O'Brien et al v. Phoenix, City of et al

Filing 12

ORDER granting 6 Plaintiff's Motion to Remand to State Court. This action is remanded to the Superior Court of Arizona in Maricopa County. Signed by Judge Frederick J Martone on 10/4/12. (Attachments: # 1 Remand Letter)(DMT)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
Dawnelle O’Brien; Larry Clark,
9
Plaintiffs,
10
vs.
11
City of Phoenix; Frontier Airlines Inc.,
12
Defendants.
13

)
)
)
)
)
)
)
)
)
)

No. CV-12-1334-PHX-FJM
ORDER

14
The court has before it plaintiffs’ motion to remand (doc. 6), defendants’ response
15

(doc. 7),1 and plaintiffs’ reply (doc. 8).

16
I.
17
Plaintiffs filed this action in state court against the City of Phoenix and Frontier
18
Airlines for state law claims of premises liability and negligence. Plaintiff Dawnelle
19
O’Brien, who is legally blind, was on a Frontier Airlines flight that arrived in Phoenix at Sky
20
Harbor International Airport on June 8, 2011. She alleges that she tripped, fell, and was
21
injured when she stepped off of the airplane onto the jetway because the jetway was
22
improperly aligned with the airplane. Defendants removed the action on the basis of federal
23
question jurisdiction, asserting that the state law claims are preempted by the Air Carrier
24
Access Act, which defendants contend are rules that exclusively govern airline standards for
25
26
27
28

1

Plaintiffs incorrectly argue that defendants filed their response to the motion to
remand late. The motion was filed on June 29, 2012. Under LRCiv 7.2(c), a response is due
14 days after the motion is filed. Under Rule 6(d), Fed. R. Civ. P., an additional 3 days is
added for service. Defendants’ response was due on July 16, and it was filed on July 16.

1

assisting passengers with disabilities. See 49 U.S.C. § 41705. Plaintiffs seek to remand this

2

action, arguing that their state law claims are not preempted by federal law.

3

II.

4

The Federal Aviation Act (“FAA”) and its corresponding regulations were

5

promulgated to establish safety rules for the airline industry. The Air Carrier Access Act

6

(“ACAA”), which prohibits discrimination against disabled individuals, was enacted as an

7

amendment to the FAA. 49 U.S.C. § 41705. The ACAA is intended “to ensure non-

8

discriminatory treatment of qualified handicapped individuals consistent with safe carriage

9

of all passengers on air carriers.” Pub. L. No. 99-435, § 2(a), 100 Stat. 1080 (1986). The

10

ACAA requires, in part, that an airline (1) “promptly provide or ensure the provision of

11

assistance requested by or on behalf of passengers with a disability . . . in enplaning and

12

deplaning,” and (2) provide “the services of personnel and the use of ground wheelchairs,

13

accessible motorized carts, boarding wheelchairs, and/or on-board wheelchairs.” 14 C.F.R.

14

§ 382.95(a).

15

The ACAA does not expressly provide a private cause of action, and we conclude that

16

no private right of action should be implied. In Alexander v. Sandoval, 532 U.S. 275, 121

17

S. Ct. 1511 (2001), the Supreme Court strictly curtailed the authority of courts to recognize

18

implied rights of action, requiring that a review of the text and structure of a statute evidence

19

a clear manifestation of congressional intent to create a private cause of action before a court

20

can find such a right to be implied. “The judicial task is to interpret the statute Congress has

21

passed to determine whether it displays an intent to create not just a private right but also a

22

private remedy.” Id. at 286-87, 121 S. Ct. at 1519. “[L]egal context matters only to the

23

extent it clarifies text.” Id. at 288, 121 S. Ct. at 1520. Every Circuit that has considered the

24

issue since Sandoval has found no congressional intent to create a private cause of action.

25

See, e.g., Lopez v. Jet Blue Airways, 662 F.3d 593, 597 (2d Cir. 2011); Boswell v. Skywest

26

Airlines, Inc., 361 F.3d 1263, 1269-71 (5th Cir. 1991); Love v. Delta Air Lines, 310 F.3d

27

1347, 1354-60 (11th Cir. 2002). We agree that the text and structure of the ACAA manifest

28

no congressional intent to create a private right of action in a federal district court.
-2-

1

The ACAA empowered the Department of Transportation (“DOT”) to issue

2

regulations to ensure nondiscriminatory treatment of disabled passengers. The statute

3

provides a comprehensive administrative enforcement scheme whereby an individual must

4

file a complaint with the DOT. Judicial review of the DOT’s decision is available in the

5

United States Courts of Appeals. 49 U.S.C. §§ 46101(a)(1), 41705, 46110; 14 C.F.R. §§

6

382.151-53. The ACAA’s comprehensive enforcement scheme “belies any congressional

7

intent to create a . . . private right to sue in a federal district court.” Love, 310 F.3d at 1354.

8

Because we conclude that there is no private right of action under the ACAA,

9

plaintiffs’ claims cannot be asserted here. “[A] defendant may remove a case only if the

10

claim could have been brought in the federal court.” Merrell Dow Pharm. Inc. v. Thompson,

11

478 U.S. 804, 808, 106 S. Ct. 3229, 3232 (1986); 28 U.S.C. § 1441(a). No matter how we

12

would decide the preemption issue, we would have to dismiss. If there is preemption, we

13

would dismiss and plaintiff would have to go to the DOT. If there is no preemption, we

14

would have to dismiss and plaintiff would have to go to state court. Because this case could

15

not have been brought in this court even if the claims are preempted, we remand the action

16

to the court that can decide the claims if not preempted. To the extent that the state court

17

determines that the claims are preempted, plaintiffs’ remedy is with the Department of

18

Transportation. To the extent the state court decides the claims are not preempted, the claims

19

are properly before the state court. Of course, the preemption issue arises under federal law

20

and therefore certiorari would lie in the United States Supreme Court.

21
22
23
24

III.
IT IS ORDERED GRANTING plaintiffs’ motion for remand (doc. 6). This action
is remanded to the Superior Court of Arizona in Maricopa County.
DATED this 4th day of October, 2012.

25
26
27
28
-3-