Edick v. Allegiant Air, LLC et al

Filing 17

ORDER Denying 9 Plaintiffs' Motion to Remand to State Court. Signed by Judge James C. Mahan on 4/12/11. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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SANDRA EDICK, individually and as
Special Administrator for the Estate of
PHILLIP EDICK, deceased,

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2:11-CV-259 JCM (GWF)

Plaintiff,

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v.

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ALLEGIANT AIR, LLC, et al.,
Defendants.

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ORDER

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Presently before the court is plaintiffs Sandra Edick and Phillip Edick’s motion for remand.

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(Doc. #9). Defendant Allegiant Air, LLC, filed an opposition (doc. #13) and the declaration of Gary

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Arthur Clarke in support of its opposition (doc. #14). To date, plaintiffs have not filed a reply.

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Plaintiffs filed their complaint (attached to the notice of removal doc. #1) in the Eighth

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Judicial District Court of Clark County, Nevada, on or about October 22, 2010, alleging that

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defendants Allegiant Air and Clark County Department of Aviation’s (hereinafter “Department of

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Aviation”) negligence caused injuries to Mr. Edick. Defendant Allegiant Air filed its notice of

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removal pursuant to 28 U.S.C. § 1331, 1441 and 1446 (doc. #1) on February 15, 2011. Defendant

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Department of Aviation did not file a joinder, but its counsel confirmed that it did not oppose the

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removal, as is noted in the notice of removal (doc. #1).

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Motion to Remand

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James C. Mahan
U.S. District Judge

In the present motion to remand (doc. #9), plaintiffs assert that the action should be remanded

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because “the parties are not diverse and the case is not an issue of Federal law.” In the notice of

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removal (doc. #1), Allegiant Air asserted that “plaintiffs’ claims are exclusively governed by the

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Federal Civil Aviation Security Regulations, in particular, Title 49 C.F.R. sections 1520, 1544 et

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seq.” (Doc. #1). Further, Allegiant Air asserted that the allegations that it acted negligently when it

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refused to allow plaintiff Mrs. Edick to check her husband’s bags “necessarily invoke the exclusive

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regulation of aviation security governed by the Transportation Security Administration, and it is

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therefore subject to Federal preemption.” Id.

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Plaintiffs assert that such allegations were “made nowhere in [p]laintiffs’ [c]omplaint,” and

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that the complaint contained no allegations “that the Edick’s [sic] wanted, or didn’t want, to leave

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their luggage unattended.” (Doc. #9). Further, plaintiffs assert that they are “not alleging that the

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regulations requiring the passenger to be present when checking in the bags are in any way

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unreasonable or the cause of [p]laintiff’s injuries.” (Doc. #9). Plaintiffs assert that the claims of

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negligence fall under state law, and that under the present allegations, no federal question is

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involved.

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Contrary to plaintiffs’ assertions, the complaint (attached to the notice of removal doc. #1)

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contains several allegations relating to the Edicks checking their luggage. Specifically, at page two

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of the complaint, plaintiffs assert that Mrs. Edick left her husband “to take the bags over to the

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airline counter and check them in so that she could return to assist her husband to the airline

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counter.” Id. Further, plaintiffs also assert that Mrs. Edick “informed the check-in personnel that she

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was checking in the bags for the flight and was informed by the agents of [d]efendant...that [Mr.

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Edick] had to be there in order to check in the luggage.” Id. Additionally, plaintiffs assert in the

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complaint that Mrs. Edick “reminded agents...that [Mr. Edick] was traveling under a handicapped

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ticket and that he had already fallen in the parking garage and that was why the bags needed to be

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checked in because [he] needed assistance to get from the parking garage to the airline check-in.”

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Id. Lastly, the complaint alleges that plaintiff Mrs. Edick was “ordered to take the luggage back with

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her, go get her husband, and bring him inside the [t]erminal.” Id.

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Plaintiffs assert that the defendant knew that Mr. Edick was handicapped and needed a

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James C. Mahan
U.S. District Judge

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wheelchair, but that they did “not offer to make reasonable accommodation to provide a wheelchair”

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where he was waiting, and that it wasn’t until Mrs. Edick brought him through the terminal and he

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fell, that they attended to him. Further, plaintiffs assert that Mr. Edick “fell, face first, just inside the

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airline door,” “was knocked [] unconscious,” and “knocked his front tooth completely out,” “cut

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open his cheek, and had blood coming out of his mouth.” Id.

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These allegations are in fact contained in the complaint, and the actions or inactions of the

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employees do, as defendant asserts, constitute “service[s] of [an] air carrier that may provide air

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transportation under [The Airline Deregulation Act of 1978, 49 U.S.C. Section 41713] pursuant to

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the tickets they purchased.” (Doc. #13).

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A.

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With regards to aviation safety in this country, the court in Montalvo v. Spirit Airlines, 508

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F.3d 464 (9th Cir. 2007) held that “Congress intended that there be a single, uniform system for

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regulating aviation safety, and that the organization to oversee that system was the [Federal

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Administration Agency] (hereinafter “FAA”).” Further, the court held that the administrator of the

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FAA “has chosen to exercise this authority by issuing such pervasive regulations that we can infer

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a preemptive intent to displace all state law on the subject of air safety.” Id. These regulations

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include a general federal standard of care for airport operators, and specifically, regulations

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governing “the warnings and instructions which must be given to airline passengers. See C.F.R. pt.

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25 (2005); 14 C.F.R. pt. 121 (2005).”Id. at 472.

Federal Administration Agency

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B.

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The Transportation Security Administration (hereinafter “TSA”) developed regulations for

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airports and air carriers regarding security requirements in the form of 49 CFR “Transportation,”

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Subtitle B “Other Regulations Relating To Transportation,” Chapter XII “Transportation Security

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Administration, Department of Homeland Security,” Subchapter C- “Civil Aviation Security.”

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Subchapter C, Section 1540 (doc. #13 Exhibit B) establishes that the regulations “apply to persons

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engaged in aviation-related activities,” and defines the term “checked baggage” to mean “property

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tendered by or on behalf of a passenger and accepted by an aircraft operator for transport.”

The Transportation Security Administration

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James C. Mahan
U.S. District Judge

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Further, and most pertinent to the present motion, Subchapter C, Part 1544.203 titled

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“Acceptance and Screening of Checked Baggage” sets forth what procedures an aircraft operator

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must use “to prevent or deter carriage of any unauthorized explosive or incendiary onboard aircraft

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in checked baggage,” and that it must “ensure that all checked baggage is inspected,” must “control

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checked baggage,” and “must refuse to transport any individual’s checked baggage or property if the

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individual does not consent to a search or inspection of that checked baggage.” (Doc. #13 Exhibit

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C).

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C.

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Defendant provided the court with the declaration of the director of security for Allegiant Air,

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Gary Arthur Clarke (doc. #14). In the declaration, Clarke asserts that the actions of Allegiant Air

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employees are governed by the regulations previously mentioned, and that they essentially “tie the

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hands of [Allegiant] and its employees as to what they can or cannot do in any situation, including

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those related to customer/baggage check-in.” (Emphasis added). Further, Clarke demonstrates how

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each employee involved in “security related duties (including those at the check-in counter) [is]

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required to undergo training pursuant to 49 CFR, Part 1544, Subpart C, Section 1544.235,” and that

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procedures for checking baggage and policies relating to unattended baggage are topics covered in

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this training.

Declaration of Gary Arthur Clarke

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D. Conclusion

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Under 28 U.S.C. § 1441(b), this court has original jurisdiction over claims that turn on a

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substantial question of federal law. Ultramor America, Ltd. v. Dwell, 900 F.2d 1412, 1414 (9th Cir.

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1990). Federal jurisdiction exists where a plaintiff’s claims, on their face, appear to rely on state law,

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but the rights he possesses are actually based on federal law. Fristoe v. Reynolds Metals Co., 615

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F.2d 1209, 1211-12 (9th Cir. 1980).

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As discussed above, plaintiffs’ complaint (attached to the notice of removal doc. #1) contains

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several allegations relating to checking baggage and the procedures/policies that the Allegiant Air

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employee adhered to. The actions of the employee as asserted in the complaint squarely fall within

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the safety regulations developed by TSA, and under the “preemptive intent” articulated in Montalvo,

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James C. Mahan
U.S. District Judge

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any claim arising out of these actions is exclusively governed by those federal regulations. 49 CFR,

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Subtitle B, Chapter XII, Subchapter C, Part 1544.203; Montalvo, 508 F.3d 464 (holding that federal

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regulations “displace all state law on the subject of air safety.”). Therefore, the case is properly

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before this court, and remand is not warranted. 28 U.S.C. § 1441(b); Ultramor America, Ltd., 900

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F.2d 1412, 1414.

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Accordingly,

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IT IS HEREBY ORDERED ADJUDGED AND DECREED that plaintiffs Sandra Edick and

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Phillip Edick’s motion for remand (doc. #9) be, and the same hereby is, DENIED.
DATED April 12, 2011.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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