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Biscone v. Jetblue Airways Corp.

February 4, 2010

KATHARINE BISCONE, PLAINTIFF,
v.
JETBLUE AIRWAYS CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Glasser, United States Senior District Judge

MEMORANDUM AND ORDER

On February 13, 2008, the plaintiff Katharine Biscone ("Biscone") filed a summons with notice in state court directed at the defendant JetBlue Airways Corporation ("JetBlue"). A complaint was subsequently filed, on July 15, 2009, alleging several causes of action on behalf of Biscone and a proposed class of similarly-situated individuals arising out of an incident in which JetBlue passengers were detained on board airplanes for an extended period of time. JetBlue removed the action to this Court on August 13, 2009 and filed a motion to dismiss one week later. On September 10, 2009, Biscone filed a motion to remand the action to state court. Because this Court does not have jurisdiction to hear this case as it currently stands, the motion to remand is granted.

FACTS*fn1

On February 14, 2007, Biscone boarded JetBlue flight 351, scheduled to depart at 6:45 AM, at John F. Kennedy International Airport ("JFK"). The plane pulled away from the gate at approximately 6:50 AM. For the first five hours, passengers were confined to their seats while waiting for the plane to take off. After five hours, passengers were asked to inform JetBlue personnel if they wished to get off the plane, but passengers who did so were told that they could not and were threatened with criminal prosecution if they attempted to deplane. After approximately eight hours the aircraft's ventilation system shut down, and after ten hours the passengers were informed that the toilets were unusable because the tanks were full. At 5:30 PM, approximately eleven hours after boarding, the passengers were provided with shuttle buses to return to the terminal. Passengers were forced to wait another two hours for the return of their luggage. Biscone alleges that there were approximately 1300 passengers similarly affected by JetBlue's actions, including some passengers on international flights.

DISCUSSION

1. Timeliness and Deficiency of Notice of Removal

As an initial matter, objections raised by Biscone to the timeliness of the notice of removal and to its formal deficiency have been considered and are without merit. In addition, given the determination of this motion they are superfluous.

2. Subject Matter Jurisdiction

a. Legal Standard

This Court has original jurisdiction over "civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Furthermore, 28 U.S.C. § 1367 allows this Court to exercise supplemental jurisdiction over state law claims that are part of the same case or controversy as the claims within this Court's original jurisdiction. A defendant in a civil action brought in state court, but within the district court's original jurisdiction, may remove that action to federal court. 28 U.S.C. § 1441(a), (b). Under 28 U.S.C. § 1447(c), if this Court at any time determines that it lacks subject matter jurisdiction, it must remand the case to state court. The motion to remand currently pending thus requires this Court to determine whether the action falls within this Court's federal question and supplemental jurisdiction as defined by §§ 1331 and 1367.

b. Federal Question Jurisdiction over Montreal Convention Claims

In her complaint, Biscone alleged that the claims of "class members who [sic] whose travel at JFK was part of an international trip" would be governed by the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, reprinted in S. Treaty Doc. No. 106-45, 1999 WL 33292734 (2000) ("Montreal Convention"). Compl. ¶ 66. JetBlue argues that these prospective class members' federal claims under the Montreal Convention provide a basis for removal to this Court.

It is beyond doubt that a claim brought under the Montreal Convention would normally be sufficient to invoke this Court's federal question jurisdiction. "As a treaty of the United States, the [Montreal] Convention is considered federal law for subject matter jurisdiction purposes and is the supreme law of the land." Best v. BWIA West Indies Airways Ltd., 581 F. Supp. 2d 359, 362 (E.D.N.Y. 2008); see also 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." (emphasis added)).

Biscone argues to the contrary, citing two cases from other jurisdictions, Serrano v. Am. Airlines, Inc., No. CV 08-2256 AHM (FFMx), 2008 WL 2117239 (C.D. Cal. May 15, 2008), and Narkiewicz-Laine v. Scandinavian Airlines Sys., 587 F. Supp. 2d 888 (N.D. Ill. 2008), for the proposition that the Montreal Convention does not provide a basis for federal jurisdiction. These cases, however, are entirely inapposite. In each, defendants removed a case in which only state law claims had been pleaded, arguing that the Montreal Convention completely preempted those claims, and thus, the "complete preemption" doctrine provided a basis for federal jurisdiction. Serrano, 2008 WL 2117239, at *2; Narkiewicz-Laine, 587 F. Supp. 2d at 889. In each case, the court rejected the complete preemption argument and remanded.*fn2 Serrano, 2008 WL 2117239, at *3; Narkiewicz-Laine, 587 F. Supp. 2d at 890. In this case, however, JetBlue does not rely on complete preemption, but rather upon the explicit ...


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