* Local Rule 47.5.1 provides: 

"The publication of opinions that have no precedential value and

merely decide particular cases on the basis of well-settled

principles of law imposes needless expense on the public and

burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-20042

Summary Calendar

ROBBYN CHIODI, Individually and as next friend of

DANNIELLE CHIODI,

Plaintiff-Appellant,

VERSUS

SOUTHWEST AIRLINES COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

For the Southern District of Texas

(CA H 94 3069)

( August 31, 1995 )

Before WISDOM, JOLLY, and HIGGINBOTHAM, Circuit Judges.

WISDOM, Circuit Judge:*

The plaintiff/appellant challenges the district court's

dismissal of her action based on a conclusion that her claims were

preempted by the Airline Deregulation Act. In addition, she argues
 

1 49 U.S.C. §1301 et seq. In 1978, Congress amended the

Federal Aviation Act of 1958, "after determining that efficiency,

innovation, low prices, variety, and quality would be promoted by

reliance on competitive market forces rather than pervasive federal

regulation". Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th

Cir. 1995). Thus, Congress enacted the Airline Deregulation Act to

deregulate commercial aviation. 

that the district court erred when it denied her motion to have the

case remanded to the state court in which it was filed because the

district court lacked subject matter jurisdiction. We REVERSE the

grant of summary judgment but AFFIRM the district court's denial of

the appellant's motion to remand.

I.

The appellant, a resident of Texas, sent her eight-yearold daughter, Danielle, to visit her aunt and uncle in St. Louis on

a Southwest Airlines flight. Danielle travelled as an

unaccompanied minor. On the return flight, Danielle was not seated

in the two front rows of the plane, as compelled by Southwest's

policy on unaccompanied minors. Rather, she was seated in the

sixth row next to a male passenger who, over the course of the

flight, showed Danielle pornographic material, spoke in a lewd

fashion, and exposed his genitals. 

In August of 1994, Danielle's mother, the appellant,

filed this suit against Southwest Airlines, the defendant/appellee,

in Texas state court alleging state tort law causes of action. The

defendant removed the case to federal court. In September of 1994,

the defendant filed a motion to dismiss for failure to state a

claim upon which relief can be granted under Federal Rule of Civil

Procedure 12(b)(6). The defendant argued that the plaintiff's

causes of action were preempted by the Airline Deregulation Act.1
 

2 See, Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335

(5th Cir. 1995).

 

3 49 U.S.C. § 1305. 

 

4 Carpenter v. Wichita Falls Independent School District,

44 F.3d 362, 365 (5th Cir. 1995). 

3

Congress enacted the statute to allow deregulation of commercial

aviation and to allow the forces of a competitive market to control

the industry.2 The preemption provision of the Airline

Deregulation Act, § 1305, provides:

No state . . . shall enact or enforce any law,

rule, regulation, standard, or other provision

having the force and effect of law relating to

rates, routes or services of any air carrier

having authority under Title IV of this Act to

provide air transportation.3 

The plaintiff made a motion to remand the case to state

court arguing that the district court lacked subject matter

jurisdiction. The district court denied the plaintiff's motion for

remand and dismissed her complaint. The plaintiff appeals.

II.

On appeal, the plaintiff alleges that the case should

have been remanded to Texas state court. To support removal, a

defendant must show that federal jurisdiction exists over the

suit.4 The plaintiff in this case challenges the existence of

federal subject matter jurisdiction. 

The plaintiff notes that her complaint raised only state

causes of action and argues that the well-pleaded complaint rule

precluded removal on the basis of the only federal question,

preemption, a federal defense. As the Supreme Court determined in
 

5 481 U.S. 58 (1987).

 

6 Trans World Airlines, Inc. v. Mattox, 897 F.2d 773 (5th

Cir.), cert. denied, 498 U.S. 926 (1990). For a discussion of

"preemption jurisdiction," see Willy v. Coastal Corporation, 855

F.2d 1160, 1165-67 (5th Cir. 1988). 

 

7 897 F.2d 773, 787 (5th Cir. 1990). The Mattox decision

applied the Supreme Court's rule announced in Metropolitan Life to

the Airline Deregulation Act.

 

8 Id. at 787-88. In Mattox, this Court also concluded that

the plaintiff's claims were actually preempted. Id. Although we

conclude that federal jurisdiction exists in this case, we do not

decide whether the plaintiff's claims in this case are actually

preempted. See, Willy, 855 F.2d at 1167.

4

Metropolitan Life Insurance Co. v. Taylor,

5 "however, Congress may

so completely preempt a particular area, that `any civil complaint

raising this select group of claims is necessarily federal in

character'".6 The Supreme Court has held that this "preemption

jurisdiction" exists in cases under the Labor Management Relations

Act and ERISA.

 In Trans World Airlines, Inc. v. Mattox, this Court

determined that the broad preemption provision of the Airline

Deregulation Act expressed a Congressional intent "to treat a

complaint raising `this select group of claims' as `necessarily

federal in character.'"7 In Mattox, the plaintiff asserted a claim

that Trans World Airlines violated the Texas Deceptive Trade

Practices Act. This Court concluded that there was federal

jurisdiction based on § 1305 of the Airline Deregulation Act.8

Thus, in this case, the district court did have subject

matter jurisdiction based on 28 U.S.C. § 1331. 

III.
 

9 Hodges v. Delta Airlines, 44 F.3d 334, 338-39 (5th Cir.

1995) (en banc); see also, Smith v. America West Airlines, 44 F.3d

344 (5th Cir. 1995) (en banc).

 

10 Hodges, 44 F.3d at 340.

 

11 Brief of appellee at 1. The appellee states, in its onepage brief, that this Court's decisions in Hodges and Smith are

"dispositive of the issues raised in this appeal".

5

The district court dismissed the plaintiff's complaint

based on a determination that § 1305 of the Airline Deregulation

Act preempted the plaintiff's causes of action. Since then, this

Court has withdrawn an earlier decision and determined en banc in

Hodges v. Delta Airlines, Inc. that § 1305 only preempts state tort

causes of action that relate directly to airline services.9 We

concluded in Hodges that the plaintiff's negligence claim was not

preempted because it was "too tenuously connected to `rates, routes

and services' to be preempted by §1305(a)(1)".10

The defendant concedes that the Hodges decision controls

this case.11 The defendant, however, argues that this Court should

postpone deciding this appeal until the Supreme Court has had an

opportunity to address the breadth of preemption under § 1305. We

see no basis for postponing decision and, therefore, reject the

defendant's argument.

We REVERSE the district court's dismissal of the

plaintiff's complaint and REMAND for an application of the Hodges

decision to this case.