Opinion
02 Civ. 4765 (RSW), MDL NO. 1448 (RWS)
October 17, 2002
SCHADEN, KATZMAN, LAMPERT McCLUNE, By RICHARD F. SCHADEN, ESQ., Broomfield, CO, Of Counsel and SMITH SMITH, By DANIEL J. SMITH, ESQ., Fort Worth, TX, Of Counsel, Attorneys for Plaintiff.
CONDON FORSYTH, By DESMOND T. BARRY, JR., ESQ., New York, NY, Of Counsel, Attorney for Defendant.
KREINDLER KREINDLER, By: STEVEN R. POUNIAN, ESQ., New York, NY, Of Counsel, Liaison Counsel.
OPINION
Plaintiff Yanet Dishmey Rosario DeGeorge ("DeGeorge") has moved to remand this action arising from the crash of American Flight 587 in Belle Harbor, New York to Texas state court.
For the following reasons, that motion is denied.
Procedural History
On November 12, 2001, an Airbus A300-600 aircraft (registration N14053) manufactured by Airbus Industrie ("Airbus") and operated by defendant American Airlines ("American") as Flight 587 crashed at Belle Harbor, New York shortly after takeoff from John F. Kennedy International Airport ("JFK Airport") en route to Santo Domingo, Dominican Republic. The accident resulted in the deaths of all 251 passengers and nine crew members on board the aircraft and the deaths of five persons on the ground, as well as personal injures and property damage. DeGeorge commenced suit to recover damages for the death of Milton George, a passenger on Flight 587.
The MDL Proceedings
More than 206 actions have been filed as a result of the Flight 587 crash. By order dated April 22, 2002, the Judicial Panel on Multidistrict Litigation (the "Judicial Panel") transferred 28 actions arising from the accident to this Court for coordinated and consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. In re Air Crash at Belle Harbor, N.Y. on Nov. 12, 2001, 203 F. Supp.2d 1379 (J.P.M.L. 2002). The Judicial Panel found that:
this litigation involve[s] common questions of fact, and that centralization under Section 1407 in the Southern District of New York will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. All actions concern the cause or causes of the crash of American Airlines Flight 587 on November 12, 2001. Centralization under Section 1407 is thus necessary in order to eliminate duplicative discovery, prevent inconsistent pre-trial rulings, and conserve the resources of the parties, their counsel, and the judiciary.Id. at 1380.
Since the April 22, 2002 order, the Judicial Panel has issued a number of Conditional Transfer Orders transferring tag-along cases to the Southern District of New York pursuant to J.P.M.L. Rule 7.4 and 28 U.S.C. § 1407. One of those orders, dated May 28, 2002 ("CTO-2"), transferred 43 such actions, including this one.
In addition, 72 actions were filed in the Southern District of New York and are pending before this Court. Thus, of the 206 actions, more than 180 are pending before this Court.
The Complaint, Removal and Motion to Remand
DeGeorge commenced this action on April 25, 2002 in the District Court of Dallas County, Texas seeking to recover damages for the death of Milton George. The complaint asserts, inter alia:
• American is a scheduled air carrier certified to operate pursuant to 14 C.F.R. Part 121 (Compl. ¶ 2);
• Decedent George was a passenger on Flight 587 (Compl. ¶ 7, 11, 12);
• Flight 587 de parted JFK Airport en route to Santo Domingo, Dominican Republic (Compl. ¶ 3);
• George was killed in the Flight 587 crash as a result of American's negligence in the operation, maintenance and inspection of the aircraft and training of the American flight crew (Compl. ¶ 3, 9)The Removal
On May 16, 2002, American timely removed this action to the Northern District of Texas pursuant to 28 U.S.C. § 1331 and 1441 on the basis of the Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12, 1929, 49 Stat. 3000, T.s. no. 876, 137 L.N.T.S. 11 (1934), as amended by the Protocol done at The Hague, 1995 and by Protocol No. 4 of Montreal, 1975, reprinted in S. Exec. Rep., No. 105-20 pp. 21-32 (1998) (the "Warsaw Convention") and the Federal Aviation Act of 1958, Pub.L. No. 85-726 (recodified as amended in 49 U.S.C. § 40101 et seq.) (the "Aviation Act"). The complaint does not specifically refer to the Warsaw Act or the Aviation Act.
The Motion to Remand
DeGeorge filed a motion to remand this action to Texas state court on June 14, 2002. Although American's opposition was to be filed in the Northern District of Texas on July 5, 2002, the case was transferred to this Court pursuant to CTO-2, which became effective on June 20, 2002.
In light of the transfer of the action pursuant to CTO-2, the motion to remand filed by DeGeorge in the Northern District of Texas now must be decided by this Court. Ivy v. Diamond Shamrock Chems. Co., 901 F.2d 7, 9 (2d Cir. 1990); Medical Society of the State of New York v. Connecticut Gen'l Corp., 187 F. Supp.2d 89, 91 (S.D.N.Y. 2001); In re NASDAQ Market Makers Antitrust Litig., 929 F. Supp. 174, 177 (S.D.N.Y. 1996)
Discussion I. Second Circuit Law Controls
In deciding this motion to remand, the MDL transferee court "should apply its interpretation of federal law, not the constructions of the federal law of the transferor court." In re NASDAQ Market, 929 F. Supp. at 177 (collecting cases); see Coker v. Pan Am. World Airways, Inc., 950 F.2d 839, 847 (2d Cir. 1991). Therefore, to the extent that Fifth Circuit law differs from Second Circuit law, the latter controls.
II. Standard of Review
The party seeking to preserve removal has the burden of proving federal removal jurisdiction. Grimo v. Blue Cross/Blue Shield, 34 F.3d 148, 151 (2d Cir. 1994); Pan Atlantic Group, Inc. v. Republic Ins. Co., 878 F. Supp. 630, 637 (S.D.N.Y. 1995)
Section 1441(b) provides that a defendant may remove any action filed in state court to federal court that is "founded on a claim or right arising under the Constitution, treaties or laws of the United States." The determination of whether a claim "arises under" a federal law or treaty is determined by reference to the well-pleaded complaint."Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987); Marcus v. ATT Corp., 138 F.3d 46, 52-53 (2d Cir. 1998). The well-pleaded complaint rule provides that federal question jurisdiction is present only when plaintiff's cause of action, as set forth in the complaint, is based on federal law. Id. Under this rule, the plaintiff is the "master of his complaint," and is free to avoid federal jurisdiction by pleading only state claims even where a federal claim is also available. Id.
There is no dispute that DeGeorge's complaint does not contain a federal claim. Yet even if a federal cause of action does not appear on the face of the complaint, federal jurisdiction may still exist if one of two rules applies: (1) the "complete pre-emption" doctrine; or (2) the "artful pleading" doctrine.
In Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987) the Supreme Court explained the complete pre-emption doctrine as follows:
On occasion . . . the pre-emptive force of a statute is so "extraordinary" that it "converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule." Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.Id. at 393 (citations omitted); see also Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 24 (1983) ("[I]f a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily `arises under' federal law."). The Second Circuit test for whether an action is completely pre-empted by federal law turns on whether Congress has clearly manifested an intent to make a cause of action removable to federal court. E.g., Marcus, 138 F.3d at 54 (looking to whether Congress has manifested intent to disallow state claims in a particular field);Fax Telecommunicaciones, Inc. v. ATT, 138 F.3d 479, 486 (2d Cir. 1998)
Because the law at issue is a treaty, rather than an Act of Congress, the focus is on the treaty itself and the intent of the treaty partners.E.g., Tseng, 525 U.S. at 175 ("[T]he nation-state, not subdivisions within one nation, is the focus of the [Warsaw] Convention and that perspective of our treaty partners. Our home-centered preemption analysis, therefore, should not be applied, mechanically, in construing our international obligations."); see also In re World War II Era Japanese Forced Labor Litig., 164 F. Supp.2d 1160, 1167 (C.D. Cal. 2001) (analysis of preemption of a treaty focuses on intent of treaty's contracting states and text); Asante Techs. v. PMC-Sierra, Inc., 164 F. Supp.2d 1142, 1150-51 (N.D. Cal. 2001) (same)
III. Application
There is no question that DeGeorge's claims are within the scope of Article 17 of the Warsaw Convention, in that they seek damages "for the death or wounding of a passenger" caused by an accident on board [an] aircraft" in international transportation. Warsaw Convention, arts. 1, 17. The parties apparently concede this point. Pl.'s Reply Mem. at 5. Thus, whether removal was proper depends upon whether state law claims that are within the scope of the Warsaw Convention are completely pre-empted and thus are transmuted into a federal cause of action.
Although the Second Circuit has yet to weight in on this issue, it has held that "[i]t is now well-established that "[a]ll state law claims that fall within the scope of the [Warsaw] Convention are preempted.'" Shah v. Pan Am. World Servs. Inc., 148 F.3d 84, 97-98 (2d Cir. 1998) (citing Fisherman v. Delta Air Lines, Inc., 132 F.3d 138, 141 (2d Cir. 1998)). The Court reasoned that the Convention's two primary goals — to establish uniformity in the aviation industry and to limit air carriers' potential liability in the face of accidents — supported this reasoning. The Supreme Court in dictum has expressed a similar notion. El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 161 (1999) ("[R]ecovery for a personal injury . . ., if not allowed under the [Warsaw] Convention, is not available at all.")
It follows from this rule that if DeGeorge were to rely solely on her complaint, which is comprised entirely of state law claims that fall within the scope of the Warsaw Convention, that complaint would be subject to dismissal for failure to state a state law claim as those claims are pre-empted by the Warsaw Convention. E.g., Watson v. American Airlines, Inc., 2002 WL 1359747 (D. Md. June 20, 2002) (dismissing state claims for failure to state a claim as pre-empted by Warsaw Convention). As a result, in this situation, unless DeGeorge amends her complaint to add a Warsaw Convention claim, she has no claim. This fact supports a finding that international air travel is so completely pre-empted that a well-pleaded state-law complaint necessarily becomes a federal claim. To allow a remand in this situation would permit artful pleading by framing what must necessarily be a Warsaw Convention claim as a state law claim.
As DeGeorge points out, the fact that federal law pre-empts a state law cause of action is by itself insufficient to amount to complete pre-emption. E.g., Fax Telecommunications, Inc. v. ATT, 138 F.3d 479, 486 (2d Cir. 1998). Normally, however, the defense of federal pre-emption does not sound the death knell for the entirety of a plaintiff's state law claims.
A number of courts have similarly found that removal was appropriate because the Warsaw Convention completely pre-empts state law causes of action, including the Court of Appeals for the Eighth Circuit and two district courts within the Second Circuit. E.g., Husmann v. Trans World Airlines, Inc., 169 F.3d 1151, 1152-53 (8th Cir. 1999) (affirming removal of Warsaw Convention case under complete pre-emption doctrine); Donkor v. British Airways Corp., 62 F. Supp.2d 963, 967 (E.D.N.Y. 1999) ("[D]efendants are correct in their assertion that the Warsaw Convention completely preempts the claims that it governs. . . ."); Ajibola v. Sabena Belgium Airline, 1995 WL 552737 (S.D.N.Y. Sept. 15, 1995) (denying remand on basis of complete pre-emption). See also Casey v. Panalpina, Inc., 1998 WL 1198108, at *4 (E.D. La. March 12, 1998) (denying remand of Warsaw Convention claim based upon complete pre-emption); Luna v. Compania Panamena de Aviacion, S.A., 851 F. Supp. 86, 831 (S.D. Tex. 1994) (same). In addition, the court in Jack v. Trans World Airlines, Inc., 820 F. Supp. 1218 (N.D. Cal. 1993) engaged in an extremely thoughtful analysis of the text and drafting history of the Warsaw Convention to arrive at the same conclusion. This Court is in accord with the above authority for the reasons stated therein, and thus DeGeorge's motion must be denied.
After the submission of this motion, DeGeorge proffered the decisions in two related cases in the Northern District of Texas that held oppositely. Perez v. American Airlines, 02 Civ. 1235, slip op. (Oct. 2, 2002) (granting motion to remand); Cabral v. American Airlines, Inc., 02 Civ. 1234, slip op. (Oct. 8, 2002) (relying on Perez and granting motion to remand) In Perez, the Honorable A. Joe Fish found that the Warsaw Convention creates the exclusive cause of action for the death or injury of airline passengers and that federal courts had jurisdiction to hear such claims. However, because concurrent state court jurisdiction exists for Warsaw Convention claims, Chief Judge Fish determined that there was no "intent to confer exclusive federal jurisdiction over claims governed by the Warsaw Convention." Perez, slip op. at 7.
As an initial matter, these cases relied on Fifth Circuit precedent and its three-prong test for complete pre-emption. Id.
A state cause of action may be completely pre-empted by federal law even if concurrent jurisdiction exists. "Even where federal law completely pre-empts state law, state courts may have concurrent jurisdiction over the federal claim if the defendant does not remove the case to federal court." Asante Techs., 164 F. Supp.2d at 1152. Indeed, the test for complete pre-emption in the Fifth Circuit depends upon a Congressional intent that the case may, rather than must, be removable to federal court. Rogers v. American Airlines, 192 F. Supp.2d 661 (N.D. Tex. 2001). In any case, these opinions are not controlling on this Court.
In addition, DeGeorge suggests that because the Warsaw Convention provides for the application of local law in certain provisions that the claim is not completely pre-empted. This argument does not suitably overcome the authority cited above.
Because removal was proper under the complete pre-emption doctrine, there is no need to address American's other contentions with regard to the propriety of removal.
Conclusion
For the foregoing reasons, DeGeorge's motion is denied.
It is so ordered.