cause of action involves only a $ 499 ticket, and cannot possibly meet the minimum $ 10,000 requirement for a diversity case.
Plaintiff's fall-back position is that if the summons does not give notice of a federal cause of action, the notice of depositions also served June 12, 1981 does. 28 U.S.C. § 1446(b) requires that removal be accomplished within 30 days of receipt of service of the receipt of the initial pleading, or within 30 days after receipt of a copy of an amended pleading, motion or order or other paper from which it may first be ascertained that the case is one which is or has become removable. We are well familiar with this argument which we considered at length in Vendetti v. Schuster, 242 F.Supp. 746 (W.D.Pa.1965). Despite counsel's diligent research of opinions of this writer, the case does not fit the present facts. The only mention of a federal cause of action in the Notice of Depositions is a reference to "a procedure condemned by state and federal law."
Plaintiff's counsel is well aware, by reason of his citation of another opinion of this writer ( Robertson Motor Freight, Inc. v. Brady Motorfrate, Inc., 287 F.Supp. 449 (W.D.Pa.1968)), that the mere mention of "federal law" or even the citation of a specific federal statute does not create a private cause of action cognizable in the federal courts. There are many federal statutes that control or forbid or penalize certain activities, but which give no private right of action cognizable in the federal district courts. Plaintiff also acknowledges that the Federal Aviation Act does not give rise to a private cause of action in the federal district court. Therefore, the "Notice of Deposition" served June 12, 1981, is not such "other paper" under 28 U.S.C.A. § 1446(b) that gives notice that the action is one which is removable.
The first pleading that gives such notice is the Complaint filed July 13, 1981 at G.D. 81-15052 in the Court of Common Pleas of Allegheny County, Pennsylvania. This is a 9 page small type document, with the usual "alarums and excursions" which are the individual style of Attorney Brunwasser. It is full of references to the Warsaw Convention, the Federal Aviation Act, regulations of the Civil Aeronautics Board. It is replete with legal arguments and citations to federal appellate and district court opinions. It is divided into 5 Counts, the first of which is "Claim for Relief Under Warsaw Convention", 49 U.S.C. § 1502. Count 2 states a claim under state statute, Count 3 is a claim in assumpsit, Count 4 is a claim in trespass, Count 5 is a claim for specific performance, and refers to United States Supreme Court equity rules.
This is the document that gives rise to the allegation of a federal cause of action. This is the first document that gives notice of a federal cause of action. The removal of the action one day after receipt of this document is timely.
Sometimes we overrate Attorney Brunwasser's legal wisdom, or his acumen. Since the above was written we have received from him an "Additional Motion to Remand" in which he says that Defendant's Answer, recently filed, denies that Plaintiff has any claim under the Warsaw Convention or the Federal Aviation Act and therefore admits that there is no federal cause of action! In the exercise of great restraint and self control, I will refrain from commenting.
As his fall-back position plaintiff's counsel argues that his Complaint asserts 4 counts of state law claims of breach of contract, tort and consumer protection statutes which are not removable under 28 U.S.C. § 1441(c). I read 1441(c) just the contrary. It says when a removable claim (a federal cause of action) "is joined with one or more non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction." In any event actions for breach of contract and tort are not solely state based claims. They are common law claims triable in federal courts when a proper jurisdictional base is present. A contract claim arising out of federal regulation of commerce is cognizable under 28 U.S.C. § 1337(a) in the federal courts, and could possibly apply to this action now that the $ 10,000 minimum requirement has been removed. A tort action is not exclusively a state cause of action, tort cases are regularly tried in the federal courts when there is diversity jurisdiction, or maritime jurisdiction, and particularly under the Warsaw Convention as the recognized Warsaw Convention jurisdiction is regularly applied in Wrongful Death cases. Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978).
Plaintiff has pleaded a cause of action under the Warsaw Convention (49 U.S.C. § 1502) and this secures jurisdiction under 28 U.S.C. § 1331 (arising under the constitution, laws or treaties of the United States). He also pleads a cause of action under the Federal Aviation Act, 49 U.S.C. §§ 1373, 1374 and 1381. Private causes of action under 28 U.S.C. § 1331 arising out of the Federal Aviation Act have been recognized. Gallagher v. Alitalia, 361 F.Supp. 1097 (S.D.N.Y.1973); Archibald v. Pan Am, 460 F.2d 14 (9th Cir. 1972). But see, Kodish v. United Airlines, 463 F.Supp. 1245 (D.C.Colo.1979), aff'd. 628 F.2d 1301 (10th Cir. 1980).
Therefore we conclude that plaintiff has pleaded colorable claims of federal causes of action justifying removal to the United States District Court. It must be noted that the judgment of this court is based on the assertion of these claims in the Complaint, and is no indication of their merit or their ability to survive more specific attack.
Plaintiff has raised certain objections to the procedure of filing the removal proceedings which we do not deem of sufficient merit to discuss here.
AND NOW this 6th day of August, 1981, the Motion of Plaintiff to remand the within action to the Court of Common Pleas is DENIED.
© 1992-2004 VersusLaw Inc.