MEMORANDIM AND OPINION
Pending before this court are the following motions:
• defendants’ motion for summary judgment based on the General Aviation Revitalization Act (“GARA”), § 2(a), 49 U.S.C.A. § 40101, Note, § 2(a) (West Supp.1995) (Docket Entry Nos. 3, 19, and 34); 1
• defendants’ motion to dismiss for forum non conveniens (Docket Entry No. 16);
• plaintiffs’ motions to remand to state court for lack of subject matter jurisdiction (Docket Entry Nos. 21 and 35); and
• defendants’ motion to rule on the motion to dismiss for forum non conveniens prior to ruling on plaintiffs’ motion to remand to state court (Docket Entry No. 23).
Based on the pleadings, motions, submissions, and applicable law, this court DENIES defendants’ motion to have this court rule on the motion to dismiss based on forum non conveniens before ruling on plaintiffs’ motion to remand; DENIES plaintiffs’ motion to remand; GRANTS defendants’ motion for summary judgment based on GARA; and DENIES as moot the motion to dismiss based on the doctrine of forum non conve-niens, for the reasons stated below.
I. Background
On November 24, 1993, lian Alter and Abraham Gad were killed in the crash of a Bell 206 helicopter near Beit-Kama, Israel. Gila Alter (“Alter”), the surviving wife of Han Alter and next friend of Ron and Nitzan Alter, filed this wrongful death action in the state district court in Harris County, Texas, on August 31, 1995. Dalia Gad (“Gad”), the surviving wife of Abraham Gad and next friend of Danit and Ayelet Gad, filed a separate wrongful death action in the state district court in Harris County, Texas, on November 20,1995. In those lawsuits, plaintiffs alleged that defendants negligently designed, manufactured, tested, and sold the helicopter and its component parts, and negligently drafted, edited, published, and sold maintenance manuals for the helicopter. Plaintiffs’ theory of the ease is that an engine compressor stator vane which had a propensity to prematurely fatigue and fail broke, which caused the engine to stall and the helicopter to crash, and that defendants failed to warn in the maintenance manual that the thickness of the engine compressor stator vane had to be cheeked at the root in order to determine the extent of wear.
Defendants Bell Helicopter Textron Inc. (“Bell”) and General Motors Corporation *534 (“General Motors”) removed the Alter case to federal court on October 27, 1995 and the Gad case on February 2,1996.
Plaintiffs have moved to remand both the Alter and Gad cases. Defendants respond that this court has diversity and federal question jurisdiction. Defendants seek dismissal of both cases based on forum non conveniens and argue that the court should decide whether to dismiss based on forum non conveniens before deciding whether this court has subject matter jurisdiction. Defendants also seek summary judgment based on GARA.
II. Defendants’ Motion for a Ruling on the Motion to Dismiss for Forum Non Conveniens Prior to a Ruling on Plaintiffs’ Motion to Remand
A court must determine whether it has jurisdiction over an action before considering a motion to dismiss on the ground of
forum non conveniens. Gulf Oil v. Gilbert,
III. Plaintiffs’ Motions to Remand
Plaintiffs argue that these lawsuits are not removable because the complaints do not raise a federal question and because defendant Bell is a Texas resident. Defendants argue that removal was proper because Bell was fraudulently joined and because, in the Alter ease, plaintiffs waived their right to seek remand because they did not move to remand within thirty days from removal. Defendants also contend that these actions arise under federal law because: GARA completely preempts plaintiffs’ claims; plaintiffs rely on a treaty with a foreign state 'to establish a cause of action; and plaintiffs seek to regulate foreign air space and invoke the federal common law of international relations.
A. Waiver of Procedural Defects in Removal: The Alter Case
Plaintiff Alter argues that this court does not have removal jurisdiction because Bell is a resident of the forum state. Defendants argue that Alter waived her right to object to the in-state defendant’s removal of this action because Alter did not file her motion to remand within thirty days of removal. The parties agree that complete diversity exists between Alter and defendants and that Bell is a Texas resident.
28 U.S.C. § 1441(b) provides as follows:
Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
28 U.S.C. § 1447(c) provides:
A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal ...
Defendants in the Alter case filed their notice of removal on October 27,1995. Alter did not file her motion to remand until January 16,1996. Alter argues that her objection to defendants’ removal of this action is not based on a procedural “defect,” but is “substantive” in nature.
The Fifth Circuit has held that “[djefects in removal procedure include, inter alia, the removal of an action that could have been filed originally in federal court but could not be removed to federal court if it were filed originally in state court.”
Pavone v. Mississippi Riverboat Amusement Co.,
Alter alternatively argues that she did not waive her objection to removal because she informed the court that she planned to file a remand motion. On November 15, 1995, within the thirty-day deadline, Alter filed a motion with this court which states, “[pjlain-tiff requires additional time to determine whether a motion to remand is appropriate.” (Docket Entry No. 6, p. 2).
Alter does not cite any authority which expands the thirty-day window for filing her motion to remand. Federal courts strictly observe the thirty-day deadline for filing motions to remand.
In re Shell Oil Co.,
The motion to remand the Alter case is DENIED.
B. Fraudulent Joinder: The Gad Case
Defendants argue that as a matter of law, GARA prevents any possibility of recovery by the Gad plaintiffs against Bell and that Bell’s presence in this lawsuit therefore does not preclude removal.
1. The Fraudulent Joinder Criteria
To demonstrate that a defendant has been fraudulently joined to defeat removal jurisdiction, the removing party bears the heavy burden of proving either that: (1) there has been outright fraud in the plaintiffs recitation of jurisdictional facts; or (2) there is no possibility that the plaintiff would be able to establish a cause of action in state court against the defendants whose citizenship prevents removal.
Burden v. General Dynamics Co.,
There is no contention that the plaintiff is guilty of actual fraud in her pleading. The only issue is whether the defendants have carried their heavy burden of showing that there is no possibility that the plaintiff has a cause of action against Bell in state court.
In determining whether a case was properly removed, a district court must not “pre-try” substantive factual issues in order to answer the discrete threshold question of whether the joinder of an in-state defendant is fraudulent.
Dodson v. Spiliada Maritime Co.,
Defendants argue that under GAEA, there is no possibility that plaintiff could establish a cause of action in the Texas state court against Bell. In the Fifth Circuit, a removing party’s claim of fraudulent joinder to destroy removal jurisdiction is analyzed under standards similar to a motion for summary judgment.
LeJeune v. Shell Oil Co.,
2. GARA and the Failure to Warn
GARA provides as follows:
[N]o civil action for damages for death or injury to persons or damage to property arising out of an accident involving a general aviation aircraft may be brought against the manufacturer of the aircraft or the manufacturer of any new component, system, subassembly, or other part of the aircraft, in its capacity as a manufacturer if the accident occurred—
(1) after the applicable limitation period [18 years] beginning on—
(A) the date of delivery of the aircraft to its first purchaser or lessee, if delivered directly from the manufacturer; or
(B) the date of first delivery of the aircraft to a person engaged in the business of selling or leasing such aircraft; or
(2) with respect to any new component, system, subassembly, or other part which replaced another component, system, su-bassembly, or other part originally in, or which was added to, the aircraft, and which is alleged to have caused such death, injury, of damage, after the applicable limitation period beginning on the date of completion of the replacement or addition.
49 U.S.C.A. § 40101, Note, § 2(a) (West Supp.1995).
GARA “supersedes any State law to the extent that such law permits a civil action” to be brought after the eighteen-year limitation period. 49 U.S.C.A. § 40101, Note, § 2(d). Plaintiff admits that more than eighteen years passed between the first delivery of the helicopter and the engine from the manufacturer and the accident. (Docket Entry No. 32, Affidavit of Mare Moller, Counsel for Plaintiffs, ¶ 2). The summary judgment evidence includes affidavits from Bell’s and General Motors’s representatives, which establish the following points:
• The engine component alleged to have failed causing the crash, was a compressor section, serial number 38228, part number 6853337. This compressor section was manufactured by the Allison Gas Turbine Division of General Motors Corp. (“Allison”) on April 8, 1975 and shipped directly from Allison to Bell on April 14, 1975. The engine, serial number CAE-822569, was manufactured and assembled on April 7, 1995 and shipped from Allison to Bell on April 15, 1975.
• Bell first sold the helicopter to Chimavir Services, Ltd. in Tel Aviv, Israel, on May 20, 1975. It was delivered on or before August 30,1975.
• After the date of delivery, neither General Motors nor Bell made any changes to the helicopter or to the compressor section of the engine.
(Docket Entry No. 3, Affidavit of Ben James Brown, Manager of Commercial Marketing Administration for Bell; Docket Entry Nos. 1 and 19, Affidavits of Jeffrey W. Edwards, Manager, Accident Investigations for Allison).
The record before this court shows that the helicopter and the engine component asserted to have caused the crash were manufactured and delivered in 1975. Under GARA, there is no possibility of recovery against Bell under Texas state law for negli
*537
gent design, manufacture, or testing of the helicopter and the component engine part alleged to have caused the crash.
See, e.g., Altseimer v. Bell Helicopter Textron Inc.,
Plaintiff argues that GARA does not preclude recovery against Bell under Texas law for defective marketing or failure to warn. Plaintiffs assert that Bell issued maintenance manuals within the eighteen-year limitation period, and that the manuals contained a misleading statement that proximately caused the helicopter crash. Plaintiff alleges that the maintenance manual contained instructions on how to inspect the engine compressor stator vane that, if followed, would not enable a mechanic to detect serious wear and tear in that component. Plaintiff relies on the Israeli government investigation report of the accident, which stated as follows:
The manufacturer’s instruction relating to the inspection of the engine compressor stator vanes erosion, during the periodical checks, was drafted in a misleading manner, which brought up the understanding that thickness had to be checked at the outer end rather than at the root of the vane.
(Docket Entry No. 30, Affidavit of David Fiol, Exhibit 1, p. 28).
Plaintiff submitted summary judgment evidence that either Bell, the helicopter manufacturer, or the General Motors subsidiary that manufactured the engine, reissued and revised the maintenance manual approximately twice a year since 1974. (Docket Entry No. 30, Affidavit of David Fiol, Exhibit 2). There is no evidence as to when the language criticized in the Israeli investigation report first appeared in the manual. Plaintiff argues that GARA does not apply because of the “delivery within the repose period of manuals which Israeli authorities have identified as misleading.... By refusing to apply the statute of repose under these circumstances, courts will ensure that defendants don’t take lightly their obligation to incorporate new information as the manuals are republished, so that accidents do not repeat themselves needlessly and senselessly.” (Docket Entry No. 29, p. 6).
Plaintiff asserts causes of action only under Texas law.
2
Plaintiff has asserted, or could assert, causes of action under Texas law for strict liability based on a marketing defect that made the helicopter unreasonably dangerous,
see Caterpillar, Inc. v. Shears,
Gad alleged in her original petition that Bell and General Motors were negligent, as follows:
(1) in carelessly designing, manufacturing, testing and selling the subject aircraft and its component parts; and (2) in carelessly and negligently drafting, editing, publishing and selling the applicable maintenance manuals.
(Docket Entry No. 1, p. 4).
Gad also alleged that the helicopter engines were defectively designed, manufactured, tested and sold in that there was a:
*538 propensity of the stator vane to prematurely fatigue and fail and the failure to prescribe appropriate and reasonable inspection procedures to detect such conditions prior to failure, and the defective manuals by Bell and General Motors created an unreasonably dangerous condition in the aircraft, its engines and component parts ...
(Id. at 5).
Gad also alleged a breach of an implied and/or express warranty of merchantability, which was breached by Bell and General Motors by “furnishing a helicopter and engines and relevant maintenance manuals that were not fit for the ordinary purposes for which such goods are used.” (Id.).
Plaintiff first argues that GARA does not preclude the defective marketing or failure to warn claims because manufacturers’ maintenance manuals are covered under section 2(a)(2) of GARA, which states that the eighteen-year repose period must be applied separately to “any new component, system, subassembly, or other part which replaced another component, system, subassembly, or other part originally in, or which was added to, the aircraft....” Plaintiff argues that a manual revision is a “new component, system, subassembly, or other part which replaced another component, system, subas-sembly, or other part originally in, or which was added to, the aircraft” under section 2(a)(2) of GARA.
The parties cite no Fifth Circuit or Texas case involving similar facts or law. However, a similar argument has been rejected by the Tenth Circuit in a case involving a statute of repose under state law.
In
Alexander v. Beech Aircraft Corp.,
This result is consistent with the language of GARA. Section 2(a)(2) of GARA states that a replacement “component, system, su-bassembly, or other part” must replace a “component, system, ... or other part” “originally in” or “added to” the aircraft. The manual was not a “part” “originally in” or “added to” the aircraft. The manual revisions are not a replacement “component, system, subassembly, or other part” that started a new limitations period under section 2(a)(2).
This result is also consistent with the holdings of a number of federal courts applying state statutes of repose similar to GARA. These courts have held that manufacturers’ maintenance and repair manuals are not a “separate” product or component upon which plaintiffs may base a claim to avoid a repose statute.
See, e.g., Schamel v. Textron-Ly-coming,
In
Schamel v. Textron-Lycoming,
[D]efendant had a duty to provide the service information and, thus, the provision of such information was not a voluntary undertaking distinct from the obligations inherent in the initial sale of the product. Accordingly, the plaintiff merely alleges that the defendant breached its continuing duty to warn by not establishing a safe fatigue life for the connecting rods. [H]owever, an action for damages resulting from the alleged failure of a manufacturer or seller to warn a user of its product’s latently defective nature is certainly a product lability action [and covered by the Product Liability Act and its statute of repose].
Id,
In
Kochins v. Linden-Alimak, Inc.,
The Sixth Circuit explained as follows:
We do not think that the Tennessee Supreme Court would interpret the word “product”... to include the instruction manual ... Although the definition of a “product liability action” includes actions based upon the “warning” or “instruction ... of any product,” and, while a failure to warn or provide proper instructions are theories upon which a plaintiff may proceed, the instructions themselves are not a “product” as defined by the act. While we agree that, under Tennessee law, a manufacturer’s failure to provide proper warnings or adequate instructions for the use of its product may render the product defective or unreasonably dangerous in use, even if the product contains no manufacturing or design defect, we do not agree that the warnings and instructions themselves are a “product”... Language of instruction cannot be “defective or unreasonably dangerous” in itself.
Id.
(citations omitted).
See also Alexander v. Beech Aircraft Co.,
In
Butchkosky v. Enstrom, Helicopter Co.,
To hold that [the defendant] should be liable because its manuals issued within the period of repose did not provide an adequate means of correcting the design flaw of the critical component, would be to circumvent the statute of repose by provid *540 ing a back door to sue for the design flaw — ostensibly not for the design flaw itself, but for the failure of the manuals to adequately correct the flaw. The result would be the evisceration of the statute of repose. If a plaintiff is precluded by the statute of repose from suing for a design flaw in a product, the plaintiff must also be precluded from suing for a failure to correct the design flaw, whether that failure be in the inadequacy of the text of a subsequently issued owner’s manual or in repair guidelines subsequently sent to mechanics.
Id. at 1255 (emphasis added). Because the instructions were not themselves a product under the state’s product liability statute, their issuance within the repose period did not recommence the running of the statute of repose.
Plaintiff relies on
Driver v. Burlington Aviation, Inc.,
The state court of appeals held that the plaintiffs’ claim would not be precluded by the statute of repose if the plaintiffs could establish that the information manual had been sold within the limitations period. The court explained that the manual, and not the aircraft, was the only defective product which created the plaintiffs’ cause of action.
Id.
Texas has adopted the strict product liability law set out in section 402A of the Restatement (Seoond) of ToRts (1965). As the Texas Supreme Court recently stated, under section 402A(1) of the RestatemeNt:
A product may be unreasonably dangerous because of a defect in manufacturing, design, or marketing. See Turner v. General Motors Corp.,584 S.W.2d 844 , 847 (Tex.1979). A defendant’s failure to warn of a product’s potential dangers when warnings are required is a type of marketing defect. See Lucas v. Texas Indus., Inc.,696 S.W.2d 372 , 377 (Tex.1984). Liability will attach if the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous. Id.
Caterpillar,
The Texas law on strict liability for manufacturing defects appears to be the same in relevant aspects as that considered by the Seventh Circuit in Schamel v. Textron-Ly-coming; by the Sixth Circuit in Kochins v. Linden-Alimak; and the Tenth Circuit in Alexander v. Beech Aircraft, 5 These courts held that under state statutes of repose similar to GARA, the manufacturer’s provision of maintenance and repair manuals was part of its duty to warn as a manufacturer. The *541 statutes of repose extinguished the manufacturers’ liability arising from this duty the specified number of years after the first delivery of the product.
GARA clearly prohibits a lawsuit arising from design or manufacturing defects in an aircraft delivered more than eighteen years before the accident. As in Alexander and the other similar authorities noted above, plaintiff in the Gad case is asserting a claim of failure to warn concerning a condition in the aircraft as it was manufactured and delivered in 1975. The complaint attempts to assert this as a replacement part theory by claiming that Bell issued manuals within the repose period that did not adequately warn of the propensity of the stator vane to fatigue and fail prematurely and to prescribe proper inspection procedures to detect this design flaw. GARA precludes any recovery under state law for latent defects present at the time of manufacture. Applying the authorities cited above, GARA also precludes the possibility that plaintiff could establish a cause of action under Texas law for defective marketing or failure to warn against Bell based on allegedly misleading inspection instructions in the maintenance manual that failed to warn or allow detection of the design flaw.
Plaintiff also argues that GARA does not apply to accidents that occur in a foreign country, relying on
Smith v. United States,
The cases relied on by plaintiff involve statutes which create a cause of action. GARA, in contrast, eliminates certain claims against aircraft and component manufacturers. Plaintiff has not cited any authority which holds that a federal statute barring enforcement of claims in courts of the United States bars only claims arising within the United States. Plaintiff’s interpretation of GARA would have the anomalous effect of preventing litigants from bringing an action in the United States for an accident occurring in the United States while allowing litigants to bring the same action in the United States if the accident occurred abroad.
GARA bars civil actions arising out of accidents involving any general aviation aircraft or component part that is more than eighteen years old. Section 2(d) of GARA provides that GARA “supersedes any State law to the extent that such law permits a civil action ... to be brought after the ... limitation period.” Plaintiffs state that “[t]his action is brought pursuant to the “Wrongful Death Act’ and ‘Survival Act’ of the State of Texas,” Tex.Civ.PRAC. & Rem.Code Ann. §§ 71.001-71.011, 71.021 (Vernon 1986), and that Texas law applies. (Docket Entry No. 1, p. 2, and No. 29, pp. 8-9). GARA shows a clear intent to bar any claim based on state law, including claims based on accidents occurring outside the United States. GARA bars plaintiffs claims against Bell.
Because plaintiff has no possibility of recovery against Bell, Bell’s presence in this lawsuit does not prevent removal. This court has subject matter jurisdiction over the Gad case. 6
IY. Defendants’ Motion for Summary Judgment Based on GARA
Having jurisdiction over both cases, and having earlier converted the motions to dismiss into motions for summary judgment, this court now considers Bell’s and General Motors’ motions for summary judgment.
*542 Based on the summary judgment record and the authorities, this court GRANTS the motion for summary judgment based on GARA, for the reasons stated in detail above. As the court stated in Altseimer:
Although harsh, such a result is consistent with the purpose of GARA to ... establish a Federal statute of repose to protect general aviation manufacturers from long-term liability in those instances where a particular aircraft has been in operation for a considerable number of years. A statute of repose is a legal recognition that, after an extended period of time, a product has demonstrated its safety and quality, and that it is not reasonable to hold a manufacturer legally responsible for an accident or injury occurring after that much time has elapsed.
Y. Order
This court DENIES defendants’ motion to have this court rule on the motion to dismiss for forum non conveniens before ruling on plaintiffs’ motion to remand; DENIES plaintiffs’ motion to remand; GRANTS defendants’ motion for summary judgment based on GARA; and DENIES as moot the motion to dismiss based on the doctrine of forum non conveniens.
Notes
. On October 27, 1995, defendant Bell Helicopter Textron Inc. filed a motion to dismiss for failure to state a claim upon which relief could be granted pursuant to Fed.R.Civ.P. 12(b)(6). (Docket Entry No. 3). On December 12, 1995, the court converted this motion to a motion for summary judgment. (Docket Entry No. 13). On February 16, 1996, defendant General Motors Corporation joined in Bell’s dispositive motion. (Docket Entry Nos. 19 and 34).
The court consolidated Civil Action No. H-95-5046 with No. H-96-364 at a motion hearing on February 9, 1996. At that hearing, the parties agreed that the motions previously filed in No. H-95-5046 would also apply to No. H-96-364.
. (Plaintiff's Original Complaint in the Alter case. Docket Entry No. 1, p. 2; Plaintiff’s Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment Based on GARA, Docket Entry No. 29, p. 8-9; Plaintiff's Original Complaint in the Gad case, Docket Entry No. 1, p. 2).
. Section 324A provides as follows:
Liability to Third Person for Negligent Performance of Undertaking.
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Quoted in, Seay v. Travelers Indemnity Co.,
. Under Texas law, a plaintiff can predicate a products liability action on a breach of warranty under the U.C.C.
Syrie v. Knoll Int'l,
. The Indiana law at issue in
Schamel
also followed section 324A of the Restatement (Second) of Torts. Under Texas law, like that of Indiana, the provision of maintenance and repair instructions is not a separate and discreet post-sale undertaking creating a separate cause of action, but rather part of the manufacturer's duty to warn.
Schamel,
. Defendants also argue that this court has subject matter jurisdiction because: (1) GARA completely preempts state law; (2) plaintiffs rely on a treaty with a foreign state to establish a cause of action; and (3) plaintiffs seek to regulate foreign air space and invoke the federal common law of international relations. The court need not, and does not, reach these issues.