Calderon v. Aerovias Nacionales de Colombia

929 F.2d 599, 1991 WL 44950
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 19, 1991
DocketNo. 90-5560
StatusPublished
Cited by7 cases

This text of 929 F.2d 599 (Calderon v. Aerovias Nacionales de Colombia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Calderon v. Aerovias Nacionales de Colombia, 929 F.2d 599, 1991 WL 44950 (11th Cir. 1991).

Opinion

BIRCH, Circuit Judge:

Appellants Avianca, Inc., Commodore Aviation, Inc. and Aerovías Nacionales de Colombia, S.A. (“Defendants”) appeal from an order of the United States District Court for the Southern District of Florida (“the district court”) remanding this case back to state court because of lack of subject matter jurisdiction. 738 F.Supp. 485. A district court order remanding a case to the state court from which it was removed generally is not appealable. Appellants contend that the presumptive effect of a treaty, the Warsaw Convention1, dictates a different result. We disagree and find that we lack jurisdiction to consider this challenge.

I. BACKGROUND

On January 25, 1990, an Avianca Boeing 707 aircraft operating as Flight 052, en route from Colombia to New York, crashed near Cove Neck, New York. Casualties included 65 passengers killed and 84 passengers injured. Numerous wrongful death and personal injury actions were brought against Defendants. The Judicial Panel on Multidistrict Litigation transferred all of these actions pending in federal courts to Chief Judge Thomas C. Platt of the United States District Court for the Eastern District of New York for coordinated and consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407.

The present action initially was filed in the Circuit Court of the Eleventh Judicial Circuit for Dade County, Florida (“the state court”). These plaintiffs (“Plaintiffs”) sought relief under the Florida wrongful death statute, and deliberately did not allege any federal causes of action. Defendants removed the action to the district court pursuant to 28 U.S.C. § 1441,2 [601]*601claiming that because this wrongful death action arose out of “international transportation” as defined by the Warsaw Convention, the district court possessed federal question jurisdiction.

After removal was accomplished, Plaintiffs filed an emergency motion for remand. In their initial complaint, Plaintiffs alleged only state law causes of action and did not invoke any federal law, treaty or statute. Accordingly, Plaintiffs contended that federal question jurisdiction did not exist. Defendants opposed this motion, arguing that the Warsaw Convention creates Plaintiffs’ exclusive cause of action, thereby preempting Plaintiffs’ state law claims and establishing federal question jurisdiction. Holding that the Warsaw Convention provides only an exclusive remedy, not an exclusive cause of action, the district court rejected Defendants’ arguments and granted Plaintiffs’ motion to remand. The case was remanded for further proceedings in the state court.

Defendants subsequently filed a petition for writ of mandamus, requesting that this court direct the district court to vacate its remand order and reinstate the action. In this petition, Defendants again argued that the Warsaw Convention provided the exclusive cause of action for damages arising out of international air transportation, and established federal question jurisdiction. Defendants’ petition was denied.

Before the denial of their petition for writ of mandamus, Defendants filed with this court a notice of appeal, seeking substantive review of the district court’s order of remand. In response, we requested that the parties address whether the district court’s order of remand was appealable. By subsequent order, we directed that this jurisdictional issue be carried with the case. It is this issue which we now address.

II. DISCUSSION

Congress has established that a case removed from state to federal court may be remanded back to state court “[i]f at any time before final judgment it appears that the case was removed improvidently and without jurisdiction.” 28 U.S.C. § 1447(c). Congress has provided further that appellate courts generally may not review district court remand orders, stating that:

[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of [Title 28 of the United States Code] shall be reviewable by appeal or otherwise.3

28 U.S.C. § 1447(d). This statute prohibits all review of remand orders, even if the district court’s decision to remand was clearly erroneous. See Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977).

In Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), the Supreme Court created an exception to the rule prohibiting appeals of remand orders. The Court held that “only remand orders issued under § 1447(c) and invoking the grounds specified therein — that removal was improvident and without jurisdiction — are immune from review under § 1447(d).” 423 U.S. at 346, 96 S.Ct. at 590. Thus, in that case, the district court’s decision to remand because the state court docket was less crowded than the district court’s docket, despite the presence of subject matter jurisdiction, was subject to review. This limited exception is not applicable to the facts of this case. Here, the district court’s order to remand Defendants’ case was based on its lack of subject matter jurisdiction, one of the grounds specifically set forth in section 1447(c). See Armstrong v. Alabama Power Co., 667 F.2d 1385, 1387 n.3 (11th Cir.1982).

In Waco v. United States Fidelity & Guaranty Co., 293 U.S. 140, 55 S.Ct. 6, 79 [602]*602L.Ed. 244 (1934), the Supreme Court held that parties may appeal an order dismissing a claim that precedes an order of remand. The Court emphasized, however, that the remand order itself was not ap-pealable. If the court of appeals found the dismissal to be erroneous, that court could “not affect the order of remand, but [could] ... remit the entire controversy ... to the state court for such further proceedings as may be in accordance with the law.” 293 U.S. at 143-144, 55 S.Ct. at 7. See also Armstrong, 667 F.2d at 1387. Other circuits have expanded the holding in Waco to apply to preliminary (i.e., made prior to the order of remand) determinations of the validity of forum selection clauses, see, e.g., Regis Associates v. Rank Hotels, Ltd., 894 F.2d 193 (6th Cir.1990), Karl Koch Erecting Co. v. New York Convention Center Dev. Corp., 838 F.2d 656 (2d Cir.1988), Pelleport Investors v. Budco Quality Theatres, 741 F.2d 273

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Bluebook (online)
929 F.2d 599, 1991 WL 44950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calderon-v-aerovias-nacionales-de-colombia-ca11-1991.