amendment substituted for the preexisting exclusion of claims of
“wilful misconduct” on the part of an airline or its agent or
both from the Convention’s damages provisions--an exclusion that
brought state law (and not the Convention) into play in
addressing such claims--a corresponding exclusion that spoke in
terms of “damage result [ing] from an act or omission of the
carrier, his servants or agents, done with intent to cause damage
or recklessly and with knowledge that damage would probably
result.”

In the proceedings leading to the Senate’s ratification of
that Montreal Protocol, its Committee on Foreign Relations
reported that the new language reflected a clarification rather
than any intended change in the standard (S. Exec. Rep. No. 105-
20, at 15 (1998)), so that the Protocol simply replaced the
earlier “wilful misconduct” term with “the common law definition
of ‘wilful misconduct’” (id.). And the caselaw post El-Al has

held exactly that (Bayer Corp. v. British Airways PLC, 210 F.3d

236, 238 (4 Cir. 2000); Piamba Cortes v. American Airlines,

iInc., 177 F.3d 1272, 1283-90 (11% Cir, 1999)3).

3 With the Piamba Cortes opinion having engaged in such an
extended exegesis of Convention Art. 25 and of Montreal Protocol
No. 4 (as the court said, it had to address as a matter of first
impression whether the Protocol involved an intended change in
meaning or merely a clarification of the earlier language), and
with American itself having been the litigant that obtained a
reversal of summary judgment on the strength of the Court of
Appeals’ reading, it is even more troubling that American’s
Motion To Dismiss here has pointed only to Convention Art. 24 and

4


assertion of such personal injury claims under local law even
though, for example, “the injury did not result from an
‘accident’ or because the ‘accident’ did not result in physical
injury or physical manifestation of injury” (id., citations
omitted) .

That then would call for the dismissal of whichever of
Weiss’ claims would come within the scope of Convention Art. 24,
and this Court must and does grant American’s motion to that
extent. But what American glosses over (or more accurately
misses entirely) is the express provision of Convention Art. 25
and its impact on Weiss’ claims. This opinion turns to that
provision, which controls the fate of this lawsuit.

As of the time of the El-Al litigation, Convention Art. 25

was in the form quoted in Justice Stevens’ dissent (E1-Al, 525
U.S. at 178 n.3), and the provision was also referred to in the
Court’s opinion (id. at 163 n.7) and, more importantly, was
expressly reserved by the Court at id. 167 n.10. Since the time
that was at issue in El-Al, its provisions have been amended by
the United States’ September 28, 1998 adoption (effective as of

March 4, 1999) of the long-pending Montreal Protocol.? That

2? “Long-pending” may be in the running for the

understatement of the year. Protocol No. 4 was promulgated at
the Hague on September 8, 1955, so that more than four decades
elapsed before our Senate’s 1998 ratification, which joined the
United States with the other nations that had long since signed
onto that set of amendments to the Convention.

3


When Weiss’ Complaint is viewed, as it must be for this
purpose, with all reasonable inferences in his favor, what he has
alleged (except for his Count III claim for breach of contract)
has to be recognized as charging “wilful misconduct” or its
current Convention Art. 25 equivalent on the part of American or
its agent Johnson or both. As already stated, those claims are

expressly relegated by Convention Art. 25 to state law, and that

takes out of play the federal question on which American has
attempted to hang its removal hat.

Accordingly, with the Notice suffering from not one but two
jurisdictional defects, “it appears that the district court lacks
subject matter jurisdiction” (Section 1447(c)). That statute
commands that “the case shall be remanded” (id.), and this Court
so orders. In addition, as permitted under this District Court’s
LR 81.2(b), the Clerk of this District Court is ordered to mail

the certified copy of the remand order forthwith.

Le thn O Savas

Milton I. Shadur
Senior United States District Judge

Date: July 3, 2001

did not even mention the plainly relevant Convention Art. 25 or
its impact on the case now at issue.

5


ate
Minutesrder Form (6°

WY

United States District Court, Northern District of Iinois

Nem Magirnte Jude Milton I. Shadur “than Amigned Judge

CASE NUMBER 01 C 5026 DATE 7/3/2001

CASE Banzion Weiss vs. American Airlines

TITLE

[In the following box (a) indicate the party filing the motion, ¢.6. plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: ‘of the motion being presented.}
DOCKET ENTRY: 4
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) Oo Answer brief to motion due__- Reply to answer brief due__
(4) Oo Ruling/Hearing on_ set for_at
(5) ia} Status hearing[held/continued to} [set for/re-set for] on___ set for att _.
(6) im Pretrial conference[held/continued to] [set for/re-set for]on__set for__at
7) im Trial[set for/re-set for] on at
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
GOFRCP4(m) 1 General Rule 21 Orrcpai(ayi) O FRCP41(a)(2).

ao) [Other docket entry] Enter Memorandum Opinion and Order. Accordingly, with the Notice

suffering from not one but two jurisdictional defects, “it appears that the district court lacks subject matter
jurisdiction” (Section 1447(c)). That statute commands that “ the case shall be remanded” (id.), and this
Court so orders. In addition, as permitted under this District Court’s LR $1.2(b), the Clerk of this District
Court is ordered to mail the certified copy of the remand order forthwith.

(ail [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
requ number of notices

JUL 05 208,
Yortels_)

bY

N
fyi. |
U

date mailed notice

Notices mailed by judge's staff.

Notified counsel by telephone.

av | Docketing to mail notices.

vw Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
SN deputy’s
initials

Date/time received in ;
central Clerk’s Office mailing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

BENZION WEISS,

)
)
Plaintiff, )
)

v. ) No. 01 C 5026 JUL > 5 2001
)
AMERICAN AIRLINES, INC., et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
American Airlines, Inc. (“American”) has filed its Notice of

Removal (“Notice”) to bring this action, filed by Ben Zion Weiss
(“Weiss”) against American and its employee Greg Johnson
(“Johnson”), to this District Court from the Circuit Court of
Cook County. American has accompanied the Notice with its Motion
To Dismiss (the latter being based on the asserted preemption of
Weiss’ claims against it by the Warsaw Convention
(*Convention”)). For the reasons stated in this memorandum
opinion and order, this Court sua sponte grants American’s motion
to dismiss in part--but it remands the action, as it stands after
such partial dismissal, to its state court place of origin
because of the lack of subject matter jurisdiction.

To begin with, American has not conformed to the
requirements, as contained in both 28 U.S.C. g§1441(a) and

1446(a),! that such removal must be undertaken by all defendants.

1 All further references to Title 28's provisions will
simply take the form “Section--.” “


&

That is the uniform message conveyed by the applicable caselaw
(see, e.g., Roe v. O'Donoghue, 38 F.3d 298, 301 and cases cited
there), and in this instance American neither has been joined by
Johnson nor has it explained the absence of any appropriate
explanation from the Notice (as for example by reason of
Johnson’s not having been served with process as yet).

That noncompliance with the cited statutory requirements
might not alone have occasioned remand, because the problem of
Johnson’s absence might have been a mere oversight that could
have been cured within the 30 days allowed for removal (which
will expire, according to Notice fv, on July 6). But here the
very ground that has been asserted by American as a predicate for
removal, which may be accepted as far as it goes, also
independently calls for remand--essentially American has proved
both too much and too little.

To support removal, American first points to the Convention
and then seeks to call to its aid the decision in El-Al Israel

Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999), which

established the preemptive effect of Convention Art. 24 on claims
of air carrier liability arising out of “les cas prévus 4
l’article 17.” According to EL-Al, id. at 168, that provision
“refers generically to all personal injury cases stemming from
occurrences on board an aircraft or in embarking or

disembarking.” And in turn that preemptive provision precludes