Opinion
Case No. 3:01CV7115.
October 31, 2001
Cynthia W. Tesznar, Barkan Robon, Toledo, OH., for Plaintiff, Blake Watkiss, Anne F. Watkiss.
Gregory R. Elder, Barkan Robon, Toledo, OH., for Plaintiff, Blake Watkiss, Anne F. Watkiss.
Marvin A. Robon, Barkan Robon Toledo, OH, for Plaintiff, Blake Watkiss, Anne F. Watkiss.
David M Jones, Eastman Smith, Toledo, OH., Defendant, Cross Defendant, Corporate Jets, Inc., Southwest Helicopters, Inc., Michael D. Tajak.
M. Charles Collins, Eastman Smith, Toledo, OH., Defendant, Cross Defendant, Corporate Jets, Inc., Southwest Helicopters, Inc., Michael D. Tajak.
Stuart J. Goldberg, Eastman Smith, Toledo, OH., Defendant, Cross Defendant, Corporate Jets, Inc., Southwest Helicopters, Inc., Michael D. Tajak.
D. Casey Talbott, Robison, Curphey O'Connell, Toledo, OH., Defendant, Cross-Claimant, St. Vincent Mercy Medical Center.
James R Knepp, II, Robison, Curphey O'Connell, Toledo, OH., Defendant, Cross-Claimant, St. Vincent Mercy Medical Center.
Kevin M. Young, Brzytwa, Quick McCrystal, Cleveland, OH., Defendant, Cross-Claimant, St. Vincent Mercy Medical Center.
Roger A Hipp Brzytwa, Quick McCrystal, Cleveland, OH., Defendant, Cross-Claimant, St. Vincent Mercy Medical Center.
Brian C. Dalrymple, Lillick Charles LLP, San Francisco, CA., American Eurocopter Corporation, fka Aerospatiale Corporation Trust Company Eurocopter Corporation fka Aerospatiale Aero Port International DE MARSEILLE European Aeronautic Defence and Space Company. fka Aerospatiale, et al.
James H. Irmen, Marshall Melhorn, Toledo, OH., American Eurocopter Corporation, fka Aerospatiale Corporation Trust Company Eurocopter Corporation fka Aerospatiale Aero Port International DE MARSEILLE European Aeronautic Defence and Space Company. fka Aerospatiale, et al.
Steve C. Johnson, Lillick Charles LLP, San Francisco, CA., American Eurocopter Corporation fka Aerospatiale Corporation Trust Company Eurocopter Corporation fka Aerospatiale Aero Port International DE MARSEILLE European Aeronautic Defence and Space Company. fka Aerospatiale, et al.
order
This action arose from a personal injury suit against Eurocopter Corporation, in the Common Pleas Court of Lucas County, Ohio. Eurocopter, a foreign helicopter manufacturer, removed this action pursuant to its right as a "foreign state" under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq (FISA). Plaintiffs now ask this court to remand the case to the state court. For the following reasons, the plaintiffs' motion shall be denied.
BACKGROUND
This action arose from the crash of St. Vincent's Medical Center's Life Flight Helicopter on February 12, 1999, in Toledo, Ohio. Anne Watkiss, a nurse for St. Vincent's, worked on the Life Flight Helicopter and was injured when the helicopter crashed. Plaintiffs allege that, as a result of the helicopter crash, Watkiss suffered severe and permanent personal injuries, and that her husband suffered lost income and deprivation of support, services, and consortium.
DISCUSSION
Federal district courts have original jurisdiction over actions against a "foreign state." 28 U.S.C. § 1330(a). Eurocopter claims that it has a right to be heard in federal court because it is a "foreign state" as defined in FSIA, 28 U.S.C. § 1603 (a), (b).
28 U.S.C. § 1330 (a) states that "[t]he district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title."
Under FSIA, a "foreign state" includes "an agency or instrumentality of a foreign state." 28 U.S.C. § 1603(a). FSIA defines an "agency or instrumentality" as:
(1) [that] which is a separate legal person, corporate or otherwise, and
(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country.
28 U.S.C. § 1603(b). Eurocopter must meet each of the three requirements of section 1603(b) to come under FSIA.I. DECLARATION BY JEAN-PIERRE PERE IS SUFFICIENT UNDER 28 U.S.C. § 1746 Plaintiffs argue that the Pere declaration is insufficient to establish Eurocopter's "foreign state" status. I disagree. Section 1746 of 28 U.S.C. proscribes the language that must be followed to ensure the credibility of a statement by someone not governed by the laws of the United States. The relevant part of 28 U.S.C. § 1746 provides that:
Whenever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same . . . such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
To support its claim of foreign state status, Eurocopter provided the affidavit of Jean-Pierre Pere, an attorney it employs. The Pere declaration states in full:
I, Jean-Pierre Pere, declare as follows:
1. I am an attorney employed by Eurocopter S.A. ("Eurocopter") and I make this declaration in support of Eurocopter's Opposition to Plaintiff's Motion to Remand in this action.
2. From my employment duties and experience on the legal staff of Eurocopter, I have personal familiarity with Eurocopter's corporate structure and ownership and with all of the facts set forth in this declaration.
3. Eurocopter is a separate juridical entity that was formed under French law and has always been organized under French law. Eurocopter has never been organized under the laws of any other country. Eurocopter has never been incorporated in any State of the United States and has always had its principal place of business in France.
4. A substantial majority ownership interest in Eurocopter was owned by Societe Nationale Industielle Aerospatiale ("Aerospatiale, S.N.I."), which was in turn substantially majority owned by the French government, resulting in a majority indirect ownership by the French government of Eurocopter at all relevant times, including the time of Eurocopter's creation, the design, manufacture, testing, inspection and sale of the aircraft involved in this incident, and at the time of the subject incident itself, 12 February 1999.
I declare under penalty of perjury under the laws of the United States of America and the State of Ohio that the foregoing is true and correct.
Executed this 3rd day of May, 2001 at Marignane, France.
/s/ Jean-Pierre Pere
(Doc. 23).
(1) If executed without the United States: "I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)".
II. INDIRECT OWNERSHIP OF A FOREIGN CORPORATION BY A FOREIGN GOVERNMENT IS SUFFICIENT FOR THAT CORPORATION TO QUALIFY AS A "FOREIGN STATE" UNDER FSIA
28 U.S.C. § 1746.
The declaration satisfies 28 U.S.C. § 1746. Pere's declaration was written and tended to establish that Eurocopter was a foreign state under FSIA. Additionally, Pere included a sworn declaration attesting to the truthfulness of his statement under penalty of perjury.
Pere declares that Eurocopter is a separate legal person in the form of a corporation. Pere declares that, at all relevant times, the French government owned a substantial majority interest of Aerospatiale, and that Aerospatiale owned a substantial majority interest in Eurocopter. The French government, therefore, indirectly owned Eurocopter. Additionally, Eurocopter was created under the laws of France and always has been organized under French law.
Plaintiffs argue that indirect ownership of a foreign corporation by a foreign government is not sufficient for that corporation to qualify as a "foreign state" under FSIA. I disagree.
In Gould v. Pechiney Ugine Kuhlmann Trefimetaux, the Sixth Circuit held that one of the defendant corporations was a foreign state despite the French government's indirect ownership of it through an intermediary corporation. 853 F.2d 445, 447 (6th Cir. 1988); see also Delgado v. Shell Oil Co., 231 F.3d 165, 176 (5th Cir. 2000) ("[I]ndirect ownership is sufficient to confer foreign state status."); In re Air Crash Disaster Near Roselawn, Indiana, 96 F.3d 932, 939 (7th Cir. 1996) ("[N]early all courts which have confronted indirect or `tiered' ownership situations have considered majority state-owned corporations to be `agencies or instrumentalities of foreign states' under the FSIA, even where the state ownership was indirect."); Id. at 941 ("[FSIA] does not expressly require direct ownership."). But see Gates v. Victor Finer Foods, 54 F.3d 1457, 1462 (9th Cir. 1995) (rejecting indirect ownership under the FSIA).
In this circuit, Gould controls. Eurocopter was indirectly owned by the French government through an intermediary corporation Aerospatiale. For purposes of the FISA, then, Eurocopter was owned by the French Government.
III. OWNERSHIP OF EUROCOPTER IS DETERMINED WHEN THE CAUSE OF ACTION AROSE
Plaintiffs argue that ownership of Eurocopter should be determined at the time they filied this complaint. I disagree: ownership is determined at the time when the cause of action arose.
In Gould, the Sixth Circuit held that "determination of whether a party is subject to the court's jurisdiction . . . should be based upon a party's status at the time the act complained of occurred." 853 F.2d at 450. The court stated that "[a]s to completed acts upon which the complaint is based, the parties are bound by the jurisdictional facts existing at the time of those acts." Id.; see also Pere v. Nouvo Pignone, Inc., 150 F.3d 477, 481 (5th Cir. 1998) ("The foreign policy concerns underlying sovereign immunity do not necessarily disappear when a defendant loses its foreign status before suit is filed. Thus, courts are to look to the defendant's status at the time the litigated events occurred."); General Elec. Corp. v. Grossman, 991 F.2d 1376, 1381-82 (8th Cir. 1993) (agreeing with the Sixth Circuit's interpretation of FSIA inGould).
CONCLUSION
In light of the Pere declaration and applicable precedent, Eurocopter was a "foreign state" at all relevant times, including February 12, 1999, the date of the accident giving rise to this case. Therefore, Eurocopter has the right to be heard in federal court.
To support its position that foreign state status should be determined at the time the complaint is filed, plaintiffs rely on a footnote in Lujan v. Defenders of Wildlife, 504 U.S. 555, 571 n. 4 (1992) ("The existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed.") (emphasis in original). The Eighth Circuit squarely rejected this argument in an opinion endorsing the Sixth Circuit's decision in Gould. General Elec. Corp. v. Grossman, 991 F.2d 1376, 1381-82 (8th Cir. 1993). In Grossman, the court stated that "the doctrine of foreign state sovereign immunity was `created to effectuate general notions of comity among nations.'"Id. (quoting First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 762 (1972)). The court also stated that "[t]he foreign policy concerns discouraging us from judging the acts of another nation are not necessarily eliminated because an entity is not a foreign state at the time of suit." Id.
It is, therefore,
ORDERED THAT
Plaintiffs' motion for remand be, and hereby is, denied.
So ordered.