                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



EDWARD K. GAMSON, et al.,

        Plaintiffs,
               v.                                            Civil Action No. 14-527 (JEB)
BRITISH AIRWAYS, PLC,

       Defendant.


                                  MEMORANDUM OPINION

       This case proves the truth of Mark Twain’s aphorism that “[t]he difference between the

right word and the almost right word is the difference between lightning and a lightning bug.”

Except here only a single letter’s difference is involved.

        Plaintiffs Edward Gamson and Lowell Canaday were set to fly first class from

Washington through London to Granada, Spain, for some much-needed relaxation. Defendant

British Airways, perhaps believing a Caribbean vacation preferable, instead booked the last leg

of the trip to Grenada, in the West Indies. The couple only realized the error after departing

London, probably somewhere over the North Atlantic. Although they eventually returned safely

to Washington, they had missed out on their planned Spanish trip. As a result, they filed this pro

se suit in D.C. Superior Court for damages based on British Airways’ negligence and breach of

contract in its erroneous booking.

       Defendant has removed the matter to this Court on the ground that at least one of

Plaintiffs’ claims arises under the Montreal Convention, a treaty governing international air

travel, which provides federal subject-matter jurisdiction. British Airways now moves to

dismiss, arguing that Plaintiffs cannot state a claim under the Convention and that the U.S.


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Airline Deregulation Act preempts any remaining claims. Believing that the Montreal

Convention does not completely preempt this case and that removal was thus improper, the

Court remands the case back to the Superior Court.

I.     Background

       According to the Complaint, which must be presumed true for the purposes of this

Motion, Plaintiffs, having gone two years without a vacation, planned a trip to Granada and

Seville in Spain. Compl., ¶ 7. They booked their flights with Defendant British Airways,

intending to travel from Washington Dulles Airport to London, and then to Granada, with a

return flight from Lisbon, Portugal, to Washington Dulles. Id., ¶ 8. Plaintiff Gamson clearly

explained to Defendant’s agent that they wished to travel to Granada, Spain, and Defendant’s

agent on his own initiative suggested that Plaintiffs connect through London’s Gatwick Airport.

Id., ¶¶ 9-10. Gamson agreed and booked the tickets, which were transferred electronically to

Plaintiffs and referred to “Grenada,” without any indication of the country, airport code, or flight

duration. Id., ¶ 10. After arriving in the sunny Caribbean, as opposed to sunny Andalusia,

Plaintiffs learned that British Airways had made this error before. Id., ¶ 12.

        They brought suit in the Superior Court for breach of contract, negligence, and gross

negligence, seeking damages for the value of their tickets, non-refundable expenses for their lost

vacation in Spain, lost wages, and other associated expenses. Id., ¶¶ 13-21. On March 28, 2014,

Defendant removed the case to this Court, pursuant to 28 U.S.C. § 1441, on the ground that

Plaintiffs’ cause of action “arises under” federal law within the meaning of 28 U.S.C. § 1331.

See Notice of Removal, ¶ 6. The federal law in question is the Convention for the Unification of

Certain Rules for International Carriage by Air, on May 28, 1999, ICAO Doc. No. 9740 (entered

into force on November 4, 2003), reprinted in S. Treaty Doc. No. 106-45, 1999 WL 33292734




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(“Montreal Convention”). Having removed the matter, British Airways now moves to dismiss,

pursuant to Federal Rule of Civil Procedure 12(b)(6), on the grounds that the Montreal

Convention and the Airline Deregulation Act, 49 U.S.C. § 41713(b)(1), preempt Plaintiffs’ state-

law claims. In addition to opposing that Motion, Plaintiffs ask the Court to remand the matter to

Superior Court.

II.     Analysis

        In general, a defendant may remove a state-court action to federal court under 28 U.S.C.

§ 1441(a) “if it qualifies as a ‘civil action . . . of which the district courts of the United States

have original jurisdiction,’ unless Congress expressly provides otherwise.” Rivet v. Regions

Bank of Louisiana, 522 U.S. 470, 474 (1998) (quoting 28 U.S.C. § 1441(a)). Under 28 U.S.C. §

1447(c), however, once a case has been removed, “[i]f at any time before final judgment it

appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” As a

result, the Court has an obligation to examine its own jurisdiction over the action at every stage

of the litigation.

        British Airways removed this suit by invoking the Court’s “arising under” jurisdiction

pursuant to 28 U.S.C. § 1331. See Notice of Removal, ¶ 6. This section provides for federal

jurisdiction when, for example, a plaintiff raises a federal cause of action in his complaint. See

Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 152 (1908). BA, however, does

not argue that Plaintiffs have asserted a federal claim here; instead, it relies on federal

preemption. As a general proposition, federal preemption of state law is a defense that does not

justify removal under the rule of Mottley. See Caterpillar Inc., v. Williams, 482 U.S. 386, 392-

93 (1987). There is, however, an exception: If “Congress intended [the federal statute at issue] to

provide the exclusive cause of action,” then removal of a plaintiff’s state-law claim is proper




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because “[w]hen the federal statute completely pre-empts the state-law cause of action, a claim

which comes within the scope of that cause of action, even if pleaded in terms of state law, is in

reality based on federal law.” Beneficial National Bank v. Anderson, 539 U.S. 1, 8-9 (2003)

(emphasis added). Defendant argues that this is such a case: “[T]he State Action is removable to

this Court by British Airways pursuant to 28 U.S.C. § 1441(a) because it is a civil action over

which this Court has original jurisdiction under 28 U.S.C. § 1331, in that Plaintiffs’ claim that

British Airways transported them to an incorrect stopping place arises exclusively under the

Montreal Convention, a treaty of the United States.” Notice of Removal, ¶ 12 (emphasis added).

         In deciding whether removal was proper, then, the Court must determine whether

complete preemption applies here. If the treaty does completely preempt, the Court has

jurisdiction; if it does not, the Court must next consider whether the Airline Deregulation Act

alternatively provides removal jurisdiction.

       A.      Montreal-Convention Preemption

       Courts are divided on whether the Montreal Convention ever affords complete

preemption, even if the claim falls clearly within its scope. Some have held that complete

preemption is appropriate. See, e.g., Husmann v. Trans World Airlines, Inc., 169 F.3d 1151,

1153 (8th Cir. 1999) (observing that absence of complete preemption would undermine

“uniformity” and “certainty” of Warsaw Convention, predecessor to Montreal Convention);

Donkor v. British Airways Corp., 62 F. Supp. 2d 963, 967 (E.D.N.Y. 1999) (“[T]he Warsaw

Convention completely preempts the claims that it governs[.]”); Singh v. N. Am. Airlines, 426 F.

Supp. 2d 38, 44-45 (E.D.N.Y. 2006) (interpreting El Al Israel v. Tsui Yuan Tseng, 525 U.S. 155

(1999), as authorizing complete preemption); Knowlton v. Am. Airlines, Inc., No. 06–854, 2007

WL 273794, at *3 (D. Md. Jan. 31, 2007) (finding that Montreal Convention completely




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preempted state-law claims); Mateo v. JetBlue Airways Corp., 847 F. Supp. 2d 383, 387

(E.D.N.Y. 2012) (finding that “complete preemptive power” of Montreal Convention was

corollary of its being “exclusive cause of action.”); Fadhliah v. Societe Air France, No. 13–

06142, 2013 WL 6571601, at *5 (C.D. Cal. Oct. 1, 2013) (looking to travaux preparatoires and

U.K. courts’ interpretation of Montreal Convention to support its conclusion that Convention had

preemptive effect).

       Other courts, conversely, have held that the Convention does not afford complete

preemption. See, e.g., Narkiewicz-Laine v. Scandinavian Airlines Systems, 587 F. Supp. 2d 888,

889 (N.D. Ill. 2008) (relying on Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., Ltd., 522

F.3d 776, 781 (7th Cir. 2008), to find no complete preemption); Serrano v. Am. Airlines, Inc.,

No. 08-2256, 2008 WL 2117239, at *4 (C.D. Cal. May 15, 2008) (interpreting Tseng to

authorize only federal, not complete, preemption); Jensen v. Virgin Atlantic, No. 12–6227, 2013

WL 1207962, at *4 (C.D. Cal. Mar. 25, 2013) (finding Montreal Convention to be an

“affirmative defense”); DeJoseph v. Continental Airlines, Inc., No. 13–7714, 2014 WL

1891407, at *5 (D.N.J. May 12, 2014) (rejecting complete preemption).

       Fortunately, the Court need not decide this issue here because even if the Convention

does completely certain preempt state-law claims, it does not completely preempt Plaintiffs’

particular ones. Article 29 of the Convention provides that “[i]n the carriage of passengers,

baggage and cargo, any action for damages, however founded, whether under this Convention or

in contract or in tort or otherwise, can only be brought subject to the conditions and such limits

of liability as are set out in this Convention[.]” Montreal Convention, Art. 29 (emphasis added).

The dispositive question, then, is whether Plaintiffs’ claims address injuries occurring “in the

carriage of passengers.” They do not.




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        As the Complaint expressly states, Plaintiffs are suing for “breach of contract and tort for

British Airways’ egregious error in booking the European portion of Plaintiffs’ September 2013,

long-awaited vacation from Washington to Europe and back.” Compl., ¶ 1 (emphasis added).

BA offers no authority for the notion that an erroneous booking should be considered part of “the

carriage of passengers.” While other provisions of the Convention refer to liability for death,

physical passenger injury, and damage to baggage (Article 17), damage to cargo (Article 18),

and delay (Article 19), nothing mentions liability for bookings. See Tseng, 525 U.S. at 162

(Articles 17-19 define “the three kinds of liability for which the Convention provides”). When

defining the scope of the Convention to cover “international carriage,” furthermore, the

Explanatory Note to Article 1 provides: “In accordance with Article 1, paragraphs (2) and (3),

‘international carriage’ includes all segments of an international journey as shown on the ticket,

including domestic segments of an international journey.” The booking of the ticket itself is not

part of this “international journey,” being a condition precedent to the journey itself.

         If Plaintiffs had alleged that the actionable conduct occurred on board the flight to

Grenada – i.e., “in the carriage of passengers” – this Court would have jurisdiction under the

Convention. If, for example, the booking was correct but Plaintiffs were put on the wrong plane

or the pilot mistakenly flew the airplane to Grenada, the actionable conduct would be covered.

In this instance, however, the alleged wrong took place well before Plaintiffs embarked, and this

Court can find no reason to extend the scope of the Convention to encompass the facts alleged

here.

        British Airways, in fact, concedes that the booking claim “arguably does not arise under

the Montreal Convention.” Mot. to Dismiss at 12-13. Indeed, BA acknowledges that it “never

contended that the Convention preempts Plaintiffs’ incorrect ticketing claim.” Reply at 2.




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Instead, it maintains that Plaintiffs have actually made another claim for breach of contract

resulting from the erroneous transportation rather than the mistaken booking. BA’s entire

argument relies upon one fragment in the Complaint alleging injury for the airline’s “booking

and flying” Plaintiffs to the wrong destination. Compl., ¶15. At no point is this supposedly

separate claim elaborated upon in the Complaint or in other documents filed by Plaintiffs, and

they do not appear to consider it to be a basis for liability. Indeed, the entirety of the Complaint

rests on the booking mistake. Considering that it is well established that laypersons acting as pro

se litigants are not to be held to the same stringent standards for drafting pleadings as legal

counsel, see Hughes v. Rowe, 449 U.S. 5, 9 (1980), it would be unfair to Plaintiffs for the Court

to allow removal based on this strained interpretation of the Complaint.

         As the Court cannot base its jurisdiction on Montreal-Convention preemption here,

removal under that treaty was improper.

       B.      ADA Preemption

       Although BA does not mention the Airline Deregulation Act as a basis for removal, it

does assert that the ADA preempts certain of Plaintiffs’ claims. See Mot. to Dismiss at 13-14.

Whether or not this is correct, the Court wishes to make clear that the ADA defense provides no

basis for removal jurisdiction here. The rule in Mottley directs the Court to examine a plaintiff’s

complaint for a federal cause of action to ground subject-matter jurisdiction. Unlike complete

preemption, which the ADA does not provide, see Wayne v. DHL Worldwide Express, 294 F.3d

1179, 1184 (9th Cir. 2002), a federal defense of preemption, either anticipated in the complaint

or argued by the defendant, cannot provide the basis for jurisdiction. See Caterpillar, 482 U.S. at

393. As stated in Mottley, to allow a federal defense to create subject-matter jurisdiction would




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be “inconsistent with any known rule of pleading, so far as we are aware, and is improper.” 211

U.S. at 153. The ADA, consequently, does not offer an alternative basis for removal.

III.    Conclusion

       As the removal pursuant to 28 U.S.C. § 1441 was improper, the case will be remanded to

the Superior Court. Plaintiffs in one of their pleadings sought “punitive damages” for BA’s

removal. See ECF No. 7 (Pl. Opp. to Removal). The Court interprets this as a request for

sanctions, which will be denied because the removal here was not in bad faith or for the purpose

of delay. A separate Order consistent with this Opinion will issue this day.



                                                     /s/ James E. Boasberg
                                                     JAMES E. BOASBERG
                                                     United States District Judge
Date: June 5, 2014




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