Baugh v. Delta Air Lines, Inc.

Filing 9

OPINION AND ORDER that Plaintiff's Motion to Remand 5 is GRANTED IN PART and DENIED IN PART. It is GRANTED with respect to Plaintiff's request that this action be remanded. It is DENIED with respect to Plaintiff's request for attorneys' fees. The Clerk is DIRECTED to REMAND this action to the Superior Court of Fulton County, Georgia. Signed by Judge William S. Duffey, Jr on 2/23/2015. (anc)

that, on September 19, 2012, Plaintiff was a “paying customer and invitee of
Defendant at the Boston Logan International Airport . . . .” (Complaint ¶ 5). After
entering the airport, Plaintiff checked into her flight and was “flagged as blind and
needing assistance.” (Id. ¶ 6). After her flight was called for boarding, Plaintiff
“notified Defendant’s employee stationed in front of the gate that she was blind
and needed assistance boarding Defendant’s aircraft, but Defendant’s employee
instructed her to immediately proceed with boarding without assistance.” (Id. ¶ 8).
Following the instructions of Defendant’s employee, Plaintiff claims she tripped
and fell while attempting to walk down the sloping ramp to board the aircraft. (Id.
¶¶ 9-10). She alleges she suffered serious injuries and incurred medical expenses
as a result of her fall. (Id.).
Plaintiff asserts that Defendant owed her a duty of care, and that Defendant’s
breach of that duty was the cause of her injuries. (Id. ¶¶ 11-13). Plaintiff’s
Complaint does not allege any federal statute or regulation that applied to
Defendant’s conduct, and her claims are not brought pursuant to a federal statute or
regulation.
On August 7, 2014, Defendant filed its Notice of Removal [1] (the
“Notice”), asserting that Plaintiff’s “claims present a Federal Question and/or are
pre-empted by Federal law.” (Notice at 2). Defendant asserts that the Air Carrier

2

Access Act of 1986 (the “ACAA”)1 is a federal law that prohibits air carriers from
discriminating against individuals with disabilities. (Id. at 2-3). Defendant argues
that Plaintiff’s state-law negligence claim is preempted by the ACAA, and that the
rights and remedies she may have, if any, are only those afforded by the ACAA.
(Id.). To the extent that Plaintiff contends she has other claims not preempted by
federal law, the Court has supplemental jurisdiction over them pursuant to
28 U.S.C. § 1367. (Id. at 4).
On August 26, 2014, Plaintiff filed her Motion to Remand, asserting that her
Complaint raises only a state-law negligence claim, and that Defendant seeks to
“manufacture” federal question jurisdiction by contending that Plaintiff’s actual
claim is one based on discrimination under the ACAA.
On August 13, 2014, Defendant filed its Motion to Dismiss, asserting that,
because Plaintiff’s claims are actually disability discrimination claims under the
ACAA, Plaintiff’s Complaint should be dismissed because the ACAA does not
provide a private right of action. On August 26, 2014, Plaintiff filed her Motion to
Amend her Complaint, in which she seeks permission to file an amended
complaint that, in part, adds an allegation that the Defendant was negligent per se

1

49 U.S.C. § 41705 et seq.
3

under Massachusetts law for failing to exercise the duty of care for disabled
passengers set forth in the ACAA. (Amended Complaint [3-1] ¶ 12(g)).
II.

DISCUSSION
A.

Legal Standard

“[A]ny 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” to
federal court. 28 U.S.C. § 1441(a). Where removal is challenged, the removing
party has the burden to show removal is proper, or the case must be remanded to
the state court. Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001).
“[U]ncertainties are resolved in favor of remand.” Burns v. Windsor Ins. Co., 31
F.3d 1092, 1095 (11th Cir. 1994). Once a case is removed, “[i]f at any time before
final judgment it appears that the district court lacks subject matter jurisdiction, the
case shall be remanded.” 28 U.S.C. § 1447(c).
B.

Federal Question Jurisdiction

Defendant contends that removal of this action is proper because the Court
has federal question jurisdiction pursuant to 28 U.S.C. § 1331. See 28 U.S.C.
§ 1331 (“The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States.”). Whether a
claim “arises under” federal law “is governed by the ‘well-pleaded complaint rule,’

4

which provides that § 1331 jurisdiction exists only when a federal question is
presented on the face of the plaintiff’s properly pleaded complaint.”
Dunlap v. G&L Holding Grp., Inc., 381 F.3d 1285, 1290 (11th Cir. 2004) (quoting
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). The plaintiff is “the
master of the claim,” and he may avoid federal jurisdiction by relying exclusively
on state law, even where a federal claim is also available. Id. (quoting Caterpillar,
482 U.S. at 392). Even when a plaintiff has pleaded only state-law causes of
action, however, he may not avoid federal jurisdiction if either “(1) his state-law
claims raise substantial questions of federal law or (2) federal law completely
preempts his state-law claims.” Id. (citing Franchise Tax Bd. v. Constr. Laborers
Vacation Trust, 463 U.S. 1, 13 (1983)).
Plaintiff asserts only a state-law cause of action in her Complaint. For the
Court to have federal question jurisdiction, Plaintiff’s claim must either raise a
“substantial federal question” or be “completely preempted” by federal law. See
id. at 1291.
C.

Analysis

The ACAA amended the Federal Aviation Act (the “FAA). See 49 U.S.C.
§ 40101 et seq. In 2003, the ACAA implementing regulations, entitled the
“Nondiscrimination on the Basis of Disability in Air Travel,” were enacted (the

5

“ACAA Regulations”). The ACAA Regulations “prohibit[] both U.S. and foreign
carriers from discriminating against passengers on the basis of disability;
require[] carriers to make aircraft, other facilities, and services accessible; and
require[] carriers to take steps to accommodate passengers with a disability.”
14 C.F.R. § 82.1.
Defendant claims that because Plaintiff is physically disabled and her claim
arose while attempting to board an aircraft, her rights and remedies are those
allowed pursuant to the ACAA and, because the ACAA preempts Plaintiff’s
state-law claim and does not provide a private cause of action, Plaintiff’s claim is
required to be dismissed. (Notice at 2-4; Motion to Dismiss at 7-10). Plaintiff, in
her Motion to Remand, contends she is not asserting a discrimination claim
pursuant to the ACAA, but only a state-law tort claim for damages based upon
Defendant’s negligence. (Motion to Remand at 2). Plaintiff alleges that Defendant
was negligent in failing to:
(a) keep its premises and approaches safe for invitees, in violation of
Massachusetts law; (b) ensure that the premises and boarding
procedures were in a safe and proper condition for blind passengers;
(c) properly and adequately assist Plaintiff in boarding Defendant’s
aircraft, after Defendant knew, or should have known, of her
condition; (d) follow its own policies and procedures in assisting
disabled, or blind invitees into Defendant’s aircraft; (e) properly
assist Plaintiff when defendant knew this created a hazardous
condition, in violation of Massachusetts law; and (f) exercise
extraordinary care required to protect Plaintiff, a known blind
6

passenger, while she was attempting to negotiate the boarding ramp
and board Defendant’s aircraft, in violation of Massachusetts law.
(Motion to Remand at 4; Complaint ¶ 11).
Four of Plaintiff’s claims appear to relate to Defendant’s alleged failure to
assist Plaintiff in boarding Defendant’s aircraft. The ACAA Regulations provide
that an air carrier:
must promptly provide or ensure the provision of assistance requested
by or on behalf of passengers with a disability, or offered by carrier or
airport operator personnel and accepted by passengers with a
disability, in enplaning and deplaning.
14 C.F.R. § 382.95. Neither this Court nor the Eleventh Circuit has addressed
directly whether the ACAA preempts state-law negligence claims.
1.

Complete Preemption

Under the Supremacy Clause, when a state law conflicts, or is incompatible,
with federal law, federal law preempts the state law. Teper v. Miller, 82 F.3d 989,
993 (11th Cir. 1996); see also U.S. CONST. art. VI, § 2. Preemption generally
arises under three circumstances: (1) where Congress has expressly preempted
state law (“express preemption”); (2) where Congress has legislated so
comprehensively that federal law occupies an entire field of regulation and leaves
no room for state law (“field preemption”); or (3) where federal law conflicts with
state law such that it is impossible to comply with both or that the state law stands

7

as an obstacle to the objective of the federal law (“conflict preemption”).
United States v. Alabama, 691 F.3d 1269, 1281 (11th Cir. 2012) (citing Fla. State
Conf. of NAACP v. Browning, 522 F.3d 1153, 1167 (11th Cir. 2008)). The
ACAA does not contain an express preemption provision, and Defendant does not
argue that a conflict exists between the ACAA and Massachusetts law, and the
Court does not find a conflict.2 The question in this case is whether there is field
preemption of Plaintiff’s claim.
Field preemption “precludes the states ‘from regulating conduct in a field
that Congress, acting within its proper authority, has determined must be regulated
by its exclusive governance.’” Odebrecht Const., Inc. v. Sec’y, Florida Dep’t of
Transp., 715 F.3d 1268, 1274 (11th Cir. 2013) (quoting Arizona v. United States,
132 S. Ct. 2492, 2501 (2012)). The Court “may infer congressional intent to
displace state law altogether ‘from a framework of regulation so pervasive that
Congress left no room for the States to supplement it or where there is a federal
interest so dominant that the federal system will be assumed to preclude
2

Conflict preemption generally applies either when it is impossible to comply
with both the state and federal laws or when the state law stands as an obstacle to
the objective of the federal law. America’s Health Ins. Plans v. Hudgens, 742 F.3d
1319, 1329 (11th Cir. 2014) (citing Alabama, 691 F.3d at 1281). Defendant has
not cited, and the Court likewise has not found, any relevant state law that, if
complied with, would create a conflict with Defendant’s obligations under the
ACAA.
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enforcement of state laws on the same subject.’” Id. (quoting Arizona, 132 S. Ct.
at 2501). Field preemption, also called complete preemption, is:
a narrowly drawn jurisdictional rule for assessing federal removal
jurisdiction when a complaint purports to raise only state law claims.
It looks beyond the complaint to determine if the suit is, in reality,
purely a creature of federal law, even if state law would provide a
cause of action in the absence of the federal law. It transforms the
state claim into one arising under federal law, thus creating the federal
question jurisdiction requisite to removal to federal courts.
Dunlap, 381 F.3d at 1290 n.8 (citing Geddes v. Am. Airlines, Inc., 321 F.3d 1349,
1352–53 (11th Cir. 2003)).
“Complete preemption is a narrow exception to the well-pleaded
complaint rule and exists where the preemptive force of a federal statute is so
extraordinary that it converts an ordinary state law claim into a statutory federal
claim.” Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337,
1343 (11th Cir. 2009). It occurs “if a federal cause of action completely preempts
a state cause of action.” Dunlap, 381 F.3d at 1290 (quoting Franchise Tax
Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 24 (1983)). “[F]ederal law
should be found to completely preempt state law ‘only in statutes with
‘extraordinary’ preemptive force.’” Id. at 1291 (quoting Geddes v. Am. Airlines,
Inc., 321 F.3d 1349, 1353 (11th Cir. 2003)). The Supreme Court and Eleventh
Circuit have recognized complete preemption in only three federal statutes: (1) the

9

Labor Management Relations Act (2) the Employee Retirement Income Security
Act of 1974, and (3) the National Bank Act. See id. (citing Beneficial Nat’l
Bank v. Anderson, 539 U.S. 1, 7–11 (2003)). Complete preemption applies to
those statutes “because all three ‘provide[] the exclusive cause of action for the
claim asserted and also set forth procedures and remedies governing that cause of
action.’” Id. (quoting Beneficial, 539 U.S. at 8).
Whether the ACAA preempts Plaintiff’s state-law negligence claim is
guided by two cornerstones of preemption jurisprudence.
First, “the purpose of Congress is the ultimate touchstone in every
pre-emption case.” Second, “[i]n all pre-emption cases, and
particularly in those in which Congress has ‘legislated . . . in a field
which the States have traditionally occupied,’ . . . we ‘start with the
assumption that the historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear and manifest
purpose of Congress.’”
Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting Medtronic, Inc. v. Lohr, 518
U.S. 470, 485 (1996)) (internal quotations omitted).
There are several factors to consider in determining whether federal law has
completely preempted state law in an area. These factors include: (1) whether the
state claim is displaced by federal law under an ordinary preemption analysis;
(2) whether the federal statute provides a cause of action; (3) what kind of
jurisdictional language exists in the federal statute; and (4) what kind of language

10

is present in the legislative history to evince Congress’s intentions. Smith v. GTE
Corp., 236 F.3d 1292, 1312 (11th Cir. 2001) (citing BLAB T.V. of Mobile,
Inc. v. Comcast Cable Communications, Inc., 182 F.3d 851, 857 (11th Cir. 1999)).
The “focus of each of the tests [is] ‘to determine whether Congress not only
intended a given federal statute to provide a federal defense to a state cause of
action that could be asserted either in a state or federal court, but also intended to
grant a defendant the ability to remove the adjudication of the cause of action to a
federal court by transforming the state cause of action into a federal [one].’” Id.
(quoting BLAB, 182 F.3d at 857). Of the three statutes that the Supreme Court has
identified as completely preempting state-law claims, it concluded that preemption
applied to these statutes because “all three ‘provided the exclusive cause of action
for the claim asserted and also set forth procedures and remedies governing that
cause of action.’” Id. at 1291 (citing Beneficial Nat’l Bank v. Anderson, 539 U.S.
1, 7–11 (2003)).
2.

Decisions Discussing the ACAA

In arguing that there is complete preemption here, Defendant relies, in part,
on one Eleventh Circuit and several district court opinions. These cases do not
support that complete preemption precludes Plaintiff’s claim in this action.
Defendant principally relies on the Eleventh Circuit’s decision in Love v. Delta Air

11

Lines, to support its argument that the ACAA preempts Plaintiff’s state-law claim.
(Notice at 2). Love was not a preemption case but one which considered whether
the ACAA provided a private right of action for an alleged failure to provide
accommodations to a disabled passenger.
In Love, a passenger disabled by childhood polio and who was required to
use a wheelchair alleged that Delta failed to provide to her various
accommodations she claimed were required by the ACAA to accommodate her
polio-caused disability. The accommodation deficiencies she alleged were (i) the
failure to have a “call button” in the airplane’s restroom to call for assistance;
(ii) the failure to provide an aisle chair to assist her in accessing the restroom;
(iii) a restroom that was too small to accommodate her disability; (iv) the failure to
provide adequate privacy in the restroom; and (v) the failure to provide adequately
trained employees to respond to Plaintiff’s disability. Love v. Delta Air Lines, 310
F.3d 1347, 1350 (11th Cir. 2002). The plaintiff in Love asserted that, in failing to
provide the accommodations alleged, Delta violated the Americans with
Disabilities Act (the “ADA”) and the ACAA. Id. The Eleventh Circuit applied the
four criteria set out in Alexander v. Sandoval, 532 U.S. 275, 288-91 (2001) to
determine whether the ACAA provided a private cause of action for alleged
ACAA violations. The Eleventh Circuit found that the ACAA and its regulations

12

provided an administrative enforcement mechanism and that a private right of
action to enforce alleged ACAA violations did not exist. Id. at 1357-1360. Unlike
here, the plaintiff in Love asserted only federal-law disability discrimination
claims. The Eleventh Circuit in Love did not analyze whether the ACAA preempts
state-law negligence causes of action, and Love is not useful to the preemption
analysis required in this case.
Defendant next relies on Gill v. JetBlue Airways Corp., a decision from the
United States District Court for the District of Massachusetts, and cases from
district courts in the Ninth Circuit, to assert that Plaintiff’s failure-to-assist claim is
preempted by the ACAA and that federal jurisdiction applies in this case. These
cases, Defendant argues, draw a distinction between cases in which negligence is
based upon an airline’s failure to provide access or assistance--as allegedly
occurred in this case--which they have found to be preempted, and cases where the
injuries result from assistance being provided in a negligent manner, which are not
preempted. (Notice at 2-3).
In Gill, a passenger asserted a claim for negligent provision of boarding
assistance, which the court in Gill found was not preempted by the ACAA.
Gill v. JetBlue Airways Corp., 836 F. Supp. 2d 33, 45-46 (D. Mass. 2011). In Gill,
the airline claimed that § 41713(b)(1) of the Airline Deregulation Act, 49 U.S.C.

13

§ 41713(b)(1), expressly pre-empted the plaintiff’s claims for negligence which
resulted in injury to the plaintiff during boarding. Section 41713(b)(1), the court in
Gill opined, “prohibits any state from ‘enact[ing] or enforc[ing] a law, regulation,
or other provision having the force and effect of law related to a price, route, or
service of an air carrier.’” Id. at 38 (quoting 49 U.S.C. § 41713(b)(1)).
The defendant in Gill contended that the plaintiff’s claim for negligent injury
to a passenger during boarding was precluded by Section 41713(b)(1) because
boarding processes are a “service” under Section 41713(b)(1) to which the claim of
negligence was related. Id. at 39. The court in Gill held that “service” did not
include those relating to airport operations and maintenance. Id. at 40. “[I]n cases
involving personal injury, courts have generally held that negligence claims were
not preempted by the ADA on the grounds that the enforcement of tort remedies is
not sufficiently ‘related to’ airline services.” Id. at 42. The Gill court noted that it
“is difficult to believe that Congress would [in the ADA], without comment,
remove all means of judicial recourse for those injured by illegal conduct.” Id. at
42 (quoting Hodges v. Delta Airlines, Inc., 44 F.3d 334, 338 (5th Cir. 1995) (en
banc)).
In evaluating the plaintiff’s tort claim under the ACAA, the Gill court found
that the ACCA is directed at prohibiting discrimination and that state-law

14

negligence claims other than those that are the “result of aircraft operational
hazards” are not preempted. Id. at 44. As for negligent provision of boarding
assistance, Gill provides:
ACAA regulations establish no specific requirements as to the manner
in which such services must be provided. At most, those regulations
specify the circumstances under which airlines must (or must not)
provide particular forms of accommodations; they do not impose a
standard of care. Because the ACAA regulations provide no
alternative standard of care to that contained in the state tort law, the
claim of negligent provision of assistance is not preempted.
Id. at 45.
Plaintiff here asserts that she was not provided assistance in navigating the
boarding ramp, and it was this failure to provide assistance that caused her injuries.
The reasoning in Gill, thus, does not bar Plaintiff’s claim, but does support that
state-law causes of action can exist harmoniously with preempted claims of
disability accommodation failure. That is, a state-law negligence claim may be
asserted so long as the core of the claim is not a claim of disability discrimination
under the ACAA. This is consistent with the federal district court decisions cited
by Defendant.
The United States District Court for the Northern District of California, in
Summers v. Delta Airlines, Inc., addressed whether the ACAA preempts claims
brought by disabled individuals for failure to assist. In Summers, the plaintiff had

15

various physical limitations which required special assistance from defendant Delta
Air Lines when entering or existing the aircraft. Summers v. Delta Airlines, Inc.,
805 F. Supp. 2d 874, 876 (N.D. Cal. 2011). The plaintiff requested wheelchair
assistance for a flight to San Jose, California. Id. When the plane arrived in San
Jose it did not pull up to the gate, requiring passengers to depart the plan by
walking onto a platform outside the aircraft door and then down a flight of stairs.
Id. Delta did not provide the wheelchair assistance plaintiff requested and the
flight crew did not offer to help her deplane. Id. The plaintiff tried to exit on her
own. Id. A large step from the plane to the platform caused the plaintiff to trip,
causing injury. Id. A flight attendant and pilot, who were within a few steps of the
plaintiff when she tried to navigate the step, did not offer to help her do so. Id. at
876-77. She brought claims for violation of the standard of care for plaintiff’s safe
carriage as required by the California Civil Code, failure to provide a safe and fit
plane, negligence and negligent infliction of emotional distress. Id. at 877.
Defendant moved to dismiss the claims on the grounds they were preempted by the
ACAA. Id.

16

The Summers court held3 that whether a claim for injury asserted under state
law is preempted depends on whether the ACAA regulates the condition or
circumstance alleged to have caused plaintiff’s injury. The Summers court found
that “where the [FAA] has issued relevant and persuasive regulations” related to
access for and treatment of people with disabilities and a claim is that these
directives were not followed, ACAA preemption applies. Id. at 882 (internal
quotations omitted). “[W]here a disabled passenger brings a claim that does not
depend on duties pervasively regulated by the ACAA,” the claim is not preempted.
Id. The Summers court held that plaintiff’s claims based on “breach of the duty to
provide deplaning assistance or to property train employees regarding deplaning
procedures for disabled passengers” were preempted because the FAA has enacted
specific regulations in these areas. Id. at 883. The Summers court noted, however,
that the preemption applied only to the state standard of care. Id. at 883-84. The
state-law claims were allowed based on careless and reckless standards of care in
the ACAA. Id. at 884; see also 14 C.F.R. § 91.13(a). The Summers court reached
the same conclusion for plaintiff’s negligence and negligent infliction of emotional
distress claims.
3

The Summers court reviewed a variety of cases in which ACAA preemption
was claimed, finding that the cases seemingly conflicted with each other. The
Court agrees with this observation and has sought also to find a coherent thread in
the decisions.
17

The cases cited by Defendant do not stand for the proposition that the
ACAA preempts state-law negligence claims. They, at most, support that the
ACAA does not provide a private cause of action and does not preempt state-law
claims but may preempt the standard of care applied in state-law based claims.
Love, 310 F.3d at 1357-60; Gill, 836 F. Supp. 2d at 44-45. The Court must
determine if our Circuit would consider Plaintiff’s state-law negligence claim
completely preempted and, if not, whether the ACAA preempts the state standard
of care. The answer to these questions are relevant to whether there is federal
question jurisdiction over this case and, if not, or if no federal question remains, is
the action required to be remanded.
The courts that have considered questions of ACAA preemption reached
different results, but with certain common threads. In Elassaad v. Independence
Air, Inc., the Third Circuit considered if the ACAA preempted state-law tort
claims. In Elassaad, the plaintiff claimed he suffered injury deplaning the
defendant’s aircraft in Philadelphia, Pennsylvania. The Elassaad court considered
whether the ACAA precluded the plaintiff’s state-law claims and if it did, what
specifically was precluded.
In Elassaad, the plaintiff, who needed crutches to walk due to the amputation
of his right leg, fell off the right side of a staircase while deplaning because the

18

staircase did not have a railing. Elassaad v. Independence Air, Inc., 613 F.3d 119,
122 (3d Cir. 2010). The plaintiff chose not to request help deplaning because he
believed that the only help the defendant, Independence Air, Inc., could offer
would be to physically carry him down the stairs, which he perceived to be
demeaning. Id. The plaintiff asserted negligence claims under Pennsylvania law
for failing to offer or render personal assistance to him when he deplaned. Id. at
122-23. The defendant moved for summary judgment, asserting preemption by the
ACAA. The defendant did not argue that the plaintiff’s claims were precluded, but
that the ACAA preempted Pennsylvania’s negligence standard of care and that the
standard of care that applied only required airlines to provide assistance when
requested to do so by disabled passengers. Id. at 123. The Third Circuit disagreed:
[T]he ACAA is clearly directed at nondiscrimination, and we are not
persuaded that Congress intended the ACAA to preempt any state
regulation of the interaction between an air carrier and disabled
passengers (or disabled persons in general). At most, the ACAA
might preempt state nondiscrimination laws as they apply to
discrimination by air carriers against disabled passengers . . . . State
nondiscrimination laws, however, are not at issue in this case. We can
find no evidence of a “clear and manifest” congressional intent to
supersede any relevant state tort law or to “leav[e] no room for state
regulation” in this area, and we thus cannot conclude that field
preemption applies here.
Id. at 132. (internal citations omitted). The Third Circuit concluded that the
plaintiff’s case was governed by state-law negligence principles. Id. at 134.

19

The Ninth Circuit considered several claims that a plaintiff asserted under
California tort law, including negligence and breach of duty of a common carrier
and a claim under the ADA against United Air Lines’s (“United”) due to United’s
failure to provide plaintiff with wheelchair assistance she requested and required.
Gilstrap v. United Air Lines, Inc., 709 F.3d 995, 998 (9th Cir. 2013). The plaintiff
alleges she suffered from back and leg problems, and that United, on two flights,
failed to provide her with assistance she required. Id. The plaintiff did not allege a
claim under the ACAA, but in support of her state-law negligence claim, alleged
that under the “California evidentiary rule of ‘negligence per se,’ a violation of ‘a
statute, ordinance, or regulation’ can support a rebuttable presumption of failure to
exercise due care.” Id. (citing Cal. Evid. Code § 669(a)(1)).
The Gilstrap court considered whether the ACAA had field-preemptive
effect upon state personal-injury causes of action, and concluded that the ACAA
did not preempt plaintiff’s state-law claims.4 Id. at 1007, 1009-10.
The Gilstrap court reviewed the FAA regulations prohibiting discrimination
against disabled persons, noting these:
impose four general duties on air carriers: “not [to] discriminate
against any qualified individual with a disability, by reason of such
disability, in the provision of air transportation”; “not [to] require a
4

The Gilstrap court dismissed plaintiff’s ADA claim on the grounds that a
terminal did not constitute a place of public accommodation under the ADA.
20

qualified individual with a disability to accept special services . . . that
the individual does not request”; “not [to] exclude a qualified
individual with a disability from or deny the person the benefit of any
air transportation or related services that are available to other
persons,” . . . and “not [to] take any adverse action against an
individual . . . because the individual asserts, on his or her own behalf
or through or on behalf of others, rights protected” by the regulations
or the ACAA.
Id. at 1000-01 (quoting 14 C.F.R. § 382.11(a). The Gilstrap court noted also the
regulations which require air carriers to “provide or ensure the provision of
assistance requested by . . . a passenger with a disability . . . in transportation
between gates . . . and in moving [within the terminal].” Id. at 1001 (citing
14 C.F.R. § 382.91(a), (b)) (internal quotations omitted). The transportation
assistance required includes that air carriers must “promptly provide or ensure the
provision of assistance requested by or on behalf of passengers with a
disability . . . in enplaning and deplaning, including, as needed, the services of
personnel and the use of ground wheelchairs, . . . boarding wheelchairs, . . . and
ramps or mechanical lifts.” Id. (citing 14 C.F.R. § 382.95(a)) (internal quotations
omitted). It was against this regulatory backdrop that the Gilstrap court considered
if the ACAA preempted plaintiff’s state-law claim for injury she suffered when the
wheelchair she requested was not provided.
Because the ACAA does not contain an express preemption provision, the
Gilstrap court evaluated whether the ACAA implies a congressional intent to
21

preempted personal injury lawsuits under either field or conflict preemption.
Relying on the Third Circuit’s holding in Abdullah v. American Airlines, Inc., 181
F.3d 363 (3d Cir. 1999), the Gilstrap court found that “federal law generally
establishes the applicable standards of care in the field of aviation safety.” Id. at
1005 (citing Montalvo v. Spirit Airlines, 508 F.3d 464, 418 (9th Cir. 2009)).
The Gilstrap court noted that “ACAA—which is codified under the
‘economic regulations,’ not the ‘safety’ subpart of the FAA . . . is an
antidiscrimination imperative, not a safety regulation.” Id.5 The Gilstrap court
also considered whether the Third Circuit’s FAA preemption opinion in Abdullah
regarding the application of FAA preemption was applicable. In Abdullah, the
Third Circuit held that “‘federal law establishes the applicable standards of care in
the field of aviation safety,’ but does not preempt state law remedies.” Id. at 1005
(citing Montalvo, 181 F.3d at 367). The Ninth Circuit stated that the question for it
is whether Abdullah’s standard of care preemption analysis under the FAA safety
provisions applied to the ACAA “economic regulation” provisions. In holding that
it does, the Gilstrap court found, relying on a variety of cases where federal
legislation was found not to preclude state remedies, that:
5

In making this distinction, the Ninth Circuit distinguished the holding in
Elassaad, which found the ACAA did not preempt state law personal injury claims
because the ACAA did not apply to aviation safety but only discrimination.
22

states may provide a traditional damages remedy for violations of
common-law duties when those duties parallel federal
requirements . . . absent any express or implied congressional
indication otherwise in the statutory scheme at issue.
Id. at 1006 (internal citations and quotations omitted). The Gilstrap court
stated further:
Here, not only is there no adverse indication, but the FAA sections
expressly preserving state remedies and requiring insurance coverage
support the conclusion that state law damages actions remain
available even when state substantive standards are displaced.
Id. The Gilstrap court announced a two-part framework in the Ninth Circuit for
evaluating field preemption under the FAA:
First, we ask whether the particular area of aviation commerce and
safety implicated by the lawsuit is governed by “pervasive [federal]
regulations” . . . . If so, then any applicable state standards of care are
preempted. Even in those areas, however, the scope of field
preemption extends only to the standard of care.
Id. The Gilstrap court applied this analytical framework to plaintiff’s failure to
provide transportation assistance claim and her carrier-employee hostility claim.
The Gilstrap court found the “failure to provide transportation” claim was one in
which the FAA had regulated and the standard of care for this claim was
preempted.6 Because the FAA did not regulate how carrier employees should
6

The United States District Court for the Southern District of Florida, like the
court in Gilstrap and in contravention of the conclusion of the Elassaad court,
concluded that the ACAA, while not preempting state-law negligence claims,
23

respond to requests for assistance, it found that preemption did not apply to
plaintiff’s negligent and intentional infliction of emotional distress claims.7 The
Ninth Circuit summarized its holding:
[F]irst, that the ACAA and its implementing regulations preempt state
and territorial standards of care with respect to the circumstances
under which airlines must provide assistance to passengers with
disabilities in moving through the airport. The ACAA does not,
however, preempt any state remedies that may be available when
airlines violate those standards . . . . Second, we hold that the ACAA
and its implementing regulations do not preempt state-law
personal-injury claims involving how airline agents interact with
passengers with disabilities who request assistance in moving through
the airport.
preempted the state’s standards of care. Adler v. WestJet Airlines, Ltd.
No. 13-62824, 2014 WL 3114070, at *3 (S.D. Fla. July 8, 2014). In Alder,
plaintiffs asserted a claim for negligence based upon WestJet Airlines (“WestJet”)
removing the Adlers from a flight due to Ms. Adler’s use of a service animal. Id.
at *1-2. WestJet filed a motion to dismiss, arguing that plaintiff’s negligence claim
was preempted by the ACAA and should be dismissed. Id. at *3. The court in
Adler found that, while the ACAA abrogates conflicting state-law standards of
care, it “does not categorically result in express, conflict, or field preemption with
regard to state common-law remedies for injuries, distinct from discrimination,
which a plaintiff suffered as a result of an air carrier’s failure to provide
appropriate accommodations.” Id. “[B]ecause the Adlers’ state-law negligence
claim is not a claim for disability discrimination, and instead rests upon personal
injuries allegedly suffered as a result of WestJet’s failures of care, WestJet has not
demonstrated that the claim is preempted by the ACAA.” Id. (citing Gilstrap, 709
F.3d at 1010-11). Like the other decisions cited above, the court in Adler did not
address whether this preemption of the standard of care provided the federal courts
with jurisdiction, because the court in Adler had diversity jurisdiction over that
case.
7
The Gilstrap court also considered if conflict preemption precluded
plaintiff’s state law claims. In a robust analysis of this preemption doctrine, the
Gilstrap court concluded that it did not apply. Gilstrap,709 F.3d at 1008-10.
24

Id. at 1010.8
3.

Complete Preemption Analysis

The Court finds the reasoning and analysis in Gilstrap persuasive, and, after
considering the factors set forth by the Eleventh Circuit in Smith v. GTE Corp,
believes that the Eleventh Circuit would conclude that the ACAA and the ACAA
Regulations do not preclude nor preempt state-law negligence claims in their
entirety, though the ACAA and the ACAA Regulations do preempt state-law
standards of care.
The Eleventh Circuit, in Smith v. GTE Corp, outlined several factors a court
must consider in determining whether federal law has completely preempted state
law in an area, the most important if which is whether the federal statute provides a
cause of action.9 Cf. Smith v. GTE Corp., 236 F.3d 1292, 1312 (11th Cir. 2001)

8

Several of the district court cases from the Ninth Circuit cited by Defendant
in its Motion to Dismiss for the proposition that the ACAA completely preempts,
and bars, claims brought for failure to assist, did not perform the detailed analysis
contained in the subsequently issued Gilstrap opinion. See, e.g., Johnson v. Nw.
Airlines, Inc., No. 08-02272, 2010 WL 5564629, at *6 (N.D. Cal. May 5, 2010);
Russell v. Skywest Airlines, No. 10-0450, 2010 WL 2867123, at *5 (N.D. Cal.
July 20, 2010). The conclusory reasoning of these cases is not persuasive.
9
Two additional factors outlined in GTE Corp include: (1) what kind of
jurisdictional language exists in the federal statute, and (2) and what kind of
language is present in the legislative history to evince Congress’s intentions. GTE
Corp., 236 F.3d at 1312 (citing BLAB, 182 F.3d at 857). The ACAA and the
ACAA Regulations do not contain any jurisdictional language to suggest that they
25

(citing BLAB T.V. of Mobile, Inc. v. Comcast Cable Communications, Inc., 182
F.3d 851, 857 (11th Cir. 1999)); Dunlap, 381 F.3d at 1291.
The Eleventh Circuit has previously held that the ACAA does not provide
for a private cause of action. See Love at 1359-1360. Our Circuit has found that,
the Supreme Court has recognized complete preemption in only three statutes,10
and that complete preemption applied to those statutes, “because all three
‘provide[] the exclusive cause of action for the claim asserted and also set forth
procedures and remedies governing that cause of action.’” Dunlap, 381 F.3d at
1291 (quoting Beneficial, 539 U.S. at 8). Thus, the ACAA’s lack of a private
cause of action is a compelling reason to conclude that Congress did not mean to
preempt preexisting state-law negligence causes of action.
The Court notes further, as discussed in Gilstrap, that the FAA specifically
recognizes that other remedies may be available under provisions of the
FAA--which would include the ACAA--because the FAA remedies are “in
addition to any other remedies provided by law.” 49 U.S.C. § 40120(c); Gilstrap,
completely preempt state-law negligence claims asserted by disabled passengers.
The legislative history is also absent of any suggestion that Congress intended to
completely preempt state-law tort claims through the enactment of the ACAA. A
fair reading of the ACAA and the ACAA Regulations establish that they do not
have “extraordinary preemptive force,” and were not meant to preempt state-law
negligence claims.
10
The Court discusses the three statues the Supreme Court has found complete
preemption to apply on page 10 of this Order.
26

709 F.3d at 1004. The FAA further requires that Department of Transportation
certified air carriers maintain liability insurance “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 under the certificate.” 49 U.S.C § 41112.
The Gilstrap court found that the FAA’s insurance requirement is important to the
determination of the preemptive effect of the statute, as the statute does not create a
federal cause of action for personal injury actions, and, therefore, the insurance
requirement must contemplate state-law tort actions. Gilstrap, 709 F.3d at 1004.
The Court agrees.
While the Court concludes that the ACAA and the ACAA Regulations do
not preclude nor preempt state-law negligence claims, the Court also agrees with
the Gilstrap court’s conclusion that the ACAA does preempt state-law standards of
care. The ACAA and the ACAA Regulations address an air carrier’s economic
obligations when engaging in commerce with disabled passengers, and the ACAA
Regulations are “pervasive regulations” that detail how an air carrier is to treat a
disabled passenger. With regard to boarding, deplaning, and connecting
assistance, Subpart G of the ACAA Regulations provides eight separate sections
detailing the assistance air carriers are required to offer to disabled passengers.
Relevant in this case is § 382.95, which provides that an air carrier:

27

must promptly provide or ensure the provision of assistance requested
by or on behalf of passengers with a disability, or offered by carrier or
airport operator personnel and accepted by passengers with a
disability, in enplaning and deplaning.
14 C.F.R. § 382.95. Plaintiff alleges, in her Complaint, that Defendant was
negligent in failing to:
(a) keep its premises and approaches safe for invitees, in violation of
Massachusetts law; (b) ensure that the premises and boarding
procedures were in a safe and proper condition for blind passengers;
(c) properly and adequately assist Plaintiff in boarding Defendant’s
aircraft, after Defendant knew, or should have known, of her
condition; (d) follow its own policies and procedures in assisting
disabled, or blind invitees into Defendant’s aircraft; (e) properly
assist Plaintiff when defendant knew this created a hazardous
condition, in violation of Massachusetts law; and (f) exercise
extraordinary care required to protect Plaintiff, a known blind
passenger, while she was attempting to negotiate the boarding ramp
and board Defendant’s aircraft, in violation of Massachusetts law.
(Complaint ¶ 11).11 Four of Plaintiff’s allegations of negligence are inexplicably
tied to Defendant’s alleged failure to assist Plaintiff in boarding the aircraft, a duty
of care that is regulated by the ACAA Regulations. The Court concludes that the
11

Plaintiff’s Amended Complaint adds an additional claim of negligence,
alleging that Defendant was negligent in: “(g) Failing to exercise the duties of care
required for disabled passengers as established under the [ACAA and ACAA
Regulations], which . . . establish a duty of care on the airlines to provide
assistance to disabled passengers, such as Plaintiff, for their safe traversing of air
terminals, and in boarding or disembarking from aircraft, such failure to meet the
duties under the ACAA and the [ACAA Regulations] constituting a breach of duty
and/or negligence per se under applicable Massachusetts law.” (Amended
Complaint ¶ 12(g)).
28

ACAA and the ACAA Regulations establish the standard of care Defendant owed
to Plaintiff when she was boarding Defendant’s aircraft, and thus preempt any
different standard of care that may exist under Massachusetts tort law. See
Gilstrap, 709 F.3d at 1007. Massachusetts law, however, still governs the other
elements of negligence, as well as the choice and availabilities of remedies. See id.
at 1006; Elassaad, 613 F.3d at 125.
Having concluded that the ACAA and the ACAA Regulations do not
completely preempt Plaintiff’s state-law negligence claim, but do preempt
Massachusetts’ standard of care with regard to Plaintiff’s failure to assist in
boarding claims, the Court must determine whether the preemption of the state
standard of care provides the Court with federal question jurisdiction. The Court
concludes that it does not.
The Supreme Court has noted that the” violation of federal statutes and
regulations is commonly given negligence per se effect in state tort proceedings.”
Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 318
(2005). The Grable court, citing Merrell Dow Pharm. Inc. v. Thompson, 478 U.S.
804 (1986), noted that a general rule of exercising federal jurisdiction over state
claims resting on violations of federal statutes would have “heralded a potentially
enormous shift of traditionally state cases into federal courts.” Grable, 545 U.S. at

29

319; see also Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1296 (11th
Cir. 2008) (discussing Grable). The Supreme Court “thought it improbable
that [] Congress, having made no provision for a federal cause of action, would
have meant to welcome any state-law tort case implicating federal law “solely
because the violation of the federal statute is said to [create] a rebuttable
presumption [of negligence] . . . under state law.” Grable, 545 U.S. at 319
(quoting Merrell Dow, 478 U.S., at 811–812)
The Eleventh Circuit and this Court have likewise found that federal
jurisdiction does not exist merely because state law provides that the violation of a
federal statute establishes negligence. See Jairath v. Dyer, 154 F.3d 1280, 1284
(11th Cir. 1998) (violation of ADA as an element of a state cause of action does
not confer federal-question jurisdiction); Stephens Cnty. v. Wilbros, LLC,
No. 2:12-CV-0201, 2012 WL 4888425, at *2 (N.D. Ga. Oct. 6, 2012) (allegations
that violations of the Clean Water Act established negligence per se under state law
do not establish federal question jurisdiction over negligence claims).
While the Grable, Jairath, and the Stephens courts considered the
application of a federal standard of care to state-law tort claims under the
substantial federal question prong of federal question jurisdiction, their analysis
and concerns apply here. If the Court construed the preemption of a state-law

30

standard of care as sufficient to establish federal question jurisdiction over a
state-law negligence claim, it would “herald[] a potentially enormous shift of
traditionally state cases into federal courts.” Cf. Grable, 545 U.S. at 319. Where
Congress has enacted a statute without a private federal cause of action, it is
“improbable that [] Congress . . . would have meant to welcome any state-law tort
case implicating federal law” solely because the violation of the federal statute or
its regulations establish the standard of care in a state-law negligence action. Cf.
Grable, 545 U.S. at 319.
The Court concludes that the ACAA does not completely preempt state-law
negligence claims brought by disabled individuals, and that the ACAA’s
preemption of the state-law standard of care does not provide the Court with
jurisdiction over Plaintiff’s claims.
4.

Substantial Federal Question

In addition to preemption, federal jurisdiction exists also where a state-law
claim raises “substantial questions of federal law . . . .” Dunlap, 381 F.3d at 1290
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 13
(1983)). Defendant does not assert in its Notice or in its Response to the Motion to
Remand that Plaintiff’s state-law negligence claims raise a substantial question of

31

federal law. The Court notes that the ACAA preemption of Massachusetts’
standard of care does not automatically raise a substantial question of federal law.
The Eleventh Circuit, in a case involving the ADA, concluded that the
district court erred when it denied plaintiff’s motion to remand the case to state
court. Jairath v. Dyer, 154 F.3d 1280, 1284 (11th Cir. 1998). The plaintiff filed a
suit for damages pursuant to O.C.G.A. § 51-1-6, which provides:
When the law requires a person to perform an act for the benefit of
another or to refrain from doing an act which may injure another,
although no cause of action is given in express terms, the injured party
may recover for the breach of such legal duty if he suffers damage
thereby.
Id. at 1281. The ADA created the legal duty that provided the basis for
plaintiff’s claim. Id.
The defendant removed the action to the United States District Court
for the Northern District of Georgia, and the plaintiff filed a motion to
remand. Id. The district court concluded that the plaintiff’s cause of action
involved a substantial federal question in the nature of the legal duty
imposed by the ADA, and denied the plaintiff’s motion to remand, and
subsequently granted the defendant’s motion for summary judgment. Id.
The Eleventh Circuit reversed, concluding that the “congressional intent not
to provide a private damages remedy for this kind of ADA violation is, in the

32

instant case is . . . ‘tantamount to a congressional conclusion that the presence of a
claimed violation of the statute as an element of a state cause of action is
insufficiently ‘substantial’ to confer federal-question jurisdiction.’” Id. at 1284
(citing Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 814 (1986)). The
same is true here, where the ACAA does not provide for a private cause of action,
see Love, 310 F.3d at 1359-60, and the ACAA preempts Massachusetts’ standard
of care.12 See Jairath , 154 F.3d at 1284; see also Merrell Dow, 478 U.S. at 812
(“The significance of the necessary assumption that there is no federal private
cause of action thus cannot be overstated.”).13 The Court concludes that the
application of the ACAA’s standard of care does not raise a substantial federal
question. See, e.g. Jairath, at 1284; see also Bennett v. Sw. Airlines Co., 484 F.3d
907, 912 (7th Cir. 2007) (“That some standards of care used in tort litigation come
from federal law does not make the tort claim one ‘arising under’ federal law.”).
12

The Court notes that even if the Eleventh Circuit disagreed with the Court’s
conclusion that the ACAA preempts state-law standards of care and instead
adopted the reasoning in Elassaad, which concluded that state-law standard of care
are not preempted, this would not impact the Court’s conclusion here that it lacks
subject matter jurisdiction.
13
The Court, having concluded that it does not have federal-question
jurisdiction over Plaintiff’s failure to assist claims, concludes that it does not have
supplemental jurisdiction over Plaintiff’s claims that are not based upon failure to
assist. See 28 U.S.C. § 1367(a). The Court notes also that it does not have
diversity jurisdiction over this action because both Plaintiff and Defendant are
citizens of Georgia. See Complaint ¶¶ 1-2; 28 U.S.C. § 1332(a).
33

Because complete preemption does not apply in this case and Plaintiff’s
claims do not raise “substantial questions of federal law” the Court lacks
jurisdiction over Plaintiff’s claims, and Plaintiff’s Complaint is required to be
remanded.14

14

The Court remands Plaintiff’s pending Motion to Amend, which seeks, in
part, to incorporate the ACAA’s standard of care into her negligence claims, and
Defendant’s pending Motion to Dismiss Plaintiff’s claims as barred by the ACAA,
and its Motion for Oral Argument on its Motion to Dismiss. See, e.g., Univ. of S.
Alabama v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (“Simply put,
once a federal court determines that it is without subject matter jurisdiction, the
court is powerless to continue.”).
34

III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand [5] is

GRANTED IN PART and DENIED IN PART. It is GRANTED with respect to
Plaintiff’s request that this action be remanded. It is DENIED with respect to
Plaintiff’s request for attorneys’ fees.15 The Clerk is DIRECTED to REMAND
this action to the Superior Court of Fulton County, Georgia.

SO ORDERED this 23rd day of February, 2015.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

15

In her Motion to Remand, Plaintiff requests that the Court award attorneys’
fees, asserting that Defendant is attempting to “manufacture” federal question
jurisdiction when none exist. (Motion to Remand at 8-9). In remanding a case, the
Court “may require payment of just costs and any actual expenses, including
attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). District
courts may, in their discretion, award expenses under § 1447(c) “where the
removing party lacked an objectively reasonable basis for seeking removal.”
Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). While the Court has
concluded that the ACAA does not preempt Plaintiff’s state-law negligence claims
for failure to assist, and that no federal question jurisdiction exists, the Court notes
that this is an issue of first impression in this Court and in the Eleventh Circuit.
The Court concludes that Defendant did not lack a reasonable basis for seeking
removal, and declines to award Plaintiff her attorneys’ fees.
35