The opinion of the court was delivered by: GLASSER
Plaintiff originally brought this action to recover for personal injuries in the Supreme Court of the State of New York, Kings County. Defendants removed the action to this Court by petition dated November 23, 1983. Plaintiff now moves to remand this case to state court. For the reasons set out below, plaintiff's motion is denied, and Costa-Line is dismissed as a defendant in this action pursuant to Rule 21 of the Federal Rules of Civil Procedure.
Plaintiff, a New York resident, seeks to recover for personal injuries allegedly sustained in May 1983 when she was a passenger aboard the ship "Carla C." She alleges that her injuries were caused "due to the negligenceof the defendnts, their servants, agents, and/or employees in the ownership, operation and control of their ship and its facilities." In her complaint, plaintiff alleges that defendant Costa Line owned the Carla C., and that its employees operated the ship at the time of plaintiff's injury. Defendant Costa Armatori's ("Armatori") liability is predicated upon the allegation that it is the parent of Costa Line. Costa Line is incorporated in New York and has a principal place of business in Florida. Armatori is an Italian corporation and has its principal place of business in that country.
This action was originally filed in state court pursuant to the "savings to suitors" clause set forth in 28 U.S.C. § 1333(1), which provides:
The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other [common law] remedies to which they are otherwise entitled.
Defendants removed the case to this Court pursuant to 28 U.S.C. § 1441 based on § 1333 and 28 U.S.C. § 1332, the diversity statute.
Section 1441 provides in relevant part:
(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants in a citizen of the State in which such action is brought.
Plaintiff has moved to remand this action, alleging that Costa Line's status as a New York corporation precludes removal based on diversity jurisdiction.
Defendants, however, assert that removal here is proper because Armatori was the sole owner and opertor of the Carla C. at the time of plaintiff's alleged injury and at present, and that Costa Line, the defendant whose presence would destroy diversity, is not a proper party within the meaning of § 1441(b). Thus, argue defendants, plaintiff's joinder of Costa Line was "fraudulent" and as such, its joinder should not defeat Armatori's right or removal.
The facts supporting defendants' allegation that Costa Line is an improper party to this action are set forth in an affidavit of Ubaldo Schibuola, Vice President of Passenger Traffic for Costa Line. Therein defendants claim that Costa Line's "basic function" is to act as a ticketing agent for passage on vessles owned by Armatori, and that Costa Line has no other connection with the Carla C.
In fact, defendants urge that the Carla C. is owned and operated solely by Armatori. Defendants have submitted a photocopy of the cover slip of the group broading pass issued to plaintiff for her trip on the Carla Co., on which the name Costa Cruises is imprinted. Defendants have also submitted a full copy of an actual blank borading pass alleged to be identical to that issued to plaintiff. The "Terms and Conditions of contract of passege and bagage" included in the borading pass state: "The words "Company" and "Carrier" mean "Costa Armatori S.p.A."