Update on McCoy v. East Coast Aero Club et al: Order on Motion to Remand to State Court

Judge Denise J. Casper: ELECTRONIC ORDER entered re: 24 Motion to Remand to State Court. Having considered Plaintiffs' motion to remand this matter to state court, D. 24, Defendants' opposition to same, D. 33, and Plaintiffs' reply, D. 36, the Court ALLOWS the motion. Standard of Review. Upon the filing of a motion to remand, the Court must assess whether it "would have had original jurisdiction of the case had it been filed in [this] court" initially. BIW Deceived v. Local S6, Indus. Union of Marine & Shipbuilding Workers of Am., IAMAW Dist. Lodge 4, 132 F.3d 824, 832 (1st Cir. 1997) (quoting Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 702 (1972)). When a plaintiff files an action in state court and the defendant responds by invoking federal jurisdiction through removal, the defendant has the burden of establishing that removal to the district court is proper. Danca v. Private Health Care Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999). The defendant "must... make a 'colorable' showing that a basis for federal jurisdiction exists." Id. (quoting BIW Deceived, 132 F.3d at 832). "Generally, [d]oubts about the propriety of removing an action should be resolved in favor of remand." Miara v. First Allmerica Fin. Life Ins. Co., 379 F. Supp. 2d 20, 26 (D. Mass. 2005) (alteration in original) (citation omitted). Background . The following facts are drawn from the allegations in the complaint, D. 2-3 at 5-13, and are assumed to be true for the purpose of considering the motion. Plaintiffs seek damages for Defendants' repeated low-altitude flights over their residence which, as alleged, last up to forty-five minutes, and generate noise and vibration and expose them to lead-based fuel particulate. D. 2-3 at 5. According to Plaintiffs, their efforts to seek relief have been met with retaliation, including pilots intentionally circling their residence. D. 2-3 at 8. Plaintiffs' assert claims of nuisance (Count I), negligent infliction of emotional distress (Count II), intentional infliction of emotional distress (Count III) and unfair and deceptive acts and practices under Mass. Gen. L. c. 93A (Count IV). D. 2-3 at 8-12. Discussion. Defendants removed this case on the basis that Plaintiffs' claims "implicate substantial federal questions, including the regulation of aircraft noise and air pollution under federal law, and are preempted by the Airline Deregulation Act (ADA)," "the Federal Aviation Act of 1958, as amended (FAA)," "Federal Aviation Regulations (FAR's)" and "the Clean Air Act." D. 33 at 1; see D. 2. A state-court suit that includes at least one claim "arising under the Constitution, laws, or treaties of the United States"can be removed to federal court. See 28 U.S.C. § 1441 (allowing for removal of suits that fall within the federal district courts' original jurisdiction over federal-question cases); 28 U.S.C. § 1331 (federal-question statute). "[T]he question whether a claim 'arises under' federal law must be determined by reference to the 'well-pleaded complaint.' A defense that raises a federal question is inadequate to confer federal jurisdiction." Merrell Dow Pharm. Inc. v. Thompson , 478 U.S. 804, 808 (1986) (citations omitted); see Rivet v. Regions Bank of La. , 522 U.S. 470, 475 (1998) (explaining that a "case may not be removed to federal court on the basis of a federal defense... even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case") (citation omitted). Defendants insist that Plaintiffs' claims are "grounded upon the Defendants' failure to comply with FAA regulations of aircraft operations, noise generated by engines and propellers subject to certification by the FAA and alleged pollution which is also governed by federal law." D. 33 at 8. This does not necessarily appear to be the case, where Plaintiffs' complaint stems not from the mechanics of the aircrafts, but instead from how they are flown. D. 2-3 at 5-12. Nor does the FAA create a private right of action or evince any attempt to preempt state law remedies. See D. 24-1 at 6-7; Abdullah v. Am. Airlines, Inc. , 181 F.3d 363, 375 (3d Cir. 1999) (noting that "it is evident in both the savings and the insurance clauses of the FAA that Congress found state damage remedies to be compatible with federal aviation safety standards"). This case is, therefore, distinguishable from City of Burbank v. Lockheed Air Terminal Inc. , 411 U.S. 624, 633 (1973) where "the Supreme Court held that the City of Burbank could not use municipal curfews to impose noise regulations on aircraft operations." Gustafson v. City of Lake Angelus , 76 F.3d 778, 783 (6th Cir. 1996) (distinguishing City of Burbank and holding that the FAA did not preempt city ordinances). Here, no state attempts to regulate aircraft noise. Instead, private parties seek damages for low altitude flights that they allege specifically target their residence. Defendants also point to City of Tipp City v. City of Dayton , 204 F.R.D. 388, 395 (S.D. Ohio 2001), in which a district court concluded that state law nuisance and tort claims related to airport departures which were brought by municipalities against a neighboring city were preempted by the FAA because they required the court to determine whether the city violated the FAA's Tower Orders. As Plaintiffs explain, however, they "do not allege that Defendants have violated any federal aviation standard, nor do they seek to enforce federal regulations." D. 36 at 2. Rather, they "assert a traditional state-law nuisance claim grounded in the harm caused by Defendants' tortuous conduct, irrespective of whether that conduct complies with or violates any federal directive." Id. Another session of this Court rejected similar arguments from the defendants in Casey v. Goulian , 273 F. Supp. 2d 136, 137 (D. Mass. 2003). There, defendants, pilots and an airport operator, had removed a state court complaint raising state-law nuisance claims arising from "noisy and dangerous stunt-airplane flights over their homes." Id. The court remanded the case to state court, noting that "the complaint itself [did] not contain any reference to the FAA or any other federal law" and "[e]ven if FAA statutory or regulatory standards did provide a required element of plaintiffs' state-law claims, defendants have failed to demonstrate that the FAA provides a private cause of action to enforce these standards." Id. at 138. According to the Casey court, "Congress, through the FAA, did not take the subject of airplane interference with property rights and give it exclusively to the federal courts." Id. at 140. This is the case here as well. Accordingly, the Court ALLOWS Plaintiffs' motion to vacate the removal of this case and remand to state court, D. 24, and, pursuant to L.R. 81.1(d), the Court will REMAND this case to the Middlesex Superior Court no sooner than thirty days. (LMH)