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No “Acting Under” Federal Question Jurisdiction for Self-Certifying Aircraft Manufacturer

On September 20, 2019, the Ninth Circuit addressed federal question jurisdiction under 28 U.S.C. § 1442(a)(1) as applied to an aircraft manufacturer that self-certified a helicopter involved in a fatal crash. The issue is of particular interest now given the ongoing Boeing 737 MAX controversy that also was self-certified.1

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Airline Wins Motion to Dismiss Arising From Flights Canceled Because Airlines Ran Out of De-icer Fluid

Southwest Airlines ran out of de-icer fluid at Midway Airport in Chicago on February 11, 2018, and thus cancelled a number of flights to and from Midway. Plaintiff Brian Hughes was among those whose flights were cancelled. Hughes then brought class action claims against Southwest for breach of contract and negligence for Southwest’s failure to maintain a sufficient amount of de-icer fluid on that date, as well as several prior dates in December 2017 and January 2018. Southwest moved under Rule 12(b)(6) to dismiss all claims on the basis that both the Airline Deregulation Act (ADA), and the Federal Aviation Act (FAA) preempted plaintiff’s claims, and that he failed to state a claim for breach of contract. The court granted Southwest’s motion.

The court first set forth the relevant provisions of Southwest’s contract of carriage, which governed Hughes’ flight, and provided the applicable remedies for cancellation. Those remedies were limited to: (1) transport of the passenger on the next available Southwest flight on which space is available; or (2) a refund for the unused portion of the passenger’s fare. The contract of carriage also contained a limitation of liability excluding Southwest’s liability for cancellation or delay for reasons of aviation safety or due to force majure events.

Accordingly, Southwest argued that plaintiff did not and could not cite to the specific portions of the contract of carriage that it violated, and that the contract of carriage permitted Southwest to cancel the flights at issue. The court first weighed whether the federal pleading standard requires that Hughes specifically identify the provisions of the contract that were breached, but ultimately determined that it did not matter whether Hughes had or could do so because Hughes failed to provide sufficient detail in his complaint to put Southwest on notice of the duty it breached. Specifically, the court held that Hughes failed to allege that he asked Southwest for transport on the next flight with available space, or for a refund. Rather, Hughes sought reimbursement for inconvenience and expenses caused by the delay, which the contract of carriage precluded. Thus, the contract of carriage precluded his claim as made.

The court then analyzed Southwest’s ADA preemption argument. Frequent readers will recall that the ADA preempts all state law relating to an air carrier’s prices, routes and services. But as the court noted, the ADA does not preempt lawsuits seeking to recover for an airline’s breach of its own self-imposed undertakings, such as those in its contract of carriage. Thus, the ADA preempts plaintiff’s negligence claim, which did not relate to Southwest’s contract of carriage.

The court then declined to analyze whether the ADA preempts plaintiff’s contract-based claims. It noted that plaintiff’s pleading failure prevented the court from determining whether the ADA preempted his breach of contract claims or arose from Southwest’s voluntarily duties under its contract of carriage. For the same reason, the court did not analyze FAA preemption; in fact, the court did not even mention FAA preemption apart from its note that Southwest argued the FAA preempted plaintiff’s claims.

Although Southwest asked the court to dismiss plaintiff’s contract claims with prejudice, it declined to do so, holding that plaintiff’s pleading failure prevented a proper assessment of plaintiff’s claim and Southwest’s defense. The court noted plaintiff could amend his complaint to allow the court to undertake that analysis. Thus, ironically, plaintiff’s pleadings failure allowed his claim potentially to proceed.

Sources:

  • Specifically, 49 U.S.C. § 41713(b)(1).
  • 49 U.S.C. § 40101 et seq.
  • Hughes v. Southwest Airlines, Co., No. 1:18-cv-05315, Dkt. No. 26 (N.D. Ill. Mar. 26, 2019).
  • The court also dismissed with prejudice the plaintiff’s negligence claim on the grounds that the contract of carriage is governed by Texas law which barred plaintiff’s negligence claim.