Magnin v. Teledyne Continental Motors

United States Court of Appeals,

Eleventh Circuit.

No. 95-6384.

Oliver Dominique Gerard Marin Anthille MAGNIN, as personal
representative of the estate of Dr. Dominique Jean Louis Lachiver,
Deceased, Plaintiff-Appellant,

v.

TELEDYNE CONTINENTAL MOTORS, a Division of Teledyne Industries,
Inc.; Teledyne Industries, Inc.; and J.B. Smith, Defendants-
Appellees.

Aug. 15, 1996.

Appeal from the United States District Court for the Southern
District of Alabama. (No. CV-94-0913-BH-C), William Brevard Hand,
Judge.

Before CARNES, Circuit Judge, and FAY and GIBSON *, Senior Circuit
Judges.

CARNES, Circuit Judge:

On November 12, 1992, Dr. Dominique Jean Louis Lachiver, a

French citizen, died in the crash of a private plane he was

piloting in France. This appeal is an outgrowth of a products

liability and wrongful death action brought by Oliver Dominique

Gerard Marin Anthille Magnin, the French personal representative of

Lachiver's estate. The complaint was filed in Alabama state court

against two defendants: Teledyne Industries, Inc., the

manufacturer of the airplane's engine; and J.B. Smith, a Teledyne

employee and Alabama citizen.

The complaint alleged that Lachiver's fatal crash was

proximately caused by Teledyne's and Smith's negligent inspection

and wrongful certification of the aircraft's engine as airworthy,

*
Honorable John R. Gibson, Senior U.S. Circuit Judge for the
Eighth Circuit, sitting by designation.
and it expressly described Smith as "a designated manufacturing

inspection representative (DMIR) that certified engines "airworthy'

or safe for exportation and installation on aircraft." After

describing the alleged defect in the aircraft engine, the complaint

stated that, "Smith, as the DMIR (Designated Manufacturing

Inspection Representative) signed the "Export Certificate of

Airworthiness' for the aforesaid aircraft engine so that it was

allowed to be exported in the defective condition set out

hereinabove." The complaint asserted against both Smith and

Teledyne a claim of negligence in failing "to properly inspect or

detect the defects associated with the engine," and breach of

express or implied warranty claims in connection with issuance of

the Expert Certificate of Airworthiness certifying that the

aircraft engine was airworthy and safe for export.

The defendants removed the case to federal district court

pursuant to 28 U.S.C. § 1442(a)(1), the Federal Officer Removal

Statute. In their petition for removal, the defendants

characterized the complaint as alleging that Smith was liable for

damages, because he was a DMIR who issued an Export Certificate of

Airworthiness for an allegedly defective engine. The removal

petition further stated that Smith's duties and responsibilities in

connection with the inspection and certification of Teledyne

aircraft engines arose solely because he had been designated by the

Director of the Federal Aviation Administration ("FAA") as a DMIR,

and as such he was a representative of the FAA with authority to

perform its inspection and certification functions. The defendants

contended in their petition that removal was proper because, "Smith
was acting on behalf of the FAA, under the authority granted to him

by the FAA, and within the limits prescribed by the FAA, when he

did the act for which he is being sued." After the case was

removed to federal court, Magnin moved to remand it to state court.

The district court denied that remand motion.

Thereafter, the defendants moved to dismiss the case

altogether on the basis of forum non conveniens. The district

court granted that motion, subject to certain conditions designed

to protect Magnin, and dismissed the case. Magnin filed this

appeal. He contends that the district court erred in denying his

motion to remand. Alternatively, he contends that if removal

jurisdiction does exist, the district court erred in dismissing the

case on the basis of forum non conveniens. For the reasons

explained below, we affirm.
I. DISCUSSION

A. Removal Jurisdiction

28 U.S.C. § 1442(a)(1), the Federal Officer Removal Statute,

allows removal of any civil or criminal action against "[a]ny

officer of the United States or any agency thereof, or person

acting under him, for any act under color of such office." The

right of removal "is made absolute whenever a suit in a state court

is for any act "under color' of federal office, regardless of

whether the suit could originally have been brought in a federal

court." Willingham v. Morgan, 395 U.S. 402, 406, 89 S.Ct. 1813,

1816, 23 L.Ed.2d 396 (1969). If the statutory prerequisites are

satisfied, section 1442(a)(1) provides an independent federal

jurisdictional basis.
 The purpose of section 1442(a)(1) is to "permit[ ] the

removal of those actions commenced in state court that expose a

federal official to potential civil liability or criminal penalty

for an act performed ... under color of office." Murray v. Murray,

621 F.2d 103, 107 (5th Cir.1980). In Willingham, the Supreme Court

noted that "the removal statute is an incident of federal

supremacy, and that one of its purposes was to provide a federal

forum for cases where federal officials must raise defenses arising

from their official duties." 395 U.S. at 405, 89 S.Ct. at 1815.

"[T]he test for removal should be broader, not narrower, than the

test for official immunity." Id.

Proper removal of an action under section 1442(a)(1) has

historically required the satisfaction of two separate

requirements. First, the defendant must advance a "colorable

defense arising out of [his] duty to enforce federal law." Mesa v.

California, 489 U.S. 121, 133, 109 S.Ct. 959, 966-67, 103 L.Ed.2d

99 (1989) (quoting Willingham, 395 U.S. at 406-07, 89 S.Ct. at

1816). That defense need only be plausible; its ultimate validity

is not to be determined at the time of removal. Id. at 129, 109

S.Ct. at 964. However, absent the assertion of a federal defense,

a state court action against a federal officer is not removable.

Id.

Second, the defendant must establish that there is a "causal

connection between what the officer has done under asserted

official authority" and the action against him. Maryland v. Soper,

270 U.S. 9, 33, 46 S.Ct. 185, 190, 70 L.Ed. 449 (1926)

(interpreting predecessor statute); see also Willingham, 395 U.S.
at 409, 89 S.Ct. at 1817. However, the Supreme Court has held

that, in a civil suit such as this, it is sufficient for the

defendant to show that his relationship to the plaintiff "derived

solely from [his] official duties." Willingham, 395 U.S. at 409,

89 S.Ct. at 1817. In such a case, the causal connection

requirement "consists, simply enough, of the undisputed fact that

[the defendant was] on duty, at [his] place of federal employment,

at all the relevant times." Id. If the question raised by the

plaintiff is whether the defendant was engaged in "some kind of

frolic," or acting in contravention of his official duties, the

parties will have the opportunity to present their versions of the

facts to a federal court. Id.

In this case, the complaint specifically named Smith as a

DMIR. A DMIR is an authorized agent of the FAA. In creating the

office of Federal Aviation Administrator and defining the powers

and duties of that office, Congress authorized the Administrator to

delegate some of those duties. 49 U.S.C. § 1355 (repealed in 1994

and replaced by 49 U.S.C. § 44702(d)). In particular, the

Administrator may:

delegate to any properly qualified private person ... any
work, business, or function respecting (1) the examination,
inspection and testing necessary to the issuance of
certificates under subchapter VI of this chapter, and (2) the
issuance of such certificates in accordance with standard
established by him.

Id. The Administrator has made such delegations to DMIRs around

the country, one of whom is Smith.

Magnin's complaint alleged that Smith proximately caused the

fatal crash by signing the export certificate. Smith signed that

export certificate only in his capacity as an agent of the FAA,
i.e., as a DMIR, and the complaint itself pleads that connection.

The defendants removed the case to federal court, contending that

Smith's connection with the wrong allegedly done was in his

official capacity as a DMIR.

The removal petition avers that "[i]n his capacity as a

designated manufacturing inspection representative (DMIR), and in

executing the airworthiness certificate, Mr. Smith was acting under

an officer or agency of the United States and was acting under

color of such office within the meaning of 28 U.S.C. § 1442(a)(1)."

It further states: "Smith's actions as DMIR were performed in

accordance with the Certificate of Designation ... and Certificate

of Authority.... Smith was acting on behalf of the FAA, under the

authority granted to him by the FAA, and within the limits

prescribed by the FAA, when he did the act for which he is being

sued." (emphasis added.)

Smith's removal petition demonstrates that the exercise of

federal jurisdiction is proper. At least part of Smith's defense

is that he acted within the scope of his federal duties, that what

he did was required of him by federal law, and that he did all

federal law required. That defense raises a federal question,

which justifies removal. The extent to which federal law imposes

certain requirements upon Smith as a DMIR, and whether it may

afford him any corresponding protection as a DMIR from tort

liability, are issues of federal law.

To assert that a federal statute does not impose certain
obligations whose alleged existence forms the basis of a civil
suit is to rely on the statute in just the same way as
asserting that the statute does impose other obligations that
may shield the federal officer against civil suits. Both are
equally defensive and equally based in federal law.
Mesa, 489 U.S. at 130, 109 S.Ct. at 965. Removal jurisdiction lies

because, at least in respect of Magnin's claim that Smith's

issuance of the certificate proximately caused the crash, Smith's

relationship to the plaintiff "derived solely from [his] official

duties," Willingham, 395 U.S. at 409, 89 S.Ct. at 1817. It is not

of "any objection that questions are involved which are not all of

a Federal character. If one [question of Federal character]

exist[s], if there be a single such ingredient in the mass, it is

sufficient. That element is decisive upon the subject of

jurisdiction." Mesa, 489 U.S. at 129, 109 S.Ct. at 964 (quotation

marks and citation omitted).

Magnin has argued to us that he never intended to pursue a

claim against Smith for violating the federal law duties imposed

upon him as a DMIR, but instead seeks only a determination that

Smith was negligent in breaching a common law duty, or is otherwise

liable for breaching a duty imposed by products liability law.

Magnin asserts that his complaint identified Smith as a DMIR only

as a factual matter, and not in order to state a claim against

Smith under federal law. Putting aside for the moment Smith's use

of his DMIR status as a defense, we cannot accept Magnin's post-hoc

characterization of the complaint. The complaint is concise, and

it would be unnatural to read the DMIR averments as unnecessary to

any claim. Moreover, the breach of warranty claim is tied to the

Export Certificate of Airworthiness, and the complaint avers that

Smith signed that certificate in his capacity as DMIR. We must

assess the complaint as it stood when the removal petition was

filed, not as Magnin may now wish he had crafted it.
 This is, of course, not to say that Magnin cannot prevail

against Smith on the merits. The scope of our inquiry here is only

whether Smith has advanced a colorable federal defense (including

an assertion that he complied with all his federal law

obligations), not whether his defense will be successful. E.g.,

Mesa, 489 U.S. at 133, 109 S.Ct. at 966-67. In light of the

complaint in this case, which specifically identifies Smith as a

DMIR, specifically alleges that he exercised his official authority

as a DMIR in signing the export certificate when the engine was not
airworthy, and specifically avers that that was a proximate cause

of the crash, removal was proper.1

B. Forum Non Conveniens

We review a dismissal based on forum non conveniens only for

abuse of discretion. Piper Aircraft Co. v. Reyno, 454 U.S. 235,

257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981). Magnin contends

that the district court did abuse its discretion in this case.

Alternatively, he argues that the court's explanation for granting

the dismissal was inadequate and that the case should be remanded

1
We reject Magnin's contention that removal jurisdiction
does not lie because the defendants did not identify by name an
individual United States officer under whom Smith acted. The
statute and regulations make it clear that DMIRs act under the
FAA Administrator, see, 48 Fed.Reg. 16176 (1983) ("Private
persons selected to act as designees are Representatives of the
Administrator...."); 49 U.S.C. § 1355, and the removal notice
stated that Smith's certificate of designation as a DMIR had been
issued by direction of the FAA Administrator, who had delegated
inspection and certification authority to Smith.

Likewise, we reject Magnin's contention that DMIRs are
not sufficiently "controlled" by any government official to
qualify as persons "acting under" a federal officer within
the meaning of § 1442(a)(1). See 14 C.F.R. § 183.31 ("DMIR
may, within the limits prescribed by, and under the general
supervision of, the Administrator, do the following....").
for further consideration and for more detailed findings.

The district court did not abuse its discretion in dismissing

this case. Dismissal on forum non conveniens grounds is within the

district court's range of discretion when trial in the plaintiff's

chosen forum would impose a heavy burden on the defendant or the

court, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839,

843, 91 L.Ed. 1055 (1947), and an adequate alternative forum is

available, Piper Aircraft Co., 454 U.S. at 254 n. 22, 102 S.Ct. at

265 n. 22. Here the defendants agreed to submit to the

jurisdiction of an alternative forum (in France), rendering that

forum available. Veba-Chemie A.G. v. M/V Getafix, 711 F.2d 1243

(5th Cir.1983); see also Piper Aircraft Co., 454 U.S. at 252 n.

18, 102 S.Ct. at 264 n. 18 ("Rules roughly equivalent to American

strict liability are effective in France."); Mediterranean Golf,

Inc. v. Hirsh, 783 F.Supp. 835, 841 n. 6 (D.N.J.1991) (observing

that French law applies "a very broad statutory basis for tort

liability" (citing French Civil Code, Articles 1382-1384)).

As to the hardship inquiry, there are a number of factors

indicating that trying the case in Mobile would impose a heavy

burden on the defendants and the local federal district court.

Witnesses such as the crash investigators, eyewitnesses to the

crash, the owner of the aircraft, those who maintained it, and the

damage witnesses, are all in France.2 Presumably these individuals

2
Magnin argues that many of the French witnesses will be
unnecessary, because, he contends, the French accident reports
and other evidence will establish his averments that engine
failure caused the crash. Of course, the cause of the crash has
not yet been conceded, nor has it been established in any court
of law. If we were to operate on the assumption that all of
Magnin's averments are true, then there would be little or no
are French-speaking and, if the case were tried in Mobile, their

testimony would have to be translated. The aircraft wreckage,

including the allegedly defective engine, is in France. The

parties have agreed that French substantive law applies. So, if

the case were tried in Mobile, a federal judge in Alabama would

have to attempt to divine and correctly apply French substantive

law. And we might thereafter have to do the same thing, if an

appeal is filed. Far better that the case be tried in France by

one or more jurists as familiar with French law as we are

unfamiliar with it. Piper Aircraft Co., 454 U.S. at 251, 102 S.Ct.

at 263 (public interest factors point towards dismissal where the

district court would have to "untangle problems ... in law foreign

to itself" (quoting Gulf Oil Corp., 330 U.S. at 509, 67 S.Ct. at

843)). Other factors that indicate France is the better forum for

litigation of this case include the unavailability of compulsory

process to secure attendance of French witnesses in a court in this

country, and the cost of attendance of any French witnesses who

agree to come to this country to testify. See, e.g., Gulf Oil

Corp., 330 U.S. at 508-09, 67 S.Ct. at 843.

Magnin argues that the district court failed to give

sufficient weight to his choice of forum. The Supreme Court has

spoken to that factor in this circumstance, holding that "a

plaintiff's choice of forum is entitled to greater deference when

the plaintiff has chosen the home forum," but "[w]hen the plaintiff

is foreign ... this assumption is much less reasonable," so that "a
foreign plaintiff's choice deserves less deference." Piper

need for a trial anywhere.
Aircraft Co., 454 U.S. at 256, 102 S.Ct. at 266.3

Magnin also points out, almost in passing, that if the case

is tried in France he will not receive a jury trial, nor will he be

able to obtain counsel through a contingency fee arrangement,

because such fee arrangements are not permitted in France. As

cherished as trial by jury is in our law, and as cherished as

contingency fee arrangements have become to some plaintiffs and

their attorneys, Magnin has not cited us to any Supreme Court or

court of appeals decision giving such considerations substantial

weight in forum non conveniens analysis. The argument is

particularly weak in regard to contingency fees. In Coakes v.

Arabian American Oil Co., 831 F.2d 572, 576 (5th Cir.1987), the

Fifth Circuit held that the ban against contingency fees in England

should not significantly influence the forum non conveniens

determination, and observed that, "[i]f the lack of a contingent

fee system were held determinative, then a case could almost never

be dismissed because contingency fees are not allowed in most

forums." The same is pretty much true of trial by jury. As the

Supreme Court noted in Piper Aircraft Co., 454 U.S. at 252 n. 18,

102 S.Ct. at 264 n. 18, "jury trials are almost always available in

the United States, while they are never provided in civil law

jurisdictions," and "[e]ven in the United Kingdom, most civil

actions are not tried by a jury." Yet, there are numerous

3
Magnin points out that only four Justice's joined that part
of the Piper Aircraft Co. opinion, but he fails to point out that
because two Justices did not participate in the decision, the
four Justices were a majority of those who did. Thus, we are
bound by that holding, which we deem to be well-reasoned in any
event.
decisions dismissing cases in favor of a civil law jurisdiction

forum, and in favor of United Kingdom as a forum.

In order to avoid unnecessary prejudice to Magnin, the

district court wisely attached to the dismissal conditions to which

the defendants have agreed. For example, the defendants agreed to

submit to the jurisdiction of the French court, waive any statute

of limitations or jurisdictional defenses, and satisfy any final

judgment. They also agreed that to the extent discovery was

conducted in the United States, it would be done in accordance with

the Federal Rules of Civil Procedure.

The district court did not abuse its discretion in dismissing

the case, subject to those conditions. Nor did the district court

abuse its discretion, as Magnin urges, by not issuing a

sufficiently detailed order. We can discern the court's reasoning

from its order and the record, and that is all that is required in

that respect.
II. CONCLUSION

The judgment of the district court denying Magnin's motion to

remand, and dismissing the case, is AFFIRMED.