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UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

LINDA VERBOOM CURRY and ALLEN CHEUNG, 

Plaintiffs, 

vs. 

THE BOEING COMPANY, 

Defendant. 

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20 C 3088 

Judge Gary Feinerman 

MEMORANDUM OPINION AND ORDER

Linda Verboom Curry and Allen Cheung sued The Boeing Company in the Circuit Court 

of Cook County, Illinois, for injuries allegedly suffered while they were flight attendants on a 

transoceanic flight on a Boeing aircraft. Doc. 1-1. Boeing removed the suit to federal court, 

Doc. 1, and moves under Civil Rule 12(b)(6) to dismiss some of Plaintiffs’ claims, Doc. 10. 

Plaintiffs move under 28 U.S.C. § 1447(c) to remand the suit to state court. Doc. 17. Plaintiffs’ 

remand motion is denied, and Boeing’s partial motion to dismiss is granted. 

Background 

In resolving Plaintiffs’ remand motion, the court bears in mind that “[t]he party seeking 

removal has the burden of establishing federal jurisdiction” and that it must “interpret the 

removal statute narrowly, resolving any doubt in favor of [Plaintiffs’] choice of forum in state 

court.” Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009). The court 

assumes the truth of the operative complaint’s allegations at the time of removal, but also may 

consider facts set forth in the notice of removal. See Elftmann v. Vill. of Tinley Park, 191 

F. Supp. 3d 874, 878 (N.D. Ill. 2016) (“In considering a motion for remand, the court must 

examine the plaintiffs’ complaint at the time of the defendant’s removal and assume the truth of 

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all factual allegations contained within the original complaint.”) (internal quotation marks 

omitted); 14C Arthur R. Miller et al., Federal Practice and Procedure § 3739 (West 4th ed. Oct. 

2020) (“Whether an action should be remanded to state court must be resolved by the district 

court with reference to the complaint, the notice of removal, and the state-court record at the time 

the notice of removal was filed.”). 

In resolving Boeing’s Rule 12(b)(6) motion, the court assumes the truth of the operative 

complaint’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. 

N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider 

“documents attached to the complaint, documents that are critical to the complaint and referred 

to in it, and information that is subject to proper judicial notice,” along with additional facts set 

forth in Plaintiffs’ brief opposing dismissal, so long as those additional facts “are consistent with 

the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019-20 (7th Cir. 2013). 

The facts are set forth as favorably to Plaintiffs as those materials allow. See Pierce v. Zoetis, 

Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the facts at the pleading stage, the court 

does not vouch for their accuracy. See Goldberg v. United States, 881 F.3d 529, 531 (7th Cir. 

2018). 

On January 19, 2018, Plaintiffs were working as flight attendants aboard United Airlines 

Flight 71, which was bound from Amsterdam, Netherlands, to Newark, New Jersey. Doc. 1-1 at 

¶ 15. The aircraft, a 767-300, was designed and manufactured by Boeing. Id. at ¶¶ 15-16. 

“About 45 minutes” after takeoff, passengers and crew reported a “dirty sock” smell. Id. at ¶ 17. 

Many fell ill, and some—including Plaintiffs—had to be put on oxygen. Ibid. The captain 

eventually decided to return the plane to Amsterdam. Id. at ¶ 18. Since the incident, Plaintiffs 

have suffered health problems, resulting in a loss of wages and earning capacity. Id. at ¶¶ 20-21. 

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An in-flight “dirty sock” smell is indicative of a “contaminated air event.” Id. at ¶¶ 6-7. 

Most Boeing aircraft use a “bleed air” system, by which air is pulled in through the engines 

before circulating in the cabin and cockpit. Id. at ¶ 5. Certain substances in the engines—such 

as heated jet engine oil, hydraulic fluid, and their byproducts—can contaminate the air before it 

reaches the inside of the plane. Id. at ¶¶ 6-8. The contamination can expose passengers and 

crew to harmful chemicals akin to those found in pesticides and nerve gases. Id. at ¶¶ 8, 32. 

Inhalation of those chemicals can cause short-term illness and long-term injury. Id. at ¶¶ 9, 35-

36. 

Plaintiffs allege that the potential for contaminated-air events on Boeing aircraft is a 

“dirty little secret” in the airline industry, id. at ¶ 5, and that Boeing has long been aware of the 

problem and its dangers, id. at ¶¶ 10-11, 24-28. For instance, in 2012, a British Airways pilot 

died of injuries consistent with inhalation of air contaminated by jet-engine byproducts. Id. at 

¶ 12. Yet Boeing has never fixed or attempted to fix the allegedly defective design of its aircraft 

fitted with bleed-air systems, nor has it provided warnings or training about the dangers of air 

contamination. Id. at ¶¶ 13, 26, 38-39, 48, 53-54. Contaminated-air events continue to occur 

aboard Boeing planes every day. Id. at ¶ 30. 

In addition to its failure to address air-cabin contamination, Plaintiffs allege that Boeing 

has deliberately and repeatedly misrepresented the safety of its fleet. Id. at ¶¶ 57-61. In 1996, in 

response to concerns raised by airlines about air contamination, Boeing asserted that the air 

quality in its planes’ cabins met relevant guidelines and that any reported symptoms among flight 

crews were caused by cabin temperature, not air toxins. Id. at ¶ 58. In 2000, the company 

published an article noting that flight attendants often attributed symptoms such as fatigue, 

headaches, and nausea to air quality in the cabin, but claiming that the symptoms in fact 

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stemmed from other causes, such as jet lag or dehydration. Id. at ¶ 59. And in 2011, a Boeing 

engineer told airlines that the company was committed to, and its fleet designed for, providing 

healthy air to passengers and crew. Id. at ¶ 61. 

The complaint asserts six counts. Id. at ¶¶ 65-95. The first four counts are strict liability 

for defective design, id. at ¶¶ 65-67 (Count I); strict liability for defective warning and 

instruction, id. at ¶¶ 68-70 (Count II); negligence, id. at ¶¶ 71-77 (Count III); and fraud, id. at 

¶¶ 78-85 (Count IV). The other two are a count under the doctrine of res ipsa loquitur, id. at 

¶¶ 86-94 (Count V), and a standalone count for damages, id. at ¶ 95 (Count VI). 

On May 25, 2020, four months after being served with the complaint, Boeing removed 

the suit to federal court. Doc. 1. A week later, Boeing moved to dismiss the fraud and res ipsa 

loquitur counts. Doc. 10. Plaintiffs then moved to remand the suit to state court. Doc. 17. 

Discussion 

I. Plaintiffs’ Motion to Remand 

“A motion to remand must be granted if the case removed from state court could not have 

been brought in federal court originally for lack of subject-matter jurisdiction.” Sarauer v. Int’l 

Ass’n of Machinists, Dist. No. 10, 966 F.3d 661, 668 (7th Cir. 2020) (citing 28 U.S.C. 

§§ 1441(a), 1447(c)). This suit falls within the diversity jurisdiction. See 28 U.S.C. § 1332(a). 

There is complete diversity among the parties, as Plaintiffs are domiciled in Florida, Doc. 1-1 at 

¶¶ 1-2(a), and Boeing is a Delaware corporation with its principal place of business in Illinois, id. 

at ¶ 2(b). See Webb v. FINRA, 889 F.3d 853, 856 (7th Cir. 2018) (Barrett, J.). The amount in 

controversy exceeds $75,000. Doc. 1-1 at ¶¶ 67, 70, 77, 85, 94. 

That said, the removal statute provides that a case “otherwise removable solely on the 

basis of [diversity] jurisdiction ... may not be removed if any of the parties in interest properly 

joined and served as defendants is a citizen of the State in which such action is brought.” 28 

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U.S.C. § 1441(b)(2). Because Boeing is an Illinois citizen, § 1441(b)(2)—known colloquially as 

the “forum defendant rule”—bars it from removing the suit based on the diversity jurisdiction. 

See Assaf v. Trinity Med. Ctr., 696 F.3d 681, 685 (7th Cir. 2012) (“[A]s a home-state defendant, 

Trinity cannot properly request removal.”). The forum defendant rule, however, does not bar 

removal when there is a basis for federal jurisdiction other than diversity. See Hurley v. Motor 

Coach Indus., Inc., 222 F.3d 377, 378 (7th Cir. 2000) (noting that the forum defendant rule bars 

removal only in “a non-federal question case”). Boeing maintains that this suit also falls within 

the admiralty jurisdiction, Doc. 1 at ¶¶ 8-15; see 28 U.S.C. § 1333(1), and a key jurisdictional 

question here is whether Boeing is correct. 

Another key question is whether Boeing’s removal was timely. As a general matter, a 

defendant seeking to remove a case must file a notice of removal “within 30 days” after 

receiving “a copy of the initial pleading setting forth the claim for relief.” 28 U.S.C. 

§ 1446(b)(1). But if “the case stated by the initial pleading is not removable,” the deadline for 

removal extends to 30 days after “receipt by the defendant ... of a copy of an amended pleading, 

motion, order or other paper from which it may first be ascertained that the case is one which is 

or has become removable.” Id. § 1446(b)(3). 

Boeing filed its notice of removal four months after being served with the complaint. 

Doc. 1 at ¶ 1. Plaintiffs argue that the removal was therefore untimely—regardless of whether 

the suit falls within the admiralty jurisdiction—and that the suit accordingly must be remanded. 

Doc. 17 at 2-5. Boeing responds that because the complaint does not clearly allege all the 

jurisdictional facts that make the suit removable under the admiralty jurisdiction, § 1446(b)(1)’s 

30-day clock never started to run. Doc. 24 at 2-6. 

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Whether the complaint made sufficiently clear that the case was removable under the 

admiralty jurisdiction turns on whether the case even is removable, and why. The broader the 

scope of admiralty jurisdiction (e.g., if all torts relating to transoceanic air travel were admiralty 

torts), the more obvious it would have been from the complaint itself that this suit was 

removable. The narrower the scope of admiralty jurisdiction, the less obvious that would have 

been—and thus the more plausible Boeing’s argument that the 30-day clock never started to run. 

And perhaps the admiralty jurisdiction is narrow to the point that this suit does not fall within it, 

and thus is not and never was removable. 

So the court begins its analysis with the admiralty question, and only then turns to 

timeliness. Because the suit falls within the admiralty jurisdiction and Boeing’s removal was 

timely, the court then addresses Plaintiffs’ two other arguments for remand: that jurisdiction is 

precluded by the admiralty statute’s saving-to-suitors clause, see 28 U.S.C. § 1333(1), and that 

Boeing waived its right to remove the case by participating in the litigation in state court. 

Doc. 17 at 5-7, 13-15. 

A. Admiralty Jurisdiction 

“A federal court’s authority to hear cases in admiralty flows initially from the 

Constitution, which ‘extend[s]’ federal judicial power ‘to all Cases of admiralty and maritime 

Jurisdiction.’” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531 

(1995) (alteration in Grubart) (quoting U.S. Const. art. III, § 2, cl. 1). By statute, the federal 

district courts have “original” and “exclusive” jurisdiction over “[a]ny civil case of admiralty or 

maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise 

entitled.” 28 U.S.C. § 1333(1). 

Long ago, the test for admiralty jurisdiction was simple: “[It] asked only whether the tort 

occurred on navigable waters. If it did, admiralty jurisdiction followed; if it did not, admiralty 

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jurisdiction did not exist.” Grubart, 513 U.S. at 531-32. Courts exercised admiralty jurisdiction 

under that test only if the plaintiff’s alleged injury was “‘wholly’ sustained on navigable waters.” 

Id. at 532 (quoting The Plymouth, 70 U.S. (3 Wall.) 20, 34 (1866)). That changed in 1948 when 

Congress enacted the Admiralty Extension Act, ch. 526, 62 Stat. 496 (1948), under which the 

admiralty jurisdiction “extends to and includes cases of injury or damage, to person or property, 

caused by a vessel on navigable water, even though the injury or damage is done or 

consummated on land.” 46 U.S.C. § 30101. 

The Supreme Court elaborated on the test for admiralty jurisdiction in a trilogy of cases 

decided between 1972 and 1990. See Grubart, 513 U.S. at 532-34. The first was Executive Jet 

Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972), which involved an aircraft on a 

domestic route that sank in Lank Erie after colliding with a flock of seagulls as it took off from a 

Cleveland airport. Id. at 250. The Court concluded that tort suits arising from the crash were not 

within the admiralty jurisdiction, reasoning that “maritime locality alone is not a sufficient 

predicate for admiralty jurisdiction in aviation tort cases.” Id. at 261. Rather, the Court held, 

admiralty jurisdiction requires “that the wrong bear a significant relationship to traditional 

maritime activity,” and “unless such a relationship exists, claims arising from airplane accidents 

are not cognizable in admiralty.” Id. at 268. Yet the Court was careful to note that it was not 

holding that “an aviation tort can [n]ever, under any circumstances bear a sufficient relationship 

to traditional maritime activity to come within admiralty jurisdiction.” Id. at 271. And the Court 

recognized that an incident involving a transoceanic flight “might be thought to bear a significant 

relationship to traditional maritime activity because [the aircraft] would be performing a function 

traditionally performed by waterborne vessels.” Ibid. 

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The second case was Foremost Insurance Co. v. Richardson, 457 U.S. 668 (1982), which 

arose from a collision of two “pleasure boats.” Id. at 669. While acknowledging that the boats 

were not engaged in commercial activity, the Court nonetheless held that the suit was within the 

admiralty jurisdiction. See id. at 674, 677. As the Court explained, the requisite “significant 

relationship with maritime commerce” was present because of “[t]he potential disruptive impact 

of a collision between boats on navigable waters coupled with the traditional concern that 

admiralty law holds for navigation.” Id. at 675. 

The third case was Sisson v. Ruby, 497 U.S. 358 (1990), which concerned a fire aboard a 

“pleasure yacht” docked at a Lake Michigan marina that ultimately damaged nearby vessels and 

the marina itself. Id. at 360. Holding that the suit fell within the admiralty jurisdiction, the Court 

emphasized that “fire has a potentially disruptive impact on maritime commerce, as it can spread 

to nearby commercial vessels or make the marina inaccessible to such vessels.” Id. at 362. And 

the Court observed that “the storage and maintenance of a boat at a marina on navigable waters 

has a substantial relationship to a ‘traditional maritime activity.’” Id. at 365. 

As the Court later explained, this trilogy of cases gave rise to the following test, which to 

this day governs questions of admiralty jurisdiction: “[A] party seeking to invoke federal 

admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions 

both of location and of connection with maritime activity. A court applying the location test 

must determine whether the tort occurred on navigable water or whether injury suffered on land 

was caused by a vessel on navigable water. The connection test raises two issues. A court, first, 

must ‘assess the general features of the type of incident involved’ to determine whether the 

incident has ‘a potentially disruptive impact on maritime commerce.’ Second, a court must 

determine whether ‘the general character’ of the ‘activity giving rise to the incident’ shows a 

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‘substantial relationship to traditional maritime activity.’” Grubart, 513 U.S. at 534 (citations 

omitted) (quoting Sisson, 497 U.S. at 363-65, 364 n.2). 

As noted, Boeing argues that this suit falls within the admiralty jurisdiction. Doc. 1 at 

¶¶ 8-15; Doc. 24 at 6-10. In so arguing, Boeing focuses on the fact that “[a]bout 45 minutes” 

into the flight, when the complaint alleges that the “dirty sock” smell was first detected, the 

aircraft was flying over navigable waters—specifically, “over the North Sea, the navigable 

northeastern arm of the Atlantic Ocean running between the British Isles to the west and 

southwest and the mainland of northwestern Europe to the east, south, and southeast.” Doc. 1 at 

¶ 11. While the complaint itself is silent about the plane’s location at that time, Boeing used 

publicly available data to estimate the aircraft’s trajectory. Id. at ¶¶ 10-11. Boeing alleges that 

these data show that Flight 71 was above water both at the time the passengers first smelled the 

“dirty sock” smell—about 45 minutes into the flight—and again when the flight turned around to 

head back to Amsterdam. Id. at ¶¶ 11-14. Although the complaint does not set forth this 

geographic information, a removing defendant’s “[j]urisdictional allegations control unless it is 

legally impossible for them to be true (or to have the asserted consequences).” Lu Junhong v. 

Boeing Co., 792 F.3d 805, 815 (7th Cir. 2015); see also Dart Cherokee Basin Operating Co. v. 

Owens, 574 U.S. 81, 88-89 (2014) (explaining that a removing defendant’s uncontested factual 

allegations can support federal jurisdiction). 

Boeing submits that the Seventh Circuit’s opinion in Lu Junhong v. Boeing Co. supports 

the exercise of admiralty jurisdiction in these circumstances. Lu Junhong addressed whether the 

admiralty jurisdiction encompassed a tort suit arising out of the crash of Asiana Airlines Flight 

214, which had departed from South Korea, into the seawall separating a runway at San 

Francisco International Airport from the San Francisco Bay. 792 F.3d at 807-08. Injured 

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passengers sued Boeing, the aircraft’s manufacturer, in Illinois state court, and—as here—

Boeing removed the suit, invoking the admiralty jurisdiction. Ibid. 

The Seventh Circuit ruled that the suit fell within the admiralty jurisdiction. Id. at 818. 

The court observed that the evidence—which showed pilot error during landing—supported 

Boeing’s contention that “th[e] accident was caused by, or became inevitable because of, events 

that occurred over navigable water.” Id. at 815. The court held that for jurisdictional purposes, 

an airplane over water is “[n]ot functionally” different from a vessel on water: “An airplane, just 

like an ocean-going vessel, moves passengers and freight from one continent to another. It 

crosses swaths of the high seas that are outside of any nation’s territory, and parts of the seas 

adjacent to the United States but outside any state’s territory.” Ibid. As for the fact that the 

injuries giving rise to the suit occurred on land and the legal principle that “there’s no tort 

without injury,” the Seventh Circuit explained that the admiralty jurisdiction does not “require[] 

the whole tort to occur on the water.” Id. at 816 (emphasis added). 

In so holding, the Seventh Circuit acknowledged that Executive Jet, the sole Supreme 

Court admiralty case involving an airplane, was the only modern admiralty case in which the 

Supreme Court rejected exercise of the admiralty jurisdiction. See id. at 815-16. But the 

Seventh Circuit understood Executive Jet’s holding to be limited to cases involving domestic air 

traffic, since domestic flights have only a limited relationship to “traditional maritime activity.” 

Id. at 816 (quoting Exec. Jet, 409 U.S. at 271); see also ibid. (collecting cases holding that 

commercial, transoceanic flights are within the admiralty jurisdiction). Because the flight at 

issue in Lu Junhong was a transoceanic flight, the Seventh Circuit explained, the suit could fall 

within the admiralty jurisdiction. See id. at 815-16. 

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Under the principles articulated in Lu Junhong, this suit falls within the admiralty 

jurisdiction. The “location” test is satisfied, as Boeing has adduced—at least at this stage of the 

litigation—unrebutted evidence that Plaintiffs’ injuries began to manifest while Flight 71 was 

over the North Sea. Doc. 1 at ¶¶ 10-11. (Plaintiffs’ unavailing attempt to rebut this evidence is 

addressed below.) In Lu Junhong, it was sufficient for purposes of the location test that the pilot 

error that caused the crash occurred while the flight was over the San Francisco Bay. See 792 

F.3d at 815 (noting that Boeing “show[ed] that th[e] accident was caused by, or became 

inevitable because of, events that occurred over navigable water”). Here, the argument for 

jurisdiction is even stronger, as the injury itself occurred over navigable waters. And Lu 

Junhong teaches that an injury occurring aboard an aircraft flying above navigable waters is the 

same, for purposes of the admiralty jurisdiction, as one occurring aboard a vessel physically on 

those waters. See ibid. (“[A]n airplane is not a ‘vessel’ and it was ‘over’ rather than ‘on’ the 

water. Does that make a difference? Not functionally.”). 

The “connection to maritime commerce” test is satisfied as well. As noted, that test has 

two components: (1) whether the incident giving rise to the suit had a “potentially disruptive 

impact on maritime commerce,” and (2) whether “the general character of the activity giving rise 

to the incident” has a “substantial relationship to traditional maritime activity.” Grubart, 513 

U.S. at 534 (internal quotation marks omitted). Both components are present here. 

In determining whether the incident giving rise to this suit had a “potentially disruptive 

impact on maritime commerce,” the court must “descri[be] ... the incident at an intermediate 

level of possible generality.” Id. at 538. Describing the incident here as “an injury from 

inhalation of toxic fumes” would be too general. See ibid. (“To speak of the incident as ‘fire’ 

would have been too general ... .”). Plaintiffs suggest that the appropriate level of generality is 

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“an airplane toxic cabin air event that made crew and passengers ill but did not cause a crash.” 

Doc. 17 at 13 n.4. This may be too specific. See Grubart, 513 U.S. at 538-39 (“[T]o have 

described the fire as damaging nothing but pleasure boats and their tie-up facilities would have 

ignored, among other things, the capacity of pleasure boats to endanger commercial shipping that 

happened to be nearby.”). But even if that description falls at the correct level of generality, such 

an incident still would have a potentially disruptive impact on maritime commerce. 

As Lu Junhong explained, transoceanic air travel is akin to intercontinental maritime 

travel, see 792 F.3d at 815, and serious questions about aircraft safety (in the former case) or 

traditional maritime vessel safety (in the latter) can have significant effects on the respective 

modes of transportation. Even in the short term, Flight 71’s unexpected return to Amsterdam 

had the potential to disrupt passengers’ plans, delay other flights, and alter air traffic patterns in 

North America and Europe and over the Atlantic. The potential (and actual) health effects of the 

incident were significant as well. In Tagliere v. Harrah’s Illinois Corp., 445 F.3d 1012 (7th Cir. 

2006), the Seventh Circuit noted that even the possibility that an incident could injure a 

passenger has a potentially disruptive impact on maritime commerce because it could cause an 

unscheduled stop for medical treatment—which is precisely what happened here. Id. at 1015; 

see Doc. 1-1 at ¶¶ 18-19. The fact that Plaintiffs were crewmembers only strengthens (though is 

not necessary for) a finding of potential disruption. See Tagliere, 445 F.3d at 1015 (“An injury 

to a crewmember is somewhat more likely to affect maritime commerce than an injury to a 

passenger, because the crewmember might be vital to the operation of the boat and difficult to 

replace immediately. Yet even an injury to a passenger could have a disruptive effect ... .”).

It does not matter for the purposes of the “potentially disruptive impact on maritime 

commerce” inquiry whether the toxic air event on Flight 71 had an actual impact on 

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intercontinental commerce. As the Supreme Court made clear in Sisson, “[t]he jurisdictional 

inquiry does not turn on the actual effects on maritime commerce” or “on the particular facts of 

the incident in th[e] case.” 497 U.S. at 363 (emphasis omitted). “Rather, a court must assess the 

general features of the type of incident involved to determine whether such an incident is likely 

to disrupt commercial activity.” Ibid.; see also Grubart, 513 U.S. at 539 (holding that “damage 

by a vessel in navigable water to an underwater structure” satisfied the “potentially disruptive 

impact” inquiry); Foremost, 457 U.S. at 675 (relying on the potentially disruptive impact of a 

“collision between boats on navigable waters” to find admiralty jurisdiction, even though the 

boats in question were not engaged in commercial activity). Toxic air conditions aboard a 

transoceanic flight, just as those aboard a vessel, have the potential to cause such a disruption. 

The “substantial relationship to traditional maritime activity” component of the 

“connection to maritime commerce” test is satisfied as well. At that step of the analysis, the 

court must consider, at an appropriately abstract level, the “the general character of the activity 

giving rise to the incident.” Grubart, 513 U.S. at 539. As in Lu Junhong, the activity here was 

transoceanic air travel. See 792 F.3d at 815. And Lu Junhong held that because a transoceanic 

flight, “just like an ocean-going vessel, moves passengers and freight from one continent to 

another,” it “bears a ‘substantial relationship to traditional maritime activity.’” Ibid. (quoting 

Grubart, 513 U.S. at 534). That holding applies with equal force here. 

With the “location” and the “connection to maritime commerce” tests satisfied, this suit 

falls within the admiralty jurisdiction. Plaintiffs offer five reasons for reaching the contrary 

result, Doc. 17 at 10-13, but none is persuasive. 

First, observing that the injury in Lu Junhong arose in part from pilot error that occurred 

over water, Plaintiffs argue that “[u]nlike the occurrences ‘on the water’ in Lu Junhong, Boeing’s 

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failures in this case were omissions that long pre-dated Flight 71’s departure from Amsterdam.” 

Id. at 11 (citing Doc. 1-1 at ¶¶ 22-64). That distinction is immaterial. The “location” test asks 

where the tort occurred, see Grubart, 513 U.S. at 534, and as the Seventh Circuit emphasized in 

Lu Junhong, “there’s no tort without injury,” 792 F.3d at 816. In Lu Junhong, pilot error while 

the aircraft was over navigable waters was the hook for satisfying the location prong; here, the 

hook is the manifestation of the injury over navigable waters. Either hook suffices. See Miller v. 

United States, 725 F.2d 1311, 1312, 1315 (11th Cir. 1984) (exercising admiralty jurisdiction over 

a suit arising from a plane crash over international waters between The Bahamas and Florida, 

even though the alleged negligence took place on land); Williams v. United States, 711 F.2d 893, 

896 (9th Cir. 1983) (finding the location prong satisfied because “the alleged negligence took 

effect when [the] plane crashed in the navigable waters of the Pacific”) (internal quotation marks 

omitted); see also Lu Junhong, 792 F.3d at 816 (relying on Miller and Williams). Indeed, as 

discussed above, before the 1948 amendment to the admiralty statute, that the injury actually 

occur on water was a necessary predicate of admiralty jurisdiction. 

Second, Plaintiffs submit that Flight 71 was not actually a transoceanic flight. Doc. 17 at 

12. Unlike the flight in Lu Junhong, which departed from South Korea and landed in California, 

792 F.3d at 807, the flight here “was intended to cross the Atlantic Ocean, [but] never did,” 

Doc. 17 at 12. Given this, Plaintiffs contend that the situation here is “more akin to the 

continental flight at issue in Executive Jet,” ibid., which the Supreme Court held had an 

insufficient connection with maritime commerce. See Exec. Jet, 409 U.S. at 274 (“[T]here is no 

federal admiralty jurisdiction over aviation tort claims arising from flights by land-based aircraft 

between points within the continental United States.”). But whether Flight 71 ultimately made it 

across the Atlantic is irrelevant. What matters in establishing the necessary relationship to 

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maritime commerce is its character as a transoceanic flight, and Flight 71 indisputably was 

supposed to cross the Atlantic. See Lu Junhong, 792 F.3d at 815 (explaining that transoceanic 

travel is “traditional maritime activity”). 

Third, and along similar lines, Plaintiffs argue that there is no substantial relationship to 

maritime commerce here because “the nature of [Plaintiffs’] legal claims and factual allegations 

concerning Boeing’s conduct ... have [no]thing whatsoever to do with traditional maritime law.” 

Doc. 17 at 12. But Lu Junhong teaches that a tort occurring in an airplane above navigable 

waters is always sufficiently related to traditional maritime activity. See 792 F.3d at 815. While 

Plaintiffs may prefer a test that calls for a more careful examination of the facts and legal claims 

when searching for a connection to maritime commerce, that is not the test the Supreme Court 

has framed. See Grubart, 513 U.S. at 541-43. 

Fourth, Plaintiffs attempt to cast Lu Junhong’s jurisdictional holding as reliant on the 

Death on the High Seas Act, 46 U.S.C. § 30302, a statutory grant of admiralty jurisdiction that 

(for immaterial reasons) would not support jurisdiction here. Doc. 17 at 12-13. That argument 

misreads Lu Junhong, which did not rely on that statute. See 792 F.3d at 816 (“We are not 

saying that the Death on the High Seas Act applies to these cases. The plaintiffs do not rely on 

it.”). Moreover, Lu Junhong equated the reach of the Death on the High Seas Act with the 

general grant of admiralty jurisdiction in 28 U.S.C. § 1333(1), the provision upon which Boeing 

relies here. See 792 F.3d at 816 (“The Supreme Court’s holding in Offshore Logistics [v. 

Tallentire, 477 U.S. 207 (1986),] that an accident caused by problems in airplanes above water 

should be treated, for the purpose of § 30302, the same as an accident caused on the water carries 

the implication that the general admiralty jurisdiction of 28 U.S.C. § 1333(1) also includes 

accidents caused by problems that occur in trans-ocean commerce.”). 

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Fifth, Plaintiffs suggest that “Boeing’s present removal is based on a considerably 

broader conception of admiralty jurisdiction than the one it seems to have advanced in Lu 

Junhong.” Doc. 17 at 13. Specifically, Plaintiffs maintain that while “in Lu Junhong, the court 

couched Boeing’s position as hinging on a ‘maritime cause,’ meaning ‘a cause that occurred 

while the plane was over navigable waters,’” Boeing argues here that “any ‘occurrence’ will do 

and any passage over water will suffice.” Ibid. (emphasis omitted). This contention does 

nothing more than rehash Plaintiffs’ argument about the location test. As noted above, the fact 

that Plaintiffs’ injury first manifested over navigable waters satisfies the location test under Lu 

Junhong. And Boeing is not foreclosed from advancing a different or broader jurisdictional 

theory here just because a narrower one sufficed in Lu Junhong. The court’s lodestar is what the 

Seventh Circuit held in Lu Junhong, not what Boeing argued there. 

Before proceeding, it bears mention that Lu Junhong does not stand for the proposition 

that any tort suit resulting from an occurrence aboard a transoceanic flight automatically falls 

within the admiralty jurisdiction. Lu Junhong takes a broad view of admiralty jurisdiction, but it 

does not purport to displace the location test articulated by the Supreme Court. In fact, it is 

necessary in light of the timeliness discussion below to emphasize that if no part of the alleged 

tort here occurred over navigable waters, this suit would not be an admiralty case. See Lu 

Junhong, 792 F.3d at 815-16 (suggesting that some part of the tort must occur on or over 

navigable waters for the suit to fall within the admiralty jurisdiction). It is therefore critical here 

that, at least as it appears at this juncture, the “dirty sock” smell was first detected while Flight 

71 was flying above the North Sea. Doc. 1 at ¶¶ 10-11. 

Plaintiffs question that factual premise, citing a Dutch Safety Board report on the Flight 

71 incident. Doc. 43-1. The report describes the flight’s plight as follows: 

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An hour into the flight, while flying straight and level at FL320 over Scotland, 

a growing number of the aeroplane’s occupants indicated they were not 

feeling well. Eventually all cabin crew and fifteen passengers (most of them 

from rows 27 through 30) were reporting similar symptoms. These included 

blurred vision, sensations of the aeroplane banking to the right and climbing, 

nausea and a general feeling of drowsiness. 

Id. at 9 (emphasis added). In Plaintiffs’ view, Doc. 43, the report defeats Boeing’s submission 

that the injury occurred while Flight 71 was over the North Sea, for while Boeing maintains that 

the flight was over navigable waters 45 minutes after takeoff, according to the report the critical 

jurisdictional moment—when “a growing number of” crew members and passengers began to 

feel ill—was “[a]n hour into the flight,” while the plane was over (Scot)land. Doc. 43-1 at 9 

(emphasis added). It follows, according to Plaintiffs, that the “location” test for admiralty 

jurisdiction is not satisfied. 

The flaw in Plaintiffs’ argument is that the “45 minutes” data point does not come from 

Boeing; rather, it comes from Plaintiffs’ own complaint. Doc. 1-1 at ¶ 17 (“About 45 minutes 

into the flight, there was a contaminated air event onboard when flight crew and passengers 

reported a ‘dirty sock’ smell.”). All Boeing adds in its notice of removal is that 45 minutes into 

the flight, when the complaint alleges the “dirty sock” smell was first detected, the aircraft was 

over the North Sea—an assertion that the Dutch report does not call into question. Doc. 1 at 

¶¶ 9-11. Even assuming the report is fair game for purposes of Plaintiffs’ remand motion—

which is questionable, as the report categorizes the Flight 71 incident as an “occurrence[] that 

ha[s] not been investigated extensively,” Doc. 43-1 at 9—the court considers it only insofar as it 

is consistent with Plaintiffs’ allegations in the complaint. Cf. Phillips, 714 F.3d at 1019-20 

(binding a plaintiff attempting to submit additional facts in opposing a motion to dismiss to the 

facts alleged in the complaint). “An hour,” Doc. 43-1 at 9, is not “[a]bout 45 minutes,” Doc. 1-1 

at ¶ 17, and thus the Dutch report cannot displace the complaint’s factual allegation as to the 

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timing of the contaminated-air event. So even considering the report, the court takes for true two 

facts: (1) about 45 minutes into the flight, passengers first detected a “dirty sock” smell, Doc. 1-1 

at ¶ 17; and (2) an hour into the flight, the number of passengers and crew “indicat[ing] they 

were not feeling well” was “growing,” Doc. 43-1 at 9. 

As explained above, fact (1) is enough to satisfy admiralty jurisdiction’s location test. 

And because fact (2) does not undermine fact (1), Boeing’s jurisdictional allegations stand. See 

Lu Junhong, 792 F.3d at 815 (“Jurisdictional allegations control unless it is legally impossible 

for them to be true (or to have the asserted consequences).”). It therefore is unnecessary to 

decide whether this suit would fall within the admiralty jurisdiction if the “dirty sock” smell had 

first been detected while the aircraft was over land. And the court notes for good measure that 

amending the complaint to allege that the “dirty sock” smell was detected one hour (instead of 45 

minutes) into the flight would be unlikely to earn Plaintiffs a remand. See In re BNSF Ry. Co., 

606 F.3d 379, 380 (7th Cir. 2010) (“The well-established general rule is that jurisdiction is 

determined at the time of removal, and nothing filed after removal affects jurisdiction. ... And 

though it is sometimes possible for a plaintiff who sues in federal court to amend away 

jurisdiction, removal cases present concerns about forum manipulation that counsel against 

allowing a plaintiff’s post-removal amendments to affect jurisdiction.”). 

B. Timeliness of Removal 

As noted, Boeing removed this suit to federal court more than 30 days after being served 

with the complaint. Doc. 1 at 1, 10. Boeing argues, however, that the 30-day removal clock 

under 28 U.S.C. § 1446(b)(1) never started because it is not clear from the face of the complaint 

that this suit is within the admiralty jurisdiction. Doc. 24 at 2-6. Boeing is correct. 

The Seventh Circuit has adopted a “bright-line rule” to ascertain the time when the 30-

day clock starts: “The 30-day removal clock does not begin to run until the defendant receives a 

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pleading or other paper that affirmatively and unambiguously reveals that the predicates for 

removal are present.” Walker v. Trailer Transit, Inc., 727 F.3d 819, 824 (7th Cir. 2013) 

(emphasis added). The “timeliness inquiry is [therefore] limited to ... examining [the] contents 

of the clock-triggering pleading or other litigation paper; the question is whether that document, 

on its face or in combination with earlier-filed pleadings, provides specific and unambiguous 

notice that the case satisfies federal jurisdictional requirements and therefore is removable.” Id. 

at 825. In determining whether removal was timely, the court pays no mind to “what the 

defendant subjectively knew or should have discovered through independent investigation.” 

Ibid. So if no pleading or other paper makes the unambiguous showing that the case is 

removable, “the removal clock never actually start[s] to run.” Ibid. 

As Plaintiffs observe, “the only pleading [they] have filed to date is the complaint.” 

Doc. 17 at 3 (emphasis omitted). Plaintiffs therefore are right to say that the timeliness inquiry 

turns on “whether the complaint ‘facially reveal[ed] that the grounds for removal are present.’” 

Ibid. (alteration in original) (quoting Walker, 727 F.3d at 825). Plaintiffs contend that “when 

Boeing read the complaint,” it should have realized immediately that “the flight had to go over 

water at some point” on its journey from Amsterdam toward Newark and then back to 

Amsterdam—and thus that the suit was removable. Doc. 17 at 3-4. Plaintiffs do not concede 

that this is an admiralty case, but they argue that under Boeing’s jurisdictional theory, the 30-day 

clock started when the complaint was served. See ibid. 

If every tort related to a transoceanic flight fell within the admiralty jurisdiction, 

Plaintiffs’ argument would have force. But as explained above, one prong of the admiralty 

jurisdiction test turns on the tort’s location. The complaint alleges only that the “dirty sock” 

smell manifested about 45 minutes into the flight; it does not say anything about the plane’s 

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geographic location at that point in time. Doc. 1-1 at ¶ 17. And because the plane’s geolocation 

at the time the “dirty sock” smell was detected is a key data point toward establishing admiralty 

jurisdiction, the complaint does not “affirmatively and unambiguously reveal[] that the 

predicates for removal are present,” Walker, 727 F.3d at 824, and therefore never triggered the 

30-day removal clock. 

Perhaps, as Plaintiffs suggest, it nonetheless was fairly straightforward for Boeing to map 

out Flight 71’s path and determine that the aircraft was above the North Sea 45 minutes into the 

flight. Doc. 17 at 4-5 (“Plaintiffs’ counsel conducted internet research to attempt to replicate 

Boeing’s efforts. ... [It] did not take four months. It took less than half an hour.”). That 

argument misses the point of Walker’s bright-line rule. It does not matter under Walker how 

quickly a diligent defendant could determine that a case is removable, for if the complaint leaves 

any work for the defendant to do in that regard, the removal clock does not start to run. It 

therefore does not matter whether it ought to have taken Boeing four months, or thirty minutes, 

or five seconds to ascertain the missing fact that would establish admiralty jurisdiction. The 30-

day clock never started, so Boeing’s removal was timely—regardless of precisely when it knew 

or should have known that this suit fell within the admiralty jurisdiction. In so holding, the court 

respectfully disagrees with the contrary result reached in a similar case, Milton v. Boeing Co., 

No. 20 C 3089 (N.D. Ill.), ECF No. 30 (Aug. 12, 2020). 

C. The Saving-to-Suitors Clause 

As noted, the admiralty jurisdiction statute provides that “[t]he district courts shall have 

original jurisdiction, exclusive of the courts of the States, of ... [a]ny civil case of admiralty or 

maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise 

entitled.” 28 U.S.C. § 1333(1). Plaintiffs argue that the provision’s last clause—the “saving-tosuitors” clause—bars removal. Doc. 17 at 13-15. Specifically, Plaintiffs contend that one of the 

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preserved “remedies” referenced by the clause is the admiralty plaintiff’s right to select a state 

court forum without facing removal. 

The saving-to-suitors clause operates “as a grant to state courts of in personam 

jurisdiction, concurrent with admiralty courts.” Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 

438, 444 (2001). While § 1333(1) makes federal jurisdiction exclusive in the case of in rem

admiralty suits, admiralty jurisdiction is shared for in personam suits like the one here. See 

Madruga v. Superior Ct., 346 U.S. 556, 560-61 (1954) (“Admiralty’s jurisdiction is ‘exclusive’ 

only as to those maritime causes of action begun and carried on as proceedings in rem, that is, 

where a vessel or thing is itself treated as the offender and made the defendant by name or 

description in order to enforce a lien. It is this kind of in rem proceeding which state courts 

cannot entertain. But the jurisdictional act does leave state courts ‘competent’ to adjudicate 

maritime causes of action in proceedings ‘in personam,’ that is, where the defendant is a person, 

not a ship or some other instrument of navigation.”) (citation omitted). And the saving-to-suitors 

clause acts to preserve a plaintiff’s choice of forum, not only allowing the plaintiff to bring an in 

personam suit in state court, but also restricting the defendant’s ability to remove such a suit. 

See In re Chimenti, 79 F.3d 534, 537-38 (6th Cir. 1996) (“Section 1333, which provides a basis 

for federal jurisdiction in in personam actions if the claimant so chooses, provides no basis for 

removal if the claimant does not so choose.”); see also Romero v. Int’l Terminal Operating Co., 

358 U.S. 354, 372 (1959) (explaining that “the unquestioned aim of the saving clause” is to 

“preserve” the “traditionally exercised jurisdiction of the state courts in admiralty matters”). 

But there is an exception to the principle that the admiralty plaintiff gets the final say on 

forum: If there is some basis for federal jurisdiction other than admiralty—such as the diversity 

jurisdiction or the federal question jurisdiction—the defendant retains its usual ability to remove 

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the suit to federal court. See Brown v. Porter, 149 F. Supp. 3d 963, 969 (N.D. Ill. 2016) 

(collecting cases); see also 14A Miller et al., supra, § 3674 (“[S]aving clause cases theoretically 

are removable, and a number of cases so hold, only if all of the elements of diversity 

jurisdiction—complete diversity of citizenship among these contesting parties and the requisite 

amount in controversy—or some other federal subject-matter jurisdiction basis is present in the 

action. ... [A]n independent basis of federal jurisdiction and satisfaction of all the removability 

prerequisites will trump an otherwise nonremovable state initiated saving-to-suitors action.”) 

(footnotes omitted). 

As explained above, the jurisdictional facts alleged here indisputably place this suit 

within the diversity jurisdiction. Doc. 1-1 at ¶¶ 1-2(b), 67, 70, 77, 85, 94; Doc. 17 at 15; Doc. 24 

at 12. But Plaintiffs give two reasons why the saving-to-suitors clause still bars removal. 

First, Plaintiffs argue that because the forum defendant rule of 28 U.S.C. § 1442(b)(2) 

prohibited Boeing from removing this suit on diversity grounds, the existence of diversity 

jurisdiction cannot provide a way around the saving-to-suitors clause. Doc. 25 at 5-6. This 

argument falters because whether § 1442(b)(2) allows a defendant to remove a case within the 

federal jurisdiction is a question of removal procedure unrelated to the substantive question of 

whether the suit in fact falls within the federal jurisdiction. See Thornton v. M7 Aerospace LP, 

796 F.3d 757, 764 (7th Cir. 2015) (“Whether the case was properly removed to federal court [in 

light of § 1441(b)(2)] is a matter of removal procedure, not jurisdiction.”); Morris v. Nuzzo, 718 

F.3d 660, 665 (7th Cir. 2013) (same); Holmstrom v. Peterson, 492 F.3d 833, 836 (7th Cir. 2007) 

(“[F]ailure to comply with § 1441(b)’s forum defendant rule does not result in a lack of subject 

matter jurisdiction ... .”). It follows that the procedural bar on removal imposed by § 1446(b)(2) 

does not disturb the fact that this suit’s falling within the diversity jurisdiction creates an 

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“independent basis for federal subject matter jurisdiction” for purposes of the saving-to-suitors 

clause. Brown, 149 F. Supp. 3d at 969. 

Second, Plaintiffs contend that because the complaint undoubtedly “inform[ed] Boeing of 

the predicates for diversity removal,” removal premised on diversity jurisdiction “is a ship that 

has now sailed” because Boeing removed the suit more than 30 days after the diversity removal 

clock started. Doc. 17 at 15. That contention fails as well. Although the complaint made clear 

that the requirements for diversity jurisdiction were satisfied, it did not make clear that the case 

was removable. Due to § 1442(b)(2), Boeing—an Illinois citizen—could not have removed the 

suit based solely on the diversity jurisdiction. So for the case to be removable, it had to meet the 

predicates for admiralty jurisdiction (because of the forum defendant rule of § 1442(b)(2)) and 

diversity jurisdiction (because of the saving-to-suitors clause of § 1333(1)). And as explained 

above, the complaint did not “affirmatively and unambiguously” allege that the predicates for 

admiralty jurisdiction were satisfied. Walker, 727 F.3d at 824. It follows that the complaint 

itself did not start the 30-day clock as to diversity jurisdiction, just as it did not start the clock as 

to admiralty jurisdiction. 

In sum: The saving-to-suitors clause bars removal to federal court of an admiralty case 

filed in state court. But that bar does not apply when there is a basis for federal jurisdiction other 

than admiralty. Here there is such a basis, the diversity jurisdiction. The forum defendant rule 

of § 1442(b)(2) does not bar removal because diversity is not the sole basis for federal 

jurisdiction, and because diversity alone is also not a sufficient basis for removal, the complaint 

did not trigger the 30-day removal clock. Boeing’s removal was therefore valid and timely. 

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D. Waiver 

Plaintiffs also argue that Boeing waived its right to remove this case by participating in 

the litigation in state court. Doc. 17 at 5-7. The timeline of Boeing’s relevant state court activity 

is as follows: 

 January 17, 2020: Plaintiffs filed the complaint in state court and served Boeing. 

Doc. 1-2 at 2-3. 

 February 6, 2020: Boeing’s counsel entered an appearance, id. at 10, and Boeing 

requested an extension of time to respond to the complaint, id. at 11-12. 

 February 27, 2020: The parties jointly moved to consolidate this suit with a second 

toxic cabin air case captioned Milton v. Boeing Co. Id. at 24-26. The stated intent of 

the motion was to consolidate the cases “for the purposes of discovery only.” Id. at 

24. The parties also stated that consolidation “will not ... change the rights of 

parties” or “cause prejudice to a substantial right of any party.” Id. at 25. 

 March 6, 2020: The parties filed a joint motion for an extension of Boeing’s time to 

respond to the complaint. Id. at 27-29. 

 March 13, 2020: The state court granted the joint motion to consolidate this suit with 

Milton for discovery purposes. Id. at 48. 

 May 25, 2020: Boeing filed a notice of removal. Doc. 1. 

The question for the court is twofold: (1) whether the extent of a defendant’s participation in a 

suit in state court can operate as a waiver of its right to remove the case to federal court; and 

(2) if so, whether Boeing’s participation here effectuated such a waiver. 

In Rothner v. City of Chicago, 879 F.2d 1402 (7th Cir. 1989), the Seventh Circuit held 

that 28 U.S.C. § 1447(c), which governs motions to remand, does not allow district courts to 

remand on the ground that a defendant’s participation in the litigation in state court waived its 

right to remove the suit. See id. at 1415-16. But following an amendment to § 1447(c), district 

courts in the Seventh Circuit have occasionally granted motions to remand on waiver grounds. 

See Fate v. Buckeye State Mut. Ins. Co., 174 F. Supp. 2d 876, 881 (N.D. Ind. 2001) (explaining 

that § 1447(c) no longer “limit[s] the kinds of challenges that can be brought,” and thus that 

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“waiver—or a defendant’s failure to remove the case before it has been considered at length in 

state court—qualifies as a defect in a defendant’s attempt to remove a case”); see also, e.g., 

Towne v. Am. Fam. Mut. Ins. Co., 2010 WL 680344, at *5 (S.D. Ind. Feb. 22, 2010) (finding 

waiver where the defendant removed the suit only after the state court denied its motion to 

dismiss). 

Even if those decisions correctly interpreted the amended § 1447(c) to allow district 

courts to remand on the ground that the defendant’s participation in the litigation in state court 

waived its right to remove, Boeing’s minimal participation in state court did not do so here. 

Seeking an extension to file a responsive pleading does not move the litigation forward in any 

way and does not qualify as participation for waiver purposes; indeed, the weight of authority 

suggests that even answering the complaint is not grounds for waiver. See 14C Miller et al., 

supra, § 3721 & n.100 (collecting cases); 16 Moore’s Federal Practice § 107.132[2][a] & n.10 

(Matthew Bender 3d ed. 2021); see also, e.g., Robertson v. U.S. Bank, N.A., 831 F.3d 757, 760-

61 (6th Cir. 2016). Similarly, cases abound in which even substantive participation in discovery 

did not result in waiver. See 14C Miller et al., supra, § 3721 & n.100 (collecting cases); see 

also, e.g., Kadambi v. Express Scripts, Inc., 2014 WL 11428187, at *2-4 (N.D. Ind. Apr. 21, 

2014). 

The court agrees with those authorities. Accordingly, because Boeing merely sought an 

extension to file a responsive pleading and joined a procedural motion concerning discovery, and 

because no discovery was produced, nothing that Boeing did in the state court “betray[ed] a 

commitment to litigate the case” there. Robertson, 831 F.3d at 761. It follows that Boeing did 

not waive its right to remove this suit to federal court. 

* * * 

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This suit falls within the admiralty jurisdiction. Boeing’s removal was timely and is not 

barred by the saving-to-suitors clause. Nor did Boeing waive the right to remove the suit 

through its minimal participation in state court. Removal was therefore proper, and Plaintiffs’ 

motion to remand is accordingly denied. 

II. Boeing’s Partial Motion to Dismiss 

Boeing moves to dismiss Count IV (fraud) and Count V (res ipsa loquitur). Doc. 10. 

The court considers each in turn, and sua sponte addresses Count VI (damages). 

A. Count IV (Fraud) 

Civil Rule 9(b) imposes a heightened pleading standard for fraud claims. See Fed. R. 

Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with particularity the circumstances 

constituting fraud or mistake.”); Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736-37 

(7th Cir. 2014). “While the precise level of particularity required under Rule 9(b) depends upon 

the facts of the case, the pleading ‘ordinarily requires describing the who, what, when, where, 

and how of the fraud.’” Camasta, 761 F.3d at 737 (quoting AnchorBank, FSB v. Hofer, 649 F.3d 

610, 615 (7th Cir. 2011)); see also Vicom, Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 

777 (7th Cir. 1994) (“[T]he reference to ‘circumstances’ in [Rule 9(b)] requires the plaintiff to 

state the identity of the person who made the misrepresentation, the time, place and content of 

the misrepresentation, and the method by which the misrepresentation was communicated to the 

plaintiff.”) (some internal quotation marks omitted). 

Boeing argues that Count IV does not satisfy that standard. Doc. 11 at 4-9. Plaintiffs 

agree and ask for a chance to amend. Doc. 20 at 4-5. Count IV is therefore dismissed without 

prejudice, and Plaintiffs will be given an opportunity to amend to comply with Rule 9(b). See 

O’Brien v. Vill. of Lincolnshire, 955 F.3d 616, 628 (7th Cir. 2020) (“[A] court should allow at 

least one opportunity to amend the complaint ... .”); Bausch v. Stryker Corp., 630 F.3d 546, 562 

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(7th Cir. 2010) (“As a general matter, Rule 15 ordinarily requires that leave to amend be granted 

at least once when there is a potentially curable problem with the complaint or other pleading.”). 

B. Count V (Res Ipsa Loquitur) 

“The doctrine of res ipsa loquitur permits an inference of liability on the part of the 

defendant if the plaintiff can demonstrate that certain conditions existed making it likely that the 

defendant was responsible for the injury.” Ruark v. Union Pac. R.R. Co., 916 F.3d 619, 626 (7th 

Cir. 2019). “To establish this inference of negligence, the plaintiff must demonstrate: (1) that the 

injuring instrumentality was within the exclusive management and control of the defendant, and 

(2) that the accident is of the type that does not ordinarily happen if those who have the 

management and control exercise proper care.” Maroules v. Jumbo, Inc., 452 F.3d 639, 642 (7th 

Cir. 2006); see Heastie v. Roberts, 877 N.E.2d 1064, 1076 (Ill. 2007). 

The parties dispute the substantive applicability of res ipsa loquitur under the facts and 

circumstances of this case. In Count V, Plaintiffs allege that the aircraft and its bleed-air system 

were “under Defendant Boeing’s exclusive control and management.” Doc. 1-1 at ¶ 89. Boeing 

challenges this as a “conclusory legal allegation” given that “the complaint makes clear that 

United Airlines, not Boeing, was operating the aircraft at the time the alleged event occurred.” 

Doc. 11 at 10. Plaintiffs respond that the exclusive control requirement of res ipsa loquitur is 

satisfied because “the alleged negligence occurred in the design and construction of the 

airplane’s bleed air system,” a period during which Boeing did have exclusive control. Doc. 20 

at 8. 

This back-and-forth misses a larger point, which is that res ipsa loquitur “describes not a 

substantive claim, but a manner of proceeding on that claim.” Ruark, 916 F.3d at 625. Res ipsa 

loquitur is nothing more than a means for proving negligence or strict liability; put differently, it 

“is a rule of evidence and not a separate theory of recovery.” Prado v. Evanston Hosp., 390 

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N.E.2d 1270, 1272 (Ill. App. 1979); see also Heastie, 877 N.E.2d at 1081 (“[T]he res ipsa 

loquitur doctrine is a species of circumstantial evidence.”); Samansky v. Rush-Presbyterian-St. 

Luke’s Med. Ctr., 567 N.E.2d 386, 394-95 (Ill. App. 1990) (explaining that res ipsa loquitur 

applies in the strict liability context). Because res ipsa loquitur does not qualify as a separate 

cause of action, Count V is dismissed. 

If the complaint’s only viable theory of liability rested on res ipsa loquitur, then it might 

be appropriate to evaluate the doctrine’s applicability at the motion to dismiss stage. But Boeing 

does not move to dismiss the core strict liability and negligence claims. Doc. 16 at 34-39 

(answering Counts I, II, and III). And given that res ipsa loquitur is merely an evidentiary 

theory that may be used to prove negligence or strict liability, Plaintiffs could rely upon that 

theory later in the litigation even if the complaint did not mention it. See In re Chi. Flood Litig., 

1993 WL 278553, at *15 (N.D. Ill. July 20, 1993) (explaining that the question whether to 

dismiss a separately pleaded res ipsa loquitur count is “largely academic” because, even were 

the count dismissed, “plaintiffs would still be entitled to pursue their res ipsa loquitur theory 

under their negligence counts”). With that point in mind, it is unnecessary at this early stage of 

the litigation to say anything about the merits of Plaintiffs’ res ipsa loquitur theory. 

C. Count VI (Damages) 

Count VI purports to assert a “damages” claim. Doc. 1-1 at ¶ 95. The entirety of the 

count is this paragraph: 

Boeing’s conduct caused Plaintiffs short term and long term health problems 

and injuries including pain, suffering, mental anguish, emotional distress, 

physical impairment, loss of normal enjoyment of life, medical bills and 

expenses as well as loss of wage earning capacity, in the past as well as 

reasonably anticipated in the future. 

Ibid. 

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With the understanding that district courts are not “encourage[d]” to dismiss claims sua 

sponte, they may do so if “it appears beyond a doubt that the plaintiff can prove no set of facts in 

support of his claim which would entitle him to relief.” Zellner v. Herrick, 639 F.3d 371, 378 

(7th Cir. 2011) (internal quotation marks omitted). Count VI relates only to a possible remedy 

and does not allege any cause of action. It ought to be captioned as a “Prayer for Relief,” not as 

a separate count, so the court will not strike it from the complaint altogether. But it is not a 

viable cause of action, and it is dismissed to the extent it purports to be. 

Conclusion 

Plaintiffs’ motion to remand is denied. Boeing’s partial motion to dismiss is granted. 

Count IV is dismissed without prejudice to repleading, and Count V is dismissed without 

prejudice to Plaintiffs attempting to use res ipsa loquitur to prove their negligence and strict 

liability claims. Count VI is dismissed without prejudice to Plaintiffs seeking damages if they 

prove liability. Plaintiffs have until April 12, 2021 to file an amended complaint. If Plaintiffs do 

not attempt to amend Count IV, the dismissal of Count IV will convert automatically to a 

dismissal with prejudice. 

March 22, 2021 ___________________________________ 

 Gary Feinerman 

United States District Judge 

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