Irabor v. Lufthansa Airlines, Civil Action No. 19-12087-FDS

Decision Date05 December 2019
Docket NumberCivil Action No. 19-12087-FDS
Parties Bright U. IRABOR, Plaintiff, v. LUFTHANSA AIRLINES, Defendant.
CourtU.S. District Court — District of Massachusetts

Benneth O. Amadi, Amadi Law Office, Lynn, MA, for Plaintiff.

Steven E. Arnold, SA, P.C., Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO REMAND

SAYLOR, District Judge

This is a lawsuit arising out of an airline's refusal to board a passenger. Plaintiff Bright Irabor has filed suit against defendant Lufthansa Airlines based on a variety of state-law claims.

In March 2018, Irabor bought a Lufthansa ticket for a round trip from Boston to Lagos, Nigeria, through a travel agent, Liliya Pivovarov. At the time, Irabor's United States permanent resident card had expired. When she sold him the ticket, Pivovarov allegedly told Irabor that he could make the trip using a notice of receipt of a request for extension of a permanent resident card from U.S. immigration authorities.

In April 2018, because of a strike by Lufthansa personnel, Lufthansa arranged for Irabor to fly to Nigeria on a United Airlines flight instead. He traveled to Nigeria without incident. However, on his return trip to Boston, Lufthansa personnel in Nigeria refused to permit him to board his flight because they said that his travel documents were not acceptable.

Irabor originally filed a complaint against both Lufthansa and Pivovarov in Essex County Superior Court on March 13, 2019. On September 10, 2019, the Superior Court dismissed Pivovarov from the case for lack of personal jurisdiction.

On October 8, 2019, Lufthansa removed the case to this Court on the grounds of diversity jurisdiction and federal-question jurisdiction. Irabor has moved to remand the case to the Superior Court, and also seeks his costs and attorney's fees incurred in connection with the motion.

For the following reasons, the motion will be granted as to the remand to state court, but the request for costs and attorney's fees will be denied.

I. Background
A. Factual Background

The facts are stated as set forth in the complaint and the notice of removal.

Bright U. Irabor is a resident of North Andover, Massachusetts. (Compl. ¶ 1). Lufthansa Airlines is an airline that services Boston Logan International Airport. (See Compl. ¶ 2; Notice of Removal ¶ 3). Liliya Pivovarov is a travel agent with offices in Lynn, Massachusetts. (Compl. ¶ 3).

On March 5, 2018, Irabor bought a Lufthansa ticket for a round trip from Boston to Lagos, Nigeria, through Pivovarov. (Compl. ¶ 5). At the time he bought the ticket, his U.S. permanent resident card had expired. He had applied for an extension, however, and had received a notice from U.S. Citizenship and Immigration Services acknowledging receipt of his application. (See id. ¶ 6).1

Irabor asked Pivovarov if Lufthansa would allow him to travel between the United States and Nigeria using those documents. (Id. ¶ 5). According to the complaint, Pivovarov said yes. (Id. ). Irabor then bought round-trip tickets for a flight leaving on April 9, 2018, and returning on April 22, 2018. (See id. ¶¶ 7, 8).

On April 9, 2018, Lufthansa airline personnel were on strike. Lufthansa arranged for Irabor to fly to Nigeria aboard a United Airlines flight. (Id. ¶ 7). He traveled to Nigeria without incident. (Id. ).

On April 22, 2018, Irabor tried to board his return flight at Muritala International Airport in Lagos, Nigeria. (Id. ¶ 8). According to the complaint, Lufthansa personnel refused to permit him to board the flight because they said that his travel documents were not acceptable. (Id. ). Unable to board his flight as planned, he booked a hotel for the night and bought a return ticket to the United States from Air France. (Id. ¶¶ 9-10). Because he did not have enough money to pay for the ticket, he was forced to borrow money from a private lender in Lagos. (Id. ).

B. Procedural Background

Irabor filed this action in Essex County Superior Court on March 13, 2019. The complaint alleges that defendants Lufthansa Airlines and Liliya Pivovarov are liable under Massachusetts law for conversion (Count 1); breach of contract (Count 2); breach of the implied covenant of good faith and fair dealing (Count 3); unfair methods of competition and/or unfair or deceptive acts or practices in violation of Mass. Gen. Laws ch. 93A, § 2 (Count 4); negligent misrepresentation (Count 5); and intentional or reckless infliction of emotional distress (Count 6).

On June 13, 2019, Liliya Pivovarov moved to dismiss the complaint against her for insufficiency of service of process and lack of personal jurisdiction. On September 10, 2019, the Superior Court granted the motion based on lack of personal jurisdiction and dismissed the complaint against her without prejudice. However, the court gave Irabor 30 days to refile the complaint against Pivovarov and to effect service.

On October 8, 2019, Lufthansa removed to this Court on the grounds of both diversity and federal-question jurisdiction. By that time, Irabor had not refiled the complaint against Pivovarov and had not served her.

II. Legal Standard

Under 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."

A case removed from state court must be remanded "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c). The removing defendant bears the burden of demonstrating the subject-matter jurisdiction of the federal court. Danca v. Private Health Care Sys., Inc. , 185 F.3d 1, 4 (1st Cir. 1999). "The removal statute is strictly construed, and any doubts about the propriety of removal are resolved in favor of remand to the state forum." In re Fresenius Granuflo/Naturalyte Dialysate Prods. Liab. Litig. , 76 F. Supp. 3d 321, 327 (D. Mass. 2015).

A. Diversity Jurisdiction

As set forth in 28 U.S.C. § 1332(a)(1), diversity jurisdiction exists only "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States." "This statutory grant requires complete diversity between the plaintiffs and defendants in an action." Picciotto v. Continental Cas. Co. , 512 F.3d 9, 17 (1st Cir. 2008) (emphasis omitted) (citing Strawbridge v. Curtiss , 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806) ; Halleran v. Hoffman , 966 F.2d 45, 47 (1st Cir. 1992) ).

1. Amount in Controversy

Under 28 U.S.C. 1446(c)(2), the amount in controversy is the amount claimed in the plaintiff's initial complaint. If that complaint "demands monetary relief of a stated sum, that sum ... is ‘deemed to be the amount in controversy.’ " Dart Cherokee Basin Operating Co. v. Owens , 574 U.S. 81, 84, 135 S.Ct. 547, 190 L.Ed.2d 495 (2014). If that sum exceeds $75,000, then the court assumes that the amount-in-controversy requirement is satisfied unless it is shown to a "legal certainty" that amount cannot be recovered. St. Paul Mercury Indem. Co. v. Red Cab Co. , 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938) ; see, e.g. , Archila v. Integon Nat'l Ins. Co. , 2017 WL 5633103 (D.R.I. Nov. 21, 2017).

Here, the complaint itself does not allege a specific amount of damages. However, the civil cover sheet to the original complaint specifies damages of $77,500–$31,750 for plaintiff's tort claims and $45,750 for his contract claims. (Civil Action Cover Sheet (Dkt. No. 7 at 17)). "To be sure, civil cover sheets are inherently imprecise, and the extent of a civil cover sheet's role in determining the amount in controversy is not settled in this Circuit." Toro v. CSX Intermodal Terminals, Inc. , 199 F. Supp. 3d 320, 324 (D. Mass. 2016) ; see also Williams v. Toys "R" Us – Del., Inc. , 2016 WL 5723588, at *1-2 (D. Mass. Sep. 28, 2016) ("[A] civil cover sheet may provide evidence of the amount in controversy, [but] is not in itself dispositive.") (internal quotations omitted). For present purposes, the Court will assume that defendant has satisfied the amount-in-controversy requirement by reference to the civil cover sheet.

2. Diversity of Citizenship

There is diversity of citizenship between plaintiff, who appears to be domiciled in Massachusetts, and Lufthansa, which is almost certainly a citizen of Germany. (See Compl. ¶ 1; Notice of Removal ¶ 3).2 However, Liliya Pivovarov, who was a defendant in this case when it was filed, appears to be a citizen of Massachusetts.

Pivovarov's citizenship matters for the purposes of diversity jurisdiction despite her dismissal from the case. That is because of the so-called "voluntary-involuntary" doctrine, which provides that "when a case is not removable at the time it is filed, but becomes facially removable at a later date because of the dismissal of a non-diverse defendant, removal is authorized only if diversity results from a voluntary act of the plaintiff." Five Star Quality Care, Inc. v. Sunrise Senior Living, Inc. , 2009 WL 1456303, at *1 (D. Mass. May 22, 2009) ; see also Self v. General Motors Corp. , 588 F.2d 655, 658-59 (9th Cir. 1978). In other words, if the non-diverse defendant "was dismissed from the case by the voluntary act of the plaintiff, the case is removable, but if not, then the case is not removable because the dismissal is still subject to review on appeal." Sparrock v. Hartford Life & Accident Ins. Co. , 2015 WL 13298388, at *2 (D. Mass. Mar. 27, 2015) (citing Universal Truck & Equip. Co. v. Southworth-Milton, Inc. , 765 F.3d 103, 108 (1st Cir. 2014) ), rept. and recomm. adopted , 2015 WL 13427502 (D. Mass. Apr. 24, 2015).

Here, Pivovarov's dismissal from the case did not result from a voluntary action by plaintiff. She was dismissed from the case on her own motion for lack of personal jurisdiction. Rather than consent to that dismissal, plain...

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