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Katz v. Spiniello Companies

United States District Court, D. Massachusetts

December 12, 2016

DREW KATZ, et al., Plaintiffs,
v.
SPINIELLO COMPANIES, et al., Defendants. SK TRAVEL, LLC, Third-Party Plaintiff,
v.
UNITED STATES OF AMERICA, Third-Party Defendant.

          MEMORANDUM AND ORDER

          DENISE J. CASPER, UNITED STATES DISTRICT JUDGE

         I. Introduction

         Plaintiffs Drew Katz and Melissa Silver, individually and as the representatives of the Estate of Lewis A. Katz (“Plaintiffs”) have filed this lawsuit against Defendants SK Travel LLC (“SK Travel”), Spiniello Companies, Arizin Ventures LLC, Carol McDowell in her capacity as representative of the estate of James McDowell, Shelly de Vries in her capacity as representative of the Estate of Bauke de Vries, Gulfstream Aerospace Corporation, Gulfstream Aerospace Services Corporation, Rockwell Collins, Inc., Honeywell International, Inc., and the Massachusetts Port Authority (collectively, “Defendants”) alleging violations of some thirty different Massachusetts and Florida state tort laws. D. 1-2; 1-3; 1-4. Defendant SK Travel filed a third-party complaint against Dan Dillon, Paul A. Seguin, and Dominic Camilli, Jr., civilian employees of the United States Air Force (“USAF Defendants”) working in their official capacities as employees of the United States government. D. 1-1. The U.S. Department of Justice (“Attorney General”) certified pursuant to 28 U.S.C. 2679(d)(2) (“The Westfall Act”) that the USAF Defendants were acting within the scope of their employment with the USAF at the time of the conduct alleged in the third-party complaint and the case was removed to this Court pursuant to 28 U.S.C. §§ 1446, 2679(d)(2). D. 1-6. The United States has substituted itself in place of the USAF Defendants. Id. Plaintiffs now seek to have this Court dismiss the third-party complaint for lack of subject matter jurisdiction. D. 86 at 2. Alternatively, Plaintiffs request that the Court strike Count II, the indemnification count, of the third-party complaint, pursuant to Fed.R.Civ.P. 12(b)(6). Id. If the Court decides not to dismiss the third-party complaint, Plaintiffs further ask that the Court sever the third-party complaint from Plaintiffs' amended complaint and remand the amended complaint to the Suffolk Superior Court. For the reasons stated below, the Court DENIES the motion in whole.

         II. Standard of Review

         Plaintiffs originally filed this case against the Defendants in Suffolk Superior Court. D. 1-2. Upon SK Travel's filing of a third-party complaint against the USAF Defendants, the case, as explained above, was removed to this Court pursuant to 28 U.S.C. 2679(d)(2). D. 1. “[T]he burden is upon the removing party to show that federal subject matter jurisdiction exists, that removal was timely, and that removal is proper.” Therrien v. Hamilton, 881 F.Supp. 76, 78 (D. Mass. 1995). Because federal courts are considered courts of limited jurisdiction, “[t]he existence of subject-matter jurisdiction ‘is never presumed.'” Fafel v. Dipaola, 399 F.3d 403, 410 (1st Cir. 2005) (quoting Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998)). Rather, “the party invoking the jurisdiction of a federal court carries the burden of proving its existence.” Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) (internal quotation marks omitted). Once a party challenges the jurisdictional basis for a claim under Rule 12(b)(1), the burden of proving jurisdiction falls on the party bringing the lawsuit in the federal forum. Aversa v. United States, 99 F.3d 1200, 1209-10 (1st Cir. 1996); Murphy, 45 F.3d at 522.

         III. Factual Allegations

         These allegations are taken from the operative complaint and are presumed to be true only for the purposes of deciding the pending motion. On May 31, 2014, a Gulfstream G-IV aircraft, Serial Number N121JM, (the “G-IV”) piloted by Bauke de Vries and James McDowell crashed during its takeoff rotation as it was departing from Hanscom Field in Bedford, Massachusetts. D. 1-2 ¶¶ 1, 59. The accident resulted in the deaths of seven people, including Lewis A. Katz, his three companions, the flight attendant, and pilots Bauke de Vries and James McDowell, who were both employed by Defendant Spiniello Companies, Inc. Id. ¶¶ 1, 8, 69. The G-IV was owned by SK Travel at the time of the accident and was being dry leased by SK Travel to Defendant Arizin Ventures LLC. Id. ¶¶ 7, 9. The National Transportation Safety Board (“NTSB”) determined that the pilots had failed to disengage the gust lock prior to takeoff, thus restricting the aircraft's primary controls and rendering the aircraft unable to pitch its nose up and take off after reaching rotation speed. Id. ¶ 60. The NTSB report further determined that the interlock mechanism manufactured by Defendant Rockwell Collins, Inc. which should have prevented the pilots from moving the throttles past a certain throttle level while the gust lock was engaged, failed to function properly. Id. ¶ 61. Had this mechanism functioned as intended, the aircraft would have been prevented from reaching a significant level of acceleration and the takeoff roll would not have been possible. Id. The NTSB investigation also determined that the throttle level angle could be pushed upward of 27 degrees, more than four times greater than should have been possible with the gust lock in the “on” position. Id. ¶ 62.

         The Cockpit Voice Recorder (“CVR”) revealed that the pilots failed to conduct industry-standard pre-flight checklists, which required them to ensure the aircraft's gust lock was not engaged prior to takeoff. Id. ¶¶ 74-78. When they reached rotation speed during takeoff, the pilots realized for the first time that the yoke would not move more than half a degree. Id. ¶ 87. Despite this problem, the pilots did not initially attempt to abort takeoff. Id. ¶ 88. Only after an additional eleven seconds had passed from the time the plane reached rotation speed did the pilots try to engage the brakes. Id. ¶ 90.

         Unable to takeoff, the G-IV continued off the runway and collided with the airfield's antennae, as well as the Medium-intensity Approach Lighting System with Runway Alignment Indicator (“MALSR”) lights and a chain linked fence. Id. ¶ 91. After hitting these structures, the aircraft crashed into a downward sloped ravine. Id. ¶ 92. Members of Hanscom Field's fire and rescue services team responded to the fire that ensued. Id. ¶ 127. The team was composed of several employees of the United States Air Force (“USAF”), which maintained a contract with Defendant Massachusetts Port Authority (“Massport”) to provide aircraft rescue and firefighting services at Hanscom Field Airport. D. 1-1 ¶ 7. Team members included Dan Dillon (“Dillon”), Paul A. Seguin (“Seguin”), and Dominic Camilli, Jr. (“Camilli”) (collectively, “USAF Defendants”). Id. The amended complaint alleges the fire crew was unprepared to fight the significant blaze that consumed the G-IV, did not reach the wreckage in a timely manner, and was not equipped to adequately fight the fire once the crew finally did reach it. D. 1-2 ¶¶ 127-31.

         IV. Procedural History

         Plaintiffs filed an amended complaint in this action on May 27, 2016, in Suffolk Superior Court, alleging numerous claims including, but not limited to, wrongful death predicated on negligence and breach of the implied warranty of merchantability, conscious suffering and unfair and deceptive trade practices. D. 1-4. On June 17, 2016, Defendant SK Travel filed a third-party complaint in the Suffolk Superior Court against Dillon, Seguin and Camilli. D. 1-1. The third-party complaint alleged the response of the fire and rescue services team was the proximate cause of the death of Plaintiffs' decedents and asserted that SK Travel may be entitled to contribution and indemnification for any judgment entered against it. On June 30, 2016, the Attorney General certified pursuant to 28 U.S.C. 2679(d)(2) that the USAF Defendants were acting within the scope of their employment with the USAF at the time of the conduct alleged in the third-party complaint. D. 1-6. On July 1, 2016, the United States filed a Notice of Removal with this Court removing the state action pursuant to 28 U.S.C. §§ 1446, 2679(d)(2) and substituted itself in place of the USAF Defendants. D. 1. Plaintiffs have now filed a motion to dismiss or sever the third-party complaint and to remand. D. 86. The Court heard the parties on the pending motion and took the matter under advisement. D. 130.

         V. Discussion

         A. Motion to Remand and the Westfall Act

         Plaintiffs argue that the doctrine of derivative jurisdiction precludes this Court from maintaining subject matter jurisdiction over SK Travel's third-party claims because the state court lacked jurisdiction to hear those same claims. The derivative jurisdiction doctrine originated in the decision of Lambert Run Coal Co. v. Baltimore & Ohio R.R., 258 U.S. 377 (1922) in which the Supreme Court stated: “[t]he jurisdiction of the federal court on removal is, in a limited sense, a derivative jurisdiction. If the state court lacks jurisdiction of the subject matter or of the parties, the federal court acquires none, although it might in a like suit originally brought there have had jurisdiction.” Id. at 382; accord Minnesota v. United States, 305 U.S. 382, 389 (1939) (quotation omitted). The First Circuit has recognized the existence of the derivative jurisdiction doctrine, noting, “a federal district court does not have ...


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