The family of a deceased 15 year old sued a mortuary, Delta Air Lines, and other defendants in Alabama state court over the embalming and transport of the body from Alabama to Mexico. According to the complaint, upon arrival at the funeral home in Mexico, the decedent’s face and body “were disfigured and infested” with “insects, and other pestilence” and there were “secretions” emanating from the body. The plaintiff family alleged that Delta was negligent and committed the tort of outrage by failing to transport the body in a timely manner, and that when the body arrived in Mexico, it was in a state of decomposition.
The complaint asserted only state law claims and did not specifically mention the Montreal Convention, which regulates international air travel and establishes airline liability in the case of death or injury to passengers, as well as in cases of delay, damage or loss of baggage and cargo.
Delta asserted two grounds for removal: (1) plaintiffs’ claims raised federal question jurisdiction based on preemption under the Montreal Convention; and (2) plaintiffs’ claims “raise federal question jurisdiction because an international carrier’s limitation of liability is governed by federal common law,” and “[f]ederal jurisdiction exists if the claims in the case arise under federal common law.”
With respect to the first asserted ground for removal, the Court observed that “While courts are divided on whether complete preemption applies to the Montreal Convention, ‘the majority approach  holds that the Montreal Convention does not provide a basis for removal under the doctrine of complete preemption.’” The Court also relied upon the fact that the defendants did not cite “any binding Supreme Court or Eleventh Circuit case law holding that the Montreal Convention completely preempts state law claims and therefore provides a basis for removal.”
The Court also cited with approval a prior court’s finding that “Because federal court jurisdiction is limited, the Eleventh Circuit favors remand of removed cases where federal jurisdiction is not absolutely clear.” The Eleventh Circuit Court of Appeals, which was established in 1981, addresses appeals from federal district courts in Alabama, Florida and Georgia.
For all of these reasons, the Court granted plaintiffs’ motion to remand the case to the Alabama state circuit court. Martinez-Menchaca v. Delta Air Lines, et al., 2021 LEXIS 208372 (N.D. Ala. Oct. 28, 2021).