In re Air Disaster

• Decision Date: 07 May 1993
• Docket Number: No. 92-70017.,No. MDL 891,MDL 891,92-70017.
• Citation: 819 F. Supp. 1352
• Parties: In re AIR DISASTER. Kimberly Aven BURKE, Individually and as Next Friend of Philip Reed Burke, a Minor, and Joshua Grant Burke, a Minor; and as the Duly-Appointed Representative of the Estate of John David Burke, Deceased; and Donald Burke and Sue Burke, Plaintiffs, v. NORTHWEST AIRLINES, INC., and Robert Ouellette, Defendants.
• Court: U.S. District Court — Western District of Michigan

819 F. Supp. 1352

In re AIR DISASTER Kimberly Aven BURKE, Individually and as Next Friend of Philip Reed Burke, a Minor, and Joshua Grant Burke, a Minor; and as the Duly-Appointed Representative of the Estate of John David Burke, Deceased; and Donald Burke and Sue Burke, Plaintiffs, v. NORTHWEST AIRLINES, INC., and Robert Ouellette, Defendants.

No. MDL 891, No. 92-70017.

United States District Court, E.D. Michigan, S.D.

April 6, 1993.

Opinion Denying Reconsideration May 7, 1993.

David Holman and Wayne Fisher, Houston, TX, for Kimberly Burke.

William Maynard, Houston, TX, Carroll Debuc, Washington, DC, for Northwest.

Stephen S. Andrews, Houston, TX, for Robert Ouellette.

OPINION AND ORDER GRANTING PLAINTIFFS' FIRST AMENDED MOTION TO REMAND

ROSEN, District Judge.

I. INTRODUCTION

This wrongful death/negligence/deceptive trade practices action is presently before the Court on Plaintiffs' First Amended Motion to Remand filed March 3, 1992. The parties have fully briefed their respective positions concerning Plaintiffs' Motion, and the Court heard oral argument on this matter on June 23, 1992.

The issues presented by Plaintiffs' Motion are (1) whether Plaintiffs' claims are preempted under the Federal Aviation Act of 1958 (the "FAA"), 49 App.U.S.C. § 1301 et seq., and if so, (2) whether Defendants' removal of this action to federal court on the basis of FAA preemption was proper.

The Court has reviewed and considered the parties' briefs and oral arguments, and having further reviewed the applicable law, the Court is now prepared to rule on Plaintiffs' Motion. This Opinion and Order sets forth the Court's ruling on this matter.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On December 3, 1990, two aircraft owned and operated by Defendant Northwest, flight number 1482 and flight number 299, collided on the ground at Detroit Metropolitan/Wayne County Airport in Romulus, Michigan. Flight 299, while on its takeoff roll, struck flight 1482. Plaintiffs claim that the pilot of flight 1482 became lost while taxiing to the takeoff runway without proper clearance or authority. Defendant Ouellette was the pilot of flight 299. Plaintiff John David Burke, a passenger on board flight 1482, was killed as a result of the collision.

On August 5, 1991, Mr. Burke's surviving wife, children and parents filed a "Wrongful Death and Survival Action" Complaint¹ in Texas state court in which they allege claims of negligence and deceptive trade practices² against Northwest and Pilot Ouellette. Defendants timely removed the action to the United States District Court for the Southern District of Texas on September 11, 1991. Defendants' asserted basis for removal was federal question jurisdiction pursuant to 28 U.S.C. § 1331.

Plaintiffs subsequently moved to remand the case on October 3, 1991. However, before the Southern District of Texas was able to address Plaintiffs' Motion to Remand, the Judicial Panel on Multidistrict Litigation, by Order dated February 10, 1992, transferred the action to this Court as part of MDL 891. Plaintiffs then filed the instant Amended Motion to Remand in this Court.

III. PLAINTIFFS' CLAIMS

In their Texas wrongful death and survival Complaint, Plaintiffs assert four substantive claims. Their first claim Count V of Plaintiffs' Complaint charges Northwest with negligence in failing to adequately train or instruct the crews of the colliding planes in such areas as understanding the use of equipment, operating in low visibility conditions, taking proper precautions on the runway, and ensuring that the captain understood the operation of the equipment he was using. Plaintiffs' second claim Count VI charges Northwest with gross negligence alleging that Northwest's conduct in connection with the collision amounted to a conscious disregard for the rights, welfare and safety of its passengers.

In Count VII — Plaintiffs' third claim — Plaintiffs charge Pilot Ouellette with failure to exercise ordinary care and prudence while functioning as the captain of an aircraft. Specifically, Plaintiffs allege that Ouellette was negligent in that he failed to abort takeoff in weather conditions which they claim were below minimum for takeoff on the runway in use at Detroit Metro. Plaintiffs' last claim Count VIII charges Northwest with deceptive trade practices in that the airline represented to the American public through its advertising and brochures that it could provide a safe and reliable means of transportation and that it employed competent, well-trained individuals to operate its aircraft.

IV. DEFENDANTS' GROUNDS FOR REMOVAL

Defendants concede that all causes of action alleged by the Plaintiffs in their Complaint are based on state law. Notice of Removal, p. 3. Nonetheless, they assert that removal under federal question jurisdiction pursuant to 28 U.S.C. § 1331 is proper because they claim that all of Plaintiffs' claims relate to rates, routes or services of an air carrier, and therefore, are preempted under Section 105(a)(1) of the Federal Aviation Act, 49 App.U.S.C. § 1305(a)(1).

V. DISCUSSION

The ultimate issue which the Court must decide is whether Plaintiffs' state law claims were properly removed to federal court. Although the parties have largely treated this issue as one requiring only a determination of whether Plaintiffs' claims are "preempted" under the Federal Aviation Act, determination of the propriety of removal actually requires more. In addition to determining whether the federal act preempts the specific state law claims, the Court must also decide whether the FAA is the type of federal act calling for application of the "complete preemption" doctrine.

A. THE COMPLETE PREEMPTION DOCTRINE

A defendant may remove an action to federal court only if that court has original subject matter jurisdiction over the action.³ If a court lacks diversity jurisdiction over an action, as in the instant case, it must have federal question jurisdiction over the action in order to have subject matter jurisdiction. A court has federal question jurisdiction over an action when that action "arises under" the Constitution or law of the United States.⁴

To determine whether a claim arises under federal law, a court, under the "well-pleaded complaint" rule, generally looks only to the plaintiff's complaint. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Louisville & N.R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). If the complaint relies only on state law, the district court generally lacks subject matter jurisdiction and the action is not removable. That a defendant raises a federal defense to a state law claim, including a preemption defense, is immaterial for jurisdictional purposes. As the Court explained in Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987):

It is now well settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue.

482 U.S. at 393, 107 S.Ct. at 2430 (citation omitted).

However, the Supreme Court has developed an exception to the well-pleaded complaint rule. If Congress intends that a federal statute "completely preempt" an area of state law, any complaint alleging claims under that area of state law is presumed to allege a claim arising under federal law. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 1546-1547, 95 L.Ed.2d 55 (1987). The complaint may thus be removed to federal court and will be treated as alleging a federal cause of action, notwithstanding that on its face, the plaintiff's complaint alleges only a state-law cause of action.

1. The Birth of the "Complete Preemption" Doctrine

The "complete preemption" doctrine developed out of the Supreme Court's 1968 decision in Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). In Avco, the plaintiff filed a suit in Tennessee state court to enjoin its union employees from striking at its plant. The heart of the complaint was a "no-strike" clause in the collective bargaining agreement, pursuant to which "grievances" between Avco and its union employees were to be settled amicably or by binding arbitration.⁵ The union removed the case to federal court, citing § 301 of the Labor Management Relations Act (the "LMRA") as the basis of federal court jurisdiction. Avco subsequently moved to remand the case to state court. The District Court denied the remand motion, and the Sixth Circuit Court of Appeals affirmed.

The Supreme Court affirmed the lower courts, explaining:

The starting point is § 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185, which, we held in Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, was fashioned by Congress to place sanctions behind agreements to arbitrate grievance disputes. We stated:

"We conclude that the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws. * * * The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations.... Federal interpretation of the federal law will govern, not state law. But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy. * * * Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights. 353 U.S. at 456-457, 77 S.Ct. at 917-918.

An action arising under § 301 is controlled by federal substantive law even though it is brought in state court....

Removal is but one aspect of "the primacy of the federal judiciary in

...