The opinion of the court was delivered by: Haight, Senior District Judge.
MEMORANDUM OPINION AND ORDER
The complaint at bar was initially filed on February 10, 1999
in New York Supreme Court, alleging that plaintiff suffered
personal injury as the result of exposure to asbestos. On
September 1, 1999, Atlas Turner, Inc., one of the many
defendants, filed a notice of removal to this Court asserting two
independent grounds for removal: (1) diversity of citizenship and
(2) Atlas Turner's status as a "foreign state" within the meaning
of the Foreign Sovereign Immunities Act ("FSIA"),
28 U.S.C. § 1603(a). The first ground implicates 28 U.S.C. § 1441(a), which
allows the removal of actions over which district courts have
original jurisdiction. In asserting the latter ground, Atlas
Turner, once owned by an arm of the Canadian government,
implicitly invokes the provisions of 28 U.S.C. § 1441(d), which
allows the removal of "[a]ny civil action brought in a State
court against a foreign state as defined in § 1603(a)".
On October 14, 1999, plaintiff moved to remand this case to New
York Supreme Court chiefly on the basis of lack of subject matter
jurisdiction.*fn1 Plaintiff argues that (1) diversity
jurisdiction does not lie because plaintiff and one of the
defendants, Georgia Pacific, are both citizens of Georgia; (2)
removal on the basis of diversity was prohibited in any event by
28 U.S.C. § 1441(b) because at least one of the defendants,
Rapid-American Corporation, is a New York corporation; and (3)
jurisdiction is not furnished by the FSIA because Atlas Turner
did not have the status of a foreign state either at the time
this lawsuit was filed or at the time the underlying events
Pursuant to the federal removal statute, a case originally
filed in state court may be removed to federal court if it
presents a claim over which the federal court has original
jurisdiction or a claim against a "foreign state" as defined in
the FSIA. See 28 U.S.C. § 1441(a), (d). The statute permits a
plaintiff, if so advised, to seek remand of the case to state
court on the ground that subject matter jurisdiction does not
exist or because of a defect in the removal procedure.
28 U.S.C. § 1447(c). In resolving a motion to remand, courts must be
mindful of considerations of federalism and the limited
jurisdiction conferred on subject matter jurisdiction courts and
should "strictly construe" the federal removal statute,
resolving all doubts "in favor of remand." Miller v. First
Security Investments, Inc., 30 F. Supp.2d 347, 350 (E.D.N Y
1998) (internal quotation marks omitted). The party involving the
Court's removal jurisdiction bears the burden of establishing
subject matter jurisdiction on a motion to remand. United Food &
Commercial Workers Union, Local 919, AFL — CIO v. CenterMark
Properties, 30 F.3d 298, 301 (2d Cir. 1994).
As noted, defendant Atlas Turner identified two alternate bases
for removal in its notice: its "foreign state" status as
conferred by the FSIA and diversity of citizenship. If this Court
has jurisdiction on either ground, removal was proper. Plaintiff
argues that neither ground furnishes the requisite jurisdiction
over this case. To determine whether remand is necessary, I will
consider whether Atlas Turner has established original
jurisdiction under the FSIA, and if not, whether complete
diversity nonetheless rendered the removal valid.
Pursuant to the FSIA, this Court has original jurisdiction over
civil actions filed against a "foreign state."
28 U.S.C. § 1330(a). As defined by that statute, a "foreign state" includes
an "agency or instrumentality" of a foreign state, which in turn
includes an entity a majority of whose shares are owned by a
foreign state or a political subdivision thereof.
28 U.S.C. § 1603(a), (b). It is common ground that from 1980 to 1989, Atlas
Turner was owned by Societe Nationale de l'Amiante, an arm of the
Canadian government. Thus there does not appear to be any dispute
that between 1980 and 1989 Atlas Turner was a "foreign state"
within the meaning of the FSIA. The instant debate instead
centers upon whether Atlas Turner was a "foreign state" during a
time that is relevant to the underlying claims at bar.
The controlling time period for purposes of assessing whether a
defendant is entitled to invoke the FSIA has not yet been
determined by the Second Circuit, and the issue is unsettled in
other circuits as well. The few circuits that have resolved the
question have reached two different conclusions. The Ninth
Circuit has suggested that the defendant's status as an agency or
instrumentality of a foreign government at the time the lawsuit
was filed is determinative. See Straub v. A.P. Green, Inc.,
38 F.3d 448, 451 (9th Cir. 1994). Others have held that the relevant
time period for ascertaining foreign state status is that in
which the conduct at issue took place. See General Electric
Capital Corp. v. Grossman, 991 F.2d 1376, 1380-82 (8th Cir.
1993); Gould, Inc. v. Pechiney Ugine
Kuhlmann, 853 F.2d 445, 450 (6th Cir. 1988); Pere v. Nuovo
Pignone, Inc., 150 F.3d 477, 480-81 (5th Cir. 1998), cert.
denied 525 U.S. 1141, 119 S.Ct. 1033, 143 L.Ed.2d 42 (1999).
See also Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 39-40,
109 S.Ct. 2782, 106 L.Ed.2d 26 (1989) (recognizing differing
views among the circuits on when status is determined for
purposes of invoking FSIA jurisdiction, but leaving "for another
day" resolution of the issue).
One court in this district has reconciled the two views and
concluded that "the correct approach under the FSIA is to ask
whether the underlying conduct took place on the foreign state's
watch, even if that state is no longer in control of the party by
the time of the lawsuit, or, alternatively, whether the defendant
[is] currently a foreign state, regardless of its status at the
time of the underlying conduct." Belgrade v. Sidex Int'l
Furniture Corp., 2 F. Supp.2d 407, 414 (S.D.N.Y. 1998) (Kaplan,
J.); but see Daly v. Castro Llanes, 30 F. Supp.2d 407, 419
(S.D.N.Y. 1998) (Schwartz, J.) (decisive focus for FSIA purposes
is "on the status of the foreign entity at the time of the
alleged acts, not at a later or earlier date"). To resolve the
current motion, I need not decide which, if not both, of the time
periods that have been identified under the two approaches
governs, because Atlas Turner does not meet the test under
Without question Atlas Turner was not a foreign state in 1999
when this lawsuit was filed, having been sold a decade earlier by
Societe Nationale de l'Amiante. Thus, if the litmus test is the
date of filing, the FSIA would clearly not apply in this case.
Assuming the analysis turns instead on the defendant's status
at the time the underlying events occurred, the question becomes
whether the conduct giving rise to Atlas Turner's alleged
liability took place during the time it was owned by the Canadian
government — between 1980 and 1989. That particular inquiry is
implicated by the provisions in 28 U.S.C. § 1605(a)(2) that §
1604's general immunity of a foreign state from American
jurisdiction (federal or state) does not apply to an action which
"is based upon a commercial activity carried on in the United
States by the foreign state." (Emphasis added). The complaint
in this case alleges that plaintiff developed the severe malady
of mesothelioma as a result of her exposure to asbestos both at
her home and at her place of work, Café Geiger in New York City.
But the complaint is silent as to the dates of her alleged
exposure. Pointing to her deposition testimony, however,
plaintiff Vasura more precisely identifies the relevant time
frame. She avers, consistent with her testimony, that the
"installation and exposure to the asbestos-containing products
occurred in 1969" during the renovation of Café Geiger.*fn2
Plaintiff's Reply Brief at ¶ 2. Therefore, contending that the
"injurious tort that occurred to [Vasura] transpired in 1969,"
plaintiff seeks "leave to amend ¶ 5 of the Complaint to state
that Ms. Vasura was exposed to asbestos-containing materials in
1969." Id. at ¶ 3.
Atlas Turner does not offer any evidence to demonstrate that
plaintiff's alleged exposure occurred at any time other than in
1969. Instead, the defendant contends that its liability cannot
be circumscribed to 1969, the year of exposure, because the
complaint's broad allegations include charges that beginning in
the 1920s and continuing to the present Atlas Turner knew of the
dangerousness of asbestos and violated its duty to warn of its
dangers. Atlas Turner thus argues that the complaint alleges a
continuing violation that encompassed the period it was owned by
Societe Nationale de l'Amiante. This argument is unpersuasive.
While the knowledge of asbestos' dangerousness and the duty to
warn the plaintiff of that danger
may be relevant to defendant's liability in this case, those
factors come into play, if at all, only prior to and during the
plaintiff's exposure to asbestos for which ...