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HERMAN v. EL AL ISRAEL AIRLINES

November 5, 1980

Ann HERMAN, Plaintiff,
v.
EL AL ISRAEL AIRLINES, LTD., Defendant



The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

The instant action to recover damages for personal injuries allegedly suffered by plaintiff Ann Herman while on board defendant's plane was commenced in the Civil Court of the City of New York, County of New York, in January 1980. Shortly thereafter, defendant El Al Israel Airlines, Ltd. ("El Al") removed the action to this Court pursuant to the provision of 28 U.S.C. § 1441(d). Plaintiff subsequently served and filed a demand for a jury trial. Defendant moves pursuant to F.R.Civ.P. 39(a) to strike the demand on the grounds that, as an action removed from state to federal court pursuant to § 1441(d) by defendant, a foreign state within the meaning of 28 U.S.C. § 1603(a), the present action is one that must be tried to the Court. For the reasons stated, the motion is granted.

28 U.S.C. § 1441(d) provides in pertinent part:

 
"(d) Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury...." (emphasis added).

 28 U.S.C. § 1603 provides that, for purposes of the Foreign Sovereign Immunities Act of 1976 ("FSIA"), 28 U.S.C. §§ 1602-1611:

 
"(a) A "foreign state', except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b).
 
"(b) An "agency or instrumentality of a foreign state' means any entity-
 
"(1) which is a separate legal person, corporate or otherwise, and
 
"(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
 
"(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country."

 It is undisputed that El Al is a foreign state as defined in § 1603. It is a corporation organized under the laws of the State of Israel and has its principal place of business in Tel Aviv, Israel; the State of Israel owns more than ninety-nine percent of the outstanding shares of El Al stock; and El Al is neither a citizen of any state of the United States nor created under the laws of a third country. *fn1" Hence, the action was properly removed to this Court under § 1441(d).

 Plaintiff asserts, however, that 28 U.S.C. §§ 1330 *fn2" and 1441(d) are not the exclusive means by which this Court may assert jurisdiction in removal cases involving foreign states as defined in § 1603(a) and (b). Instead, plaintiff contends that parallel jurisdiction exists pursuant to the diversity of citizenship provisions of 28 U.S.C. § 1332(a)(2), *fn3" which does not restrict the right to trial by jury. Plaintiff further argues that a determination that this Court's jurisdiction is founded solely on §§ 1330 and 1441(d) would require a concomitant determination that the statutes are in violation of the Seventh Amendment.

 Plaintiff's reliance on § 1332(a)(2) as an alternative source of jurisdiction is misplaced. Defendant correctly removed the action according to the express terms of § 1441(d), which unambiguously provides the means by which a foreign state defendant, as defined in § 1603, can remove an action from state court to federal court. *fn4" The consequences of removing the action are unequivocally treated by § 1441(d): once removed, "the action shall be tried by the court without jury." That this provision reflects an intentional elimination of jury trials in such actions is manifest from an examination of the legislative history of the FSIA. In its report on the FSIA, the House Committee on the Judiciary stated:

 
"Upon removal, the action would be heard and tried by the appropriate district court sitting without jury. (Cf. 28 U.S.C. 2402 precluding jury trials in suits against the United States). Thus, one effect of removing an action under the new section 1441(d) will be to extinguish a demand for a jury trial made in the state court. (Cf. rule 81(c), F.R.Civ.P.)" H.R.Rep. No. 94-1487, 94th ...

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