United States: Multidefendant Aviation Accident Case Highlights Removal Issues

Marc Antonecchia is a Partner in Holland & Knight's New York office

A recent decision out of the Eastern District of Pennsylvania1 is a cogent reminder that federal courts are of limited jurisdiction. The case is particularly instructive because it addresses several procedural questions that often arise in the context of a multiple-defendant, aviation accident case, particularly where private parties have undertaken certification functions regulated by the FAA.

The estates and family of a pilot and his wife commenced the action in Pennsylvania state court against the engine manufacturer and others arising from the crash of a private airplane in Missouri. Plaintiffs alleged that the cause of the crash was engine failure due to an improper and inadequate magneto, ignition system, attachment system, and gasket interface. The complaint asserted state law causes of action including strict liability, negligence, breach of warranty, and negligent infliction of emotional distress -- none of which involved a federal question.

Certain defendant manufacturers, collectively referred to as the Continental Defendants, removed the action to federal court2 alleging diversity jurisdiction3 and federal officer removal jurisdiction.4 Plaintiffs then filed a motion to remand to state court. In assessing jurisdiction, the court noted that the party asserting jurisdiction has the burden of showing at all stages of the litigation the case is properly before the federal court. The court held that the moving defendants (a) improperly removed under the federal officer removal statute; (b) filed a procedurally defective notice of removal by failing to comply with the unanimity rule; and (c) improperly removed based on the "forum-defendant rule." As a result, the court remanded the case.

No Federal Officer Jurisdiction

The federal officer removal statute extends removal authority to persons "acting under" an officer of the United States. The Continental Defendants removed the action on the ground that defendant Continental Motors Inc. "acted as an officer of the United States under color of such office" in performing airworthiness certifications pursuant to the FAA's comprehensive and detailed set of regulations. The Continental Defendants argued that in performing the conduct alleged by the complaint they acted pursuant to 49 U.S.C. § 44702(d), which provides that the FAA "may delegate to a qualified private person or to an employee under the supervision of that person, a matter related to: (A) the examination, testing, and inspection necessary to issue a certificate under the chapter; and (B) issuing the certificate."

In rejecting removal on this basis, the court relied on similar decisions,5 including the Seventh Circuit's decision in Lu Junhong v. Boeing6 in which Boeing had argued that it was "acting under" the FAA when it analyzed the adequacy of its autopilot and autothrottle systems using FAA-approved procedures and certified that the systems met FAA requirements. Quoting the Seventh Circuit, the court reaffirmed that "certifications just demonstrate a person's awareness of the governing requirements and evince a belief in compliance," and "that being regulated, even when a federal agency directs, supervises and monitors a company's activities in considerable detail, is not enough to make a private firm 'acting under' a federal agency."7 Specifically, the court found that the claims against the Continental Defendants concerning the systems that they designed and manufactured arose from their "duty to comply with the applicable regulatory requirements and standards of care" and that Congress never intended to afford federal officer status through such compliance with federal laws, rules, and regulations.

Defendants Fail to Comply With Unanimity Rule

In order for removal to be proper, all served defendants must unanimously join or consent to the removal through a timely-filed, express written indication of consent.8 In order to meet the "timely-filed" prong, all defendants must consent within the thirty-day period. Although the Continental Defendants' Notice of Removal mentioned that they had the consent of certain other defendants, the court found the assertion insufficient because none of those defendants filed an express written consent to the removal until over a month after the Notice of Removal had been filed. In addition, the Continental Defendants failed to even mention having received consent from certain other defendants, and thus there was no evidence that those defendants had been consulted on the removal.

Forum-Defendant Rule Defeats Removal

28 U.S.C. § 1441(b)(2) 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." Although the complaint alleged that at least three defendants were citizens of Pennsylvania, the Continental Defendants argued that those particular defendants had been fraudulently joined or were nominal parties. The complaint, however, alleged that those defendants had "designed, manufactured, tested, inspected, trained, advertised, marketed, warranted, distributed, licensed, sold, supplied, overhauled, and/or rebuilt gaskets used to interface between the magneto and engine accessory case," had breached duties arising from these activities, and that such breach caused the accident. Accepting the factual allegations as true, the court determined that the Continental Defendants could not demonstrate that the other defendants had been fraudulently joined or were nominal parties.

Footnotes

1. __ F. Supp. 3d __ (2016), 2016 WL 913267 (E.D. Pa. Mar. 10, 2016)

2. A defendant seeking removal of an action must file a notice of removal with the district court within thirty days of service of the complaint. 28 U.S.C. § 1446(b).

3. Under 28 U.S.C. § 1332(a), a federal district court has original jurisdiction over all civil actions between citizens of different states when the amount in controversy exceeds $75,000, excluding interest and costs.

4. Under 28 U.S.C. § 1442(a)(1), an action may be removed to federal court by "any person acting under [a federal] officer."

5. See e.g., Brokaw v. Boeing Co., No. 15-cv-4748, __ F. Supp. 3d __, 2015 WL 5915996 (N.D. Ill. Oct. 5, 2015) (federal officer jurisdiction lacking where there was some tangential involvement by federal government but the private defendant made the actual decisions that formed the basis of plaintiff's claims); Swanstrom v. Teledyne Continental Motors, Inc., 531 F. Supp. 2d 1325 (S.D. Ala. 2008) (no removal on basis that defendant had employees designated as FAA authorized agents); Vandeventer v. Guimond, 494 F. Supp. 2d 1255 (D. Kan. 2007) (defendant did not stand in the shoes of the FAA, or act under a federal officer or agency, when he conducted airworthiness inspection and certification)

6. 792 F. 3d 805 (7th Cir. 2015) (Boeing not entitled to removal on the basis that "federal regulations require it to assess and certify the airworthiness of its planes").

7. For further discussion of Lu Junhong, see Holland & Knight's Centerline Alert, Seventh Circuit Finds Admiralty Jurisdiction in Asiana Airlines Lawsuits, at https://www.hklaw.com/publications/Seventh-Circuit-Finds-Admiralty-Jurisdiction-in-Asiana-Airlines-Lawsuits-07-09-2015/

8. 28 U.S.C. § 1446(b)(2)(A).

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