Chowdhury et al v. Saudi Arabian Airlines,

Filing 13

MEMORANDUM AND ORDER denying 8 Motion to Remand to State Court. For the reasons in the attached Memorandum and Order, plaintiffs' motion to remand is denied. Ordered by Magistrate Judge Roanne L. Mann on 5/31/2013. (Williams, Jennifer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ISLAM F. CHOWDHURY, et al.,
MEMORANDUM
AND ORDER

Plaintiffs,
-against-

13-CV-2537 (RJD)

SAUDI ARABIAN AIRLINES,
Defendant.
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ROANNE L. MANN, UNITED STATES MAGISTRATE JUDGE:
Currently pending before this Court is plaintiffs’ motion to remand this tort action,
against Saudi Arabian Airlines (“SAA” or “defendant”), to state court. See Motion to Remand to
State Court (May 17, 2013) (“Motion to Remand”), Electronic Case Filing Docket Entry (“DE”)
#8.1 SAA, which claims to be a “foreign state,” removed the action from state court on the basis
of the Foreign Sovereign Immunities Act (“FSIA”). See Notice of Removal (Apr. 26, 2013) ¶ 2,
DE #1. Plaintiffs challenge SAA’s entitlement to remove the case under 28 U.S.C. § 1441(d), on
that ground that SAA is not a foreign state within the meaning of 28 U.S.C. § 1603. See Motion
to Remand at 1. For the reasons that follow, plaintiffs’ motion is denied.
DISCUSSION
For purposes of removal and subject matter jurisdiction, the term “foreign state” includes

1

Several days after filing the motion, plaintiffs wrote a letter to the undersigned magistrate
judge, requesting a premotion conference and acknowledging that they had erred by filing their
remand motion without first requesting a premotion conference. See Letter Requesting
Premotion Conference (May 22, 2013), DE #9. However, because the disputed issue is so
clearcut, the Court has opted to resolve the motion without a premotion conference.

an “agency or instrumentality of a foreign state,” 28 U.S.C. § 1603(a), which in turn is defined as
follows:
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 (e) of this title, nor
created under the laws of any third country.
28 U.S.C. § 1603(b). Citing subsection (3) of section 1603(b), which incorporates the definition
of “citizen” under 28 U.S.C. § 1332, plaintiffs contend that SAA is a “citizen of the State of New
York because it is incorporated as Saudi Arabian Airlines Corporation at 80-02 Kew Gardens
Rd, Ste 302, Kew Gardens, New York, 11415[,]” and therefore does not meet the definition of an
“agency or instrumentality of a foreign state.” Motion to Remand at 2-3.
As detailed in SAA’s letter opposing the motion to remand, courts in this Circuit have
“consistently acknowledged that [SAA] is a ‘foreign state’ within the meaning of the FSIA.”
Letter in Response to Plaintiffs’ Pre-Motion Letter and Motion to Remand (May 28, 2013) at 2,
DE #11 (collecting cases). Plaintiffs cite no cases or evidence to the contrary. Instead, plaintiffs
simply reference their complaint, see Motion to Remand at 3, wherein they alleged, “[u]pon
information and belief,” that defendant was incorporated in New York State. See Complaint ¶ 2,
DE #1-2. That allegation is denied in defendant’s Answer, which asserts that SAA “is a foreign
corporation duly organized and existing under the laws of the Kingdom of Saudi Arabia with its
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principal place of business in Jeddah, Saudi Arabia, and does business in the State of New
York.” Answer ¶ 2, DE #4. SAA’s opposition to the pending motion substantiates its position
with a sworn statement from the senior official of SAA in the United States. See Declaration of
Abdullah Al Huwaivi ¶ 3, DE #12-1. Furthermore, the public records of New York State
Department of State, Division of Corporations, confirm that SAA is a “foreign business
corporation.” See http://www.dos.ny.gov/corps/bus_entity_search.html (search “Saudi Arabian
Airlines Corporation”) (last visited May 31, 2013).2 Contrary to plaintiffs’ assumption, the fact
that SAA is authorized to do business in New York does not mean that it is incorporated in New
York and therefore a citizen of New York.
Consequently, the Court is satisfied that SAA is an agency or instrumentality of a foreign
state. Plaintiffs’ motion to remand the case to state court is therefore denied, as is plaintiffs’
jurisdictional challenge. See 28 U.S.C. § 1330(a) (FSIA vests federal district courts with original
jurisdiction over actions against foreign states, as defined in section 1603(a)).
CONCLUSION
For the foregoing reasons, plaintiffs’ Motion to Remand is denied. Any objections to this

2

The Court presumes that plaintiffs’ “information and belief” that SAA is incorporated in New
York is based on the fact that when plaintiffs caused service to be made on SAA through the
New York State Department of State, pursuant to section 306 of New York’s Business
Corporation Law, the Department of State sent notice to SAA at the Kew Gardens address. See
DE #1-2 at 2.
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Memorandum and Order must be filed with the Honorable Raymond J. Dearie by June 17, 2013,
or will be deemed waived.
SO ORDERED.
Dated:

Brooklyn, New York
May 31, 2013
/s/

Roanne L. Mann

ROANNE L. MANN
UNITED STATES MAGISTRATE JUDGE

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