Barnett v. Cass

• Decision Date: 25 February 2021
• Docket Number: CIV. NO. 20-00440 JMS-RT
• Citation: 522 F.Supp.3d 780
• Court: U.S. District Court — District of Hawaii
• Parties: Adam G. BARNETT and Carli E. McConaughy, Plaintiffs, v. Edward Paul CASS, et al., Defendants.

522 F.Supp.3d 780

Adam G. BARNETT and Carli E. McConaughy, Plaintiffs,

v.Edward Paul CASS, et al., Defendants.

CIV. NO. 20-00440 JMS-RT

United States District Court, D. Hawai‘i.

Signed February 25, 2021

Jon S. Jacobs, Miranda Carol Steed, Law Office of Jon S. Jacobs, LLLC, Honolulu, HI, for Plaintiffs.

Calvin E. Young, Forest Benjamin Jenkins, David J. Hoftiezer, Goodsill Anderson Quinn & Stifel LLP, Honolulu, HI, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTION TO REMAND TO STATE COURT, ECF NO. 12

J. Michael Seabright, Chief United States District Judge

I. BACKGROUND

As alleged in the Complaint in this action, on October 22, 2018, Plaintiffs Adam Barnett and Carli McConaughy embarked on a helicopter tour of Oahu operated by Defendant Novictor Helicopters ("Novictor") and piloted by Defendant Edward Cass. ECF No. 12-3 at PageID ## 124-25. Approximately 20 minutes into the flight, Cass passed out. Id. at PageID # 125. McConaughy, who was sitting directly behind the cockpit, noticed that Cass had lost consciousness and seized the controls to prevent the helicopter from entering freefall. Id. She was able to slow the helicopter, but it crash-landed into a sandbar in Kaneohe Bay in approximately three feet of water. Id. Plaintiffs allege that they suffered "serious physical" and psychological injuries as a result. Id. at PageID # 126.

On September 23, 2020, Plaintiffs brought suit in the Circuit Court of the First Circuit, State of Hawaii, against Cass and Novictor, as well as the owner of the helicopter, Higgins Leasing, and several Doe Defendants. Id. at PageID # 122. In their Complaint, Plaintiffs advance eight state law claims—seven for "gross negligence/negligence" and one for common carrier liability. Id. at PageID ## 126-38. Several of the claims are based on allegations that Defendants "knew or should have known of Cass's medical condition that caused him to lose consciousness mid-flight" and should have prevented him from flying. Id. at PageID ## 126-131. The remainder of the claims also concern aviation safety, including negligent employment of and failure to train Cass, failure to implement proper and reasonable flight safety rules and policies, failure to equip the helicopter with safety equipment, and failure to supply a safe and airworthy aircraft. Id. at PageID ## 132-136.

On October 1, 2020, Defendants removed the case to federal court based on federal question jurisdiction, asserting that Plaintiffs' state law claims are completely preempted by the Federal Aviation Act ("FAA") and corresponding Federal Aviation Regulations ("FARs"). ECF No. 1 at PageID # 2 (citing 28 U.S.C. §§ 1331, 1441, and 1446 ). Defendants point to the holding of Montalvo v. Spirit Airlines , 508 F.3d 464 (9th Cir. 2007), that the FAA and FARs "demonstrate an intent to occupy exclusively the entire field of aviation safety and carry out Congress' intent to preempt all state law in this field." ECF No. 1 at PageID # 7 (quoting Montalvo , 508 F.3d at 471 ). And with respect to Plaintiffs' claims regarding Cass' medical fitness to serve as a pilot, Defendants rely on Ventress v. Japan Airlines , 747 F.3d 716 (9th Cir. 2014), which specifically held that an "inquiry into the medical fitness [of a pilot] intrudes upon the federally occupied field of pilot safety and qualifications that Congress has reserved for the agency." ECF No. 1 at PageID # 7 (quoting Ventress , 747 F.3d at 722 ).

On November 12, 2020, Plaintiffs filed a Motion to Remand to state court, ECF No. 12. Plaintiffs argue that although the FAA and FARs may establish the applicable standard of care, they do not preempt state law personal injury remedies. Id. at PageID ## 112-13; ECF No. 27 at PageID # 270. Defendants filed their Opposition on January 16, 2021, ECF No. 23, and Plaintiffs filed their Reply on January 25, ECF No. 27. The court requested supplemental briefing to determine precisely which FARs are applicable to intrastate commercial air tours, including the one at issue in this case. ECF No. 30. The parties submitted their responses on February 11, 2021, ECF Nos. 31 & 33. This matter is decided without a hearing pursuant to Local Rule 7.1(c).

II. DISCUSSION

A. Standard

A plaintiff may file a motion to remand in order to challenge the removal of an action from state to federal court. Removal is proper so long as the plaintiff could have brought the action in federal court in the first instance; that is, so long as federal-question jurisdiction exists. See 28 U.S.C. § 1441. "The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams , 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987).

But under the "artful pleading rule" a plaintiff may not defeat removal by omitting necessary federal questions from their complaint. JustMed, Inc. v. Byce , 600 F.3d 1118, 1124 (9th Cir. 2010). Rather, "[a] state-created cause of action can be deemed to arise under federal law," regardless of how it is plead, "(1) where federal law completely preempts state law; (2) where the claim is necessarily federal in character; or (3) where the right to relief depends on the resolution of a substantial, disputed federal question." ARCO Env't Remediation, LLC v. Dept of Health & Env't Quality of the State of Montana , 213 F.3d 1108, 1114 (9th Cir. 2000) (internal citations omitted) (emphasis added).

Courts strictly construe § 1441 against removal and resolve any doubts in favor of remanding the case to state court. Durham v. Lockheed Martin Corp. , 445 F.3d 1247, 1252 (9th Cir. 2006) (citing Gaus v. Miles, Inc. , 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)). The party seeking to remove the case bears the burden of establishing that removal is proper. Geographic Expeditions, Inc. v. Est. of Lhotka ex rel. Lhotka , 599 F.3d 1102, 1106-07 (9th Cir. 2010).

B. Analysis

Defendants argue that federal jurisdiction is proper because Plaintiffs' state law claims are completely preempted by the FAA and FARs. Because the FAA does not expressly preempt state law claims, "preemption, if any, must be implied."¹ Ventress , 747 F.3d at 720. In Montalvo , the Ninth Circuit "delineated the preemptive scope of the FAA," holding that "the FAA, together with the [FARs] promulgated by the Federal Aviation Administration ... ‘occupies the entire field of aviation safety’ and that Congress ‘clearly indicated its intent to be the sole regulator’ " of this field. Ventress , 747 F.3d at 721 (quoting Montalvo , 508 F.3d at 473-74 ); see also Bernstein v. Virgin Am., Inc. , 2021 WL 686281, at *7 (9th Cir. Feb. 23, 2021) ("[O]ur case law makes clear that field preemption generally applies to ... the field of aviation safety. ") (emphasis in original). Applying that rule, Ventress determined that the Federal Aviation Administration has "promulgated detailed FARs regarding the issuance of medical certificates for [pilots]," including "FARs governing medical standards for mental, neurological, and general medical conditions." Ventress , 747 F.3d at 721-22. Thus, the court concluded, the FAA and FARs preempted the plaintiff's state law retaliation and constructive termination claims, which required "the factfinder to pass on questions of pilot qualifications and medical fitness." Id. at 722.

But although federal law "occupies the field" of aviation safety, "the scope of field preemption extends only to the standard of care." Gilstrap v. United Air Lines, Inc. , 709 F.3d 995, 1006 (9th Cir. 2013). Indeed, Ventress explains that the FAA's savings clause, 49 U.S.C. § 40120(c),² establishes that "even where federal law preempts state law standards of aviation safety ... ‘traditional state and territorial law remedies continue to exist for violation of those standards. ’ " 747 F.3d at 723 n.7 (emphasis in original) (quoting Abdullah v. Am. Airlines, Inc. , 181 F.3d 363, 375 (3d. Cir. 1999) ); see also Gilstrap , 709 F.3d at 1007 (explaining that in pervasively regulated areas, the FAA and FARs "preempt any different or higher standard of care that may exist under [state] tort law" but that plaintiffs "may still rely on [state] tort law to prove the other elements of [their] claims—breach, causation, damages, and remedies"); Joseph v. Berkeley Grp., LLC , 823 F. Appx. 472, 473 (9th Cir. 2020) (mem.) ("The [FAA's] savings clause allows state tort law to provide additional remedies where a plaintiff alleges a violation of the safety standards set by federal regulations."); see also Nat'l Fed'n of the Blind v. United Airlines, Inc. , 813 F.3d 718, 731 (9th Cir. 2016) (holding that while state remedies are available for breaches of standards of care set by the FAA, the statute wholly preempts "claims brought under state statutes prescribing substantive standards of care").³

This rule is appropriate because the FAA does not create a private cause of action for personal injury claims. Thus, if the FAA was instead construed to wholly preempt state law personal injury claims, individuals harmed in aircraft crashes and other flight-related incidents would be left without any remedy. See Brown v. City & Cnty. of Honolulu , 2015 WL 1564961, at *5 (D. Haw. 2015) ("[T]he Federal Aviation Act does not create a federal cause of action for personal injury suits and ‘consequently, the complete preemption doctrine is inapplicable here and does not provide a basis for removal.’ " (brackets omitted)) (quoting Webb v. Desert Bermuda Dev. Co. , 518 Fed. Appx. 521, 522 (9th Cir. 2013) ).⁴

Against this backdrop, the court applies a "two-part framework for evaluating field preemption under the FAA." Gilstrap , 709 F.3d at 1006. First, the court asks "whether the particular area of aviation commerce and safety implicated by the lawsuit is governed by ‘pervasive federal regulations.’ " Id. (brackets omitted) (quoting ...