Rogers v. American Airlines, Inc.

192 F.Supp.2d 661

Jerry ROGERS and Jodi Shelton, Plaintiffs, v. AMERICAN AIRLINES, INC., Defendant.

No. CIV.A.3:01-CV-1127-M.

United States District Court, N.D. Texas, Dallas Division.

October 29, 2001.

COPYRIGHT MATERIAL OMITTED

Robert Randolph Cole, Jr., Charles T. Weigel, John L. Fritz, Brady & Cole, Dallas, TX, for Plaintiffs.

William Neil Rambin, Shelby Lyn Bobosky, Sedgwick, Detert, Moran & Arnold, Dallas, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

LYNN, District Judge.

The Court has before it Plaintiffs' Motion to Remand, filed on August 2, 2001. Having considered the Motion and applicable law, the Court is of the opinion that removal was improper. The Court therefore GRANTS Plaintiffs' Motion to Remand. Because the Court lacks jurisdiction, it declines to rule on whether the asserted state law claims fall within the "substantive scope" of the Warsaw Convention and on Defendant's pending Motion for Summary Judgment.

BACKGROUND

American Airlines, Inc. ("AA") requires passports for international travel-even for infants. Plaintiffs Jerry Rogers and Jodi Shelton claim AA's negligent representations as to the paperwork required for international travel with infants caused them to miss business meetings, opportunities, and travel. Plaintiffs, allegedly guided by the misinformation of an AA representative, traveled on an AA flight from Dallas/Fort Worth to Narita, Japan, on their way to Taiwan. Plaintiffs' travel partner, Northwest Airlines, refused to allow the Plaintiffs to board their connecting flight from Narita to Taiwan without a passport for their infant child and, because the child did not have the proper documentation to remain in Narita, directed them to return to the United States, which they did. This suit, filed in state court on April 13, 2001, alleges claims for breach of contract and negligent misrepresentation.

AA removed the case to federal court on June 13, 2001, asserting federal question jurisdiction. In particular, AA argues that the Plaintiffs' claims for relief arise under the laws of the United States—the Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 3014, T.S. No. 876 (1934), note following 49 U.S.C. § 40105, et seq. (the "Warsaw Convention"). On August 2, 2001,¹ Plaintiffs moved to remand. The primary issue to be determined in this motion is whether the complete preemption doctrine allows removal despite the Plaintiffs' failure to plead claims under the Warsaw Convention.

ANALYSIS AND DECISION

A. Plaintiffs' Well Pleaded Complaint

Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Based on federalism principles, a case is presumed to lie outside this limited jurisdiction unless proved otherwise by the party seeking the federal forum. Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir.1991). Here, AA removed this case to federal court pursuant to 28 U.S.C. § 1441(b), and must therefore establish federal jurisdiction.

Removal is proper when "[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States," exists. 28 U.S.C. § 1441(b) (2000). Essentially, two doors lead to original federal jurisdiction: (1) federal question jurisdiction (28 U.S.C. § 1331 (2000)), and (2) federal diversity jurisdiction (28 U.S.C. § 1332 (2000)). The lack of complete diversity between the Plaintiffs and AA eliminates federal diversity jurisdiction. Thus, if AA is to establish original federal jurisdiction, it must do so by demonstrating that federal question jurisdiction exists, meaning AA must show that this case "arises under federal law." The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716 (1913).

To determine whether a case "arises under federal law," the Court generally looks to whether the "plaintiff's well-pleaded complaint raises issues of federal law." Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986); Rivet v. Regions Bank of La., 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998) ("[w]e have long held that `[t]he presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.'") (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). The fact that a federal defense to the Plaintiffs' action may be raised will usually not suffice to create federal question jurisdiction. Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 12, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983).

On its face, the Plaintiffs' Complaint asserts only common law breach of contract and negligent representation claims. AA contends that application of the "complete preemption" doctrine should transform the federal defense of Warsaw Convention preemption into a basis for removal jurisdiction.² As discussed below, although the Warsaw Convention's exclusivity provisions may well preempt Plaintiffs' state law claims, the delicate balance between state and federal courts cautions against finding that the field of international air travel is so completely preempted that any claim relating to the area is "necessarily federal in character." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987).

"Complete preemption," which creates federal removal jurisdiction, differs from the more common "ordinary preemption" or "conflict preemption," which does not. The Fifth Circuit has developed a stringent tripartite test to determine whether a statute is among the few falling within the complete preemption exception. See Aaron v. Nat'l Union Fire Ins. Co., 876 F.2d 1157, 1164 (5th Cir.1989). "This test should be `applied with circumscription to avoid difficult issues of federal-state relations,' and accordingly few federal statutes can meet such an exacting standard." Heimann v. Nat'l Elevator Indus. Pension Fund, 187 F.3d 493, 500 (5th Cir.1999). Recognizing that applicability of the complete preemption doctrine, which authorizes a case to be removed to a federal forum, is separate and distinct from the more common question of whether a given federal law preempts a conflicting state cause of action, the Court's analysis will turn to the merits of AA's removal to federal court.

B. Function of the Warsaw Convention

The primary function of the Warsaw Convention is to foster uniformity in the laws governing international air carrier liability. See Zicherman v. Korean Air Lines Co., Ltd., 516 U.S. 217, 219, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996). Uniformity is required to allow airlines to raise necessary capital, to provide a basis for insurance rate determinations, and to reduce inconsistent outcomes. See In re Disaster at Lockerbie, Scotland on Dec. 21, 1988, 928 F.2d 1267, 1275 (2d Cir.), cert. denied, 502 U.S. 920, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991). In line with the goals of uniformity, the Warsaw Convention supplies an exclusive remedy for injuries incurred during international transportation. There are three types of claims, set out in Chapter III of the Warsaw Convention, to which liability attaches: (1) those claims based on personal injuries (Article 17); (2) those claims based on lost or damaged luggage (Article 18); and (3) those claims based on damages due to delays in transportation (Article 19).

AA argues that Article 19 is applicable to Plaintiffs' claims: "The carrier shall be liable for damage occasioned by delay in the transportation by air of passengers, baggage, or goods." 49 U.S.C. § 40105, art. 19. Plaintiffs rely on Lathigra v. British Airways PLC, 41 F.3d 535, 539 (9th Cir.1994), to argue that Article 19 does not apply to this case. There, airline passengers brought a negligence action against British Airways under Washington state law, alleging that it reconfirmed their reservations but negligently neglected to inform them that their connecting flight had been discontinued. The Ninth Circuit found the Warsaw Convention inapplicable, holding that the alleged negligence did not occur during the performance of the contract of carriage but rather days before, when the British Airways representative mistakenly reconfirmed their reservations on a nonexistent flight. Id. at 538.

Plaintiffs read Lathigra to instruct that the application of the Warsaw Convention turns not on whether their claims related to international travel, but rather on when those claims arose—here, prior to any international travel. In doing so, they narrowly define Article 19's "transportation by air," to literally mean "in the charge of a carrier," so as to exclude claims related to acts occurring before an individual arrives at an airport.

Though the point was not raised by AA, Lathigra and most of the other cases Plaintiffs cite on this issue pre-dated both El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 166, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999), in which the Supreme Court clarified Warsaw Convention jurisprudence, and amendments to Article 24, which clarify the exclusivity of the Warsaw Convention. See 144 Cong. Rec. S11059 (Sept. 28 1998).³

In Tseng, the Supreme Court filled a growing chasm concerning preemption of state law claims under the Warsaw Convention.⁴ There, a passenger brought a claim under New York tort law after being subjected to an intrusive pre-boarding security search, alleging that the search caused her emotional and psychological injuries. Tseng, 525 U.S. at 160, 119 S.Ct. 662. Tseng did not suffer a "bodily injury" under Article 17, nor was the event that gave rise to his claim an "accident" as defined by Article 17. The Court nonetheless found that ...