Murphy et al v. Avidyne Corporation et al

Filing 61

DECISION AND ORDER GRANTING Plaintiffs' 27 Motion to Remand; DENYING as moot the Cirrus Defendants' 10 Motion to Dismiss; DIRECTING the Clerk of the Court to transfer this case to the New York State Supreme Court, County of Erie; DIRECTING Plaintiffs to file an affidavit describing the attorneys' fees and costs incurred in connection with Plaintiffs' 27 Motion to Remand by April 9, 2012. Signed by William M. Skretny, Chief Judge U.S.D.C. on 3/6/2012. (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHRISTOPHER M. MURPHY, as the Executor of
the Estate of Michael H. Doran, and on behalf of
all lawful beneficiaries of the Estate of Michael H.
Doran, deceased; and KEVIN SCHNIREL, as the
Administrator of the Estate of Matthew Schnirel,
in his own right, and on behalf of all lawful
beneficiaries of the Estate of Matthew Schnirel,
deceased,
Plaintiffs,
v.

DECISION AND ORDER
11-CV-495S

CIRRUS DESIGN CORPORATION; CIRRUS
AIRCRAFT CORPORATION; AVIDYNE
CORPORATION; S-TEC CORPORATION;
COBHAM PLC; S-TEC CORPORATION d/b/a
COBHAM AVIONICS, INTEGRATED SYSTEMS;
MEGGITT PLC; GARMIN INTERNATIONAL, INC.;
GARMIN USA, INC., GARMIN LTD; UNIVERSITY
OF NORTH DAKOTA AEROSPACE
FOUNDATION; AND STEVEN KAPLAN, ,
Defendants.

I. INTRODUCTION
Plaintiffs commenced this action seeking damages for the deaths of their respective
decedents, Michael H. Doran and Matthew Schnirel, in a plane crash on April 28, 2009.
Defendants are the manufacturers, distributors, and retailers of the Cirrus SR-22 aircraft
or parts thereof, and the providers of flight training to Doran, who was piloting the aircraft
at the time of the crash. Pending before this Court are Plaintiffs’ Motion to Remand and
the Motion of Defendants Cirrus Design Corporation and Cirrus Aircraft Corporation
(collectively the “Cirrus Defendants”) to Dismiss for failure to state a claim. These motions

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are fully briefed and the Court finds oral argument unnecessary. For the reasons that
follow, Plaintiffs’ Motion to Remand is granted in its entirety and the Cirrus Defendants’
Motion to Dismiss is denied as moot.
II. BACKGROUND
In 2008, the decedent of Plaintiff Christopher M. Murphy, Michael H. Doran,
purchased the Cirrus-22 aircraft. (Complaint, Docket No. 1-1, ¶ 32). As alleged in the
Complaint:
As part of the purchase of the subject aircraft, plaintiff’s decedent Michael
Dolan received training from the Cirrus Defendants and/or [Defendant UND
Aerospace Foundation (“UNDAF”)1] in a similar Cirrus SR-22 aircraft on or
about October 6th through 9th of 2008 in Duluth, Minnesota and subsequently
received continuing training from defendant Kaplan, a certified Cirrus
Standardized Instructor Pilot, in the Buffalo area.
(Compl. ¶ 40). On April 28, 2009, Doran was flying himself and Schnirel back to Buffalo
from Cleveland, Ohio, in his Cirrus-22 aircraft. (Compl. ¶¶ 42, 46). The aircraft “entered
the clouds and Instrument Meteorological Conditions” shortly after take-off, and within
minutes began to make repeated turns off-course with rapid changes in flight altitude.
(Compl. ¶¶ 46-49). The aircraft crashed minutes later, killing both Doran and Schnirel.
(Compl. ¶¶ 47-53).
Plaintiffs commenced the instant action against Defendants2 in New York State
Supreme Court, Erie County, on April 26, 2011, asserting causes of action including strict
products liability, negligence, breach of warranty, and breach of contract. (Compl. ¶¶ 601

This Defendant asserts that it was erroneously nam ed as University of North Dakota Aerospace
Foundation instead of UND Aerospace Foundation. (Docket No. 48).
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As reflected in this Court’s Decem ber 15, 2011 Stipulation and Order (Docket No. 60), Plaintiffs
have voluntarily dism issed without prejudice Defendants Cobham PLC, Meggitt PLC, and “S-Tec
Corporation d/b/a Cobaham Avionics, Integrated System s” from the case.

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101). The Cirrus Defendants removed the action to this Court, alleging federal jurisdiction
existed based on diversity. (Notice of Removal, Docket No. 1). The Cirrus Defendants then
moved pursuant to Rule 12 (b)(6) to dismiss the Complaint for failure to state a claim.
(Docket No. 10). Plaintiffs moved to remand the action back to state court shortly
thereafter. (Docket No. 27).
III. DISCUSSION
This Court will first consider Plaintiff’s Motion to Remand,3 inasmuch as this motion
raises the issue of subject matter jurisdiction, absent which this Court lacks the power to
decide the Cirrus Defendants’ Motion to Dismiss. see Rhulen Agency, Inc. v Alabama Ins.
Guar. Ass’n, 896 F.2d 674, 678 (2d Cir. 1990). Pursuant to 28 USC § 1441 (a), a
defendant may remove an action commenced in state court to a federal district court where
the district court has original jurisdiction over the matter. Federal jurisdiction predicated
on diversity of citizenship requires that all adverse parties be citizens of different states,
and that no properly joined defendant be a citizen of the forum state. 28 U.S.C. §§ 1332
(a)(1); 1441 (b)(2); Herrick Co., Inc. v SCS Commc’ns, Inc., 251 F.3d 315, 322 (2d Cir.
2001). Nonetheless, “a plaintiff may not defeat a federal court’s diversity jurisdiction and
a defendant’s right of removal by merely joining as defendants parties with no real
connection with the controversy.” Pampillonia v RJR Nabisco, Inc., 138 F.3d 459, 460-461
(2d Cir. 1998).

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In support of their Motion to Rem and (Docket No. 27), Plaintiffs subm itted the Declaration of
Hugh M. Russ, III, Esq., with Exhibits A-E (Docket Nos. 27-1, 27-2), and a supporting Mem orandum of
Law (Docket No. 27-3). The Cirrus Defendants responded with an opposing Mem orandum of Law
(Docket No. 43), and the Affidavit of Patrick E. Bradley, Esq., with Exhibits A&B (Docket Nos. 43-1, 43-2).
By way of reply, Plaintiffs subm itted a Reply Declaraton of Hugh M. Russ, III, (Docket No. 56), and a reply
Mem orandum of Law (Docket No 56-1).

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In order to show that naming a non-diverse defendant is a “fraudulent
joinder” effected to defeat diversity, the defendant must demonstrate, by
clear and convincing evidence, either that there has been outright fraud
committed in the plaintiff’s pleadings, or that there is no possibility, based on
the pleadings, that a plaintiff can state a cause of action against the nondiverse defendant in state court.
Id. at 461; see Brown v Eli Lilly and Co., 654 F.3d 347, 356 (2d Cir. 2011)(adhering to the
requirement that there be no possibility that claims against the non-diverse defendant could
be asserted in state court); Locicero v Sanofi-Aventis U.S. Inc., No. 08-CV-489S, 2009 WL
2016068, *2, 4 (W.D.N.Y. July 10, 2009)(this Court previously refused to apply a more
lenient “no reasonable basis” standard). “[T]he federal court [considering a motion to
remand] resolves any uncertainties in applicable state law in plaintiffs’ favor and subjects
the complaint to less searching scrutiny than on a motion to dismiss.” Intershoe, Inc. v.
Filanto S.P.A., 97 F.Supp.2d 471, 474 (S.D.N.Y. 2000); see Pampillonia, 138 F.3d at 461.
There is no dispute that Plaintiffs are both citizens of New York and all Defendants,
with one exception, are corporate citizens of other states for diversity purposes. Compl.
¶¶ 2-6, 1, 13-16, 20-22, 26; see 28 U.S.C. § 1332 (c)(2)(“the legal representative of the
estate of a decedent shall be deemed to be a citizen only of the same State as the
decedent”). It is also undisputed that Defendant Steven Kaplan is a New York citizen.
Compl. ¶ 28; Answer of Steven Kaplan, Docket No. 27-2, ¶ 2. The Complaint asserts two
causes of action against Kaplan, the first for negligent training and the second for breach
of contract related to that training. Compl. ¶¶ 83-101. The Cirrus Defendants assert in
their Notice of Removal that Kaplan was fraudulently joined because he was an agent of
either the Cirrus Defendants or Defendant UNDAF and therefore cannot be held liable for
his own nonfeasance under New York law. Notice of Removal ¶¶ 24-28. It was further
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asserted therein that Plaintiffs’ negligent training claim is essentially one for educational
malpractice, a cause of action not recognized under New York law. Id. ¶ 29.
Initially, as Plaintiffs argue and the Cirrus Defendants have conceded in their
opposition papers, this Court has already considered the issue of whether a negligent flight
training claim constitutes an educational malpractice claim that is not recognized under
New York law. Pl’s Mem. of Law, Docket No. 27-3, at 1; Def’s Mem. of Law in Opp’n,
Docket No. 43, at 8 n 4. In In re Air Crash Near Clarence Center, New York, on February
12, 2009 (hereinafter “Clarence Center”), this Court recognized that, based upon the
existent case law, “a New York court may find that the commercial, specialized training of
airmen is not necessarily akin to the general education of children, and is unlikely to result
in a glut of suits challenging the day-to-day implementation of educational policies.” Nos.
09-CV-1039-1042,

1087,

2010

WL

5185106,

*6

(W.D.N.Y.

December

12,

2010)(determining that remand of certain related actions to state court was warranted).
As further noted in that decision, “the New York Court of Appeals has explicitly stated that
a cause of action resembling educational malpractice could possibly be pled within the
strictures of a traditional negligence or malpractice action.” Clarence Center, 2010 WL
5185106 at * 7, citing Donohue v. Copiague Union Free School Dist., 47 N.Y.2d 440, 443
(N.Y. 1979). The Cirrus Defendants do not point to any recent changes in New York case
law on this issue, nor does this Court find any.
The Cirrus Defendants nonetheless argue that no cause of action lies against
Kaplan inasmuch as he was acting as an agent of either the Cirrus Defendants or UNDAF.
Def’s Mem. of Law, at 8-14. In the Complaint, Plaintiffs allege that “[a]t all times material
hereto UNDAF, the Cirrus Defendants, and Kaplan (collectively referred to as the ‘Training
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Defendants’) were acting as the agents of each other, were involved in a joint venture,
were the successor and assigns of each other, and/or were the alter egos of each other.”
Compl. ¶ 29. Defendant Kaplan, however, denies this allegation in his Answer. Kaplan
Answer ¶ 3. There is therefore a question of fact based on the pleadings whether Kaplan
was acting on behalf of one of the other Defendants with that party’s express, implied, or
apparent authority at the time he provided flight training to Doran. See Time Warner City
Cable v. Adelphi Univ., 27 A.D.3d 551, 552 (N.Y. App. Div. 2d Dep’t 2006)(an agency
relationship “may be established by evidence of the consent of one person to allow another
to act on his or her behalf and subject to his or her control, and consent by the other so to
act” (internal quotation marks omitted)). Here, although the Complaint alleges that Kaplan
was a “certified Cirrus Standardized Instructor Pilot,” (Compl. ¶ 40), the record provides no
illumination as to whether this certification involved an employment or other contractual
relationship between Kaplan and the Cirrus Defendants at the time Doran received his
training. Further, as Plaintiffs argue and the Cirrus Defendants concede, the causes of
action against Kaplan are alternatively asserted against “the Training Defendants
collectively, and each of them individually.” Compl. ¶¶ 30, 89, 98; Pl’s Mem of Law at 1-3;
Def’s Mem of Law at 7; see Compl. ¶ 89 (“The Training Defendants, and each of them,
were negligent in failing to . . .”) (emphasis added); ¶ 98 (“The Training Defendants, and
each of them, failed to duly and properly perform their contractual obligations . . .”
(emphasis added)).
Moreover, even if Kaplan was acting as an agent of another Defendant, “it is well
settled that an agent can be held liable for his own negligent acts.” Reliance Ins. Co. v.
Morris Assocs., P.C., 200 A.D.2d 728, 730 (N.Y. App. Div. 2d Dep’t 1994); see also
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Zampatori v. United Parcel Serv., 125 Misc.2d 405, 410, 479 N.Y.S.2d 470, 473-474
(N.Y.Sup.Ct.1984)(“[w]hether acting as an agent or as an independent contractor on behalf
of the principal who hired him, a party may not escape liability simply because he was
acting at the time at the behest of his principal”). An agent may be held liable for his or her
own affirmative acts of negligence or wrongdoing, such as where the agent has “assumed
responsibility, as if he were acting on his own account.” Jones v. Archibald, 45 A.D.2d 532,
535 (N.Y. App. Div. 4th Dep’t 1974). Here, Plaintiffs have alleged that Kaplan, among
other things, was negligent in that he failed to “train and/or instruct plaintiff’s decedent,
Michael H. Doran, in the proper operation of the Cirrus SR-22 aircraft” and relevant
systems. Compl. ¶ 89 (a). This Court previously held in Clarence Center that an allegation
of improper training may be “broadly construed as alleging that [the flight instructor]
affirmatively provided insufficient training, as opposed to an absence of training.” 2010 WL
5185106 at * 8. Further, “allegations that [the flight instructor] provided insufficient and
substandard training can reasonably be construed as affirmative conduct or malfeasance.”
Id. at * 8 (concluding that the complaint sufficiently alleged that the flight instructor
launched a force or instrument of harm such that it could be found liable to a noncontracting third party). As noted above, it matters not “whether, as a matter of New York
law, the Complaint does indeed state a claim” for negligence or breach of contract,
because “[f]or the purposes of establishing this Court’s lack of jurisdiction, it suffices that
the Complaint colorably asserts such a claim and that New York’s liberal pleading rules
leave open the possibility that the state court would deem the Complaint to state [such] a
claim.” Intershoe, Inc., 97 F.Supp.2d at 476.
Because Plaintiffs’ Complaint in the instant case colorably asserts, at minimum, a
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negligence claim against Kaplan, Plaintiffs’ Motion to Remand is granted. See Kuperstein
v. Hoffman-Laroche, Inc., 457 F.Supp.2d 467, 470 (S.D.N.Y. 2006)(if even one claim can
survive, remand is warranted). This Court notes that Clarence Center was decided only
six months prior to the filing of the Notice of Removal in the instant case,4 and the
conclusions therein are dispositive here. This Court therefore further concludes that the
Cirrus Defendants “lacked an objectively reasonable basis for removal.” Martin v. Franklin
Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005). That part of
Plaintiffs’ motion seeking attorney fees and costs pursuant to 28 U.S.C. § 1447 (c) will also
be granted.
IV. CONCLUSION
The Cirrus Defendants have failed to establish that Kaplan was fraudulently joined
for the purpose of defeating diversity jurisdiction, therefore Plaintiff’s Motion to Remand is
granted in its entirety.

This Court will retain jurisdiction for the limited purpose of

determining the award of attorneys’ fees and costs. See Bryant v. Britt, 420 F.3d 161, 165
(2d Cir. 2005). The Cirrus Defendants’ Motion to Dismiss is denied as moot.
V. ORDERS
IT HEREBY IS ORDERED that Plaintiffs’ Motion to Remand (Docket No. 27) is
GRANTED in its entirety;
FURTHER, that the Cirrus Defendants’ Motion to Dismiss (Docket No. 10) is
DENIED as moot;

4

Notably, counsel for the Cirrus Defendants also represented one of the defendants in Clarence
Center and joined in the opposition to rem and in that case. No. 09-CV-1039-1042, 1087, Docket No. 31 at
36.

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FURTHER, that the Clerk of the Court is directed to transfer this case to the New
York State Supreme Court, County of Erie;
FURTHER, that Plaintiffs shall file an affidavit describing the attorneys’ fees and
costs incurred in connection with Plaintiffs’ Motion to Remand by April 9, 2012.
SO ORDERED.
Dated: March 6, 2012
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Judge

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