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
Corporate Travel Consultants, Inc. v. United Airlines, Inc.,
799 F. Supp. 58, 61 (N.D.Ill. 1992) (Grady, J.). Complete preemption is
"extraordinary"; the Supreme Court has found complete preemption only
under § 301 of the LMRA, § 514(a) of ERISA, and suits challenging
ownership of Native American tribal land. See Caterpillar Inc. v.
Williams, 482 U.S. 386, 393 n. 8, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987).
In order to defeat the motion to remand, Lufthansa must show both
preemption and congressional intent to allow removal of preempted state
claims. The Deregulation Act preempts any state law relating to the
rates, routes, or services of air carriers. 49 U.S.C. § 41713(b)(4)(A).
Although the Seventh Circuit has not addressed whether removal
is proper based on preemption by the Deregulation Act,*fn4 most courts
that have considered the text and legislative history of the Deregulation
Act have concluded that Congress did not intend to create "exclusive
[federal] subject matter jurisdiction over the preemption defenses to
state law claims against air carriers." Sam L. Majors, 117 F.3d at 925.
See also Musson Theatrical, Inc. v. Federal Exp. Corp., 89 F.3d 1244,
1253 (6th Cir. 1996); Corporate Travel Consultants, Inc., 799 F. Supp. at
62-63. One court has found complete preemption by the Deregulation Act.
See Wayne v. DHL Worldwide Express, No. CV 00-7967 CBM, 27 Av. L. Rep.
(CCH) 18, 439 (C.D.Cal. 2000). There the court inferred from the broad
scope of the Act that Congress must have intended to provide a federal
forum, id. at 18, 443, but the scope of the Act relates only to whether
the Deregulation Act preempts, not whether Congress intended to provide a
federal forum for preempted claims. The court justified its holding by
stating that Congress' intent to deregulate the airline industry would be
frustrated if airlines could be "subjected to various, possibly
conflicting, state regulations." Id. However, a fear of non-uniform
interpretation of federal statutes by state courts does not justify
removal; the United States Supreme Court may review a state denial of a
federal preemption defense. See Franchise Tax Bd., 463 U.S. at 12 n. 12,
103 S.Ct. 2841. Lufthansa has not directed me to any language in the
Deregulation Act or its legislative history to persuade me that Congress
intended to create federal question jurisdiction over state claims
preempted by the Deregulation Act.
Lufthansa argues that the Federal Aviation Administration has an
overwhelming interest in regulating airline safety, and that Dr.
Fournier's claims are inherently federal because they involve the
transportation of a firearm, a matter governed by the Federal Aviation
Act. See 14 C.F.R. § 108.11 (d), 108.17. But Dr. Fournier brought his
claims under Illinois law, and the Seventh Circuit has recently held
that, although Congress intended to provide a federal defense to state
actions with the
Federal Aviation Act, it did not intend to completely displace state law
and create a federal forum. See Vorhees v. Naper Aero Club, Inc.,
272 F.3d 398, 403 (7th Cir. 2001). See also Schmeling v. NORDAM,
97 F.3d 1336, 1344 (10th Cir. 1996) ("Because Congress has neither
expressly nor impliedly provided [the plaintiff] with a federal cause of
action to enforce the FAA [regulations], we follow the `prudent course'
. . . and hold that [the plaintiff's suit is not subject to removal under
the complete preemption doctrine."). Because I find that Congress did not
intend to confer federal jurisdiction based on a defense of preemption by
the Deregulation Act or the Federal Aviation Act, I need not consider
whether Dr. Fournier's claims are actually preempted by those statutes.
B. The Warsaw Convention
When it applies, the Warsaw Convention preempts state causes of
action. See El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 161, 119
S.Ct. 662, 142 L.Ed.2d 576 (1999). Unlike the LMRA, ERISA and cases
involving tribal lands, see Caterpillar, Inc., 482 U.S. at 393 n. 8, 107
S.Ct. 2425, the Supreme Court has not expressly stated that the Warsaw
Convention completely preempts as a jurisdictional matter in the sense
that it permits removal to federal court. Nor has the Seventh Circuit
squarely addressed "complete preemption" and the Warsaw Convention,
although it stated in passing that "[i]f the Warsaw Convention applies,
there is federal jurisdiction, otherwise not." Atlantic Mut. Ins. Co. v.
Northwest Airlines, Inc., 24 F.3d 958, 959 (7th Cir. 1994). However, the
issue in that case was whether there was appellate jurisdiction over the
denial of a motion to intervene, not whether there was legislative intent
to allow removal on the basis of preemption by the Warsaw Convention. The
Eighth Circuit has held that the Warsaw Convention "completely preempts"
state law claims, but it used the phrase to describe ordinary preemption
as a substantive defense to the state claims in that case. Husmann v.
Trans World Airlines, Inc., 169 F.3d 1151, 1153 (8th Cir. 1999). In a
footnote, the court relied on the Supreme Court's holding in El Al, that
the Warsaw Convention provides the exclusive remedy when it applies, to
uphold removal under the wellpleaded complaint rule. Id. at 1153 n. 5.
Cf. Rogers v. American Airlines, Inc., No. CIV. A. 3:01CV1127-M, 2001 WL
1343631, at *5-7 (N.D.Tex. Oct.29, 2001) (criticizing Husmaun and finding
that Warsaw Convention does not meet Fifth Circuit's strict test for
"complete preemption" removal jurisdiction because there is no evidence
of congressional intent to create a federal forum).
I need not reach the issue of congressional intent, however, because
even if there was an intent to create a federal forum, Lufthansa must
show that the claims are in fact preempted. See Corporate Travel
Cousultants, 799 F. Supp. at 61 (removing defendant must show both
ordinary preemption and complete preemption to survive motion to
remand). "[T]he Convention's preemptive effect on local law extends no
further than the Convention's own substantive scope." El Al, 525 U.S. at
172, 119 S.Ct. 662. In El Al, the Supreme Court held that, although the
plaintiff could not state a claim under Article 17, her claims were within
the "substantive scope" of Article 17, and therefore were preempted.
Article 17 establishes an airline carrier's liability
for damage sustained in the event of the death or
wounding of a passenger or any other bodily injury
suffered by a passenger, if the accident which caused
the damage so sustained took place on board the
aircraft or in the course of any of the operations of
embarking or disembarking.
Id. at 162, 119 S.Ct. 662. In El Al, the parties agreed that the claims
were within the scope of the Convention because the plaintiffs emotional
injuries occurred in the course of embarking, when the plaintiff was
illegally searched in the course of boarding. Id. at 166-67, 119 S.Ct.