Dietz v. Avco Corp.

• Citation: 168 F.Supp.3d 747
• Decision Date: 10 March 2016
• Docket Number: CIVIL ACTION NO. 15-4324
• Parties: James Dietz, Administrator of the Estates of John Kenneth Lallo, Sr., Deceased, and Diana Christine Ceo Lallo, Deceased, et al., Plaintiffs v. Avco Corp., et al., Defendants.
• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)

168 F.Supp.3d 747

James Dietz, Administrator of the Estates of John Kenneth Lallo, Sr., Deceased, and Diana Christine Ceo Lallo, Deceased, et al., Plaintiffs

v.Avco Corp., et al., Defendants.

CIVIL ACTION NO. 15-4324

United States District Court, E.D. Pennsylvania.

Signed March 10, 2016

Cynthia Marie Devers, The Wolk Law Firm, Philadelphia, PA, for Plaintiffs.

Veronica W. Saltz, Albert M. Saltz, Saltz Matkov PC, Wayne, PA, Marie A. Deforest, Deforest Koscelnik Yokitis Berardinelli, Pittsburgh, PA, Sherri R. Ginger, Timothy A. Heisterhagen, Armbrecht Jackson LLP, Mobile, AL, Michael R. Carroll, Ballard Spahr LLP, Voorhees, NJ, Michele Ventura, Ballard Spahr, Cherry Hill, NJ, J. Bruce McKissock, Nicolai Andrew Schurko, Marshall Dennehey Warner Coleman & Goggin, Philadelphia, PA, for Defendants.

MEMORANDUM

STENGEL

, District Judge

This action involves the crash of a private plane in Kansas City, Missouri, and the resultant death of its pilot and his wife. The decedents' estates and family originally filed this action in the Court of Common Pleas of Philadelphia County, alleging various state claims against four sets of defendants.¹ The Continental Defendants timely removed the case here alleging diversity jurisdiction under 28 U.S.C. § 1332

, removal jurisdiction under 28 U.S.C. § 1441, and federal officer removal jurisdiction under 28 U.S.C. § 1442. The plaintiffs have filed a timely motion to remand based primarily on the forum-defendant rule of 28 U.S.C. § 1441(b)(2).² The Continental Defendants strongly oppose this motion.

For the following reasons, I will grant the motion and remand this action to the Court of Common Pleas of Philadelphia County.

I. BACKGROUND

Decedent John Lallo, Sr., was a pilot and owner of a Mooney M20J-201 aircraft. On August 18, 2013, Mr. Lallo and his wife Diana were taking off from the Charles B. Wheeler Downtown Airport in Kansas City, Missouri. When the aircraft reached several hundred feet, the engine failed allegedly because the magneto housing rotated and adversely changed engine timing. Mr. Lallo carefully attempted to return to the airport, but unfortunately could not, and it crashed resulting in his death and the death of his wife. The complaint alleges that the cause of the crash was engine failure due to the improper and inadequate Continental Motors magneto, ignition system, attachment system, the gasket interface, and the clamps that hold it in place.

On July 22, 2015, the plaintiffs filed this complaint in the Court of Common Pleas of Philadelphia County, alleging strict liability; negligence; breach of warranty; breach of contract; negligent infliction of emotional distress; concert of action, recklessness, outrageousness, willful and wanton conduct; and fraud, misrepresentation, and concealment. None of these claims involves a federal question.

II. LEGAL STANDARD

Federal courts are of limited jurisdiction, and may only decide cases consistent with the authority afforded by the Constitution or statutes of the United States. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 378, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)

. Defendants in state court actions have a statutory right to remove “any civil action brought in a state court of which the district courts of the United States have original jurisdiction...to the district court...embracing the place where such action is pending.” 28 U.S.C. § 1441(a). Federal district courts have original (subject matter) jurisdiction over all civil actions between citizens of different states when the amount in controversy exceeds $75,000.00, excluding interest and costs. See 28 U.S.C. § 1332(a).

As the party asserting jurisdiction, the defendants have “the burden of showing at all stages of the litigation that the case is properly before the federal court.” Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir.2007)

; see also Boyer v. Snap – On Tools Corp., 913 F.2d 108, 111 (3d Cir.1991) (The defendant bears the burden of establishing removal jurisdiction and demonstrating compliance with all pertinent procedural requirements). Removal statutes “are to be strictly construed against removal and all doubts should be resolved in favor of remand.” In re Briscoe, 448 F.3d 201, 217 (3d Cir.2006).

The process for removal is governed by 28 U.S.C. § 1446

. A defendant seeking removal of an action must file a notice of removal with the district court within thirty days of service of the complaint upon the defendant. See 28 U.S.C. § 1446(b)(1). When a civil action is removed under Section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action. See 28 U.S.C. § 1446(b)(2)(A).

III. DISCUSSION

The plaintiffs filed a motion to remand this action to the Court of Common Pleas of Philadelphia County, arguing that this action does not involve federal officer jurisdiction, that the removal process was procedurally defective, and that the forum-defendant rule prohibited removal. I agree.

There are limited grounds for remand. Remand to the state court is appropriate for “(1) lack of district court subject matter jurisdiction or (2) a defect in the removal process.” PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir.1993)

. If a federal court determines that it does not have subject matter jurisdiction over a removed action, or if the proper removal procedures were not followed by the defendant, the court must remand the action to state court. See 28 U.S.C. § 1447(c) ; Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir.1995).

A. Federal Officer Jurisdiction

In the Notice of Removal, the Continental Defendants indicated that this action was “removable pursuant to 28 U.S.C. § 1442(a)(1)³

because, at all relevant times, [Continental Motors, Inc.] acted as an officer of the United States under color of such office.” See Document #1. I disagree.

Certainly, the Continental Defendants are persons within the meaning of the statute. It is well settled that such corporations qualify as persons under the statute and may seek removal accordingly. See 1 U.S.C. § 1

(“in determining the meaning of any Act of Congress, unless the context indicates otherwise...the words ‘person’ and ‘whoever’ include corporations, companies, and associations”); see also Good v. Armstrong World Industries, Inc., 914 F.Supp. 1125, 1128–29 (E.D.Pa.1996) (finding that a corporation is a person under Section 1442(a)(1) ).

Whether the defendants were “acting under a federal officer,” however, is far from certain. The Continental Defendants argue that in performing the complaint's alleged conduct, they acted pursuant to 49 U.S.C. § 44702(d)

, which provides that the FAA

may delegate to a qualified private person or to an employee under the supervision of that person, a matter related to: (A) the examination, testing, and inspection necessary to issue a certificate under this chapter [49 U.S.C. §§ 44701, et seq.

]; and (B) issuing the certificate.

Their alleged actions, they insist, were performed pursuant to a comprehensive and detailed set of regulations, and thus they acted under color of a federal officer in performing those alleged actions.

The federal officer removal statute extends removal authority only to persons acting under an officer of the United States. See International Primate Protection League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 80, 111 S.Ct. 1700, 114 L.Ed.2d 134 (1991)

. A private person acting under a federal officer must assist or help carry out the duties or tasks of the federal superior. See Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 152, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007). It is not enough for a defendant to show that the relevant acts occurred under the general auspices of a federal officer. Good, 914 F.Supp. at 1128.

In Watson

, the Supreme Court held that the fact that a federal regulatory agency “directs, supervises, and monitors” a company's activities in considerable detail neither brings that company “within the scope of the italicized language (‘acting under ’ an ‘officer ’ of the United States)” nor permits removal. Watson, 551 U.S. at 145, 127 S.Ct. 2301

. Plaintiff Lisa Watson filed a class action lawsuit against Defendant Philip Morris, claiming that the company violated Arkansas law by misrepresenting the amount of tar and nicotine in cigarettes branded as “light.” Id. at 146, 127 S.Ct. 2301. The defendant removed the case to federal court on the basis that it was acting under the direct control of regulations promulgated by the Federal Trade Commission, triggering the application of Section 1442(a)(1). Id. The district court denied the plaintiff's motion to remand, and the Eighth Circuit Court of Appeals affirmed. Id. at 147, 127 S.Ct. 2301. The Eighth Circuit noted “unprecedented” government involvement in the tobacco industry, including detailed Federal Trade Commission regulations concerning the testing and disclosure of tar and nicotine levels. Id. The court concluded that the defendant was “acting under a federal officer” and consequently entitled to remove the case to federal court. Id.

The Supreme Court reversed. The Court acknowledged the requirement to broadly construe Section 1442(a)(1)

, but stated that such construction is not without boundaries. Id.“[B]road language is not limitless. And a liberal construction nonetheless can find limits in a text's language, context, history, and purposes.” Id. The Court warned against granting manufacturers access to federal courts merely because of their participation in highly regulated industries, which is a result Congress never intended:

In our view the help or assistance necessary to bring a private person within the scope of the [federal officer removal] statute does not include simply complying with the law.

...

The upshot is that a highly regulated firm cannot find a statutory basis for removal in the fact of federal regulation alone. A private firm's compliance (or noncompliance) with federal laws, rules, and regulations does not

...