SUSAN R. BOLTON, District Judge.
The Court now considers Plaintiffs' Motion to Remand ("MTR") (Doc. 18).
This case concerns tort and contract claims brought by Plaintiffs Ian and Sandra Greig stemming from the crash landing of U.S. Airways Flight 1702 departing from Philadelphia with the intended destination of Fort Lauderdale. (See Doc. 1, Ex. A, Compl. ¶¶ 1-45.) The flight never reached Fort Lauderdale due to complications during takeoff, which required the flight crew to perform an emergency landing back on the runway after the plane had ascended only twenty to forty feet. (Id. ¶¶ 9-10.) The plane crashed into the runway after the nose landing gear failed. (Id. ¶ 11.) Plaintiffs purportedly suffered emotional and physical injuries from the crash landing, bringing claims for negligence (Count One), negligence per se (Count Two), and breach of contract (Count Three) in state court against Defendants. (Id. ¶¶ 6-39.) Defendants subsequently removed the lawsuit to this Court based on federal question jurisdiction and diversity jurisdiction. (See Doc. 1, Defs.' Notice of Removal ¶¶ 1-7.) After screening the Notice of Removal, the Court ordered Defendants to show cause why the case should not be remanded to state court for lack of jurisdiction. (Doc. 5, Apr. 29, 2014 Order at 1.)
II. LEGAL STANDARDS AND ANALYSIS
"Under 28 U.S.C. § 1441, a defendant may generally remove a civil action from state court to federal district
A federal question does not appear on the face of the Complaint. Defendants argue that removal is proper because Flight 1702 was part of a larger international journey and the Montreal Convention completely displaces state law claims made against air carriers for flights involving "international carriage," making removal proper under the complete preemption doctrine. (See U.S. Airways' Opp'n at 4-15.) The Montreal Convention, the successor to the Warsaw Convention, is intended to promote uniformity in the laws governing air carrier liability and "applies to all international carriage of persons, baggage or cargo performed by aircraft." See Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999 (Montreal Convention), art. 1(1), reprinted in S. Treaty Doc. No. 106-45, 1999 WL 33292734. It sets forth a liability scheme for passenger claims for personal injury, wrongful death, loss or damage to baggage or goods, and damages caused by transportation delays. See id. arts. 17-19. Article 29 of the Montreal Convention limits actions for damages by providing:
Id. art. 29. "[T]he Montreal Convention represent[ed] a significant shift away from a treaty [ (the Warsaw Convention) ] that primarily favored airlines to one that continues to protect airlines from crippling liability, but shows increased concern for the rights of passengers and shippers." Weiss v. El Al Israel Airlines, Ltd., 433 F.Supp.2d 361, 365 (S.D.N.Y.2006), aff'd, 309 Fed.Appx. 483 (2d Cir.2009).
The phrase "international carriage" encompasses international trips between specific places of departure and destination, regardless of any intervening domestic stopovers. See Montreal Convention art. 1(2) (specifying that "international carriage" includes trips involving a domestic
The Supreme Court and the Ninth Circuit have not considered what, if any, preemptive effect the Montreal Convention has on state law claims, but this issue has generated a significant split in federal case law. See Gamson v. British Airways, PLC, ___ F.Supp.3d ___, ___ _ ___, No. CV 14-527(JEB), 2014 WL 2527487, at *2-3 (D.D.C. June 5, 2014) (summarizing the conflicting case law). The parties expend considerable effort in advancing their respective interpretations of El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999), and Carey v. United Airlines, 255 F.3d 1044 (9th Cir.2001), cases that involved the Montreal Convention's predecessor, the Warsaw Convention. Both sides recognize that courts have regularly relied upon the case law developed under the Warsaw Convention to interpret analogous provisions under the Montreal Convention. See Narayanan v. British Airways, 747 F.3d 1125, 1127 (9th Cir.2014) (noting that the Montreal Convention incorporated many of the Warsaw Convention's substantive provisions). In extending Tseng's and Carey's analysis involving the Warsaw Convention to the Montreal Convention, Defendants argue that the Montreal Convention completely preempts state law claims involving international air transportation. (U.S. Airways' Opp'n at 6-7.)
The Court agrees with Plaintiffs that Defendants' interpretation of Tseng and Carey conflates the doctrines of complete preemption and conflict preemption, with the latter providing an affirmative defense, not a basis for removal. (Doc. 23, Pls.' Mem. of P. & A. in Reply to U.S. Airways' Opp'n ("Reply") at 6-10.) Tseng and Carey
The plain language of the Montreal Convention also runs counter to Defendants' position. Article 29 of the Montreal Convention specifically contemplates that liability may be based on other claims under contract or tort. Montreal Convention art. 29 ("any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention ..."). This language indicates that although the Montreal Convention might limit the remedies available for state law contract or tort claims, the Montreal Convention does not completely preempt those claims. The Court therefore finds persuasive the numerous district court opinions from within the Ninth Circuit that have concluded that the Montreal Convention does not completely preempt state law claims but in this case may be an affirmative defense. See, e.g., Jensen v. Virgin Atl., No. 12-CV-06227 YGR, 2013 WL 1207962 (N.D.Cal. Mar. 25, 2013); Nankin v. Cont'l Airlines, Inc., No. CV 09-07851 MMM RZX, 2010 WL 342632 (C.D.Cal. Jan. 29, 2010); Serrano v. Am. Airlines, Inc., No. CV08-2256 AHM (FFMX), 2008 WL 2117239 (C.D.Cal. May 15, 2008).
Because Defendants have failed to establish a valid basis for removal, the Court remands the case to Maricopa County Superior Court. The Court expresses no opinion whether Defendants might be successful in asserting an affirmative defense based on the Montreal Convention.