United States: Court Orders Remand Of Cases Arising From Airline Accident In Mexico

Judy Nemsick is a Partner in Holland & Knight's New York office

In Garcia v Aerovias de Mexico, S. A.,1 the district court remanded all but two actions among 14 that had been removed to federal court on diversity of jurisdiction and federal question grounds. The cases arose from the failed takeoff and crash of Aeromexico Flight 2431 from Durango International Airport to Mexico City. Several Illinois residents were on the flight and sued defendants in federal and state courts in Illinois. Following removal of the state court cases, the court consolidated all of the cases on its docket. Thereafter, those Plaintiffs who had initially sued in state court filed a joint motion to remand.

The court first determined that federal diversity jurisdiction was not established by defendants because, while complete diversity of citizenship existed, defendants failed to meet their burden and provide competent proof that the amount in controversy exceeded $75,000. The state court complaints asserted only that the Illinois plaintiffs sustained "injuries of a personal and pecuniary nature" and that total damages exceeded $50,000. According to the court, defendants' "bare assertion" in their notices of removal that the amount in controversy exceeded $75,000 "[would] not do" and, thus, they failed to establish diversity jurisdiction.2

The court next found that federal question jurisdiction could not be based on the Montreal Convention unless a cause of action under the treaty was explicitly asserted in the complaint. While the court agreed that the Montreal Convention provides plaintiffs with a cause of action ̶ and two plaintiffs, in fact, pled such causes of actions so their cases remained in federal court ̶ it held that the treaty did not completely preempt this area such that plaintiffs' state law claims should be considered federal in character.

The court noted that complete preemption was reserved to cases of "extraordinary" preemptive statutory force and distinguished EL Al Israel Airlines, Ltd. v. Tseng.3 According to the court, Tseng did not address complete preemption and "crucially, the Seventh Circuit has decided since El Al that the Warsaw Convention's preemption 'is not complete.'"4 Because the court considered the Seventh Circuit's interpretation binding, it determined that defendants' numerous "extra-Circuit citations"5 finding complete preemption were "fruitless."

The decision highlights the jurisdictional quagmire that may arise when cases governed by the treaty are filed in those few jurisdictions where courts are divided on the preemptive effect of the Montreal Convention. Defendants in these cases must assert and diligently support all possible grounds for removal (whether based on, inter alia, diversity jurisdiction, federal question or foreign sovereign status) with comprehensive legal arguments and competent evidence.

Footnotes

1. No. 18 C 5517, 2018 WL 6570461 (N.D. Ill. Dec. 13, 2018).

2. Citing Roscor Corp. v. Itelco USA, 237 F. Supp. 2d 883, 884 (N.D. Ill. 2002). The cases may be removed again if discovery in state court demonstrates that the damages exceed $75,000. See 28 U.S.C. § 1446 (b)(3),(c).

3. 525 U.S. 155 (1999). In Tseng, the U.S. Supreme Court held that when a plaintiff's claim fails to satisfy the conditions of liability under the Warsaw Convention (the predecessor to the Montreal Convention), they could not resort to state law for relief.

4. Quoting Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., 522 F.3d 776, 781 (7th Cir. 2008).

5. Citing, e.g., Husmann v. Trans World Airlines, Inc., 169 F.3d 1151, 1153 (8th Cir. 1999); Knowlton v. Am. Airlines, Inc., No. 06-854, 2007 WL 273794, at *3 (D. Md. Jan. 31, 2007); Singh v. Am. Airlines, 426 F. Supp. 2d 38, 45 (E.D.N.Y. 2006).

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