This case arises from the crash of an Era Aviation S-76A++ helicopter in Louisiana, which resulted in the death of all three occupants, allegedly caused by the failure of the tail rotor designed and manufactured by Sikorsky. Plaintiffs sued Sikorsky and others in state court, asserting liability for breach of warranty, negligence and product liability. Sikorsky asserted a GARA defense, in response to which the plaintiffs alleged that Sikorsky knowingly misrepresented or withheld required information from the FAA material to the airworthiness of the tail rotor.
Nearly two years after the commencement of the state court action, plaintiffs brought a motion to compel the defendants to produce documents relating to the NTSB's investigation of the crash and Sikorsky's pre-crash interactions with the FAA. Plaintiffs argued that Sikorsky refused to authorize the FAA's release of files showing what Sikorsky had reported to the FAA, thereby precluding plaintiffs from satisfying their heightened evidentiary burden of establishing an exception to GARA.
Sikorsky removed the action to federal court on the basis of federal question jurisdiction allegedly created by the motion to compel, and the plaintiffs filed a motion to remand. Magistrate Judge Kathleen Kay denied the motion, finding the issue of whether Sikorsky knowingly violated its reporting requirements to the FAA raised a viable federal question and deeming the removal timely. Magistrate Kay acknowledged that issues concerning the applicability of GARA and alleged violations of an FAA-established standard of care were not sufficient to confer federal jurisdiction, but distinguished this case because the plaintiffs also sought to establish that Sikorsky's alleged misrepresentations evidenced proof of liability, inasmuch as the alleged misrepresentations allowed Sikorsky to evade pottential revocation of the FAA airworthiness certification of the helicopter.
Although not determinative of the negligence claim, the Magistrate Judge noted that interpretation of the FAA regulations was critical to determining the misrepresentation claim. Having determined that the balance of factors favored federal question jurisdiction, Magistrate Kay declined to address Sikorsky's "more dubious" argument that a federal question was raised because the NTSB, invoking 49 U.S.C. § 1154(a)(3), refused to release the cockpit voice recordings without a federal court order.
Finally, Magistrate Kay held Sikorsky's removal was timely, pursuant to 28 U.S.C. § 1446(b)(3), because the plaintiffs' motion to compel discovery qualified as "other paper," triggering the 30-day deadline for filing the notice of removal. Even though plaintiffs alleged that Sikorsky misrepresented or withheld required information from the FAA material to the airworthiness of the tail rotor in their complaint and amended complaint, the plaintiffs did not articulate the express need for the FAA records to prove an exception to GARA until they brought the discovery motion.
This decision is currently on appeal.
This decision serves as an important reminder to defense counsel in state court litigation to remain attentive to any allegations, regardless of the form (e.g., interrogatories, deposition transcripts, attorney correspondence), that explicitly demonstrate removability. As one of the defendants argued in this case, the plaintiffs "quite literally made this into a federal case" by filing a motion to compel discovery that made the substantive nature of the federal question unequivocally clear and certain. Croucher v. Bell Helicopter Textron, Inc., No. 16-CV-0082 (W.D. La. Mar. 24, 2016).
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