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 ...