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Nankin v. Continental Airlines

January 29, 2010

PABLO NANKIN, AN INDIVIDUAL; AND ELEANOR ARLENE NANKIN, AN INDIVIDUAL, PLAINTIFFS,
v.
CONTINENTAL AIRLINES, INC., A DELAWARE CORPORATION; CARL STEWART, AN INDIVIDUAL; AND DOES 1 THROUGH 20, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Margaret M. Morrow United States District Judge

ORDER REMANDING ACTION TO STATE COURT

On August 31, 2009, Pablo and Eleanor Arlene Nankin filed this action against Continental Airlines, Inc. ("Continental"), Carl Stewart, and certain fictitious defendants in Los Angeles Superior Court. Defendant Continental was served with a copy of the summons and complaint on September 28, 2009. Both Continental and Stewart filed answers in state court on October 26, 2009.*fn1 Continental removed the action to federal court on October 28, 2009.

On January 15, 2010, the court issued an order to show cause why the case should not be remanded for lack of subject matter jurisdiction.*fn2 Continental filed a response to the order to show cause on January 22, 2010, asserting that federal jurisdiction exists because plaintiff's state law claims are preempted by the Montreal Convention, a treaty of the United States.*fn3

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Plaintiff's Complaint

This action concerns damages allegedly sustained by plaintiffs while traveling internationally from Acapulco, Mexico to Los Angeles. Plaintiffs purchased round-trip airline tickets from Continental for a vacation to Mexico.*fn4 On their return to the United States, plaintiffs had a stop-over in Houston, Texas.*fn5 Both plaintiffs assert that, although they had less than one hour to get to their next flight, Maria Mahar, an employee and agent of Continental, refused to help them move quickly through immigrations and customs at the Houston airport.*fn6 Mahar asserted that she had no obligation to do so because Continental had other flights going to Los Angeles.*fn7 Pablo Nankin spoke with Mahar's supervisor, Carl Stewart. Stewart purportedly said he was a Continental supervisor and TSA agent, although he presented no identification. Stewart too allegedly refused to help plaintiffs.*fn8 When Nankin asked Stewart for his name, Stewart allegedly seized Pablo Nankin's boarding pass and insisted that immigration officers intervene.*fn9 Once immigration officers became involved, the Nankins were allegedly cleared through immigrations.*fn10 At this point, Stewart again approached the Nankins and informed them that Eleanor Nankin could fly, but Pablo Nankin could not, and that if Pablo Nankin did not leave the area, he would be banned from all U.S. domestic flights.*fn11 Plaintiffs assert that they were forced to forfeit their tickets and fly on American Airlines at their own expense, with an added stop in Dallas.*fn12

Their complaint alleges claims for (1) breach of contract; (2) breach of warranty; (3) negligent infliction of emotional distress; and (4) unlawful and unfair business practices.

B. Defendant's Notice of Removal

In their notice of removal, defendants contend that the Montreal Convention completely preempts plaintiffs' claims because the treaty "exclusively governs claims and the recovery of damages arising out of international air carriage."*fn13 Based on complete preemption, defendants assert that plaintiffs' claims require resolution of a federal question and that the court has jurisdiction as a result.

II. DISCUSSION

A. Removal Jurisdiction

"Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).

The Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988), and Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985)). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Id. (citing Libhard v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)).

"The 'strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (citing Nishimoto v. FedermanBachrach & Assocs., 903 F.2d 709, 712, n. 3 (9th Cir. 1990), and Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988)). Thus, defendant must show by a preponderance of the evidence that federal jurisdiction exists. See Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1091 (9th Cir. 2003); see also Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996) ("[u]nder [the ...


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