Psalmond et al v. Delta Air Lines, Inc.
Filing
11
ORDER AND OPINION granting plaintiffs Motion to Remand 5 and denying their Request for Fees 5 . The clerk is directed to remand this case to the Gwinnett County Superior Court where it was originally filed. Signed by Judge Julie E. Carnes on 3/24/14. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MARVIN ERIC PSALMOND and ANNA
MUNANDAR,
Plaintiffs,
CIVIL ACTION NO.
v.
1:13-cv-2327-JEC
DELTA AIR LINES, INC.,
Defendant.
ORDER & OPINION
This case is before the Court on plaintiffs’ Motion to Remand
and Request for Fees [5].
arguments
of
the
parties
The Court has reviewed the record and the
and,
for
the
reasons
set
out
below,
concludes that the Motion to Remand [5] should be GRANTED and that
the Request for Fees [5] should be DENIED.
BACKGROUND
This case arises out of an emergency evacuation from Delta
Flight 1323 on June 20, 2011.
(Compl. [1] at ¶ 5.)
en route from Atlanta to Los Angeles.
(Id.)
The flight was
Shortly after takeoff,
passengers heard a loud noise and noticed flames coming out of the
left engine.
(Id. at ¶ 7.)
The pilot returned to the Atlanta
airport, where she landed the plane without incident.
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(Id. at ¶ 8.)
Once the plane was on the ground, the passengers were instructed to
exit the plane via evacuation slides.
(Id. at ¶ 9.)
Plaintiff Marvin Psalmond was a passenger on Flight 1323.
(Compl. [1] at ¶ 6.)
Following the emergency landing, Psalmond
evacuated down a slide near the middle of the plane.
(Id. at ¶ 10.)
He claims that he was injured when he was struck in the back and
shoulder by another passenger who came down the slide prematurely.
(Id. at ¶ 11.)
¶ 19.)
Plaintiff Anna Munandar is Psalmond’s wife.
(Id. at
Her claims are based on Psalmond’s alleged injuries and
derivative of his claims.
(Id. at ¶ 28.)
Plaintiffs filed suit against defendant in Gwinnett County
Superior Court, asserting state law claims of negligence and gross
negligence.
(Compl. [1].)
Defendant removed the action to this
Court based on federal question jurisdiction under 28 U.S.C. § 1331.
(Notice
of
Removal
[1]
at
¶¶
7-8.)
Defendant
asserts
that
plaintiffs’ claims are preempted by the Federal Aviation Act (“FAA”)
as amended by the Airline Deregulation Act (“ADA”), and thus governed
by federal law.
(Id. at ¶¶ 3-6.)
Plaintiffs have filed a motion to
remand the case to state court.
(Pls.’ Mot. to Remand [5].)
According to plaintiffs, the FAA does not preempt routine state
negligence claims such as the claims asserted in this action.
(Id.)
In connection with their motion to remand, plaintiffs also request an
award of fees and costs pursuant to 28 U.S.C. § 1447(c).
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DISCUSSION
I.
MOTION TO REMAND
Pursuant to 28 U.S.C. § 1441(a):
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 U.S.C. § 1441(a).
A case that is improperly removed to federal
court is subject to remand under 28 U.S.C. § 1447.
Remand is
mandatory if “it appears that the district court lacks . . .
jurisdiction” over the case.
28 U.S.C. § 1447(c).
On a motion to
remand for lack of jurisdiction, “[t]he removing party bears the
burden of proof regarding the existence of federal subject matter
jurisdiction.”
City of Vestavia Hills v. Gen. Fid. Ins. Co., 676
F.3d 1310, 1313 (11th Cir. 2012). Because removal raises significant
federalism
concerns,
the
construed strictly.
Id.
in favor of remand.
jurisdictional
removal
statutes
are
Any doubts about jurisdiction are resolved
Id.
As indicated above, defendant relies solely on federal question
jurisdiction as its basis for removal. (Notice of Removal [1].) The
federal courts have original jurisdiction over cases “arising under
federal law.”
Ehlen Floor Covering, Inc. v. Lamb, 660 F.3d 1283,
1287 (11th Cir. 2011)(citing 28 U.S.C. § 1331).
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As a general rule,
a case arises under federal law when it appears from the well-pleaded
complaint that federal law creates the cause of action or that
resolution of the dispute requires interpretation of a substantial
federal issue.
Iberiabank v. Beneva 41-I, LLC, 701 F.3d 916, 919
(11th Cir. 2012).
A state claim may also be deemed to arise under
federal law under the “complete preemption” doctrine when federal
regulation “so occupies a given field” that any complaint raising
claims in that field must necessarily be characterized as federal in
nature.
Dunlap v. G&L Holding Grp., Inc., 381 F.3d 1285, 1290 (11th
Cir. 2004).
See also Pruitt v. Carpenters’ Local Union No. 225, 893
F.2d 1216, 1218-19 (11th Cir. 1990)(holding that § 301 of the Labor
Management Relations Act completely preempts any equivalent state law
remedies).
Plaintiffs do not assert any federal claims in the complaint.
(Compl. [1] at ¶¶ 30-42.)
Nor do the asserted claims raise any
substantial federal issues.
Although the complaint refers generally
to federal aviation regulations, its claims do not essentially depend
on or require any interpretation of those regulations.
Iberiabank,
701 F.3d at 919 (state claims “can sometimes arise under federal law
when
the
potential
state
court
plaintiff’s
right
to
relief
necessarily depends on resolution of a substantial question of
federal law”)(emphasis added).
See also Dunlap, 381 F.3d at 1290
(“‘[T]he mere presence of a federal issue in a state cause of action
4
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does
not
automatically
confer
federal-question
jurisdiction.’”)
(quoting Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 813
(1986)) and Cornelius v. U.S. Bank Nat’l Ass’n, 452 Fed. App’x 863,
865 (11th Cir. 2011)(“presence of a federally regulated defendant
does not of itself raise a substantial federal question”).
Defendant’s theory is that the state negligence claims asserted
in the complaint are completely preempted by the FAA and the ADA.
(Def.’s Resp. [6] at 2, 6.)
Congress passed the FAA in 1958 in order
to promote the safe and efficient use of the nation’s airspace.
See
49 U.S.C. § 40101 and Zukas v. Hinson, 124 F.3d 1407, 1412 (11th Cir.
1997).
To that end, the FAA vested in the United States government
“exclusive sovereignty” over US airspace and authorized the FAA
Administrator to implement regulations concerning various aspects of
air safety and transport. 49 U.S.C. § 40103(a)(1) and (b). Congress
enacted the ADA in 1978, in an effort to deregulate the airline
industry and to permit “maximum reliance on competitive market
forces” to further efficiency and innovation in the industry.
See
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992)
(discussing the history of the FAA and ADA).
As originally enacted, the FAA contained a savings clause
clarifying that:
“Nothing . . . in this chapter shall in any way
abridge or alter the remedies now existing at common law or by
statute, but the provisions of this chapter are in addition to such
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remedies.”
Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 222 (1995).
In accordance with its attempt to deregulate the airline industry,
Congress included in the ADA a preemption clause designed to ensure
that states did not “‘undo federal deregulation with regulation of
their own.’” Id. (quoting Morales v. Trans World Airlines, Inc., 504
U.S. 374, 378 (1992)).
That clause expressly provides for federal
preemption of state laws “related to a price, route, or service of an
air carrier” that is governed by the Act.
49 U.S.C. § 41713(b).
Defendant argues that the state negligence claims asserted here
are impliedly preempted by the FAA.
According
to
defendant,
the
(Def.’s Resp. [6] at 14-22.)
comprehensive
system
of
federal
regulations that have been implemented under the authority of the FAA
evinces an intent by Congress and the Administrator to preempt the
entire field of aviation safety.
(Id.)
Alternatively, defendant
contends that emergency disembarkation procedures are related to an
airline’s core “service” of providing safe transportation, and that
the asserted claims are thus expressly preempted by the ADA. (Id. at
6-14.)
Defendant’s implied preemption argument is foreclosed by the
Eleventh Circuit’s decision in Pub. Health Trust of Dade Cnty. v.
Lake Aircraft, Inc., 992 F.2d 291 (11th Cir. 1993).
In Public
Health, the Circuit Court addressed the same issue that defendant
raises here: whether the scheme of federal regulation under the FAA
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is “so pervasive as to make reasonable the inference that Congress
left no room for the States to supplement it.”
Id. at 294.
Citing
Cipollone v. Liggett Grp., Inc., 505 U.S. 504 (1992), the Court
advised caution in applying implied preemption theories when a
federal statute contains an express preemption clause.
Id.
Relying
in part on the express preemption language of the ADA, the Court
ultimately concluded that the FAA does not preempt state law “on
matters unrelated to airline rates, routes or services.” Id. at 295.
Defendant suggests that the Court should disregard Public Health
because of its reliance on Cipollone.
(Def.’s Resp. [6] at 4-5.)
Subsequent to the Public Health decision, the Supreme Court clarified
that Cipollone does not “entirely foreclose[] any possibility of
implied pre-emption” when there is an express preemption clause.
Freightliner Corp. v. Myrick, 514 U.S. 280, 288 (1995).
See also
Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 869-870 (2000)
(ordinary conflict preemption analysis applies to a statute that
contains an express preemption and savings clause).
However, the
Cipollone clarification did not invalidate Public Health.
the
Eleventh
preemption
is
Circuit
“usually
observed
in
Public
inapplicable”
when
Health
there
that
is
an
Although
implied
express
preemption clause, it went on to apply ordinary preemption principles
to conclude that field preemption could not be inferred from the
language of the FAA.
Public Health, 992 F.2d at 294-95.
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Its
analysis
was
thus
in
accordance
with
the
later
Supreme
Court
authority.
The Eleventh Circuit has had at least one opportunity to revisit
the
Public Health
decision since the Supreme Court issued its
clarifying authority. See Branche v. Airtran Airways, Inc., 342 F.3d
1248 (11th Cir. 2003).
Although the Branche Court recognized the
Cipollone clarification, it did not limit or modify Public Health.
Id. at 1253.
relied
on
argument.
a
In fact, Branche cited Public Health with approval and
similar
Id.
analysis
Branche
to
reject
confirms
that
an
implied
Public
preemption
Health,
which
definitively resolves the implied preemption argument raised by
defendant, remains good law and is binding on this Court.
See
Ballenger v. Sikorsky Aircraft Corp., Civil Action No. 2:09cv72-MHT
(WO), 2011 WL 5245209, at *2 (M.D. Ala. Nov. 3, 2011)(Thompson, J.)
(under Public Health, claims that do not relate to “airline rates,
routes or services” are not preempted by federal law).
Defendant’s express preemption argument fares no better.
The
Eleventh Circuit has interpreted the ADA’s “services” term to include
all of the “[contractual] features of air transportation” that are
bargained for by air carriers and their passengers and that Congress
intended to deregulate via the ADA, such as “‘ticketing, boarding
procedures, provision of food and drink, and baggage handling.’”
Branche, 342 F.3d at 1256-57 (quoting Hodges v. Delta Airlines, Inc.,
8
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44 F.3d 334, 336 (5th Cir. 1995)).
Though broad, this definition
does not result in the preemption of state law personal injury claims
arising from the allegedly negligent operation of an airplane.
at 1258 and Hodges, 44 F.3d at 335.
Id.
As explained in Branche:
airlines do not compete on the basis of likelihood of
personal injury . . . and as such it does not undermine the
pro-competitive purpose of the ADA . . . to permit states
to regulate this aspect of air carrier operations.
Id.
(internal
citation
omitted)(those
elements
of
air
carrier
operations over which airlines do not compete are not “services” . .
. and state laws related to those elements are not preempted).
See
also Barbakow v. USAir, Inc., 950 F. Supp. 1145, 1149 (S.D. Fla.
1996)(“claims
proximately
by
caused
private
by
an
passengers
air
to
carrier’s
recover
breach
of
for
its
injuries
duty
of
reasonable care in providing cabin services are not preempted by the
ADA”).
This result is reinforced by another provision of the FAA, which
requires an air carrier to maintain an insurance policy or selfinsurance plan that is “sufficient to pay . . . for bodily injury to,
or death of, an individual or for loss of, or damage to, property of
others, resulting from the operation or maintenance of the aircraft.”
49 U.S.C. § 41112(a).
The Eleventh Circuit has cited this provision
as evidence that Congress did not intend for the ADA to preempt state
personal injury claims.
Branche, 342 F.3d at 1258.
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Other courts
have likewise noted that ADA preemption of state negligence claims
would render the insurance provision a nullity.
See Hodges, 44 F.3d
at 338 (“A complete preemption of state law in this area would have
rendered
any
requirement
of
insurance
coverage
nugatory.”)
and
Sheesley v. The Cessna Aircraft Co., Nos. Civ. 02-4185-KES, Civ. 035011-KES, Civ. 03-5063-KES, 2006 WL 1084103, at *21 (D. S.D. Apr. 20,
2006)(Schreier,
C.J.)(“This
insurance
requirement
acknowledges
Congress’s intent that state tort claims survive adoption of the
Act.”).
Finally,
the
Court
notes
that
defendant
has
failed
to
acknowledge the distinction that the Eleventh Circuit draws between
the “ordinary preemption” that may provide an affirmative defense to
a state law claim and the “complete preemption” that allows for
removal of a state claim to federal court.
See Cmty. State Bank v.
Strong, 651 F.3d 1241, 1261 (11th Cir. 2011).
Ordinary defensive
preemption “‘does not furnish federal subject-matter jurisdiction
under 28 U.S.C. § 1331.’”
Id. (quoting Butero v. Royal Maccabees
Life Ins. Co., 174 F.3d 1207, 1212 (11th Cir. 1999)).
Complete
preemption “entirely transforms a state-law claim into a federal
claim, regardless of how the plaintiff framed the legal issue in his
complaint” and thus does supply federal jurisdiction.
complete preemption is “rare.”
Id.
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Id.
However,
The above discussion concerning ordinary preemption principles
necessarily precludes the application of the more narrow complete
preemption doctrine in this case.
But it is important to note that
defendant has made no effort to show that this case is within that
“rare” category of cases where complete preemption might apply.
See
Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d 1267, 1281 (11th Cir.
2005)(referring
jurisdiction
to
the
created
by
“special
the
category
doctrine
of
of
federal
complete
question
preemption”).
Neither has the Court, in its independent research, found any
authority to suggest that complete preemption applies under the
circumstances of this case.
As discussed, defendant has the burden of showing that removal
is proper under federal law.
1313.
City of Vestavia Hills, 676 F.3d at
For all of the reasons discussed above, defendant failed to
meet this burden. The Court thus GRANTS plaintiffs’ motion to remand
this case to state court.
II.
REQUEST FOR FEES
In connection with their motion to remand, plaintiffs request an
award of fees and costs pursuant to 28 U.S.C. § 1447(c).
Section
1447(c) provides that: “An order remanding the case may require
payment of just costs and any actual expenses, including attorney
fees, incurred as a result of the removal.”
The
standard
for
awarding
fees
under
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§
28 U.S.C. § 1447(c).
1447(c)
turns
on
“the
reasonableness of the removal.”
U.S. 132, 141 (2005).
Martin v. Franklin Cap. Corp., 546
As the Supreme Court explained in Martin:
Absent unusual circumstances, courts may award attorney’s
fees under § 1447(c) only where the removing party lacked
an objectively reasonable basis for seeking removal.
Conversely, when an objectively reasonable basis exists,
fees should be denied.
Id.
See also Bauknight v. Monroe Cnty., 446 F.3d 1327, 1329 (11th
Cir. 2006)(citing Martin and rejecting the “presumption in favor of
awarding fees” previously applied by some courts).
Although the Court ultimately rejected defendant’s preemption
argument,
its
unreasonable.”
asserted
basis
for
removal
was
not
“objectively
Plaintiffs referred in their complaint to federal
aviation regulations, and their allegations arguably implicate the
FAA
and
the
ADA.
Defendant’s
implied
preemption
argument
is
foreclosed by Public Health, but the Cipollone clarification makes
that result less obvious.
And the Eleventh Circuit has not ruled
specifically on defendant’s express preemption argument, which might
reasonably have appeared viable given the Circuit Court’s broad
interpretation
of
the
term
“services”
as
used
in
the
ADA.
Accordingly, the Court finds that fees and costs are not warranted
under § 1447(c) and DENIES plaintiffs’ request.
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CONCLUSION
For the foregoing reasons, plaintiffs’ Motion to Remand [5] is
GRANTED and their Request for Fees [5] is DENIED.
The clerk is
directed to REMAND this case to the Gwinnett County Superior Court
where it was originally filed.
SO ORDERED, this 24th day of March, 2014.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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