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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

YVES DEUGOUE,

Plaintiff,

v. 

DELTA AIR LINES, INC.,

Defendant.

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CIVIL ACTION NO. 6:23-CV-00126-JDK

REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

Plaintiff originally filed this case, proceeding pro se, in Justice Court Precinct #1 of Gregg 

County, Texas on January 23, 2023, alleging state law claims for promissory estoppel, violation 

of the Texas Business and Commerce Code, and respondeat superior against Defendant Delta 

Airlines, Inc. (“Defendant” or “Delta”). (Doc. No. 1-3.) Defendant removed this case to federal 

court pursuant to 28 U.S.C. § 1441 on March 10, 2023, citing the Montreal Convention as a basis 

for removal, invoking federal question jurisdiction pursuant to 28 U.S.C. § 1331. (Doc. No. 1.) 

Immediately thereafter, Defendant filed a motion to dismiss for failure to state a claim pursuant to 

Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 5.)

In his original petition in state court, Plaintiff alleges that he was booked on a flight from 

Dallas, Texas, to Atlanta, Georgia, to Paris, France, to Dubai, United Arab Emirates. (Doc. No. 1-

3, at 7.) Plaintiff alleges that his plane from Atlanta, Georgia to Paris, France, was delayed, and,

as a result, he missed his connecting flight to Dubai, United Arab Emirates. Id. Plaintiff contends 

that due to his missed connection, he had to spend approximately 14 hours at Charles de Gaulle 

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airport in Paris, France. Id. Plaintiff contends that he incurred expenses in lodging, meals, 

telephone calls, internet, and transportation as a result. Id. Plaintiff further alleges that he missed 

important meetings which caused him significant financial losses and prejudice. Id. Plaintiff 

alleges that multiple pre-paid travel arrangements had to be cancelled without reimbursement. Id. 

at 8. Additionally, Plaintiff contends that because he had to be transferred to a different airline, 

Emirates, to complete his trip, he did not receive his Delta Skymiles. Id. at 8. Plaintiff further 

contends that on his return trip, his luggage and its contents were damaged. Id. Plaintiff alleges 

that he has made numerous attempts to rectify the above-named issues with Delta, but to no avail. 

Id. at 9. Plaintiff alleges that he has suffered mental anguish and emotional damages. Id. Plaintiff 

alleges claims for: (1) promissory estoppel; (2) violation of the Texas Business and Commerce 

Code; and (3) respondeat superior.1Id. at 10–13. 

When a case is removed to federal court, the court generally looks to whether the 

“plaintiff’s well-pleaded complaint raises issues of federal law.” Merrell Dow Pharmaceuticals 

Inc. v. Thompson, 478 U.S. 804, 808 (1986). Generally, federal preemption is a defense to a state 

law claim and does not provide grounds for removal because a defense based on federal law is not 

a claim arising under federal law. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). 

Complete preemption is the exception to this rule. The complete preemption doctrine applies only 

when Congress intends not merely to preempt a field in state law, but also intends to transfer 

jurisdiction of the subject matter from state to federal courts. Metropolitan Life Ins. Co. v. Taylor, 

481 U.S. 58, 65–66 (1987). “Complete preemption, which creates federal removal jurisdiction, 

differs from the more common ordinary preemption or conflict preemption, which does not.” 

1 The court acknowledges that “respondeat superior” is not a separate cause of action under Texas law, but is, instead, 

a theory of vicarious liability through which a principal may be held liable for an employee’s actions. See Baptist 

Memorial Hospital System v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998) (citing DeWitt v. Harris County, 904 S.W.2d 

650, 654 (Tex. 1995)). The nuance of this distinction is inapplicable to the preemption discussion herein. 

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Rogers v. Am. Airlines, Inc., 192 F. Supp. 2d 661, 665 (N.D. Tex. 2001) (internal quotations 

omitted). “Complete preemption, really a jurisdictional rather than a preemption doctrine, confers 

exclusive federal jurisdiction in certain instances where Congress intended the scope of a federal 

law to be so broad as to entirely replace any state-law claim.” Franciscan Skemp Healthcare, Inc. 

v. Central States Joint Bd. Health & Welfare Trust Fund, 538 F.3d 594, 596 (7th Cir. 2008). As 

detailed above, in his state court petition, Plaintiff makes no allegation arising under the 

constitution or any law or treaty of the United States. Rather, it is Defendant who has removed this 

case to federal court on the grounds of asserting a preemption defense under the Montreal 

Convention. Thus, as a threshold question, the court must first decide whether complete 

preemption exists such that it has federal question subject matter jurisdiction.

Neither Defendant’s notice of removal nor its motion to dismiss explains how the Montreal 

Convention would create complete preemption under the Fifth Circuit’s stringent tripartite test for 

determining whether the complete preemption exception to jurisdiction applies. See Aaron v. Nat’l 

Union Fire Ins. Co., 876 F.2d 1157, 1164 (5th Cir. 1989). Defendant has not cited any Supreme 

Court or Fifth Circuit2case holding that the Montreal Convention completely preempts state law 

claims and therefore provides a basis for removal. Moreover, courts have repeatedly found that the 

Montreal Convention, and its predecessor, the Warsaw Convention, do not give rise to complete 

preemption such that they would provide a basis for federal subject matter jurisdiction. See 

Narkiewicz-Laine v. Scandinavian Airlines Sys., 587 F. Supp. 2d 888, 890 (N.D. Ill. 2008) 

(“Because the conditions and limits of the Montreal Convention are defenses to the state-law 

2 Defendant, in its motion, relies on White v. Emirates Airlines, Inc., 493 F. App’x 526, 529 (5th Cir. 2012). That case, 

however, clearly deals with the concept of claim preemption in stating that the Convention “provides an airline 

passenger’s exclusive remedy” when it satisfies the conditions for liability under the Convention. Citing El Al Isr. 

Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999) (a passenger may not maintain “an action for personal 

injury damages under local law when her claim does not satisfy the conditions for liability under the Convention.”)

(emphasis added). 

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claims raised by plaintiff, they do not provide a basis for federal-question subject matter 

jurisdiction.”); see also Rogers, 192 F. Supp. 2d at 664 (“[A]lthough the Warsaw Convention’s 

exclusivity provisions may well preempt Plaintiffs’ state law claims, the delicate balance between 

state and federal courts cautions against finding that the field of international air travel is so 

completely preempted that any claim relating to the area is necessarily federal in character.”) 

(internal quotations omitted); Rocha v. Am. Jets, Inc., 2014 WL 12626317, at *3 (S.D. Fla. Nov. 

17, 2014) (“[T]he majority approach [ ] holds that the Montreal Convention does not provide a 

basis for removal under the doctrine of complete preemption.”); Benjamin v. Am. Airlines, Inc., 

2014 WL 3365995, at *4 (S.D. Ga. July 9, 2014) (“[A] trending majority finds preemption not 

absolute, but instead ‘extends no further than the Convention’s own substantive scope’”); 

Martinez-Menchaca v. Delta Air Lines, Inc., No. 2:21-CV-01182-RDP, 2021 WL 5014535, at *2 

(N.D. Ala. Oct. 28, 2021) (“This court is persuaded by the majority approach, which holds that the 

Montreal Convention does not provide a basis for removal under the doctrine of complete 

preemption.”). 

In the absence of any Fifth Circuit authority, and reading the plain language of the 

Convention, the court agrees with the majority of its sister courts that the Montreal Convention 

does not completely preempt state law claims. Article 29 of the Convention states:

In the carriage of passengers, baggage and cargo, any action for damages, however 

founded, whether under this Convention or in contract or in tort or otherwise, can 

only be brought subject to the conditions and such limits of liability as are set out 

in this Convention without prejudice to the question as to who are the persons who 

have the right to bring suit and what are their respective rights.

See Convention for Int’l Carriage by Air, S. Treaty Doc. No. 106-45 (May 28, 1999) (emphasis 

added). 

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This language of the Montreal Convention appears to create a cause of action under the 

Convention, but importantly states any action under the Convention “or in contract or in tort or

otherwise.” Id. (emphasis added). “Or” is “used as a function word to indicate an alternative.” 

(“Or,” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/or (last visited 

March 31, 2023)). It follows then that the alternative to a cause of action under the Montreal 

Convention would be a cause of action for damages outside of the Convention. Otherwise, the 

words “or in contract or in tort or otherwise,” would be rendered meaningless. In general, writings 

should not be construed in a way that renders phrases meaningless, redundant, or superfluous. See 

TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (it is a “cardinal principle of statutory construction” 

that “a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, 

sentence, or word shall be superfluous, void, or insignificant”) (quotation and quotation marks 

omitted). Therefore, the text suggests that the Montreal Convention does not completely preempt 

all state law claims but operates instead as an affirmative defense. Indeed, this is how Defendant 

has presented the Montreal Convention in this case. 

As discussed, Defendant’s motion concedes that not all of Plaintiff’s asserted claims are 

preempted and does not argue for complete preemption under the Montreal Convention. (Doc. No. 

5.) Defendant’s motion argues only that Plaintiff’s delay-based claims are preempted under the 

Montreal Convention. (Doc. No. 5, at 3.) But, as Defendant points out, Plaintiff has a claim related 

to his rebooking on an alternate airline, Emirates, and the subsequent failure of Defendant to award 

his Skymiles. (Doc. No. 1-3, at 8.) As such, this claim can be fairly characterized as a 

nonperformance claim, which would put it outside the scope of Article 19 of the Montreal 

Convention. See In re Nigeria Charter Flights Contract Litig., 520 F. Supp. 2d 447, 455 (E.D.N.Y. 

2007) (“The plain language of Article 19 of the Montreal Convention indicates that it governs 

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claims for delay, not nonperformance.”). Defendant has not shown through its motion how Article 

19 applies to such a claim. Rather, Defendant clearly raised the Montreal Convention as an 

affirmative defense seeking to dismiss and/or limit the applicability of Plaintiff’s claims pursuant 

to Rule 12(b)(6). Id. As counsel is surely aware, and as explained above, complete preemption and 

ordinary and/or conflict preemption are not one in the same. It appears that counsel has confused 

these legal concepts or has otherwise attempted to improperly remove this case to federal court, in 

which case Rule 11 sanctions may be appropriate.

3 The court has particular concern here where 

Plaintiff is proceeding pro se. The court is not convinced that Delta was unaware of this issue as it 

has unavailingly previously raised a similar argument before the District Court of Nevada. 

Recently, in rejecting the proposition that the Montreal Convention completely preempts state law 

claims, in Ebnother v. Delta Air Lines, Inc., the district court explained this legal distinction: 

Defendant [Delta] cites heavily to Supreme Court precedent discussing the 

preemptive effect of the Montreal Convention. (See Resp. 6:16–9:2). However, the 

authority is in the context of claim preemption, not the jurisdictional doctrine of 

complete preemption. Claim preemption only implicates the effect of an affirmative 

defense; whereas, complete preemption creates federal question jurisdiction.

No. 220CV00901GMNEJY, 2020 WL 7260932, at *3 (D. Nev. Dec. 10, 2020).

3 Federal Rule of Civil Procedure 11(b) states:

By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later 

advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, 

and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper 

purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, 

defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, 

modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support 

or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further 

investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically 

so identified, are reasonably based on belief or a lack of information. A court may order a party to show cause why 

conduct has not violated Rule 11(b). Fed. R. Civ. P. 11(c)(3). “If, after notice and a reasonable opportunity to respond, 

the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, 

law firm, or party that violated the rule or is responsible for the violation.” Fed. R. Civ. P. 11(c)(1). Sanctions may 

include nonmonetary directives or an order to pay a penalty into the court. Fed. R. Civ. P. 11(c)(4).

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This is the same mistake Delta has once again made in this case citing to White v. Emirates 

Airlines, Inc. To be fair, the court acknowledges that even the courts have confused these legal 

concepts. See, e.g., Rosenbrock v. Deutsche Lufthansa, A.G., Inc., No. 6:16-CV-0003, 2016 WL 

2756589, at *20 (S.D. Tex. May 9, 2016), report and recommendation adopted sub nom. 

Rosenbrock v. Deutsche Lufthansa, AG, Inc., No. CV V-16-0003, 2016 WL 11088850 (S.D. Tex. 

June 21, 2016) (using the term “complete preemption” regarding the Montreal Convention when

conducting a claim preemption analysis regarding plaintiff’s state law claims). However, given the 

express familiarity of Defendant with this exact issue, the court is not so convinced that, in this 

case, Defendant removed the case to federal court in good faith. While it may be argued that 

Defendant was fairly permitted to attempt to remove the case given the lack of precedent from the 

Fifth Circuit, the problem herein is that absent from both Delta’s notice of removal and its motion 

to dismiss is a substantive discussion of complete preemption as a basis for this court’s jurisdiction. 

Instead, Delta immediately moved for dismissal of this action pursuant to the Montreal 

Convention. Again, this is particularly concerning where: (1) Delta is unquestionably aware of the 

need to address the issue of complete preemption; and (2) the Plaintiff in this case is proceeding 

pro se, lacking a fundamental understanding of these legal concepts. 

In sum, Plaintiff’s claims do not arise under the constitution or any law or treaty of the 

United States. The complete preemption doctrine does not apply. Therefore, the court lacks subject 

matter jurisdiction over the asserted claims and RECOMMENDS that this case be REMANDED

to the Justice Court Precinct #1 of Gregg County, Texas. Within 14 days of the issuance of this 

report and recommendation, Defendant shall file a brief with the court explaining its basis for 

removing this case to federal court and why its conduct is not subject to sanctions, addressing the 

court’s concerns discussed herein. 

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Within fourteen days after receipt of the Magistrate Judge’s Report, any party may serve 

and file written objections to the findings and recommendations contained in the Report. A party’s 

failure to file written objections to the findings, conclusions, and recommendations contained in 

this Report within fourteen days after being served with a copy shall bar that party from de novo 

review by the district judge of those findings, conclusions, and recommendations and, except on 

grounds of plain error, from appellate review of unobjected-to factual findings and legal 

conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 

F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 

636(b)(1) (extending the time to file objections from ten to fourteen days).

So ORDERED and SIGNED this 31st day of March, 2023.

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