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Brokaw v. Boeing Co.

United States District Court, N.D. Illinois, Eastern Division

October 5, 2015

ELIZABETH BROKAW, as Personal, Representative of the Estate of JAMIE L. BROKAW, deceased, et al., Plaintiffs,
v.
THE BOEING COMPANY, a corporation, et al., Defendants

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          For 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.

         William Thompson, Plaintiff, Pro se.

         Rajnit Virdi, Plaintiff, Pro se.

         Janice D Watts, Plaintiff, Pro se.

         Yelana Hagan, Plaintiff, Pro se.

         Gail L Coffey, Plaintiff, Pro se.

         For Robin D. Hasler, William J. Hasler, Plaintiffs: David Ian Katzman, Katzman, Lampert & McClune, Troy, MI.

         For National Air Cargo, Inc., a corporation, Defendant: Monica Fazekas, Leahy Eisenberg and Fraenkel, Ltd., Chicago, IL; Roland Scott Keske, Leahy, Eisenberg & Fraenkel, Chicago, IL.

         For The Boeing Company, a corporation, Defendant: Michael B Slade, LEAD ATTORNEY, Kirkland & Ellis LLP, Chicago, IL.

         For AAR 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.

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         MEMORANDUM OPINION AND ORDER

         Rubé n Castillo, Chief United States District Judge.

         The 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.[1] (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.

         RELEVANT FACTS

         On 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.)

         Flight 102 originated out of Chateauroux, France; the flight plan was to stop at Camp Bastion and load the plane with

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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" [2] 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[3] 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.)

         Because 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.)

         Once 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 plane to

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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. )

         On 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.)

         The NTSB conducted an investigation into the crash of Flight 102.[4] (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 Stat. 1180.

         PROCEDURAL HISTORY

         In 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 that it:

(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 said airplane;
(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

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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.)

         On May 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.)

         On June 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.)

         LEGAL STANDARD

         " [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 ...


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