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United States District Court, Southern District of New York

May 5, 2003


The opinion of the court was delivered by: John F. Keenan, United States District Judge


Currently before the Court are motions to remand to Texas state court two separate cases stemming from the crash of American Airlines Flight 587 in Belle Harbor, New York to Texas state court. Counsel for the plaintiffs is the same in each case; the defendants are the same and are represented by the same counsel in each case; and the operative set of facts and legal issues presented are identical in each case. For those reasons, and in the interests of judicial economy, this one opinion and order will serve as a decision in each case.


On November 12, 2001, American Airlines Flight 587 crashed in Belle Harbor, New York. The crash of the Airbus A300-600 bound for Santo Domingo, Dominican Republic occurred shortly after its takeoff from John F. Kennedy International Airport. Tragically, the crash resulted in the deaths of all 251 passengers and nine crew members on board, as well as that of five persons on the ground. Among the deceased passengers were Orlando Matos Perez, for whom Keila Yahaira Heredia Mendez ("Mendez") brings the action docketed in this Court as number 02 Civ. 6746 (JFK) as spouse and next friend of the decedent's minor child. Also aboard the flight was Luisa Martinez Gomez, for whom 02 Civ. 6747 (JFK) has been brought by Ivellise Gomez Diaz ("Diaz") as next friend of the decedent's minor child.

The cases pending in this Court are but two of more than 260 lawsuits that have been filed as a result of Flight 587's crash. In light of the large number of cases arising from the same event and in the interests of "the parties and witnesses and . . . the just and efficient conduct of this litigation," the Judicial Panel on Multidistrict Litigation ("MDL") transferred all of the lawsuits to the Southern District of New York for coordinated and consolidated pre-trial proceedings pursuant to 28 U.S.C. § 1407. See In re Air Crash at Belle Harbor, N.Y., on Nov. 12, 2001, 203 F. Supp.2d 1379 (J.P.M.L. 2002). The original transfer order consolidated the cases before the Honorable Robert W. Sweet. See Conditional Transfer Order No. 5, July 31, 2002. In a letter dated October 2, 2002, Judge Sweet notified the MDL that he needed to recuse himself from two of the cases consolidated before him.*fn1 On October 16, 2002, the MDL entered an order reassigning both cases to this Court.

Both Mendez and Diaz filed their complaints on April 30, 2002 in the District Court of Tarrant County, Texas. Named as defendants in each action were American Airlines, Inc. ("American Airlines"), American Airlines Vice-Chairman Robert W. Baker ("Baker"), Airbus Industrie Inc., Airbus North America, G.E. and unidentified Defendants A-F. Airbus Industrie G.I.E. ("Airbus") has since been substituted as the proper defendant in place and instead of Airbus Industrie, Inc. and Airbus North America. On July 10, 2002, American Airlines timely removed both actions to the United States District Court for the Northern District of Texas pursuant to 28 U.S.C. § 1331 and 1441 on the basis of the Warsaw Convention*fn2 (49 U.S.C. § 40105). On July 30, 2002, plaintiffs in each case filed a Remand Motion. For procedural reasons each was "unfiled" by the District Court in Texas on August 1, 2002. Not long thereafter the cases were brought before the MDL for consolidation and transfer. After ultimately finding their way to this Court, plaintiffs counsel informed the Court of its desire to refile its motions. The Court granted plaintiffs' request.


Standard of Review and Applicable Law

As a starting point, it should be noted that when a remand motion is made, the party opposing remand bears the burden of demonstrating the existence of removal jurisdiction. Grimo v. Blue Cross/Blue Shield, 34 F.3d 148, 151 (2d Cir. 1994). It is also important to understand that when deciding motions, MDL transferee courts are expected to apply the law of the circuit in which it sits, not that of the transferor court. See Coker v. Pan Am. World Airways, Inc., 950 F.2d 839, 847 (2d Cir. 1991); DeGeorge v. Am. Airlines, Inc., 2002 WL 31356266 at *2 (S.D.N.Y. Oct. 17, 2002); In re NASDAQ Market Makers Antitrust Litig., 929 F. Supp. 174, 177 (S.D.N.Y. 1996)

Section 1441(b) of the United States Code provides that "[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties." The determination as to whether a claim or right arises under the Constitution, treaties or laws of the United States depends upon whether the plaintiff's well-pleaded complaint raises issues of federal law. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). The "well-pleaded complaint rule" is so singularly focused on the complaint that possible defenses involving issues of federal law are ignored. See Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for So. Cal., 463 U.S. 1, 10 (1983). By looking solely at the complaint and ignoring possible defenses, the "well-pleaded complaint rule" allows a plaintiff to formulate its complaint in a manner designed to avoid federal court if it so chooses. DeGeorge, 2002 WL 31356266, at * 2.

Although the focus is on the complaint, the well-pleaded complaint rule has two very important corollaries: the "complete pre-emption" doctrine and the "artful pleading" doctrine. Id. Particularly relevant to the cases at bar is the complete pre-emption doctrine. Under this doctrine, state common-law claims are converted to federal-law claims where Congress has demonstrated its intent to have federal law occupy the full breadth of a field. As the Supreme Court stated in Caterpillar Inc. v. Taylor, 482 U.S. 386, 393 (1987)

On occasion . . . the pre-emptive force of a statute is so "extraordinary" that it "converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule." Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.
(quoting Metro. Life Ins. Co., 481 U.S. at 65.

Complete Pre-emption by the Warsaw Convention

The Warsaw Convention was crafted at an international

conference in 1929 with the hope of stimulating the growth of the just emerging airline industry. See E. Airlines, Inc. v. Floyd, 499 U.S. 530, 546 (1991). The purpose of drafting the Warsaw Convention was to create uniform rules governing claims arising from international air transportation. El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 169 (1999). To this end, "[t]he Warsaw Convention create[d] an exclusive cause of action for damage sustained in international air travel, establishing an absolute right to compensation while limiting recovery available in all suits to which it applies." Siben v. Am. Airlines, Inc., 913 F. Supp. 271, 276 (S.D.N.Y. 1996)

Cognizant of the intention of the Warsaw Convention's drafters to bring uniformity to the laws governing the liability of air transportation, the Supreme Court has held that the Warsaw Convention completely preempts state common-law claims regarding personal injuries suffered during air travel. In Tseng, the Court "h[e]ld that recovery for 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." Tseng, 525 U.S. at 161 (quoting Article 17 of the Warsaw Convention). The Court went on to support its holding by stating that: "Recourse to local law, we are persuaded, would undermine the uniform regulation of international air carrier liability that the Warsaw Convention was designed to foster." Id. Although the Second Circuit has never held directly that all state common-law claims for personal injuries suffered in international air travel are completely preempted, it has acknowledged as much. In In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1276 (2d Cir. 1991), cert. denied, 502 U.S. 920 (1991), the circuit court stated: "[T]he existence of state causes of action would not only result in the inconsistent application of law to the same accident, but also would cause enormous confusion for airlines in predicting the law upon which they would be called to respond."

It is only logical that from the Supreme Court's holding that the Warsaw Convention provides the exclusive means of redress for an injured passenger and the Second Circuit's views on the effect the existence of state claims would have on the airline industry would follow the complete pre-emption of state common-law claims in this area. As Judge Sweet, one of the court's most respected and experienced jurists in this particular field, stated in a companion case to these: "[The exclusivity of the Warsaw Convention] supports a finding that international air travel is so completely pre-empted that a well-pleaded state-law complaint necessarily becomes a federal claim." DeGeorge, 2002 WL 31356266, at *4 This Court agrees.

Effect of Willful Misconduct

The plaintiffs argue that actions grounded in willful misconduct are not removable under the Warsaw Convention. Pl. Mem. Opp. Motion to Remand at 5. Plaintiffs draw support for this argument from Article 25 of the Warsaw Convention which states:

(1) The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his willful misconduct or such default on his part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to willful misconduct. (2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused under the same circumstances by any agent of the carrier acting within the scope of his employment.
49 U.S.C. § 40105, Art. 25. Plaintiffs also rely on a statement made by Justice Stevens in his dissent to the Tseng majority. Pl. Mem. Opp. Motion to Remand at 5. Justice Stevens wrote that the Warsaw Convention "does not preempt local law in cases arising out of "willful misconduct'" Tseng, 525 U.S. at 178 (Stevens, J., dissenting)

Plaintiffs allege that the crash was caused by a defect in the plane's rudder. According to plaintiffs, Airbus was well aware of "the potential for dangerous tail loads resulting from rudder reversals on the A300-600." Pl. Mem. Opp. Motion to Remand at 6. Plaintiffs also believe that Baker and American Airlines had ample warning of the problem. Id. The defendants were alerted to the problem, say the plaintiffs, by discoveries made during Airbus's certification of the A300 and by the investigation of the 1997 crash of American Airlines Flight 903. Id. The failure of the defendants to remedy the known defect, plaintiffs claim, amounts to willful misconduct and, therefore removes their claims from the scope of the Warsaw Convention.

The issue of whether the defendants are guilty of engaging in willful misconduct is a serious one, and one which likely will need to be decided at the appropriate juncture. This, however, is not that juncture. Despite plaintiffs arguments to the contrary, willful misconduct does not remove an action from the scope of the Warsaw Convention. A careful reading of the Article 25 language cited by plaintiffs bears this point out. The first sentence of the article states: "The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his willful misconduct or such default on his part." (emphasis added) The clear import of these words is that a carrier guilty of willful misconduct is not entitled to benefit from liability limits set forth in Article 22 of the Warsaw Convention. Nowhere does Article 25 state or even imply that willful misconduct removes a claim entirely from the scope of the Warsaw Convention' s provisions.

Although the Second Circuit has yet to address this issue specifically, it has stated that "Article 25 only refers to terms within the Convention." Lockerbie, 928 F.2d at 1286 (emphasis added). Furthermore, this Court's interpretation of Article 25 is similar to that adopted in other circuits. In In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1489 (D.C. Cir. 1991), the D.C. Circuit reasoned that "certain key articles in the Convention continue to apply in cases of willful misconduct, and no authority suggests that the basic liability terms of Article 17 . . . were to be displaced." Likewise, the Ninth Circuit stated: "[A] finding of "willful misconduct' under Article 25 was not intended to remove the plaintiff from the ambit of the Convention." Carey v. United Airlines, 255 F.3d 1044, 1049 (9th Cir. 2001)

That this Court's reading of Article 25 is the one intended by the Warsaw Convention's drafters and signatories is borne out by the changes made to the language of Article 25 by Montreal Protocol No. 4*fn3 The amended Article 25 reads:

In the carriage of passengers and baggage, the limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of employment.
This language confirms that Article 25 should be read only to preclude the carrier from benefitting from the Warsaw Convention's monetary limits on liability. The fact that Article 25 was amended as it was can reasonably be inferred to signal the signatories disagreement with the notion that willful misconduct removed an action from the framework of the Warsaw Convention.

With regard to Justice Stevens's words, they were written in a dissenting opinion. The majority did not adopt the Justice's view, and it, therefore, carries no precedential value.

Applicability of the Warsaw Convention to Airbus

Plaintiffs, almost as an after-thought, argue that the Warsaw Convention applies only to "carriers" and, therefore, Airbus — which is a manufacturer and not a carrier — is not covered by its provisions. Article 17, which is the linchpin to coverage in these cases, reads:

The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
Plaintiffs are correct that Article 17 refers specifically to "carriers" and does not make reference to manufacturers of aircrafts. The Second Circuit has stated that the Warsaw Convention "is to be so construed as to further its purposes to the greatest extent possible, even if that entails rejecting a literal reading." Benjamins v. British European Airways, 572 F.2d 913, 918 (2d Cir. 1978). Mindful of this instruction, an argument could easily be made and intellectually supported that in a legal climate in which multi-party litigation featuring joint and several liability is common, interpreting the Warsaw Convention to cover manufacturers as well as carriers is appropriate. The Court need not venture down that road, however. Instead, the Court will simply grant supplemental jurisdiction.

Section 1367(a) of the United States Code provides in pertinent part:

[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction will include claims that involve the joinder or intervention of additional parties.
This is clearly a circumstance in which supplemental jurisdiction is appropriate. The claims against Airbus arise out of the very same facts that the cases against American Airlines and Baker arise out of, and judicial economy favors exercising supplemental jurisdiction. See In re Air Crash Disaster of Aviateca Flight 901 Near San Salvador, El Salvador on Aug. 9, 1995, 29 F. Supp.2d 1333, 1338-39 (S.D.Fl. 1997) ("The Court agrees that if jurisdiction is proper in the United States pursuant to the Warsaw Convention over any of the claims presented herein, than the Court may in its discretion, exercise supplemental jurisdiction over any other claims arising out of the same air crash that may be brought in the United States.").

The Removal Petition

Plaintiffs contend that American Airlines's removal petitions were procedurally defective. The basis for their argument is that not all of the defendants joined in the petitions. American Airlines responds by directing the Court's attention to the fact that at the time American Airlines filed the petition, none of the other defendants had been served with service of process. It is well-settled that a removing defendant need not obtain the consent of non-served defendants to remove an action. This only makes sense considering that the court cannot exert personal jurisdiction over a non-served defendant. See Varela v. Flintlock Constr., Inc., 148 F. Supp.2d 297, 300 (S.D.N.Y. 2001); Ell v. S.E.T. Landscape Design, Inc., 34 F. Supp.2d 188, 194 (S.D.N.Y. 1999)

Plaintiffs argue that there is an exception to the rule that non-served defendants need not consent. The exception is that if the non-joining defendant is a resident of the forum state, failure to serve the resident defendant does not justify removal by the non-resident defendant. Pl. Mem. Opp. Motion to Remand at 7-8. The problem with plaintiffs argument is that it, and the Pullman Co. v. Jenkins, 305 U.S. 534 (1939) case on which it relies, are focused on instances where federal jurisdiction is based on diversity of citizenship and removal is under 28 U.S.C. § 1441(a). That is not the case here. Here federal jurisdiction is, as is discussed at length above, based upon federal question jurisdiction (28 U.S.C. § 1331) and removal was effected under 28 U.S.C. § 1441(b). In this circumstance, the exception offered by the plaintiffs does not apply. Thus, the petitions are effective.


For the foregoing reasons, the Court finds that removal was proper and the plaintiffs' motion to remand is hereby denied.


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