Orogbu v. Lufthansa German Airlines

Filing 1

NOTICE of Removal from Circuit Court of Cook County, IL Municipal, case number (20111128383) filed by Lufthansa German Airlines Filing fee $ 350, receipt number 0752-6037414. (Attachments: # 1 Exhibit A)(McBreen, Hugh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PRINCE OROGBU,
Plaintiff,
v.
LUFTHANSA GERMAN AIRLINES
Defendant.

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No. 11-cv-3523

DEFENDANT LUFTHANSA GERMAN
AIRLINES’ NOTICE OF REMOVAL
Defendant, LUFTHANSA GERMAN AIRLINES (“Lufthansa”), by its attorneys,
McBREEN & KOPKO LLP, and pursuant to 28 U.S.C. §§ 1441(a), (b), (c) and 1446, hereby
removes this action from the Circuit Court of Cook County, Illinois to the United States District
Court for the Northern District of Illinois, Eastern Division. This action may be removed because
this Court has original jurisdiction over the complaint pursuant to 28 U.S.C. §§ 1331 and
1367(a). In support of removal, Lufthansa states as follows:
PROCEDURAL REQUIREMENTS
1.

On April 22, 2011, plaintiff Prince Orogbu filed a complaint against defendant

Lufthansa in the Circuit Court of Cook County, Illinois (the “complaint”).
2.

Plaintiff alleges that on April 22, 2010 he boarded Lufthansa flight 436 in

Germany departing to Chicago, Illinois, with luggage containing clothing and other items
plaintiff intended to market.
3.

Plaintiff further alleges that during the international flight defendant lost his

luggage and all of the possessions listed in an exhibit attached to the complaint.

4.

Copies of the summons and complaint were delivered to Lufthansa on or about

May 5, 2011. See Exhibit A. No further proceedings have been had in the action.
5.

Lufthansa’s notice of removal is timely pursuant to 28 U.S.C. § 1446, because it

is filed within 30 days of the date on which Lufthansa was served and/or the date on which any
defendant was served with the summons and complaint.
6.

Written notice of the filing of this notice of removal and supporting papers have

been have been served on plaintiff and filed with the Clerk of the Circuit Court of Cook County,
Illinois, as required by 28 U.S.C. § 1446(d).
7.

Venue is proper in this District under 28 U.S.C. § 1391.
STATUTORY GROUNDS FOR REMOVAL

8.

The federal removal statute provides:
(a) Except as otherwise expressly provided by Act of Congress, any civil
action brought in 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 ...
(b) Any civil action of which the district courts have original jurisdiction
founded on the claim or right arising under the Constitution, treaties, or
laws of the United States shall be removable without regard to the
citizenship or residence of the parties ... 28 U.S.C. § l44l(a) & (b).

9.

Federal district courts have “original jurisdiction” for all civil actions “arising

under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Specifically,
this Court has jurisdiction over plaintiff’s claims inasmuch as plaintiff’s claims arise under a
treaty of the United States commonly known as the Montreal Convention.

The Montreal

Convention1, known officially as the “Convention for the Unification of Certain Rules for

1

The Montreal Convention is available in the UNITED STATES CODE SERVICE (U.S.C.S.) volume
titled International Agreements at 635 (2007). It is also available at S. Treaty Doc. No. 106-45, 1999 WL
33292734 at **29-45.

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International Carriage by Air, May 28, 1999,” was officially adopted by the United States on
November 4, 2003. See, e.g., Ehrlich v. American Airlines, Inc., 360 F.3d 366, 371-72 (2d Cir.
2004). The Montreal Convention provides the exclusive remedy for claims arising out of the
carriage of international passengers by air and has been construed as having a complete
preemptive effect over all claims within its scope. See Montreal Convention Art. 292, see El Al
Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 162, 174-75 (1999); Booker v. BWIA West Indies
Airways, 2007 WL 1351927 at 2 (E.D.N.Y. May 08, 2007), aff’d, 307 Fed. Appx. 491 (2d Cir.
Jan 13, 2009)(construing Montreal Convention).
10.

Thus, Lufthansa may remove this action pursuant to 28 U.S.C. § l441(b) because

plaintiff’s claims explicitly arise under the Montreal Convention.
11.

The state law breach of contract claim asserted in the complaint is integrally

related to plaintiff’s federal claims and thus form a part of the same case or controversy.
Accordingly, this Court has supplemental jurisdiction over these claims under 28 U.S.C. §
1367(a).
12.

Accordingly, original federal question jurisdiction is vested in this Court with

respect to plaintiff’s entire complaint by 29 U.S.C. § l132(e) and 28 U.S.C. § 1331.

2

Article 29 states, in pertinent part: “In the carriage of passengers, baggage and cargo, any action for
damages, however founded, whether under this Convention or in contact or in tort or otherwise, can only
be brought subject to the conditions and such limits of liability as are set out in this Convention ….”

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CONCLUSION
WHEREFORE, defendant Lufthansa respectfully requests that plaintiff’s claims be
removed to federal court pursuant to 28 U.S.C. §§ 1331 and 1367(a).

Dated: May 25, 2011

Respectfully submitted,

/s/__Hugh G. McBreen________________
Hugh G. McBreen
Annie K. Strobl
McBreen & Kopko LLP
20 North Wacker Drive, Suite 2520
Chicago, IL 60606
Telephone: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant Lufthansa

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CERTIFICATE OF SERVICE
Hugh G. McBreen, an attorney, hereby certifies that a true and correct copy of the
foregoing defendant’s Notice of Removal was filed with the Court’s CM/ECF electronic filing
system on May 25, 2011 and served via U.S. First Class Mail on:

Attorney for Plaintiff
Robert Habib, Esq.
77 West Washington Street
Suite 411
Chicago, Illinois 60602

/s/___Hugh G. McBreen_______________