Schwarz et al v. Midwest Airlines Inc et al

Filing 13

ORDER signed by Judge J P Stadtmueller on 8/26/09 that plaintiffs shall have 10 days from the date of this order within which to show cause as to why their Amended Complaint 6 should not be dismissed for lack of subject matter jurisdiction. (cc: all counsel)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ C Y N T H I A A. SCHW A R Z and HANK SCHW A R Z , P la in t iffs , H E A L T H CARE SERVICE CORPORATION IL L IN O IS STATE PAC, NFP In vo lu n ta ry Plaintiff, v. M ID W E S T AIRLINES, INC., IL L IN O IS NATIONAL INSURANCE COMPANY, U N K N O W N , sued as "ABC" a fictitious entity, and D E F INSURANCE COMPANY D e fe n d a n ts . ____________________________________________ Case No. 09-CV-668

ORDER
O n July 8, 2009, plaintiffs filed a complaint alleging plaintiff Cynthia Schwarz s u ffe re d personal injury on a Midwest Airlines' flight during its landing in Milwaukee. H a n k Schwarz, her husband, alleged various damages stemming from his wife's in ju rie s . Plaintiffs brought suit against: 1) Midwest Airlines, Inc., the operator of the p la n e on which the injury occurred; 2) Illinois National Insurance Company, p re s u m a b ly the insurer for Midwest (though that is not stated in the pleadings); 3) A B C , a fictitious name for an unknown entity believed to be responsible for the m a i n te n a n c e of the plane on which the injury occurred; and 4) DEF Insurance C o m p a n y, a fictitious name for an unknown insurer for ABC. Plaintiffs' original

c o m p la in t asserted that the court had jurisdiction pursuant to 28 U.S.C. § 1332, d ive rs ity jurisdiction. T h e court, in an order dated July 23, 2009, explained that it appeared diversity ju ris d ic tio n was lacking, due to the fact that complete diversity did not exist, given th a t defendant Illinois National Insurance Company appeared to be a citizen of Illin o is , as are plaintiffs. The court further noted that the inclusion of "ABC" and "D E F " as defendants was detrimental to the existence of diversity jurisdiction. See H o w e ll by Goerdt v. Tribune Entertainment Co., 106 F.3d 215, 218 (7th Cir. 1997) ("[B ]e c a u s e the existence of diversity jurisdiction cannot be determined without k n o w le d g e of every defendant's place of citizenship, `John Doe' defendants are not p e rm itte d in federal diversity suits."). The court, thus, granted plaintiffs twenty days to file an amended complaint properly alleging diversity jurisdiction. P la in tiffs filed an amended complaint on July 31, 2009; however they did not a lle g e diversity jurisdiction, rather they asserted federal question jurisdiction on the b a s is that plaintiffs' cause of action arises under the Federal Aviation Act. The F e d e ra l Aviation Act was originally passed in 1958; it created the Federal Aviation A g e n c y (later termed the "Federal Aviation Administration"), which it empowered to o ve rs e e and regulate safety in the commercial airline industry. The Federal Aviation A c t contains various provisions pertaining to air safety. Indeed, 49 U.S.C. §§ 447014 4 7 2 9 set forth numerous air safety regulations. However, it is apparent that the F e d e ra l Aviation Act does not include any provision creating a private right of action.

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S e e In re Mexico City Aircrash of October 31, 1979, 708 F.2d 400, 405 (9th Cir. 1 9 8 3 ) ("[T]he [Federal Aviation] Act does not expressly create a private right of a c tio n in favor of persons injured as a result of Federal Aviation Act violations.). P la i n tiffs do not cite to any specific provision of the Federal Aviation Act which c re a te s such a right, rather, their amended complaint merely references, as vaguely a s possible, the Federal Aviation Act. The court sought some guidance by

e xa m in in g plaintiffs' "Civil Cover Sheet"; however, in the box that states: "Cite the U .S . Civil Statute under which you are filing (Do not cite jurisdictional statutes u n le s s diversity)," plaintiffs entered: "28 Y.S.C. 1331." The court assumes that this is a typo, and plaintiffs meant to enter "28 U.S.C. § 1331." However, even assuming a s much, the entry does not follow, because § 1331 is the federal question ju ris d ictio n statute, and the directions clearly state not to cite a jurisdictional statute u n le s s alleging diversity jurisdiction. Thus, the court is at a loss as to the basis for p la in tiffs ' assertion of federal question jurisdiction. It would appear that the only possible basis would be if the court were to imply a federal cause of action from the Federal Aviation Act. However, plaintiffs have not a s k e d the court do to so. Further, federal case law clearly holds that such a private r ig h t cannot be implied from the Federal Aviation Act. See In re Mexico City A irc ra s h , 708 F.2d at 408 ("W e conclude that the Federal Aviation Act does not c o n ta in an implied private right of action."); see also Spinner v. Verbridge, 125 F. S u p p . 2d. 45, 50-53 (E.D. N.Y. 2000); O.S. ex rel. Sakar v. Hageland Aviation

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S e r v ic e s , Inc., 609 F. Supp.2d 889, 891 (D. Alaska 2008); Obenshain v. Halliday, 5 0 4 F. Supp. 946, 950-51 (E.D. Va.1980); Heckel v. Beech Aircraft Corp., 467 F. S u p p . 278, 280-81 (W.D. Pa.1979); Yelinek v. Worley, 284 F. Supp. 679, 681 (E.D. V a .19 6 8 ); Moungey v. Brandt, 250 F. Supp. 445, 453 (W .D . Wis.1966); Porter v. S o u th e a s te r n Aviation, Inc., 191 F. Supp. 42, 43 (M.D. Tenn.1961); Moody v. M c D a n i e l, 190 F. Supp. 24, 27-29 (N.D. Miss.1960) and Mozingo v. Consolidated C o n s t r. Co., 171 F. Supp. 396, 398-99 (E.D. Va.1959) (all denying private right of a c tio n under Federal Aviation Act for wrongful death or personal injury). Thus, the c o u rt is once again at a loss as to what basis plaintiffs have for asserting that this c o u rt has federal question jurisdiction. G ive n the above, the court could dismiss this case for lack of subject matter ju ris d ictio n . Doing so seems especially appropriate, as it would appear that plaintiffs h a ve now twice submitted complaints without any good faith basis for the ju ris d ic tio n a l allegations therein. However, because the court's foregoing analysis w a s undertaken sua sponte, and thus without the benefit of briefings from the p a rtie s , the wiser course of action would be to allow plaintiffs the opportunity to show w h y this case should not be dismissed for lack of federal question subject matter j u r i s d ic t i o n . Certainly the court is cognizant of the fact that its own research may

h a ve failed to discover either statutory or case law which would demonstrate that fe d e ra l question jurisdiction does exist under the Federal Aviation Act. p la in tiffs shall have ten days to make such a showing. Thus,

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P re vio u s ly, the court granted plaintiffs leave to amend their complaint to p ro p e rly allege diversity jurisdiction. Instead of amending accordingly, plaintiffs a m e n d e d their complaint to allege federal question jurisdiction pursuant to the F e d e ra l Aviation Act. Plaintiffs have already amended their complaint, thus

d e m o n s tra tin g that there indeed was no good faith basis for their facially invalid a lle g a tio n of diversity jurisdiction in their original complaint. Any attempt to amend ye t again would simply demonstrate that they engaged in the same tactics on their a m e n d e d complaint as well. Thus, the music has stopped in this round of

ju ris d ic tio n a l musical chairs, plaintiffs must now demonstrate that they in fact have a seat, as the time has passed to scramble for yet another perch. Hence, for a filing to be responsive to this order, it must demonstrate that plaintiffs have a federal p riva te right of action arising under the Federal Aviation Act. A c c o r d in g ly , IT IS ORDERED that plaintiffs shall have ten (10) days from the date of this o rd e r within which to show cause as to why their Amended Complaint (Docket # 6) s h o u ld not be dismissed for lack of subject matter jurisdiction. D a te d at Milwaukee, W is c o n s in , this 26th day of August, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge -5-