The opinion of the court was delivered by: Amon, United States District Judge
This is a civil action brought by plaintiffs Richard Singh ("Singh") and his wife Rajkumari for damages caused by Singh's detention, arrest and incarceration upon suspicion of having illegally imported drugs into the United States. Singh claims to have suffered serious emotional and personal injuries and deprivations of his civil rights, some of which are permanent in nature. Rajkumari claims the loss of services, society, companionship and consortium of her husband.
This Court having vacated its judgment dismissing the original complaint, Singh and his wife served a Verified Complaint invoking this Court's federal question and civil rights subject matter jurisdiction under 28 U.S.C. §§ 1331, 1343 and 1367. However, plaintiffs now contend that this Court does not in fact have subject matter jurisdiction over the action and moves for remand to state court, while defendant argues that the matter is properly in front of this Court. For the foregoing reasons, plaintiffs' motion to remand is denied.
On July 17, 2003, Singh boarded a flight from Georgetown, Guyana to New York's JFK Airport. After arriving in New York and upon attempting to leave JFK Airport, Singh was arrested on the grounds that luggage bearing his name had been found to contain illegal drugs and controlled substances. Singh was incarcerated for almost nine months. In unrelated criminal prosecutions, two employees of Northwestern Airlines pled guilty to using passenger luggage to illegally transport drugs and controlled substances into the United States. This Court dismissed the criminal indictment against Singh on March 10, 2004.
Singh alleges that defendant was aware that its employees were transporting contraband and illegal substances in the names of lawful passengers and/or willfully ignored such practices and thus acted negligently in failing to prevent them from engaging in this activity. Singh argues this negligence was the cause of his and his wife's respective injuries.
The summons with notice, originally filed in the Supreme Court of the State of New York, Queens County, was removed to this Court by defendant on September 9, 2004. The notice alleged the nature of the actions as "Intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, negligent hiring, negligent supervision, negligent training, false arrest, malicious prosecution, false imprisonment, violation of plaintiff's Civil Right under USC § 1983 and fraud." Defendant's Notice of Removal alleged that "Plaintiff's federal claim arises under 29 U.S.C. § 1983. This is a civil action to enforce right under § 1983 and thus invokes the original jurisdiction of the United States District Court."
Defendant then filed a motion to dismiss the complaint for failure to state a cause of action on October 26, 2004. At a status conference on October 27, 2004 before Magistrate Judge Gold, counsel for all parties agreed that "the federal question claim upon which removal of this action from state court was based", i.e., the § 1983 claim, "can not proceed" and plaintiffs agreed to "voluntarily dismiss the federal question claim and the parties will file a stipulation remanding this action to state court within thirty days." (Oct. 10, 2004, Minute Entry). On January 21, 2005, Magistrate Judge Gold noted that plaintiffs had neither complied with the October 27, 2004 Order nor entered a stipulation and consequently ordered plaintiffs to comply with his previous order. On March 4, 2005, plaintiffs still having failed to comply with the order, Magistrate Judge Gold issued a Report and Recommendation ("R&R") recommending that the case be dismissed and allowing objections to be filed no later than March 25, 2005. On April 20, 2005, no objections having been filed, this Court adopted the R&R dismissing the case.
On April 22, 2005, plaintiffs informed this Court by letter that they had not been served with the R&R, that defendant's counsel had informed them that it would not stipulate to the action's remand as it believed this Court had jurisdiction under the Airline Deregulation Act, § 49 U.S.C. 41 et seq ("ADA"), and that plaintiffs had consequently served a verified complaint on defendant on December 30, 2004, invoking this Court's subject matter jurisdiction pursuant to § 1331 (federal question), § 1343 (civil rights conspiracy) and § 1367 (supplemental jurisdiction). This verified complaint was not filed with this Court.
On May 2, 2005, plaintiffs' counsel requested leave to vacate the judgment. At a telephone conference on May 13, 2005, plaintiffs indicated that, despite serving defendant with a complaint invoking federal jurisdiction, they had then come to believe that the case should be remanded. Accordingly, this Court vacated the order of dismissal and directed both parties to file papers within 30 days stating their positions as to whether this Court has jurisdiction over the claims. Both parties filed such papers on June 13, 2005. Plaintiffs argued that the matter should be remanded to state court and that their state court claims were not preempted by the ADA. Defendant argued that this Court had jurisdiction over the claims pursuant to both the ADA and the Convention for the Unification of Certain Rules Relating to International Transportation by Air, App. 29 U.S.C. § 40105 ("the Warsaw Convention" or "the Convention") and so plaintiffs' motion for remand should be denied.
Detecting confusion on the parts of both parties, the Court held a status conference on December 8, 2005, and explained that the ADA did not itself provide this Court with subject matter jurisdiction over the claims even if it applied, but was rather an affirmative defense that could be asserted against state law claims for damages. Defendant maintained its position that the case was properly before this Court under the Warsaw Convention if not the ADA. Plaintiffs took the position that, although their verified complaint had alleged that defendant "violated plaintiff Richard Singh's constitutional and common-law rights to be free from unreasonable and excessive use of force; his constitutional right to be free from detention; and his other rights under the State and Federal Constitution" and cited to 28 U.S.C. § 1343 (providing jurisdiction over claims for conspiracy to deprive the equal protection of the laws), they then wanted to "withdraw" and "discontinue" their civil rights claim and pursue "state negligence" as their sole claim. (Tr. 5: 21-23; 12:8-13; 13:7-9;18:1-7) As plaintiffs had not had the opportunity to brief the issue of whether the Warsaw Convention should apply to its negligence claim and, if it did, whether it provided this Court with subject matter jurisdiction, the Court ordered defendant to submit a supplemental brief stating its argument as to why the Warsaw Convention provides this Court with subject matter jurisdiction over plaintiffs' claims, and gave plaintiffs the opportunity to reply to that argument.
In its supplemental brief, filed on December 14, 2005, defendant argued that this Court has jurisdiction because plaintiffs' claims fall under the Warsaw Convention.*fn1 In their reply, filed December 21, 2005, plaintiffs argued that their injuries did not fall under the Warsaw Convention and their claims are not preempted and should be remanded to state court.
Under 28 U.S.C. § 1441(a), an action that was originally filed in state court may be removed by a defendant to federal court only if the case originally could have been filed in federal court. Caterpillar v. Williams, 482 U.S. 386, 392 (1987). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 USCS § 1447(c). This is true "irrespective of whether removal ...