"against." 5 U.S. Cong. & Adm. News 1976 at 6604, 6610-11.
Although certainly not binding authority for this court, we find that Trane and Flintkote provide persuasive guidance. In light of the well known liability associated with toxic site cleanup and the uncertainty about the date of occurrence of contamination, we find that Liberty Mutual can properly name ICI as a defendant in this declaratory judgment action. Therefore, we decline to exercise our discretion to realign the parties.
Our conclusion that this court has jurisdiction over the dispute against ICI is consistent with our understanding of the purpose of FSIA. The legislative history of FSIA indicates that its purpose is to promote a uniform application of immunity towards foreign states, and to provide the federal forum to facilitate those objectives. 5 U.S. Cong. & Adm. News 1976 at 6604, 6610-11. See also Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 484, 76 L. Ed. 2d 81, 103 S. Ct. 1962 (1983). Furthermore, the legislative history indicates an intent to encourage the bringing of actions involving questions of foreign immunity in federal court. 5 U.S. Cong. & Adm. News 1976 at 6604, 6610-12. Because this case involves a foreign state and potentially involves an application of foreign sovereign immunity laws, we find that the case against ICI is properly in federal court.
Westinghouse also argues that, even if this court technically has jurisdiction over this dispute under FSIA, we should not exercise that jurisdiction because ICI's share of the total liability is so small. The maximum liability that ICI could incur is $ 3.3 million, which represents 0.55% of the total liability. Westinghouse's contention is eviscerated by the language of § 1330, which confers jurisdiction "without regard to amount in controversy."
B. Scope of the "Action "
Westinghouse next argues that, even if this court has jurisdiction over the claim against ICI, it does not have jurisdiction over the claims against the other 130 defendants. Liberty mutual asserts two bases for jurisdiction over the domestic defendants.
First, Liberty Mutual argues that § 1330 confers jurisdiction over the entire action, not just the claim against the foreign state. Although neither party cited any cases addressing the scope of an action under § 1330, Liberty Mutual provided substantial support for its position.
Liberty Mutual argues that FSIA includes a comprehensive jurisdictional scheme embodied in § 1330 and § 1441 (removal to federal court). In support of this contention, Liberty Mutual cites Rex v. Cia. Pervana De Vapores, S.A., 660 F.2d 61, 63 (3d Cir. 1981), cert. denied, 456 U.S. 926, 72 L. Ed. 2d 441, 102 S. Ct. 1971 (1982), and Ruggiero v. Compania Peruana De Vapores "Inca Capac Yupanqui ", 639 F.2d 872, 876 (2d Cir. 1981). In Ruggiero, the court wrote that, "the [House and Senate] reports thus confirm what is patent from the statutory language - Congress wished to provide a single vehicle for actions against foreign states or entities controlled by them, to wit, § 1330 and § 1441(d), its equivalent on removal." Ruggiero, 639 F.2d at 878. Thus, we will consider cases and policies involving § 1441(d) in applying § 1330.
Under § 1441(d), Liberty Mutual argues, the intent to include domestic defendants is clear. Liberty Mutual cites a line of cases allowing the removal of the entire action when one defendant invokes FSIA. In Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371 (5th Cir. 1980), the court stated that,
[FSIA's] legislative history indicates a rather clear congressional intent that when a "foreign state," joined with other non-foreign codefendants in state court, petitions for removal, it is the action - embracing all defendants - that is to be transferred to federal court.