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 ¶¶
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 ¶
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
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.
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
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 ...