ruling, in the earlier-mentioned denial of a

motion to remand in De Agu//ar I, in support of their con-

tention that the amount in controversy is indeed to a legal cer-

tainty not less than $50,000. Judge Cobb, by looking to

damage awards in similar cases, determined that these same

plaintiffs were likely to recover more than $50,000 each if

they recovered at all. De Aguilar 1, 790 F. Supp. at 695.

Plaintiffs argue that they are the masters of their own plead-

ings and can determine the amount of damages they seek to

recover. They argue that the attorney/client relationship con-

trols whether Plaintiffs are bound by their petition and their

attorneys’ affidavits which state that Plaintiffs seek to recover

less than $50,000. Plaintiffs also argue that Defendants have

waived their ability to challenge Plaintiffs’ authority to bring

suit as personal representatives of the decedents’ estates

because they have not contested Plaintiffs’ authority by a ver-

ified denial or plea in abatement as required by the Texas

Rules of Civil Procedure. Finally, Plaintiffs contend that

under Mexican law they are entitled as lawful heirs of the

decedents to pursue these claims directly and have the author-

ity to limit the damages sought by the decedent’s estates to

$50,000.

29a

The court initially observes that generally speaking plain-

tiffs are the masters of their own pleadings and may deter-

mine how much money they seek to recover in a lawsuit.

Recognizing this general rule, the Supreme Court has stated

that plaintiffs may prevent removal by “resort to the expedi-

ent of suing for less than the jurisdictional amount.” St. Paul

Mercury Indemnity Co., 303 U.S. at 294, 58 S.Ct. at 584, 82

L.Ed. at 851. However, this court recognizes that in order for

Plaintiffs to effectively limit their damages they must have

the right or authority to bring suit on behalf of the decedents’

estates. Thus, the controlling issue is whether Plaintiffs are

the legal representatives or the legal heirs entitled to bring

suit on behalf of each decedent’s estate and to bind the estate

by limiting damages.

A. Defendants have not Waived their Ability to

Challenge Plaintiffs’ Authority to Bring Suit as

Personal Representatives

Plaintiffs apparently contend that they bring this lawsuit as

both personal representatives and as legal heirs. In a memo-

randum in support of the motion to remand Plaintiffs allege,

“{I}n this case, the survival actions were brought by the heirs

of decedents.” (Plaintiffs’ Memorandum In Support Of

Motion To Remand, p. 11). However, in the same paragraph,

Plaintiffs also argue that Defendants have waived their abil-

ity to challenge Plaintiffs’ authority to bring suit as personal

representatives of the decedent’s estates. Plaintiffs apparently

argue that under the Texas Rules of Civil Procedure one who

purports to be suing as a personal representative need not

prove his authority unless challenged by a plea in abatement

or verified denial. It is Plaintiffs’ position that because Defen-

dants have not filed a plea in abatement or verified denial in

this case they have waived their ability to attack the validity

of Plaintiffs’ authority as personal representatives.

Under the Texas Rules of Civil Procedure, a pleading set-

ting up the matter that the plaintiff does not have the legal

capacity to sue must be verified. TEx. R. Civ. P. 93(1); See

Theobold v. Pate, 542 S.W.2d 460, 464-65 (Tex. Civ. App.—

30a

Tyler, 1976, writ dism’d w.o.j.). In Johnson v. Holly Farms of

Texas, Inc., 731 S.W.2d 641, 647 (Tex. App.—Amarillo 1987,

no writ), the Amarillo Court of Appeals ruled that plaintiffs

suing under the Texas Survival Statute are not required to

prove their authority to sue as personal representatives unless

challenged by a plea in abatement or verified denial. The Fed-

eral Rules of Civil Procedure do not require the verification

of the denial of a plaintiff’s capacity to sue. The Federal

Rules have eliminated any need to verify any pleadings,

requiring only that the attorney sign his name to submitted

pleadings. FED. R. Civ. P. 11. The court must determine,

under the Erie doctrine, if the verified denial required under

Texas law to contest Plaintiffs’ authority to sue is a sub-

stantive right requiring compliance by Defendants or if the

Federal Rules control the pleading requirements in this case.

This court ruled on a similar Erie doctrine issue in Sneed

Shipbuilding, Inc. v. Spanier Marine Corp., 125 F.R.D. 438

(E.D. Tex. 1989). In Sneed Shipbuilding, the court restated

the rule handed down by the Supreme Court in Hanna v.

Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965),

“CI]f the rules do conflict, Hanna mandates that the federal

rule be applied, even if it changes the outcome, as long as the

federal rule is valid in light of due process and the Rules

Enabling Act.” The court then determined that Federal Rule

11 did not violate due process or the Rules Enabling Act and

was to be applied in pleadings situations where the conflict-

ing Texas procedural rules were Texas Rules of Civil Proce-

dure 93(10) and 185. /d. at 444.

The case now before the court is similar. The “right” in

question in this case seems to be the right on the plaintiff’s

part to have the defendant swear to his pleading that disputes

the plaintiff’s authority to sue as a personal representative.

Without repeating the analysis of Sneed Shipbuilding, the

court finds that Defendants are only required to comply with

federal pleading requirements and do not need to challenge

Plaintiffs’ authority to sue as personal representatives by a

verified denial or a plea in abatement.

3la

Plaintiffs have offered no proof, other than their Mexican

attorney’s affidavit, that they are the personal representatives

of the respective estates. The court therefore cannot conclude

that there is no possibility that the decedents’ estates could

recover more than $50,000.

B. Authority of Plaintiffs as Legal Heirs to Limit

Damages Sought on Behalf of the Estate

Plaintiffs contend that under Mexican Law they are entitled

as lawful heirs of the decedents to pursue these claims and

have the authority to limit the damages sought by the dece-

dent’s estates to $50,000. Defendants allege that under Texas

law all potential legal heirs to an estate are indispensable par-

ties to a survival cause of action involving that decedent’s

estate. Defendants argue that because not all legal heirs are

parties to this lawsuit, the damages limitation is ineffective

and cannot defeat diversity jurisdiction. To resolve this issue,

the court must determine whether Texas or Mexican law

should control the extent of a legal heir’s authority when

bringing a claim on the behalf of a decedent’s estate.

“In a diversity action in federal court, a district court is

required to follow the choice of law rules of the state in which

it sits.” Mitchell v. Lone Star Ammunition, Inc., 913 F.2d 242,

249 (Sth Cir. 1990) [citing Klaxon v. Stentor Electric Mfg.

Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed.

1477 (1941)]. Under Texas law, “in all choice of law cases,

except those contract cases in which the parties have agreed

to a valid choice of law clause, the law of the state with the

most significant relationship to the particular substantive

issue will be applied to resolve that issue.” Duncan v. Cessna

Aircraft Co., 665 S.W.2d 414, 421 (Tex. 1984). Thus, it is

necessary for the court to determine whether Texas or Mexico

has the most significant relationship to the ability and author-

ity of a legal heir to sue on behalf of an estate seeking to

recover under the the Texas Survival Statute.

In applying the most significant relationship test, the court

must identify the relevant state contacts. The following con-

tacts in the state of Texas are present in this case: all defen-

32a

dants conduct business and are amenable to process, the

forum providing the legal basis for the cause of action being

brought by Plaintiffs is Texas, and the Texas courts system is

being utilized to pursue these claims. The following contacts

in Mexico are present in this case: all plaintiffs are from Mex-

ico, all decedents were from Mexico, and the crash occurred

in Mexico.

“The application of the most significant relationship

approach to the resolution of choice of law questions does

‘not turn on the number of contacts, but more importantly on

the qualitative nature of those contacts as affected by the pol-

icy factors enumerated in Section 6 [of the Restatement].’ ”

Mitchell, 913 F.2d at 249 [citing Gutierrez v. Collins, 583

S.W.2d 312, 318 (Tex. 1979)].' Therefore, after identifying

the states with relevant contacts, the court must identify the

policies or governmental interests of each state in the con-

troversy in question. /d.

In its analysis, the court confines itself to the issue of

whether Texas or Mexican law should govern the authority of

a legal heir when that heir is attempting to prosecute a sur-

vival claim on behalf of a decedent’s estate. Given the fact

that this case is brought in the state of Texas by foreign plain-

tiffs seeking to take advantage of the Texas Wrongful Death

' Section 6 of the Restatement (Second) of Conflict of Laws pro-

vides,

(1) Accourt, subject to constitutional restrictions, will follow a

Statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the

choice of the applicable rule of law incviude

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

relative interests of those states in the determination of the

particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to

be applied.

33a

Statute, the court finds it hard to conceive of any overriding

interest in applying Mexican law. On the other hand there are

several significant reasons for applying Texas law.

Texas certainly has an interest in requiring that those seek-

ing to assert claims in its courts meet certain requirements

before asserting those claims. For instance, in situations such

as this, the courts would spend an inordinate amount of time

trying to determine a foreign country’s laws regarding who

has the authority to prosecute suits on behalf of an estate.

Such an undertaking would be difficult and time-consuming.

Requiring compliance with Texas law certainly promotes the

efficiency of Texas courts in these matters. Further, it pro-

motes the uniformity, predictability, and certainty of decisions

dictating who has the authority to bring these causes of action

and how they must bring them. Based upon these factors, the

court believes that Texas courts would choose to apply Texas

law.

In order to prosecute a survival cause of action on behalf of

an estate as a legal heir, a plaintiff must establish three things

under Texas law. The plaintiff must allege (1) that no admin-

istration of the estate is pending, (2) that no administration is

necessary, and (3) that the plaintiff is the sole owner of the

claim for damages which survived to the decedent’s heirs,

legal representatives and estate. See Lozano v. Smith, 718 F.2d

756, 773, n. 38 (Sth Cir. 1983). Plaintiffs have alleged none

of these elements.

The court notes that even if it were proper to apply Mexi-

can law, Plaintiffs have failed to provide any support for their

allegation that under Mexican law they would have the

authority to pursue these claims and limit the damages sought

to be recovered. While the court was unable to uncover much

relevant Mexican law, it did research the statutes cited by

Plaintiffs in a memorandum to the court. Plaintiffs cited the

“Civil Code of Federal District arts. 1281-1294, 1599-1791”

for the proposition that these heirs could make and prosecute

these claims directly on behalf of the estate. The only relevant

article in the Mexican Civil Code the court could find, in the

wide array of statutes cited by Plaintiffs, was Article 1289

34a

which reads, “[eJach heir may dispose of the right which he

has in the estate; but he cannot dispose of the things which

constitute the estate.” The court was not provided with or able

to find any case law interpreting this provision, but the last

half of Article 1289 may prevent Plaintiffs from binding an

estate to a compromise without including all other persons

who have an interest in the estate. Therefore, the court finds

that Plaintiffs would be precluded from making a binding

damages limitation under Mexican law.

CONCLUSION

The court finds that under Texas law Plaintiffs have not

shown they have the authority to limit the damages sought to

be recovered by the estates in this lawsuit. Further, even if

Mexican law controlled the question of Plaintiffs’ authority

to limit damages, these plaintiffs have not shown they have

that authority. Therefore, the court finds that the amount in

controversy exceeded $50,000 at the time this lawsuit was

removed and this court has jurisdiction.

IT Is, therefore, ORDERED that Plaintiffs’ motions to

remand are DENIED.

ing’s third-party complaint, on the basis of fraudulent joinder

to create federal jurisdiction, and in the alternative to sever

the third-party complaint, in order to remand the main action,

should also be DENIED.

SIGNED this the 8th of June 1993.

RICHARD A. HELL

Richard A. Schell

United States District Judge

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x x x Wepleg oq eBuewog eITy epry

xX xX Xx "4 x xX WUio INVITAL OWI

x x x Zounp, eBuewog |2qes] wu!

xX x x QUO] BOP Zalog BOATY BAlAS

xX x x BARN 70g BONS] wy

x x xX

(ene

(ene)

x x x ZopuwUse} Op Z¥q UYOY BAITy

(J BouB]gQe1I0] ) GIOM) (O]]!AB}8q) (Ooseueg) (OosBueg) (OosBUeg) (zonsupoy)

qouneeg o]NBIS sojo8uy o8eoryD soyosuy omowy ormojuy

‘O'a's'n se) 80] ‘O'a’s'n 90” ues ues :$Upesed

0} peaomey ‘sedng ‘O'a's'n oy oOasn ‘ovasn ‘d'a's'n

UW pets o Peaouiey oO” mM pet 0} peaowey

Poaomiay Peaoulsy

ELL NTN E RT, HEL RETR terre ; —

39a

(610'0CsozsTs)

C6/LI/1

69 69 SL 7m 69 77 Oe STVLOL

x x X weqooeg Opawory

x JBAIPIEZ Sneed (Ca) suojog

x x xX (Za190q) JBAIPFEZ (VUVTNs) Jey eULY

x x JBAIPIEZ WHEW

(Za39d)

x xX x JBAIPIVZ SOperuEW (SURYN, JoIpSY HUF)

xX x xX r 4 Gezeles) oem, unsnsny

(] wouejqaljol) GIOM) OjIAWISy) (OoswUsg) (OssWUsg) (Oos¥Udg) (zonsupoy)

youMNBog oes = sepeSuy = (Sw epeSuy = (omy =—s_s« orm

‘O'a's'n I | ‘O'a's'n a | ues ues {SBI pooe(]

0} Peaomlay ‘sodng ‘oO'a’s'n +] oOasn oasn ‘o'asn

U1 poly ce) poaomiey ) UI pop] 0) poaomoy

Poaoculey Poacuey

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