United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO REMAND
LABSON FREEMAN United States District Judge
the Court is Plaintiff Ian Hofmann
(“Hofmann”)'s motion to remand on the ground
that there is no federal question jurisdiction. Mot. 2, ECF
26. For reasons stated below, the Court GRANTS Hofmann'
August 5, 2016, Hofmann, an airline pilot, filed a complaint
in Superior Court of the State of California, San Mateo
County, alleging that Defendant Virgin America, Inc.
(“Virgin”) wrongfully terminated him in
retaliation for complaints he raised about airline safety.
Compl., ECF 1-2. The following facts are taken from
April 9, 2014, Hofmann filed a report detailing his
co-pilot's non-conformance and insubordination to the
Aviation Safety Action Program (the “ASAP”),
established by the Federal Aviation Administration
(“FAA”). Compl. ¶ 10. Through ASAP an Event
Review Committee (“ERC”) made up of
representatives from the airline, the FAA, and employee
associations review submitted reports to identify potential
threats to passengers' safety and to develop corrective
actions for individuals. Id. ¶ 9. Virgin's
ERC dismissed Hofmann's complaint on May 29, 2014,
claiming that it did not involve a legitimate safety issue.
Id. ¶ 11. Hofmann challenged Virgin's
handling of the complaint on several grounds and complained
to Virgin's ASAP program manager and director of
operations. Id. ¶ 12. On June 12, 2014, Hofmann
stated his intent in an email to “[make his] inquires
to the FAA.” Id. ¶ 13. Virgin then
allegedly began “a systematic campaign of retaliation
against him, ” and terminated him on August 26, 2014, a
few weeks after Hofmann started aiding the FAA in an
investigation of how Virgin handled the ASAP complaint.
Id. ¶¶ 13-14. Hofmann further claims that
Virgin failed to follow the written policy of the agreement
for his termination pursuant to the pilots' agreement
with Virgin. Id. ¶ 15. During the almost eight
years he was an aircraft captain at Virgin, Hofmann was not
an “at-will” employee as the pilots'
agreement required Virgin to terminate a pilot only upon
established “just cause.” Id.
filed a state court complaint asserting the following four
causes of actions: wrongful termination in violation of
public policy, retaliation against an employee for disclosing
information to a government agency in violation of California
Labor Code § 1102.5, breach of contract, and tortious
breach of convenient of good faith and fair dealing.
Id. ¶¶ 20-40.
September 8, 2016, Virgin removed the case to this Court,
based on federal question jurisdiction because Virgin's
liability “turns on federal law under the Federal
Aviation Act of 1958.” Notice of Removal ¶¶
8, 11, 12, ECF 1 (citing 28 U.S.C. § 1331). Hofmann now
moves to remand, arguing that there is no federal
jurisdiction. Having carefully considered the submitted
papers, the Court GRANTS Hofmann's motion and remands
this action to state court for the reasons discussed below.
is proper where the federal courts have original jurisdiction
over an action brought in state court. 28 U.S.C. §
1441(a). Courts strictly construe the removal statute against
removal jurisdiction. E.g., Provincial Gov't
of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087
(9th Cir. 2009); Luther v. Countrywide Home Loans
Servicing, LP, 533 F.3d 1031, 1034 (9th Cir.2008).
“A defendant seeking removal has the burden to
establish that removal is proper and any doubt is resolved
against removability.” Luther, 533 F.3d at
1034 (citation omitted); see also Moore-Thomas v. Alaska
Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir.2009)
(“[A]ny doubt about the right of removal requires
resolution in favor of remand.”).
28 U.S.C. § 1331, federal courts have original
jurisdiction over civil actions “arising under the
Constitution, laws, or treatises of the United States.”
Federal question jurisdiction “is determined, and must
exist, as of the time the complaint is filed and removal is
effected.” Strotek Corp. v. Air Transp. Ass'n
of Am., 300 F.3d 1129, 1131 (9th Cir. 2002). Removal
pursuant to § 1331 is governed by the
“well-pleaded complaint rule, ” which provides
that federal question jurisdiction exists only when “a
federal question is presented on the face of plaintiff's
properly pleaded complaint.” Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987).
issue before this Court is whether there is original federal
question jurisdiction to support the removal of this case
from state court.
to Hofmann, Virgin overstates the scope of preemption and the
FAA does not completely preempt the state law claims asserted
in the complaint. Mot. 4, ECF 26. Specifically, Hofmann
contends that the Ninth Circuit has made it clear that
Congress does not occupy the field of employment law in the
aviation context. Id. (citing Ventress v. Japan
Airlines, 747 F.3d 716, 722 (9th Cir. 2014)). Hofmann
further argues that the wrongful termination and the
whistleblower statutes do not fall within the zone of
preemption as they do not interfere with the federal
regulatory scheme for airlines. Mot. 5-7 (citing Ulysse
v. AAR Aircraft Component Servs., 841 F.Supp.2d 659, 676
(E.D.N.Y. 2012); Hamilton v. United Airlines, Inc.,
960 F.Supp.2d 776, 784 (N.D. Ill. 2012))
opposing this motion, Virgin argues that the FAA completely
preempts Hofmann's state law claims so the
“well-pleaded complaint rule” does not apply.
Opp'n 4. Specifically, Virgin contends that Hofmann's
complaint is a “backdoor challenge” to
Virgin's determination of his qualification and fitness