Cartegena v. Continental Airlines, Inc.

• Decision Date: 24 September 1997
• Docket Number: No. Civ.A. H-97-2516.,Civ.A. H-97-2516.
• Parties: Carlos CARTEGENA, Plaintiff, v. CONTINENTAL AIRLINES, INCORPORATED, Defendant.
• Court: U.S. District Court — Southern District of Texas

10 F.Supp.2d 677

Carlos CARTEGENA, Plaintiff, v. CONTINENTAL AIRLINES, INCORPORATED, Defendant.

No. Civ.A. H-97-2516.

United States District Court, S.D. Texas, Houston Division.

September 24, 1997.

George M. Fleming, Fleming, Hovenkamp & Grayson, Houston, TX, for Plaintiff.

James H. Barker, Giessel, Barker & Lyman, Houston, TX, for Defendant.

MEMORANDUM AND ORDER

ATLAS, District Judge.

Plaintiff Carlos Cartegena has moved for remand of this action pursuant to 28 U.S.C. § 1447(c). Defendant Continental Airlines, Incorporated opposes, arguing that the Federal Aviation Act of 1958 implicitly preempts Plaintiff's claims.

BACKGROUND FACTS

Plaintiff was a passenger aboard Continental Flight No. 267, a direct flight from Newark, New Jersey to San Juan, Puerto Rico, on June 25, 1995. While the aircraft was enroute to Puerto Rico, the flight encountered severe weather conditions allegedly causing 23 of its 257 passengers to sustain a multitude of injuries. Plaintiff claims he sustained serious injuries during this flight. Specifically, Plaintiff claims he was rendered unconscious and suffered debilitating injuries to his head, neck and spine, such as herniated discs at C4-C5 and C5-C6, as well as spinal cord compression, allegedly resulting in neck pain, numbness and frequent headaches.

Defendant owns and operates the aircraft on which Plaintiff traveled on June 25, 1995. Plaintiff's pertinent allegations are as follows:

At all pertinent times, Defendant, as a common carrier, was under a continuous duty to provide a high degree of care for the safety of all its passengers. The following acts and omissions of Defendant constitute a breach of their duty in the following manners:

1. failure to exercise due care in the maintaining a safe flight path so as to avoid dangerous weather conditions;

2. failure to exercise due care in requiring and supervising the passengers to wear seat belts;

3. failure to properly control the aircraft in a safe manner;

4. failure to exercise due care in observing and supervising the passengers on board the flight;

5. failure to recognize that Plaintiff was seriously injured and provide proper medical attention and assistance upon disembarking from the aircraft.

As a direct and proximate result of the negligent acts stated in items 1-4 above, Plaintiff was catapulted from his seat causing Plaintiff's head to strike the luggage compartment directly above his seat. As a direct and proximate result of the blow to his head, Plaintiff was injured. Plaintiff's injuries were aggravated by the negligent acts stated in item 5 above. All acts stated above constitute a conscious disregard for Plaintiff's safety.

Plaintiff filed this lawsuit against Defendant in the 190th District Court of Harris County, Texas, as Case No. 97-32964. On July 25, 1997, Defendant timely filed a Notice of Removal pursuant to 28 U.S.C. § 1446(d), arguing that diversity jurisdiction under 28 U.S.C. § 1332(a)(1) supported jurisdiction. Defendant, citing City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), also argued that the Federal Aviation Act of 1958 ("FAA"), as amended in 1978 (Airline Deregulation Act ("ADA")), implicitly preempts state law claims governing flight operations and air safety. 49 U.S.C. § 1301 et seq., amended as 49 App. U.S.C. § 1301 et seq., and later repealed by Pub.L. 103-272, § 7(b), July 5, 1994, 108 Stat. 1379.

Although not referenced by the parties, the ADA was again amended in 1994 by the Federal Aviation Administration Authorization Act of 1994 ("FAAAA"), and codified as 49 U.S.C. § 40101 et seq. Pub.L. 103-272, § 1(e), July 5, 1994, 108 Stat. 1143, and amended again Pub.L. 103-305, Title VI, § 601(b)(1), (2)(A), Aug. 23, 1994, 108 Stat. 1605, 1606.

Plaintiff has filed his motion and brief in support thereof seeking remand under 28 U.S.C. § 1447(c). Plaintiff argues that (i) diversity jurisdiction does not support removal because Defendant is a resident of this federal court's forum state, and (ii) the "Federal Aviation Act of 1958" does not preempt Plaintiff's tort cause of action. The Court agrees with Plaintiff's arguments, although the applicable statutes are different from the ones cited by the parties.

DISCUSSION

I. Diversity Jurisdiction.

It is clear that there is diversity of citizenship between the parties, since Plaintiff is a citizen of New Jersey and, according to Defendant's Notice of Removal, Defendant is a citizen of Texas. See Doc. # 1. However, "even if complete diversity does exist, the case may not be removed from state to federal court if any defendant is a citizen of the state in which the action is brought." Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254, 1258 (5th Cir.1988); Riebe v. Nat'l Loan Investors, L.P., 828 F.Supp. 453, 455 (N.D.Tex.1993); Dollar v. General Motors Corp., 814 F.Supp. 538, 543 (E.D.Tex. 1993).¹ Since Defendant is a citizen of Texas, the state in which this Court sits, Defendant may not base removal jurisdiction on the diversity of citizenship of the parties. Therefore, there is no diversity jurisdiction in this case.

II. Preemption.

Defendant argues that "Plaintiff's claims relate to airline operations, flight safety, and standards of care. For these reasons, ... Plaintiff's claims are implicitly preempted by federal law and thus, fit the exception to the general rule. Therefore, this Court has jurisdiction of this cause pursuant to 28 U.S.C. § 1441(b)." Defendant's Response and Brief in Opposition to Plaintiff's Motion to Remand, at 2; id. at 9. Defendant has failed to correctly interpret the applicable authorities.

General Removal Principles.— The Fifth Circuit in Sam L. Majors Jewelers v. ABX, Inc. recently set forth concisely the salient principles on removal jurisdiction in cases involving the statutes regulating airlines that Defendant contends are involved in this case. Generally,

[f]ederal jurisdiction exists when a federal question is presented on the face of a plaintiff's properly pleaded complaint. Id. at 392, 107 S.Ct. at 2429. The existence of a defense based upon federal law is insufficient to support jurisdiction. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-12, 103 S.Ct. 2841, 2845-47, 77 L.Ed.2d 420.

Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 924 (5th Cir.1997) (holding no preemption in cases claiming losses of property shipped on airlines, but holding that the federal common law supported federal court jurisdiction). The Court of Appeals went on to explain, however, that:

There are three theories that might support federal question jurisdiction in a case such as this one. First, jurisdiction may be found when the complaint raises art express or implied cause of action that exists under a federal statute. Second, jurisdiction will lie if an area of law is completely preempted by the federal regulatory regime. Finally, if the cause of action arises under federal common law principles, jurisdiction may be asserted.

* * * * * *

Although a preemption defense will not support jurisdiction, in exceptional circumstances courts may find that a federal regulatory regime is so extensive and comprehensive that it is possible to infer that Congress intended any related cause of action to be governed under federal law. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 1546-47, 95 L.Ed.2d 55 (1987); Aaron v. National Union Fire Ins. Co. of Pittsburg, 876 F.2d 1157 (5th Cir.1989) (discussing at length the complete preemption doctrine).

This "complete preemption" occurs only when Congress intends not merely to preempt a certain amount of state law, but also intends to transfer jurisdiction of the subject matter from state to federal courts. See Metropolitan Life, 481 U.S. at 65-66, 107 S.Ct. at 1547-48. Unless Congress clearly manifests an intention to transfer jurisdiction to federal courts, there is no basis for invoking federal judicial power. See Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1189-90, 55 L.Ed.2d 443 (1978); Stamps v. Collagen Corp., 984 F.2d 1416, 1420 (5th Cir.), cert. denied, 510 U.S. 824, 114 S.Ct. 86, 126 L.Ed.2d 54 (1993).

ABX, Inc., 117 F.3d at 924-25.

Federal Aviation Administration Authorization Act.— Defendant argues that the case before the Court relates to "flight operations" and that therefore the claims are preempted. This argument is patently incorrect. See Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335-36 (5th Cir.1995) (en banc).

The issue before the Court is whether Plaintiff's claims in tort involve questions about the "operation" or "maintenance" of the aircraft, in which case there is no preemption, or the claims relate to "rates, routes or services" of Defendant, in which event, the claims are preempted. The Court holds that it lacks subject matter jurisdiction following the reasoning set forth in Hodges, 44 F.3d at 336-39, interpreting the FAA, the predecessor to the current airline regulatory laws, the FAAAA, and concluding that plaintiff Hodges' claims involved the operation and maintenance of the aircraft. In Hodges v. Delta Airlines, Inc., Judge Edith Jones, speaking for the Fifth Circuit en banc squarely held that under § 1305(a)(1) of the Airline Deregulation Act of 1978, 44 F.3d 334, 335 (5th Cir.1995) (en banc), the breadth of the express preemption of state law embodied in § 1305(a)(1), which preempts the states from enforcing any law relating to rates, routes or services of any carrier, does not reach claims for personal injury occurring during flights on airplanes.² Thus, the Hodges Court held that federal preemption of state laws by the FAA provision "related to services" of an air carrier does not displace state tort actions for personal physical injuries or property damage caused by the operation and maintenance of aircraft. Hodges, 44 F.3d at 336.³

In 1994, Congress amended the ADA and enacted a new preemption...