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FILUS v. LOT POLISH AIRLINES

October 2, 1996

DANUTA IMIOLEK FILUS, as Administratrix of the Estate of KAZIMERZ JAN FILUS, Deceased, Plaintiff, -and- DANUTA IMIOLEK FILUS, as Administratrix of the Estate of JOANNA MARIANNA FILUS, Deceased, Plaintiff, against LOT POLISH AIRLINES, a/k/a POLSKIE LINIE LOTNICZE; and UNION OF SOVIET SOCIALIST REPUBLICS, by its MINISTRY OF CIVIL AVIATION, ILYUSHIN DESIGN BUREAU, and SOLOVIEV DESIGN BUREAU, Defendants. AND ALL RELATED ACTIONS

Eugene H. Nickerson, U.S.D.J.


The opinion of the court was delivered by: NICKERSON

NICKERSON, District Judge:

 Plaintiff brought this action as the administratrix of the estates of her husband and daughter, passengers killed in a 1987 crash of an Ilyushin-62M jet airplane near Warsaw, Poland. The complaint alleges that the jet was operated by defendant LOT Polish Airlines (LOT) and was manufactured and sold to LOT by defendant Union of Soviet Socialist Republics, by its Ministry of Civil Aviation (the Ministry), Ilyushin Design Bureau (Ilyushin Bureau), and Soloviev Design Bureau (Soloviev Bureau) (hereinafter collectively "the USSR").

 Plaintiffs have moved for a default judgment against the USSR. The USSR has cross-moved to dismiss the complaint against it for lack of jurisdiction under the Foreign Sovereign Immunities Act ("the Act").

 This case has a long history, most of which is summarized in this court's April 5, 1995 Memorandum and Order. The court there noted that it has jurisdiction over the USSR only if its conduct falls within one of the exceptions to the Act, in this case only if the action against the USSR is based upon some commercial activity by the USSR in the United States.

 After reviewing the evidence produced over five years, the court concluded that the USSR had made a prima facie showing that it did not conduct any such activity in the United States. This conclusion was based in part on LOT's answers to interrogatories stating that LOT personnel, not the USSR, conducted all maintenance on the aircraft and engines in the United States. Because LOT's answers to the interrogatories constituted hearsay, the court directed the parties to depose a suitable representative of LOT as to whether it conducted all such maintenance in the United States. The court reserved decision on both motions until the completion of the deposition.

 Over the course of the past seventeen months, plaintiffs have had ample opportunity to explore the facts that might support a finding that this court has jurisdiction over the USSR. On November 20, 1995, Magistrate Judge John L. Caden issued an order directing LOT "to produce records showing maintenance and servicing in the United States of the engines of the subject aircraft within seven years before the crash." The Magistrate Judge issued a second order dated November 28, 1995 directing Bogdan Piatkowski, a representative of LOT, to testify in a deposition and ordering LOT to produce the names, addresses, and current employers of all engineers it employed in the United States within seven years before the crash. By Memorandum and Order dated February 6, 1996, over LOT's objections, this court affirmed the Magistrate Judge's order of November 28.

 On August 6, 1996, after plaintiffs had deposed Piatkowski, the Magistrate Judge denied plaintiffs' motion for permission to conduct further discovery of the USSR. Plaintiffs have appealed the Magistrate Judge's order, arguing that Piatkowski lacked personal knowledge of the pertinent facts. They now wish to have the USSR answer eight additional interrogatories as well as produce documents corresponding to these interrogatories. Five of the eight interrogatories seek information concerning the role played by three USSR engineers stationed in Warsaw to provide technical assistance to LOT. The other three seek details concerning the source of information given in the answers.

 None of the proposed interrogatories asks who serviced the subject aircraft and engines in the United States. At oral argument on September 27, 1996 plaintiffs' counsel indicated that she wished to depose Aleksander Budzynski, a LOT mechanic who was actually stationed at John F. Kennedy International Airport in New York from April, 1985 through 1987 to determine whether representatives of the USSR ever performed service or overhaul activity in the United States.

 On September 24, 1996 the USSR responded that Piatkowski's testimony is based on personal familiarity with LOT maintenance procedures and a review of the relevant documents. The USSR also says that plaintiffs' additional interrogatories are not pertinent to the jurisdictional issue and that the court should now grant its motion to dismiss.

 I

 The complaint alleges the following relevant facts. On May 9, 1987 LOT operated an Ilyushin aircraft on a flight from Warsaw, Poland, destined for John F. Kennedy International Airport in New York. The USSR by its Ministry and Ilyushin Bureau and Soloviev Bureau designed, manufactured, inspected, overhauled, and serviced the "subject aircraft" and its four engines and sold it to LOT with instructions as to operating, servicing and overhauling the aircraft and the engines. The USSR was engaged in substantial commercial activities in the United States, including "the servicing of said Ilyushin aircraft and engines."

 On May 9, 1987 the aircraft crashed soon after taking off from Warsaw, causing the death of plaintiff's two decedents. LOT was negligent and committed willful misconduct. The USSR also was negligent and committed willful misconduct in designing, manufacturing, inspecting, and servicing the aircraft and the ...


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