The opinion of the court was delivered by: Alesia, District Judge.
MEMORANDUM OPINION AND ORDER
The court is currently presented with two motions: (1)
plaintiff Charles Vorhees' motion to remand this case to the
Circuit Court of Illinois, and (2) defendants Naper Aero Club and
certain individual defendants' motion to dismiss plaintiff's
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
For the following reasons, the court denies plaintiff's motion to
remand and grants defendants' motion to dismiss.
Plaintiff Charles M. Vorhees ("plaintiff") is the executor of
the estate of Helen Brach. The Brach estate owns an undivided
half-interest in land located in DuPage County — between
Naperville and Aurora — which has been used traditionally as a
farm (the "farm"). As executor of the Brach estate, plaintiff is
the successor-in-interest to the farm. Defendant Naper Aero Club
(the "airport") is a privately owned airport located in DuPage
County, near the cities of Naperville and Aurora. It is used
exclusively by its members. The individual defendants are owners
or members of the airport and, as such, use the airport's
facilities to fly private airplanes. The airport has two runways
— one paved and the other unpaved. At issue in this litigation is
the paved runway located at the northern end of the airport. The
paved runway's northern end abuts the farm's southern boundary.
Because the runway is so close to the farm, aircraft taking off
from or landing at the paved runway necessarily travel across the
farm at low altitudes.
Recently, the area surrounding the farm has seen great
commercial and residential development. As a result of the
defendants' flying their aircraft at low-altitudes, plaintiff
claims that he is prevented from using and/or maximizing the full
value of his property. With this current lawsuit, plaintiff seeks
to enjoin defendants from using the northern runway — and,
therefore, from flying over his property at low-altitudes.
Plaintiff claims that this injunction is necessary in order for
him to obtain full enjoyment of his property.
To understand the current case, however, it is necessary to
discuss the history between the plaintiff and Naper Aero. In
1996, plaintiff brought suit against the Secretary of the
Illinois Department of Transportation, the City of Naperville,
the City of Aurora, the County of DuPage, and Naper Aero Club.
See Vorhees v. Brown, No. 95 C 3812, 1996 WL 139393 (N.D.Ill.
Mar.26, 1996) (dismissing plaintiff's claim against defendant
City of Naperville); Vorhees v. Brown, No. 95 C 3812, 1996 WL
568775 (N.D.Ill. Sept.27, 1996) (dismissing plaintiff's complaint
against all remaining defendants). That 1996 lawsuit was based
upon an amendment to the Illinois Aeronautics Act which states in
pertinent part: "No person may create or construct any airport
hazard which obstructs a restricted landing area or residential
airport." 620 ILL.COMP.STAT. 5/49.1. In the 1996 suit, plaintiff
sought a declaratory judgment, arguing that the amendment at
issue was a "taking." Specifically, the plaintiff argued
that the Illinois amendment prevented him from realizing the full
value of his property because it prevented him from building any
structure near the southern boundary of the farm. The district
court dismissed plaintiff's case, ruling that — because plaintiff
had failed to show that he had actual plans to improve his land
or construct a building which he was prevented from executing —
there was no "case or controversy" and the court, therefore,
lacked subject matter jurisdiction. In an unpublished opinion,
the Seventh Circuit found that no taking had occurred and
affirmed the district court's dismissal. Because there was no
subject matter jurisdiction over the 1996 action, the courts did
not address the merits of plaintiff's claim.
In the current case, plaintiff brought suit in the Circuit
Court of DuPage County, seeking an injunction against defendants
pursuant to 735 ILL.COMP.STAT. 5/11-101 et seq. Specifically,
plaintiff seeks to enjoin defendants from using the northern-most
runway of the airport. The defendants removed the circuit court
action to this court, claiming that the plaintiff's claim is
preempted by the Federal Aviation Act ("FAA"), 49 U.S.C. § 40101
The plaintiff now seeks to remand the case to state court
arguing that (1) the complaint is brought under state law and (2)
state's have the authority to regulate land use, which is the
basis for his lawsuit. Also, the defendants move to dismiss the
case for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6), arguing that (1) plaintiff seeks to
regulate air traffic and (2) such a regulation is preempted by
the FAA. The court address both issues.
A. Removal to Federal Court
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. . . ."
28 U.S.C. § 1441(a). In this case, defendants argue that removal is
proper because there is a federal question under the FAA and,
therefore, the case arises "under the Constitution, laws, or
treaties of the United States." 28 U.S.C. § 1331. Plaintiff now
seeks to remand the case, claiming that his cause of action is
based upon state law. Specifically, plaintiff argues that,
because states have the authority to regulate land use, they have
the authority to enforce an injunction against the defendants.
Ordinarily, the plaintiff's well-pleaded complaint determines
whether there is a federal question. "It is long settled that a
cause of action arises under federal law only when the
plaintiff's well-pleaded complaint raises issues of federal law."
Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107
S.Ct. 1542, 95 L.Ed.2d 55 (1987). Defendants cannot assert a
federal question as a defense to plaintiff's complaint to
establish jurisdiction for removal to federal court. Id.
However, the doctrine of complete pre-emption is an exception to
the well-pleaded complaint rule. Ready Transp., Inc. v. Best
Foam Fabricators, Inc., 919 F. Supp. 310, 312 (N.D.Ill. 1996). If
the present claims are completely preempted, then plaintiff's
current state-law claim is properly characterized as one that
arises under federal law, thus creating federal question
jurisdiction and making removal proper. See Ceres Terminals,
Inc. v. Indus. Comm'n, 53 F.3d 183, 185 (7th Cir. 1995). Section
40103 of the FAA completely preempts all regulation of air
traffic and routes. 49 U.S.C. § 40103. Thus, the key issue is
whether the plaintiff's claim is within the scope of § 40103 of
the FAA and is, therefore, completely preempted.
In his complaint, plaintiff seeks to enjoin the airport and its
members from using the airport's northern runway. Although
plaintiff does not specifically allege a legal basis for an
injunction, plaintiff does claim that, because the northern
runway is so close to the southern boundary of the farm, the
low-flight pattern of the aircraft results in a trespass upon his
property which prevents plaintiff from realizing the full value
of the farm.*fn1 Also, in his motion to remand, plaintiff
contends that his complaint alleges a state-law claim concerning
property rights and trespass. Plaintiff seeks to avoid complete
preemption by arguing that he is seeking to enjoin the defendants
from using only one runway and, ...