Korean Air Lines Co., Ltd. v. The Port Authority of New York and New Jersey et al
Filing
150
MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS. Ordered by Judge Sandra L. Townes on 1/31/2013. (Siegfried, Evan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------)(
KOREAN AIR LINES CO., LTD.,
Plaintiff,
-againstTHE PORT AUTHORITY OF NEW YORK
AND NEW JERSEY, eta!.,
MEMORANDUM & ORDER
ADOPTING
REPORT & RECOMMENDATION
10-CV-2484 (SLT) (JO)
Defendants.
--------------------------------------------------------------)(
TOWNES, United States District Judge:
Before this Court is the Report and Recommendation of Magistrate Judge James
Orenstein, dated August 1, 2012, (the "R&R"), concerning defendant Kamall McLean's motion
to amend his answer to assert certain counter- and cross-claims against plaintiff Korean Air
Lines Co., Ltd. ("KAL"), co-defendant Covenant Aviation Security, LLC ("Covenant"), and codefendant the Port Authority of New York and New Jersey (the "Port Authority"). These new
proposed counter- and cross-claims concern personal injuries McLean allegedly suffered in a
collision between the truck he was driving and a KAL aircraft. KAL and Covenant have
consented to the amendment, but the Port Authority opposes it. For the reasons set forth below,
the Court adopts the R&R and denies McLean leave to add a personal injury cross-claim against
the Port Authority.
I.
PROCEDURAL HISTORY
The incident giving rise to this action occurred on June 9, 2009, when an airplane owned
and operated by KAL collided with a truck operated by McLean on an airport runway. On
September 4, 2009, McLean filed a timely notice of claim with the Port Authority. (Docket No.
53 Ex. D). Actions in federal and state court followed.
A.
Federal Action
On June I, 20 I 0, KAL filed the instant action concerning damage to its aircraft, naming
the Port Authority, Tully Construction Co., Inc. ("Tully"), Covenant, and McLean as defendants.
(Docket No. 1). On August 6, 2010, Tully and McLean answered KAL's complaint and asserted
cross-claims for indemnification and contribution against the Port Authority and Covenant.
(Docket No. 18 ~~ 240-42). On August 31,2010, the Port Authority answered Tully and
McLean's cross-claims. (Docket No. 32). On December 22,2010, Tully and McLean, with
leave of the Court, filed a third-party complaint against the United States. (Docket No. 45).
Tully and the United States were thereafter dismissed from the action. (Docket Nos. 119, 148).
On January 20, 20 II, McLean filed the motion to amend his answer that is presently
before the Court, seeking to assert- for the first time- personal injury cross- and counter-claims
against KAL, Covenant, and the Port Authority. (Docket Nos. 47, 48). KAL and Covenant
consented, but the Port Authority opposed the amendment. (Docket No. 49). 1 On August I,
2012, Judge Orenstein issued his R&R, 2 recommending that this Court deny McLean's motion to
amend to assert a personal injury cross-claim against the Port Authority. (Docket No. 128). On
December 27, 2012, with that motion pending, this Court so-ordered a stipulation of dismissal as
to all claims, cross-claims, and counter-claims relating to the aircraft damages alleged by KAL.
On March 22, 20 II, Judge Orenstein granted McLean's letter request to withdraw the
motion to allow for mediation with leave to reinstate it at any time. (Docket No. 61). On
October 12, 2011, after mediation proved unfruitful, McLean reinstated the motion. (Docket No.
91).
2
As Judge Orenstein notes, he properly addressed the motion in the form of an R&R
because the result he recommends is dispositive of McLean's proposed cross-claim. (R&R at 10
n.5 (citing Jean-Laurent v. Wilkerson, 461 F. App'x 18,25 (2d Cir. 2012)).
2
(Docket No. 149). The only remaining causes of action before the Court therefore concern
McLean's asserted and proposed personal injury cross- and counter-claims.
B.
State Action
On August 30,2010, nearly three months after the commencement of this federal action,
McLean filed a complaint in state court against the Port Authority and Covenant, alleging the
identical personal injury claims he asserts and proposes here. (Docket No. 70 Ex. 1, McLean v.
Port Authority, Index No. 307196/10 (Brigantti-Hughes, J., May 12, 2011) ("McLean I")). On
May 12, 2011, the state court dismissed the claims against the Port Authority with prejudice,
finding that McLean had commenced his suit more than one year after the cause of action had
accrued, so that the Port Authority's sovereign immunity was not waived under the relevant
Suability Statute. McLean I, at 2-3. The state court explicitly noted that "[i]t is of no moment
that a timely Federal Action was filed by [KAL] against [McLean], Covenant, and the Port
Authority" because the relation-back doctrine does not apply to rescue McLean's claim. Id. at 3.
The state court further explained that "[i]ssues of notice of a possible action, or prejudice to a
party are not considered when a condition precedent must be satisfied before an action may be
commenced." Id.
C.
Judge Orenstein's R&R
In his August I, 2012, R&R, Judge Orenstein similarly determined that McLean had
failed to meet a condition precedent required for suit against the Port Authority. (R&R at 6). He
did not reach the issue of res judicata. (R&R at 5). On August 20, 2012, McLean filed
objections to the R&R, arguing that he has complied with the conditions precedent and that his
claims are not precluded by the state court determination in McLean I. (Docket No. 135). The
Port Authority filed a response opposing both arguments. (Docket No. 140).
3
II.
STANDARD OF REVIEW FOR R&R
A district court "shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made." 28 U.S.C. §
636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any
part of the magistrate judge's disposition that has been properly objected to."). After performing
this inquiry, the court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." Id. Where no objection has been filed,
however, the district court "need only satisfy itself that there is no clear error on the face of the
record." Urena v. New York, 160 F. Supp. 2d 606,609-10 (S.D.N.Y. 2001).
III.
DISCUSSION
A.
Rule lS(a)
Although Federal Rule of Civil Procedure 15(a)(2) specifically provides that a court
"should freely give leave [to amend] when justice so requires," a court generally "has discretion
to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the
opposing party." McCarthy v. Dun & Bradstreet Com., 482 F.3d 184,200 (2d Cir. 2007); see
Foman v. Davis, 371 U.S. 178, 182 (1962). An amendment is considered futile if, for example,
it could not withstand a motion to dismiss for lack of subject-matter jurisdiction. U.S.
Underwriters Ins. Co. v. Ziering, No. 06-cv-1130, 2010 WL 3419666, at *2 (E.D.N.Y. Aug. 27,
2010) (citing Riccuiti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)); see Bonfiglio
v. N.Y. Presbyterian Hosp. Weill Cornell Med. Ctr., No. 10 Civ. 4939, 2011 WL 2436706, at *3
(S.D.N.Y. June 16, 2011) ("Adding a claim that cannot survive due to lack of subject matter
jurisdiction would be futile."). In this way, a claim's viability is evaluated by the same legal
4
standard "whether considered in the context of a motion to dismiss or opposition to a motion for
leave to amend." Ziering, 2010 WL 3419666, at *2.
B.
Suability Statute
The Port Authority is a bi-state entity created by compact between the States of New
York and New Jersey and with the approval of Congress. Gianello v. Port Authority of N.Y. and
N.J., No. II Civ. 3829,2011 WL 2436674, at *I (S.D.N.Y. June 16, 2011); see generally Hess v.
Port Auth. Trans-Hudson Com., 513 U.S. 30 (1994) (reviewing history and status of Port
Authority). Originally, the Port Authority "enjoyed complete sovereign immunity from suits of
any sort in the courts of those states." Brooklyn Bridge Park Coalition v. Port Authority of New
York and New Jersey. 951 F. Supp. 383,387 (E.D.N.Y. 1997). In 1950, however, New York
and New Jersey enacted legislation allowing suit against the Port Authority "so long as the
plaintiff complied with the jurisdictional prerequisites set forth in § 7107." Kvne v. Carl Seiber
Bus Services, 147 F. Supp. 2d 215,218 (S.D.N.Y. 2001). That provision provides, in relevant
part, that consent to suit
is granted upon the condition that any suit, action or proceeding prosecuted or
maintained under this act shall be commenced within one year after the cause of
action therefor shall have accrued, and upon the further condition that ... a notice
of claim shall have been served upon the port authority ... at least sixty days
before such suit, action or proceeding is commenced.
N.Y. Unconsol. Law§ 7107 (emphasis added). As the language in the provision indicates, the
one-year filing and sixty-day notice requirements are conditions precedent for the Port
Authority's waiver of immunity. As to the former, the New York State Court of Appeals has
specifically "addressed whether the requirement for bringing an action against the Port Authority
within one year under[§ 7107] was a condition precedent to suit or a statute oflimitations ...
concluding that the statute contained a condition precedent to suit." Campbell v. City of New
5
York, 4 N.Y.3d 200, 204 (2005) (citing Yonkers Contr. Co. v. Port Auth. Trans-Hudson Com.,
93 N.Y.2d 375,379 (1999)). In so finding, the court "underscored that if a statute not only
creates a cause of action but also attaches a time limitation to its commencement, then 'time is an
ingredient of the cause."' Id. (quoting Yonkers, 93 N.Y.2d at 379).
C.
Motion to Amend and Relation Back
In this case, the parties agree that the cause of action accrued on June 9, 2009 (the date of
the runway incident), that McLean timely filed his notice of claim, but that McLean's proposed
personal injury claims were asserted more than one year after accrual. McLean argues, however,
that his cross-claim against the Port Authority should be permitted to relate back to the initial
filing ofKAL's complaint to satisfy§ 1707's one-year condition precedent. In response, the
Port Authority contends that failure to comply with a § 1707 condition at the outset permanently
extinguishes McLean's cross-claim against the Port Authority and that the relation-back doctrine
cannot revive it.
Few cases have examined whether the relation-back doctrine under CPLR 203(t), 3 which
concerns amended pleadings, applies to § 1707's conditions precedent. Nevertheless, courts
have provided some guidance. In dismissing a personal injury action against the Port Authority
filed more than one year after accrual, a New York appellate court determined that "[t]he
plaintiffs' reliance on the 'relation-back' doctrine ... to remedy their failure is misplaced."
DaCruz v. Towmasters of N.J.. Inc., 804 N.Y.S.2d 359, 360 (2nd Dep't 2005) (citing CPLR
203(t); Yonkers, 93 N.Y.2d at 379). Contrary to McLean's contentions, the appellate court
3
The provision, entitled "Claim in amended pleading" provides:
A claim asserted in an amended pleading is deemed to have been interposed at the
time the claims in the original pleading were interposed, unless the original
pleading does not give notice of the transactions, occurrences, or series of
transactions or occurrences, to be proved pursuant to the amended pleading.
CPLR 203(t).
6
explicitly rejected the prior determination of a federal district court, which had come to the
opposite conclusion, and whose decision initially bound the state trial court to which the case had
been remanded. See DaCruz v. Towmasters ofN.J .. Inc., 217 F.R.D. 126, 131 (E.D.N.Y. 2003);
DaCruz v. Towmasters ofN.J., Inc., 4 Misc.3d 391, 392 (N.Y. Sup. 2004). The appellate court
cited Astudillo v. Port Auth. ofN.Y. & N.J., 7 Misc. 3d 1004(A) (N.Y. Sup. 2004), which
determined that CPLR 203's relation-back provision "cannot be used to revive a claim that has
been 'extinguished' by virtue ofthe two-year condition precedent to suit contained in Article 29
of the Warsaw Convention." 7 Misc.3d I 004(A), at *4. As with§ 1707, the Warsaw
Convention "creates the cause of action asserted under it" so that the time limit it contains "is
best termed a condition precedent to suit, a kind of limitation that is often deemed not subject to
tolling." Fishman by Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 143 (2d Cir. 1998).
Moreover, the state court that recently dismissed McLean's personal injury claims against
the Port Authority rejected his argument that, because the Port Authority was on notice from
KAL's timely filed federal lawsuit, he substantively met the one-year condition. McLean I, at 2.
Indeed, the state court explained that because "these suitability statutes are jurisdictional and ...
strict compliance is required[,] ... the 'relation back' doctrine of CPLR 203 does not apply to
keep alive a claim that would otherwise be time-barred." Id. at 3. Commenting on the argument
McLean essentially asserts here, the state court found it "of no moment that a timely Federal
Action was filed by plaintiff [KAL] against [McLean], Covenant, and the Port Authority." Id.
This Court similarly finds that, because § 1707's one-year requirement is a condition
precedent and not a statute of limitations, the time cannot effectively be tolled by relating back a
claim that would otherwise be untimely. McLean's failure to comply with the condition renders
inactive the Port Authority's waiver of immunity under§ 1707 and removes subject-matter
7
jurisdiction from this Court. 4 Accordingly, McLean's motion to amend his complaint to assert a
new personal injury cross-claim against the Port Authority is denied as futile.
IV.
CONCLUSION
For the reasons set forth above, McLean's objections are overruled and the Report and
Recommendation (Docket No. 128) is ADOPTED pursuant to 28 U.S.C. § 636(b)(l).
Accordingly, McLean's motion to amend his answer to assert a personal injury cross-claim
against the Port Authority (Docket No. 48) is DENIED. McLean's personal injury counter-claim
against KAL and cross-claim against Covenant therefore are the only active claims in this case.
Additionally, Covenant's request for a pre-motion conference (Docket No. 143) is GRANTED
insofar as all remaining parties are directed to appear for a conference on February 28, 2013, at
2:00p.m.
SO ORDERED.
s/ SLT
, _
_._,
"'VF"VI
/SANDRA L. TOWNES
United States Distnct Judge
Dated: January 31,2013
Brooklyn, New York
4
Finding itself without subject-matter jurisdiction, the Court agrees with Judge Orenstein
that it need not reach the issue of whether the state court's holding in McLean bars the proposed
cross-claim under the doctrine of res judicata.
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?