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December 19, 1969

PERRY ZOUSMER, as Executor of the Estate of JESSE ZOUSMER, Deceased, and PERRY ZOUSMER, as Executor of the Estate of RUTH ZOUSMER, also known as RUTH TAYLOR ZOUSMER, ET AL., Plaintiffs,

Lasker, District Judge.

The opinion of the court was delivered by: LASKER

LASKER, District Judge:

Plaintiffs move, pursuant to 28 U.S.C.A. § 1447(c), to remand this action to the New York State Supreme Court. The suit arises out of the crash of a Canadian Pacific aircraft while attempting to land at Tokyo Airport on a flight from Hong Kong on March 4, 1966. All aboard were killed, including Jesse Zousmer, Ruth Zousmer, Roland R. Giroux, Lucienne Giroux, Robert F. Hallam, and Donald Taylor, all of whom were passengers for hire aboard the airplane. The Zousmers were citizens of New York, while the other four individuals were Canadian citizens.

 On March 3, 1967, an action was brought on behalf of the estates of the two Zousmers, the two Giroux, and Hallam in New York Supreme Court against three defendants: Canadian Pacific Air Lines, Limited ("CPA"), a Canadian corporation, Douglas Aircraft Co., Inc. ("Douglas"), a Delaware corporation, and Kollsman Instrument Corporation ("Kollsman"), a New York corporation. The complaint set forth wrongful death claims on behalf of the five decedents, charging each of the defendants with negligence and breach of warranty.

 Defendants Douglas and Kollsman thereafter answered the complaint. Defendant CPA, however, moved on May 11, 1967 to dismiss the third, fourth and fifth causes of action (brought on behalf of the three Canadian decedents) on the ground of lack of jurisdiction under Article 28 of the Warsaw Convention and also on the ground of forum non conveniens. The following day, CPA answered the first and second causes of action, which had been brought on behalf of the Zousmers, the New York decedents.

 Subsequently, on May 15, 1967, plaintiffs served an amended complaint which was identical to the original complaint except that it added a sixth cause of action on behalf of the estate of Donald Taylor, another Canadian citizen and resident. Promptly thereafter, defendants Douglas and Kollsman moved to dismiss the amended complaint because of improper service. For its part, defendant CPA moved on May 24, 1967, by order to show cause, to dismiss the third, fourth, fifth and sixth causes of action (i.e., those brought on behalf of the Canadian residents, now including Taylor as well) of the amended complaint on the same grounds urged in its May 11 motion.

 On June 22, 1967, the state court granted the motions of Douglas and Kollsman and dismissed the amended complaint as against them on the grounds of improper service pursuant to CPLR § 3012(a). In both decisions, Justice Helman noted that the disposition was "without prejudice to any application plaintiffs may see fit to make to serve an amended complaint." As for CPA's motions, the third through fifth causes of action of the original complaint were dismissed with prejudice on the merits by Justice Helman on the grounds of lack of jurisdiction and forum non conveniens. CPA's second motion addressed to the third through sixth causes of action of the amended complaint was granted on the same grounds. In the court's order of August 11, 1967, settled upon the latter decision, the court, at defendant CPA's urging, also ordered the Zousmer plaintiff to serve an amended complaint stating any claims to be asserted against defendant CPA on behalf of the Zousmer estates within twenty days. It is to this final command that many of the complicated procedural problems herein are directly traceable.

 Nothing further occurred until February 26, 1969, when the Zousmer plaintiff moved for summary judgment against defendant CPA on the new grounds that the airline tickets delivered to the Zousmers did not comply with the notice provisions of the Convention for the Unification of Certain Rules Relating to International Transportation by Air, 49 Stat. 3000 (1934), otherwise known as the Warsaw Convention. By order of the New York Supreme Court dated April 18, 1969, Justice Fine denied the motion with leave to renew after service of an amended complaint in compliance with Justice Helman's August 1967 order.

 Therefore, on April 28, 1969, plaintiffs served a second amended complaint alleging claims, now based entirely upon the Warsaw Convention, on behalf of the Zousmer estates against defendant CPA only. CPA thereafter filed a timely petition removing the action to this court pursuant to 28 U.S.C.A. § 1441(a) and § 1446(b). Plaintiffs now seek to remand.

 Defendant CPA contends that the action was properly removed on two separate grounds: (1) at the time of service of the last amended complaint on April 28, 1969, defendant CPA was a Canadian corporation and plaintiff Perry Zousmer (executor of the estates of Jesse and Ruth Zousmer) was a New York citizen, thereby establishing diversity of citizenship on the face of the complaint and allowing removal pursuant to 28 U.S.C.A. § 1332 and § 1441(a); and (2) alternatively, since plaintiff had abandoned his original allegations of negligence and breach of warranty against defendant CPA (as contained in his original and first amended complaints) and set forth a claim based entirely upon the provisions of the Warsaw Convention, the claim presented a federal question arising under a treaty of the United States and as such was removable pursuant to 28 U.S.C.A. § 1441(b).

 Plaintiff Zousmer contends that the action was improvidently removed to this court in that (1) since defendant Kollsman, who was originally properly joined and served as a defendant in this action, is a New York citizen, and since plaintiff Zousmer is also a citizen of New York, the requisite diversity of citizenship is lacking; (2) a claim based on the Warsaw Convention does not "arise under" a treaty of the United States within the meaning of Section 1441(b); and (3) even assuming, as defendant contends, that a claim under the Warsaw Convention constitutes a federal question, it does not constitute a "separate and independent claim or cause of action" as required for removal under 28 U.S.C.A. § 1441(c).

 Disposition of the diversity question turns upon this court's interpretation of the present status of the pleadings in this distinctively complicated litigation. CPA claims that "the present status of this action is solely the result of an election by the plaintiff to proceed against defendant Canadian Pacific alone herein by the service of the [second] amended complaint limiting its claims to controversies between plaintiff and a Canadian corporation." (Removal Petition, p. 5). It is thus CPA's position that the second amended complaint constitutes the sole and determinative pleading in this action and that as such the case involves only a New York plaintiff and a Canadian defendant. Plaintiff vehemently, and we believe properly, disputes this proposition. It appears clear from the record that at no point did plaintiff ever voluntarily "elect" to drop defendants Douglas and Kollsman from the action. Nor were the other original plaintiffs (i.e., the Canadian residents, the two Giroux and Hallam) ever voluntarily deleted as parties to the action. And more importantly, it is this court's belief that no court order in any of the earlier state court proceedings eliminated, or indeed intended to eliminate, any of these defendants or plaintiffs from the action.

 It may be (although no such view has ever been articulated by defendant) that CPA's position rests not upon any voluntary election by plaintiff to drop certain parties to the action, but upon the law of supersedure. Even if this were so, however, such an argument must fail before the particular facts of this case. While it is undisputed that, as a general rule, an amended pleading supersedes the pleading preceding it, we find such a rule inapplicable here. It should be recalled that the first amended complaint was a duplicate of the original complaint but for the addition of a sixth cause of action on behalf of another Canadian resident. Although that amended complaint was cast in appropriate form, it was never properly served under New York law and was therefore insufficient to obtain personal jurisdiction of the defendants. Defendant CPA itself labeled the pleading a "nullity" in correspondence with plaintiff's attorneys. The state court apparently agreed, for it granted motions to dismiss by all three of the defendants. Finding insufficient service of process, Justice Helman dismissed the amended complaint as to all causes of action asserted against defendants Douglas and Kollsman. For unexplained reasons (although perhaps because it recognized the continuing validity of the original complaint), defendant CPA, unlike its fellow defendants, did not move to dismiss the entire pleading for improper service, but rather sought dismissal on the merits (on other grounds) of the third through sixth causes of action brought against it on behalf of the four Canadian residents. This motion, too, was granted by Justice Helman, who noted in his memorandum decision of June 22, 1967, that plaintiffs had "requested leave to withdraw the amended complaint, due to their admitted failure to comply with CPLR 3012(a)."

 Thus, whether plaintiffs actually withdrew their amended complaint or whether Justice Helman dismissed it for lack of jurisdiction, the pleading was clearly a nullity without legal effect; it was void from the very outset. *fn1" We conclude, therefore, that the first amended complaint had no effect whatsoever on the original complaint; it did not modify, nullify or supersede it. The authorities support this conclusion. For example, it is established that "when an amended answer is stricken from the files, the original answer stands as if no amended answer had been filed." 41 Am. Jur., Pleading § 313, at 508 (1942). In the instant case, plaintiffs' first amended complaint was dismissed summarily as a jurisdictionally defective pleading; it was, in effect, "stricken from the files." In addition, this first amended complaint was more in the nature of a supplemental than an amended pleading. As noted above, it was a carbon copy of the original complaint but for the addition of a single party plaintiff. Thus, it sought not to correct or alter the original pleading, but rather to add to it. Such is the very essence of a supplemental pleading. And, as the case law has recognized:

"[An] amended pleading does not supersede the original pleading where it is evident that it is not designed as a substitute therefor or intended to take its place, as where it refers to its allegations, or expressly reaffirms them, or merely elaborates certain of them, or merely augments the original pleading by additional allegations, and in such cases the original pleading and the amendment are to be construed together." 71 C.J.S.. Pleading § 321(a), at 718 (1951).

 Finally, this court does not believe that Justice Helman intended the first amended complaint to supersede the original. Indeed, in his memorandum decision disposing of defendant CPA's motion to dismiss the third through sixth causes of action of the first amended complaint, he referred specifically to "an amended complaint on behalf of the newly added Canadian plaintiff." Thus, it would appear that when Justice Helman granted defendants Douglas and Kollsman's motions to dismiss the first amended complaint and stated that such disposition was "without prejudice to any application plaintiffs may see fit to make to serve an amended complaint," he was referring only to an amended complaint that would assert - hopefully properly this time - a sixth cause of action on behalf of the Canadian plaintiff Taylor against Douglas and Kollsman. Nowhere did the court suggest that it considered the plaintiffs' original complaint nullified or superseded, except insofar as the third through fifth causes of action against defendant CPA on behalf of the three Canadian plaintiffs were concerned. On the contrary, a fair reading of Justice Helman's rulings indicates that he never intended to dismiss any of the causes of action in the original complaint as against Douglas and Kollsman or the first two causes of action brought on behalf of the Zousmers against CPA. Understandably, Justice Helman's intention is of more than passing interest here, for the court is given considerable discretion in the area of supersedure. As has been pointed out by Professor Siegel on a related question:

"The practitioner should not assume that every amended or supplemental pleading must necessarily supersede the original pleading. That is the general rule; and with amendments as of course that do not come before the court for some reason, that is invariably the rule. But where the court is allowing an amended or supplemental pleading, it may in its order make such provision for supersedure as its discretion dictates. CPLR 3025(d) is phrased to give the court that discretion." David D. Siegel, McKinney's Commentary, CPLR § 3025 (Supp. 1969). (Italics in original.)

 One additional comment should be made regarding defendant CPA's own position on the question of supersedure. It would appear from the record that CPA did not, at the time of Justice Helman's rulings on the first amended complaint, contest the continuing validity of the original complaint. Indeed, the contrary is true. In a letter to Justice Helman dated July 7, 1967, counsel for defendant CPA wrote:

"It would appear that the present state of the pleadings with respect to the plaintiffs' claims against the defendants Douglas and Kollsman are as stated in the original complaint in view of the court's disposition of the motions on behalf of these two defendants and the plaintiffs' attorneys request to withdraw the amended complaint. The claims against the defendants Douglas and Kollsman are made on behalf of the estates of Zousmer, Giroux and Hallam; the claim on behalf of the estate of Taylor ...

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