of La, 522 U.S. 470, 475 (1998). This is truc even if the defense is anticipated in the plaintiff's
complaint. Jd, Precmption of state law claims by federal statute can provide grounds for removal
in limited circumstances only. There are two types of preemption. “Ordinary preemptionTM is a
defense on the merits, and goes to the nature of the remedy available. As such, ordinary preemption
does not provide grounds for removal. See Franchise Tax Bd. v. Construction laborers Vacation
Trust for So. Cal., 462 U.S. 1, 14 (1983). By comparison, “complete preemption” occurs when
“federal law occupies the field” and thus “every claim arises undcr federal law.” Lehmann y. Brown,
230 F.3d 916, 919 (7th Cir. 2000); see also Franchise Tax Board 462 U.S. at 23-24, “Onee an area
of state law has been completely pre-empted, any claim purportedly based on that pre-empted state
law is considered, ftom its inception, a federal claim, and therefore arises under federal law.”
Caterpillar, 482 U.S. at 393.

Because the Dorazios’ complaint alleged state common law claims only, the case was
removable only if those claims were completely preempted by the Warsaw Convention. Tf, by
contrast, the claims were merely ordinarily preempted, the treaty acts as a defense, and does not
provide grounds for removal. See Franchise Tax Board, 462 U.S. at 14; see also Caterpillar Ine.,
482 U.S. 386, 393 (1987). Neither the Supreme Court nor the Seventh Circuit has explicitly ruled
on whether the Warsaw Convention completely preempts state law claims resulting from
international air travel. See Fournier v. Lufthansa German Airlines, 191 F. Supp.2d 996, 1003 (N.D,
Ill. 2002). And we need not decide here whether the Warsaw Convention completely preempts state
law, since regardicss of the preemptive scope of the Convention, remand is warranted. If the

Convention completely preempts state law, then the complaint raised a federal question and was

*Ordinary preemption is also called “conflict preemption.”

4.



D. Costs, Expenses, and Attorney Fees

Under 28 U.S.C. §1447(c) we have discretion to award costs and actual expenses incurred
as aresult of the Defendant’s improper motive. Lxercising this discretion we decline to award costs,
expenses, or attorney fees.
TLL. Conclusion

For the forgoing reasons, the Dorazios” motion is granted and this case is remanded to the

Prod

MARIN, ASPEN
United States District Judge

Cirenit Court of Cook County. It is so ordered.

Dated: tft for. _

9-


Caterpillar, 482 U.S, at 394 (emphasis added). This is true even where complete preemption was
not “obvious” at the time of the complaint. Metropolitan Life Ins. Co., 481 U.S. at 66; D'Ambrosio
v. Chicago Truck Drivers, 1992 WL 389940, 2 (7th Cir. 1992).
Where the plaintiff's initial complaint is removable, the first paragraph of §1 446(b) applies

to the procedure of removal. This section provides:

The petition for removal of a civil action or proceeding shall be filed within thirty

days after the receipt by the defendant, through service or otherwise, of a copy of the

initial pleading setting forth the claim for relief upon which such action or proceeding

is based. . .

28 U.S.C. §1446(b).

Although this thirty day time limitation is not jurisdictional, Ryan v. State Board of Elections of the
State of Illinois, 661 F.2d 1130, 1134 (7th Cir. 1981), itis strictly applied. See Northern Illinois Gas
Company v. Airco Industrial Gases, 676 F.2d 270 (7th Cir. 1982). Where a defendant removes after
the thirty day limit, the case is subject to remand. See Jd. The Dorazios originally filed their
complaint on September 13, 2001. United did not remove the case until May 22, 2002 — well past
the thirty day deadline. Thus, even if the Warsaw Convention completely precmpts the Dorazios’
state law claims, rendering the casc removable, remand is warranted because of United’s untimely
removal.

B. Plaintiffs Response Brief

Tn anticipation that remand was imminent undcr the first paragraph of §1446(b), United now
invokes the second paragraph of §1446(b) in attempting to defeat remand. This paragraph provides:

If the case stated by the initial pleading is not removable, a petition for removal may
be filed within thirty days after receipt by the defendant. . .of a copy of an amended

-6-



untimely removed. If the Convention does not completely preempt state law, then there was no
federal question jurisdiction and removal was improper.

In its most recent and detailed decision on the Warsaw Convention, the Supreme Court held
that the treaty “precludes a passenger from maintaining an action for personal injury damages under
local law when her claim does not satisfy the conditions for liability under the Convention.” El Al
Israel Airlines, Ltd. y. Tseng, 525 U.S. 155, 176 (1998) (emphasis added). A necessary corollary
of this holding is that where a plaintiff’s claims do satisfy the conditions of liability under the treaty,
a plaintiff may maintain an action under local law. In addition, the Court consistently referred to
the “preemptive” effect of the Convention, never using the term “complcte preemption.” /d. at 172,
175, 177. Given the Court’s historic reluctance to find this kind of “extraordinary preemptive
power,” we are disinclined to read the Court’s use of the term “preemption” to mean “complete
preemption.” Metropolitan Life Ins. Co, 481 U.S. at 65. In fact, the Supreme Court has found
complete preemption only with regard to §301 of the LMRA, and §514(a) of ERISA, and suits
challenging ownership of Native American tribal land. See Caterpillar, 482 U.S, at 393. Thus,
under El Al Israel Airlines, the Warsaw Convention does not completely precmpt state law, but
merely subjects state law claims to certain limitations.

Because the Warsaw Convention does not completely preempt state law, the Dorazio’s
complaint did not arise under federal law and was not removable. Our decision, however, does not
depend on this conclusion. Even in the unlikely event that the Warsaw Convention does completely
preempt Dorazio’s state law claims, United’s removal was untimely under §1446(b). “Once an area
of state law has been completely pre-empted, any claim purportedly based on that prc-cmpted state

law is considered, from its inception, a federal claim, and therefore arises under federal law.”

-5-



a case in which the complaint presents a state-law cause of action, but also asserts that federal law
deprives the defendant of a defense he may raise, or that a federal defense the defendant may raise
is not sufficient to defeat the claim.” Jd. (citations omitted). Similarly, United could not, by raising
a federal defense to which plaintiff respondcd, convert the case into onc “arising under federal law.”
See generally Franchise Tax Board, 463 U.S. at 10. “[A] defendant cannot, mercly by injecting a
federal question into an action that asserts what is plainly a state-law claim, transform the action into
one arising under federal law.” Caterpillar, 482 U.S. at 399. Thus, the Dorazios’ response to
United’s motion to dismiss did not constitute an “other paper” justifying removal.*
C. Waiver

Although we have already concluded that this case must be remanded to the Circuit Court
of Cook County, we will briefly address the Dorazios’ argument that United waived its right to
remove. We must agree with United that under Rothner v. City of Chicago, remand on the basis of
waiver is limited to “extreme circumstances.” 879 F.2d 1402, 1415 (7th Cir. 1989). The Seventh
Circuit envisioned the type of extreme circumstances giving rise to waiver as “a casc in which the
suit is fully tried before the statutory period has elapsed and then the defendant files a petition for
removal.” Jd. Defendant's filing of a single motion to dismiss is a far cry from the situation
imagined by the Seventh Circuit. We conclude that United did not waive its nght to remove this

case.

Furthermore, we find disingenuous United argument that it was plaintiffs’ April 22, 2002
response which enabled it to first ascertain the removability of the case. After all, it was United,
not the Dorazios, who on March 1, 2002 first raised the Warsaw Convention — the very law upon
which federal question jurisdiction was purportedly based. United cannot now argue that it was
unaware of possible grounds for removal until Plaintiff's April 22, 2002 response. See generally
Cantrell y, Great Republic Ins. Co., 873 F.2d 1249 (9th Cir. 1989).

-R-



Minute OrdesForm (06/97)

Vie States District Court, Northern District of Illinois

Name of Assit Judge ri Sleting Judge if Oth

Name og Je Marvin Aspen aie de te

CASE NUMBER 02 C 3689 DATE 10/1/2002
CASE Dorazio, et al vs. UAL Corporation dba United Airlines
TITLE

[In the following box (a) indicate the party filing the motion, c.g., plaintiff, dctendant, 3rd party plaintifT, and (b) state briefly the nature
of the motion being prescnted.]

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

gy a Answer brief to motion due, . Reply to answer brief'due,

(4) o Ruling/Hearingon set for aat_

(5) Oo Status hearing[held/continued to] [set for/re-set for]on ss setfor_— sat

(6) 0 Pretrial conference[held/continued to) [set for/re-set for]on set for at.
(7) Oo Trial{sct for/re-set for) ona

(8) o (Bench/Jury trial] [Hearing] held/continued to at.

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CIFRCP4(m) O Local Rule 41.1 OOFRCP41(a)(1) OO FRCP41(a)(2).

qo) i (Other docket entry] Enter Memorandum Opinion and Order: Plaintiff’s motion to remand (4-1)
is granted, The Clerk of the Court is directed to remand the above cause of action to the Circuit Court of
Cook County. The status hearing set for 10/3/02 is stricken.

(1) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document

Nuntber

No notices required. umber of norices

OCT 02

ate ducete

Y | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices

Mail AO 450 form,

Copy to judge/magistrate judge.

date mfited notes
courtroom Pe aes

GL deputy's
initials

Date/time received in. ;
bentral-Clork’sOffige mailing deputy itis



pleading, motion, order or other paper from which it may first be ascertained that the
case is one which is or has become removable.

28 U.S.C. §1446(b).
United argues that the Dorazios “attempted to state a claim in their Response Bricf under the
Warsaw Convention,” and that the response brief constitutes an “other paper from which it may first
be ascertained that the case is one which is or has become removable.” We arc not persuaded.

The Dorazios’ complaint was grounded in Illinois common law. Atno point did the Dorazios
attempt to state a claim under the Warsaw Convention. To the contrary, it was the Defendants who
first raised a federal issue, arguing that the suit should be dismissed because the claims were
completely preempted by the Warsaw Convention. See Defendant's Memorandum in Support of its
Motion to Dismiss, 5. In their response brief, the Dorazios discussed at length the Warsaw
Convention, but maintained that the treaty did not preempt their state law claims. United incorrectly
reads the Dorazios’ response as pleading a new federal cause of action when in actuality the
Dorazios re-asserted their state claims while conceding that they were “subject to the [limitations
of the] Warsaw Convention.” Plaintiffs’ Response to UAL Corporation’s Combined 2-619 and 2-
615 Motion to Dismiss, 3. “Thus, a plaintiff can allege and a judge can issue a judgment applying
such local law concepts as negligence, intentional tort, contract, and the like, so long as the result
imposes no greater liability on the carricr than allowed under the Convention.” Jd. This language
can hardly be read as an abandonment of state law in favor ofa claim under the Warsaw Convention.

As “master of the complaint,” the Dorazios chose to phrase their claim under state common

law. Caterpillar, 482 U.S. at 398. The fact that their recovery was potentially limited by federal law

does not giverisc to removal jurisdiction. “[A] federal court does not have original jurisdiction over



Dorazios’ claims do not arise under federal law, and, in the alternative, removal was untimely, we
remand the case to the Circuit Court of Cook County.
A, Removal on the Basis of the Original Complaint

A case filed in state court may be removed to federal court only if it is one over which the
federal district courts have original jurisdiction, See 28 U.S.C. §1441(a). “The party seeking
removal has the burden of establishing the jurisdiction of the district court.” In re Application of
County Collector of County of Winnebago, ill, 96 F.3d 890, 895 (7th Cir. 1996), The removal
statute should be construed narrowly, with any doubts about jurisdiction resolved in favor ofremand.
Doe y, Allied-Signal, 985 F.2d 908, 911 (7th Cir, 1993).

According to the well-pleaded complaint rule, where the purported basis ofremoval is federal
question jurisdiction, the plaintiff's cause of action must “aris[e] under the Constitution, laws or
treaties of the United States.” 28 U.S.C. §1331. “[A] cause of action arises under federal law only
when the plaintiff’s well-pleaded complaint raises issues of federal law.” Metropolitan Life Ins. Co.
v. Taylor, 481 U.S. 58, 63 (1987). The Dorazios’ claims for battery, willful and wanton conduct,
and fraud were grounded in state, not federal law. Although the Dorazios’ claims were subject to
the Warsaw Convention, the plaintiffs, as “master of the complaint,” were within thcir rights to bring
state-law claims in state court. Caterpillar Inc. vy. Williams, 482 U.S. 386, 398 (1987); see also
Great Northern Ry, Co. v. Alexander, 246 U.S. 276, 282 (1918) (“the plaintiff may by the
allegations of his complaint determine the status with respect to removability of a case”).

The fact that Dorazios’ recovery may ultimately be limited by the Warsaw Convention does
not go to the issue of removability. A defense is not part of the plaintiffs complaint. Therefore, “a

case may not be removed to federal court on the basis of a federal defense.” Rivet v. Regional Bank

-3-



known as “disinsection,” which involves the spraying of pesticides within the crew and passenger
areas of the aircraft.

On March I, 2002 Defendant moved to dismiss all three counts on the grounds that they were
preempted! by the Warsaw Convention? and Federal Aviation Act” On April 22, 2002 the Dorazios
filed a response to United’s motion to dismiss. On May 22, 2002, thirty days from the date of the
Dorazios’ response brief, but seven months from the date of the complaint, United removed the case
to federal court. Currently before us is the Dorazios’ June 21, 2002 Motion to Remand the case.
IL. Analysis

In deciding whether United properly removed this casc, we must resolve threc questions. The
first question is whether the Dorazios’ complaint was removable, and, if the answer is in the
affirmative, whether United removed the case in accordance with the provisions of 28 U.S.C.
§1446(b). Only after finding that the Dorazio’s complaint was not removable can we move on to
the second inquiry: whether the Dorazios, in their April 22 response brief, attempted for the first
time to state a federal claim under the Warsaw Convention. Third, we must decide whether United,

by making a motion to dismiss in state court, waived its right lo remove. Because we find that the

‘Defendant used the terms “preemption” and “complete preemption” interchangeably in
their motion. There is, however, an important distinction between these two concepts. See
generally Section TI, A, infra.

*Convention for the Unification of Certain Rules Relating to International Transportation
by Air, Oct. 12, 1929, 49 Stat. 3000, 3014, T.S. No. 876 (1934), note following 49 U.S.C.
§40104, Warsaw Convention is a treaty governing air carrier liability for all international
transportation.

‘Defendant also argued the claim of willful and wanton conduct should be dismissed
because Illinois does not recognize an independent cause of action for such conduct. Plaintiff
has conceded that this count should be dismissed.

2-



UNITED STATES DISTRICT COURT
NORTIIERN DISTRICT OF JLLINOIS
EASTERN DIVISION

RICHARD DORAZIO, M.D, and
SHARON DORAZIO, individually
and as Class Representatives on
behalf of all others similarly
situated,

DOCKETED

OCT 2 2002

Plaintiff,
v. No. 02 C 3689
UAL CORPORATION, d/b/a
UNITED ATRLINES,
Defendant.

we SSS SSS SS

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, Senior Judge:

Before us is Plaintiffs’ motion to remand this case to the Circuit Court of Cook County.
Because we find there were insufficient grounds for removal and, in the alternative, removal was
untimely, we grant Plaintiffs’ motion.

i. Background

On September 5, 200) Plaintiffs Sharon and Richard Dorazio (“Doravios”) brought suit
against Defendant UAL Corporation (“United”) in the Circuit Court of Cook County. The Dorazios’
complaint attempted to state claims under Minois common law for battery, willful and wanton
conduct, and fraud. The Dorazios argued that they were injured while onboard United’s
international flight en route from California to New Zealand. More specifically, the Dorazios claim

to have become ill after defendant exposed them to hazardous chemicals as a result of a process