Free Memorandum in Opposition - District Court of California - California

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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 DEFENDANT ALASKA AIRLINES, INC.'S OPPOSITION TO PLAINTIFF'S MOTION FOR 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 22 23 24 25 26 27 28
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OPPOSITION TO MOTION FOR REMAND

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1 2 3 I. 4 II. 5 III. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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TABLE OF CONTENTS Page INTRODUCTION AND SUMMARY OF ARGUMENT......................................... 1 STATEMENT OF ISSUES TO BE DECIDED......................................................... 1 ARGUMENT.............................................................................................................. 2 A. REMOVAL WAS PROPER AND THIS COURT HAS JURISDICTION BECAUSE THE MONTREAL CONVENTION COMPLETELY PREEMPTS PLAINTIFF'S CLAIMS................................. 2 PLAINTIFF'S CLAIMS FALL WITHIN THE SCOPE OF THE MONTREAL CONVENTION........................................................................ 8 PLAINTIFF WAS NOT WITHOUT A REMEDY ...................................... 12

B. C. IV.

CONCLUSION AND REQUESTED RELIEF........................................................ 13

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1 2 Federal Cases

TABLE OF AUTHORITIES

3 Beneficial National Bank v. Anderson, 539 U.S. 1 (2003) ....................................................................................................... 2, 4 4 Boehringer-Mannheim Diagnostics, Inc. v. Pan American World Airways, Inc., 737 F.2d 456 (5th Cir. 1984).......................................................................................... 3 5 6 Daniel v. Virgin Atlantic Airways Ltd., 59 F. Supp. 2d 986 (N.D. Cal. 1998) ............................................................................. 7 7 Day v. Trans World Airlines, Inc., 393 F. Supp. 217 (S.D.N.Y. 1975)............................................................................... 10 8 9 Donkor v. British Airways, 62 F. Supp. 2d 963 (E.D.N.Y. 1999) ............................................................................. 3 10 El Al Israeli Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999) ......................................................................... 2, 3, 4, 5, 6, 7, 8, 11 11 12 Husmann v. TWA, 169 F.3d 1151 (8th Cir. 1999).................................................................................... 3, 7 13 In re Mexico City Aircrash, 708 F.2d 400 (9th Cir. 1983).................................................................................. 2, 3, 7 14 15 King v. American Airlines, Inc., 284 F.3d 352 (2d Cir. 2002)..................................................................................... 8, 10 16 Knowlton v. American Airlines, Civil Action No. RDB-06-854, 2007 WL. 273794 17 (D. Md. January 31, 2007) ............................................................................... 5, 6, 7, 13 18 Mbaba v. Societe Air France, 457 F.3d 496 (5th Cir. 2006)........................................................................................ 10 19 20 Nigeria Charter Flights Contract Litigation, 520 F. Supp. 2d 447 (E.D.N.Y. 2007) ........................................................................... 6 21 Paradis v. Ghana Airways Ltd., 348 F. Supp. 2d 106 (S.D.N.Y. 2004)........................................................................ 4, 7 22 23 Potter v. Delta Air Lines, 98 F.3d 881 (5th Cir. 1996)............................................................................................ 3 24 Schmeling v. NORDAM, 97 F.3d 1336 (10th Cir. 1996)........................................................................................ 7 25 26 Serrano v. American Airlines, Inc., No. CV 08-2256 AHM (FFMx), 2008 WL. 2117239 (C.D. Cal. May 15, 2008)............................................................................................... 7 27 28
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1 Singh v. North American Airlines, 426 F. Supp. 2d 38 (E.D.N.Y. 2006) ............................................................... 3, 4, 7, 10 2 Twardowski v. American Airlines, Inc., et al., Nos. 06-96-16726, 2008 WL. 2908101 3 (9th Cir. July 30, 2008) .................................................................................................. 2 4 Weiss v. El Al Israel Airlines Ltd., 433 F. Supp. 2d 361 (S.D.N.Y. 2006)............................................................................ 6 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1

Defendant Alaska Airlines, Inc. ("Alaska") respectfully submits this opposition to

2 Plaintiff's motion to remand. 3 4 5 I. INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiff's motion for remand should be denied. As set forth in Alaska's Notice of

6 Removal (Dkt. # 1), and reiterated in this opposition brief, removal was proper and this 7 Court has jurisdiction because Plaintiff's claims are completely preempted by the Montreal 8 Convention in that the Convention "wholly displaces" state law causes of action arising 9 out of an occurrence that falls within the scope of the Montreal Convention. Plaintiff's 10 challenge to Alaska's handling of the Mexican Tourism Tax clearly falls within the scope 11 of the Montreal Convention as the operative "occurrence" took place either when Plaintiff 12 was onboard the Alaska flights (and subject to the additional $22 charge), or when he was 13 in the "embarkation" process for those flights (i.e., during check-in for his flight from 14 California and/or check-in for his return flight to California). Thus, Alaska's removal was 15 proper, and Plaintiff's remand motion should be denied. 16 17 18 19 II. STATEMENT OF ISSUES TO BE DECIDED Pursuant to Local Rule 7-4, Alaska submits that the issues to be decided are: 1. Whether the Montreal Convention provides complete preemption of

20 Plaintiff's claims in the Complaint, so as to provide a proper basis for removal to this 21 Court; and 22 2. Whether Plaintiff's claims in the Complaint fall within the scope of the

23 Montreal Convention. 24 25 26 27 28
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1 2 3 A. 4 5 6

III. ARGUMENT REMOVAL WAS PROPER AND THIS COURT HAS JURISDICTION BECAUSE THE MONTREAL CONVENTION COMPLETELY PREEMPTS PLAINTIFF'S CLAIMS The Supreme Court has held that "a state claim may be removed to federal court . . .

7 when a federal statute wholly displaces the state-law cause of action through complete 8 preemption." (Beneficial Nat'l. Bank v. Anderson, 539 U.S. 1, 8 (2003).) The 9 Montreal Convention clearly displaces all state law causes of action that are based on an 10 occurrence which falls within the scope of the Convention. 11 Article 1 of the Montreal Convention declares that the "Convention applies to all 12 international carriage of persons, baggage, or cargo performed by aircraft for reward." 13 (Convention, Art. 1(1) (emphasis added).)1 Plaintiff was involved in "international 14 carriage" when traveling onboard Alaska Airlines between the United States and Mexico 15 because "[i]nternational carriage" means "any carriage in which . . . the place of departure 16 and the place of destination . . . are situated . . . within the territories of two States Parties 17 . . . ." (Convention, Art. 1(2).) 18 In In re Mexico City Aircrash, 708 F.2d 400 (9th Cir. 1983), the court held that "the 19 Warsaw Convention creates [an exclusive federal] cause of action for wrongful death . . . 20 and the questions of who are entitled to assert that cause of action and what are their 21 respective rights may be" are to "be determined by reference to other federal statutes." (Id. 22 at 415.) Fifteen years later, the Supreme Court held that state law claims cannot be 23 pursued with regard to occurrences that fall within the scope of the Warsaw Convention. 24 (El Al Israeli Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 171-72 (1999); see also 25 Twardowski v. American Airlines, Inc., et al., Nos. 06-96-16726, 2008 WL 2908101 26 27 28 A true and correct copy of the Montreal Convention is attached as Exhibit B to Alaska's Notice Of Removal, filed July 24, 2008. (Dkt. # 1.)
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1 (9th Cir. July 30, 2008), at *2 (the "recovery for a personal injury suffered on board an 2 aircraft or in the course of any of the operations of embarking or disembarking [an 3 aircraft], if not allowed under the Convention, is not available at all") (quotation and 4 citation omitted).)2 5 Plaintiff wants this Court to reject the decisions of multiple courts which "have held

6 that the Warsaw Convention [the predecessor to the Montreal Convention] does 7 completely preempt those claims that fall within its scope." (Singh v. North American 8 Airlines, 426 F.Supp.2d 38, 45 (E.D.N.Y. 2006) (emphasis added) (citing Potter v. 9 Delta Air Lines, 98 F.3d 881, 883 (5th Cir. 1996); Boehringer-Mannheim Diagnostics, Inc. 10 v. Pan American World Airways, Inc., 737 F.2d 456, 458 (5th Cir. 1984); Husmann v. 11 TWA, 169 F.3d 1151, 1153 (8th Cir. 1999); In re Mexico City Aircrash, supra, 708 F.2d at 12 415 (9th Cir. 1983); Donkor v. British Airways, 62 F.Supp.2d 963, 967 (E.D.N.Y. 1999), 13 and other cases).) 14 For example, in Husmann, supra, the plaintiff alleged he had been injured while

15 boarding an airplane in London. The Eighth Circuit affirmed the trial court's decision 16 denying the plaintiff's motion for remand, holding that removal was proper because 17 "[p]ermitting a state court action would undermine the `uniformity' and `certainty' 18 embodied in the Warsaw Convention." (Husmann, 769 F.3d at 1163 (emphasis added).)3 19 Similarly here, removal of Plaintiff's state court action to this Court was proper because 20 permitting a state court action in connection with collection of a foreign-government 21 mandated tax relating to international air transportation would similarly "undermine the 22 uniformity and certainty embodied in" the successor Montreal Convention. (See also 23 Plaintiff asserts that dicta in In re Mexico City Aircrash supports a finding of no 24 complete preemption. (Mot. at 7-8 (citing 708 F.2d at 414 n.25).) However, this assertion conflicts with the actual holding of that case ­ namely, that the Warsaw Convention 25 provided the exclusive basis for plaintiff's wrongful death claim. It also cannot be squared 26 with the Supreme Court's holding in Tseng, supra. 27 28 Significantly, in its moving papers, Plaintiff fails even to mention, much less distinguish, Husmann.
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1 Paradis v. Ghana Airways Ltd., 348 F.Supp.2d 106, 111, 114 (S.D.N.Y. 2004) (plaintiff's 2 breach of contract claim for a flight cancellation was preempted by both the Montreal and 3 Warsaw Conventions, because the treaties "preempt all state law claims within their 4 scope").) 5 However, Plaintiff fails to rebut the outcome of, or rationale behind, any of the

6 cases. For example, Plaintiff's attempt to distinguish the finding of complete preemption 7 in Singh is entirely unavailing. Plaintiff states that the court relied "on an analysis of 8 merits of preemption defense to find complete preemption justifying federal jurisdiction." 9 (Mot. at 5 n.10.) That is not correct. In fact, the court concluded that the Warsaw 10 Convention completely preempted the passenger's claim after applying the two-part test 11 for complete preemption set forth by the Supreme Court in Beneficial, supra. (Singh, 12 426 F.Supp.2d at 42-45.) The Singh court stated: 13 14 15 16 17 18 19 20 21 22 The Supreme Court has not held in haec verba that the Warsaw Convention provides complete preemption. However, in . . . Tseng, 525 U.S. 155, 161 . . . which was decided before the Court set out the two prong test for complete preemption in Beneficial, the Court concluded that the Warsaw Convention precludes a passenger from seeking remedies in state court for injuries that fall within the scope of the Convention but for which the Convention provides no relief. In reversing the Second Circuit Court of Appeals, the Court held that the Warsaw Convention created the exclusive remedy for causes of action within its scope. The Court explicitly held that `recovery for a personal injury suffered on board an aircraft or in the course of any of the operations of embarking or disembarking, if not allowed under the Convention, is not available at all.' . . . After an exhaustive review of the treaty provisions, the Court concluded that the `text, drafting history, and underlying purpose of the Convention, in sum, counsel us to adhere to a view of the treaty's exclusivity shared by our treaty partners.'

23 (Id. at 4.) 24 The Singh court added that "[t]he provisions of the Warsaw Convention also meet

25 the second prong of the Beneficial analysis, in that the statute sets forth procedures and 26 remedies governing the exclusive cause of action provided therein." (Id.) The court 27 explained: 28
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1 2 3 4 5 6 7 8 9 10 11

The Convention sets out detailed procedures for the causes of actions it creates and states which remedies are available for each. Article 17 addresses liability for injury to passengers, Article 18 provides for liability to luggage, and Article 19 establishes liability in cases of delay. Articles 20 and 21 provide the carrier with certain defenses it may impose, Article 22 sets limitations on damages and Article 23 invalidates other limitations on liability. Article 24 provides for the exclusivity of the Convention for causes of action brought under Articles 17, 18 and 19. Article 25 provides that the limits on damages shall not apply in cases of willful misconduct. Article 26 provides for evidentiary presumptions with regard to liability for luggage. Article 27 allows the next of kin to sue on behalf of the deceased in case of death. Article 28 establishes in what jurisdictions a cause of action may be brought and provides that the suit shall be governed by that court's procedures. Article 29 provides a statute of limitations of two years. Finally, Article 30 sets out rules for apportioning liability among multiple defendants.

12 (Id. at 44-45.) 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Plaintiff also fails to distinguish Knowlton v. American Airlines, Civil Action No. RDB-06-854, 2007 WL 273794 (D. Md. January 31, 2007), where the court held that the Montreal Convention completely preempted a passenger's state law claim that she was improperly denied a free breakfast onboard her flight. Similar to the Plaintiff here, the passenger in Knowlton argued that the Warsaw and Montreal Conventions "only address claims for personal injury, property damage, and damage caused by delay during international flights." (Id. at *1.) In rejecting this narrow interpretation, the court emphasized that Articles 17, 18 and 19 of the Montreal Convention are meant to be "exclusive and encompass the scope of international airline liability. Article 29 of the treaty contains an express statement of exclusivity: `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'." (Id. at *2.) The court also noted that "several courts have . . . taken the position that the Warsaw Convention completely preempts all claims arising out of

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1 international flights." (Id. at *4) (emphasis added).) The court explained its finding of 2 complete preemption as follows: 3 4 5 6 7 8 9 10 There is clearly a split of authority over whether the Montreal Convention and its predecessor completely preempt state law claims such as this one. However, this Court is persuaded by the reasoning of those cases finding in favor of preemption. The treaties were designed to create a uniform system of liability among airlines for claims arising from international flights. See Tseng, 525 U.S. at 169 (`Given the [Warsaw] Convention's comprehensive scheme of liability rules and its textual emphasis on uniformity, we would be hard put to conclude that the delegates at Warsaw meant to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations.') As a matter of public policy, airlines should not be subject to contract claims in state courts involving a threedollar breakfast.

11 (Id. at *5 (emphasis added).) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Rather than address the merits of the well-reasoned decision in Knowlton, the Plaintiff unsuccessfully tries to dismiss it out-of-hand as "curious." (Mot. at 5 n.10.) Far from being curious, Knowlton's rationale is straight forward and applies with equal force here. Just as airlines should not be subject to contract claims in state courts involving a three-dollar breakfast, they should not be subject to contract claims in state courts involving a $22 tax. Finally, none of the cases relied on by Plaintiff applies here. In both Weiss v. El Al Israel Airlines Ltd., 433 F.Supp.2d 361 (S.D.N.Y. 2006), and In re Nigeria Charter Flights Contract Litigation, 520 F.Supp.2d 447 (E.D.N.Y. 2007), the court held that the refusal to provide transportation to a passenger was not a claim for delay damages covered under the Montreal Convention but, rather, a claim for breach of contract outside the Convention's scope. (See Weiss, 433 F.Supp.2d at 366 ("bumping, at least under the circumstances alleged in the Complaint, is not covered by the Convention"); Nigeria, 520 F.Supp.2d at 453 (passengers left stranded by airline's refusal to fly "allege[d] nonperformance, not delay"). However, Plaintiff here is not seeking damages for failure to provide promised

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1 transportation.4 Plaintiff's reliance on Daniel v. Virgin Atlantic Airways Ltd., 2 59 F.Supp.2d 986 (N.D. Cal. 1998), is equally misplaced as the court held there that state 3 law claims arising from a delayed flight were cognizable under the Warsaw Convention, 4 albeit not damages for emotional distress. 5 Plaintiff also cites to Schmeling v. NORDAM, 97 F.3d 1336 (10th Cir. 1996), with

6 regard to the distinction between "complete preemption" and "conflict preemption." (Mot. 7 at 8 n.3.) However, the court there recognized that complete preemption exists where, as 8 here, "federal law not only preempts a state law to some degree but also substitutes a 9 federal cause of action for the state cause of action, thereby manifesting Congress's intent 10 to permit removal." (Id. at 1342.) Tseng, Singh, Knowlton, Husmann, Paradis, 11 Mexico City and other cases discussed above make it clear that the Warsaw and 12 Montreal Conventions were intended to substitute a federal cause of action for the state 13 cause of action where, as here, the challenged occurrence falls within the scope of the 14 Convention.5 15 In sum, for the reasons set forth above, the Montreal Convention completely

16 preempts Plaintiff's claims relating to the Mexican Tourism Tax. 17 18 19 Plaintiff claims that Alaska breached an express contractual undertaking by 20 charging him the Mexican Tourism Tax despite his exempt status, but Plaintiff fails to identify any specific provision in the Alaska Contract of International Carriage that Alaska 21 allegedly breached. 5 Although Plaintiff does not cite Serrano v. American Airlines, Inc., 22 No. CV 08-2256 AHM (FFMx), 2008 WL 2117239 (C.D. Cal. May 15, 2008), Alaska 23 notes that the court there held that the Montreal Convention did not completely preempt passengers' claims that American Airlines improperly refused to allow their infant to sit on 24 their laps in business class seats. Not only is Serrano not binding on this Court and at odds with the cases finding complete preemption discussed above ­ (indeed, the court 25 acknowledged the "split in the cases dealing with the doctrine of complete preemption" (id. at *5) ­ but it is also distinguishable because the court opined that under Tseng 26 "recourse to local law is available when one's claim does `satisfy the conditions of liability under the Convention'." (Id. at *4 (citation omitted).) In other words, Serrano was not a case like Tseng ­ or the present action ­ where the plaintiff was seeking "to raise a state 27 law cause of action unauthorized by the . . . Convention." (Id.) 28 -7W02-EAST:9RGG1\200125511.2

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1 B. 2 3

PLAINTIFF'S CLAIMS FALL WITHIN THE SCOPE OF THE MONTREAL CONVENTION Plaintiff's claims in connection with Alaska's handling of the Mexican Tourism

4 Tax clearly fall within the scope of the Montreal Convention because they arise out of one 5 or more "occurrence(s)" which took place either (1) when Plaintiff was onboard the Alaska 6 aircraft; or (2) when Plaintiff was in the "embarkation process" because he was checking 7 in for his flight to or from Mexico. 8 9 10 11 Article 17 of the Montreal Convention provides: The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

12 (Montreal Convention, Art. 17(1) (emphasis added); see King v. American Airlines, Inc., 13 284 F.3d 352, 360 (2d Cir. 2002) (Article 17 (of the Warsaw Convention) "directs [the 14 court] to consider when and where an event takes place in evaluating whether a claim for 15 an injury to a passenger is preempted") (emphasis in original).) 16 The fact that Plaintiff claims non-bodily injury is of no relevance to the

17 jurisdictional inquiry. Article 29 of the Montreal Convention states that "in the carriage of 18 passengers . . . any action for damages, however founded, whether under this Convention 19 or in contract or in tort or otherwise, can only be brought subject to the conditions and 20 such limits of liability as are set out in this Convention . . . ." (emphasis added). In 21 Tseng, supra, 525 U.S. 155, the Supreme Court held that the plaintiff's claim for non22 bodily injury, although not actionable under Article 17 of the Warsaw Convention, was 23 nevertheless within the scope of Article 17, which it read to cover "exclusively, the 24 airline's liability for passenger injuries occurring `on board the aircraft or in the course of 25 any of the operations of embarking or disembarking'." (Id. at 171-72 (citing Article 17) 26 (emphasis added). ) 27 Here, the operative "occurrence" for purposes of the Montreal Convention was

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1 transportation for $22 more than he believes he should have owed; or (2) when Plaintiff 2 checked in at the California airport for his flight to Mexico and/or at the Mexican airport 3 for his return flight to California. As Plaintiff does not dispute, if the operative occurrence 4 took place when Plaintiff was onboard the aircraft, it was clearly covered by the Montreal 5 Convention. (See Convention Art. 17.) Plaintiff was injured, if at all, by Alaska's

6 charging of the Tax when he actually took the flight ­ a flight for which he had to pay 7 $22 more than he claims he should have been charged ­ because if the Plaintiff had 8 decided not to board the Alaska flight, and was eligible for a refund of his ticket, he would 9 have been refunded the $22 Mexican Tourism Tax. (See DECLARATION OF KEVIN THIEL 10 ("THIEL DECL.") ¶ 11 ("If a passenger cancels his or her ticket prior to a flight and is 11 entitled to a refund of the ticket price, Alaska also refunds the Mexican Tourism Tax that 12 was collected at the time that the ticket was purchased").)6 13 Alternatively, the operative occurrence was during airport check-in in California,

14 which was the initial time in which Alaska physically could have reviewed Plaintiff's 15 passport or other visa documentation to verify that Plaintiff was in fact exempt from the 16 Tax. Alaska also theoretically could have determined whether Plaintiff possessed the 17 necessary documentation to qualify as exempt from the Tax when he embarked on his 18 departure from Mexico back to the United States. Although airlines are required to collect 19 the Tax from passengers before they enter Mexico, the Mexican government requires 20 airlines to remit the Mexican Tourism Tax based on passengers transported on flights 21 departing Mexico. (THIEL DECL. ¶ 5.) Alaska's customer service agents stationed at 22 Mexican airports attempt to determine whether or not a passenger returning to the 23 United States is exempt from the Mexican Tourism Tax in order to complete the departure 24 manifest forms (in Spanish, the "Manifesto Salida") that are a prerequisite for aircraft to 25 26 27 28
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1 leave Mexico bound for the United States. (Id. ¶ 9.)7 Alaska personnel are obligated to 2 check passengers' passports during the boarding process of flights from Mexico to the 3 United States, but may not become aware that a passenger holds a visa that entitles him to 4 exemption from the Tax. 5 The process of airport check-in is unquestionably part of the "embarkation" process.

6 In Day v. Trans World Airlines, Inc., 393 F.Supp. 217 (S.D.N.Y. 1975), aff'd, 528 F.2d 31 7 (2d Cir. 1975), the court observed that "[u]nder modern conditions of international air 8 travel, the period between the moment a passenger enters the airport until he is safely 9 aboard the aircraft often comprises a substantial amount of time and effort, much of which 10 may be said reasonably to constitute embarking." (Day, 393 F.Supp. at 222.) The court 11 specifically listed "present[ation] [of] tickets to TWA at the checking [sic] desk on the 12 upper level" as the first of 11 steps in the "embarkation" process. (Id. at 221; see also 13 Singh, 426 F.Supp.2d at 48 (Warsaw Convention completely preempted claim that 14 passenger was injured by airline employees' conduct in placing his identification tag on 15 luggage containing illegal drugs, where the "accident" "occurred in the process of 16 checking in itself") (emphasis added); King, 284 F.3d 352 (claim that passengers were 17 "bumped" prior to boarding a flight because of their race preempted by the Warsaw 18 Convention because the "bumping" occurred as part of the embarkation process).) 19 Even Plaintiff concedes that flight check-in is part of the embarkation process. In

20 discussing the case Mbaba v. Societe Air France, 457 F.3d 496 (5th Cir. 2006), 21 cert. denied, 127 S. Ct. 959 (2007), where the court held that the Warsaw Convention 22 preempted plaintiff's state law claims relating to his having to pay an excess baggage fee 23 at the time of check-in, Plaintiff acknowledges that "[i]n Mbaba plaintiff's damages 24 occurred during check-in, that is during the embarking process for his trip and the court 25 26 27 28 A sample departure manifest form is set forth at Exhibit E to Alaska's Notice of Removal. (Dkt. # 1.)
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1 found his claims preempted."

(Mot. at 11 (emphasis added).)8

Because Plaintiff's

2 damages also occurred during check-in ­ when Alaska arguably could have checked his 3 passport or visa documentation but failed to do so ­ his claims are similarly preempted by 4 the Montreal Convention. 5 There is no merit to Plaintiff's argument that the operative occurrence was when he

6 purchased his ticket and was charged the Mexican Tourism Tax. (Mot. at 11.) The 7 Declarations attached to Alaska's Notice of Removal make it clear that it was not 8 physically possible for Alaska to have determined at the time of ticketing whether Plaintiff 9 qualified for an exemption to the Mexican Tourism Tax. (See THIEL DECL. ¶ 8 ("since the 10 vast majority of passengers purchase their tickets from Alaska through the internet or over 11 the telephone, it is not possible for our company to determine whether a customer 12 qualifies for a Tourism Tax Exemption at the time that the ticket is purchased") 13 (emphasis added); DECLARATION OF STEVE JARVIS ¶ 5 ("When a passenger purchases a 14 ticket on Alaska through the internet or other computer system, or via our telephone 15 reservations call centers, it is not feasible for our employees to determine at that time 16 whether or not the passenger can present the requisite proof of his or her exempt 17 status") (emphasis added); DECLARATION OF JEFF BUTLER ¶ 3(d) ("it is not feasible to 18 verify at the time of purchase whether or not that passenger qualifies for an exemption"). 19 Noticeably absent from Plaintiff's moving papers is any attempt whatsoever to rebut this 20 uncontroverted testimony from Alaska. Since Alaska clearly cannot be liable for failing to 21 perform an act that is impossible to perform, the operative occurrence cannot be Alaska's 22 inclusion of the Mexican Tourism Tax at the time Plaintiff's ticket was purchased. 23 Alaska maintains that it is not feasible to review the documentation of every

24 passenger that checks in for a flight between the United States and Mexico to determine if 25 the passenger is exempt from the Tax. When a passenger purchases his ticket over the 26 In Tseng, supra, the parties did not dispute that an intrusive pre-boarding search of a passenger "occurred in international transportation in the course of embarking." (Tseng, 27 525 U.S. at 166-67.) 28 -11W02-EAST:9RGG1\200125511.2

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1 Internet or by telephone, it is physically impossible for the airline to examine the 2 passenger's passport or other documentation evidencing possession of a visa that renders 3 the passenger exempt from the Tax. In contrast, it is physically possible during the airport 4 check-in process for the carrier's agent to review the passport and the relevant visa, if the 5 passenger possesses it. Thus, the operative "occurrence" for purposes of the Montreal 6 Convention would be when Plaintiff checked-in for his flights, rather than when he 7 purchased his tickets. 8 In conclusion, Plaintiff's claims clearly fall within the scope of the

9 Montreal Convention because the operative occurrence was either when Plaintiff was 10 onboard the aircraft (and had to pay $22 more than he claims he should have for that 11 transportation) or when he was embarking on the flight to or from Mexico. 12 13 C. 14 PLAINTIFF WAS NOT WITHOUT A REMEDY Application of the Montreal Convention to Plaintiff's claims does not mean that he

15 or other exempt passengers who have paid the Mexican Tourism Tax are without a 16 remedy. To the contrary, all such passengers need to do is timely request a refund of the 17 Tax and provide proof of the passenger's exempt status. Significantly, there is no merit to 18 Plaintiff's assertion that Alaska has "concede[d] it has no procedure by which an exempt 19 passenger (such as Plaintiff) may request a refund for a wrongfully imposed tax on a used 20 ticket." (Mot. at 12.) To the contrary, the undisputed testimony from Alaska is that: 21 22 23 24 25 26 27 28
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If an Alaska Airlines passenger who qualifies for a Tourism Tax Exemption paid cash for his or her ticket and requests a refund at the airport in Mexico, the Alaska staff may provide a cash refund to that passenger. However, the large majority of Alaska customers use credit cards to purchase their tickets. In those instances where a passenger that qualifies for a Tourism Tax Exemption bought the ticket with a credit card, he or she can request and receive a refund of the Mexican Tourism Tax by contacting our Revenue Accounting Department and providing the necessary proof of exemption.

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OPPOSITION TO MOTION FOR REMAND

Case No.: C:08-03560 (JSW)

Case 3:08-cv-03560-JSW

Document 15

Filed 08/27/2008

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1 2 3 4 5 6

THIEL DECL. ¶ 10 (emphasis added); see also BUTLER DECL. ¶ 3(d) ("the exempt passenger can apply for a refund by providing the necessary documentation to the airline"). IV. CONCLUSION AND REQUESTED RELIEF. For all of the reasons set forth above, Alaska respectfully requests that this Court

7 deny Plaintiff's motion for remand. Just as airlines should not be subject to contract 8 claims in state courts involving a three-dollar breakfast (see Knowlton, supra), they should 9 not be subject to contract claims in state courts involving a $22 tax. 10 11 Dated: August 27, 2008 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By /s/ Philip F. Atkins-Pattenson PHILIP F. ATKINS-PATTENSON Attorneys for Defendant ALASKA AIRLINES, INC.

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OPPOSITION TO MOTION FOR REMAND

Case No.: C:08-03560 (JSW)