Free Reply to Response to Motion - District Court of California - California

Case 3:08-cv-03560-JSW

Document 17

Filed 09/03/2008

Page 1 of 11

1 2 3 4 5 6 7 8
9


Henry H. Rossbacher, Esq. (SBN 060260) James S. Cahill, Esq. (SBN 070353) Talin K. Tenley, Esq. (SBN 217572) THE ROSSBACHER FIRM 811 Wilshire Blvd., Suite 1650 Los Angeles, California 90017-2666 Telephone: (213) 895-6500 Facsimile: (213) 895-6161 Email: [email protected] j [email protected] [email protected] Attorneys for Plaintiff Kenneth Don Nelson

UNITED STATES DISTRICT COURT
10

11 12 13
14


NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO

KENNETH DON NELSON, individually and on behalf of all others similarly situated, Plaintiffs, v. ALASKA AIRLINES INC., and DOES 1 through 100, inclusive, Defendants,

15 16
17 18 19
20 21
22
23


) ) ) ) ) ) )
) )
) ) ) ) ) ) )
) )

Case No.: C 08-03560 (JSW) CLASS ACTION
REPLY IN SUPPORT OF PLAINTIFF'S
MOTION TO REMAND CASE FOR
LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO 28 U.S.c. §1447(c) Date: October 17, 2008 Time: 9:00 a.m. Courtroom: 2 (l7 th FI.) Judge: Hon. Jeffrey S. White

1+---------------- )

24

25 26 27

28

o
ALASKAlREPLY

REPLY IN SUPPORT OF PLTF'S MOTION TO REMAND CASE

Case 3:08-cv-03560-JSW
I.

Document 17

Filed 09/03/2008

Page 2 of 11

INTRODUCTION Defendant Alaska Airlines, Inc. ("Defendant" or "Alaska Airlines") fails to establish that

2
3

removal of this case under Articles 17(1) and 29 of the "Convention for the Unification of Certain Rules for International Carriage by Air" (the "Montreal Convention") was proper. Specifically, Defendant fails to show that Plaintiff's claims are completely preempted by that treaty such that

4

5
6
7

they "arise under" it for purposes of original subject matter jurisdiction pursuant to 28 U.S.C.
§ 1331. Plaintiff's complaint contains no reference whatsoever to any federal law.

8
9

From the face of Plaintiff's complaint, his causes of action are not within the scope of the Montreal Convention. Plaintiff disputes that Article 17(1) (expressly limited to death and bodily injury accidents) applies to Plaintiff's claims which are rooted in non-performance ofthe alleged written contracts.

10 11 12 13 14 15 16 17 18 19 20

II.

ALASKA AIRLINES FAILS TO ESTABLISH THAT THE MONTREAL CONVENTION COMPLETELY PREEMPTS PLAINTIFF'S STATE LAW CLAIMS. A case may not be removed to federal court on the basis of a federal defense, including the

defense of preemption. Beneficial Nat 'I Bankv. Anderson, 539 U.S. 1,6 (2003). Complete preemption occurs only when Congress intends not only to preempt a certain amount of state law, but also intends to transfer jurisdiction of the subject matter from state to federal court. See Metropolitan Life Inc. Co. v. Taylor, 481 U.S. 58,66-67 (1987). In other words, Congress must

21 22 23 24 25 26 27 clearly manifest an intent to convert state-law claims into federal question claims. Holman v. Laulo-Rowe Agency, 994 F.2d 666,668 (9 th Cir. 1993). In Beneficial Nat 'I Bank the Supreme Court explained that the "proper inquiry focuses on whether Congress intended the federal cause of action to be exclusive." 539 U.S. at 9 n.5. The text of the Montreal Convention indicates that it was not intended to constitute an exclusive cause of action.

28

ALASKAlREPLY

REPLY IN SUPPORT OF PLTF'S MOTION TO REMAND CASE

Case 3:08-cv-03560-JSW
1


Document 17

Filed 09/03/2008

Page 3 of 11

In Akrami v. British Airways PLC, No. C 01-02882 SC, 2002 WL 31031324, *1 (N.D. Cal.

2
Sept. 10, 2002), the plaintiff filed suit against British Airways in state court, asserting only state 3

4

dealing, and fraud) stemming from delay of an international cargo shipment. British Airways law claims (breach of contract, negligence, breach of the implied covenant of good faith and fair

5
removed the action to the district court, contending that the claims arose under the Warsaw 6
7
8
Convention. Judge Samuel Conti examined Article 24(2), which describes that treaty's preemptive effect: In the carriage of cargo, 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 limits of liability set out in the Convention without prejudice to the question as to who are the persons who have the right to bring suit and what

9

10

11

12


13

14
15 16
17
18
19
20 from a delay in the shipment of cargo that is within the substantive scope of the 21
22
23
24
25 26
27
Warsaw Convention. Rather, it preempts only the remedies provided by other causes of action to the degree that those remedies conflict with 'conditions and limits of liability set out in the Convention.' are their respective rights.... Warsaw Convention, Art. 24(2) (emphasis added). Concentrating on the words "or in contract or in tort or otherwise," Judge Conti concluded that the Warsaw Convention does not transform claims pleaded under state law into federal claims: [I]t is absolutely clear from the plain text of [Article 24] that the Warsaw Convention cannot provide the exclusive cause of action to redress a loss stemming

!d., at 3. The court determined that removal based on the Warsaw Convention had been improper,

28

2
REPLY IN SUPPORT OF PLTF'S MOTION TO REMAND CASE

ALASKNREPLY

Case 3:08-cv-03560-JSW
1

Document 17

Filed 09/03/2008

Page 4 of 11

and ordered remanded. Id. at *8.1 Article 29 of the Montreal Convention contains the identical "or in contract or in tort or otherwise" language in the context of not just cargo claims, but passenger claims as well: In the carriage of passengers, baggage and cargo, any action for damages, however

2
3
4

5

founded, whether under this Convention or in contract or in tort or otherwise, can 6 7 8 only be brought subject to the conditions and such limits of liability as are set out in the Convention..... Montreal Convention, Art. 29 (emphasis added). Thus, the Montreal Convention provides no more basis for avoiding the well-pleaded complaint rule than did the Warsaw Convention. Article 29 indicates that the Montreal Convention accommodates non-conflicting state causes of action. Conversely, Defendant's case authorities are not persuasive failing to explain how the 13 14 15 16 17 18 19 20 the third flight attendant, she was a "deadheading" employee traveling on the doomed airplane to 21 22 23 24
25
1 A number of cases have held that the Warsaw Convention does not completely preempt the field.

9
10
11 12

Montreal Convention creates an exclusive cause of action which completely preempts Plaintiff s state claims. (See Oppo. at p.2 In.18- p.6 In.17). In re Mexico City Aircrash, 708 F.2d 400 (9 th Cir. 1983) the Ninth Circuit considered whether the Warsaw Convention covered the deaths of three flight attendants who sued the airline under the Warsaw Convention following a crash. The court ruled the Convention inapplicable to two of the flight attendants finding that they were not "passengers" and granted summary judgment in favor of the airline. Id. at 417. With respect to

take an assigned duty on a different flight. The court refused to hold as a matter of law that the

Nipponkoa Inc. Co., Ltd. v. Golbeground Services, Inc. et al., 2006 U.S. Dist. LEXIS 76227, *8
*9 O'J.D. Ill. Sept. 28, 2006) ("[P]laintiffs claims sounded in state law and were not based on the Warsaw Convention.... Federal question jurisdiction may not be involved based on the Warsaw Convention defense regardless whether it applies to limit any of plaintiffs claims); Rogers v. American Airlines, Inc., 192 F.Supp.2d 661,664-72 O'J.D. Tex. 2001); Dorazio v. VAL Corp., 2002 U.S. Dist. LEXIS 18809, *2-*3 O'J.D. Ill. Oct. 2, 2002).

26 27 28

3
ALASKAIREPLY

REPLY IN SUPPORT OF PLTF'S MOTION TO REMAND CASE

Case 3:08-cv-03560-JSW

Document 17

Filed 09/03/2008

Page 5 of 11

1
third flight attendant was not a passenger leaving ultimate resolution to the jury. ld. at 318.

2
Although the court held that "the Warsaw Convention creates a cause of action for wrongful
3


death" (ld. at 415) the court also observed: The language of article 24( 1) that any action, 'however founded' , must be brought
subject to the conditions and limits of the Convention, might be taken to mean that


4


5
6


7

8


an action must be 'founded' on some other law then the Convention.... The best
explanation for the wording of article 24( 1) appears to be that the delegates did not
intend that the cause of action created by the Convention to [sic] be exclusive. 708
F.2dat414n.25.2.
In Husmann v. TWA, 169 F.3d 1151 (8 th Cir. 1999), a passenger sued TWA for personal injuries while boarding an airplane. The tort claim was based on Missouri law. The case was

9


10
11


12


13

14
15 16
17
18
19
20 majority had not analyzed the well-pleaded complaint rule: 21
removed to district court pursuant to the Warsaw Convention and plaintiff's motion to remand was denied. The Eighth Circuit affirmed: "[W]e also think the Supreme Court's holding [in El Al

Isreal Airlines v. Tsui Yuan Tseng, 525 U.S. 155 (1999)] that the Warsaw Convention provides the
exclusive cause of action for injuries sustained during international air transportation answers the dissent's argument that [plaintiff's] claim is not removable under the well-pleaded Complaint rule." Husmann, 169 F.3d at 1153 n.5. In his dissent, Judge Morris S. Arnold noted that the

22

23
24
25 26
27


[T]he state courts are (indeed, they must be) open to preemption defenses, ... [but the majority] does not indicate why the preemption created by the Warsaw Convention is the kind that allows a defendant to evade the well-pleaded complaint

2. In Twardowski v. American Airlines, Inc. et al., 2008 U.S. App. LEXIS 16110, *2 (9 th Cir. July
30, 2008) the Ninth Circuit was not presented with the issue of complete preemption in the
removal context.


28

4

ALASKAJREPLY

REPLY IN SUPPORT OF PLTF'S MOTION TO REMAND CASE

Case 3:08-cv-03560-JSW

Document 17

Filed 09/03/2008

Page 6 of 11

rule. Most of the cases that the ... [majority] relies on were not removed to a

2
3
4

federal court, and in none of them was the question of whether removal was proper raised or decided. 169 F.3d at 1154.;1

5
Alaska Airlines' dependence on Singh v. North American Airlines, 426 F.Supp.2d 38

6
7
8
9

(E.D.N.Y. 2006) is unavailing. In Singh the plaintiff was arrested and incarcerated for almost nine months after illegal drugs were found in luggage bearing his name. He brought an action against the airline, alleging inter alia that it negligently failed to prevent its employees from transporting contraband in the names oflawful passengers. The airline's negligence arose from the mislabelling ofluggage with the plaintiffs identification. The airline argued that plaintiffs negligence claims were preempted under the Airline Deregulation Act ("ADA") and the Warsaw

10 11 12
13

14 15 16 17 18 19 20

Convention. Id. at 40-44. The court decided that the ADA did not provide complete preemption Id at 43. The court further ruled that federal subject matter jurisdiction existed, and remand was not permitted because the Warsaw Convention preempted plaintiffs claims. !d. at 44. In finding complete preemption, however, the court in Singh failed to focus on the treaty itself or the intent of the treaty drafters to determine whether the Warsaw Convention was intended to afford the exclusive cause of action and thereby wholly displace plaintiff s state law claims. Instead, the court wrongly assumed that the Supreme Court in EI Al Isreal Airlines v.

21

22
23

Tseng, 525 U.S. 155 (1999) ("Tseng") had decided that the Warsaw Convention completely
preempts state law. Singh, 426 F.Supp.2d at 44. The Singh court misconstrued the holding of

24 25 26 27

Tseng. The Supreme Court in Tseng "did not address the propriety of removing an action that
;1 In neither Potter v. Delta Airlines, Inc., 98 F.3d 881 (5 th Cir. 1996) nor Boehringer-Mannheim Diagnostics, Inc. v. Pan American World Airways Inc., 737 F.2d 456 (5 th Cir. 1984), cert. denied., 470 U.S. 1059 (1985), did the Fifth Circuit discuss the well-pleaded complaint rule. In both cases, plaintiffs' Warsaw Convention claims appeared on the face of the complaints.

28
5
ALASKNREPLY

REPLY IN SUPPORT OF PLTF'S MOTION TO REMAND CASE

Case 3:08-cv-03560-JSW

Document 17

Filed 09/03/2008

Page 7 of 11

sounds in state law because it is allegedly completely preempted by the Warsaw Convention."


2
Akrami, 2002 WL 31031324 at *2. "Tseng addresses conflict preemption rather than complete

3


preemption." Akrami, supra. at *2 n.2. 1 The Singh court wrongly concentrated on the merits of
the preemption defense to find complete preemption justifying federal jurisdiction. Singh, 426


4


5
F.Supp.2d at 45-48.
6


7

8


The conclusion in Knowlton v. American Airlines, Inc., 2002 U.S. Dist. LEXIS 6882, *14 *15 (D.Md. Jan. 31, 2007) is unsupported by the reasoning required by the Supreme Court in

9
Beneficial Nat'l Bank. First, the Knowlton court did not identify the provision(s) of the Montreal

10 11
12


Convention (or the Warsaw Convention) on which the airline based its removal notice. In its response to plaintiff s remand motion the airline admitted that "Montreal Convention did not specifically discuss carrier liability for the alleged breach of contract ...." Id. at *3. Second, the

13


14
15 16
17
18
19
20

court reached its decision by adopting "the reasoning of those cases finding in favor of preemption." Id. at *14-*15. Rather than undertaking its own inquiry, the Knowlton court accepted the results of Husmann v. TWA (which preceded Beneficial Nat 'l Bank) and Singh v.

North American Airlines. Knowlton, supra. at * 13. As explained above, those cases misconstrued
the narrow ruling in Tseng. In short, the Knowlton court found complete preemption denying remand based on other cases regarding the merits of the preemption defense. None of the authorities cited by Alaska Airlines should be followed by this court. The

21


22

23
24
25 26
27
28


Montreal Convention does not effectuate complete preemption over Plaintiff's state law claims.

/II

1 The Supreme Court in

Tseng also interpreted an earlier version of Article 24 of the Warsaw Convention which did not include the phrase "whether under this Convention or in contract or in tort or otherwise." Akrami, 2002 WL 31031324 at *3.

6

ALASKAIREPLY

REPLY IN SUPPORT OF PLTF'S MOTION TO REMAND CASE

Case 3:08-cv-03560-JSW
III.

Document 17

Filed 09/03/2008

Page 8 of 11

FROM THE FACE OF PLAINTIFF'S COMPLAINT HIS CLAIMS DO NOT ARISE UNDER THE CONVENTION BECAUSE THEY ARE NOT WITHIN THE TREATY'S SCOPE. Plaintiff disputes that Article 17(1) applies to his claims against Alaska Airlines. (See

Notice of Removal at p.3 Ins. 4-11; Oppo. at p.1 Ins.9-14 and p.8 Ins.3-26). The liability of an airline for passenger "death or bodily injury" during the course of "international carriage" as defined by Article 1(2) is expressed in Article 17(1). The airline's liability depends on a showing that the death or bodily injury was caused by an "accident" that occurred on the aircraft "or in the cause of any operations of embarking or disembarking" and resulted in "death or bodily injury." The Supreme Court in Tseng, 525 U.S. at 170-71, was careful to limit the preemptive effect of the Warsaw Convention (and hence the Montreal Convention) cause of action for bodily injury and death to the substantive scope of Article 17(1), and no further. Plaintiffs claims here, though, are rooted in Defendant's non-performance of the alleged written contracts. Breach of contract is not an "accident" under Article 17(1). Plaintiff does not allege death or bodily injury. (Complaint ~~25-33). Plaintiff seeks contract damages for breach, not tort damages for an accident resulting in personal injury. (Id.
~~3,

30, 33). Plaintiffs contract

claims are not within Article 17 (1). See Wogel v. Mexicana Airlines, 821 F.2d 442,444-45 (7 th Cir. 1987), cert. denied, 484 U.S. 987 (1987) (finding that the delegates to the Warsaw Convention had "agreed that the Convention should not apply to a case of non-performance of a contract"); accord, In re Nigeria Charter Flights Contract Litigation, 520 F.Supp.2d 447,454-55 (E.D. N.V. 2007); Weiss v EIAI Isreal Airlines, 433 F.Supp.2d 261,365-369 (S.D. N.V. 2006) (noting Montreal Convention's preemption provision (Art. 29) applies only where an action for damage falls within one of the Convention's three damage provisions (Arts. 17, 18, and 19).)~

~ Defendant shades the narrow ruling in Tseng, 525 U.S. at 176, when it implies that Plaintiffs "non-bodily injury" is within the scope of Article 17(1). (Oppo. at p.8 Ins.16-26). Tseng

7
ALASKAIREPLY

REPLY IN SUPPORT OF PLTF'S MOTION TO REMAND CASE

Case 3:08-cv-03560-JSW
1

Document 17

Filed 09/03/2008

Page 9 of 11

Since Plaintiffs claims do not arise from bodily injury further inquiry into Article 17(1) is unnecessary. Nevertheless, Plaintiff disputes Defendant's contention that the "operative occurrence" for Plaintiff s claims was when he checked-in or on board an Alaska aircraft. (Oppo. at p.8 In.27-p.12 In. 11). Plaintiffs damages occurred when he purchased his airline ticket and paid the tourism tax. This happened before embarking and not on board an aircraft. (Complaint

2
3 4 5
6 7 8
9

~~7,

25-33). Contrary to Alaska Airlines' opinion, passengers are not embarking simply because they

have checked into their flights. In many instances check-in occurs before the flight is scheduled to depart and passengers are free to roam in public areas of the airport until then. Resolving this issue is a fact-intensive effort. See Aquino v. Asians Airlines, Inc., 105 Cal.AppA th 120-81 (2003) (colleting cases. )Q.

10

11
12 13 14 15 16 17 18 19 20 21

Plaintiff objects to Defendant's attempted submission of evidence about its general operations to support removal. The court should not consider the Declaration(s) of Kevin Thiel, Steve Tarvis, Jeff Butler and Philip F. Atkins-Pattenson and the attached exhibits to Defendant's Notice of Removal. First, the court is not required to make a factual investigation to evaluate whether Plaintiff s claims are completely preempted by the Montreal Convention. Whether the

concerned personal injury. The non-bodily injury discussed in Tseng was "psychic or psychosomatic," another species of personal injury. 525 U.S. at 160.
Q Mbaba

22
23 24 25 26 27

Cir. 2006), cert. denied, 127 S.Ct. 959 (2007) and King v. American Airlines, Inc., 284 F.3d 352 (2d Cir. 2002) are inapposite here. Mbaba did not address the issue of complete preemption in the removal context deciding applicability of Article 19 (baggage) on summary judgment. The Second Circuit in King affirmed judgment on the pleadings following the Supreme Court analysis in Tseng on conflict preemption. The King court concluded that the Warsaw Convention's two year statute oflimitation preempted New York's three year personal injury statute on discriminatory bumping based on race. 284 F.2d at 355. Like Tseng, King, was decided under the old Warsaw Convention language that lacked the "whether under this Convention or in contract or in tort or otherwise" verbiage of the Montreal Convention, Article 29. See, 284 F.3d 357-58. Unlike here, plaintiffs in King did "not contest that they were in the process of embarking the plane" when injured. Id. at 360.

v. Societe Air France, 457 F.3d 496 (5

th

28
8
ALASKAIREPLY

REPLY IN SUPPORT OF PLTF'S MOTION TO REMAND CASE

Case 3:08-cv-03560-JSW

Document 17

Filed 09/03/2008

Page 10 of 11

court has jurisdiction should be determined from the face of Plaintiff's well-pleaded complaint.
2


See Miller v. Grgurich, 763 F.2d 372,373 (9 th Cir. 1985). Second, those declarations and exhibits
do not discuss Plaintiff's specific transactions and trips on Alaska Airlines. The declarants make broad statements abJut Defendant's general operations including inadmissible opinions. Third, those statements suggesting defenses to the complaint (e.g., refund) are irrelevant for the remand

3
4
5

6
7


motion. Alaska Airlines incorrectly tries to fit Plaintiff's state law claims into the framework of the

8


9
Montreal Convention. Since that treaty is not applicable to this lawsuit, it is not preemptive of
10


Plaintiff's causes of action.

11

12


IV. CONCLUSION
Removal was improper. The action should be remanded to the Superior Court ofthe State

Respectfully submitted,

THE ROSSBACHER FIRM

Attorney for Plaintiff Kenneth Don Nelson

24

25


26

27


28

9

ALASKAIREPLY

REPLY IN SUPPORT OF PLTF'S MOTION TO REMAND CASE

Case 3:08-cv-03560-JSW

Document 17

Filed 09/03/2008

Page 11 of 11

UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA
2 3

CASE NAME: KENNETH DON NELSON v. ALASKA AIRLINES INC. CASE NUMBER: CV08-03560 (JSW)

4 5
6 7

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 811 Wilshire Blvd., Ste. 1650, Los Angeles, California 90017-2666. On September 3,2008, I served the following document on the parties in this action listed below in the manner designated below: REPLY IN SUPPORT OF PLAINTIFF'S MOTION TO REMAND CASE FOR LACK OF SUBJECT MATTER JURISIDICTION PURSUANT TO 28 U.S.C. § 1447(c) Philip F. Atkins-Pattenson, Esq. SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Four Embarcadero Center, 1i h Floor San Francisco, CA 94111 [email protected]
I

8
9

10
11

12 13 14 15 16 17 18 19 20 21
22

Attorneys for Defendants- - - - - - - - - - ' - - - - - - - - - - - - - - - - - - ---

BY NOTICE OF ELECTRONIC FILING. The above-listed counsel have consented to electronic service and have been automatically served by the Notice of Electronic Filing, which is automatically generated by CM/ECF at the time said document was filed, and which constitutes service pursuant to FRCP 5(b)(2)(D). I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct, and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on September 3,2008, at Los Angeles, California

23 24 25 26 27 28

Jll\leJ/L-

Maricela Ruiz

°t:, I.~) -'
r)
,

/"~)

2
ALASKNPOS

PROOF OF SERVICE

Case 3:08-cv-03560-JSW

Document 17-2

Filed 09/03/2008

Page 1 of 5

1 2 3 4 5 6 7 8

Henry H. Rossbacher, Esq. (SBN 060260) Talin K. Tenley, Esq. (SBN 217572) James S. Cahill, Esq. (SBN 070353) THE ROSSBACHER FIRM 811 Wilshire Blvd., Suite 1650 Los Angeles, California 90017-2666 Telephone: (213) 895-6500 Facsimile: (213) 895-6161 Email: [email protected] [email protected] [email protected] Attorneys for Plaintiff Kenneth Don Nelson

9
UNITED STATES DISTRICT COURT 10 11 12
13

NORTHERN DISTRICT OF CALIFORNIA (SAN FRANCISCO DIVISION)

14 15 16 17 18 19 20 21 22 23 24 25 26 27 Defendants,
v.

KENNETH DON NELSON, individually and on behalf of all others similarly situated, Plaintiffs, ALASKA AIRLINES, INC., and DOES 1 through 100, inclusive,

) ) )
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )


Case No.: C 08-03560 (JSW) CLASS ACTION
[AMENDED PROPOSED] ORDER
GRANTING PLAINTIFF'S MOTION TO
REMAND CASE FOR LACK OF
SUBJECT MATTER JURISDICTION FOR IMPROPER REMOVAL PURSUANT TO 28 U.S.c. § 1447(c) Date: October 17,2008
Time: 9:00 A.M.
Courtroom: 2 (l i h Floor)
Judge: Hon. Jeffrey S. White


1+--------------- )

28

ALASKNAMENDE

ROPOSED.ORDER

[AMENDED PROPOSED] ORDER

Case 3:08-cv-03560-JSW
1 2

Document 17-2

Filed 09/03/2008

Page 2 of 5

On October 17,2008, Plaintiff's Motion To Remand Case for Lack of Subject Matter Jurisdiction and Award for Improper Removal Pursuant 28 U.S.C. § 1447(c) ("Plaintiff's Motion") came on for hearing before this Court, the Honorable Jeffrey S. White, presiding.

3 4
5 6 7 8
9

- - - - - - - - - - - - of The Rossbacher Firm appeared for Plaintiff Kenneth Don
Nelson. of Sheppard, Mullin, Richter & Hampton LLP,

appeared for Defendant Alaska Airlines, Inc. Having considered the briefs and arguments of counsel, therefore IT IS HEREBY ORDERED: 1. 2. Plaintiff's Motion is GRANTED. The entire action is remanded to the Superior Court of the State of California,

10

11
12

County of San Francisco. 28 U.S.C. 1441 (c). Original federal subject matter jurisdiction under 13 14 15 16 17 18 19 20 and federal defenses anticipated by the removing party, including preemption, should not be 21 considered. See In re: NOS Communications, MDL No. 1357,495 F.3d 1052, 1057 (9 th Cir. 2007). Under the "well-pleaded complaint rule," the plaintiff is the "master of [his] claim," and his suit can be removed only if, on the face of the complaint, a federal claim is presented. U.S.c. § 1331 is lacking here. The complaint only pleads California state law claims for breach of contract and money had and received, and does not contain a cause of action that "arise under" federal law. See Arora v. Hartford Life & Annuity Ins. Co., 519 F.Supp.2d 1021, 1028 (N.D. Cal. 2007). 3. Generally, the court should look only to the well-pleaded complaint to ascertain

whether it states a federal claim (Rivet v. Regions Bank ofLouisiana, 522 U.S. 470, 475 (1998)),

22
23 24 25 26 27

Caterpillar Inc. v. Williams, 482 U.s. 386, 392-93 (1987). The well-pleaded complaint rule is
overridden only if complete preemption applies. Holman v. Laulo-Rowe Agency, 994 F.3d 666, 668 (9th Cir. 1993). Complete preemption, though, arises only in "extraordinary" situations.

28

ALASKA!AMENDE

ROPOSED.ORDER

[AMENDED PROPOSED] ORDER

Case 3:08-cv-03560-JSW

Document 17-2

Filed 09/03/2008
th

Page 3 of 5

Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1184 (9 Cir. 2002). Upon a motion for

2
remand the burden is upon the removing party to establish that removal was proper. Graus v.

3
4


Miles, 980 F.2d 564, 566 (9th Cir. 1992).

4. Defendant's sole ground for removal is under the "Convention for the Unification

5 of Certain Rules for International Carriage by Air", signed at Montreal on May 28, 1999, reprinted 6
7
8
in S. Treaty Doc. No. 106-45 and available at 1999 WL 33292734 (the "Montreal Convention"). However, the Montreal Convention does not provide complete preemption over the state law

9
claims alleged in Plaintiffs complaint so as to transform them into claims that "arise under"

10
11


federal law for purposes of original subject matter jurisdiction. Article 29 of the Montreal Convention suggests that the Convention is not intended to wholly displace all causes of action based in state law. Indeed, Defendant has not demonstrated that Congress intended that the

12

13


14
15 16
17
18
19
20

Montreal Convention wholly displace Plaintiffs alleged state causes of action. See Beneficial

Nat 'I Bank v. Anderson, 539 U.S. 1,8 (2003); Lippitt v. Raymond James Fin. Sers., Inc., 340 F.3d
1033, 1042 (9 th Cir. 2003) (complete preemption applies only when "the federal statutes at issue provide [] the exclu':live cause of action for the claim asserted"). 5. The Montreal Convention imposes three categories of strict liability on air carriers.


Article 17 provides for carrier liability in the event of accidental death or bodily injury of a
passenger while on board, embarking, or disembarking the plane. Article 17 also includes liability


21

22


for damage to or loss of baggage. Article 18 addresses liability for damage to cargo, and Article
19 imposes liability for damages resulting from delay of passengers, baggage or cargo. "[T]he
Supreme Court has observed ofthe Warsaw Convention, whose preemptive effect is the same as
that of the Montreal Convention, that ' [its] preemptive effect on local law extends no further than
[its] own
substantiv~ scope.'"

23
24
25 26
27


In re Nigeria Charter Flights Contract Litigation, 520 F.Supp.2d


447,455 (E.D. N.Y. 2007) (quoting El Al Israeli Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155,


28

2

ALASKA/AMENDE ROPOSED.ORDER

[AMENDED PROPOSED) ORDER

Case 3:08-cv-03560-JSW
172 (1999)).

Document 17-2

Filed 09/03/2008

Page 4 of 5

2
3
4

6.

From the face of Plaintiff s complaint, his claims are not within the scope of the

Montreal Conventi<='ll. Plaintiff s complaint does not mention the Montreal Convention or any federal statutory ground for relief. Plaintiff contends his claims arise from Defendant's breach

5
(i. e., nonperformance) of its contracts with Plaintiff (and other putative Class members) and they
6 7 may have a remedy under California law. Weiss v. El Al Isreal Airlines, Ltd., 433 F.Supp.2d 361, 365-66,369 (S.D. N.Y. 2006); see also In re Nigeria Charter Flights Contract Litigation, 520 F.Supp.2d 447,454. Plaintiff alleges that his damages occurred when he purchased his airline tickets from Defendant in California and paid the disputed Mexican tourism tax. This allegedly happened before any process of embarking and not on board an aircraft. Accordingly, the Montreal Convention cannot serve as the basis for removal. 13 14 15 16 17 Dated:

8 9
10 11 12

18
19 20
ALASKNAMENDEDPROPOSED.ORDER

Jeffrey S. White United States District Judge

21

22
23 24 25 26 27

28
3
ALASKNAMENDE ROPOSED.ORDER

[AMENDED PROPOSED] ORDER

Case 3:08-cv-03560-JSW

Document 17-2

Filed 09/03/2008

Page 5 of 5

UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA

2
3

CASE NAME: KENNETH DON NELSON v. ALASKA AIRLINES INC. CASE NUMBER: CV08-03560 (JSW)

4

5
6
7

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 811 Wilshire Blvd., Ste. 1650, Los Angeles, California 90017-2666. On September 3,2008, I served the following document on the parties in this action listed below in the manner designated below:

8
9 10 11 12 13 14 15 16 17 18 19 20 21 I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct, and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on September 3, 2008, at Los Angeles, California

[AMENDED PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION TO REMAND CASE FOR LACK OF SUBJECT MATTER JURISDICTION FOR IMPROPER REMOVAL PURSUANT TO 28 U.S.c. § 1447(c)
Philip F. Atkins-Pattenson, Esq. SHEPPARD, MULLIN, RICHTER & HAMPTON LLP h Four Embarcadero Center, 1i Floor San Francisco, CA 94111 [email protected] Attorneys for Defendants

BY NOTICE OF ELECTRONIC FILING. The above-listed counsel have consented to
electronic service and have been automatically served by the Notice of Electronic Filing, which is automatically generated by CMIECF at the time said document was filed, and which constitutes service pursuant to FRCP 5(b)(2)(D).

22
23 24 25 26 27

28
2
ALASKA/POS

PROOF OF SERVICE