Free Proposed Order - District Court of California - California

Case 3:08-cv-03560-JSW

Document 16

Filed 08/27/2008

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1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP PHILIP F. ATKINS-PATTENSON, Cal. Bar. No. 94901 2 TED C. LINDQUIST, III, Cal. Bar No. 178523 Four Embarcadero Center, Seventeenth Floor 3 San Francisco, California 94111 Telephone: (415) 434-9100 4 Facsimile: (415) 434-3947 E-mail: [email protected] [email protected] 5 6 Attorneys for Defendant ALASKA AIRLINES, INC. 7 8 9 10 11 12 13 KENNETH DON NELSON, suing individually and on behalf of 14 all others similarly situated, 15 16 v. Plaintiff, Case No. C:08-03560 (JSW) CLASS ACTION [PROPOSED] ORDER DENYING PLAINTIFF'S MOTION TO REMAND Date: Time: Courtroom: Before: October 17, 2008 9:30 a.m. 2 (17th Floor) The Hon. Jeffrey S. White UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (SAN FRANCISCO DIVISION)

17 ALASKA AIRLINES, INC., and defendant Does 1 through 100, 18 inclusive. 19 20 21 Defendants.

Plaintiff's motion to remand came on regularly for hearing on October 17, 2008.

22 Appearing on behalf of Plaintff was Henry H. Rossbacher of The Rossbacher Law Firm. 23 Appearing on behalf of defendant Alaska Airlines, Inc. ("Alaska") was Philip F. Atkins24 Pattenson of Sheppard, Mullin, Richter & Hampton LLP. 25 Having considered the papers filed in support of and in opposition to the motion to

26 remand, and having heard the arguments of counsel, and good cause appearing in support 27 thereof, 28
Case No.: C:08-03560 (JSW)
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[PROPOSED] ORDER DENYING MOTION TO REMAND

Case 3:08-cv-03560-JSW

Document 16

Filed 08/27/2008

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IT IS HEREBY ORDERED that Plaintiff's motion to remand be and hereby is

2 denied. 3 In his Complaint, originally filed in San Francisco Superior Court, Plaintiff alleges

4 that he, as well as others similarly-situated, was charged a Mexican Tourism Tax on flights 5 between California and Mexico, but that he was exempt from such Tax. On July 24, 2008, 6 Alaska removed the action to this Court on the basis of federal question jurisdiction, 28 7 U.S.C. § 1331, asserting that the Montreal Convention provides wholly displaces Plaintiff's 8 state law causes of action. (Dkt. # 1.) On August 13, 2008, Plaintiff moved to remand the 9 action to state court (Dkt. # 13), which Alaska opposed. 10 The Court concludes that the Montreal Convention provides complete preemption

11 of Plaintiff's claims and that his claims relating to Alaska's charges for the Mexican 12 Tourism Tax arise of an occurrence that falls within the scope of the Montreal Convention. 13 (El Al Israeli Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999)(state law claims 14 within scope of Warsaw Convention, the predecessor to the Montreal Convention, cannot 15 be pursued). As Alaska's uncontroverted testimony in support of its removal shows, 16 Plaintiff's claims relating to the imposition of the Mexican Tourism Tax arose either on 17 board the Alaska aircraft or during the embarkation process, but not during the ticketing 18 process, and therefore fall within the scope of the Montreal Convention. (See Thiel 19 Declaration, ¶ 8; Jarvis Declaration, ¶ 5; and Butler Declaration, ¶ 3(d); see also Singh v. 20 North American Airlines, 426 F.Supp.2d 38, 45 (E.D.N.Y. 2006)(occurrence under 21 Warshaw Convention during process of checking in); Day v. Trans World Airlines, Inc., 22 393 F.Supp. 217, 222 (S.D.N.Y. 1975), aff'd, 528 F.2d 31 (2d Cir. 1975)(describing 23 embarkation process). 24 25 Dated: ______________, 2008 ______________________________________________ The Honorable Jeffrey S. White 26 UNITED STATES DISTRICT JUDGE 27 28
Case No.: C:08-03560 (JSW)
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[PROPOSED] ORDER DENYING MOTION TO REMAND