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January 14, 2000


The opinion of the court was delivered by: Bassler, District Judge.


Plaintiff Dennis Espinosa ("Plaintiff") moves to remand under 28 U.S.C. § 1447(c), for lack of subject matter jurisdiction and for fees and costs. Plaintiff's motion to remand is granted and Plaintiff's motion for fees and costs is granted in part and denied in part. This action is remanded to the Superior Court of New Jersey, Passaic County.


Plaintiff was an employee of Defendant Continental Airlines, Inc. ("Continental"). He worked as an aircraft technician in charge of inspecting various aircrafts prior to takeoff. (Compl. ¶ 6.) Defendants Manny Horta ("Horta") and Daniel Wineglass ("Wineglass") were Plaintiff's supervisors during the relevant time periods. (Id. at ¶ 3-4.) Defendant Him McGuiness ("McGuiness") was the Director of Newark Aircraft Maintenance, during the relevant time periods. (Id. at ¶ 5.)

In the Complaint, Plaintiff alleges that on separate occasions throughout his employment, while inspecting aircrafts prior to takeoff, he discovered mechanical problems, which he believed constituted violations of Federal Aviation Regulation. (Id. at ¶¶ 8-14.) At various times, he reported these problems to either Horta or Wineglass. (Id. at ¶¶ 8-10, 14.) Plaintiff claims that in response to each occasion, Horta and Wineglass used choice words to inform Plaintiff, in essence, that such problems were not his concern. (Id. at ¶¶ 8-10.)

Plaintiff also complained to McGuiness regarding some of the mechanical problems. (Id. at ¶ 11.) In response, McGuiness allegedly threatened Plaintiff with retaliation if he contacted the Federal Aviation Authority ("FAA"). (Ibid.) Nevertheless, Plaintiff reported some of the problems to the FAA. (Id. at ¶¶ 8, 11.)

Subsequently, on March 21, 1998, Wineglass accused Plaintiff of sleeping while on duty. (Id. at 15.) By letter dated April 2, 1998, McGuiness notified Plaintiff that he was being terminated "effective immediately," for sleeping while on duty. (Id. at ¶ 16.)

On March 22, 1999, Plaintiff initially filed this action in the Superior Court of New Jersey, Passaic County. Plaintiff is suing under the Conscientious Employee Protection Action ("CEPA"), N.J.S.A. 34:19-1 to 34:19-8, for retaliatory discharge.

On April 27, 1999, Continental removed this action to this Court pursuant to 28 U.S.C. § 1441, contending original jurisdiction under 28 U.S.C. § 1331 and 1337.

Plaintiff now seeks to remand this action claiming that no federal subject matter jurisdiction exists because the Complaint contains solely state law claims and because the parties are non-diverse.*fn1 Continental argues, however, that Plaintiff's CEPA claims are completely preempted by the Federal Aviation Administration Authorization Act, 49 U.S.C. § 41713(b)(1), ("FAAAA"), and are also governed exclusively by the Railway Labor Act, 45 U.S.C. § 151, et seq. ("RLA"). Moreover, Continental also contends that this Court has diversity jurisdiction because Plaintiff has not presented viable claims against the individual Defendants. Each of these contentions will be addressed in turn.


A. Standards Governing Motion to Remand

Upon a motion to remand, the removing party bears the burden of demonstrating that removal was proper. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). The removing party thus bears the burden of proving that jurisdiction is proper in federal court. Ibid. Further, removal statutes are strictly construed in favor of remand. Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987).

Because the parties are non-diverse and removal jurisdiction is predicated on the existence of original federal jurisdiction, the first question that must be addressed is whether the complaint pleads a federal cause of action under the well-pleaded complaint rule. Louisville & Nashville Railroad v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908).

Under the "well-pleaded complaint rule," removal is appropriate only where a federal question appears on the face of the complaint. Franchise Tax Bd. of the State of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 9-12, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); accord In re U.S. Healthcare, Inc., 193 F.3d 151, 160 (3d Cir. 1999); Joyce v. RJR Nabisco Holdings Corp., 126 F.3d 166, 171 (3d Cir. 1997); Dukes v. U.S. Healthcare, 57 F.3d 350, 353 (3d Cir. 1995). "[W]here a plaintiff's complaint on its face states only state law causes of action, the fact that issues of federal law may be involved, as in the nature of a defense, will not suffice to create federal question jurisdiction." Carrington v. RCA Global Communications, Inc., 762 F. Supp. 632, 636 (D.N.J. 1991). This rule was designed to make the plaintiff "master of the claim." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987).

A narrow exception to this rule, however, exists. Congress may "completely pre-empt" an area of law, with the result that a claim which falls within the area is "`necessarily federal in character.'" In re U.S. Healthcare, 193 F.3d at 160; Dukes, 57 F.3d at 354; Joyce, 126 F.3d at 171. Complete preemption is appropriate when federal law so completely preempts a cause of action that state law is "entirely displaced by federal law." Joyce, 126 F.3d at 171. When complete preemption occurs, the complaint need not satisfy the well-pleaded complaint rule. Ibid.

Under settled Third Circuit law, the doctrine of complete preemption applies only when two circumstances are present: (1) when the enforcement provisions of a federal statute create a federal cause of action vindicating the same interest that the plaintiff's cause of action seeks to vindicate; and (2) when there is affirmative evidence of a congressional intent to permit removal despite the plaintiff's exclusive reliance on state law. Allstate Ins. Co. v. 65 Sec. Plan, 879 F.2d 90, 93 (3d Cir. 1989); Goepel v. National Postal Mail Handlers Union, 36 F.3d 306, 311 (3d Cir. 1994).

B. Preemption of CEPA by Federal Aviation Administration Authorization Act

Congress enacted the FAAAA*fn2 largely to deregulate domestic air transport after determining that "`maximum reliance on competitive market forces' would best further `efficiency inncvation, and low prices' as well as `variety [and] quality . . . of air transportation services.'" Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (citing 49 U.S.C.App. § 1302(a)(4), 1302(a)(9)). The FAAAA contains a preemption provision "`[t]o ensure that the States would not undo federal deregulation with regulation of their own.'" Ibid. That provision states in pertinent part:

[e]xcept as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an ...

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