Ritz, et al v. Mountain Lifeflight Inc., et al

Filing 27

ORDER signed by Judge John A. Mendez on 4/16/12 REMANDING CASE to Superior Court of Sacramento. Copy of remand order sent to other court. CASE CLOSED. (Matson, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KENTON BRYCE RITZ, et al.,

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Plaintiffs,

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v.
MOUNTAIN LIFEFLIGHT INC., et
al.,
Defendants.

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Case No. 2:12-CV-00134-JAM-DAD
ORDER GRANTING PLAINTIFFS’
MOTION TO REMAND

This matter is before the Court on Plaintiffs Kenton Bryce

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Ritz’s, through his guardian Ad Litem Brandy Miller Speiker, and

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Joe Ritz’s and Sue Ritz’s, as co-administrators of the Estate of

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Christopher Ritz, (collectively “Plaintiffs”) Motion to Remand

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(Doc. # 20).1

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(“AEC”) opposes the motion (Doc. # 22).

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Only Defendant American Eurocopter Corporation

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was originally
scheduled on April 11, 2012.
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I.

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BACKGROUND

Plaintiffs’ allegations concern a helicopter crash on November

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14, 2009 which resulted in Christopher Ritz’s death.

The

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helicopter was allegedly owned and operated by Defendant Mountain

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Lifeflight (“MLF”), a California corporation.

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causes of action based on negligence and strict liability against

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the various defendants seeking to recover for Christopher Ritz’s

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death.

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County Superior Court, State of California, claiming federal

Plaintiffs assert

AEC removed this action (Doc. #1) from the Sacramento

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question and federal diversity jurisdiction.

Plaintiffs now seek

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to remand the action to state court, claiming that federal question

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jurisdiction does not exist.

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II.

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OPINION

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A.

Legal Standard for Motion to Remand

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As this is a motion to remand pursuant to 28 U.S.C. § 1447(c),

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the issue to be decided is the Court’s subject matter jurisdiction

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or lack thereof.

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final judgment it appears that the district court lacks subject

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matter jurisdiction, the case shall be remanded.”).

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remand an action sua sponte if it determines that it lacks subject

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matter jurisdiction.

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Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir.2003) (“[W]e have

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held that the district court must remand if it lacks

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jurisdiction.”) (citing Sparta Surgical Corp. v. Nat'l Ass'n Sec.

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See 28 U.S.C. § 1447(c) (“If at any time before

The court must

See Kelton Arms Condominium Owners Ass'n v.

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Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir.1998)).

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statute explains when removal is proper:

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The removal

Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of
which the district courts of the United States have
original jurisdiction, may be removed by the defendant
or the defendants, to the district court of the United
States for the district and division embracing the
place where such action is pending.
28 .S.C. § 1441(a).
The Ninth Circuit “strictly construe[s] the removal statute
against removal jurisdiction.”

Gaus v. Miles, Inc., 980 F.2d 564,

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566 (9th Cir.1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th

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Cir.1988); Takeda v. Northwestern National Life Insurance Co., 765

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F.2d 815, 818 (9th Cir.1985)).

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be rejected if there is any doubt as to the right of removal in the

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first instance.”

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592 F.2d 1062, 1064 (9th Cir.1979)).

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against removal jurisdiction means that the defendant always has

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the burden of establishing that removal is proper.”

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Nishimoto v. Federman-Bachrach & Associates, 903 F.2d 709, 712 n. 3

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(9th Cir.1990); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195

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(9th Cir.1988)).

Thus, “[f]ederal jurisdiction must

Id. (citing Libhart v. Santa Monica Dairy Co.,
“The ‘strong presumption’

Id. (citing

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B.

Diversity Jurisdiction

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AEC opposes remand on the ground that defendant MLF, the only

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defendant that is a citizen of California, is a fraudulently joined

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or “sham” defendant.

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as Christopher Ritz’s employer, is through California’s worker

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compensation system, making Plaintiffs’ present suit against MLF

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invalid.

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South Lassen EMS doing business as Plumas EMS, and that Christopher

AEC contends that the only claim against MLF,

Plaintiffs respond that Christopher Ritz was employed by

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Ritz was not employed by MLF at the time of the crash. Therefore

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MLF is a proper defendant and complete diversity does not exist.
“In order for diversity jurisdiction to be present, there must

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be complete diversity such that each of the plaintiffs [is] a

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citizen of a different state than each of the defendants.”

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v. Paul Revere Ins. Group, 55 F. App'x 412, 413 (9th Cir. 2002)

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(internal quotations omitted).

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cause of action against a resident defendant, and the failure is

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obvious according to the well-settled rules of the state, the

Fisher

“If a plaintiff fails to state a

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joinder is fraudulent and ‘the defendant's presence in the lawsuit

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is ignored for purposes of determining diversity.’”

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Computer Sys. v. AT&T Info. Sys., 298 F.3d 756, 761 (9th Cir. 2002)

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(quoting Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th

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Cir. 2001)).

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actually or even probably prevail on the merits, but whether there

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is any possibility that [she] may do so.”

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Mar. Co., No. C 02-3936 MJJ, 2002 U.S. Dist. LEXIS 20523, at *4

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(N.D. Cal. Oct. 23, 2002).

United

“The standard is not whether [a plaintiff] will

Cont'l Ins. Co. v. Foss

Plaintiffs point to evidence that MLF was not Christopher

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Ritz’s employer at the time of the crash.

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lists Plumas EMS as his employer.

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D.)

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Plumas EMS, not MLF.

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the W-2 is not necessarily dispositive of the employment issue, and

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that Plaintiffs should have presented evidence to satisfy a common

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law employment analysis.

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Christopher Ritz’s W-2

(Sterns’ Decl., Doc. #20-1, Ex.

Further, the state worker compensation proceedings involved
(Sterns’ Decl., Ex. B.)

AEC responds that

To support its argument, AEC relies on news articles, an
obituary, and the answer filed by MLF in an attempt to show that
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Christopher Ritz was actually employed by MLF, not Plumas EMS.

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Plaintiffs correctly argue that these items are not evidence and/or

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they are inadmissible hearsay.

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citation to legal authority, that since Lassen EMS and MLF share an

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address, they should be considered the same entity.

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speculates, without evidentiary support, that Christopher Ritz

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could have been employed by MLF and Plumas EMS at the same time.

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Left with only AEC’s unsupported arguments and speculation, which

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are contradicted by Plaintiffs’ documentary evidence, the Court

AEC additionally argues, without

AEC further

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finds that AEC has not met its burden of showing that MLF was

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fraudulently joined.

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precludes a finding of subject matter jurisdiction based on

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diversity of state citizenship.

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C. Federal Preemption

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AEC argues also that removal jurisdiction exists because

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Plaintiffs’ negligence and strict liability claims are preempted by

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Federal Aviation Regulations (“FARs”).

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their claims are not preempted and are therefore not the proper

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basis for removal.

Accordingly, MLF’s California citizenship

28 U.S.C. § 1332(a).

Plaintiffs respond that

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“[A] case may not be removed to federal court on the basis of

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a federal defense, including the defense of [federal] pre-emption.

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. . .”

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exception to this rule is that if an area of state law is

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completely preempted by federal law, then the cause of action is

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considered as arising under federal law for removal purposes.

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Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987).

An

Id.

In the area of aviation safety, Congress expressly preserved

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state law tort causes of action.

Martin ex rel. Heckman v. Midwest

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Exp. Holdings, Inc., 555 F.3d 806, 808 (9th Cir. 2009) (citing 49
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U.S.C. § 40120(c) (“[a] remedy under this part is in addition to

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any other remedies provided by law.”)).

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interprets this provision to mean that state law causes of action

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are only preempted when the FARs in a certain area constitute

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pervasive regulation.

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of preemption means that the state law standard of care is

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preempted in those areas that are subject to pervasive federal

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regulation.

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issues ‘pervasive regulations’ in an area . . . the [FARs]

Id. at 811.

The Ninth Circuit

In the tort context, this type

See id. (“when the [Federal Aviation Administration)]

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preempt[] all state law claims in that area. In areas without

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pervasive regulations or other grounds for preemption, the state

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standard of care remains applicable.”)

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In this case, despite AEC’s argument to the contrary, it is

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clear that AEC offers preemption as a federal defense to state law

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claims.

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entire field of aircraft regulation.

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preempted the entire field, federal preemption is limited to a

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federal defense and cannot be the basis for removal.

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Life Ins. Co. v. Taylor, 481 U.S. 58, 63–64 (1987) (complete

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preemption, which is grounds for removal, exists only in areas that

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are so completely preempted that any claim brought is necessarily

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federal in character).

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claims brought in the area of aircraft safety are not necessarily

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federal in nature.

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FARs, if sufficiently pervasive, only preempt the state law

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standard of care for Plaintiffs’ claims, but not the state law

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claims themselves.

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Martin specifically held that Congress did not preempt the
Id.

Where Congress has not

See Metro.

According to Martin, however, state law

Martin, 555 F.3d at 811.

Under Martin, the

Id.

It is clear under Martin that the Ninth Circuit does not
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recognize field preemption, which would create federal subject

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matter jurisdiction, for all aviation related state law tort

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claims.

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federal defense based on preemption to Plaintiffs’ state law

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claims.

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jurisdiction for removal purposes cannot be based on preemption in

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this instance.

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In the absence of complete preemption, AEC merely offers a

See Taylor, 481 U.S. at 63.

D.

Thus, federal question

Caterpillar, 482 U.S. at 393.
Procedural Propriety of Removal

Plaintiffs also argue that the removal procedure was defective

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because not all Defendants consent to removal.

Defendants respond

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that the defect has since been cured by MLF’s consent to removal.

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Removing Defendants may cure defects in a notice of removal prior

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to the entry of judgment, rendering “remand on procedural grounds

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an empty formality.”

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Cir. 1998) (superseded on other grounds).

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declines to remand this case on procedural grounds.

Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th
Accordingly, the Court

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III. ORDER

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For the reasons discussed above, the Court GRANTS Plaintiffs’

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Motion to Remand on the ground that the Court lacks subject matter

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jurisdiction.

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Court of Sacramento, California.

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close this case.

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This action is hereby remanded back to the Superior
The Court orders the clerk to

IT IS SO ORDERED.
Dated: April 16, 2012

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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