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LEITH v. LUFTHANSA GERMAN AIRLINES

May 22, 1992

MYRON P. LEITH and ROSEMARIE C. LEITH, Plaintiffs,
v.
LUFTHANSA GERMAN AIRLINES, a corporation, Defendant. and JANUSZ W. KIECA, Defendant.



The opinion of the court was delivered by: JAMES B. MORAN

 These personal injury actions arose out of an accident involving plaintiff Myron P. Leith. He and his spouse, Rosemarie C. Leith, sued defendants Lufthansa German Airlines (LGA) and Janusz W. Kieca (Kieca) in the Illinois Circuit Court. Both defendants petitioned to remove their respective cases to federal court. Before us now are plaintiffs' petitions to remand each case to state court based on several alleged defects in the removal procedure. *fn1" For the reasons set forth below we deny plaintiffs' petitions.

 BACKGROUND

 On February 11, 1991, Myron Leith was injured when he was struck by a forklift driven by Kieca, an employee of LGA, at O'Hare International Airport. The accident occurred on a loading dock allegedly operated by LGA. LGA and Kieca deny any negligence in connection with the accident and attribute any fault to either Myron Leith or unnamed third parties. On October 17, 1991, plaintiffs sued LGA (the LGA suit) in the Circuit Court of Cook County. The summons and complaint were served on October 22, 1991. On November 22, 1991, LGA, claiming to be an instrumentality of a foreign state under the Foreign Sovereign Immunity Act (FSIA), 28 U.S.C. § 1602 et. seq.,2 petitioned to remove the case to federal court. See 28 U.S.C. § 1441(d). Because LGA filed its petition 31 days after being served the summons and complaint, in violation of the governing statute's 30-day requirement, *fn3" plaintiffs seek a remand. Before we rendered our decision plaintiffs sued Kieca (the Kieca suit) in the Circuit Court of Cook County. Kieca received his summons and complaint on January 22, 1992, and on February 18, 1992, filed a timely petition to remove the lawsuit to federal court. In response to Kieca's petition plaintiffs argue that federal court jurisdiction is improper on the grounds that the FSIA does not apply to low-level employees of a foreign instrumentality and that no other permissible grounds for invoking jurisdiction exist. Kieca contends jurisdiction is proper either independently under FSIA or as an action pendent to the LGA proceeding pursuant to 28 U.S.C. § 1367.

 DISCUSSION

 A. LGA Suit

 To determine whether federal jurisdiction in plaintiffs' suit against LGA or Kieca, or both, is proper, we must examine the language and policy of the FSIA. Enacted in 1976, the FSIA's aim is to delineate "when and how parties can maintain a lawsuit against a foreign state or its entities in the courts of the United States and to provide when a foreign state is entitled to sovereign immunity." H.R. Rep. No. 1487, 94th Cong., 2d Sess. 6 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6604 (H. Rep.). Congress believed foreign states needed "clear authority" to litigate in a federal forum because of the "potential sensitivity of actions against foreign states and the importance of developing a uniform body of law . . . ." H. Rep. at 32. As a result, Congress included a provision that governs the removal of cases from state to federal court. It states:

 Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without a jury. Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown.

 28 U.S.C. § 1441(d).

 Plaintiffs argue that LGA's one day delay in petitioning for removal should preclude federal jurisdiction. We disagree. Section 1441(d) requires a foreign state to show "cause" for not complying with the 30-day rule of § 1446(b). Factors courts consider in determining whether cause has been shown include the purpose of the FSIA removal provision, the progress of the state proceeding, any prejudice to the parties, and the effect on the substantive rights of the parties. Refco, Inc. v. Galadari, 755 F. Supp. 79, 83 (S.D.N.Y. 1991). Application of these factors yields but one result. We should deny plaintiffs' petition.

 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 ...


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