The plaintiff brought an action against multiple defendants for his alleged occupational exposure to lung cancer while working as a longshoreman for different stevedoring companies from 1954-1979. Included with the numerous defendants was Industrial Development Corporation of South Africa, Ltd. (IDC) and South African Marine. The plaintiff’s claims included negligence, strict liability, intentional tort, and premises liability. Specific to IDC and South African Marine, the plaintiff asserted claims under the Jones Act.
Immediately after filing suit, the plaintiff filed a motion to dismiss his claims against IDC and South African. Prior to the court ruling on the Motion to Dismiss, another defendant, Cooper/T. Smith filed a third-party claim against IDC and South African. IDC invoked 28 U.S.C. § 1441 and the Foreign Sovereign Immunities Act (FSIA) and filed a notice of removal. The plaintiff moved to remand the case to state court, arguing that remand should be granted for the following reasons: 1) IDC’s notice of removal failed to demonstrate its status as an agency or party to this lawsuit 2) IDC’s removal was untimely 3) IDC is not a proper party to the suit because Cooper/T. Smith was incapable of asserting a third party claim against IDC after Plaintiff moved to dismiss claims against IDC 4) the claim asserting the Jones Act against IDC prevents removal 5) Cooper/T. Smith’s claims against “illusory” and were only being used to create federal jurisdiction. The plaintiff also argued that if remand was proper, the court should sever the third party claim and remand the main action to state court.
The court discussed the FSIA and found that although IDC’s notice of removal did not expressly state that “IDC knows no home beyond its South African borders” that only a “short and plain statement of the grounds for removal “ be present. Further, the court noted that the notice stated that IDC was wholly owned by the South African government. IDC also submitted, through its attorneys, declarations that it was a state owned financial institution. The plaintiff did not dispute this according to the court. As for the argument that the Notice of Removal was untimely, the court stated that the FSIA provides for an enlargement of the time for removal for cause shown. Although IDC removed 32 days after receiving the complaint, nothing suggested that it had to be made to delay the proceedings. Further, the court honed in on the fact that nothing much had taken place from the filing of the complaint to removal and therefore, the plaintiff was not prejudiced by the late filing.
The plaintiff insisted that its claims against IDC had been dismissed by virtue of filing his Motion to Dismiss IDC. The Court disagreed and stated the definition of a Motion which is a “written or oral application requesting a court to make a ruling” on the Motion. Accordingly, the Motion itself carried no legal weight. Further, the Court found that the claim for the Jones Act also failed to warrant remand. Although typically the Jones Act prevents removal, the court doubted whether the Plaintiff was a Jones Act seaman within definition. The court was further concerned with whether or not the Jones Act trumped the FSIA. The court denied the plaintiff’s motion to remand on the grounds of the Jones Act.
The plaintiff continued his argument and took the position that the third party claim should be severed from the remaining action. The court disagreed and noted that the third party claim vested supplemental jurisdiction of the federal court over the claims. The court also disagreed that it needed to exercise discretion and remand all the claims except the third party claim. Specifically, the court stated that “common facts” united the primary claims with the third party claim and declined to exercise discretion as requested by the plaintiff.
Finally, the court addressed the claim that IDC was an “Illusory” defendant. Although the court acknowledged the plaintiff’s concerns, IDC was nevertheless a defendant to this matter. Nothing was pled by the plaintiff to suggest collusion between Cooper/T. Smith and IDC. However, IDC had adopted the plaintiff’s argument that it had been dismissed from the complaint by virtue of the plaintiff’s Motion to Dismiss. As a result, the Ccurt ordered that IDC file its Motion to Dismiss Cooper/T. Smith’s third party demand. Should IDC fail to comply, then the court would consider collusive joinder.