Marshall et al v. Boeing Company, The et al

Filing 32

Memorandum Opinion and Order signed by the Honorable Robert W. Gettleman on 4/17/2013: Mailed notice (gds)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANDREW MARSHALL, et al,
Plaintiffs,
v.

THE BOEING COMPANY, a corporation,
MACH II MAINTENANCE CORP. et al,
Defendant.
-------------------------------------------------------------THE BOEING COMPANY, a corporation,
Third-Party Plaintiff.
v.
LOT POLISH AIRLINES, a corporation,
Third-Party Defendant.
--------------------------------------------------------------

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No. 13 C 188
Judge Robert W. Gettleman

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MEMORANDUM OPINION AND ORDER
On November 6, 2012, plaintiffs filed a three-count complaint against defendants The
Boeing Company (“Boeing”) and Mach II Maintenance Corporation (“Mach II”) in the Circuit
Court of Cook Count, Illinois, alleging that they suffered personal injuries while traveling as
passengers aboard an aircraft from Newark, New Jersey, to Warsaw, Poland. Boeing, the aircraft
manufacturer, subsequently filed a third-party complaint against Polskie Linie Lotnicze Lot S.A.
d/b/a LOT Polish Airlines, Inc. (“LOT”), the airline that operated the flight in question. On
January 10, 2013, LOT removed the entire action to federal court. Plaintiffs now move to sever
their original state law claims from the third-party action and remand those state law claims back

to state court pursuant to 28 U.S.C. §§ 1441 and 1447. Defendant Boeing and third-party
defendant LOT (“defendants”) oppose the motion.1 For the reasons described below, the court
denies plaintiffs’ motion.
BACKGROUND
Plaintiffs were passengers on LOT Flight Number 016, which traveled from Newark,
New Jersey to Warsaw, Poland on November 1, 2011. The flight ended with an emergency
wheels-up landing at Warsaw’s Chopin Airport when the airplane’s landing gear did not deploy.
Plaintiffs allege that a leak of hydraulic fluid from the aircraft’s central hydraulic system caused
a drop in pressure and prevented the deployment of the main landing gear. Plaintiffs further
allege that because the flight crew of the aircraft were unaware that the circuit breaker for the
alternate landing gear had been activated and failed to check that circuit breaker, the aircraft was
forced to make a crash landing at the airport. The original complaint alleges theories of product
liability and negligence against Boeing (Counts I and II)2 and negligence against Mach II (Count
III). As a result of the crash landing, plaintiffs claim they suffered personal and bodily injuries of
both a physical and psychological nature, and incurred other damages, including: medical bills,
lost earnings, disability, disfigurement, pain and suffering, and emotional distress.
Defendant Boeing filed an answer, a counterclaim against Mach II, and a third-party
complaint against LOT. The third-party complaint alleges that the LOT flight crew was negligent

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Defendant Mach II does not join the opposition to the motion, but has moved for
dismissal of both the complaint and the cross-claim based on lack of jurisdiction (Doc. 15).
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Plaintiffs argue in their reply brief that they do not make any allegations against LOT or
its pilots and indicate that they will seek leave to amend the complaint to clarify their claims
against Boeing. The court relies on the current complaint in evaluating the motion to sever and
remand.
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in their response to the alleged hydraulic leak and activated circuit breaker. Count One of the
third-party complaint seeks contribution from LOT, and Count Two alleges contractual
indemnity under a confidential purchase agreement between defendants.
DISCUSSION
Plaintiffs claim that the court is required to sever and remand the original action under
the Federal Court Jurisdiction and Venue Clarification Act of 2011, which amended 28 U.S.C. §
1441(c). Alternatively, plaintiffs argue that the court has the discretion to sever and remand the
original action and that there are compelling reasons to do so. Defendants argue that this action
is not governed by 28 U.S.C. § 1441(c) and that remand is therefore not mandatory. Defendants
further claim that the court does not have the discretion to remand the original action.
Section 1441 governs the removal of civil actions to federal court. Subsection (c), as
newly amended, states:
(c) Joinder of Federal law claims and State law claims.-(1) If a civil action includes–
(A) a claim arising under the Constitution, laws, or treaties of the United
States (within the meaning of section 1331 of this title), and
(B) a claim not within the original or supplemental jurisdiction of the
district court or a claim that has been made nonremovable by statute, the
entire action may be removed if the action would be removable without
the inclusion of the claim described in subparagraph (B).
(2) Upon removal of an action described in paragraph (1), the district court shall
sever from the action all claims described in paragraph (1)(B) and shall remand
the severed claims to the State court from which the action was removed. Only
defendants against whom a claim described in paragraph (1)(A) has been asserted
are required to join in or consent to the removal under paragraph (1).
Plaintiffs argues that this action falls within the language of subsection (c) because
plaintiffs’ original claims are both outside of the original and supplemental jurisdiction of the

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district and nonremovable by statute, and Boeing’s claim against LOT arises under a law or
treaty of the United States. Subsection (c)(1)(A), however, specifically refers to federal question
jurisdiction, as defined by 28 U.S.C. § 1331. In its removal action, LOT did not allege that the
district court had original jurisdiction over the action pursuant to 28 U.S.C. § 1331; it removed
the action pursuant to the Foreign Sovereign Immunities Act (FSIA), codified in 28 U.S.C. §§
1330(a), 1441(d), 1602–1611. Section 1441(d) states that “[a]ny 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.”
As defendants correctly point out, the court does not have federal question jurisdiction
over Boeing’s claim against LOT; instead, it has jurisdiction over the claim pursuant to the
FSIA. See Olympia Exp., Inc. v. Linee Aeree Italiane, S.P.A., 509 F.3d 347, 348-9 (7th Cir.
2007). Although plaintiffs claim that Boeing’s claims arise under the FSIA, the FSIA does not
create a federal cause of action. Boeing’s claims against LOT are state law claims, and the court
would not have federal question jurisdiction over these claims if LOT were not a foreign
sovereign or sovereign instrumentality. Id. at 349. The FSIA provides for federal jurisdiction on
the basis of the parties involved, but does not convert the underlying claims from state law
claims to federal law claims. Although the court may be called upon to interpret treaty
provisions regarding LOT’s affirmative defenses, no claim within this action is a claim “arising
under the Constitution, laws, or treaties of the United States” as defined by § 1331.
Further, plaintiffs’ original claims against Boeing fall within the supplemental
jurisdiction of the court. Under 28 U.S.C. § 1367(a), “in any civil action of which the district

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courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all
other claims that are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States Constitution.
Such supplemental jurisdiction shall include claims that involve the joinder or intervention of
additional parties.” Although one of Boeing’s claims against LOT alleges contractual indemnity
unrelated to the plaintiffs’ claims against Boeing, Boeing also asserts a contribution claim
against the airline. In support of that claim, Boeing alleges that LOT “failed to exercise due care
in the operation of the subject aircraft, including but not limited to failing to properly identify,
detect, avoid, and/or respond to the alleged hydraulic leak and/or the alleged activated circuit
breaker, failing to employ proper procedures after encountering such conditions, and otherwise
failing to follow proper procedures and instructions.”
Two claims are part of the same case or controversy if they “derive from a common
nucleus of operative facts. A loose factual connection between the claims is generally
sufficient.” Ammerman v. Sween, 54 F.3d 423, 424 (7th Cir. 1995) (internal citations omitted).
Boeing’s allegations against LOT are directly related to the emergency landing at issue in
plaintiffs’ action against Boeing. Discovery related to the cause of the in-flight complications
and emergency landing will be necessary in the resolution of all parties’ claims. Plaintiffs’
claims are therefore part of the same case or controversy over which this court has original
jurisdiction, and the court may exercise supplemental jurisdiction over the plaintiffs’ claims.
Further, the Seventh Circuit has stated that state law claims against a first-party defendant that
are removed by a third party under the FSIA are subject to the district court’s supplemental
jurisdiction. See In re Air Crash Disaster Near Roselawn, Ind. on Oct. 31, 1994, 96 F.3d 932,

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943 (7th Cir. 1996).Consequently, the court is not required to sever and remand the original
action because the criteria of § 1441(c)(1) have not been satisfied.
Plaintiffs claim that the language of § 1441(c) evinces Congress’ strong desire to remand
state law claims, and that it is illogical to read the Act as requiring the severance and remand of
all state law claims in removed cases with federal question claims except those removed under §
1441(d). First, as noted above, the instant case was removed under § 1441(d) and does not
involve federal question jurisdiction, but rather jurisdiction under the FSIA. Second, with the
amendment to subsection (c), Congress did not expand the scope of claims subject to remand.
Congress simply made the removal of unrelated state law claims mandatory instead of
discretionary, making it impossible for defendants to manufacture federal jurisdiction over
unrelated state law claims where it would otherwise not exist. In the instant case, because
plaintiffs’ claims are not unrelated to the third-party claims, there can be no compelling
argument that Congress intended those claims to be remanded.
Finally, there are sound policy reasons to expect that Congress differentiates between
claims before the district court by way of the FSIA and those that involve federal questions.
Under the FSIA, there is no question that LOT is entitled to defend itself in federal court against
Boeing’s claims. Congress created this right of access to the federal courts “to create a uniform
body of law (and minimize potential international friction) by establishing federal courts as the
preferred forum for cases involving foreign states.” Roselawn, 96 F.3d at 942 (citing House
Report, 1976 U.S.S.C.A.N. at 6631). This right of access differentiates foreign sovereigns from
other third-party defendants sued in state court. LOT is entitled to fully litigate the action in
federal courts. Id. Part of that opportunity to litigate is LOT’s ability, as a third-party defendant,

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to raise defenses to the plaintiffs’ original claims. See F.R.Civ.P 14(a)(2)(C). Severing plaintiffs’
claims from the third-party action and remanding them to state court could therefore deprive
LOT of the opportunity to fully defend itself in a federal forum.
Judicial economy considerations also counsel against remanding the original action to
state court. As noted above, there are common questions of fact about the emergency landing,
and it would be inefficient to litigate those issues in two separate fora. Severance of the claims
would also present an opportunity for inconsistent rulings regarding these fundamental
questions.

As a final matter, plaintiffs claim that LOT’s affirmative defenses to Boeing’s

third party complaint would require the court to interpret treaty provisions, evaluate a
confidential purchase agreement, and determine whether LOT is immune under the FSIA, all of
which would cause undue delay in the resolution of plaintiffs’ claims. Although these issues
may well come before the court, the court disagrees that their resolution will substantially delay
the progress of the plaintiffs’ case. These matters may all be dealt with by this court in an
efficient manner. Plaintiffs also claim that maintaining the action as one will result in some
claims being tried to a jury and some tried to the court. There is nothing wrong or
disadvantageous, however, with such a structure. The Seventh Circuit and many other courts
have approved of such a structure in other FSIA cases, holding that trying some claims to a jury
and some to the court preserves all the parties’ rights. Roselawn, 96 F.3d at 943; see also In re
Aircrash Disaster Near Roselawn, Indiana on October 31, 1994, 909 F. Supp. 1083, 1113-14
(N.D. Ill. 1995) (collecting cases). These alleged obstacles are not so compelling as to warrant
the division of this lawsuit between two courts.

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CONCLUSION
For the reasons described above, the court denies plaintiffs’ motion to sever and remand
the original action back to state court. The status date set for April 19, 2013, is stricken.

ENTER:

April 17, 2013

__________________________________________
Robert W. Gettleman
United States District Judge

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