UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
July 18, 2007
IN RE AIR CARGO SHIPPING SERVICES ANTITRUST LITIGATION
The opinion of the court was delivered by: VIKTOR V. Pohorelsky United States Magistrate Judge
ALL CASES M.D.L. No. 1775
By letter dated July 3, 2007, the defendants Saudi Arabia Airlines and Thai Airways International Public Company Limited have advised the court of their intention to defer raising the issue of subject matter jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602, et seq. until after the court rules on other motions to dismiss the complaint. By letter dated July 9, 2007, the plaintiffs properly oppose this unilateral decision. The issue of subject matter jurisdiction is a threshold issue which the court is required to determine before addressing any other. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998) ("Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.") (quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868)). Moreover, piecemeal, seriatim motions to dismiss will not serve the interests of the parties or the court in the orderly conduct of this litigation.
Accordingly, to the extent that the above defendants intend to assert lack of subject matter jurisdiction, they must do so now or be deemed to have waived it. See 28 U.S.C. § 1605(a)(1); Canadian Overseas Ores Ltd. v. Compania de Acero del Pacifico S.A., 727 F.2d 274, 278 (2nd Cir. 1984) (district courts have discretion to determine that conduct of party constitutes waiver of foreign sovereign immunity in light of the circumstances of a particular case). As the deadline for submission of motions is today, however, the above defendants and the plaintiffs are afforded an additional two weeks to serve moving, opposition and reply papers concerning that issue.
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