United States District Court, N.D. Illinois, Eastern Division
ELIZABETH BROKAW, as Personal, Representative of the Estate of JAMIE L. BROKAW, deceased, et al., Plaintiffs,
THE BOEING COMPANY, a corporation, et al., Defendants
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Elizabeth E. Brokaw, as Personal Representative of the estate
of Jamie L. Brokaw, deceased, Plaintiff: Donald J. Nolan,
LEAD ATTORNEY, Thomas Patrick Routh, Welson Tan Chu, Nolan
Law Group, Chicago, IL; Michael P. Connelly, Rock Fusco &
Connelly, LLC, Chicago, IL.
Thompson, Plaintiff, Pro se.
Virdi, Plaintiff, Pro se.
D Watts, Plaintiff, Pro se.
Hagan, Plaintiff, Pro se.
Coffey, Plaintiff, Pro se.
Robin D. Hasler, William J. Hasler, Plaintiffs: David Ian
Katzman, Katzman, Lampert & McClune, Troy, MI.
National Air Cargo, Inc., a corporation, Defendant: Monica
Fazekas, Leahy Eisenberg and Fraenkel, Ltd., Chicago, IL;
Roland Scott Keske, Leahy, Eisenberg & Fraenkel, Chicago, IL.
Boeing Company, a corporation, Defendant: Michael B Slade,
LEAD ATTORNEY, Kirkland & Ellis LLP, Chicago, IL.
Manufacturing, Inc., a corporation, individually and doing
business as Telair International, Inc., AAR International,
Inc., a corporation, individually and doing business as
Telair International, Inc., Telair International, GMBH, a
limited liability company, Defendants: Christine Marie
Niemczyk, LEAD ATTORNEY, Gina M Diomedi, Adler Murphy &
McQuillen LLP, Chicago, IL; Mark Samuel Susina, LEAD
ATTORNEY, Adler, Murphy & McQuillen, Chicago, IL.
OPINION AND ORDER
n Castillo, Chief United States District Judge.
plaintiffs in these five consolidated cases--Elizabeth
Brokaw, as personal representative of the estate of Jamie L.
Brokaw, William Thompson, as personal representative of the
estate of Jeremy P. Lipka, Rajnit Virdi, as personal
representative of the estate of Rinku Summan, Janice D. Watts
and Yelana Hagan, as co-administratrix of the estate of
Timothy Mark Garrett, and Gail L. Coffey, as personal
representative of the estate of Gary Stockdale (collectively
" Plaintiffs" )--filed separate suits in the
Circuit Court of Cook County, Illinois, against The Boeing
Company, AAR Manufacturing, Inc. d/b/a Telair International,
Inc., Telair International, GMbH, and National Air Cargo,
Inc. (" NAC" ) (collectively "
Defendants" ). The suits arise from a 2013 airplane
crash in Afghanistan in which Plaintiffs' family members
were killed. (R. 1-1, State Compl.) NAC removed the
cases to this Court, asserting federal officer jurisdiction
under 28 U.S.C. § 1442(a)(1). (R. 1, Notice of Removal.)
Before the Court is Plaintiffs' joint motion to remand
the cases to state court. (R. 23, Pls.' Mot. to Remand.)
For the reasons stated below, the motion is granted.
April 29, 2013, a Boeing 747-400 airplane operated as
National Airlines Flight 102 crashed shortly after taking off
from Bagram Air Base in Afghanistan. (R. 24-3, State Compl.
at 2-5.) All seven crewmembers aboard were killed, including
the five individuals represented in these actions. (R. 24-4,
National Transportation Safety Board (" NTSB" )
Operational Factors Group Chairman's Factual Report,
Accident Docket DCA13MA081 (" NTSB Factual Report"
) at 5, 9.) The plane had been carrying military cargo
pursuant to a contract with the U.S. government, including
five Mine Resistant Ambush Protected (" MRAP" )
armored vehicles that were being transported to Dubai. (R.
27-1, Gumbs Aff. ¶ ¶ 3-5.) During the flight, some
cargo allegedly broke loose from its holds and penetrated a
pressure bulkhead, causing the airplane to crash. (R. 24-3,
State Compl. at 31.)
102 originated out of Chateauroux, France; the flight plan
was to stop at Camp Bastion and load the plane with
cargo, fly to Bagram Air Base, refuel, and continue on to
Dubai World Center International Airport. (R. 24-4, NTSB
Factual Report at 7.) Camp Bastion and Bagram Air Base are
both military air bases with no commercial operations other
than those supporting U.S. Department of Defense ("
DOD" ) or North Atlantic Treaty Organization ("
NATO" ) operations. (R. 27-1, Gumbs Aff. ¶ 4.)
Flight 102 was undertaken pursuant to a "
multi-modal"  contract between National Air Cargo
Group, Inc., d/b/a/ National Airlines and the U.S.
Transportation Command (" USTRANSCOM" ), a
governmental entity that provides support to the U.S.
military, defense agencies, and other governmental
organizations. (R. 27-1, Gumbs Aff. ¶ 5.) National
Airlines, in turn, contracted with NAC to perform the cargo
operations for Flight 102. (R. 24-4, NTSB Factual Report at
7, 25-26.) NAC, an " affiliate" of National
Airlines, is a cargo company that " provides airfreight
broker services to the U.S. military, and to customers
located in the United States and abroad, to domestic and
international destinations." (R. 27, NAC's Resp. at
3; R. 24-9, U.S. Dep't of Transp. Application at 6-7.)
of the size of the armored vehicles, NAC chose to transport
them using the following process: constructing pallets out of
metal and plywood; securing the vehicles to the pallets with
chains; loading the palleted vehicles onto the plane; and
securing the palleted vehicles to the main deck of the
aircraft with straps. (R. 24-10, NTSB Interview with Alfredo
Gumbs (" Gumbs Interview" ) at 30-31; R. 24-13,
NTSB Interview with Ralph Brown (" Brown Interview"
) at 8-9; R. 24-14, NTSB Interview with Charles Dsouza
(" Dsouza Interview" ) at 11-12.) This loading
procedure was developed by employees of NAC, and it was
employees of NAC who actually built the pallets for Flight
102. (R. 24-10, Gumbs Interview at 31; R. 24-13, Brown
Interview at 8; R. 24-14, Dsouza Interview at 12.)
the pallets were constructed for Flight 102, employees of NAC
loaded the vehicles onto the pallets and secured them with
chains. (R. 24-13, Brown Interview at 8-9.) Three of the
vehicles were larger than the others, and NAC was unable to
load them with an ordinary forklift. (R. 24-14, Dsouza
Interview at 11-12.) After loading all the cargo that it
could with its own equipment, NAC obtained assistance from
the U.S. Air Force, which brought its special " 60K
loader" to Camp Bastion to assist NAC ground crew in
lifting the remaining vehicles onto the plane. ( Id.
at 12; R. 24-13, Brown Interview at 8.) After all the
palleted vehicles were loaded onto the plane, NAC employees
secured the pallets to the main deck using cargo straps. (R.
24-10, Brown Interview at 8-9.) Some of the straps were
connected to the plane's seat tracks. (R. 24-15, NTSB
Interview with Dale Mitchell (" Mitchell Interview"
) at 61.) An employee of NAC performed a walk-through of the
inspect the cargo after it was loaded. (R. 24-13, Brown
Interview at 10.) The chains and straps used to secure the
vehicles were inspected by another employee of NAC, who was
present at Camp Bastion on the date of the crash. (
Id. ) After the plane was loaded, it departed to
Bagram Air Base. (R. 24-4, NTSB Factual Report at 7.) The
flight represented the first time National Airlines had
transported 18-ton military vehicles. ( Id. )
arrival at Bagram Air Base, the plane experienced a
brake-overheat warning. ( Id. ) According to the
recorded flight information, the crew ran a checklist to
address the brake temperature issue. ( Id. at 8.)
The plane was also refueled. ( Id. ) During
refueling, NAC ground crew spoke with an aircraft crewmember
at the entrance of the main deck. ( Id. ) According
to the recorded data, while the airplane was still on the
ramp, the captain was made aware of a broken strap found by
one of the other crewmembers, and the cockpit crew had a
discussion about a possible shift of the cargo load during
landing. ( Id. ) There was further discussion about
re-securing the load prior to departure. ( Id. ) At
10:44 a.m., the plane taxied out to the runway. (
Id. ) Shortly after take-off, the plane appeared to
stall, turned to the right, and then descended to the ground
just beyond the runway. (R. 24-4, NTSB Factual Report at 9.)
NTSB conducted an investigation into the crash of Flight
102. (R. 24-4, NTSB Factual Report at 5-6.)
The NTSB only investigates civil aircraft accidents, not
flights operated by or on behalf of the U.S. government.
See 49 U.S.C. § 1132; Convention on
International Civil Aviation, Dec. 7, 1944, Art. 3(a)-(b), 61
April 2015, Plaintiffs filed suit against Defendants in
Illinois state court asserting negligence, product liability,
wrongful death, and survival claims based on Defendants'
improper design and use of the airplane on the date of the
crash. (R. 24-3, State Compl.) As to NAC, Plaintiffs allege
(a) negligently and carelessly failed to safely and
adequately secure the cargo, including the MRAP vehicles, for
transportation by air aboard the said airplane;
(b) negligently and carelessly loaded five MRAP vehicles on
the said airplane for a single flight when such
transportation by air could not be done safely;
(c) negligently and carelessly failed to provide safe and
adequate pallets or other surface on which to place MRAP
vehicles to be transported aboard the said airplane;
(d) negligently and carelessly failed to provide safe and
adequate straps for securing cargo being transported on the
(e) negligently and carelessly provided improper and unsafe
instructions and directions to National Airlines regarding
the preparation, securing, and transportation of the MRAP
vehicles on the said airplane;
(f) negligently and carelessly failed to properly and
adequately train personnel
in the safe and proper preparation, securing, and
transportation of the MRAP vehicles aboard airplanes,
including the said plane; [and]
(g) negligently and carelessly failed to adequately and
sufficiently warn [Plaintiffs' decedents] of the dangers
then and there existing in transporting the designated cargo,
including the 5 MRAP vehicles, on one flight[.]
(R. 24-3, State Compl. at 30-31.)
1, 2015, NAC was served with the state complaint. (R. 1, Not.
of Removal at 1.) On May 29, 2015, NAC timely removed the
case to this Court, asserting that federal officer
jurisdiction exists under 28 U.S.C. § 1442(a)(1) because
the " details of the [flight] operation were controlled
by federal officers, the terms of a defense contract, and
applicable federal regulations." ( Id. at 3.)
Because all the suits involved the same underlying event,
they were consolidated before this Court for pretrial
purposes. ( See R. 16, Pls.' Mot. to
Consolidate; R. 22, Min. Entry.)
26, 2015, Plaintiffs filed a joint motion to remand. (R. 23,
Pls.' Mot. to Remand.) They argue that federal officer
jurisdiction is lacking because NAC has failed to establish
that it was acting under the direction of a federal officer
for purposes of the claims raised in their complaint. (R. 24,
Pls.' Mem.) NAC filed an objection to the motion, (R. 27,
NAC's Resp.), and thereafter, Plaintiffs filed a reply.
(R. 30, Pls.' Reply.)
[A]ny 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." 28 U.S.C. § 1441(a). A notice
of removal must be filed " within 30 days after the
receipt by the defendant, through service or otherwise, of a
copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based."
28 U.S.C. § 1446(b)(1). " The party seeking removal
has the burden of establishing federal jurisdiction, and
federal courts should interpret the removal statute narrowly,
resolving any doubt in favor of the plaintiff's choice of
forum in state court." Schur v. L.A. Weight Loss
Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009). A
defendant meets this burden by supporting his jurisdictional
allegations with " competent proof," which "
requires the ...