Shahzad v. Federal Express Corporation et al

Filing 16

ORDER OF REMAND Granting 9 MOTION to Remand. Therefore, the case is REMANDED to the 113th Judicial District Court of Harris County, Texas. See 28 U.S.C. § 1441(a)...***Case terminated on 4/19/18. (Signed by Judge Kenneth M Hoyt) Parties notified.(sanderson, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
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§
Plaintiff,
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VS.
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FEDERAL EXPRESS CORPORATION, et §
al,
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Defendants.

April 20, 2018
David J. Bradley, Clerk

MUHAMMAD SHAHZAD,

CIVIL ACTION NO. 4:18-CV-604

ORDER FOR REMAND
I.
Before the Court is the plaintiff’s, Muhammad Shahzad, motion for remand and
memorandum seeking remand of this case to the state court from which it was removed
[DE#s 9 and 10]. The defendant, Federal Express Corporation, filed a response [DE 14] and
the matter is before the Court. The Court has reviewed the motion, response and reply and
determines that the motion is meritorious and should be granted.
II.
The plaintiff delivered 19 iPhones to ANH Telecom’s postal facility for delivery to
Dubai, UAE. When the package arrived in Dubai, the iPhones had been replaced with
sunglasses. In support of his motion, the plaintiff asserts, without opposition, that the
iPhones “were activated shortly after they were delivered to ANH Telecom in Houston,
Texas.” In order for this event to happen, the phone would need to be removed from the
packaging. Therefore, the plaintiff’s assertion that the iPhones were not delivered to Dubai,
and more importantly, were never airborne rings true. The plaintiff now sues for actual
damages in the neighborhood of $23,000.
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III.
The defendant’s sole basis for removal is the Montreal Convention. See [Convention
for the Unification of Certain Rules for International Carriage by Air, Article 1, May 28,
1999, S. Treaty Doc. No. 106-45, 2242 U.N.T.S. 309, 1999 WL 332927 34]. The Convention
governs liability for international carriage of persons, baggage of cargo performed by aircraft
for reward. Id. In the instance where air transportation is the carriage, the Convention
preempts state law causes of action. See Han v. Fed. Ex. Express [2015 WL 5163424, Sept.
2, 2015](citations omitted). The inquiry does not end with the presumptions that apply when
goods are delivered to a facility for air transport. Losses that occur prior to cargo becoming
airborne or afterward delivery do not fall within the scope of the Convention. And, where
there is evidence that disputes the Convention loss presumption, the presumption that the loss
occurred while the cargo was airborne is rebutted and the burden shifts to the carrier to prove
affirmatively, that the cargo was, in fact, airborne. Id.
In the case at bar, the pleadings before the Court rebut the presumption that the cargo
was ever airborne. The plaintiff’s affidavit stating that the iPhones were activated in the
United States after being delivered to ANH Telecom, Inc., for shipment to Dubai, UAE
rebuts the presumption that the iPhones were airborne or otherwise, lost during carriage by
air. In fact the absence of pleadings resolves the matter in favor of the plaintiff’s choice of
forum and that choice should be respected. See [Han v. Fed. Express Corp., at p. 1](citations
omitted). The Court finds that federal removal jurisdiction is lacking because the defendant
has not shown affirmatively otherwise.

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Therefore, the case is REMANDED to the 113th Judicial District Court of Harris
County, Texas. See 28 U.S.C. § 1441(a).
It is so Ordered.
SIGNED on this 19th day of April, 2018.
___________________________________
Kenneth M. Hoyt
United States District Judge

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