Wragge v. Boeing Co.

532 F.Supp.3d 616

Kieran WRAGGE and David Beard, Plaintiffs,

v.The BOEING COMPANY, Defendant.

No. 20-cv-04457

United States District Court, N.D. Illinois, Eastern Division.

Signed March 31, 2021

Patrick M. Jones, PMJ PLLC, Chicago, IL, Joseph Charles Wheeler, Pro Hac Vice, IALPG Pty. Ltd. (t/as International Aerospace Law & Policy Gro, Australia, IL, for Plaintiffs.

Dan K. Webb, Christopher B. Essig, Joseph Laurence Motto, Winston & Strawn LLP, Bates McIntyre Larson, Kathleen A. Stetsko, Perkins Coie LLP, Chicago, IL, Sandra Edwards, Winston & Strawn LLP, San Francisco, CA, Todd W. Rosencrans, Vernon L. Woolston, Perkins Coie LLP, Seattle, WA, for Defendant.

MEMORANDUM OPINION AND ORDER

Franklin U. Valderrama, United States District Judge

Plaintiffs Kieran Wragge (Wragge) and David Beard (Beard) are commercial pilots (collectively, Plaintiffs). Plaintiffs bring this personal injury lawsuit against Defendant The Boeing Company (Boeing), alleging they became ill after being exposed to contaminated fumes while flying a Boeing aircraft in Australia. Plaintiffs filed suit against Boeing, the designer and manufacturer of the aircraft, in the Circuit Court of Cook County, Illinois. Before being formally served with the summons or complaint, Defendant removed the case to the Court, arguing that diversity jurisdiction was proper in federal court under 28 U.S.C. 1332(a). Currently before the Court is Plaintiffs’ Motion to Remand the case to the Circuit Court of Cook County. R. 16, Mot. Remand.¹ For the reasons that follow, Plaintiffs’ Motion to Remand is denied.

Background

Plaintiffs are citizens of Australia. R. 1-1, Compl. ¶¶ 1–2. Boeing is a Delaware corporation with its principal place of business in Chicago, Illinois. Id. ¶ 3. Boeing is engaged in the business of designing, manufacturing, assembling, testing, servicing, marketing, promoting, leasing, and selling commercial aircraft as well as providing information and warnings about such aircraft, including the aircraft at issue. Id. ¶ 5. Boeing airplanes, other than the 787 Dreamliner, use a "bleed air" system where outside air is pulled into the aircraft's engines before entering the cabin. Id. ¶ 7. The air can be contaminated by heated jet oil, hydraulic fluid, and other contaminants or toxic by-products of such chemicals. Id. Inhaling contaminated cabin air can cause short-term or transient symptoms as well as permanent and serious personal injury. Id. ¶ 10.

Plaintiffs, pilots for Virgin Australia, attribute two contaminated air events on July 28, 2018 as the source of numerous health complications. Compl. ¶¶ 19–47. The first alleged contaminated air event was flight VA1102 from Brisbane to Newcastle on a Boeing 737-800 NG. Id. ¶ 19. Beard was the Captain of the flight, and Wragge was the First Officer. Id. Flight VA1102 was the first flight of the aircraft that day. Id. After Plaintiffs started Engine 2, exhaust fumes entered the cockpit. Id. ¶ 20. The fumes were in the flight deck and perceptible for about two minutes. Id. ¶ 22. The second contaminated air event was the same-day return trip from Newcastle to Brisbane on flight VA1103 using the same aircraft. Id. ¶ 25. Again, after starting Engine 2, the Plaintiffs were subjected to additional exhaust fumes. Id. Wragge began coughing and felt a burning sensation in his throat. Id. ¶ 29. Beard experienced a raised heart rate and lightheadedness. Id. ¶ 31. The fumes dissipated after approximately four to seven minutes. Id.

Exposure to the contaminated cabin air has caused Wragge to experience short-term and long-term health effects including but not limited to migraines, sensitivity to odors, fatigue, exhaustion, chest pain, decreased motor skills, problems sleeping, trouble concentrating, cognitive defects, and anxiety. Compl. ¶ 44. Many of these symptoms continued to effect Wragge two years after the events, which have "completely derailed" Wragge's life. Id. ¶¶ 44–45. Beard has also experienced short-term and long-term health effects due to the contaminated air events, including nausea, confusion, accelerated heart rate, jittery feeling, fatigue, exhaustion, and cognitive deficits. Id. ¶ 46. Most of Beard's symptoms were resolved a few months after the events. Id. Plaintiffs have suffered loss of wages and wage-earning capacity in the past and in the future. Id. ¶ 47.

On July 24, 2020, Plaintiffs filed a five-count complaint against Boeing, alleging, in the Circuit Court of Cook County, Illinois, state law causes of action including negligence and fraud. Compl. ¶¶ 97–122. Plaintiffs do not allege an exact or minimum damages amount in their complaint. On July 29, 2020, Boeing filed a notice to remove this action to federal court before being served with the complaint. R. 1, Notice of Removal ¶ 2; Mot. Remand at 1. Boeing premised removal based on diversity jurisdiction, pursuant to 28 U.S.C. 1332(a). Notice of Removal ¶¶ 5–13. Plaintiffs move to remand this proceeding to Illinois state court. Mot. Remand.

Legal Standard

By statute, Congress grants federal courts jurisdiction over two types of cases: those that "arise under" federal law, 28 U.S.C. § 1331, and those where there is diversity of citizenship and an amount-in-controversy requirement is met, id. § 1332(a). See Home Depot U.S.A., Inc. v. Jackson , ––– U.S. ––––, 139 S. Ct. 1743, 1746, 204 L.Ed.2d 34 (2019). District courts have diversity jurisdiction over all actions "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs, and is between ... citizens of a State and citizens ... of a foreign state ...." 28 U.S.C. § 1332(a). "Diversity jurisdiction's basic rationale ... is opening the federal courts’ doors to those who might otherwise suffer from local prejudice against out-of-state parties." Hertz v. Friend , 559 U.S. 77, 85, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010).

Generally, a plaintiff's choice of forum is accorded deference. Savino Del Bene, U.S.A., Inc. v. Hartford Fin. Servs. Grp., Inc. , 2012 WL 3961224, at *2 (N.D. Ill. Sept. 7, 2012) (citing Poulos v. Naas Foods, Inc. , 959 F.2d 69, 72 (7th Cir. 1992) ). But where, as here, "the plaintiff is a foreign citizen and resident ... his choice of the United States as a forum should be accorded less deference than if the choice is made by a United States plaintiff." Clerides v. Boeing Co. , 534 F.3d 623, 628 (7th Cir. 2008) (citing Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp. , 549 U.S. 422, 430, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) ).

A defendant may remove to federal court any action filed in state court that could have originally been filed in federal court. 28 U.S.C. § 1441(a). When removal is premised on diversity jurisdiction, though, the defendant, as the party seeking removal, "must also clear the additional hurdle of ... the forum defendant rule." Morris v. Nuzzo, 718 F.3d 660, 664–65 (7th Cir. 2013) (internal citations omitted). "The forum-defendant rule limits the removability of diversity cases when a defendant is a citizen of the forum." Grandinetti v. Uber Techs., Inc. , 476 F. Supp. 3d 747, 753 (N.D. Ill. 2020). The forum defendant rule provides:

A civil action otherwise removable solely on the basis of [diversity] jurisdiction ... may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

28 U.S.C. § 1441(b)(2).

"The forum defendant rule is designed to preserve the plaintiff's choice of forum, under circumstances where it is arguably less urgent to provide a federal forum to prevent prejudice against an out-of-state party." Morris, 718 F.3d at 665 (internal citations and quotations omitted). Put another way, "the forum defendant rule disallows federal removal premised on diversity in cases where the primary rationale for diversity jurisdiction—to protect defendants against presumed bias of local courts—is not a concern because at least one defendant is a citizen of the forum state." Id. (internal citation omitted). "When a court evaluates a motion to remand, ‘a plaintiff's choice of forum is presumed valid, and the court must resolve any doubts about jurisdiction in favor of remand.’ " I.T.M. v. Midwest Can Co., LLC , 2021 WL 170734, at *1 (N.D. Ill. Jan. 19, 2021) (quoting D.C. v. Abbott Lab'ys Inc. , 323 F. Supp. 3d 991, 993 (N.D. Ill. 2018) ).

Analysis

Plaintiffs advance two arguments in support of remand. First, they argue that allowing Boeing's application of the forum defendant rule encourages the practice of "snap removal," whereby a defendant removes a case before the plaintiff has an opportunity to serve the defendant. Mot. Remand at 1–2.² Plaintiffs contend that this practice defeats a plaintiff's choice of forum and amounts to forum shopping, rendering 28 U.S.C. § 1441(b)(2) void. Id. at 2–3. Second, Plaintiffs argue that Boeing fails to establish that the amount in controversy exceeds $75,000, and therefore cannot establish diversity jurisdiction. Id. at 4–5. The Court addresses each argument in turn.

I. Forum Defendant Rule

As an initial matter, it is undisputed that there is complete diversity of citizenship in this case as Plaintiffs are citizens of Australia and Boeing is a citizen of Illinois. Plaintiffs argue that Boeing, as a citizen of Illinois, is barred from removal by the forum defendant rule. Mot. Remand at 2 (citing Vivas v. Boeing Co. , 486 F. Supp. 2d 726, 734 (N.D. Ill. 2007) ). Not surprisingly, Boeing insists that the forum-defendant rule does not apply because it had not yet been served with the complaint. R. 20, Resp. at 5–8 (citing Grandinetti , 476 F. Supp. 3d 747, among other cases). Admittedly, both sides marshal persuasive case law in support of their respective positions.

It should go without saying that the Seventh Circuit has yet to decide the issue raised by Plaintiffs’ motion: whether in a case premised on diversity jurisdiction, the forum defendant rule permits pre-service removal by a defendant who is...