A federal district court's recent opinion in Dietz v. AVCO Corporation reminds defendants to comply strictly with applicable statutes when removing actions from state court. This matter arose from the August 18, 2013 crash of a Mooney M20J-201 air-craft shortly after take-off from Charles B. Wheeler Downtown Airport in Kansas City, Missouri. Plaintiffs allege the aircraft lost power because of a defective magneto housing, and filed a product liability action in state court against engine manufacturers Conti-nental Motors, Inc. and AVCO Corporation (Lycoming), as well as accessory manufacturers Ben-dix, Honeywell, Unison, Quality Aircraft Accessories and Interface Solutions, Inc. ("ISI").
Continental removed the action to federal court based upon diversity of citizenship and federal officer jurisdiction, insofar as its own employees acted as Designated Engineering Representatives ("DERs") of the FAA. The district court concluded removal was improvident for several reasons. First, the court explained that in order to qualify as a federal officer, a private person actually "must assist or help carry out the duties or tasks of the federal superior." Because Continental's DERs merely ensured the company's compliance with applicable federal regulation and standards of care, they did not satisfy this criteria for federal officer removal.
Second, the district court found that Continental's removal lacked contemporaneous written and unanimous consent of all defendants, as several defend-ants did not file consent statements with the court until one month after removal and two weeks after the plaintiffs had moved to remand. The court was not persuaded by those defendants' subsequent assurances that they had, in fact, been contacted by Continental's counsel and consented prior to removal. Furthermore, no consent was filed by ISI at any time, and Continental failed to represent that ISI had consented. These circumstances rendered removal procedurally defective, and the procedural requirements cannot be waived or extended by the court.
Finally, the district court held that diversity removal was improper pursuant to the forum-defendant rule of 42 U.S.C. §1441(b)(2), which provides that "a civil action otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." As ISI is a citizen of Pennsylvania, where the action was filed, the removal was defective. The court rejected Continental's argument that plaintiffs improperly joined ISI solely to defeat removal, finding that plaintiffs had stated viable causes of action against it.
The court denied Plaintiffs' request for attorneys' fees, costs and expenses associated with the improper removal, finding that Continental did not act with the intent to prolong litigation or impose costs upon plaintiffs. Nevertheless, Dietz demonstrates the perils of failing to comply with the substantive and procedural requirements of federal removal statutes. Dietz v. AVCO Corporation (No. 15-4324, E.D. Pa. Mar. 10, 2016).
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