The opinion of the court was delivered by: McLaughlin, J.
In this action, plaintiff Judith Schaefer-Condulmari, seeks to recover for personal injuries that she suffered on a US Airways flight from Rome to Philadelphia. She alleges that she suffered a severe allergic reaction when, unbeknownst to her, she was served an ordinary airplane meal, rather than the gluten-free meal that she had requested. The plaintiff filed suit in the Philadelphia Court of Common Pleas, alleging negligence and failure to comply with applicable state and federal laws and regulations. Compl. ¶ 33.
The defendant US Airways Group, Inc. ("US Airways") removed the case, asserting both diversity and federal question jurisdiction. In its notice of removal, US Airways claimed the complaint presented a federal question because the plaintiff's claims were completely preempted by the Montreal Convention, the treaty governing the rights and liabilities of international air passengers and carriers.
Plaintiff Schaefer-Condulmari filed a motion to remand, and defendant US Airways filed a motion to dismiss. The plaintiff's motion argues that her complaint does not present a federal question because her claims are not governed by the Montreal Convention and that diversity is lacking because US Airways has a principal place of business in Pennsylvania, where the plaintiff is also a citizen. The defendant's motion argues that the plaintiff's complaint must be dismissed because the state law claims it raises are preempted by the Montreal Convention.
After both motions were briefed, the Court held a status conference with the parties. After the status conference, the Court ordered the parties to conduct limited jurisdictional discovery and to make supplemental submissions to the Court.
Now having received and reviewed the parties' supplemental submissions, the Court will deny the plaintiff's motion for remand, finding that, although the Court does not have diversity jurisdiction over this action, it does have federal question jurisdiction because the plaintiff's state law claims are completely preempted by the Montreal Convention. For the same reason, the Court will grant the defendant's motion to dismiss the plaintiff's complaint, but will do so without prejudice to allow the plaintiff to file an amended complaint bringing claims under the Convention.
A. The Allegations of the Complaint
Plaintiff Judith Schaefer-Condulmari is a resident of both Philadelphia, Pennsylvania, and Rome, Italy. Defendant US Airways is an airline with "its principal place of business located at 111 W. Rios Salado Parkway, Tempe," Arizona, which does continuous and systematic business in Pennsylvania. Compl. ¶ 1-2.
On September 9, 2008, Ms. Schaefer-Condulmari was a passenger on US Airlines Flight 919, flying non-stop from Rome, Italy to Philadelphia, Pennsylvania. Because Ms. Condulmari suffers from a severe allergy to wheat, flour, and gluten, she had requested a gluten-free meal when she booked her flight. She re-confirmed that she would receive a gluten-free meal upon check-in and again upon boarding the flight. Compl. ¶¶ 6-10.
Despite her precautions, Ms. Schaefer-Condulmari was not served her requested gluten-free meal. After taking a few small bites, she suffered a severe allergic reaction and went to anaphylactic shock. The flight attendants allegedly delayed helping her, but a fellow passenger who was a nurse administered a cortisone shot. Ms. Schaefer-Condulmari spent the remaining five hours of the flight lying in the back of the plane "in a life threatening state." In addition to suffering a severe allergic reaction as a result of being served the incorrect meal, Ms. Schaefer-Condulmari also alleges she suffered post-traumatic stress, emotional distress, and mental anguish; lost wages; and loss of the pleasures of life. Compl. ¶¶ 10-31.
Ms. Schaefer-Condulmari's complaint contains one count, which alleges that her injuries were caused by the defendant's "careless, negligent, grossly careless, and reckless conduct." Compl. ¶ 33. One specific example of such conduct given in the complaint is that the defendant failed "otherwise to comply with the applicable laws and regulations of [ ] Pennsylvania and the applicable Federal laws and regulations." Id. at ¶ 33(f).
B. Evidence from Affidavits and Jurisdictional Discovery
Defendant U.S. Airways has filed an affidavit from its claims manager, stating that US Airways is incorporated in Delaware and that its principal place of business is 111 W. Rio Salado Parkway, Tempe, Arizona. The affidavit also states that US Airways maintains its corporate headquarters and executive offices in Phoenix, Arizona, and that, although US Airways conducts business in Pennsylvania, that state is not its principal place of business. Aff. of Stacy Riggs (Docket No. 14).
US Airways has also filed a supplemental submission, attaching and summarizing the deposition of the plaintiff taken on jurisdictional issues. At deposition, Ms. Schaefer-Condulmari testified that she was born in the United States and is a United States citizen, but that she has lived in Italy since 1976, where she is classified as a "Permanent Resident." Ms. Schaefer-Condulmari currently rents a residence in Rome and owns a home in Anzio. She is married to an Italian citizen and her two sons were born in Italy. Her husband and children have Italian passports; Ms. Schaefer-Condulmari has a U.S. passport. Deposition of Judith Schaefer-Condulmari ("Pl. Dep."), Ex. A. to Defs. Supplemental Submission, at 8-9, 14-16, 20, 24-25, 41, 43-44.
Ms. Schaefer-Condulmari owns her own business, USA Domani, which does immigration work. USA Domini is incorporated in Italy and has two part-time Italian employees. Ms. Schaefer-Condulmari does not do any work related to her business in the United States. Pl. Dep. at 25-27.
Ms. Schaefer-Condulmari is eligible to vote in Italy and has voted in local elections there. She files her personal income tax returns in Italy and has not filed a U.S. tax return in the last ten years. Ms. Schaefer-Condulmari has three bank accounts in Italy and one in the United States. The bank account in the United States was opened after the deaths of her parents for the purpose of receiving funds from their estate. Ms. Schaefer-Condulmari withdraws money from that account in Italy. Pl. Dep. at 19-23, 27-28.
Ms. Schaefer-Condulmari travels to the United States to visit her family, but after each visit returns "home." From December 2008 through April 2009, Ms. Schaefer-Condulmari rented a temporary apartment in Philadelphia under a three-month lease, while she received medical treatment in the United States. During those three months she traveled back and forth to Italy three or four times. Pl. Dep. at 11-12, 36.
While renting the apartment in Philadelphia, Ms. Schaefer-Condulmari obtained a Pennsylvania drivers licence and voter registration. She testified that she did this in order to obtain photo identification with a U.S. address and to allow her to drive while staying in Pennsylvania. After April 2009, when visiting the United ...