Applying the first factor, we note that in cases involving domestic defendants the 30-day rule is normally applied in a strict unforgiving fashion. Here the defendant is a foreign state; therefore, we must be mindful of Congress' objective of uniformity in the law and impartiality toward the foreign entity. The Leiths contend that no uniformity in the law will be achieved by a federal court presiding over this case because it involves an "uncomplicated" personal injury allegation governed by state law. Plaintiffs miss the point. Congress did not prescribe a case-by-case predetermination of whether uniformity will be achieved. Instead, by removing state court peculiarities and possible biases, uniformity will be furthered when the federal court system adjudicates controversies involving foreign states, irrespective of the complexity of any particular case.
Next, there has been little or no progress in the LGA suit filed in the Illinois state court, thus eliminating the concern of wasting judicial resources.
Third, the Leiths contend they have been prejudiced by being denied a jury trial in violation the Seventh Amendment. This contention is unfounded. Congress understood that "one effect of removing an action under the new section 1441(d) will be to extinguish a demand for a jury trial made in the state court." H. Rep. at 33. More importantly, however, is the fact that plaintiffs do not have a constitutional right to a jury trial against LGA because jury trials against foreign states did not exist at common-law. See Arango v. Guzman Travel Advisors, 761 F.2d 1527, 1534-35 (11th Cir. 1985), cert. denied, 474 U.S. 995, 106 S. Ct. 408, 88 L. Ed. 2d 359 (1985); Harpalani v. Air India, Inc., 622 F. Supp. 69, 74-75 (N.D. Ill. 1985); Williams v. Shipping Corp. of India, 653 F.2d 875, 881-83 (4th Cir. 1981), cert. denied, 455 U.S. 982, 71 L. Ed. 2d 691 , 102 S. Ct. 1490 (1982); Refco, supra, at 84.
Also, foreign states are given 60 days in which to file an answer pursuant to 28 U.S.C. § 1608(d). Therefore, had LGA's petition been filed on the last permissible day -- 30 days after the date of service rather than 31 -- it would have had an additional 30 days in which to answer. See also H. Rep. at 32 ("in view of the 60-day period . . . and in view of the bill's preference that actions involving foreign states be tried in federal courts, the time limitations for filing a petition of removal under 28 U.S.C. 1446 may be extended 'at any time' for good cause shown."). Plaintiffs' argument requires us to accept the anomalous premise that Congress desires on the one hand, strict adherence to the 30-day rule, while at the same time granting foreign states a generous time allowance in which to respond to complaints. We reject this premise.
Finally, since we are up to the task of applying Illinois law, plaintiffs' substantive rights are not adversely affected. We hold that cause has been shown for the one day delay and therefore deny plaintiffs' petition to remand the LGA suit.
B. Kieca Suit
Jurisdiction over Kieca is not as clear-cut. Plaintiffs argue, in essence, that even if we find that LGA qualifies as a foreign state, Kieca, as a low-level employee, does not also qualify. Kieca maintains, on the other hand, that as an employee or agent of LGA he must also be deemed a foreign state for purposes of § 1441(d). In support, he cites Schroeder v. Lufthansa German Airlines, 1985 WL 3754 (N.D. Ill Nov. 8, 1985), where the court denied the plaintiff a jury trial against employees of LGA, even though the requirements for diversity jurisdiction were apparently satisfied. The court held that since LGA, as a foreign state, was not subject to a jury trial, then LGA's employees were also not subject to a jury trial. In Schroeder, the employees involved were flight crew members who allegedly received a telephone call from an unknown third person, inquiring whether the plaintiff would be on a particular flight. After certain criminal acts against the plaintiff took place, she sued LGA and its employees because she was not warned of the phone call.
Whether, by looking through the lens of agency law, a forklift driver who commits a tortious act is, for FSIA purposes, equivalent to a flight crew member who routinely receives phone calls from the general public, we leave for another day. Suffice it to say, the issue is not settled.
There is some authority, however, for the proposition that § 1441(d) calls for removing the entire "civil action," despite the fact that not all the defendants would otherwise qualify as a foreign state. Congress believed the foreign state's removal power should be available "even if there are multiple defendants and some of these defendants desire not to remove the action or are citizens of the State in which the action has been brought. H. Rep. at 32.
We cannot say without some hesitation that Congress intended to give foreign state defendants an unfettered right to remove the entire action to federal court. Therefore, we do not rest our decision on this point. We do, however, believe the Kieca suit is pendent to the LGA suit, making federal jurisdiction proper. Section 1367, which was amended effective December 1990, empowers this court to entertain pendent or "supplemental" actions. Once jurisdiction over the main claim is established, the statute mandates that the "district court shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction. . . ." 28 U.S.C § 1367(a) (emphasis added). Without question, the two claims are "so related" for purposes of supplemental jurisdiction. In fact, the complaints, answers, and affirmative defenses are virtually identical. Undoubtedly, most of any proffered evidence will apply to each claim. The statute makes clear that not only pendent claims (same parties, related claim), but also pendent parties (different parties, related claims), are meant to be included. By including "additional" or pendent parties, the statute overrules prior Supreme Court precedent -- relied on by plaintiffs herein -- which rejected pendent party jurisdiction. See 28 U.S.C.A. § 1367 (comment at p. 232) (discussing Finley v. United States, 490 U.S. 545, 104 L. Ed. 2d 593 , 109 S. Ct. 2003 (1989)).
Although there may be some support for original jurisdiction of the Kieca suit under the FSIA, § 1367 mandates our exercise of jurisdiction over both actions.
For the foregoing reasons, we deny plaintiffs' petitions to remand. The actions will remain consolidated under this court's jurisdiction.
JAMES B. MORAN
Chief Judge, United States District Court
May 22, 1992.