1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA FT. LAUDERDALE DIVISION
CASE NO. 06-cv-61197-MARRA
AMALIA GONZALEZ CUEVARA, )
Individually and as Administrator ) of the Estate of the deceased, )
SANTIAGO VELASQUEZ GONZALEZ, )
and on behalf of all potential beneficiaries, ) )
Plaintiffs, )
v. )
) AIR TREK, INC., a Florida corporation; AIR ) AMBULANCE BY AIR TREK, a foreign ) corporation; ISRAEL AIRCRAFT INDUSTRIES, ) LTD., a foreign corporation; ISRAEL AIRCRAFT ) INDUSTRIES INTERNATIONAL, INC., ) a foreign corporation; GARRETT AVIATION ) SERVICES, INC., a foreign corporation; ) LANDMARK AVIATION, f/k/a GARRETT ) AVIATION SERVICES, INC.; GENERAL ) DYNAMIC; AVIATION SERVICES CORPORATION, ) a foreign corporation; GALAXY AEROSPACE ) CORPORATION, a limited partnership acquired by ) GENERAL DYNAMICS AVIATION SERVICES ) CORPORATION; ROCKWELL COLLINS, INC., a ) foreign corporation; HONEYWELL INTERNATIONAL, ) INC. f/k/a ALLIED SIGNAL, a foreign corporation, ) SIGNATURE FLIGHT SUPPORT CORPORATION, ) a foreign corporation, and GLOBAL MANAGEMENT, )
INC. a foreign corporation, )
)
Defendants. )
_______________________________________________/)
DEFENDANTS’, AIR TREK, INC. AND AIR AMBULANCE BY AIR TREK, MOTION FOR ABATEMENT OF ACTION
The Defendants, Air Trek, Inc. ("Air Trek") and Air Ambulance by Air Trek ("AAAT"), by and through undersigned counsel, hereby respectfully move for an Order abating this action in favor of a prior pending action. In support of this motion, the Defendants represent as follows:
I. STATEMENT OF THE CASE
A. The Instant Lawsuit
1. The Plaintiff, Amalia Gonzalez Cuevara, has brought this action individually and as representative of her decedent, Santiago Velasquez Gonzalez, in connection with an aircraft accident that occurred on July 2, 2004, at Tacumen International Airport, Panama, during which her decedent, a bystander on the ground, received fatal injuries. Complaint, ¶ 35.
2. The Plaintiff alleges Air Trek is an agent of AAAT, and AAAT provides medical transport services. Id. at ¶¶ 7-9. The Plaintiffs allege these defendants owed and operated the subject aircraft at the time of the subject accident on July 2, 2004. Id. at ¶ 35.
3. The Plaintiffs have asserted negligence actions against the Defendants, and have alleged the Defendants, as owners and operators of the aircraft involved in the subject accident, failed to safely operate the aircraft, failed to properly maintain the aircraft, failed to keep the aircraft current with Federal Aviation Administration Airworthiness Directives and service bulletins and failed to inspect the aircraft. Id. at Counts I and II. FN 1 The Plaintiff alleged this purported negligence caused the subject accident and the Plaintiff's damages. Id. at ¶¶ 39 and 41.
4. The Plaintiff claims damages consisting of the following: pain and suffering of the decedents' survivor; loss of society, companionship, guidance and services of the decedent to the survivor; loss
1 The Plaintiffs also brought product liability based claims against other defendants with respect to aircraft systems and components on the subject aircraft. See generally, Complaint.
of support; loss of asset accumulation; funeral expenses; and any other damages to which the estate and survivors are entitled under applicable law. Id. at ¶ 83.
B. Prior Pending Law Suit
1. On or about December 20, 2004, the Plaintiff in the instant case brought a prior lawsuit against Air Trek, in the 20th Judicial Circuit of Florida, arising out of the exact facts and circumstances that give rise to the instant case. See Exhibit A, Prior Complaint.
2. In the prior complaint, the Plaintiff alleges the Plaintiff's decedent, Santiago Velasquez Gonzalez, while on the premises of Tocumen International Airport, Panama, received fatal injuries on July 2, 2004, as a result of the same crash that is the subject of the instant case. Exhibit A, at ¶¶ 7- 11.
3. The Plaintiff further alleged Air Trek was negligent in the operation and maintenance of the subject aircraft, and that such negligence led to the subject accident and the decedent's death. See Exhibit A, at ¶¶ 10-12.
4. On June 9, 2005, the court in the prior pending action granted the Plaintiff's Motion To Amend Complaint and to add as an additional Defendant, AAAT, and deemed the Amended Complaint filed as of that date. See Exhibit B, Motion, Order and Amended Prior Complaint. In the amended prior complaint, the Plaintiff added allegations that AAAT was the operator and owner of the subject aircraft, and that as a result of the negligence of AAAT in the operation, maintenance and control of the aircraft, the Plaintiff's decedent was killed in the subject accident at Tocumen International Airport, Panama. See Exhibit B, Amended Complaint at ¶ 10, Count II. FN 2
2 In the prior pending action the Plaintiff also brought claims against two other defendants, Morris Morrow and Hayward Daisey. Exhibit B. The Plaintiffs alleged these defendants were employees of Air Trek and were negligent with respect to the operation and maintenance of the subject aircraft. Id. at Counts II and III.
5. In the prior pending action, the Plaintiff alleged damages consisting of medical and funeral expenses resulting from the decedent's injury and death; loss of perspective net accumulations of the estate; loss of support and services from the decedent; medical and funeral expenses; mental pain and suffering suffered by the decedent. Exhibit B, Amended Prior Complaint, at ¶ 38.
II. APPLICABLE LAW AND ARGUMENT
It is well settled under Florida Law that "the plea of a prior action pending will abate a later action or suit in the same Court or other Court of like jurisdiction if the parties are the same and both suits are predicated on the same cause of action." State of Florida v. H.J. Lehman, 100 Fla. 1313, 1317 (1930). This rule of law continues to be applied in the State of Florida, as reflected in a number of decisions in the various circuits. See, e.g., Thomas v. English, 448 So. 2nd 623 (4th DCA 1984) (holding that abatement of action is appropriate where two actions are pending simultaneously which involve the same parties in the same or substantially the same causes of action); Lightsey v. Williams, 526 So. 2nd 764, 765 (5th DCA 1988) ("abatement of action is appropriate where two actions are pending simultaneously which involve the same parties in the same or substantially the same causes of action). Further, in such a situation, "jurisdiction lies in the circuit where jurisdiction is first perfected." Id.
Application of the above-referenced case law supports abatement of the instant case. It is clear the instant case and the Plaintiff's prior pending case in the 20th Judicial Circuit arise from the exact same facts and circumstances. Moreover, both cases involve the exact same causes of action, claims for damages and theories of liability advanced against the undersigned defendants. In addition, it is irrefutable that the Plaintiff's action in the 20th Judicial Circuit, with respect to both the original and amended complaints, was brought prior to the complaint in the instant case. The complaint in the instant case was filed on June 30, 2006. See Complaint in instant case, at 18. As
discussed, supra, the prior pending original Complaint was brought in December 2004 and the Amended Complaint adding claims against AAAT was filed in July 2005. FN 3
When a state and federal court have concurrent jurisdiction over the same parties and the same subject matter, the court in which jurisdiction first attached should determine the controversy and decide every issue properly raised in the case before it. Wade v. Clower, 114 So. 548, 551 (Fla. 1927); State v. Harbour Island, Inc., 601 So. 2d 1334,1335 (Fla. 2d DCA 1992); Schwartz v. DeLoach, 453 So. 2d 454, 454-55 (Fla. 2d DCA 1984); Shooster v. BT Orlando Ltd. P'ship, 766 So. 2d 1114, 1115-16 (Fla. 5th DCA 2000). See also Merrill Lynch, Pierce, Fenne & Smith, Inc. v. Haydu, 675 F. 2d 1169 (11th Cir. 1982) (finding no compelling reasons for the Federal Court to hear the case, especially in light of the fact that the state court had all matters before it whereas the Federal Court only had the arbitration issue to answer) citing Mann Mfg., Inc. v. Hortex, Inc., 439 F.2d 403 (5th Cir. 1971) (dissolving injunction because the District Court erred in interfering with the New York court’s jurisdiction over the pending litigation). Once that court has decided all the issues before it, the parties may pursue whatever issues remain in the other court. Judicial economy is served by deciding the first case first without regard to the whims of the parties or their desired forum. In this case, jurisdiction first attached in the state court in and for the 20th Judicial Circuit of Florida.
A stay is an extraordinary measure that calls for a court to exercise judgment and weigh competing interests. See United States v. Breyer, 41 F.3d 884, 893 (3rd Cir. 1994). It is the moving party who must meet the burden of compelling the court to take this extraordinary measure. See Landis v. North American Co., 299 U.S. 248 (1936). In Tri-City Electrical Contractors v. Suitt
3 Although the Plaintiff in the prior ending action did not sue all the same defendants she sued in the instant case, there is identically of parties and between the Plaintiff and undersigned Defendants, which is the salient
Construction Co., 1994 WL 652761 at 3 (M.D.Fla.1994), the Court denied the third-party defendant’s motion for stay after consideration of the following four factors: (1) the facts produced, (2) judicial economy, (3) whether lack of a stay would place an irreparable harm on the moving party, and (4) whether there is a clear and substantial reason to grant a stay. Id. The Tri-City Court held that it was not willing to sacrifice judicial economy without a clear showing of irreparable harm. Id. at 3. Additionally, Courts have looked toward other factors in determining whether to grant a stay of the proceedings, such as “the interest of the [nonmoving] party in proceeding expeditiously with the civil action as balanced against the prejudice to the [moving] party,”“the interest of persons not parties to the civil litigation,” and “the public interest.” Dawson v. Dodd, 1999 WL 410366 at 1 (E.D. Pa.1999).
Based on the foregoing, it is appropriate to abate the instant case with respect to claims brought against Air Trek and AAAT.
WHEREFORE, the undersigned Defendants move for an Order of Abatement consistent with the foregoing.
Respectfully submitted,
KERN AND WOOLEY, LLP
_/s/ Sean G. Perkins____________________ Sean G. Perkins, Esq.
Florida Bar No.: 0544620 777 S. Flagler Drive West Tower, Suite 800
West Palm Beach, Florida 33410
consideration.
Tel: (561) 776-5277 Fax: (561) 515-6001 sperkins@kernwooley.com Attorneys for Defendants
AIRTREK,INC and AIR AMBULANCE BY AIRTREK
CERTIFICATE OF SERVICE
I hereby certify that on 20 day of November, 2006, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached service list in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing.
Respectfully Submitted, By: s/
Sean G. Perkins FBN: 544620
Kern & Wooley, LLP
Attorney for Air Trek, Inc. and Air Ambulance by Air Trek 777 S. Flagler Drive
West Tower, Suite 800
West Palm Beach, Florida 33410 Phone: (561) 776-5277
Fax: (561) 515-6001 sperkins@kernwooley.com
SERVICE LIST
The following parties were served via transmission of Notices of Electronic Filing generated by CM/ECF:
Attorney for Plaintiff
Steven C. Marks, Esq.
Podhurst Orseck, P.A. 25 West Flagler Street Suite 800
Miami, Florida 33130 Phone: (305) 358-2800
Attorney for General Dynamics Attorney for Israel Aircraft Industries, LTD
J. Thompson Thornton, Esq. Thomas E. Scott, Esq.
David A. Wagner, Esq. Krista A. Fowler, Esq.
Thornton, Davis & Fein Cole, Scott & Kissane, P.A. 80 Southwest 8 Street, Suite 2900 1390 Brickell Ave, Third Floor Miami, Florida 33130 Miami, FL 33131
Phone: (305) 446-2646 (305) 350-5300 Fax: (305) 441-2374 Fax (305) 373-2294 E-mail: thornton@tdflaw.com
wagner@tdflaw.com
Attorney for Global Medical Attorney for Rockwell Collins
Edward Royce Curtis, Esq. Henry Knoblock, Esq.
110 Southeast Sixth Street, 15th Floor 7901 SW 67th Avenue Post Office Box 14245 Suite 100
Ft. Lauderdale, FL 33302-4245 Miami, FL 33143 Phone: (954) 525-7500 Phone: (305) 669-9655
Fax: (305) 669-6169
Attorneys for Honeywell
Douglas McIntosh, Esq. G. Scott Vezina, T.A., Esq.
McIntosh, Sawran, Peltz, et al. 1776 E. Sunrise Boulevard Post Office Box 7990
Ft. Lauderdale, FL 33338-7990 Phone: (954) 765-1001
Fax: (954) 332-1032
The following parties were served via facsimile and U.S. Mail:
Attorney for Signature Flight Support
John M. Murray, Esq. Vincent S. Gannuscio, Esq.
Murray, Marin & Herman, P.A.
101 East Kennedy Boulevard, Suite 1810 Tampa, Florida 33602-5148
Phone: (813) 222-1800 Fax: (813) 222-1801
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FT. LAUDERDALE DIVISION CASE NO. 06-cv-61197-MARRA
AMALIA GONZALEZ CUEVARA, ) Individually and as Administrator ) of the Estate of the deceased, ) SANTIAGO VELASQUEZ GONZALEZ, ) and on behalf of all potential beneficiaries, ) )
Plaintiffs, )
v. )
) AIRTREK, INC., a Florida Corporation; AIR ) AMBULANCE BY AIR TREK, a foreign ) corporation; ISRAEL AIRCRAFT INDUSTRIES, )
LTD., a foreign corporation; ISRAEL AIRCRAFT ) INDUSTRIES INTERNATIONAL, INC., ) A foreign corporation; GARRETT AVIATION ) SERVICES, INC., a foreign corporation; ) LANDMARK AVIATION, f/k/a GARRETT ) AVIATION SERVICES, INC.; GENERAL ) DYNAMIC; AVIATION SERVICES CORPORATION, ) a foreign corporation; GALAXY AEROSPACE ) CORPORATION, a limited partnership acquired by ) GENERAL DYNAMICS AVIATION SERVICES ) CORPORATION; ROCKWELL COLLINS, INC., a ) foreign corporation; HONEYWELL INTERNATIONAL ) INC. f/k/a ALLIED SIGNAL, a foreign corporation, ) SIGNATURE FLIGHT SUPPORT CORPORATION, ) a foreign corporation, and GLOBAL MANAGEMENT, ) INC., a foreign corporation, ) )
Defendants. )
__________________________________________/)
ORDER ON DEFENDANTS’, AIR TREK, INC. and AIR AMBULANCE BY AIR
TREK, MOTION FOR ABATEMENT OF ACTION
THIS CAUSE, having come before the Court upon Defendants’, Air Trek, Inc. and Air Ambulance by Air Trek, Motion for Abatement of Action, and the Court being fully advised in the premises.
IT IS HEREBY ORDERED and ADJUDGED that said motion is GRANTED.
DONE AND ORDERED in Chambers this ___________ day of ___________________, 2006.
______________________________
