counsel needs to address either the jurisdictional issue or the

question of potential remand.

</e CG Serbo,
Milton I. Shadur
Senior United States District Judge

Date: April 4, 2003


taken place on January 22, 2003.

That places this case in a somewhat unusual posture. Even
though principles of claim preclusion and issue preclusion do not
apply as to substantive issues where an action has been dismissed
for lack of federal subject matter jurisdiction, our Court of
Appeals has reconfirmed in Perry v. Sheahan, 222 F.3d 309, 318
(7% Cir. 2000):

Although only judgments on the merits preclude parties

from litigating the game cause of action in a

subsequent suit, that does not mean that dismissals for

lack of jurisdiction have no preclusive effect at all.

A dismissal for lack of jurisdiction precludes

relitigation of the issue actually decided, namely the

jurisdictional issue.

That means Singapore Airlines cannot now relitigate the
jurisdictional issue that was decided by the District Court in

California, for the final judgment of that court in that respect

is entitled to preclusive effect even if an appeal is pending (see

e.g. Amcast Indus. Corp. v. Detrex Corp., 45 F.3d 155, 158-60 (7TM
Cir. 1995)), let alone an appeal that is pending in a different

case that poses the same legal issue.

If it were not for the likely imminence of an early Supreme
Court ruling that will resolve the issue, this Court would be
constrained to remand this action to the Circuit Court of Cook
County under Section 1447(c). But under the circumstances, this
Court will stay its hand pending the Supreme Court's action. In
the meantime neither plaintiffs' counsel nor Singapore Airlines’

3



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United States District Court, Northern District of INinois

Notified counsel by telephone.
Docketing to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge,
courtroom
SN deputy's
initials

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Milton I. Shadur than Assigned Judge
CASE NUMBER 03 C 1334 DATE 4/4/2003
CASE Ai Chen Sun, et al vs. Singapore Airlines, Ltd.
TITLE
[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

(1) o Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

@) a Answer brief to motion due. . Reply to answer brief due

(4) Oo Ruling/Hearing on set for at

(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at

(6) oOo Pretrial conference[held/continued to] [set for/re-set for] on set for at .

(oO) q Trial{set for/re-set for] on at .

(8) Qo [Bench/Jury trial] [Hearing] held/continued to at

(9) ial This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) OLocal Rule 41.1 OFRCP41(aX1) OFRCP41(a)(2).

(0) {Other docket entry] | Enter Memorandum. If it were not for the likely imminence of an early
Supreme Court ruling that will resolve the issue, this Court would be constrained to remand this action
to the Circuit Court of Cook County under Section 1447(c). But under the circumstances, this Court will
stay its hand pending the Supreme Court’s action. In the meantime neither plaintiffs’ counsel nor
Singapore Airlines’ counsel needs to address either the jurisdictional issue or the question of potential
Temand.

(11) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required,
wo | Notices mailed by judge’s staff.

unag LOIN,
AMI75

ME Hd L~ Yay ey

Sia“s'n

central Clerk's Office

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
AI CHEN SUN, et al.,

Plaintiffs,

SINGAPORE AIRLINES, LTD., et al.,

QD
4 my hen 7)

)
)
)
)
v. ) No. 03 C 1334
)
)
) 8
) 2003

Defendants.
MEMORANDUM
This aircrash disaster action, brought by a large number of
Taiwanese citizens and other persons of Taiwanese origin against
Singapore Airlines, Ltd. ("Singapore Airlines”) and Boeing Company
(“Boeing”), was originally filed in the Circuit Court of Cook
County Illinois. Singapore Airlines then filed a timely Notice of
Removal to this District Court under the auspices of 28 U.S.C.
§1441(d)* on the premise that it is a “foreign state” within the
meaning of Section 1603. More precisely, it contends that its
majority ownership by a true “foreign state” in the ordinary sense
of that term qualifies it as “an agency or instrumentality of a
foreign state” under Section 1603(b) -- and hence as a “foreign
state” under the Section 1603(a) definition.
At this morning's motion call counsel for Singapore Airlines
tendered a motion for dismissal of this action on forum non

conveniens grounds. Because Singapore Airlines' counsel advised

+ Further citations to Title 28 provisions will simply

take the form “Section --.”



that he had discussed and reached agreement on the briefing of the
matter (including scheduling) with plaintiffs' counsel; who had
therefore found no need to appear on the motion call, this Court
set a filing date for plaintiffs' response in accordance with the
parties' agreement.

But Singapore Airlines' counsel also apprised this Court,
during his presentment of the motion to dismiss, that plaintiffs'
counsel had announced an intention to file a prompt motion to
remand the case to the state court for lack of subject matter
jurisdiction. In that respect it appears that an earlier action
against Singapore Airlines stemming from the same aircrash
disaster (which took place in Taiwan) had been filed in the United
States District Court for the Central District of California but
had been dismissed there for lack of subject matter jurisdiction
because that court held that Singapore Airlines was not a foreign
state under Section 6103. That decision, which was based on a
rejection of the “tier” approach to the relationship between the
corporate defendant and the foreign sovereign, is at odds with
Seventh Circuit decisions on the same subject. Indeed, even as
this memorandum order is being written the United States Supreme

Court has this very matter under consideration in two cases coming

from the Ninth Circuit -- Dole Food Co. v. Patrickson, No. 01-593,

and Dead Sea Bromine Co. v. Patrickson, No. 01-594, both reported

below at 251 F.3d 795 (9t* Cir. 2001) -- with oral argument having
2