The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
Dr. John Fournier, an Illinois citizen, sued Lufthansa Airlines and two
Illinois agents (collectively, "Lufthansa") in Illinois state court for,
among other things, negligence, infliction of emotional distress, breach
of warranty, defamation, and false imprisonment arising out of an air
travel debacle. Lufthansa removed the case pursuant to
28 U.S.C. § 1441, and Dr. Fournier moves to remand. I grant the
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
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
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