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November 10, 1988

HENRY TOMLIN, Administrator of the ESTATE of JOHN TOMLIN, Deceased

The opinion of the court was delivered by: HANNUM



 On April 20, 1985, a model H-34A/S58 helicopter designed and manufactured by defendant Sikorsky Aircraft and owned and maintained by defendant Carson Helicopters, Inc., crashed into the Gulf of Mexico between one marine league and three marine leagues from the coast of Florida. *fn1" The pilot and both passengers were killed in the crash. This wrongful death action was brought on behalf of one of the passengers in the Court of Common Pleas of Philadelphia County on April 21, 1987.

 On May 18, 1987, the defendants removed the case to this Court pursuant to 28 U.S.C. § 1441, which permits removal of "any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States." On June 17, 1987 the plaintiff filed a petition to remand this case to the state court, contending that because the complaint raised only state law wrongful death claims, the Court lacks subject matter jurisdiction.


 In considering the petition for removal, the defendants bear the burden of establishing federal subject matter jurisdiction over the removal actions. See Steel Valley Authority v. Union Switch and Signal Division, 809 F.2d 1006, 1010 (3d Cir. 1987); Abels v. State Farm Fire & Casualty Co., 770 F.2d 26, 29 (3d Cir. 1985); see also 14A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure, § 3739. In Steel Valley Authority, the Third Circuit noted "it is settled that the removal statutes are to be strictly construed against removal and all doubt shall be resolved in favor of remand." Steel Valley, 809 F.2d at 1010 (footnotes omitted) (citing Abels, 770 F.2d at 29). Against this backdrop, the defendants seek to establish "original jurisdiction" under 28 U.S.C. § 1331 for purposes of removal under 28 U.S.C. § 1441.

 To prevail, the defendants need to show that the complaint, which on its face relies exclusively on state law claims, arises under federal law. In support of removal, the defendants urge that plaintiff's wrongful death claims should be recharacterized as arising under DOHSA. Specifically, the defendants argue that because DOHSA's preemptive force provides an "inevitable" substitute federal wrongful death remedy, plaintiff's claims arise under DOHSA.

 Under these circumstances, federal question jurisdiction is governed by the well-pleaded complaint rule and its corollary, the complete preemption doctrine. The well-pleaded complaint rule provides for jurisdiction only if a federal question is presented on the face of a properly pleaded complaint. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987) (citing Gully v. First National Bank, 299 U.S. 109, 112-113, 81 L. Ed. 70, 57 S. Ct. 96, (1936)). Under this rule, the plaintiff is the master of his or her claim insofar as the plaintiff may avoid federal jurisdiction by exclusive reliance on state remedies. 107 S. Ct. at 2429 (footnotes omitted). Moreover, removal is improper if the federal issue, including federal preemption, arises as a defense. Zemp v. Boeing Vertol Co., 1987 U.S. Dist. LEXIS 6840 No. 87-1884, slip op. at 7 (E.D. Pa. July 28, 1987) (removal improper "even if both parties concede that the issue of preemption is the only or primary issue in question.") (citing Caterpillar, 107 S. Ct. at 2429).

 However, the defendants urge application of the complete preemption doctrine, an independent corollary to the well-pleaded complaint rule. This doctrine provides federal subject matter jurisdiction where the extraordinary preemptive force of a statute converts a state law complaint into a federal claim. Caterpillar, 107 S. Ct. at 2430 (citing ( Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 107 S. Ct. 1542, 1546, 95 L. Ed. 2d 55 (1987)). As the Caterpillar Court explained "once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law." Id. (citing Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust of Southern Cal., 463 U.S. 1, 24, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983)).

 In this case, then, the threshold question is whether DOHSA has sufficiently extraordinary preemptive force to justify application of the complete preemption doctrine. While courts have applied the doctrine to several statutes *fn2" , it is unclear whether application in these contexts is appropriate in view of the United States Supreme Court's decisions in Metropolitan Life Insurance and Caterpillar. The defendants in this case must show that application of the complete preemption doctrine is warranted in view of these recent Supreme Court pronouncements.

 In Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 107 S. Ct. 1542, 95 L. Ed. 2d 55 (1987), the Court applied the complete pre-emption doctrine to a state action that not only was preempted by ERISA but also fell within the scope of ERISA's civil enforcement section. Despite "the unique preemptive force of ERISA," the Metropolitan Life Court relied on the explicit reference to the Avco rule (the complete preemption doctrine) in the legislative history to overcome its reluctance to find the requisite extraordinary preemptive force. 107 S. Ct. at 1547-1548. The Metropolitan Life Court cautioned that "in the absence of explicit direction from Congress, this case would be a close one." 107 S. Ct. at 1548. In concurrence, Justice Brennan offered the added caution that "in future cases involving other statutes, the prudent course for a federal court that does not find a clear congressional intent to create removal jurisdiction will be to remand the case to state court." 107 S. Ct. at 1548 (Brennan, J., concurring). Thus, Metropolitan Life established that the touchstone for application of the complete preemption doctrine is Congressional intent for removal. 107 S. Ct. at 1548 ("the touchstone of the federal district court's removal jurisdiction is not the 'obviousness' of the pre-emption defense but the intent of Congress.").

 Furthermore, this Court rejects any suggestion that Caterpillar abrogates the requirements established by the Court two months earlier in Metropolitan Life. In ruling that § 301 of the Labor Management Relations Act at 1947 ("LMRA"), 29 U.S.C. § 185, did not preempt the Caterpillar plaintiff's claim, the Court cautioned that its decision included only an outline of the framework set out more fully in Metropolitan Life. Caterpillar, 107 S. Ct. at 2429. Rather than reconsidering the standards of Metropolitan Life, the Caterpillar court determined only whether LMRA preemption was applicable in that action. In Caterpillar, the Court did not focus on the boundaries of appropriate application of the complete preemption doctrine to a particular statute, already having noted that "the complete preemption corollary is applied primarily in cases raising claims preempted by § 1 of the LMRA." 107 S. Ct. at 2430. Indeed, Caterpillar echoed Metropolitan Life in explaining, "on occasion, the Court has concluded that the preemptive force of a statute is so 'extraordinary' that it 'converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'" Caterpillar, 107 S. Ct. at 2430 (quoting Metropolitan Life, 107 S. Ct. at 1547.).

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