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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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Case No. 6:23-cv-126-JDK-JDL 

ORDER ADOPTING REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Defendant Delta Air Lines, Inc. removed this case to this Court from Gregg 

County Justice Court Precinct #1 on March 10, 2023. The case was referred to United 

States Magistrate Judge John D. Love pursuant to 28 U.S.C. § 636. 

On March 31, 2023, Judge Love issued a Report and Recommendation 

recommending that the Court remand this case to Gregg County for lack of 

subject matter jurisdiction. Docket No. 9. Defendant timely objected. Docket No. 11. 

Where a party timely objects to the Report and Recommendation, the Court 

reviews the objected-to findings and conclusions of the Magistrate Judge de novo. 28 

U.S.C. § 636(b)(1). In conducting a de novo review, the Court examines the entire 

record and makes an independent assessment under the law. Douglass v. United 

Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded on other 

grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from 

ten to fourteen days). 

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Defendant objects to the Magistrate Judge’s Report and Recommendation 

because it contends that the claims arise under the Montreal Convention—a treaty to 

which the United States is a signatory—therefore, conferring original jurisdiction 

pursuant to 28 U.S.C. § 1331. Docket No. 11. But Plaintiff has not pleaded 

claims under the Montreal Convention. Docket No. 1-3. Rather, Plaintiff has 

pleaded state law claims of: (1) promissory estoppel; (2) violation of the Texas 

Business and Commerce Code; and (3) respondeat superior. Id. “Under the wellpleaded complaint rule, a federal court does not have federal question jurisdiction 

unless a federal question appears on the face of the plaintiff’s well-pleaded 

complaint.” Elam v. Kansas City S. Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011). Here, 

there is no federal question apparent on the face of Plaintiff’s complaint. 

As the Magistrate Judge further explained, an exception to the well-pleaded 

complaint rule arises when Congress “so completely preempt[s] a particular area that 

any civil complaint raising this select group of claims is necessarily federal in 

character.” Id. (quoting Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir. 2000)). 

Neither Defendant’s notice of removal nor its motion to dismiss addresses the doctrine 

of complete preemption as a basis for original jurisdiction here. Rather, 

Defendant has asserted the Montreal Convention as an affirmative defense, using the 

Convention as a basis to sweep the claims into federal court and to simultaneously 

obtain an immediate dismissal of those claims. As the Magistrate Judge pointed out, 

this practice is concerning given Defendant’s certain awareness of the need to address 

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the issue of jurisdiction when removing a case to federal court and the fact that

Plaintiff is proceeding pro se. 

Also concerning is Defendant’s failure to respond to the portion of 

the Magistrate Judge’s Report and Recommendation that ordered an explanation 

as to why Defendant’s removal of this case should not be sanctioned. Docket No. 9 at 

7. The Magistrate Judge explained that Defendant Delta Air Lines, Inc. was 

indisputably aware of the issue regarding complete preemption as a basis for 

jurisdiction from Ebnother v. Delta Air Lines, Inc., 2020 WL 7260932, at *3 (D. Nev. 

Dec. 10, 2020). In Ebnother, Defendant raised the same arguments regarding the 

preemptive effect of the Montreal Convention. The court explained that Defendant’s 

cited authority is in the context of claim preemption—not the complete preemption 

necessary to create federal jurisdiction. Id. The court concluded that it lacked subject 

matter jurisdiction over the case and remanded the action to state court. 

Id. Defendant’s objections tellingly do not substantively address Ebnother or explain 

why a different outcome is justified here. Defendant suggests only that the Ninth 

Circuit has not yet addressed whether the Montreal Convention confers federal 

jurisdiction over state law claims that arise under the treaty. Docket No. 11 at 6–7. 

Defendant’s objections address, for the first time, the concept of complete 

preemption as a basis for federal jurisdiction. The Court is not convinced that 

the Montreal Convention completely preempts state law claims and therefore 

provides a basis for removal. Ultimately, Defendant has not cited any binding 

precedent holding that the Montreal Convention completely preempts state law 

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claims and therefore provides a basis for removal. The majority of courts 

addressing this issue have concluded that complete preemption does not exist 

under the Montreal Convention. See Rocha v. Am. Jets, Inc., 2014 WL 12626317, 

at *3 (S.D. Fla. Nov. 17, 2014) (collecting cases) (“the majority approach [] holds 

that the Montreal Convention does not provide a basis for removal under the 

doctrine of complete preemption.”); see also 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’”). 

The Court finds no error in the Magistrate Judge’s reading of the 

Montreal Convention consistent with the majority approach. See Docket No. 9 at 

4–5 (citing Convention for Int’l Carriage by Air, S. Treaty Doc. No. 106-45 (May 

28, 1999)). Indeed, Defendant does not object to this interpretation of the Montreal 

Convention’s text. Rather, Defendant continues to press that all of Plaintiff’s 

pleaded claims are within the scope of the Montreal Convention. But as the 

Magistrate Judge pointed out, Plaintiff has pleaded a claim for nonperformance 

related to his rebooking on an alternate airline, Emirates, and the subsequent 

failure of Defendant to award his Skymiles. Docket No. 1-3 at 8. As discussed 

by the Magistrate Judge, a claim for nonperformance is outside the scope of the 

Convention. Docket No. 9 at 5. Simply put, as pleaded, it is not apparent from the 

face of the complaint that Plaintiff’s claims invoke federal jurisdiction. 

Having conducted a de novo review of the record in this case and the 

Magistrate Judge’s Report, the Court has determined that the Report of the 

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Magistrate Judge is correct, and Plaintiff’s objections are without merit. Accordingly, 

the Court hereby ADOPTS the Report of the Magistrate Judge (Docket No. 9) as the 

opinion of the District Court. The Court ORDERS that this case shall be 

REMANDED to the Justice Court Precinct #1 of Gregg County, Texas in accord with 

Local Rule CV-83(b) for lack of subject matter jurisdiction. 

All pending motions in this case are DENIED as moot without prejudice to 

being reasserted as necessary in the state court. The Clerk of Court is directed to 

close this case. 

So ORDERED and SIGNED this day of

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JEREMY D. KERNODLE

UNITED STATES DISTRICT JUDGE 27th April, 2023.

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