Psalmond et al v. Delta Air Lines, Inc., No. 1:2013cv02327 - Document 11 (N.D. Ga. 2014)

Court Description: ORDER AND OPINION granting plaintiffs Motion to Remand 5 and denying their Request for Fees 5 . The clerk is directed to remand this case to the Gwinnett County Superior Court where it was originally filed. Signed by Judge Julie E. Carnes on 3/24/14. (ddm)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION MARVIN ERIC PSALMOND and ANNA MUNANDAR, Plaintiffs, CIVIL ACTION NO. v. 1:13-cv-2327-JEC DELTA AIR LINES, INC., Defendant. ORDER & OPINION This case is before the Court on plaintiffs Motion to Remand and Request for Fees [5]. arguments of the parties The Court has reviewed the record and the and, for the reasons set out below, concludes that the Motion to Remand [5] should be GRANTED and that the Request for Fees [5] should be DENIED. BACKGROUND This case arises out of an emergency evacuation from Delta Flight 1323 on June 20, 2011. (Compl. [1] at ¶ 5.) en route from Atlanta to Los Angeles. (Id.) The flight was Shortly after takeoff, passengers heard a loud noise and noticed flames coming out of the left engine. (Id. at ¶ 7.) The pilot returned to the Atlanta airport, where she landed the plane without incident. AO 72A (Rev.8/82) (Id. at ¶ 8.) Once the plane was on the ground, the passengers were instructed to exit the plane via evacuation slides. (Id. at ¶ 9.) Plaintiff Marvin Psalmond was a passenger on Flight 1323. (Compl. [1] at ¶ 6.) Following the emergency landing, Psalmond evacuated down a slide near the middle of the plane. (Id. at ¶ 10.) He claims that he was injured when he was struck in the back and shoulder by another passenger who came down the slide prematurely. (Id. at ¶ 11.) ¶ 19.) Plaintiff Anna Munandar is Psalmond s wife. (Id. at Her claims are based on Psalmond s alleged injuries and derivative of his claims. (Id. at ¶ 28.) Plaintiffs filed suit against defendant in Gwinnett County Superior Court, asserting state law claims of negligence and gross negligence. (Compl. [1].) Defendant removed the action to this Court based on federal question jurisdiction under 28 U.S.C. § 1331. (Notice of Removal [1] at ¶¶ 7-8.) Defendant asserts that plaintiffs claims are preempted by the Federal Aviation Act ( FAA ) as amended by the Airline Deregulation Act ( ADA ), and thus governed by federal law. (Id. at ¶¶ 3-6.) Plaintiffs have filed a motion to remand the case to state court. (Pls. Mot. to Remand [5].) According to plaintiffs, the FAA does not preempt routine state negligence claims such as the claims asserted in this action. (Id.) In connection with their motion to remand, plaintiffs also request an award of fees and costs pursuant to 28 U.S.C. § 1447(c). 2 AO 72A (Rev.8/82) DISCUSSION I. MOTION TO REMAND Pursuant to 28 U.S.C. § 1441(a): any 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 or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. 28 U.S.C. § 1441(a). A case that is improperly removed to federal court is subject to remand under 28 U.S.C. § 1447. Remand is mandatory if it appears that the district court lacks . . . jurisdiction over the case. 28 U.S.C. § 1447(c). On a motion to remand for lack of jurisdiction, [t]he removing party bears the burden of proof regarding the existence of federal subject matter jurisdiction. City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012). Because removal raises significant federalism concerns, the construed strictly. Id. in favor of remand. jurisdictional removal statutes are Any doubts about jurisdiction are resolved Id. As indicated above, defendant relies solely on federal question jurisdiction as its basis for removal. (Notice of Removal [1].) The federal courts have original jurisdiction over cases arising under federal law. Ehlen Floor Covering, Inc. v. Lamb, 660 F.3d 1283, 1287 (11th Cir. 2011)(citing 28 U.S.C. § 1331). 3 AO 72A (Rev.8/82) As a general rule, a case arises under federal law when it appears from the well-pleaded complaint that federal law creates the cause of action or that resolution of the dispute requires interpretation of a substantial federal issue. Iberiabank v. Beneva 41-I, LLC, 701 F.3d 916, 919 (11th Cir. 2012). A state claim may also be deemed to arise under federal law under the complete preemption doctrine when federal regulation so occupies a given field that any complaint raising claims in that field must necessarily be characterized as federal in nature. Dunlap v. G&L Holding Grp., Inc., 381 F.3d 1285, 1290 (11th Cir. 2004). See also Pruitt v. Carpenters Local Union No. 225, 893 F.2d 1216, 1218-19 (11th Cir. 1990)(holding that § 301 of the Labor Management Relations Act completely preempts any equivalent state law remedies). Plaintiffs do not assert any federal claims in the complaint. (Compl. [1] at ¶¶ 30-42.) Nor do the asserted claims raise any substantial federal issues. Although the complaint refers generally to federal aviation regulations, its claims do not essentially depend on or require any interpretation of those regulations. Iberiabank, 701 F.3d at 919 (state claims can sometimes arise under federal law when the potential state court plaintiff s right to relief necessarily depends on resolution of a substantial question of federal law )(emphasis added). See also Dunlap, 381 F.3d at 1290 ( [T]he mere presence of a federal issue in a state cause of action 4 AO 72A (Rev.8/82) does not automatically confer federal-question jurisdiction. ) (quoting Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 813 (1986)) and Cornelius v. U.S. Bank Nat l Ass n, 452 Fed. App x 863, 865 (11th Cir. 2011)( presence of a federally regulated defendant does not of itself raise a substantial federal question ). Defendant s theory is that the state negligence claims asserted in the complaint are completely preempted by the FAA and the ADA. (Def. s Resp. [6] at 2, 6.) Congress passed the FAA in 1958 in order to promote the safe and efficient use of the nation s airspace. See 49 U.S.C. § 40101 and Zukas v. Hinson, 124 F.3d 1407, 1412 (11th Cir. 1997). To that end, the FAA vested in the United States government exclusive sovereignty over US airspace and authorized the FAA Administrator to implement regulations concerning various aspects of air safety and transport. 49 U.S.C. § 40103(a)(1) and (b). Congress enacted the ADA in 1978, in an effort to deregulate the airline industry and to permit maximum reliance on competitive market forces to further efficiency and innovation in the industry. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992) (discussing the history of the FAA and ADA). As originally enacted, the FAA contained a savings clause clarifying that: Nothing . . . in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such 5 AO 72A (Rev.8/82) remedies. Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 222 (1995). In accordance with its attempt to deregulate the airline industry, Congress included in the ADA a preemption clause designed to ensure that states did not undo federal deregulation with regulation of their own. Id. (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992)). That clause expressly provides for federal preemption of state laws related to a price, route, or service of an air carrier that is governed by the Act. 49 U.S.C. § 41713(b). Defendant argues that the state negligence claims asserted here are impliedly preempted by the FAA. According to defendant, the (Def. s Resp. [6] at 14-22.) comprehensive system of federal regulations that have been implemented under the authority of the FAA evinces an intent by Congress and the Administrator to preempt the entire field of aviation safety. (Id.) Alternatively, defendant contends that emergency disembarkation procedures are related to an airline s core service of providing safe transportation, and that the asserted claims are thus expressly preempted by the ADA. (Id. at 6-14.) Defendant s implied preemption argument is foreclosed by the Eleventh Circuit s decision in Pub. Health Trust of Dade Cnty. v. Lake Aircraft, Inc., 992 F.2d 291 (11th Cir. 1993). In Public Health, the Circuit Court addressed the same issue that defendant raises here: whether the scheme of federal regulation under the FAA 6 AO 72A (Rev.8/82) is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Id. at 294. Citing Cipollone v. Liggett Grp., Inc., 505 U.S. 504 (1992), the Court advised caution in applying implied preemption theories when a federal statute contains an express preemption clause. Id. Relying in part on the express preemption language of the ADA, the Court ultimately concluded that the FAA does not preempt state law on matters unrelated to airline rates, routes or services. Id. at 295. Defendant suggests that the Court should disregard Public Health because of its reliance on Cipollone. (Def. s Resp. [6] at 4-5.) Subsequent to the Public Health decision, the Supreme Court clarified that Cipollone does not entirely foreclose[] any possibility of implied pre-emption when there is an express preemption clause. Freightliner Corp. v. Myrick, 514 U.S. 280, 288 (1995). See also Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 869-870 (2000) (ordinary conflict preemption analysis applies to a statute that contains an express preemption and savings clause). However, the Cipollone clarification did not invalidate Public Health. the Eleventh preemption is Circuit usually observed in Public inapplicable when Health there that is an Although implied express preemption clause, it went on to apply ordinary preemption principles to conclude that field preemption could not be inferred from the language of the FAA. Public Health, 992 F.2d at 294-95. 7 AO 72A (Rev.8/82) Its analysis was thus in accordance with the later Supreme Court authority. The Eleventh Circuit has had at least one opportunity to revisit the Public Health decision since the Supreme Court issued its clarifying authority. See Branche v. Airtran Airways, Inc., 342 F.3d 1248 (11th Cir. 2003). Although the Branche Court recognized the Cipollone clarification, it did not limit or modify Public Health. Id. at 1253. relied on argument. a In fact, Branche cited Public Health with approval and similar Id. analysis Branche to reject confirms that an implied Public preemption Health, which definitively resolves the implied preemption argument raised by defendant, remains good law and is binding on this Court. See Ballenger v. Sikorsky Aircraft Corp., Civil Action No. 2:09cv72-MHT (WO), 2011 WL 5245209, at *2 (M.D. Ala. Nov. 3, 2011)(Thompson, J.) (under Public Health, claims that do not relate to airline rates, routes or services are not preempted by federal law). Defendant s express preemption argument fares no better. The Eleventh Circuit has interpreted the ADA s services term to include all of the [contractual] features of air transportation that are bargained for by air carriers and their passengers and that Congress intended to deregulate via the ADA, such as ticketing, boarding procedures, provision of food and drink, and baggage handling. Branche, 342 F.3d at 1256-57 (quoting Hodges v. Delta Airlines, Inc., 8 AO 72A (Rev.8/82) 44 F.3d 334, 336 (5th Cir. 1995)). Though broad, this definition does not result in the preemption of state law personal injury claims arising from the allegedly negligent operation of an airplane. at 1258 and Hodges, 44 F.3d at 335. Id. As explained in Branche: airlines do not compete on the basis of likelihood of personal injury . . . and as such it does not undermine the pro-competitive purpose of the ADA . . . to permit states to regulate this aspect of air carrier operations. Id. (internal citation omitted)(those elements of air carrier operations over which airlines do not compete are not services . . . and state laws related to those elements are not preempted). See also Barbakow v. USAir, Inc., 950 F. Supp. 1145, 1149 (S.D. Fla. 1996)( claims proximately by caused private by an passengers air to carrier s recover breach of for its injuries duty of reasonable care in providing cabin services are not preempted by the ADA ). This result is reinforced by another provision of the FAA, which requires an air carrier to maintain an insurance policy or selfinsurance plan that is sufficient to pay . . . 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. 49 U.S.C. § 41112(a). The Eleventh Circuit has cited this provision as evidence that Congress did not intend for the ADA to preempt state personal injury claims. Branche, 342 F.3d at 1258. 9 AO 72A (Rev.8/82) Other courts have likewise noted that ADA preemption of state negligence claims would render the insurance provision a nullity. See Hodges, 44 F.3d at 338 ( A complete preemption of state law in this area would have rendered any requirement of insurance coverage nugatory. ) and Sheesley v. The Cessna Aircraft Co., Nos. Civ. 02-4185-KES, Civ. 035011-KES, Civ. 03-5063-KES, 2006 WL 1084103, at *21 (D. S.D. Apr. 20, 2006)(Schreier, C.J.)( This insurance requirement acknowledges Congress s intent that state tort claims survive adoption of the Act. ). Finally, the Court notes that defendant has failed to acknowledge the distinction that the Eleventh Circuit draws between the ordinary preemption that may provide an affirmative defense to a state law claim and the complete preemption that allows for removal of a state claim to federal court. See Cmty. State Bank v. Strong, 651 F.3d 1241, 1261 (11th Cir. 2011). Ordinary defensive preemption does not furnish federal subject-matter jurisdiction under 28 U.S.C. § 1331. Id. (quoting Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1212 (11th Cir. 1999)). Complete preemption entirely transforms a state-law claim into a federal claim, regardless of how the plaintiff framed the legal issue in his complaint and thus does supply federal jurisdiction. complete preemption is rare. Id. 10 AO 72A (Rev.8/82) Id. However, The above discussion concerning ordinary preemption principles necessarily precludes the application of the more narrow complete preemption doctrine in this case. But it is important to note that defendant has made no effort to show that this case is within that rare category of cases where complete preemption might apply. See Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d 1267, 1281 (11th Cir. 2005)(referring jurisdiction to the created by special the category doctrine of of federal complete question preemption ). Neither has the Court, in its independent research, found any authority to suggest that complete preemption applies under the circumstances of this case. As discussed, defendant has the burden of showing that removal is proper under federal law. 1313. City of Vestavia Hills, 676 F.3d at For all of the reasons discussed above, defendant failed to meet this burden. The Court thus GRANTS plaintiffs motion to remand this case to state court. II. REQUEST FOR FEES In connection with their motion to remand, plaintiffs request an award of fees and costs pursuant to 28 U.S.C. § 1447(c). Section 1447(c) provides that: An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. The standard for awarding fees under 11 AO 72A (Rev.8/82) § 28 U.S.C. § 1447(c). 1447(c) turns on the reasonableness of the removal. U.S. 132, 141 (2005). Martin v. Franklin Cap. Corp., 546 As the Supreme Court explained in Martin: Absent unusual circumstances, courts may award attorney s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied. Id. See also Bauknight v. Monroe Cnty., 446 F.3d 1327, 1329 (11th Cir. 2006)(citing Martin and rejecting the presumption in favor of awarding fees previously applied by some courts). Although the Court ultimately rejected defendant s preemption argument, its unreasonable. asserted basis for removal was not objectively Plaintiffs referred in their complaint to federal aviation regulations, and their allegations arguably implicate the FAA and the ADA. Defendant s implied preemption argument is foreclosed by Public Health, but the Cipollone clarification makes that result less obvious. And the Eleventh Circuit has not ruled specifically on defendant s express preemption argument, which might reasonably have appeared viable given the Circuit Court s broad interpretation of the term services as used in the ADA. Accordingly, the Court finds that fees and costs are not warranted under § 1447(c) and DENIES plaintiffs request. 12 AO 72A (Rev.8/82) CONCLUSION For the foregoing reasons, plaintiffs Motion to Remand [5] is GRANTED and their Request for Fees [5] is DENIED. The clerk is directed to REMAND this case to the Gwinnett County Superior Court where it was originally filed. SO ORDERED, this 24th day of March, 2014. /s/ Julie E. Carnes JULIE E. CARNES CHIEF UNITED STATES DISTRICT JUDGE 13 AO 72A (Rev.8/82)

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