United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
SARA L. ELLIS, District Judge.
In this matter, approximately 40 Plaintiffs brought suit against The Boeing Company ("Boeing") in the Circuit Court of Cook County, Illinois, alleging that they suffered injuries aboard a Boeing aircraft. Additionally, three Plaintiffs named the operator of the flight, LOT Polish Airlines ("LOT"), as a Defendant. Boeing answered the complaint and simultaneously filed third-party claim against LOT seeking contribution and indemnification. LOT then removed the entire case to federal court under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330(a), 1441(d), 1602 et seq. Now before the Court is Plaintiffs' motion to sever the claims against Boeing from the first- and third-party claims against LOT and to remand the claims against Boeing to state court. The Court denies Plaintiffs' motion . Removal was proper under the FSIA, which governs actions against foreign governments and corporations like LOT that are majority owned by foreign governments. Because removal was based on the FSIA rather than § 1331 subject matter jurisdiction, the Court finds that the entire action may remain in federal court. Additionally, the Court finds that even if the FSIA did not provide federal jurisdiction over the entire action, the Court has original jurisdiction over the claims against LOT and supplemental jurisdiction over Plaintiffs' claims against Boeing.
Plaintiffs were passengers aboard LOT flight 16 from Newark, New Jersey to Warsaw, Poland on November 1, 2011 ("Flight 16"). LOT is majority owned by the Republic of Poland. Flight 16's landing gear did not deploy, resulting in a wheels-up landing at Warsaw's Chopin Airport. Approximately 40 of Flight 16's passengers brought an Illinois state court complaint against Boeing alleging that Boeing was responsible for their physical and emotional injuries resulting from the wheels-up landing. Plaintiffs assert that Boeing is liable for their injuries because the landing gear failed to deploy as a result of multiple failures in the aircraft's central hydraulic system, I know that the aircraft did not properly warn crews of these failures, and that Boeing did not adequately educate crews in responding to these failures. Three of those Plaintiffs also brought state law claims against LOT, alleging that as the operator of the aircraft, LOT was liable for their injuries.
Boeing answered the complaint and also brought a third-party complaint against LOT in Illinois state court seeking contribution and indemnification. In short, Boeing alleges that any injuries were proximately caused by the negligence of LOT personnel, and asserts that LOT had agreed to defend, hold harmless, and indemnify Boeing for all damages awarded to Plaintiffs as well as expenses Boeing incurs defending Plaintiffs' claims. LOT removed the entire action to federal court under 28 U.S.C. § 1441(d).
A case filed in state court that could have been filed originally in federal court may be properly removed to federal court. 28 U.S.C. § 1441; Tylka v. Gerber Prods. Co., 211 F.3d 445, 448 (7th Cir. 2000). The removing party bears the burden of demonstrating that removal is proper, and any doubt regarding jurisdiction should be resolved in favor of remand. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009). A case may be remanded for lack of subject matter jurisdiction or, if timely raised, for failure to comply with the removal statutes. 28 U.S.C. §§ 1446, 1447(c); GE Betz, Inc. v. Zee Co., 718 F.3d 615, 625-26 (7th Cir. 2013).
I. Mandatory Severance and Remand
Plaintiffs assert that § 1441(c)(2) requires the Court to sever all claims against Boeing and to remand these claims to state court. Section 1441(c) applies to joinder of federal and state law claims. It provides that if a civil action includes a claim governed by § 1331 federal subject matter jurisdiction and another claim not within a federal court's jurisdiction, the entire action may be removed to federal court. But after such removal, a district court "shall sever from the action all claims" not within the court's original or supplemental jurisdiction. 28 U.S.C. § 1441(c)(2).
Defendants contend that § 1441(c) is irrelevant here and that § 1441(d), the jurisdictional provision of the FSIA, provides jurisdiction over the entire action. The FSIA applies to suits against foreign states. Section 1441(d) sets out that "[a]ny civil action against a foreign state... may be removed" to federal district court and that "[u]pon removal the action shall be tried by the court without jury." 28 U.S.C. § 1441(d). The provision applies not only to foreign states, but also their instrumentalities, including businesses like LOT that are majority owned by a foreign government. Dole Food Co. v. Patrickson, 538 U.S. 468, 477, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003) ("A corporation is an instrumentality of a foreign state under the FSIA only if the foreign state itself owns a majority of the corporation's shares.").
Boeing and LOT, who separately respond to Plaintiffs' motion, argue that severance and remand as set out in § 1441(c) does not apply to actions removed to federal court under the FSIA. Rather, they argue that § 1441(c) applies only to actions where the federal claim derives federal subject matter jurisdiction from § 1331. Defendants further contend that removing the entire action is appropriate where some claims are governed by the FSIA. The Court agrees with Defendants. By its own terms, § 1441(c) applies only to actions that derive federal jurisdiction via § 1331. Therefore, the severance and remand provision in § 1441(c)(2) is inapposite to the present case, which derives its federal jurisdiction from the FSIA.
Congress enacted the FSIA to establish standards governing when foreign states and their instrumentalities may be sued in the United States. In re Air Crash Disaster Near Roselawn, Ind. on Oct. 31, 1994, 96 F.3d 932, 936 (7th Cir. 1996). The FSIA preserves a foreign state's immunity from suit unless the foreign sovereign waives such immunity or engages in commercial activity. Id. But where a suit against a foreign sovereign is allowed to proceed, the FSIA provides federal jurisdiction and dictates that judges, not juries, will serve as the arbiters of fact. Id. In enacting the statute, Congress intended to "insulate foreign states from jury trials" and "to promote uniformity in cases involving foreign governments" by providing foreign sovereigns with access to federal courts. Id. at 936-37.
The Seventh Circuit has interpreted § 1441(d) broadly, finding that it grants federal jurisdiction over an entire action if any claim falls within the FSIA. In Roselawn, Plaintiffs sued a domestic airline and an Italian and French government-owned aircraft manufacturer. Like here, some plaintiffs did not name the manufacturer as a direct defendant, but on those claims the airline sought indemnification and contribution from the manufacturer via a third-party complaint. Id. The Roselawn plaintiffs asserted, as Plaintiffs assert here, that § 1441(d) provides federal jurisdiction only to third-party claims against the foreign state defendant, not the claims against the domestic defendant. The district court rejected this argument and the Seventh Circuit agreed, holding that the entire action may remain before the federal court, not only those claims against the foreign sovereign. The Seventh Circuit pointed out that "[n]early all courts to have considered this issue have rejected plaintiffs' position and held that where minimal diversity exists between parties, a foreign state may invoke § 1441(d) to remove an ...