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Greig v. U.S. Airways Inc.

United States District Court, D. Arizona

June 26, 2014

Ian Greig and Sandra Greig, Plaintiffs,
US Airways Incorporated, et al., Defendants

For Ian Greig, husband and the marital community composed thereof, Plaintiff: C Douglas Weber, Jeffrey B Miller, LEAD ATTORNEYS, Gabriel Vicente Kory, Miller Weber Kory LLP, Phoenix, AZ; Alisa Rebecca Brodkowitz, Brodkowitz Law, Seattle, WA.

For U.S. Airways Incorporated, a Delaware corporation, U.S. Airways Group Incorporated, a Delaware corporation, Defendants: Kevin David Neal, Liana Jean Garcia, LEAD ATTORNEYS, Gallagher & Kennedy PA, Phoenix, AZ; Richard G Grotch, LEAD ATTORNEY, Coddington Hicks & Danforth, Redwood City, CA.

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Susan R. Bolton, United States District Judge.

The Court now considers Plaintiffs' Motion to Remand (" MTR" ) (Doc. 18).


This case concerns tort and contract claims brought by Plaintiffs Ian and Sandra Greig stemming from the crash landing of U.S. Airways Flight 1702 departing from Philadelphia with the intended destination of Fort Lauderdale. ( See Doc. 1, Ex. A, Compl. ¶ ¶ 1-45.) The flight never reached Fort Lauderdale due to complications during takeoff, which required the flight crew to perform an emergency landing back on the runway after the plane had ascended only twenty to forty feet. ( Id. ¶ ¶ 9-10.) The plane crashed into the runway after the nose landing gear failed. ( Id. ¶ 11.) Plaintiffs purportedly suffered emotional and physical injuries from the crash landing, bringing claims for negligence (Count One), negligence per se (Count Two), and breach of contract (Count Three) in state court against Defendants. ( Id. ¶ ¶ 6-39.) Defendants subsequently removed the lawsuit to this Court based on federal question jurisdiction and diversity jurisdiction. ( See Doc. 1, Defs.' Notice of Removal ¶ ¶ 1-7.) After screening the Notice of Removal, the Court ordered Defendants to show cause why the case should not be remanded to state court for lack of jurisdiction. (Doc. 5, Apr. 29, 2014 Order at 1.)[1] Defendants filed a Brief in Support of Federal Jurisdiction in which they argued that removal was proper because " the case arises under an international treaty [(the Montreal Convention)] to which the United States is a party and that treaty completely preempts all state law claims." (Doc. 6, Def. U.S. Airways' Br. in Supp. of Federal Jurisdiction/Resp. to Order to Show Cause (" U.S. Airways' Br." ) at 1.) Plaintiffs have since moved to remand the case to state court. ( See MTR at 1-17.)


" Under 28 U.S.C. § 1441, a defendant may generally remove a civil action from state court to federal district

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court if the district court would have had subject matter jurisdiction had the action been originally filed in that court . . . ." Roth v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121, 1124 (9th Cir. 2013). Federal question jurisdiction exists only if a federal question is presented on the face of a properly pleaded complaint. Caterpillar, Inc., v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). An affirmative defense raising a federal question is insufficient to confer federal question jurisdiction. Effects Assoc., Inc. v. Cohen, 817 F.2d 72, 73 (9th Cir. 1987). The doctrine of complete preemption is a narrow corollary to the well-pleaded complaint rule. Balcorta v. Twentieth Century Fox Film Corp., 208 F.3d 1102, 1106 (9th Cir. 2000). Under the complete preemption doctrine, " the preemptive force of some statutes is so strong that they completely preempt an area of state law" and give rise to federal question jurisdiction. Id. (citing Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 24, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). " The test is whether Congress clearly manifested an intent to convert state law claims into federal-question claims." Holman v. Laulo-Rowe Agency, 994 F.2d 666, 668 (9th Cir. 1993). " If so, then the cause of action necessarily arises under federal law and the case is removable." Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 9, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003).

A federal question does not appear on the face of the Complaint. Defendants argue that removal is proper because Flight 1702 was part of a larger international journey and the Montreal Convention completely displaces state law claims made against air carriers for flights involving " international carriage," making removal proper under the complete preemption doctrine. ( See U.S. Airways' Opp'n at 4-15.) The Montreal Convention, the successor to the Warsaw Convention, is intended to promote uniformity in the laws governing air carrier liability and " applies to all international carriage of persons, baggage or cargo performed by aircraft." See Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999 (Montreal Convention), art. 1(1), reprinted in S. Treaty Doc. No. 106-45, 1999 WL 33292734. It sets forth a liability scheme for passenger claims for personal injury, wrongful death, loss or damage to baggage or goods, and damages caused by transportation delays. See id. arts. 17-19. Article 29 of the Montreal Convention limits actions for damages by providing:

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights.

Id. art. 29. " [T]he Montreal Convention represent[ed] a significant shift away from a treaty [(the Warsaw Convention)] that primarily favored airlines to one that continues to protect airlines from crippling liability, but shows increased concern for the rights of passengers and shippers." Weiss v. El Al Israel Airlines, Ltd., 433 ...

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