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February 12, 2002


The opinion of the court was delivered by: Bucklo, District Judge.



Dr. Fournier's story is long and complicated, but the essence is this: on April 25, 2000, he flew on Lufthansa from Chicago, Illinois, to Athens, Greece, connecting in Frankfurt, Germany. When he checked in at O'Hare Airport in Chicago, he declared to a Lufthansa agent that his checked luggage contained two handguns*fn1 in locked metal boxes, in compliance with United States regulations governing the transportation of firearms. Lufthansa lost his luggage in transit, and when he arrived in Athens, a Lufthansa agent told him that he would be contacted when his luggage was found, and he could then return to the airport and go through customs. Dr. Fournier left the airport without his luggage and did not go through customs. When Dr. Fournier's luggage arrived, a Lufthansa agent brought it through customs without Dr. Fournier's consent, and without declaring the guns.

A Lufthansa agent called Dr. Fournier and asked him to come back to the airport to identify some unattended luggage without tags to see if it was his. When he arrived at the airport, he was met by Lufthansa agents and Greek customs officials. His luggage, with the identification tags attached, was next to the group of people waiting for him. Although he immediately declared that his luggage contained two guns, he was arrested by the Greek authorities. The Lufthansa agent told the customs officer that Lufthansa knew nothing about the existence of the guns, and refused to call the Lufthansa desk in Chicago to confirm that Dr. Fournier had in fact declared the guns in his luggage to the Lufthansa agent at checkin. As a result, Dr. Fournier was convicted in the Greek courts of gun-smuggling, and he was sentenced to sixteen months imprisonment. He returned to the United States on May 10, 2000, and he is appealing his conviction. See Notice of Removal ¶ 7.

Dr. Fournier brings this suit against Lufthansa for negligence, false imprisonment, intentional infliction of emotional distress, and a number of other causes of action under Illinois law. Lufthansa removed the case to federal court, asserting federal question jurisdiction under 28 U.S.C. § 1331 and 1337 on the grounds that Dr. Fournier's claims arise under a treaty commonly known as the Warsaw Convention,*fn2 regulations promulgated under the Federal Aviation Act, 49 U.S.C. § 40101 et seq., the Airline Deregulation Act of 1978, 49 U.S.C. § 41713 (b) ("Deregulation Act"), and the federal common law governing the transportation of baggage. Dr. Fournier moves to remand the case to Illinois state court because the complaint does not state a federal cause of action on its face and because none of the federal laws cited by Lufthansa "completely preempt" his state law claims.


A case filed in state court may be removed to federal court if it is one over which the federal district courts have original jurisdiction. 28 U.S.C. § 1441 (a). "The party seeking removal has the burden of establishing the jurisdiction of the district court." In re Application of County Collector of County of Winnebago, Ill., 96 F.3d 890, 895 (7th Cir. 1996). The removal statute should be construed narrowly, and any doubts about jurisdiction should be resolved in favor of remand. Doe v. Allied-Signal, 985 F.2d 908, 911 (7th Cir. 1993). If any of Dr. Fournier's claims are removable, the entire case may be removed on the basis of supplemental jurisdiction. See 28 U.S.C. § 1367; see also Franchise Tax Rd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 13, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (predating § 1367 and noting probable jurisdiction on the basis of 28 U.S.C. § 1441 (c)).

Where the basis of removal is federal question jurisdiction, the plaintiffs cause of action must "aris[e] under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "[A] cause of action arises under federal law only when the plaintiffs 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). "A defense is not part of a plaintiffs properly pleaded statement of his or her claim," so "`a case may not be removed to federal court on the basis of a federal defense, . . . even if the defense is anticipated in the plaintiffs complaint, and even if both parties admit that the defense is the only question truly at issue in the case.'" Rivet v. Regions Bank of La., 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998) (citing Franchise Tax Rd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 14, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). This is commonly referred to as the "wellpleaded complaint rule." Id.

A. Federal Statutes and Regulations

Two corollaries to the well-pleaded complaint rule are relevant here. The first, the "artful pleading doctrine," "provides that a plaintiff may not frame his action under state law to omit federal questions that are essential to recovery." Burda v. M. Ecker Co., 954 F.2d 434, 440 n. 8 (7th Cir. 1992). The Supreme Court has stated that a claim may "arise under" federal law, although the plaintiff pleads it as a state law claim, if the plaintiffs "right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties." Franchise Tax Bd., 463 U.S. at 13, 103 S.Ct. 2841. But the right or immunity created by the Constitution or federal law must "be an element, and an essential one, of the plaintiffs cause of action," not merely an anticipated defense. Id. at 10, 103 S.Ct. 2841 (citing Gully v. First Nat'l Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936)).

Lufthansa argues that a federal question appears on the face of Dr. Fournier's complaint because, in his claim for negligence, he alleges that Lufthansa failed to fully inform him of the procedures required for transporting firearms, including FAA regulations. Compl. ¶ 56(a). He also alleges that Lufthansa failed to maintain a record-keeping procedure to inform its employees in Frankfurt and Athens that he had declared the presence of the guns, Id. ¶¶ 56(b)-(c), and that it failed to administer procedures to ensure that baggage containing firearms is x-rayed, completely labeled and accounted for, id. ¶ 56(g). Lufthansa adverts to a number of Federal Aviation Administration regulations that relate to the transportation of firearms, 14 C.F.R. § 108.11 (d), 108.17, the use of x-ray systems, id. § 129.27, and the requirement to adopt and use a security program, id. § 129.25(e), and argues that, one way or another, I will have to examine FAA regulations to determine whether it is liable. I might consider the regulations as a defense to a duty under state law, but an anticipated defense cannot serve as the basis for removal. See Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 129, 94 S.Ct. 1002, 39 L.Ed.2d 209 (1974) ("To the extent that the [federal statutes] may bear on this action . . ., it is clear that their effect is no more than to overcome a potential defense to the action.").

I might also have to consider whether a violation of the regulations forms part of Dr. Fournier's state causes of action. See Abbasi v. Paraskevoulakos, 187 Ill.2d 386, 240 Ill.Dec. 700, 718 N.E.2d 181, 185 (1999) ("[A] violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence."). But the Supreme Court has established a bright-line rule that "the congressional determination that there should be no federal remedy for the violation of this federal statute is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently `substantial' to confer federal-question jurisdiction." Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 814, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986).*fn3 Lufthansa does not argue that there is a private right of action under the Federal Aviation Act or under FAA regulations, nor have courts addressing the question found an implied right of action. See In re Mexico City Aircrash of Oct. 31, 1979, 708 F.2d 400, 408 & n. 12 (9th Cir. 1983) (holding "that the Federal Aviation Act does not contain an implied private right of action" and citing cases); see also Statland v. American Airlines, Inc., 998 F.2d 539, 540 (7th Cir. 1993) (declining to find private right of action under ticketing practices provision of Federal Aviation Act). Nor is there a private right of action under the Deregulation Act. Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 925 (5th Cir. 1997). Thus, although a court may have to consider and interpret the Deregulation Act, the Federal Aviation Act or certain FAA regulations to resolve Dr. Fournier's state claims, the federal questions involved are not "substantial" in the sense that they confer federal jurisdiction.

The second corollary is so-called "complete preemption." "Federal preemption is ordinarily a federal defense to the plaintiffs suit. As a defense, it does not appear on the face of a well-pleaded complaint, and, therefore, does not authorize removal to federal court." Taylor, 481 U.S. at 63, 107 S.Ct. 1542 (citations omitted). However, "Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Id. at 63-64, 107 S.Ct. 1542. "Unfortunately `complete preemption' is a misnomer, having nothing to do with preemption and everything to do with federal occupation of a field. The name misleads because, when federal law occupies the field (as in labor law), every claim arises under federal law." Lehmann v. Brown, 230 F.3d 916, 919 (7th Cir. 2000). "Ordinary preemption," sometimes called "conflict preemption," is a defense on the merits and goes to the nature of the remedy available; so-called "complete preemption" is a doctrine of original jurisdiction and "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." Sam L. Majors Jewelers, 117 F.3d at 925 (citing Taylor, 481 U.S. at 65-66, 107 S.Ct. 1542); see also Corporate Travel Consultants, Inc. v. United Airlines, ...

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