The opinion of the court was delivered by: ABRUZZO
The plaintiffs move to dismiss their complaint against United Air Lines, Inc., hereinafter referred to as UAL, and Trans World Airlines, Inc., hereinafter referred to as TWA, pursuant to Rule 41(a) of the Federal Rules of Civil Procedure without prejudice and without costs on the ground that diversity of citizenship does not exist against the defendant TWA. This action was commenced on August 29, 1961.
Rule 41(a)(2) provides that 'an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper.'
The plaintiffs, husband and wife, seek to recover $ 15,000 property damages to an apartment in Brooklyn, New York; $ 400,000 damages for personal injuries allegedly sustained by the plaintiff, Larmicia Wood; and Solomon Wood, her husband, seeks $ 100,000 for loss of consortium. The action arose as a result of a mid-air collision of two airplanes owned by the defendants, UAL and TWA, over Staten Island, New York, on December 16, 1960. Both planes crashed. The TWA plane crashed in Staten Island and the UAL plane in Brooklyn, New York. All passengers perished. The plaintiffs occupied an apartment in Brooklyn, New York, which was allegedly struck and destroyed by the UAL plane in its descent.
The plaintiffs base their action against UAL and TWA on general grounds of negligence and carelessness set forth in great detail in the complaint. In the first paragraph of the complaint the plaintiffs allege that they are citizens of the State of New York and the defendants UAL and TWA are citizens of the State of Delaware, doing business within the State of New York, and that this Court has jurisdiction.
In their answers to this complaint, both UAL and TWA deny any knowledge or information sufficient to form a belief as to the allegations contained in the first paragraph of the complaint, except that UAL admits that it is a corporation duly organized and existing under the laws of the State of Delaware and TWA admits that it is a citizen of the State of Delaware, and both admit that they are doing business in the State of New York.
The pleadings would stronbly suggest jurisdiction in this Court.
For the purpose of this opinion we will characterize the instant cause of action as Action No. 1.
The plaintiffs also instituted a similar action in this Court against the United States of America (Index No. 61 C 276) under the Federal Tort Claims Act to recover the same damages they are seeking to recover in the Action No. 1, alleging the same causes and the same issues arising out of the same airplane collision. The United States of America impleaded both airlines as parties-defendants in its case. The plaintiffs charge the United States of America with various items of negligence and seek damages from the United States of America because of such negligence.
For the purpose of this opinion, the plaintiffs' action against the United States of America will be referred to as Action No. 2.
The two actions instituted by the plaintiffs in this Court are not the only actions instituted by them to recover damages as a result of the collision. They commenced an action on January 12, 1961, in the United States District Court for the Southern District of New York against all three defendants. On April 3, 1961, the complaint was dismissed as against the United States of America on the ground that proper venue did not exist under the Federal Tort Claims Act. Subsequently the action was discontinued as against UAL and TWA by stipulation. This action will be hereinafter referred to as Action No. 3.
On April 17, 1961, the same day that the Tort Claims action was commenced against the United States of America in this Court, the plaintiffs commenced an action in the Supreme Court of the State of New York, County of Kings, against UAL and TWA alleging the same claims they allege in Action No. 1. Various preliminary proceedings were held in the state court action including the granting of an order permitting the plaintiffs to amend their complaint to plead a cause of action in trespass. They moved for summary judgment on the claim of trespass liability but their motion was denied. The denial was affirmed by the Appellate Division of the Supreme Court. The Court of Appeals of the State of New York denied their application for leave to appeal the Appellate Division ruling on June 12, 1962, and a motion for reargument was also denied. This state court action will be referred to as Action No. 4.
Approximately 110 actions arising out of this midair collision have been commenced in this district and all have been assigned to me for all purposes pursuant to Rule 2 of the General Rules for the Southern and Eastern Districts of New York.
The instant motion is grounded on Section 1332(c), Title 28 U.S.C.A., ...