August 2007

District Court Takes a Practical Approach on Remand Issue In In Re Air Crash at Lexington, Kentucky, Aug. 26, 2006 *

Holland & Knight Newsletter
Judy R. Nemsick

A troublesome issue that has divided the federal district courts concerns the removal of a state court action to federal court when it is undisputed that the state law claims asserted against an airline fall within the scope of the Warsaw or Montreal Conventions. The defendant airline in this situation generally will remove the case to federal court on the ground that the plaintiff’s cause of action, even though it may assert only state law claims, is founded on a treaty of the United States and, thus, raises federal question jurisdiction.2 In response, plaintiffs often move to remand the case back to state court, arguing that, under the well-pleaded complaint rule, the action cannot be removed because no federal cause of action appears on the face of the complaint and plaintiff’s right to relief does not depend on resolution of a substantial question of federal law.3 An exception to this well-pleaded complaint rule, however, permits removal in cases where the federal law has completely preempted any state law claims in this area. While several courts have invoked this complete preemption exception in actions governed by the Warsaw/Montreal treaties,4 other courts have held that the doctrine of complete preemption is reserved for very limited cases and may not be invoked based on the treaties’ defenses or limitations.5

Recently, in litigation arising from the crash of Comair flight 5191 during take-off from Lexington International Airport, the district court addressed this divisive issue and denied plaintiffs’ motion to remand. After concluding that the Montreal Convention undisputedly governed plaintiffs’ action,6 the court turned to plaintiffs’ argument that removal is improper under the complete preemption doctrine and the rule that removal cannot be based on a preemption defense.7

The Lexington court determined that a different preemption analysis is called for because of the exclusive nature of the remedy provided by the Warsaw/Montreal treaties. As explained by the court: “[t]he question is not the removal issue of whether a claim must be brought to federal court; instead, the question is whether a claim must be brought under federal treaty law or not at all.” The district court considered persuasive the Supreme Court’s decision in Tseng v. El Al Israel Airlines, Ltd., which counseled against applying the United States’ “home-centered preemption analysis …, mechanically, in construing our treaty obligations.”8 The court also took note of another recent Supreme Court decision that discussed a treaty’s preemptive effect on conflicting state laws:

[I]t is well established that a self executing treaty binds the State pursuant to the Supremacy Clause, and that the States therefore must recognize the force of the treaty in the course of adjudicating the rights of litigants. Where a treaty provides for a particular judicial remedy, there is no issue of intruding on the constitutional prerogatives of the states or the other federal branches. Courts must apply the remedies as a requirement of the federal law.9

Consistent with the foregoing, several circuit courts of appeals have concluded that the Warsaw/Montreal treaties provide the exclusive remedy to a passenger when a claim falls within their scope.10 The 6th Circuit, which the Lexington district court is bound to follow, also has recognized the federal cause of action created by the Warsaw Convention and the federal policy of “uniformity and certainty” embodied in the treaty.11 Accordingly, the Lexington court concluded that “the Warsaw and Montreal Conventions have preempted all state law causes of action for matters within their scope” and, in this particular wrongful death action, the Montreal Convention applies and its cause of action provides “the exclusive remedy available for [p]laintiffs’ claims against Comair.”

In denying plaintiff’s motion to remand, however, the district court did not expressly find that plaintiffs’ claims were completely preempted; rather, the court focused on the

procedural logistics that would follow remand. Upon remand, Comair could move to dismiss plaintiff’s claim in state court for failure to state a cause of action. Sometime thereafter, plaintiffs could re-file an amended complaint asserting a claim under the Montreal Convention, and the case would become removable (at Comair’s option) to federal court. However, as stated by the court, “[j]udicial economy would not be furthered by such procedural hurdles.”

While the Lexington court apparently considered it unnecessary to base federal question jurisdiction on the complete preemption doctrine, it clearly recognized the judicial inefficiency that would result by permitting plaintiffs to plead only state law causes of action for a claim that is undisputedly governed by treaty law. To make the defendant jump through numerous procedural hoops only to wind up back in a federal court would be a waste of time and judicial resources. Nonetheless, unless a district court finds complete preemption or adopts the Lexington court’s practical approach, this may be the course of action required by certain courts in order for a defendant to obtain a federal forum for adjudication of a Warsaw/Montreal claim.

* 2007 WL 1876456 (E.D. Ky. June 26, 2007).

2007 WL 1876456 (E.D. Ky. June 26, 2007).

1 28 U.S.C. § 1441(b).

2 See Empire Healthchoice Assur. Inc. v. McVeigh, __U.S.__, 126 S. Ct. 2121 (2006); Caterpillar, Inc. v. Williams, 482 U.S. 386, 391 (1987).

3 See, e.g., Husmann vs. Trans World Airlines, Inc., 169 F.3d 1151, 1152 (8th Cir. 1999) (personal injury claims sustained while boarding are completely preempted); Knowlton v. Am. Airlines, Inc., 2007 WL 2734794, at *5 (D. Md. Jan. 31, 2007) (recognizing split of authority, but finding complete preemption); Singh v. N. Am. Airlines, 426 F. Supp. 2d 38, 48 (E.D.N.Y. 2006) (“Warsaw Convention completely preempts those claims that fall within the scope”); De George v. Am. Airlines, Inc., 2002 WL 31356266, at *3-5 (S.D.N.Y. Oct. 17, 2002) (to allow remand “would permit artful pleading by framing what must necessarily be a [Warsaw] claim as a state law claim”).

 4 See, e.g., Nipponkoa Ins. Co. v. Globeground Servs., Inc., 2006 WL 2861126, at *3 (N.D. Ill. Sept. 28, 2006) (federal question jurisdiction “may not be invoked based on the Warsaw Convention defense regardless of whether it applies to limit any of Plaintiff’s claims”); Dorazio v. UAL Corp., 2002 WL 31236290, at *2-3 (N.D. Ill. Oct. 2, 2002) (complete preemption is reserved for very limited contexts; Convention merely subjects state law claims to certain limitations); Rogers v. Am. Airlines, Inc., 192 F. Supp. 2d 661, 671-72 (N.D. Tex. 2001) (absence of express congressional grant of complete preemption weighs against requiring federal forum for Warsaw claims).

5 Plaintiffs had argued that St. Lucia, the stopping place of the decedent’s roundtrip transportation, is not a party to either Convention and therefore neither treaty applied. However, under the terms of the treaty, the treaty status of a stopping place is irrelevant when the transportation is roundtrip and from a signatory country like the United States. See Montreal Convention, art.1(2); see also Knowlton, 2007 WL 2734794 at *1 n.1 (roundtrip transportation from U.S. is governed by Montreal Convention).

6 The court previously ordered the remand of non-treaty cases arising from the same accident that had been removed to federal court based on the Federal Aviation Act (FAA) of 1958, 49 U.S.C. §40101 et seq. and its regulations. The court found no complete preemption as there was no clear congressional intent for federal law to supersede both state substantive law and state causes of action. However, the FAA’s preemptive effect could be raised as a defense. See In re Air Crash at Lexington, Kentucky, Aug. 27, 2006, 486 F. Supp. 2d 640, 650-54 (E.D. Ky. 2007).

7 525 U.S. 155, 175 (1999). Tseng did not address the complete preemption issue, but held that if an action is not “allowed under the Convention [it] is not available at all.” Id.

8 Quoting Sanchez-Llamas v. Oregon, __ U.S.__, 126 S. Ct. 2669, 2680 (2006) (citation omitted).

9 See, e.g., Husmann, 169 F.3d at 1152 (treaty provides exclusive cause of action and remedy); Carey v. United Airlines, 255 F.3d 1044, 1051 (9th Cir. 2001) (under Tseng, the Convention’s remedy is the “only one”); Magan v. Lufthansa German Airlines, 339 F.3d. 158, 161 (2d Cir. 2003) (“A passenger whose injuries fall within the scope of the Warsaw Convention is either entitled to recovery under the Convention or not at all”); Marotte vs. American Airlines Inc., 296 F.3d 1255, 1259 (11th Cir. 2002) (“Warsaw Convention is the exclusive mechanism of recovery”).

10 See Bickel v. Korean Air Lines, Co., 83 F.3d 127, 130 (6th Cir. 1996).

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