Petition for Writ of Certiorari — Papapanos v. Lufthansa German Airlines

Supreme Court. U.S.

FIL & D

O27 862 NOV 241997

No. OFFICE “OF THE CLERK

In The

Supreme Court of the United States

October Term, 1997

+

PAUL PAPAPANOS,

Petitioner,

LUFTHANSA GERMAN AIRLINES,

etc., et al.,

Respondents.

*

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

2

PETITION FOR WRIT OF CERTIORARI

+

LaAwrENCE R. MeETSCH ARTHUR J. MORBURGER

Counsel of Record Penthouse I

MetscH & Mertscn, P.A. 155 South Miami Avenue

Suite 416 Miami, Florida 33130

19 W. Flagler Street (305) 374-3373

Miami, Florida 33130 FAX: (305) 358-1755

(305) 358-7773 Satty A. Gross

FAX: (305) 358-7877 Suite 900

Mark I. DuNAEVSKY 1401 Brickell Avenue

525 Grove Street, #5A Miami, Florida 33131

Evanston, Illinois 60201 (305) 530-1401

(847) 869-8319 FAX: (305) 530-1919

FAX: (847) 869-8371

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

In determining whether a defendant is an “agency or

instrumentality of a foreign state” for purposes of the

federal subject-matter jurisdictional and removal provi-

sions of the Foreign Sovereign Immunities Act, 28 U.S.C.

§§ 1330 and 1441(d), should a court refer to the defen-

dant’s status at the time of the (a) events alleged to give

rise to liability or (b) filing of the lawsuit?

ii

PARTIES TO THE PROCEEDINGS

The following were parties to Case No. 96-4755, U.S.

Court of Appeals for the Eleventh Circuit:

Cargolux Airlines International, Inc.

Cold Transfer, Inc.

Dial Corp.

Dispatch Services, Inc.

Florida West Gateway, Inc.

Lufthansa German Airlines

Manpower International, Inc.

Miami Express Delivery Services, Inc.

Mr. Paul Papapanos

Regal Air Freight Services, Inc.

Union-Transport Corp.

iil

TABLE OF CONTENTS

Page

Commation: Pemeented «0k. cess e cee ccecnees i

Parties to the Proceedings .............ceeseeseesss ii

A NS i Fi i dts od 048 Vid + Vo cee wie KS iii

eg cs saws tae g eeu pe uen os Vv

Opinions Below ..........-.. eee ee cece cence cence: 1

Seateient GF FATIBMICTION, ... 2.06.0 s cece eceensces 2

Statutory Provisions Involved................+++++. 2

ita nes tvennr scenes 5

Reasons For Granting The Writ................-.-. 8

I. The Petition Should Be Granted Because The

Decision Below Conflicts With The Decisions

Of Two Other United States Courts Of Appeals

Concerning The Benchmark Time For Deter-

mining A Defendant’s Status As An “Agency

Or Instrumentality Of A Foreign State” Under

The Foreign Sovereign Immunities Act....... 8

II. The Petition Should Be Granted Because This

Case Presents A Question Of Exceptional

Importance In The Administration Of The For-

eign Sovereign Immunities Act ...........--. 10

EISELE DE LE LLG NLL PEON EE ED 11

Order of the United States District Court for the

Southern District of Florida Filed March 1,

Se eawebeaeb ee App. 1

Order of the United States District Court for the

Southern District of Florida Filed June 15,

Gee iy eee er Peee rere Eee ere ke Pere App. 10

iv

TABLE OF CONTENTS - Continued

Page

Order of the United States District Court for the

Southern District of Florida Filed April 16,

i ee OP ee nr eny Puan Fees App. 14

Opinion of the United States Court of Appeals for

the Eleventh Circuit Filed August 29, 1997...App. 60

Order of the United States Court of Appeals for

the Eleventh Circuit Filed October 31, 1997 ..App. 62

v

TABLE OF AUTHORITIES

Page

Cases Citep:

Callejo v. Bancomer, S.A., 764 F.2d 1101 (5th Cir.

BOR isis 4a a nape dN Re we Oh nk CANS Uk ooh b oA) kee 9

Cargill International, S.A. v. M/T Pavel Dybenko, 991

Pian PAPA ER A OE 05 5k kkk Kaw Seco dacidos y

General Electric Capital Corp. v. Grossman, 991 F.2d

Rett SOM: Coe Ws os es bah oh oes hoa uke das; 8

Gould, Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d

445 (6th Cir. 1988), cert. dismissed sub. nom.

Pechiney & Trefimetaux v. Gould, Inc., 503 U.S.

BTU CEMA RENE + VERCLEN EEN 84 AS MEN RL da be eis 8

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989) ..... 9

Morgan Guaranty Trust Co. v. Republic of Palau, 639

F. Supp. 706 (S.D.N.Y.), vacated on other grounds,

FE Bomte Bae? CAE AG, FOOSE ois oon sc aveeoancas sas 9

Straub v. A.P. Green, Inc., 38 F.3d 448 (9th Cir. 1994)..... g

Wolf v. Banco Nacional de Mexico, S.A., 739 F.2d

1458 (9th Cir. 1984), cert. denied, 469 U.S. 1108

CREPE i Gis RCW bh se cha ENA 4 AOps SRR RECKARMR ANS Ke 8

STATUTES CITED:

Rt es 5 6 KRG es 06 4 NOC eee) CoRR RS 2, 10

PB Bo es are rrearae @ perc wi eee a a, ©, 7; 39

re, ERE, Th +. SRR a grap papers ea MROED gli Ne Renton MST 4

TREATISE CITED:

Moore’s Feperat Practice (Third Edition)............. y

EO

PETITION FOR A WRIT OF CERTIORARI

Petitioner Paul Papapanos (“Papapanos”) respect-

fully requests that a writ of certiorari be issued to review

the judgment of the United States Court of Appeals for

the Eleventh Circuit in this case.

+

OPINIONS BELOW

The District Court’s March 1, 1995, Order Denying

Plaintiff’s Motion To Remand (App. 1-9) has not been

officially reported, but can be found at 1995 U.S. Dist.

LEXIS 9163.

The District Court’s June 15, 1995, Order Denying

Papapanos’ Motion to Amend the March 1, 1995, Order

Denying Plaintiff’s Motion To Remand to include a state-

ment pursuant to 28 U.S.C. § 1292(b) (App. 10-13) has not

been officially reported, but can be found at 1995 U.S.

Dist. LEXIS 9159.

The District Court’s April 16, 1996, Order Granting

Defendants’ Motions To Dismiss And/Or For Summary

Judgment And Denying Plaintiff's Motion For Leave To

File Fourth Amended Complaint (App. 14-59) has not

been officially reported, but can be found at 9 Fla. Law

Weekly Federal D751 and 1996 U.S. Dist. LEXIS 6433.

Neither the Court of Appeals’ August 29, 1997, opin-

ion affirming the District Court’s judgment (App. 60-61)

nor its October 31, 1997, denial of Papapanos’ suggestion

for rehearing en banc (App. 62-63) has been reported or

published.

STATEMENT OF JURISDICTION

The Court of Appeals’ judgment in Case No. 96-4755

was entered on August 29, 1997. On October 31, 1997, the

Eleventh Circuit denied Papapanos’ suggestion for

rehearing en banc.

Section 1254(1), Title 28, U.S. Code, confers jurisdic-

tion on the Court to review on a writ of certiorari the

judgment of the Court of Appeals in Case No. 96-4755.

+

STATUTORY PROVISIONS INVOLVED

Section 1330, Title 28, U.S. Code (Actions against for-

eign states):

“(a) The district courts shall have original

jurisdiction without regard to amount in contro-

versy of any nonjury civil action against a for-

eign state as defined in section 1603(a) of this

title as to any claim for relief in personam with

respect to which the foreign state is not entitled

to immunity either under sections 1605-1607 of

this title or under any applicable international

agreement.

“(b) Personal jurisdiction over a foreign state

shall exist as to every claim for relief over which

the district courts have jurisdiction under sub-

section (a) where service has been made under

section 1608 of this title.

“(c) For purposes of subsection (b), an appear-

ance by a foreign state does not confer personal

jurisdiction with respect to any claim for relief

not arising out of any transaction or occurrence

enumerated in sections 1605-1607 of this title.”

Section 1441, Title 28, U.S. Code (Actions removable

generally):

“(a) Except as otherwise expressly provided by

Act of Congress, any civil action brought in a

State court of which the district courts of the

United States have original jurisdiction, may be

removed by the defendant or defendants, to the

district court of the United States for the district

and division embracing the place where such

action is pending. For purposes of removal

under this chapter, the citizenship of defendants

sued under fictitious names shall be disre-

garded.

“(b) Any civil action of which the district

courts have original jurisdiction founded on a

claim or right arising under the Constitution,

treaties or laws of the United States shall be

removable without regard to the citizenship or

residence of the parties. Any other such action

shall be removable only if none of the parties in

interest properly joined and served as defen-

dants is a citizen of the State in which such

action is brought.

“(c) Whenever a separate and independent

claim or cause of action within the jurisdiction

conferred by section 1331 of this title is joined

with one or more otherwise nonremovable

claims or causes of action, the entire case may be

removed and the district court may determine

all issues therein, or, in its discretion, may

remand all matters in which State law predomi-

nate.

“(d) Any civil action brought in a State court

against a foreign state as defined in section

1603(a) of this title may be removed by the

foreign state to the district court of the United

States for the district and division embracing the

place where such action is pending. Upon

removal the action shal! be tried by the court

without jury. Where removal is based upon this

subsection, the time limitations of section

1446(b) of this chapter may be enlarged at any

time for cause shown.

“(e) The court to which such civil action is

removed is not precluded from hearing and

determining any claim in such civil action

because the State court from which such civil

action is removed did not have jurisdiction over

that claim.”

Section 1603, Title 28, U.S. Code (Definitions):

“For purposes of [Chapter 97, Title 28, U.S.

Code, the Foreign Sovereign Immunities Act] -

(a) A ‘foreign state’, except as used in sec-

tion 1608 of this title, include a political

subdivision of a foreign state or an agency

or instrumentality of a foreign state as

defined in subsection (b).

(b) An ‘agency or instrumentality of a for-

eign state’ means any entity -

(1) which is a separate legal person,

corporate or otherwise, and

(2) which is an organ of a foreign state

or political subdivision thereof, or a

majority of whose shares or other own-

ership interest is owned by a foreign

state or political subdivision thereof,

and

ee

(3) which is neither a citizen of a State

of the United States as defined in sec-

tion 1332(c) and (d) of this title nor

created under the laws of any third

country.”

STATEMENT OF THE CASE

On April 18, 1992, Greek customs officials assigned to

the Athens International Airport discovered a bag of

cocaine, weighing 1,608.9 grams, in a box of carnations

which had arrived from Bogota, Colombia, by way of

Miami, Florida, and Frankfurt, Germany, aboard a flight

operated by Respondent/Defendant Lufthansa German

Airlines (“Lufthansa”). Papapanos, the General Manager

of the cargo’s consignee, Florimex Athens Limited, a sub-

sidiary of Florimex Verwaltungesellschaft MBH, was

taken into custody, denied bail and prosecuted by Greek

Republic law enforcement authorities for drug trafficking

solely because he had ordered the carnations through

company channels. He was acquitted by the Greek court

on May 28, 1993, and given his freedom.

Prior to September 29, 1994, the German Government

owned more than fifty percent (50%) of the stock of

Lufthansa, a German corporation, thereby constituting

Lufthansa an “agency or instrumentality of a foreign

state” under the Foreign Sovereign Immunities Act (“the

FSIA”). On September 29, 1994, a $600,000,000.00 public

offering of Lufthansa’s stock brought the German Gov-

ernment’s ownership share below fifty percent (50%), as a

consequence of which Lufthansa lost its status as an

“agency or instrumentality of a foreign state” under the

FSIA.

Papapanos, on November 15, 1994, filed a negligence

suit in the Eleventh Circuit Court of Florida (“the Florida

State Court”) against Lufthansa and others. The Florida

state court assigned that action Case No. 94-21258 (CA

02).

Lufthansa removed Case No. 94-21258 (CA 02) to the

U.S. District Court, Southern District of Florida (“the

Federal District Court”), on December 15, 1994, citing 28

U.S.C. § 1441(d) (claiming that it was entitled to be

treated as an “agency or instrumentality” of the German

Government) and 28 U.S.C. § 1441(b) (claiming that the

action arose under the Warsaw Convention). None of the

other defendants joined in that petition. The Federal Dis-

trict Court assigned Case No. 94-2667-Civ-Marcus (“Case

No. 94-2667”) to the removed lawsuit.

Noting that Lufthansa had been privatized on Sep-

tember 29, 1994, and contending that the Warsaw Con-

vention was inapplicable, Papapanos moved on

December 27, 1994, to remand Case No. 94-2667 to the

Florida State Court pursuant to 28 U.S.C. § 1447(c). The

Federai District Court on March 1, 1995, denied that

motion on the sole ground that Lufthansa, having

allegedly acted tortiously prior to its privatization, had

been entitled to remove Case No. 94-21258 (CA 02) pur-

suant to 28 U.S.C. § 1441(d). (App. 1-9)

On March 6, 1995, Papapanos moved to amend the

Federal District Court’s March 1, 1995, order to include

the statement required by 28 U.S.C. § 1292(b) to facilitate

Ane ee st me

Thee eee

an interlocutory appeal. The Federal District Court

denied that motion on June 15, 1995. (App. 10-13)

The Federal District Court, on April 16, 1996, entered

an order granting the defendants’ motions to dismiss and

for summary judgment and denying Papapanos’ motion

for leave to file a proposed Fourth Amended Complaint.

(App. 14-59) In that order, the Federal District Court

concluded that, under Florida’s substantive law, the

defendants had not owed Papapanos a duty to use rea-

sonable care to prevent the shipment of carnations from

arriving in Athens, Greece, with cocaine hidden in one of

its constituent boxes.

On May 17, 1996, the Federal District Court entered a

final judgment adverse to Papapanos. Papapanos’ notice

of appeal was filed on May 28, 1996.

The Court of Appeals, per curiam, on August 29, 1997,

issued the following opinion in Case No. 96-4755:

“We affirm the district court’s decision rejecting

appellant’s claims on the merits. We adopt as

our own the reasoning of its dispositive order of

April 15, 1996, granting appellees’ motions to

dismiss and/or summary judgment and deny-

ing appellant leave to file a fourth amended

complaint.

“We reject for the reasons stated in Point I of

Lufthansa’s brief appellant’s argument that the

district court lacked subject matter jurisdiction

because Lufthansa was not entitled to remove

the case to federal court under 28 U.S.C.

§ 1441(d).”

(App. 60-61)

Papapanos, on September 17, 1997, filed and served

his Suggestion Of Rehearing En Banc, which was denied

on October 31, 1997. (App. 62-63)

+

REASONS FOR GRANTING THE WRIT

I,

THE PETITION SHOULD BE GRANTED BECAUSE

THE DECISION BELOW CONFLICTS WITH THE

DECISIONS OF TWO OTHER UNITED STATES

COURTS OF APPEALS CONCERNING THE

BENCHMARK DATE FOR DETERMINING A DEFEN-

DANT’S STATUS AS AN “AGENCY OR INSTRU-

MENTALITY OF A FOREIGN STATE” UNDER THE

FOREIGN SOVEREIGN IMMUNITIES ACT

In addition to the Eleventh Circuit in this case, two

(2) United States Courts of Appeals have held that, in

determining whether an entity is a “foreign state” under

the FSIA, a court is to look to the status of the defendant

at the time of the events alleged to give rise to liability.

Gould, Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d 445, 450

(6th Cir. 1988), cert. dismissed sub. nom. Pechiney & Tref-

imetaux v. Gould, Inc., 503 U.S. 978 (1992); and General

Electric Capital Corp. v. Grossman, 991 F.2d 1376, 1380-1382

(8th Cir. 1993).

However, two (2) other United States Courts of

Appeals and a U.S. District Court have ruled that, in

determining whether an entity is a “foreign state” under

the FSIA, a court is to look to the status of the defendant

either at the time when suit was brought or trial began.

Wolf v. Banco Nacional de Mexico, S.A., 739 F.2d 1458, 1460

Pea ier eng at te aren operat =

ee

Lae

(9th Cir. 1984), cert. denied, 469 U.S. 1108 (1985); Callejo v.

Bancomer, S.A., 764 F.2d 1101, 1106-1107 (5th Cir. 1985);

Straub v. A.P. Green, Inc., 38 F.3d 448, 451 (9th Cir. 1994);

and Morgan Guaranty Trust Co. v. Republic of Palau, 639 F.

Supp. 706, 712 (S.D.N.Y. 1986), vacated on other grounds,

924 F.2d 1237, 1245 (2nd Cir. 1991) (action remanded to

New York State Court).

The foregoing conflict among the United States

Courts of Appeals was recognized, but not resolved, by

the Court in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33,

39 (1989). See, also, Cargill International, S.A. v. M/T Pavel

Dybenko, 991 F.2d 1012, 1015-1016 (2nd Cir. 1993) (noting

the conflict, but not deciding the issue).

Moore’s FeperAL Practice (Third Edition) observes:

“Time of Determination

“One question that has not been fully resolved

is whether, in determining whether an entity is a

‘foreign state’ under the FSIA, a court is to

consider the defendant at the time of the events

alleged to give rise to liability or at the time

when suit was brought. For example, an entity

might have been a private corporation at time A,

but was then nationalized by time B. One view

is that the FSIA applies if the party meets the

definition of a foreign state at the time when the

lawsuit is filed, even if that party was not a

foreign state at the time of the alleged wrongdo-

ing. However, others have reached the opposite

conclusion, looking instead to the situation as it

existed when the acts giving rise to the cause of

action occurred.” (Footnotes omitted)

Moore’s Feperat Practice (Third Edition), Volume 15,

§ 104.11[4], p. 104-27.

10

II.

THE PETITION SHOULD BE GRANTED BECAUSE

THIS CASE PRESENTS A QUESTION OF EXCEP-

TIONAL IMPORTANCE IN THE ADMINISTRATION

OF THE FOREIGN SOVEREIGN IMMUNITIES ACT

In 1976, when it enacted the FSIA, Congress could

not have foreseen the tidal wave of privatization of state-

owned industries which, since the end of the Cold War,

has swept across Europe, Asia and Latin America. Conse-

quently, neither the language nor the legislative history of

the FSIA answers the important question squarely pre-

sented in this case: is a foreign corporation, when sued

post-privatization in State Court for pre-privatization

conduct, entitled to remove the civil action to Federal

Court by invoking 28 U.S.C. §§ 1330 and 1441(d)?

The grant of Papapanos’ petition would enable the

Court to reconcile federal subject-matter jurisdiction and

removal under 28 U.S.C. §§ 1330 and 1441(d) with the

world-wide privatization phenomenon.

¢

~

|

11

CONCLUSION

Papapanos’ Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

(Case No. 96-4755) should be granted.

Respectfully submitted,

LAWRENCE R. MetscH

Counsel of Record

MetscH & Mertscn, P.A.

Suite 416

19 W. Flagler Street

Miami, Florida 33130

(305) 358-7773

Fax: (305) 358-7877

Mark I. DuNAEVsKY

525 Grove Street, #5A

Evanston, Illinois 60201

(847) 869-8319

Fax: (847) 869-8371

ARTHUR J. MORBURGER

Penthouse I

155 South Miami Avenue

Miami, Florida 33130

(305) 374-3373

Fax: (305) 358-1755

SaL_y A. Gross

Suite 900

1401 Brickell Avenue

Miami, Florida 33131

(305) 530-1401

Fax: (305) 530-1919

LIA ty

ARB sate

WR.

Seah

awirtudesneh “J.

App. 1

APPENDIX

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 94-2667-CIV-MARCUS

PAUL PAPAPANOS,

Plaintiff, ORDER DENYING

v. PLAINTIFF'S MOTION

LUFTHANSA GERMAN JO REMAND

AIRLINES, etc., et al., (Filed Mar. 1, 1995)

Defendants.

/

THIS CAUSE comes before the Court upon the Plain-

tiff’s motion to remand, filed December 27, 1994. The

Plaintiff asserts that the action was improperly removed

and that the case should be remanded to the Florida court

from which it was removed. For the reasons stated below,

the Plaintiff’s motion to remand must be and is hereby

DENIED.

This action was originally filed in the Circuit Court of

the Eleventh Judicial Circuit of Florida, Dade County, on

November 16, 1994. On December 15, 1994, Defendant

Lufthansa German Airlines (“Lufthansa”) filed a notice of

removal, citing two bases for removal of the action. First,

Lufthansa contends that it may remove the action as a

“foreign state,” as defined in 28 U.S.C. § 1603, and 28

App. 2

U.S.C. § 1441(d).! Notice of Removal {J 2-4. In addition,

Lufthansa states that the action is governed by the War-

saw Convention. Id. J 5. The Plaintiff has moved to

remand the action, claiming that neither basis for removal

is proper. Because we find that the Foreign Sovereign

1 Section 1441(d) states:

Any civil action brought in a State court against a .

foreign state as defined in section 1603(a) of this title

may be removed by the foreign state to the district

court of the United States for the district and division }

embracing the place where such action is pending. f

Upon removal the action shall be tried by the court

without jury. Where removal is based upon this

subsection, the time limitations of section 1446(b) of

this chapter may be enlarged at any time for cause

shown.

18 U.S.C. § 1441(d). Section 1603 states, in relevant part:

(a) A “foreign state”, except as used in section

1608 of this title, includes a political subdivision of a

foreign state or an agency or instrumentality of a

foreign state as denied in subsection (b).

aN TRSSERRERANE HMR >

(b) An “agency or instrumentality of a foreign

state” means any entity-

(1) which is a separate legal person,

corporate or otherwise, and

(2) which is an organ of a foreign state or

political subdivision thereof, or a majority of

whose shares or other ownership interest is

owned by a foreign state or political subdivision

thereof, and

(3) which is neither a citizen of a State of the

United States as defined in section 1332(c) and (d)

of this title, nor created under the laws of any

third country.28 U.S.C. § 1603(a)-(b).

App. 3

Immunities Act is a proper basis for removal of the pres-

ent case, we need not address the parties, arguments

regarding the Warsaw Convention.

The Plaintiff does not contest Lufthansa’s statement

that it was a “foreign state” within the meaning of the

Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C.

§ 1603, at the time the cause of action in this case arose.

Instead, Plaintiff notes that Lufthansa has since become a

private entity, through a public offering of its stock, and

that the privatization occurred prior to the filing of this

case on November 15, 1994.2 According to Papapanos,

this change in status deprives Lufthansa of the right to

remove this action to federal court under the FSIA. Mot.

Remand at 4-8. Lufthansa counters that despite the

change in status, the fact that it was a foreign state for

purposes of the FSIA at the time the cause of action arose

is sufficient for removal of the action pursuant to the

FSIA. Def. Lufthansa’s Mem. Law Opp. Pltff.’s Mot.

Remand at 1-5.

While no court has decided this precise issue, two

Circuit Courts of Appeal have addressed the applicability

of the FSIA’s immunity provisions, rather than the

removal statute, where the entity claiming immunity lost

its “foreign state” status after the cause of action arose

but before the filing of the complaint. In General Elec.

Capital Corp. v. Grossman, 991 F.2d 1376 (8th Cir. 1993), the

plaintiffs asserted claims against Air Canada, as well as

2 Lufthansa admits that it has lost foreign state status in

both its notice of removal and its response to the Plaintiff’s

motion. Notice of Removal ¥ 4; Def. Lufthansa’s Mem. Law

Opp. Pltff.’s Mot. Remand at 2.

App. 4

numerous other defendants, arguing that the defendants

“conspired to suppress information about [a corpora-

tion’s] financial status in order to dupe [one plaintiff] into

buying [the corporation] at an inflated price.” Id. at 1379.

Air Canada moved to dismiss the claims against it on the

grounds that, at the time of the alleged wrongdoing, Air

Canada was a “foreign state” within the meaning of the

FSIA and was, therefore, immune from suit. The District

Court granted the motion to dismiss, and the plaintiffs

appealed. On appeal, the plaintiffs argued, among other

grounds for reversal, that the FSIA did not apply because

Air Canada was no longer owned by the Canadian gov-

ernment at the time the suit was brought. The Eighth

Circuit affirmed, holding that FSIA immunity applies to

an entity which qualified as a foreign state under section

1603 at the time the cause of action arose despite having

lost that status before the lawsuit was initiated. In coming

to that conclusion, the Court stated:

The doctrine of foreign state sovereign immu-

nity was “created to effectuate general notions

of comity among nations.” First Nat'l City Bank

v. Banco Nacional de Cuba, 406 U.S. 759, 762, 92

S.Ct. 1808, 1811, 32 L.Ed.2d 466 (1972); Verlinden

B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486,

103 S.Ct. 1962, 1967, 76 L.Ed.2d 81 (1983) (“sov-

ereign immunity is a matter of grace and comity

on the part of the United States”). The foreign

policy concerns discouraging us from judging

the acts of another nation are not necessarily

eliminated because an entity is not a foreign

state at the time of suit. See First Nat'l City Bank,

406 U.S. at 761-62, 92 S.Ct. at 1810.

t

4

App. 5

991 F.2d at 1381. The Eighth Circuit also noted that the

only other Circuit to have addressed the issue had also

found FSIA immunity where the party asserting immu-

nity had lost its “foreign state” status between the time of

the alleged wrongdoing and the commencement of the

lawsuit. Id. at 1380-81 (citing Gould, Inc. v. Pechiney Ugine

Kuhlmann, 853 F.2d 445, 450 (6th Cir. 1987)).5 Therefore,

the Court held that immunity under the FSIA would be

preserved despite the change in status.

In Gould, the defendants fell within the FSIA defini-

tion of “foreign state” at the time the acts complained of

occurred, but during the pendency of the appeal of the

District Court’s rulings regarding the “commercial activ-

ity” exceptions to FSIA immunity, one of the defendant

corporation’s shares were so!d to a privately owned com-

pany. On appeal, the plaintitf argued that this change in

3 In both General Electric and Gould, the Courts cited to a

1922 Supreme Court case, The Western Maid, 257 U.S. 419 (1922).

In that case, a ship owned by the United States was involved ina

collision while performing transportation duties for the United

States War Department. The vessel was then transferred to a

private party, and a suit was brought seeking to attach liability

to the ship. The Supreme Court held that the sovereign

immunity which applied at the time of the collision was not

later lost by the vessel’s transfer into private hands. The Court

reasoned that the doctrine of sovereign immunity declares that

the sovereign’s acts cannot be legally wrong, and, therefore,

although the private owner was not entitled to sovereign

immunity, there was no tort upon which to sue. Id. at 432-33.

Therefore, the District Court’s denial of the motion to dismiss

was reversed.

App. 6

ownership eliminated FSIA immunity as to that defen-

dat. The Sixth Circuit disagreed, stating, in full, with

respect to this issue:

The subject matter jurisdiction granted to

the district courts by the FSIA in 28 U.S.C.

§ 1330(a) is neither diversity nor alienage juris-

diction, but federal question jurisdiction. It is a

statutory grant of jurisdiction enacted by Con-

gress pursuant to the “arising under” clause of

Article III, Section 2, of the Constitution. Ver-

linden B.V. v. Central Bank of Nigeria, 461 U.S.

480, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). When

subject matter jurisdiction is predicated upon

the diversity of the parties, citizenship is deter-

mined at the time the action is commenced. E.g.,

Anderson v. Watts, 138 U.S. 694, 702-03, 11 S.Ct.

449, 451, 34 L.Ed. 1078 (1891). It would appear

that the determination of whether a party is

subject to the court’s jurisdiction under 28

U.S.C. § 1330 should be based upon a party’s

status at the time the act complained of

occurred. See Morgan Guar. Trust Co. of N.Y. v.

Republic of Palau, 639 F.Supp. 706, 712 (S.D.N.Y.

1986) (rejecting date of complaint as time to

determine status of defendant for purpose of

defining “foreign state”). Cf. The Western Maid,

257 U.S. 419, 42 S.Ct. 159, 66 L.Ed. 299 (1922)

(liability did not attach for acts occurring while

ship was owned by federal government after

ownership transferred to private hands).

TM NNR SRN STERN RRR TEETORE NT A IIE OEP: IEE ON I

App. 7

853 F.2d at 450 (footnote omitted). Accordingly, the

change in ownership did not affect the defendant’s FSIA

immunity.*

This same analysis applies where the issue is removal

pursuant to the FSIA rather than sovereign immunity

under that act. Section 1441(d) is part of the FSIA, “which

represented a comprehensive effort ‘to provide when and

how parties can maintain a lawsuit against a foreign state

or its entities in the courts of the United States and to

provide when a foreign state is entitled to immunity.’ ”

Arango v. Guzman Travel Advisors, 761 F.2d 1527, 1531

(11th Cir. 1985) (quoting H.R. Rep. No. 1487, 94th Cong.,

2d Sess, reprinted in, 1976 U.S.C.C.A.N. 6604, 6604. The

statute has been read broadly in order to effectuate its

purposes. See, e.g. In re Surinam Airways Holding Co., 974

F.2d 1255 (11th Cir. 1992) (holding that removal under

section 1441(d) by a third-party defendant foreign state

removes the entire case rather than just the third-party

claims). In addition, the FSIA requires a trial by the court

without a jury. 28 U.S.C. § 1441(d). Disallowing removal

where the defendant has lost its foreign state status prior

to the filing of the lawsuit but notably after the cause of

action arose would likely result in the foreign sovereign’s

actions — at the time the cause of action arose — being

reviewed by a jury. This result would be contrary to

4 The Sixth Circuit went on to reverse the District Court’s

procedure in ruling regarding the commercial activity

exceptions to FSIA immunity and remanded the matter for a

determination under the appropriate standard. Therefore, the

party’s FSIA immunity had not been finally determined for

purposes of the lawsuit at the time the Sixth Circuit’s ruling was

made.

App. 8

Congress’s intent in the FSIA of “ ‘render[ing] uniform in

procedure and substance the treatment of foreign sover-

eigns subjected to suit in American courts.’” In re Sur-

inam Airways Holding Co., 974 F.2d at 1259 (quoting Nolan

v. Boeing Co., 919 F.2d 1058, 1065 (5th Cir. 1990), cert.

denied, __ U.S. __, 111 S.Ct. 1587 (1991)). The lawsuit is

premised on the facts and circumstances which existed at

the time the cause of action arose —- when the entity had

foreign state status. The fact that the entity is not a

foreign state at the time the suit is brought does not

negate the foreign policy implications of the lawsuit, and

the corresponding comity considerations, because the

court will necessarily evaluate the foreign state’s actions

at the time the cause of action arose. Thus, the rationale

behind the FSIA is still applicable despite the entity’s loss

of foreign state status.

In support of his argument, Plaintiff cites to two

District Court cases which held that foreign state status at

the time the suit was brought will suffice for purposes of

FSIA removal — Balentine v. Union Mortgage Co., 795 F.

Supp. 266 (N.D. Ill. 1992), and Murray v. Union Mortgage

Co., 1992 WL 247409, No. 91-0799-RV-M (S.D. Ala. 1992).

In each of these cases, the defendant took on foreign state

status after the cause of action arose, but before the entity

sought removal to federal court. In each case, the District

Court held that the status as a foreign state at the time of

removal was sufficient. In doing so, each of these courts

implicitly rejected the argument that the defendant was

not entitled to remove the action because it was not a

foreign state when the cause of action arose. See Balentine,

795 F. Supp. at n.4. However, neither case held that for-

eign state status at the time the cause of action arose

App. 9

would not also be sufficient for FSIA removal. Removal

here is not undermined by the cases cited by Plaintiff.

Moreover, the purposes of the FSIA are best served if an

entity which is a foreign state at the time the cause of

action arose is permitted to remove the case to federal

court even though it is no longer a foreign state at the

time the lawsuit is commenced or when removal is

sought. Therefore, Lufthansa is entitled to remove this

case pursuant to the FSIA, 28 U.S.C. § 1441(d).

Accordingly, it is hereby

ORDERED and ADJUDGED that the Plaintiff's

motion for remand is DENIED.

DONE AND ORDERED in Miami, this 1st day of

March, 1995.

/s/ Stanley Marcus

STANLEY MARCUS

UNITED STATES

DISTRICT JUDGE

cc: Counsel of record

App. 10

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 94-2667-CIV-MARCUS

PAUL PAPAPANOS,

Plaintiff, ORDER

> (Filed

LUFTHANSA GERMAN June 15, 1995)

AIRLINES, etc., et al.,

Defendants.

/

THIS CAUSE comes before the Court upon the Plain-

tiff’s motion to amend Order Denying Plaintiff’s Motion

to Remand to include a statement pursuant to 28 U.S.C.

§ 1292(b) (DE #56), filed March 6, 1995. Upon a thorough

review of the pleadings, and for the reasons stated below,

the Plaintiff’s motion must be and is hereby DENIED.

This action was removed from the Circuit Court in

and for the Eleventh Judicial Circuit of Florida on Decem-

ber 15, 1995. In its removal petition, Defendant Lufthansa

German Airlines (“Lufthansa”) stated that it was a “for-

eign state” within the meaning of the Foreign Sovereign

Immunities Act (“FSIA”), 28 U.S.C. § 1603.1 On December

27, 1995, the Plaintiff moved to remand the action, argu-

ing that although Lufthansa was a “foreign state” within

1 Lufthansa also claimed that the action is governed by

the Warsaw Convention. Because this Court resolved the motion

to remand solely on the grounds of the FSIA, the Warsaw

Convention, is not at issue in the present motion.

App. 11

the meaning of the FSIA at the time this cause of action

accrued, it has since lost that status. The Plaintiff asserted

that with the change in status, Lufthansa was not entitled

to removal pursuant to 28 U.S.C. § 1441(d).2 On March 1,

1995, this Court denied the Plaintiff’s motion to remand,

stating

Disallowing removal where the defendant has

lost its foreign state status prior to the filing of

the lawsuit but notably after the cause of action

arose would likely result in the foreign sover-

eign’s actions — at the time the cause of action

arose — being reviewed by a jury. This result

would be contrary to Congress’s intent in the

FSIA of “ ‘render[ing] uniform in procedure and

substance the treatment of foreign sovereigns

subjected to suit in American courts.’” In re

Surinam Airways Holding Co., 974 F.2d [1255,]

1259 [(11th Cir. 1992)] (quoting Nolan v. Boeing

Co., 919 F.2d 1058, 1065 (5th Cir. 1990), cert.

dented, _ US. __, 111 SCL. 1567 (2991). This

lawsuit is premised on the facts and circum-

stances which existed at the time the cause of

action arose - when the entity had foreign state

status. The fact that the entity is not a foreign

state at the time the suit is brought does not

negate the foreign policy implications of the

lawsuit, and the corresponding comity consider-

ations, because the court will necessarily evalu-

ate the foreign state’s actions at the time the

2 Section 1441(d) states, in relevant part:

Any civil action brought in a State court against a

foreign state as defined in section 1603(a) of this title

may be removed by the foreign state to the district

court of the United States for the district and division

embracing the place where such action is pending.

App. 12

cause of action arose. Thus, the rationale behind

the FSIA is still applicable despite the entity’s

loss of foreign state status.

Order Denying Plaintiff's Motion to Remand, dated

March 1, 1995, at 7. The Plaintiff now seeks amendment

to that Order to permit interlocutory appeal of the March

1, 1995, ruling.

Section 1292(b) of Title 28 states:

When a district judge, in making in a civil

action an order not otherwise appealable under

this section, shall be of the opinion that such

order involves a controlling question of law as

to which there is substantial ground for differ-

ence of opinion and that an immediate appeal

from the order may materially advance the ulti-

mate termination of the litigation, he shall so

state in writing in such order.

28 U.S.C. § 1292(b). Accordingly, three criteria must be

met for certification to be appropriate: (1) the decision is

regarding a controlling issue of law; (2) there are substan-

tial grounds for difference of opinion; and (3) appeal may

materially advance the ultimate termination of the litiga-

tion. Id.

The first and third conditions for interlocutory

appeal appear to be present in this case because if the

Defendant lacked power to remove the action, then this

Court would be deprived of jurisdiction over the action.

However, the second prong of this test has not been met

in this case. The Plaintiff’s entire argument in his motion

is essentially that because his motion for remand impli-

cates this Court’s jurisdiction, he should be permitted

immediate appeal. Plaintiff has failed to cite a single case

App. 13

from any court holding contrary to this Court’s decision,

and we can find no basis upon which substantial grounds

for difference of opinion could be asserted. This Court’s

opinion was firmly rooted in both binding and persuasive

authority. Accordingly, it is hereby

ORDERED and ADJUDGED that the Plaintiff’s

motion to amend order denying Plaintiff's motion to

remand to include a statement pursuant to 28 U.S.C.

§ 1292(b) is DENIED.

DONE AND ORDERED in Miami, this 15th day of

June, 1995.

/s/ Stanley Marcus

STANLEY MARCUS

UNITED STATES

DISTRICT JUDGE

copies to:

United States Magistrate Judge Stephen T. Brown

counsel of record

App. 14

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 94-2667-CIV-MARCUS

PAUL PAPAPANOS, ORDER GRANTING

Plaintiff, | DEFENDANTS’ MOTIONS

’ TO DISMISS AND/OR .

v. FOR SUMMARY

LUFTHANSA GERMAN JUDGMENT AND

AIRLINES, etc., et al., DENYING PLAINTIFF'S

MOTION FOR LEAVE TO

Defendants. FILE FOURTH AMENDED

COMPLAINT

(Filed April 16, 1996)

/

THIS CAUSE comes before the Court upon the fol-

lowing motions: (1) Defendant Dispatch Services’ Motion

for Summary Judgment, filed February 1, 1995; (2) Defen-

dant Union Transport’s Motion to Dismiss, filed February

17, 1995; (3) Defendant Cold Transfer’s Motion to Dis-

miss, filed February 21, 1995; (4) Defendant Miami

Express’s Motion to Dismiss Amended Complaint, filed

March 24, 1995; (5) Defendant Regal Air Freight’s Motion

to Dismiss Amended Complaint, filed March 27, 1995; (6)

Defendants Lufthansa and Cargolux’s Cross-Motion for

Partial Summary Judgment on Plaintiff’s Claims for Neg-

ligence, filed April 24, 1995; (7) Defendant Florida West

Gateway’s Motion for Summary Judgment, filed April 26,

1995; (8) Plaintiff’s Motion for Leave to File Fourth

Amended Complaint, filed October 10, 1995; (9) Defen-

dant Manpower’s Motion to Dismiss, filed October 23,

App. 15

1995; and (10) Defendant Lufthansa’s Motion for Partial

Summary Judgment Dismissing Plaintiff's Claim for

Intentional Infliction of Emotional Distress, filed October

31, 1995. After a thorough review of the record and

pleadings, and having considered the arguments of coun-

sel, Dispatch Services’ Motion for Summary Judgment

must be and is GRANTED. Union Transport’s Motion to

Dismiss is GRANTED. Cold Transfer’s Motion to Dismiss

is GRANTED. Miami Express’s Motion to Dismiss

Amended Complaint is GRANTED. Regal Air Freight’s

Motion to Dismiss Amended Complaint is GRANTED.

Lufthansa and Cargolux’s Cross-Motion for Partial Sum-

mary Judgment on the Plaintiff’s Claims for Negligence is

GRANTED. Florida West Gateway’s Motion for Summary

Judgment is GRANTED. Manpower’s Motion to Dismiss

is GRANTED. Lufthansa’s Motion for Partial Summary

Judgment Dismissing Plaintiff's Claim for Intentional

Infliction of Emotional Distress is GRANTED. The Plain-

tiff’s Motion for Leave to File a Fourth Amended Com-

plaint is DENIED.

L

This action arises out of the Plaintiff’s shipment of

carnations from Colombia to Greece in time for the Greek

Orthodox Easter in 1992. Paul Papapanos, a Greek

national and director and manager of Florimex Athens, a

subsidiary of a German corporation known as Florimex,

ordered the carnations from a Florimex affiliate in

Bogota. The affiliate arranged for the transportation of

the flowers to Athens. On or about April 16, 1992, boxes

constituting the sixth of a planned seven shipments of

App. 16

carnations were delivered to Bogota airport by Colom-

bian growers. Colombian packers consolidated the boxes

into a single shipment, which was inspected by Colom-

bian customs officials. The flowers were then flown from

Bogota to Miami International Airport in Miami, Florida,

and then to Athens via Frankfurt, Germany. When the

shipment arrived in Athens, however, Greek customs

agents discovered cocaine in one of the boxes constituting

the sixth shipment. The Greek authorities subsequently

arrested the Plaintiff and charged him with the illegal

importation of drugs, on the basis of his position as

managing director of the business that had ordered the

flowers. Papapanos was imprisoned from April 22, 1992

until his acquittal on the criminal charge on May 28, 1993.

Florimex Athens ceased operations in July of 1994.

The Plaintiff filed his initial complaint in the Fall of

1994 in a Florida state court, and thereafter, on December

15, 1994, the Defendants filed a notice of removal.! The

Plaintiff filed his first amended complaint on January 18,

1995. On September 21, 1995 the Court ore tenus granted

the Plaintiff’s application for leave to file a third

amended complaint. In Count I of his third amended

complaint, Papapanos asserts that the Defendants —- var-

ious private airlines and cargo handlers — were negligent

in failing to (1) provide adequate procedures to prevent

1 In an Order dated March 1, 1995, this Court denied the

Plaintiff’s motion for remand. On June 15, 1995, the Court also

denied the Plaintiff’s motion to amend the denial of remand to

include a certification for interlocutory appeal under 28 U.S.C.

§ 1292(b).

App. 17

drugs from being interposed with the shipment, (2) ade-

quately inspect the boxes and detect any holes or extra-

neous markings and (3) x-ray the boxes. Plaintiff further

contends that his subsequent misfortunes were the proxi-

mate result of this negligence. He seeks damages in

excess of $15,000. In Count II of the complaint, Papapanos

alleges that Defendant Lufthansa is liable for intentional

infliction of emotional distress due to its unwillingness to

provide him with a letter that might have secured his

release from the Greek jail. The Plaintiff seeks punitive

damages against Lufthansa in Count II.

I.

All of the Defendants have filed motions to dismiss

the Plaintiff's complaint and/or for summary judgment

against Papapanos. The Defendants insist that Papapanos

has failed to allege or introduce facts to support his claim

that the Defendants owed him a duty to detect or remove

the cocaine from the boxes of carnations while en route

from Bogota to Athens. In addition, Lufthansa contends

that its failure to deliver the letter to Papapanos does not

represent the kind of unjustifiable, outrageous conduct

needed to obtain relief under Florida law for intentional

infliction of emotional distress. The Plaintiff, for his part,

has filed a motion for leave to amend his complaint a

fourth time. The Court took argument on the pending

motions at the pre-trial conference on December 21, 1995.

A.

The purpose of a Rule 12(b) (6) motion is to test the

facial sufficiency of the statement of claim for relief. It is

App. 18

read along with Rule 8(a) of the Federal Rules of Civil

Procedure, which requires only “a short and plain state-

ment of the claim showing that the pleader is entitled to

relief.” The motion is not designed to strike inartistic

pleadings or to provide a more definite statement to

answer an apparent ambiguity, and the analysis of a

12(b)(6) motion is limited primarily to the face of the

complaint and attachments thereto. See 5 Charles A.

Wright & Arthur Miller, Federal Practice and Procedure

§ 1356 at 590-92 (1969)(Wright & Miller). Moreover, for

the purposes of the motion to dismiss, the complaint

must be construed in a light most favorable to the plain-

tiff and the factual allegations taken as true. See SEC v.

ESM Group, Inc., 835 F.2d 270, 272 (11th Cir.), reh’g denied,

840 F.2d 25, cert. denied, 486 U.S. 1055 (1988).

According to the Eleventh Circuit:

[T]he Supreme Court has stated that the

“accepted rule” for appraising the sufficiency of

a complaint is “that a complaint should not be

dismissed for failure to state a claim unless it

appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim

which would entitle him to relief.” Conley v.

Gibson, 355 U.S. 41, 4546, 78 S. Ct. 99, 2 L. Ed. 2d

80 (1957); Tiftarea Shopper, Inc. v. Georgia Shopper,

Inc., 786 F.2d 1115, 1117-18 (11th Cir. 1986) (quo-

ting Conley).

Id. A complaint may not be dismissed because the plain-

tiff’s claims fail to support the legal theory he relies upon

since the court must determine if the allegations provide

for relief on any possible theory. Robertson v. Johnston, 376

App. 19

F.2d 43 (5th Cir. 1967).2 We hasten to add that this motion

is viewed with disfavor and rarely granted. See e.g., Mad-

ison v. Purdy, 410 F.2d 99, 100 (5th. Cir. 1969); International

Erectors, Inc. v. Wilhoit Steel Erectors & Rental Service, 400

F.2d 465, 471 (5th Cir. 1968) (noting that “[d]ismissal of a

claim on the basis of barebone pleadings is a precarious

disposition with a high mortality rate.”). The pleadings

must show, in short, that the Plaintiff has no claim before

the 12(b)(6) motion may be granted. It is against this

standard that we consider the pending motions to dis-

miss.

The standard to be applied in reviewing the out-

standing summary judgment motions is stated unam-

biguously in Rule 56(c) of the Federal Rules of Civil

Procedure:

The judgment sought shall be rendered forth-

with if the pleadings, depositions, answers to

interrogatories and admissions on file, together

with the affidavits, if any, show that there is no

genuine issue as to any material fact and that

the moving party is entitled to a judgment as a

matter of law.

It may be entered only where there is no genuine issue of

material fact. Moreover, the moving party has the burden

of meeting this exacting standard. Adickes v. S.H. Kress &

Co., 398 U.S. 144, 157 (1970).

2 In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981)(en banc), the Eleventh Circuit adopted as binding

precedent all decisions of the former Fifth Circuit handed down

prior to October 1, 1981.

App. 20

In applying this standard, the Eleventh Circuit has

explained:

In assessing whether the movant has met this

burden, the courts should view the evidence

and all factual inferences therefrom in the light

most favorable to the party opposing the

motion. Adickes, 398 U.S. at 157, 90 S. Ct. at 1608;

Marsh, 651 F.2d at 991. All reasonable doubts

about the facts should be resolved in favor of

the non-movant. Casey Enterprises v. Am. Hard-

ware Mutual Ins. Co., 655 F.2d 598, 602 (5th Cir.

1981). If the record presents factual issues, the

court must not decide them; it must deny the

motion and proceed to trial. Marsh, 651 F.2d at

991; Lighting Fixture & Elect. Supply Co. v. Conti-

neutal Ins. Co., 420 F.2d 1211, 1213 (5th Cir.

1969). Summary judgment may be inappropriate

even where the parties agree on the basic facts,

but disagree about the inferences that should be

drawn from these facts. Lighting Fixture & Elec.

Supply Co., 420 F.2d at 1213. If reasonable minds

might differ on the inferences arising from

undisputed facts, then the court should deny

summary judgment. Impossible Electronics, 669

F.2d at 1031; Croley v. Matson Navigation Co., 434

F.2d 73, 75 (Sth Cir. 1970).

Moreover, the party opposing a motion for

summary judgment need not respond to it with

any affidavits or other evidence unless and until

the movant has properly supported the motion

with sufficient evidence. Adickes v. S.H. Kress &

Co., 398 U.S. at 160, 90 S.Ct. at 1609-10; Marsh,

651 F.2d at 991. The moving party must demon-

strate that the facts underlying all the relevant

App. 21

legal questions raised by the pleadings or other-

wise are not in dispute, or else summary judg-

ment will be denied notwithstanding that the

non-moving party has introduced no evidence

whatsoever. Brunswick Corp. v. Vineberg, 370 F.2d

605, 611-12 (5th Cir. 1967). See Dalke v. Upjohn

Co., 555 F.2d 245, 248-49 (9th Cir. 1977).

Clemons v. Dougherty County, 684 F.2d 1365, 1368-69 (11th

Cir. 1982); see also Amey, Inc. v. Gulf Abstract & Title, Inc.,

758 F.2d 1486, 1502 (11th Cir. 1985), cert. denied, 475 U.S.

1107 (1986).

The United States Supreme Court has provided sig-

nificant additional guidance as to the evidentiary stan-

dard which trial courts should apply in ruling on a

motion for summary judgment:

[The summary judgment] standard mirrors the

standard for a directed verdict under Federal

Rule of Civil Procedure 50(a), which is that the

trial judge must direct a verdict if, under the

governing law, there can be but one reasonable

conclusion as to the verdict. Brady v. Southern R.

Co., 320 U.S. 476, 479-80, 64 S. Ct. 232, 234, 88 L.

Ed. 239 (1943).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

The Court in Anderson further stated that “[t]he mere

existence of a scintilla of evidence in support of the

position will be insufficient; there must be evidence on

which the jury could reasonably find for the [non-

movant].” Id. at 252. In determining whether this eviden-

tiary threshold has been met, the trial court “must view

the evidence presented through the prism of the substan-

tive evidentiary burden” applicable to the particular

cause of action before it. Id. at 254. If the non-movant in a

s

App. 22

summary judgment action fails to adduce evidence which

would be sufficient, when viewed in a light most favor-

able to the non-movant, to support a jury finding for the

non-movant, summary judgment may be granted. Id. at

254-55.

In another recent case, the Supreme Court has

declared that a non-moving party’s failure to prove an

essential element of a claim renders all factual disputes as

to that claim immaterial and requires the granting of

summary judgment:

In our view, the plain language of Rule 56(c)

mandates the entry of summary judgment

... against a party who fails to make a showing

sufficient to establish the existence of an ele-

ment essential to that party’s case, and on which

that party will bear the burden of proof at trial.

In such a situation, there can be “no genuine

issue as to any material fact,” since a complete

failure of proof concerning an essential element

of the nonmoving party’s case necessarily ren-

ders all other facts immaterial. The moving

party is “entitled to judgment as a matter of

law” because the nonmoving party has failed to

make a sufficient showing on an essential ele-

ment of her case with respect to which she has

the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)

(emphasis added). We measure the motions for summary

judgment against these standards.

App. 23

We first address Defendant Manpower’s motion to

dismiss the third amended complaint. This motion pro-

vides the vehicle for most of the Plaintiff's arguments

concerning the existence of the duties that, he contends,

were owed to him by the cargo handlers and carriers who

came in contact with the sixth shipment of carnations.

Manpower has moved to dismiss the complaint for

failure to state a claim under Fed. R. Civ. P. 12(b) (6).

Manpower is a Delaware corporation that provides cer-

tain cargo handling services. According to the complaint,

Manpower and Lufthansa had executed a contract that

required Manpower to provide cargo handling personnel

to Lufthansa at Lufthansa’s cargo warehouse at Miami

International Airport (“MIA”). The Plaintiff alleges that

the shipment later found to contain cocaine remained at

Lufthansa’s storage facility for 2'/2 hours on April 16,

1992, during which time Manpower employees

“arranged” the boxes constituting the shipment on a pal-

let covered by an open net, in preparation for loading the

cargo onto a Lufthansa aircraft. The Plaintiff insists that

Manpower (along with the other Defendants) “owed to

Papapanos a duty to use a high degree of care to prevent

3 Manpower has filed a motion to strike the Plaintiff’s

memorandum of law in opposition to its motion to dismiss. As

grounds for this motion, Manpower points out that the

memorandum of law, filed October 30, 1995, is thirty (30) pages

in length. Under S.D. Fla. L.R. 7.1(c)(2), memoranda of law are

not to exceed twenty (20) pages without leave of court. The

Plaintiff counters that he was unable to address the contentions

in Manpower’s motion without exceeding the page limit of

Local Rule 7.1. In the interest of resolving this case on the

merits, we will consider the arguments raised in Papapanos’

response and deny the motion to strike.

App. 24

the [shipment] from arriving in Athens, Greece with ille-

gal drugs, including cocaine.” The Plaintiff maintains that

Manpower breached its duty of care by failing to detect

or remove the cocaine. See Third Amended Complaint, at

W1 30-31.

Manpower raises several arguments in support of its

motion to dismiss. First, it asserts that the Plaintiff has

failed to allege that the shipment contained cocaine at the

time the boxes were in the possession of Manpower

employees. Second, it argues that the Plaintiff has failed

to allege the elements of negligence under Florida law.

Third, it maintains that the Plaintiff’s cause of action is

barred by the Warsaw Convention’s two year statute of

limitations. The instant motion can be resolved on the

threshold question of whether Manpower owed Papa-

panos a duty to detect or remove the cocaine while the

shipment was under its control at Lufthansa’s cargo

warehouse.

To state a cause of action for negligence under Flor-

ida law, the plaintiff first must establish that the defen-

dant owed him a legal duty of care. Coker v. Wal-Mart

Stores, 642 So. 2d 774, 776 (Fla. 1st Dist. Ct. App. 1994),

rev. denied, 651 So. 2d 1197 (Fla. 1995). In McCain v. Florida

Power Corp., 593 So. 2d 500, 503 n.2 (Fla. 1992), the Florida

Supreme Court recognized that a legal duty can arise

from several sources, including the relationship of the

parties, legislative enactments or the general facts of the

case.* The existence of a duty is a question of law to be

4 Papapanos does not allege that Manpower or any of the

other Defendants had a contractual or other “special

App. 25

decided by the court, rather than question of fact to be

reserved for a jury. Id. at 502; see also Braun v. Soldier of

Fortune Magazine, 968 F.2d 1110, 1114 (11th Cir. 1992)

(Georgia law), cert. denied, 506 U.S. 1071 (1993).

Papapanos alleges that federal statutes regulating the

import and export of controlled substances created a duty

on the part of Manpower to detect or remove the cocaine

during the 2'/2 hours that the shipment was under its

control at the Lufthansa warehouse. Nothing in the text

or legislative history of these statutes can be read to

evince a Congressional intent to create a private civil

cause of action based on a defendant’s unwitting facilita-

tion of a drug trafficking offense. Florida courts have

acknowledged, however, that, under certain facts and

circumstances, a statute can impose a common law duty

where the statute requires someone in the position of the

defendant to take precautions to protect a particular class

of persons from a particular injury or type of injury. Rex

Utilities, Inc. v. Gaddy, 413 So. 2d 1232, 1233 (Fla. 3d Dist.

Ct. App. 1982) (citing DeJesus v. Seaboard Coast Line R.R.

Co., 281 So. 2d 198, 201 (Fla. 1973)), rev. denied, 422 So. 2d

843 (Fla. 1983); see also Palmer v. Shearson Lehman Hutton,

Inc., 622 So. 2d 1085, 1090 (Fla. 1st Dist. Ct. App. 1993);

Brooks v. Southern Bell Tel. & Tele. Co., 399 So. 2d 1, 3 (Fla.

4th Dist. Ct. App. 1981), rev. denied, 412 So. 2d 463 (Fla.

1982).

relationship” with him, such that they had a duty to control or

warn of tortious or criminal conduct by third parties that might

have placed the Plaintiff in danger. See Palmer, 622 So. 2d at

1089.

App. 26

The Plaintiff insists that he is in the class of persons

that Congress intended to protect when it passed various

laws proscribing the international trafficking of illegal

drugs. To be specific, the Plaintiff pinpoints 21 U.S.C.

§§ 891 and 951-955. Section 951, in pertinent part, defines

the terms “import” and “customs territory.” Section 952

proscribes the importation of narcotics and controlled

substances in these terms:

It shall be unlawful to import into the customs

territory of the United States from any place

outside thereof (but within the United States), or

to import into the United States from any place

outside thereof, any controlled substance in

schedule I or II of subchapter I of this chapter,

or any narcotic drug in schedule III, IV or V of

subchapter I of this chapter... . ”

21 U.S.C. § 952(a). Section 953 provides in pertinent part

that “[i]t shall be unlawful to export from the United

States any narcotic drug in schedule I, II, II, or IV.”

Section 954 provides in pertinent part that:

Notwithstanding sections 952, 953 and 957 of

this title —

(1) A controlled substance in schedule I may

(A) be imported into the United States for

transshipment to another country, or

(B) be transferred or transshipped from

one vessel, vehicle or aircraft to another

vessel, vehicle or aircraft within the United

States for immediate exportation,

if and only if it is so imported, transferred or

transhipped (I) for scientific, medical or other

App. 27

legitimate purposes in the country of destina-

tion, and (ii) with the prior written approval of

the Attorney General... .

Id. at § 954(1). Section 955 provides:

It shall be unlawful for any person to bring or

possess on board any vessel or aircraft, or on

board any vehicle or carrier, arriving in or

departing from the United States or the customs

territory of the United States, a controlled sub-

stance in schedule I or II or a narcotic drug in

schedule III or IV, unless such substance or drug

is a part of the cargo entered in the manifest or

part of the official supplies of the vessel, aircraft

or vehicle.

Id. at § 955. Finally, section 881 allows for forfeiture of

“{ajll conveyances, including aircraft, vehicles, or vessels,

which are used, or are intended for use, to transport, or

in any manner facilitate the transportation, sale, receipt,

possession or concealment of [certain controlled sub-

stances or raw materials].” Id. at § 881(a)(4).

Papapanos never identifies quite how these statutes

create the duties that he seeks to impose on Manpower.

Indeed, he is unable to cite a single case for the proposi-

tion that these general laws outlawing the importation

and exportation of narcotics and controlled substances

can be construed to create or support a private civil cause

of action for common law negligence. He nevertheless

maintains that “Papapanos, as a citizen of Greece and the

Managing Director of Florimex Athens, Ltd., was a mem-

ber of the class of persons which Congress sought to

protect from the dangers and evils of narcotics when it

enacted 21 U.S.C. §§ 891 and 951-955.” P’tiff. Resp., at 16.

In the most generous sense, of course, the Plaintiff is

App. 28

correct. When Congress enacted laws criminalizing the

import and export of illegal drugs, it did so in order to

protect the public at large from the harmful and destruc-

tive effects of the use and trafficking of controlled sub-

stances. It does not follow, however, that the Florida

courts would construe national legislative enactments to

create an affirmative, common law obligation on the part

of Manpower or other air cargo handlers or carriers to

ferret out illegal drugs contained in the cargo that passes

through their control.

For a statute to give rise to a common law duty, the

codification in question must be one that clearly and

unmistakably proscribes certain discrete acts by an

expressly identified person or class of persons in order to

regulate a specific, foreseeable type of injury. When a

statutory framework is directed toward a narrow class of

persons and imposes sharp strictures on the conduct of

those persons, it may form the basis for a common law

cause of action against a member of the class of persons

being regulated. By contrast, when the statute sweeps

more broadly, and prohibits a variety of conduct by a

variety of persons, the foundation for a common law duty

is more tenuous.

The cases that Papapanos cites in support of his

. position illustrate the marked difference between the nar-

cotics statutes that he references in his Response and

more targeted regulations that can give rise to common

law obligations. In Decker v. Gibson Prods. Co., 679 F. 2d

212 (11th Cir. 1982), for example, the children and mother

of a shooting victim brought a negligence action against a

gun seller. The plaintiffs aileged that the weapon used in

App. 29

the incident had been sold to the shooter by the defen-

dant in violation of 18 U.S.C. § 922(d) (1), which provides

in pertinent part:

(d) It shall be unlawful for any licensed manu-

facturer, licensed dealer or licensed collector to

sell or otherwise dispose of any firearm or

ammunition to any person knowing or having

reasonable cause to believe that such person -

(1) is under indictment for, or has been

convicted in any court of, a crime punish-

able by imprisonment for a term exceeding

one year.

679 F.2d at 214 n.2. On the basis of this statute, the

plaintiffs argued that the defendant, a licensed firearms

dealer, owed them a common law duty to refrain from

knowingly selling firearms to the shooter. The district

court granted summary judgment in favor of the defen-

dant, finding that the statute did not create an implied

private right of action. On appeal, however, the Eleventh

Circuit reversed and remanded. The Court of Appeals

concluded that the district court overlooked the plaintiffs’

argument that they sought relief on a theory of negli-

gence, rather than directly under the statute. Judge

Roney, writing for the panel, explained that “[t]o deter-

mine whether the statute is an appropriate standard of

due care, courts examine the purpose of the statute to

ascertain the harm it was intended to guard against and

the persons it was intended to protect.” Id. at 214. Apply-

ing this standard, the court acknowledged that, under

Georgia law, section 922(d)(1) could give rise to a common

law duty of care. Id. at 215. Subsequent courts have

agreed with Decker’s analysis of the common law implications

App. 30

of section 922. See, e.g., King v. Story’s, Inc., 54 F.3d 696, 697

(11th Cir. 1995); K-Mart Enterprises of Florida, Inc. v. Keller,

439 So. 2d 283, 286-87 (Fla. 3d Dist. Ct. App. 1983), rev.

denied, 450 So. 2d 487 (Fla. 1984).

Lifter v. Varnado, 480 So. 2d 1336, 1338 (Fla. 3d Dist.

Ct. App. 1985), rev. dismissed, 484 So. 2d 7 (Fla. 1986) is

also illustrative. In that case, the tenants of a leased house

brought a negligence action against their landlord for

personal injuries sustained by a child living with them.

The injuries stemmed from a collision between the child

and his grandmother, who was carrying a pot of boiling

water. The grandmother was carrying the water to the

bathroom because, at the time of accident, the hot water

heater at the house had been inoperable for three days.

The trial court entered a judgment in favor of the plain-

tiffs. On appeal, the defendant argued, inter alia, that

various local ordinances creating minimum housing stan-

dards could not be used to create a common law duty on

the part of landlords to supply hot water. The Third

District Court of Appeal rejected this argument:

[W]e affirm the trial court’s implicit finding that

the minimum housing standards set forth in

section 17-23, Metropolitan Dade County Code

imposed a duty upon the landlord to provide

hot running water in every basin, bathtub or

shower. Although the question whether a plain-

tiff is within the class which the ordinance was

intended to protect is a question of fact, it can-

not be disputed here that plaintiffs, as tenants,

were within the protected class.

Id. at 1338 (citing DeJesus).

——ee

App. 31

Sections 918 and 951-55 of the United States Code

plainly are different from the gun sale statute in Decker or

the landlord regulation in Lifter. Among other things,

these provisions (1) are not tailored to the narrow class of

persons of which the Defendants are members; (2) are not

focused on the discrete acts in which the Defendants

engaged; and (3) were not devised to prevent harm to a

foreign national in the position of the Plaintiff. Rather,

these general statutes were drafted at a much higher

order of abstraction. Papapanos’ argument would be

more plausible if the language and intent of the statutes

on which he relies were similar to the narrow, targeted

provisions at issue in Decker and Lifter. The mere fact that

Congress (in the broadest sense) intended to eradicate the

harmful effects of drug trafficking when it passed sec-

tions 918 and 951-55 does not provide support for the

proposition that the Florida common law must or does

supplement the criminal law by imposing a sweeping

duty of care on a potentially limitless group of persons

associated with the air cargo industry who might be in a

position to obstruct drug trafficking offenses and thereby

prevent harm to innocent third parties. Accordingly, we

are not convinced that the federal statutes on which

Papapanos bases his argument are sufficiently narrow to

support a cause of action for negligence, at least under

the unique facts and circumstances of this case. Notably,

we can find no Florida case recognizing so sweeping a

duty of care based on the national sovereign’s proscrip-

tion of narcotics.

In the alternative, Papapanos asserts that a common

law duty arises from the particular conduct alleged in

this case. Specifically, the Plaintiff maintains that the acts

App. 32

of Manpower (storing the shipment and arranging the

boxes on a pallet during a 2'/2 hour period) created a

duty to detect or remove any illegal drugs from the

shipment. In McCain, the Florida Supreme Court offered

the following analysis:

The duty element of negligence focuses on

whether the defendant’s conduct foreseeably

created a broader “zone of risk” that poses a

general threat of harm to others. . . . Florida, like

other jurisdictions, recognizes that a legal duty

will arise whenever a human endeavor creates a

generalized and foreseeable risk of harming

others. As we have stated, “[w]jhere a defen-

dant’s conduct creates a foreseeable zone of risk,

the law generally will recognize a duty placed

upon defendant either to lessen the risk or see

that sufficient precautions are taken to protect

others from the harm that the risk poses.”

593 So. 2d at 503 (citations omitted) (emphasis added);

See, e.g., Pate v. Threlkel, 661 So. 2d 278, 281 (Fla. 1995)

(holding that a physician had duty to inform his patient

that her condition might be transferrable to her children).

The McCain court added the following gloss to its test:

[A]s the risk grows greater, so does the duty,

because the risk to be perceived defines the duty

that must be undertaken. The statute books and

case law, in other words, are not required to

catalog and expressly proscribe every conceiv-

able risk in order for it to give risk to a duty of

care. Rather, each defendant who creates a risk

is required to exercise prudent foresight when-

ever others may be injured as a result. This

requirement of reasonable, general foresight is

the core of the duty element.

App. 33

593 So. 2d at 503. As this passage makes clear, Florida law

does not recognize a “general duty one owes to all the

world not to subject them to [harm].” Braun, 968 F.2d at

1114 (summarizing Georgia law). Rather, in order to

define the scope of a defendant’s duty, the Court must

focus on the twin concepts of reasonableness and fore-

seeability.

In the case at bar, Papapanos asserts, again without

detailed explication, that he “is within the ‘foreseeable

zone of risk’ created by the activities of Manpower and

the other defendants.” P’tiff. Resp., at 16. At no point,

however, does the Plaintiff attempt to identify the “zone

of risk” implicated by Manpower’s conduct. To the extent

that zone of risk is a function of physical proximity, of

course, Papapanos unquestionably falls outside that zone.

Nevertheless, we read the Plaintiff's argument to suggest

that a reasonable “zone of risk” in this context would

encompass all those who came in direct or indirect con-

tact with the sixth shipment after Manpower exercised

control over it. We do not believe, however, that the

limited tasks that Manpower undertook - arranging the

shipment of flowers for further transportation and stor-

ing the cargo for a brief period of time - in and of

themselves reasonably gave rise to a danger that an indi-

vidual in another country would be injured as a result of

the presence of drugs in the cargo. Cf. McCain, 593 So. 2d

at 503. Put another way, we are not persuaded that a

Florida court would, on the basis of Manpower’s activ-

ities at Miami International Airport, extend the reason-

able, foreseeable zone of risk arising from its conduct to

encompass someone in the position of Papapanos.

App. 34

We pause at this juncture to emphasize that our

analysis of the Plaintiff's arguments for a duty of care

must be guided by reference to Florida law and the

decisions of the Supreme Court of Florida. See Geary

Distributing Co. v. All Brand Importers, Inc., 931 F.2d 1431,

1434 (11th Cir. 1991), cert. denied, 112 S. Ct. 971 (1992);

Royal Health Care Services, Inc. v. Jefferson-Pilot Life Ins. Co.,

924 F.2d 215, 216 (1991). Where the Supreme Court of

Florida has not addressed a particular issue, we are

bound by decisions of the Florida district courts of appeal

that address the disputed question, unless there is an

indication that the Supreme Court might not adhere to

the district court’s decision. See Maseda v. Honda Motor

Co., 861 F.2d 1248, 1257 n.14 (11th Cir. 1988). Papapanos

has cited no case law from the Florida courts holding or

even suggesting that the limited “zone of risk” concept

recognized in McCain can be stretched to encompass the

facts of this lawsuit.

It is significant that the Plaintiff does not base his

negligence argument on Manpower’s ownership of the

carnations, or its careless supervision of the flowers while

the shipment was under its watch.> Rather, Papapanos

contends that Manpower and its co-Defendants had an

obligation to inspect for contraband in each item of cargo

arriving from Colombia and/or passing through Miami —

over and above the inspections of customs officials.

According to the Plaintiff, “Manpower’s employees were

engaged in the exportation and transshipment of cargo

5 Indeed, the complaint does not contain a single allegation

concerning where or how the cocaine might have found its way

into the carnations.

App. 35

which had originated in a country known as a source of

cocaine (Colombia) and was clearly so marked.” P’tiff.

Resp., at 15-16. Moreover, Papapanos explains, Man-

power employees “were working in a metropolitan area

known as a cocaine distribution center (Miami).” Id. at 16.

In essence, therefore, the Plaintiff is asking this Court to

find that Florida law imposes on all individuals or enti-

ties at Miami International Airport who are involved with

the transport, storage or shipment of cargo originating in

Colombia, an affirmative obligation owed to all persons

(regardless of nationality or country of residence) to

inspect bonded, sealed cargo for controlled substances

and remove these substances before the cargo reaches its

ultimate destination. Nothing in Florida law can be read

to support so expansive an application of the concept of

negligence, and the Plaintiff has cited no cases from ‘this

jurisdiction or elsewhere that impose such elaborate

responsibilities on a defendant in the position of Man-

power, which (like its co-Defendants) never represented

or undertook to insure that the cargo it came in contact

with would be free from hidden contraband upon arrival

at the eventual destination.® We are not prepared to find,

without meaningful precedent from the Florida courts, so

sweeping a duty of care on the part of air cargo handlers

© Several of the cases cited by the Plaintiff in support of his

argument discuss foreseeable risk in the context of proximate

cause rather than duty. See Coker, 642 So. 2d 774, 776-778; Tieder

v. Little, 502 So.2d 923, 925 (Fla. 3d Dist. Ct. App. 1987), rev.

denied, 511 So. 2d 298 (Fla. 1988). In McCain, the Florida

Supreme Court confirmed that the foreseeability analysis for

purposes of determining the existence of a duty is altogether

different from the analysis for purposes of causation. 593 So. 2d

at 503.

App. 36

or carriers, particularly on this record and in this context,

where the victim is a foreign national who was jailed by a

foreign sovereign on foreign soil. For the foregoing rea-

sons, Papapanos cannot establish one of the basic prereq- i

uisites to a cause of action for negligence. As a result,

Manpower’s motion to dismiss must be granted.”

Cc.

Dispatch Services (“Dispatch”) has filed a motion for

summary judgment against the Plaintiff. Dispatch is a

Florida corporation that provides ground handling ser-

vices to airlines at MIA. According to the complaint,

Dispatch employees loaded the shipment later found to

contain cocaine onto the Lufthansa aircraft, after it had

been placed alongside the plane by employees of another

Defendant (Cargolux). The Plaintiff insists that Dispatch,

like its fellow Defendants, “owed to Papapanos a duty to

use a high degree of care to prevent the [shipment] from

arriving in Athens, Greece with illegal drugs, including

cocaine.” The Plaintiff maintains that Dispatch breached

its duty of care by failing to detect or remove the cocaine.

See Third Amended Complaint, at {{ 30-31.

This Court referred Dispatch’s motion to United

States Magistrate Judge Stephen T. Brown for a report

7 The Plaintiff asserts that, under the doctrine of res ipsa

loquitur, he is entitled to an inference that the cocaine was in the

box of carnations when it was in Manpower’s possession. P’ tiff.

Resp., at 2. See Marrero v. Goldsmith, 486 So. 2d 530, 531 (Fla.

1986). However, although res ipsa loquitur can be used to

eliminate a plaintiff's need to produce direct evidence of a

breach of duty, the doctrine presupposes the existence of a duty

that the defendant is alleged to have breached.

——e

App. 37

and recommendation. After reviewing the parties’ briefs,

Magistrate Judge Brown issued his report on November

8, 1995, recommending that Dispatch’s motion be

granted. The Magistrate Judge reasoned that the Plaintiff

could not establish a genuine issue of material fact as to

whether Dispatch Services owed him a duty to detect and

remove any illegal drugs in the shipment of carnations.

Papapanos filed his objections to the report and recom-

mendation on November 14, 1995.

As a starting point, we observe that the form of the

Plaintiff’s objections do not comply with the federal and

local rules of procedure. Rule 4 of the Magistrate Judge

Rules of this District states that written objections “shall

specifically identify the portions of the proposed find-

ings, recommendations or report to which objection is

made, the specific basis for such objections and support-

ing legal »uthority.” This provision tracks the language of

28 U.S.C. §636(b)(1), which explains that the district judge

“shall make a de novo determination of those portions of

the report or specified proposed findings or recommen-

dations to which objection is made.” The purpose of these

guidelines is to ensure that the effect of the Magistrate

Judge’s report is to focus the district court’s attention,

and streamline the issues and arguments at the heart of

the parties’ dispute, thus improving judicial efficiency

and avoiding unnecessary duplication of effort. See

Thomas v. Arn, 474 U.S. 140, 147 (1985). Papapanos’ objec-

tions make no reference to Magistrate Judge Brown’s

findings. Instead, it appears that the Plaintiff has taken

his response to Manpower’s motion to dismiss and pre-

sented it as his “objections” to the report and recommen-

dation.

App. 38

Exacerbating the problem is the fact that these objec-

tions present new arguments and case citations appar-

ently never argued before the Magistrate Judge, despite

the fact that most, if not all, of the case law that the

Plaintiff now identifies existed at the time of his initial

response to Dispatch’s motion.’ Although in reviewing a

Report and Recommendation a district court “may

receive further evidence,” 28 U.S.C. §636(b)(1), courts in

other jurisdictions have noted that the decision of a Mag-

istrate Judge “should not be disturbed on the basis of

arguments not presented to him.” See Mitchell v. Consoli-

dated Freightways Corp., 747 F. Supp. 1446, 1447 (M.D. Fla.

1990); see also Anna Ready Mix, Inc. v. N.E. Pierson Con-

struction Co., 747 F. Supp. 1299, 1302-03 (S.D. Ill. 1990).

These courts have observed that “[t]his rule is based

8 In his original response to the motion, for example,

Papapanos never suggested that federal drug trafficking

statutes might create a duty of care under the facts of this case.

Papapanos’ objections also ignore the Magistrate Judge’s

discussion of the “zone of foreseeable risk” principle as it

applies to these facts. Instead, they simply revisit the question

with additional case law.

On October 30, 1995, Papapanos filed a “Notice of the

Applicability of the Arguments Advanced in his Memorandum

of Law in Opposition to the Motion of Defendant [Manpower]”

to the motions to dismiss and/or for summary judgment filed

by Dispatch Services and the other Defendants in this case.

Plaintiff’s “Notice” was filed less than a week before Magistrate

Judge Brown issued his report on the pending motions, and four

to six months after Papapanos filed his initial responses to these

motions. Defendant Florida West Gateway promptly filed a

motion to strike the Notice, pointing out that the Plaintiff's

submission had no basis in the local or federal Rules, was filed

without leave of court and violated Local Rule 7.1. Papapanos

never responded to this motion.

a Se re

App. 39

upon the same concept which prevents parties from argu-

ing in the appellate courts issues and arguments not

raised below.” Jesselson v. Outlet Assoc., 784 F. Supp. 1223,

1228 (E.D. Va. 1991). Indeed, the United States Court of

Appeals for the Eleventh Circuit has noted that “[flailure

to raise an issue, objection or theory of relief in the first

instance to the trial court generally is fatal.” Denis v.

Liberty Mutual Ins. Co., 791 F.2d 846, 848-49 (11th Cir.

1986). The teaching of these authorities is that this Court

should be reluctant to address matters that were not

presented nor considered by the Magistrate Judge. As the

Jesselson court observed:

[T]he purpose of the Magistrates Act is to allow

magistrates to assume some of the burden

imposed in the district courts and to relieve

courts of unnecessary work. Park Motor Mart,

Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.

1980); Chamblee v. Schweiker, 518 F. Supp. 519,

520 (N.D. Ga. 1981). Allowing [a party] to pre-

sent their case to the Magistrate, and then,

because they were unsuccessful, present new

issues and arguments to this Court frustrates

this purpose. The Magistrates Act was not

intended to “give litigants an opportunity to run

one version of their case past the magistrate,

then another past the district court.” Greenhow v.

Secretary of Health and Human Servs., 863 F.2d

633, 638 (9th Cir. 1988). Plaintiffs have not raised

any claim of exceptional circumstances to justify

or excuse their failure to make these arguments

before the magistrate.

784 F. Supp. at 1228-29. Nevertheless, since the case law

and issues raised in the Plaintiff’s objections are before

the Court upon Manpower’s motion to dismiss, we are

App. 40

reluctant to accept the Magistrate Judge’s ultimate recom-

mendation of dismissal for the sole reason that Papa-

panos has based his objection on arguments never raised

before the Magistrate. Without objection, however, we

will adopt Magistrate Judge Brown’s report to the extent

that it addresses the case law and arguments Plaintiff

raised in his original response to Dispatch’s motion. At

all events, we agree with the Magistrate Judge’s analysis

of Florida law and his ultimate finding that the cases

cited by the Plaintiff do not establish the common law

duties that he seeks to impose in this lawsuit.

For the reasons outlined in reference to Manpower’s

motion to dismiss, the legal theories posited in Papa-

panos’ objections are insufficient to establish a basis for

his negligence action. Dispatch’s involvement with the

shipment of carnations at Miami International Airport

was far too limited and remote to bring Papapanos, a

Greek national, within the reasonable zone of risk attribu-

table to its conduct. Accordingly, Dispatch Services’

motion for summary judgment must be granted.

D.

Defendants Union Transport, Cold Transfer, Miami

Express and Regal Air Freight have filed motions to

dismiss, asserting that Papapanos has failed to establish

the existence of a legally cognizable duty under the facts

and circumstances of this case. According to the com-

plaint, all of these Defendants had some brief contact

with the shipment eventually found to contain cocaine.

Union Transport personnel received the carnations on

consignment from Colombian growers in Bogota, and

App. 41

delivered the flowers to a cold storage facility at Bogota

Airport to await air transport to Miami. Regal Air Freight

unloaded the shipment when it arrived in Miami. Cold

Transfer monitored the shipment for three hours after its

unloading, in the midst of which the shipment was

placed on a conveyor belt that ran beneath an x-ray

machine. Cold Transfer employees then loaded the ship-

ment onto a truck operated by Miami Express, which

delivered the boxes to the Lufthansa cargo warehouse.

This Court referred all four of these motions to Mag-

istrate Judge Brown for a report and recommendation. On

November 8, 1995, the Magistrate Judge issued a single

report, recommending that the motions be granted. Once

again, Papapanos’ objection does not refer to Magistrate

Judge Brown’s report, and constitutes a mirror image of

his response to Manpower’s motion to dismiss. For the

reasons highlighted in our discussion of Dispatch Ser-

vices’ motion, we will adopt the Magistrate Judge’s

report on both procedural and substantive grounds. We

do not believe that, in light of the limited participation of

these Defendants in the transportation of the carnations

from Bogota to Miami, a Florida court would conclude

that the reasonable “zone of risk” extended to Papapanos,

or that these cargo handlers were responsible for opening

and inspecting the shipment in order to detect and

remove hidden contraband. Thus, the motions to dismiss

filed on behalf of Union Transport, Cold Transfer, Miami

Express and Regal Air Freight must be granted.

App. 42

E.

Defendant Cargolux has moved for summary judg-

ment. According to the complaint, Cargolux came in con-

tact with the shipment eventually found to contain

cocaine when it transported the boxes from the Lufthansa

warehouse, where it had been under the aegis of Man-

power employees, to the Lufthansa airplane, where it was

then loaded by employees of Dispatch Services. This

Court referred Cargolux’s motion to Magistrate Judge

Brown. In a report issued November 8, 1995, the Magis-

trate Judge recommended that the motion be granted,

after finding that no genuine issue of material fact

remained as to whether Cargolux owed Papapanos a duty

to detect and remove illegal drugs from the shipment.

Once again, the Plaintiff’s objection is a reiteration of his

response to Manpower’s motion to dismiss. For reasons

already discussed, the Magistrate Judge’s Report and

Recommendation is adopted as to Cargolux on pro-

cedural and substantive grounds. We can find no basis

under Florida law to hold that Cargolux’s limited partici-

pation in the transportation of the flowers from Bogota to

Athens was sufficient to bring Papapanos within the rea-

sonable zone of danger attributable to Cargolux’s con-

duct.

F.

Florida West has moved for summary judgment

against Papapanos, based in part on the Plaintiff’s inabil-

ity to establish that Florida West owed him a duty to

open and inspect the shipment for illegal drugs and

remove them before their arrival in Athens. Lufthansa

Ce a i tate ai, P

App. 43

also has moved for summary judgment on the same

grounds. The complaint alleges that Florida West flew the

shipment of carnations from Bogota to Miami, while

Lufthansa flew the shipment from Miami to Athens via

Frankfurt.?

The Plaintiff's arguments as to these air carrier

Defendants are identical to those he makes with regard to

the cargo handler Defendants. In essence, Papapanos

argues that Florida West and Lufthansa had a common

law obligation rooted in Florida law to insure that pack-

ages from Colombia or Miami would not be used to

transport hidden contraband. We do not agree. According

to Papapanos, however, Florida West and Lufthansa, as

air Cargo carriers, are in a somewhat different position

than the other Defendants. Papapanos suggests that these

carriers were on notice of international smuggling inci-

dents aboard their flights, and had adopted internal pro-

cedures and agreements with customs officials in an

effort to combat this problem. The Plaintiff does not

suggest that Lufthansa or Florida West breached these

internal procedures or violated the customs agreements

(let alone that the Defendants breached specific provi-

sions in these agreements or regulations that required

them to open and/or inspect sealed cargo in order to

? The Court referred both of these motions to Magistrate

Judge Brown for a report and recommendation. The Magistrate

Judge recommended that both motions be denied without

prejudice, pending a ruling on the Plaintiff’s motion for leave to

file a fourth amended complaint. None of the parties filed

objections to this recommendation. Nevertheless, we will take

up the merits of the Defendants’ motions.

App. 44

ferret out contraband).!° Rather, Papapanos suggests that

the prior smuggling incidents - coupled with the various

agreements and internal rules — underscore these Defen-

dants’ awareness of a drug trafficking problem on their

flights. This awareness, according to Papapanos, was suf-

ficient to trigger certain duties to innocent third parties.'!

10 For this reason, the logic of Couzado v. United States, 883

F. Supp. 691 (S.D. Fla. 1995) is inapposite. In Couzado, another

court in this District upheld a jury verdict of negligence against

the United States, based on a finding that government agents

failed to comply with certain administrative and Executive

guidelines specifically regulating the conduct of controlled

narcotics delivery flights passing through foreign countries. In

the case at bar, Papapanos never argues, and presents no

evidence to suggest that Lufthansa or Florida West breached

specific rules or regulations that unequivocally required them to

undertake the inspections that he would have them perform in

order to ferret out cocaine.

11 We note that the Plaintiff has moved to defer ruling on

the motions of Florida West and Lufthansa, in order to allow

him additional time to take depositions and attempt to lay a

documentary foundation for his argument that these

Defendants were aware of a smuggling problem on flights to

and/or from Miami and/or Columbia. See P’tiff. Mot. for

Continuance of Hearing on Lufthansa Mot. for Summary

J‘ment, November 8, 1995 (seeking postponement because

certain materials “may cast light upon the existence and scope of

Lufthansa’s duty of care) (emphasis added). Papapanos cannot

suggest, however, that he has been denied a meaningful

opportunity to conduct discovery. Cf. Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986) (noting that Fed. R. Civ. P. 56(c)

contemplates the entry of summary judgment “after an

adequate time for discovery”). The majority of the discovery

that Papapanos seeks to take is new, even though the formal

discovery period closed on October 31, 1995 and none of the

parties have moved for an extension. Papapanos cites no case

law indicating that Rule 56(f) requires a court to postpone

App. 45

We are unconvinced. The fact that Florida West and

Lufthansa were aware of drug smuggling on air cargo

flights originating in Colombia and/or passing through

Miami - or were familiar with the efforts of customs

officials worldwide to combat the importation of contra-

band in shipments of flowers - does not mean that these

air carriers were required to duplicate the efforts of cus-

toms agents and detect the presence of illegal drugs

hidden in bonded, sealed cargo in order to prevent harm

to someone in the position of the Plaintiff (a Greek citizen

whose only connection to the tainted cargo was in his

capacity as managing director of the cargo’s intended

recipient). Nothing in the law of Florida supports the

imposition of so expansive a duty of care, which would

substantially increase costs in the air cargo business and

create additional delays in an industry that thrives on its

ability to ensure the prompt delivery of perishable items

like flowers. This is not a case where, for example, an air

carrier, although put on notice that a specific package on

a specific flight contained drugs, nevertheless failed to

take precautions to prevent the cargo from arriving at its

ultimate destination with the narcotics still in place.

Indeed, Papapanos never suggests that Lufthansa or Flor-

ida West had any knowledge that cocaine might have

resolution of a summary judgment motion until the Plaintiff has

obtained all evidence conceivably bearing on his claim, even if

that evidence is sought after the close of discovery and after the

motions have been pending for months. At all events, the

existence of a duty is a question of law, and mere awareness of a

smuggling problem does not, under Florida law, establish that

air cargo carriers in the position of Florida West or Lufthansa

are required to ferret out drugs in order to prevent harm to

individuals in the position of Papapanos.

App. 46

been hidden in one of the shipments of carnations en

route to Florimex Athens. To summarize, therefore, evi-

dence that Lufthansa or Florida West anticipated the pos-

sibility of smuggling on their cargo flights does not,

under these facts and circumstances, support the obliga-

tions that Papapanos seeks to impose in the instant case.

G.

Lufthansa has moved for summary judgment on

Count II of the Plaintiff’s third amended complaint,

which seeks relief for intentional infliction of emotional

distress. Lufthansa raises several arguments for summary

judgment, among them that the conduct alleged does not

rise to the level of outrageousness required under Florida

law.1* We agree that, as a matter of law, Lufthansa’s

conduct is not so shocking or offensive that Papapanos is

entitled to proceed with his claim.

In his third amended complaint, Papapanos makes

the following allegations:

37. Following Papapanos’ arrest and confine-

ment to the Korydallos prison, his criminal

12 Lufthansa asserts that its unwillingness to provide the

letter did not cause Papapanos to suffer the alleged distress;

rather, the Plaintiff’s distress was the product of his

imprisonment by Greek authorities, who may or may not have

released him upon receipt of the letter. Moreover, according to

Lufthansa, the Plaintiff cannot prove that Lufthansa “intended”

to cause the Plaintiff's distress when it refused to turn over the

letter (due to the undisputed fact that Lufthansa was never

apprised of the importance of the letter to Papapanos). Because

we find that, under Florida law, Lufthansa’s conduct was not

outrageous, we do not reach these additicnal arguments.

App. 47

defense lawyers decided to apply for his release

on bail pending his trial. Papapanos’ criminal

defense lawyers determined that such a bail

application would not succeed unless it was

supported by a letter from Lufthansa confirming

that it was battling the international smuggling

of illegal drugs in cargo shipments by parties

unrelated to shippers, freight forwarders and

consignees. Accordingly, Papapanos’ criminal

defense lawyers asked Florimex to intercede

with Lufthansa for the provision of such a letter.

Florimex, which was underwriting the cost of

Papapanos’ defense to the drug trafficking

charge against him, repeatedly asked Lufthansa

to provide Papapanos’ criminal defense lawyers

with such a letter to support Papapanos’ bail

application. Lufthansa initially indicated to Flo-

rimex that it would provide such a letter to

Papapanos’ criminal defense lawyers. However,

Lufthansa failed to provide Papapanos’ criminal

defense lawyers with such a letter and, after an

agonizing delay, advised Florimex that it would

not provide such a letter to Papapanos’ criminal

defense lawyers for fear of impairing its reputa-

tion with the government of the Greek republic.

Papapanos’ two (2) bail applications to the

Greek courts, unsupported by the Lufthansa let-

ter, were denied.

38. Lufthansa’s refusal to provide the

requested letter to Papapanos’ criminal defense

lawyers was so outrageous in character, and so

extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atro-

cious and utterly intolerable in a civilized com-

munity.

Third Amended Complaint, at {{ 37-38.

App. 48

The evidence establishes that Eberhardt Lehner, an

executive with Florimex Athens’ parent corporation,

asked Lufthansa to send to the Greek authorities a letter

describing Lufthansa’s awareness of the problem of drug

smuggling through international air cargo flights.

Lufthansa did not provide the letter. Lehner acknowl-

edged, however, that no Lufthansa representative ever

agreed to send a letter of this sort.

In Metropolitan Life Insurance Co. v. McCarson, 467 So.

2d 277 (Fla. 1985), the Florida Supreme Court recognized

the tort of intentional infliction of emotional distress, and

adopted the standard embodied in Section 46, Restate-

ment (Second) of Torts as the appropriate benchmark for

the cause of action. Id. at 278-79. The comment to section

46 adds the following familiar gloss to this definition:

Liability has been found only where the conduct

has been so outrageous in characte, and so

extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atro-

cious, and utterly intolerable in a civilized com-

munity. Generally, the case is one in which the

recitation of the facts to an average member of

the community would arouse his resentment

against the actor, and lead him to exclaim, “Out-

rageous!”

Metropolitan Life, 467 So. 2d at 278-79 (quoting Restate-

ment (Second) of Torts § 46 cmt. d (1965)). The question

of what constitutes outrageous conduct is judged by an

objective test. Id. Moreover, the issue is ordinarily one of

law to be resolved by the court, rather than a question of

fact to be resolved by a jury. Dependable Life Ins. Co. v.

Harris, 510 So. 2d 985, 988 (Fla. 5th Dist. Ct. App. 1987).

a il i i i

App. 49

We conclude that, under Florida law, Lufthansa’s

failure to provide the letter does not come close to repre-

senting the kind of extreme and outrageous conduct

needed to state a claim for intentional infliction of emo-

tional distress. See, e.g., Metropolitan Life, 467 So. 2d at 279

(citing Restatement (Second) of Torts § 46 for the proposi-

tion that “plaintiffs must necessarily be expected and

required to be hardened to . . . occasional acts that are

definitely inconsiderate and unkind”); Lay v. Roux Labora-

tories, Inc., 379 So. 2d 451, 452 (Fla. 1st Dist. Ct. App.

1980) (finding that the Defendant’s misconduct did not

rise to the level of atrociousness required for relief even

though it was “extremely reprehensible”). Papapanos

does not cite a single opinion where a Florida court has

allowed relief for this tort on facts similar to those in the

case at bar. Indeed, the lone case that Papapanos does cite

~ Vance v. Southern Bell Tel. & Tel. Co., 983 F.2d 1573 (11th

Cir. 1993), cert. denied, 115 S. Ct. 1110 (1995) — underscores

the restrictiveness with which Florida courts have inter-

preted the tort. In Vance, the Eleventh Circuit actually

upheld the district court’s rejection of the plaintiff's

claim, despite cataloguing a list of racially motivated

conduct that included verbal torment, acts of sabotage,

attempts to induce a nervous breakdown and “hanging a

rope noose over [plaintiff’s] work station.” Id. at 1574 n.2.

For the most part, Florida courts have limited relief

to situations where a special relationship exists between

the tortfeasor and a vulnerable plaintiff. In McAlpin v.

Sokolay, 596 So. 2d 1266, 1268-69 (Fla. 5th Dist. Ct. App.

1992), for example, the Fifth District allowed a claim for

emotional distress by a hospital patient who had been

verbally assaulted and threatened by a physician about a

App. 50

debt she owed to the physician’s friend. In Dominguez v.

Equitable Life Assurance Society, 438 So. 2d 58, 61-62 (Fla.

3d Dist. Ct. App. 1983), approved, 467 So. 2d 281 (Fla.

1985), the Third District Court of Appeal permitted a

cause of action for emotional distress where an insurer

falsely accused an injured insured of fabricating his

claim. And in Smith v. Telophase Nat'l Cremation Society,

Inc., 471 So. 2d 163, 166 (Fla. 2nd Dist. Ct. App. 1985), the

Second District Court of Appeal allowed a widow’s cause

of action after the defendant failed to dispose of her late

husband’s ashes in accordance with certain specific

instructions. In this case, there was no special relation-

ship whatsoever between Papapanos and Lufthansa,

except in the narrow sense that the Plaintiff was a man-

ager of a corporation that was to receive cargo arriving in

Athens aboard a Lufthansa flight.

Papapanos argues that Lufthansa was obligated to

provide the letter on the basis of representations it made

in an earlier letter dated April 28, 1992. In that letter,

Peter Ullmayer, Lufthansa’s Area Cargo Manager for

Florida and the Bahamas, wrote to Florimex Athens con-

cerning the events leading up to Papapanos’ arrest, and

concluded “[wje offer any cooperation you might need in

this case.” Third Amend. Compl., Exh. A. The Plaintiff

insists that this sentence “constituted Lufthansa’s volun-

tary, binding assumption of an enforceable duty to help

secure Papapanos’ release from confinement and exon-

eration from the drug trafficking charges which had been

leveled against him.” P’tiff. Resp. at 14. We do not agree

that this sentence can be read as an unambiguous, quasi-

contractual promise on the part of Lufthansa to provide

the disputed letter, and no evidence has been introduced

a

App. 51

to suggest that the parties interpreted it as such. The full

text of the letter places it in proper context:

Dear Sirs:

On April 21, 1992, we were informed that

drugs were found in a Florimex shipment

from Bogota via Miami to Athens. Unfor-

tunately, as the shipment was only in Miami

handed over to Lufthansa, we were not in

total control of the shipment.

As soon as we were informed, both

Lufthansa and the local forwarder, Union-

Transport, contacted the Miami Drug

Authorities to offer the utmost cooperation

in this case.

Knowing the Colombia and Miami are inter-

national drug centers, Lufthansa’s security

standards are very high.

As we have dealt with Florimex for many

years, they are one of our main clients, and

we can assure the reliability of this cus-

tomer. There have never been any compara-

ble cases.

We do hope, and we are sure, that the case

can be cleared soon, showing that there is

no link either to Florimex, Lufthansa, or the

involved forwarder.

We offer any cooperation you might need in

this case.

Id. Even if we assumed that the April 28th communica-

tion or other conduct created some form of contractual

obligation to Florimex Athens, Papapanos offers no case

law to support the proposition that a breach of contract

App. 52

must, of its own accord, support a tort action for inten-

tional infliction of emotional distress.

The Plaintiff further contends that Lufthansa did not

send the letter declaring its awareness of drug smuggling

problems on air cargo flights because Papapanos was a

Greek, rather than German, national. Lufthansa, however,

points out that it did not send the letter because it did not

want to jeopardize its relationship with the Greek Gov-

ernment, or improperly inject itself in the criminal pro-

ceedings against Papapanos. Whatever Lufthansa’s

reasons for refusing to send the letter, and regardless of

whether those reasons were justifiable or in bad faith, no

reasonable trier of fact could find that Lufthansa’s con-

duct, at least on this record and under these circum-

stances, rose to the level of outrageousness needed under

Florida law. For this reason, Lufthansa is entitled to sum-

mary judgment on Count II of the Plaintiff's complaint.

Il.

The Plaintiff has sought leave to file a fourth

amended complaint. Papapanos filed his initial complaint

in the Fall of 1994, and filed his first amended complaint

on January 18, 1995. At the status conference on Septem-

ber 21, 1995, the Court granted the Plaintiff's motion for

leave to file his third amended complaint.!* Defendant

Florida West has filed a memorandum in opposition to

the Plaintiff’s motion.

13 The Plaintiff had sought leave to file a second amended

complaint, but withdrew that request when it sought leave to

file the third amended complaint.

App. 53

According to Papapanos, the proposed fourth

amended complaint “(a) incorporates the substance of the

deposition testimony given by Messrs. Pappas and Cron-

nelly in this action; and (b) clarifies the juridical basis for

and the natures of the Defendants’ duties of care owing

to Papapanos.” P’tiff. Mot. for Leave, at 2. To be specific,

the proposed amended complaint alleges that both

Lufthansa and Florida West entered “Airline Initiative

Agreements” with the United States Customs Service that

required them to “implement stringent procedures for the

detection of narcotics, including cocaine, hidden aboard

its aircraft departing from Bogota, Colombia and arriving

in the United States.” Proposed Fourth Amend. Complt.

at 2-3. The proposed amended complaint also adds the

following new language to Count I, which alleges a cause

of action for negligence:

The Defendants were familiar with the efforts of

the United States Customs Service to combat the

importation, transshipment and exportation

through MIA, of illegal drugs, including

cocaine, hidden in shipments of flowers origi-

nating in Colombia. Under 21 U.S.C. 881 and

951-955, the Defendants owed duties to Papa-

panos to . . . warn Papapanos that the sixth

shipment could contain illegal drugs, including

cocaine, hidden in one or more of its constituent

boxes.

Id. at 30.

In essence, therefore, the proposed amended com-

plaint adds a new theory based on the Defendants’ “fail-

ure to warn,” and highlights certain Airline Initiative

Agreements as a possible source for the duties that Papa-

panos seeks to impose on Lufthansa and Florida West.

App. 54

The Plaintiff cites no case law in support of his request

for leave to amend. He does state that permitting the

amendment will serve the “interests of justice,” and

“would not prejudice the substantial rights of any of the

Defendants.” P’tiff. Mot for Leave, at 2-3. Papapanos does

not elaborate on how the interests of justice are served by

this amendment, though. More to the point, the prejudice

to the Defendants is plain.

In Foman v. Davis, 371 U.S. 178 (1962), the Supreme

Court established the standards for leave to amend under

Rule 15(a) of the Federal Rules of Civil Procedure. The

Court explained that:

If the underlying facts or circumstances relied

upon by a plaintiff may be a proper subject of

relief, he ought to be afforded an opportunity to

test his claim on the merits. In the absence of

any apparent or declared reason . . . such as

undue delay, bad faith or dilatory motive .. .

repeated failure to cure deficiencies by amend-

ments previously allowed, undue prejudice to

the opposing party by virtue of allowance of the

amendment, futility of amendment . . . the leave

sought should, as the rules require, be “freely

given.”

Id. at 182. Thus, in setting down the rule that leave to

amend is to be granted liberally, the Supreme Court also

made clear that there are exceptions to that rule. More-

over, while Fed. R. Civ. P. 15(a) guides our judgment, the

matter is within the district court’s discretion. Smith v.

Duff & Phelps, Inc., 5 F.3d 488, 493 (11th Cir. 1993); Hester

v. International Union of Operating Engineers, AFL-CIO, 941

F.2d 1574, 1578 (11th Cir. 1991).

App. 55

There are multiple reasons to reject the Plaintiff’s

request for leave to file yet another amended complaint.

First, this is at least the fourth occasion on which Papa-

panos has sought to amend his complaint, which he

initially filed over eighteen months ago. The Plaintiff

offers no reason why his allegation of a “duty to warn”

could not have been raised in the third amended com-

plaint, which the Court permitted just five weeks before

Papapanos filed the instant motion. Second, allowing the

proposed amended complaint will have an adverse effect

on the prompt resolution of these proceedings. If the

amendment is allowed, all of the pending motions to

dismiss and for summary judgment (some of which are

the subject of Reports and Recommendations, and all but

one of which was filed several months before the submis-

sion of this motion) will have to be re-briefed in order to

address the Plaintiff’s new allegations. In addition, it is

likely that formal discovery, which closed in October of

1995, will have to be re-opened in order to flesh out the

new allegations. The Supreme Court and the Eleventh

Circuit have recognized that a proposed amendment may

be denied where it will result in undue delay. See Foman,

371 U.S. at 182; Nolin v. Douglas County, 903 F.2d 1546,

1550-51 (11th Cir. 1990) (affirming denial of motion for

leave to amend where the proposed amendment would

have required a postponement of trial), overruled on other

grounds by McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994);

Daves v. Payless Cashways, Inc., 661 F.2d 1022, 1025 (5th

Cir. 1980) (affirming denial of motion for leave to amend

where the proposed amendment was filed after the close

of discovery and the movant offered no explanation for

the delay). Moreover, the Eleventh Circuit often has

App. 56

affirmed the denial of motions to amend where the pro-

posed amendment is offered in reaction to or to stave off

an adverse ruling. See, e.g., Best Canvas Products & Sup-

plies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d 618, 622-23

(11th Cir. 1983) (affirming denial of leave to amend which

was sought after summary judgment had been entered

against the moving party); Local 472, et al. v. Georgia Power

Co., 684 F.2d 721, 724 (11th Cir. 1982) (affirming denial of

leave to amend “which appears to be nothing more than

an effort to avoid an adverse summary judgment”). In

one sense, Papapanos’ motion for leave is nothing more

than an attempt to postpone a final ruling on the various

case-dispositive motions, and escape the Magistrate

Judge’s finding that the Defendants simply did not owe a

legally cognizable duty to the Plaintiff.

Finally, the Plaintiff’s proposed amended complaint

appears to be insufficient to cure the defects in the third

amended complaint. See Foman, 371 U.S. at 182; Hallibur-

ton & Assoc., Inc. v. Henderson, Few & Co., 774 F.2d 441, 444

(11th Cir. 1985) (indicating that leave to amend need not

be granted where the amended pleading is still subject to

dismissal). In his new complaint, Papapanos alleges that

federal drug trafficking statutes required the Defendants

to warn him that third parties might succeed in planting

illegal drugs in the shipments of carnations, and that

these drugs might remain undetected until their arrival in

Athens. As discussed above, however, the federal statutes

on which Plaintiff relies do not, under the facts and

circumstances of this case, establish that the Defendants

owed Papapanos the extraordinary duty of care that he

seeks to impose. Cf. Palmer, 622 So. 2d at 1088 (noting that

“[{uJnder the common law, a person has no duty to control

App. 57

the tortious or criminal conduct of another or to warn

those placed in danger by such conduct unless there is a

special relationship between the defendant and... the

person who is a foreseeable victim of such conduct”).

Federal statutes regulating the import and export of con-

trolled substances and narcotics are not the kind of nar-

row, targeted laws that -— in some situations — have

supported negligence claims under Florida law. More-

over, the Plaintiff's apparent (but unstated) suggestion

that the airline initiative agreements implicitly required

Florida West and Lufthansa to search items of cargo in

order to ferret out contraband and prevent harm to a

foreign national like Papapanos is too attenuated to sup-

port relief under existing Florida law. Papapanos has

cited no case law from this or any other jurisdiction

suggesting that a broadly worded agreement that com-

mits an air carrier to cooperate with Customs and law

enforcement officials in order to combat the secret traf-

ficking of illegal narcotics can support a private civil

cause of action for negligence. At all events, Papapanos’

motion for leave to file a fourth amended complaint

should now be denied.

For all of the foregoing reasons, it is therefore

ORDERED AND ADJUDGED:

(1) Defendant Dispatch Services’ Motion for Sum-

mary Judgment is GRANTED. The Magistrate Judge’s

Report and Recommendation is ADOPTED, and judg-

ment shall be entered in favor of Dispatch Services;

App. 58

(2) Defendant Union Transport’s Motion to Dismiss

is GRANTED. The Magistrate Judge’s Report and Recom-

mendation is ADOPTED, and the Plaintiff’s complaint is

dismissed as to Union Transport;

(3) Defendant Cold Transfer’s Motion to Dismiss is

GRANTED. The Magistrate Judge’s Report and Recom-

mendation is ADOPTED, and the Plaintiff’s complaint is

dismissed as to Cold Transfer;

(4) Defendant Miami Express’s Motion to Dismiss

Amended Complaint is GRANTED. The Magistrate

Judge’s Report and Recommendation is ADOPTED, and

the Plaintiff’s complaint is dismissed as to Miami

Express;

(5) Defendant Regal Air Freight’s Motion to Dismiss

Amended Complaint is GRANTED. The Magistrate

Judge’s Report and Recommendation is ADOPTED, and

the Plaintiff's complaint is dismissed as to Regal Air

Freight;

(6) Defendants Lufthansa and Cargolux’s Cross-

Motion for Partial Summary Judgment on Plaintiff’s

Claims for Negligence is GRANTED;

(7) Defendant Florida West Gateway’s Motion for

Summary Judgment is GRANTED;

(8) Defendant Manpower’s Motion to Dismiss is

GRANTED;

(9) Plaintiff’s Motion for Leave to File Fourth

Amended Complaint is DENIED;

App. 59

(10) Defendant Lufthansa’s Motion for Partial Sum-

mary Judgment Dismissing Plaintiff’s Claim for Inten-

tional Infliction of Emotional Distress is GRANTED;

It is further ORDERED AND ADJUDGED that all

other outstanding motions are DENIED AS MOOT.

Defendants Dispatch Services, Lufthansa, Cargolux and

Florida West shall file proposed orders of final summary

judgment within ten (10) days of the date of this Order.

This case is closed.

DONE AND ORDERED in Miami, this 15 day of

April, 1996.

/s/ Stanley Marcus

STANLEY MARCUS

UNITED STATES

DISTRICT JUDGE

copies to:

Magistrate Judge Brown

Counsel of record

App. 60

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 96-4755

Non-Argument Calendar |

D. C. Docket No. 94-2667-CIV-MARCUS

PAUL PAPAPANOS, ’

Plaintiff-Appellant,

versus

LUFTHANSA GERMAN AIRLINES, a Foreign

Corporation; GIRAG CORPORATION, a Florida

Corporation; COLD TRANSFER, INC., a Florida

Corporation; UNION TRANSPORT CORP., a Foreign

Corporation; CARGOLUX AIRLINES

INTERNATIONAL, INC., a Foreign Corporation;

DISPATCH SERVICES, INC., a Florida Corporation;

FLORIDA WEST GATEWAY, INC., a Delaware

Corporation, et al.,

Defendants-Appellees,

PANALPINA, INC., a Florida Corporation,

Defendant.

Appeal from the United States District Court

for the Southern District of Florida

(August 29, 1997)

Before HATCHETT, Chief Judge, TJOFLAT and

EDMONDSON, Circuit Judges.

App. 61

PER CURIAM:

We affirm the district court’s decision rejecting appel-

lant’s claims on the merits. We adopt as our own the

reasoning of its dispositive order of April 15, 1996, grant-

ing appellees’ motions to dismiss and/or summary judg-

ment and denying appellant leave to file a fourth

amended complaint.

We reject for the reasons stated in Point I of

Lufthansa’s brief appellant’s argument that the district

court lacked subject matter jurisdiction because

Lufthansa was not entitled to remove the case to federal

court under 28 U.S.C. § 1441(d).

AFFIRMED.

App. 62

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 96-4755

PAUL PAPAPANOS,

Plaintiff-Appellant,

versus

LUFTHANSA GERMAN AIRLINES, a Foreign

Corporation; GIRAG CORPORATION, a Florida

Corporation; COLD TRANSFER, INC., a Florida

Corporation; UNION TRANSPORT CORP., a Foreign

Corporation; CARGOLUX AIRLINES

INTERNATIONAL, INC., a Foreign Corporation;

DISPATCH SERVICES, INC., a Florida Corporation;

FLORIDA WEST GATEWAY, INC., a Delaware

Corporation, et al.,

Defendants-Appellees,

PANALPINA, INC., a Florida Corporation,

Defendant.

On Appeal from the United States District Court

for the Southern District of Florida

(Filed Oct. 31, 1997)

ON PETITION(S) FOR REHEARING AND SUGGES-

TION(S) OF REHEARING EN BANC

(Opinion , 11th Cir., 19 ‘ F.2d .

a ee Se

App. 63

Before: HATCHETT, Chief Judge, TJOFLAT and

EDMONDSON, Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no mem-

ber of this panel nor other Judge in regular active service

on the Court having requested that the Court be polled

on rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the Suggestion(s)

of Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Gerald B. Tjoflat

UNITED STATES CIRCUIT JUDGE