1:12-cv-01066
W.D.N.Y.Sep 30, 2013Background
- Plaintiffs, as alleged personal representatives of six crew members killed in National Airlines Flight 662 crash, filed state court negligence claims and later removed to federal court.
- The crash occurred near Kabul, Afghanistan, in 2010; defendants include National Air Cargo entities and Midwest ATC, with Transafrik entities as aircraft lessors and contractors.
- Removal was based on diversity, federal enclave, and federal officer grounds; Midwest ATC later joined removal alleging federal officer grounds.
- Plaintiffs moved to remand and sought limited jurisdictional discovery; defendants moved to dismiss Transafrik for lack of personal jurisdiction and other defenses.
- The magistrate judge granted limited jurisdictional discovery in part (deposing Von Campbell) and recommended denial of remand without prejudice after discovery; and denied Transafrik’s dismissal motion pending jurisdictional evaluation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complete diversity exists | Padura is domiciled in the Philippines; other plaintiffs are foreign citizens. | All plaintiffs are citizens of a foreign state; diversity present. | Complete diversity lacking; remand proceedings proceed |
| Whether federal enclave jurisdiction exists | Accident scene and airspace not exclusively under federal enclave control. | Kabul airport area and ISAF control yield exclusive federal jurisdiction. | Federal enclave jurisdiction lacking |
| Whether federal officer jurisdiction exists | Midwest ATC actions not under color of federal office; no colorable connection to federal supervision. | Midwest ATC acted under federal officer and color of federal office; removal proper. | Not conclusively shown; limited discovery ordered; remand denied without prejudice |
| Whether the government contractor and combatant activities defenses are colorable federal defenses | No clear colorable federal defenses beyond general arguments. | Defense theories (government contractor; combatant activities) support removal. | Colorable defenses contemplated; evaluation deferred pending discovery; remand denied without prejudice |
| Whether limited jurisdictional discovery should be allowed | Depose Von Campbell to test federal officer jurisdiction assertions. | Discovery unnecessary or duplicative. | Limited discovery granted (deposition of Von Campbell) with remand denied without prejudice to renew after discovery |
Key Cases Cited
- International Shipping Co., S.A. v. Hydra Offshore, Inc., 875 F.2d 388 (2d Cir. 1989) (complete diversity requirement on aliens on both sides)
- Geler v. National Westminster Bank USA, 763 F.Supp. 722 (S.D.N.Y. 1991) (citizenship of estate representative tracks decedent)
- Harris v. Kellogg, Brown & Root Services, Inc., 796 F.Supp.2d 642 (W.D. Pa. 2011) (federal enclave doctrine and enclave clause limitations)
- In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation, 488 F.3d 112 (2d Cir. 2007) (proximity of acts under color of federal office for removal prong)
- Boyle v. United Technologies Corp., 487 U.S. 500 (1988) (government contractor defense framework)
- Densberger v. United Technologies Corp., 297 F.3d 66 (2d Cir. 2002) (heightened standard for government contractor defense under MTBE context)
- Isaacson v. Dow Chemical Co., 517 F.3d 129 (2d Cir. 2008) (three elements of federal officer removal – acting under, color of office, defense)
- Willingham v. Morgan, 395 U.S. 402 (1969) (federal officer removal policy; breadth of defense)
- Jefferson County, Alabama v. Acker, 527 U.S. 423 (1999) (removal under federal officer statute requires colorable defense and official duties)
- Aiello v. Kellogg, Brown & Root Services, Inc., 751 F.Supp.2d 698 (S.D.N.Y. 2011) (combatant activities defense expansion to contractors during wartime)