Opinion
Civil Action No. 3:97-CV-308-L
June 30, 2003
ORDER
Before the court is Plaintiffs' Motion to Vacate Order of Dismissal pursuant to Fed.R.Civ.P. 59(e), filed December 13, 2002, and Plaintiffs' Renewed Motion to Vacate Order of Dismissal, filed May 14, 2003. On June 17, 2003, Dole Food Company, Inc. and Dole Fresh Fruit Company, the only remaining defendants, notified the court's law clerk that they would not be filing a response to Plaintiffs' Renewed Motion to Vacate Order of Dismissal. After considering Plaintiff's motions and the applicable law, the court grants Plaintiffs' Renewed Motion to Vacate Order of Dismissal and denies as moot Plaintiffs' Motion to Vacate Order of Dismissal for the reasons herein stated.
I. Fed.R.Civ.P. 59(e) Standard
There are four general grounds upon which a court may alter or amend a final judgment under Fed.R.Civ.P. 59(e): "(1) an intervening change in controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct a clear error of law or prevent manifest injustice." See In re Benjamin Moore Co., 318 F.3d 626, 629 (5th Cir. 2002). II. Analysis and Conclusion
In their Motion to Vacate Order of Dismissal pursuant to Fed.R.Civ.P. 59(e), Plaintiffs requested that the court vacate its November 29, 2002 Memorandum Opinion and Order pending the Supreme Court's decision in Dole Food Co. v. Patrickson, 536 U.S. 956 (2003). In its Memorandum Opinion and Order dated November 29, 2002, the court denied Plaintiffs' Motion to Remand, conditionally granted Defendants' Motion to Dismiss for Forum Non Conveniens, and dismissed this action subject to certain conditions. In denying Plaintiffs' Motion to Remand and granting Defendants' Motion to Dismiss for Forum Non Conveniens, the court relied on Delgado v. Shell Oil Co., 231 F.3d 165 (5th Cir. 2000). In Delgado, the Fifth Circuit held that defendants Dead Sea Bromine Co., Ltd. and Bromine Compounds, Ltd. (collectively "Dead Sea") were foreign states for purposes of the Federal Sovereign Immunities Act ("FSIA"). The court therefore determined that it had subject matter jurisdiction over the instant action.
In their Renewed Motion to Vacate Order of Dismissal, filed on May 14, 2003, Plaintiffs cited Dole Food Co. v, Patrickson, 123 S.Ct. 1655 (2003). In Patrickson, which is factually similar to this case, the Dead Sea defendants claimed to be instrumentalities of a foreign state as defined by the FSIA, entitling them to removal under 28 U.S.C. § 1441 (d). The Supreme Court disagreed, holding that instrumentality status is determined at the time of the filing of the complaint, and the Dead Sea companies were not instrumentalities of Israel under the FSIA at the time the complaint was filed, because any relationship recognized under the FSIA between the Dead Sea and Israel had been severed before the suit was commenced. Id. at 1660-63. Dead Sea's removal under § 1441(d) was therefore found to be improper. Id.
In light of this holding, the court determines that Dead Sea's removal in this case under § 1441(d) was improper, and as a result, the court lacked subject matter jurisdiction over the action. The case must therefore be remanded to state court. Accordingly, Plaintiffs' Renewed Motion to Vacate Order of Dismissal is granted; Plaintiffs' Motion to Vacate Order of Dismissal pursuant to Fed.R.Civ.P. 59(e) is denied as moot; the court's Memorandum Opinion and Order, filed November 29, 2002, is hereby vacated; and the case is remanded to the 116th Judicial District Court of Dallas County, Texas. The clerk of the court is directed to effect the remand pursuant to the usual procedure. The parties shall bear their own respective costs.