ALSHRAFI v. AMERICAN AIRLINES

321 F.Supp.2d 150 (2004) | Cited 8 times | D. Massachusetts | June 8, 2004

MEMORANDUM AND ORDER

I. INTRODUCTION

Since the terrorist attacks of September 11, 2001, this country hasstruggled to meet the stringent demands of national security and,simultaneously, to protect the civil rights of the American people. Somehave argued that the practice of racial profiling, wherein lawenforcement officials or others single out members of a particular racefor heightened investigatory scrutiny, based primarily or exclusively onracial characteristics that allegedly correlate with criminality,represents a conflict between those twin goals. They argue that althoughmembers of all races are entitled to be treated equally, racial profilingis a rational and effective security measure. Others argue, much more persuasively, that racial profiling is nota legitimate security measure, and that at least in the realm ofdiscrimination, liberty and security do not conflict. This case, however,does not present the question whether racial profiling is legitimate, butrather whether it occurred in a particular instance, and whether federallaw preempts state law claims to relief for such conduct.

All parties to this action agree that on November 3, 2001, at LoganAirport in Boston, Massachusetts, the Plaintiff Jehad Alshrafi("Alshrafi") was barred from boarding American Airlines Flight 181 boundfor Los Angeles by the flight's captain, the Defendant Michael E.Blackstone ("Blackstone"). The basis for Blackstone's decision, however,is intensely disputed. Alshrafi, an Arab American and a Muslim, contendsthat Blackstone's refusal was motivated by unlawful discrimination.Blackstone counters that his actions were taken for legitimate securitypurposes.1 II. BACKGROUND

In February 2002, Alshrafi filed a complaint against American Airlinesand the (then unknown) captain of Flight 181 with the MassachusettsCommission Against Discrimination (the "Commission"). Notice of Removal[Doc. No. 3], Ex. A ("Compl.") ¶ 28. In January 2003, the Commissiongranted Alshrafi's request to withdraw his complaint and pursue ajudicial action. Id. ¶ 29. On January 6, 2003, Alshrafi sued the unknowncaptain of Flight 181 (later identified as Blackstone) and AmericanAirlines, Inc. (collectively "American Airlines") in the MassachusettsSuperior Court sitting in and for the County of Suffolk, alleging thatthe captain's refusal to permit boarding amounted to unlawfuldiscrimination based on Alshrafi's national origin, race, and religion.Specifically, Alshrafi claims that the refusal violated Mass. Gen. Lawsch. 272, §§ 92A, 98 (Count I) and constituted the intentional infliction of emotional distress(Count II). Id. ¶¶ 30-42. In its answer, American Airlines argues thatBlackstone's actions were lawful under the Airline Deregulation Act,49 U.S.C. § 44902(b), which grants air carriers discretion to "refuse totransport a passenger . . . the carrier decides is, or might be, inimicalto safety." See Ans. [Doc. No. 6] at 7. American Airlines also contendsthat Alshrafi's claims are preempted by the Airline Deregulation Act,49 U.S.C. § 41713(b)(1), which prevents states from "enact[ing] orenforc[ing] a law . . . related to a price, route, or service of an aircarrier." Id. *A

American Airlines removed the case to this Court in February 2003.Notice of Removal. On January 23, 2004, American Airlines moved forsummary judgment on both counts of the complaint [Doc. No. 18] andsubmitted a supporting memorandum [Doc. No. 21] ("Defs.' Summ. J.Mem."). Alshrafi filed his opposition to American Airlines' motion [Doc.No. 23] ("Pl.'s Summ. J. Opp'n") on February 6, 2004, and AmericanAirlines filed its reply memorandum [Doc. No. 29] ("Defs.' Summ. J.Reply") on February 17, 2004. At oral argument on the summary judgmentmotion, this Court raised sua sponte the issue whether the removal tofederal court was proper. The parties have since submitted supplementalbriefs on the issue, [Doc. No. 30] ("Defs.' Jdn. Mem."); [Doc. No. 31]("Pl.'s Jdn. Mem."), and this Court is now prepared to address the threshold question of whether it has subject matterjurisdiction over this dispute.

III. DISCUSSION

American Airlines removed this case from the Massachusetts SuperiorCourt pursuant to 28 U.S.C. § 1441(a), which provides that "any civilaction in a State Court of which the district courts of the United Stateshave original jurisdiction, may be removed by the defendant ordefendants, to the district court of the United States for the districtand division embracing the place where such action is pending." SeeNotice of Removal ¶ 2. Federal courts have interpreted this removalstatute narrowly and have placed the burden upon the removing party todemonstrate the existence of federal subject matter jurisdiction. See,e.g., Kingsley v. Lania, 221 F. Supp.2d 93, 95 (D. Mass. 2002) (Dein,M.J.); Therrien v. Hamilton, 881 F. Supp. 76, 78 (D. Mass. 1995)(Ponsor, J.).

A. Diversity Jurisdiction

The notice of removal filed in the instant case alleged that this Courthas diversity jurisdiction over this dispute. Notice of Removal ¶ 3. Thenotice states that Alshrafi is a Massachusetts resident and that AmericanAirlines, Inc. is incorporated in Texas. Id. At the time of removal, theidentity of Blackstone, a California resident, was unknown.2 Althoughthe notice of removal identifies Alshrafi as a Massachusetts resident,the complaint clearly states: "At the time of the incident . . ., Mr.Alshrafi resided in Cambridge, Massachusetts. Mr. Alshrafi currentlylives in California." Compl. at 2. This inconsistency between the noticeof removal and the complaint caused the Court to raise the questionwhether Alshrafi and Blackstone are in fact citizens of different statesfor purposes of diversity jurisdiction.3

In determining whether diversity jurisdiction extends to a suit,"residency and citizenship are not interchangeable." Valentin v. Hosp.Bella Vista, 254 F.3d 358, 361 n.l (1st Cir. 2001). Instead, "citizenshipusually is equated with domicile." Id. at 366. "A person's domicile isthe `place where he has his true, fixed home and principalestablishment, and to which, whenever he is absent, he has the intentionof returning.' Domicile requires both physical presence in a place andthe intent to make that place one's home." Id. (quoting Rodriguez- Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir. 1988)) (citationand internal quotation marks omitted). It is the burden of the partyinvoking diversity jurisdiction, here American Airlines, to demonstratecomplete diversity. See id.; Toste Farm Corp. v. Hadbury, Inc.,70 F.3d 640, 642 (1st Cir. 1995).

If both Alshrafi and Blackstone were domiciled in California at thetime the complaint was filed, then diversity jurisdiction is plainlylacking here.4 Alshrafi contends that he had become a citizen ofCalifornia by the time he filed his suit. Pl.'s Jdn. Mem. at 1. AmericanAirlines neither disputes this contention nor provides this Court withany evidence of Alshrafi's domicile at the time of filing. See Defs.'Jdn. Mem. Therefore, American Airlines has failed to meet its burden ofproof as the party invoking removal jurisdiction, leaving this Court withno choice but to rule that diversity jurisdiction is lacking in thiscase.

B. Federal Question Jurisdiction

As an alternative basis for jurisdiction, the notice of removal statesthat "this Court's jurisdiction is premised upon 28 U.S.C. § 1331,because Mr. Alshrafi's right to relief necessarily depends upon the resolution of a substantial question offederal law, the Federal Aviation Act, 49 U.S.C. § 44902." Notice ofRemoval ¶ 4. American Airlines further argues that its preemptiondefense raised under 49 U.S.C. § 41713(b) also extends federal questionjurisdiction to this dispute. Defs.' Jdn. Mem. at 2.

It is well established that federal jurisdiction cannot rest ondefenses or counterclaims, but rather depends on the well-pleadedcomplaint. Franchise Tax Bd. v. Constr. Laborers Vacation Trust,463 U.S. 1, 10 (1983) ("For better or worse, under the present statutoryscheme as it has existed since 1887, a defendant may not remove a case tofederal court unless the plaintiff's complaint establishes that the case`arises under' federal law." (citing, inter alia, Louisville & NashvilleR.R. Co. v. Mottley, 211 U.S. 149, 152 (1908))); In re Edwards,70 F.3d 1252, 1994 WL 868164, at *1 (1st Cir. 1994) (unpublished tabledecision) ("A federal question that is raised as a defense orcounterclaim by a defendant . . . does not confer federal questionjurisdiction or establish a basis for removal."); see generally 14BCharles Alan Wright, Arthur R. Miller & Edward H. Cooper, FederalPractice and Procedure § 3722. "[I]n deciding (for removal purposes)whether a case presents a federal `claim or right,' a court is to askwhether the plaintiff's claim to relief rests upon a federal right andthe court is to look only to the plaintiff's complaint to find theanswer." Hernandez- Aqosto v. Romero-Barcelo, 748 F.2d I, 2 (1st Cir. 1984) (citing Gully v.First National Bank, 299 U.S. 109, 112 (1936)); see also Brae AssetFund, L.P. v. Dion, 929 F. Supp. 29, 30 (D. Mass. 1996) (Woodlock, J.)("In the ordinary removal setting it is only a defendant that canremove, and if the plaintiff's well-pleaded complaint discloses no basisfor federal jurisdiction, the defendant must litigate the claims — evenany affirmative federal defenses, or counterclaims, it may assert — instate court." (citations omitted)).5

An important corollary to the well-pleaded complaint rule is "thefurther principle that `a plaintiff may not defeat removal by omitting toplead necessary federal questions.'" Rivet v. Regions Bank of Louisiana,522 U.S. 470, 475 (1998) (quoting Franchise Tax Board, 463 U.S. at 14).In other words, a plaintiff cannot disguise a federal cause of action,and thereby frustrate a defendant's right of removal, by "artfullypleading" her case to avoid any reference to federal law. Under the artfulpleading doctrine, removal is proper (1) "where federal law completely preempts a plaintiff's state-law claim," id. (citingMetropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 65-66 (1987), andAvco Corp. v. Aero Lodge No. 735, International Ass'n of Machinists,390 U.S. 557, 560 (1968)), or (2) where a well-pleaded claim sounding instate law "necessarily `requires resolution of a substantial question offederal law,'" Almond v. Capital Props., Inc., 212 F.3d 20, 23 (1st Cir.2000) (quoting Franchise Tax Board, 463 U.S. at 13). See also Metheny v.Becker, 352 F.3d 458, 460-61 (1st Cir. 2003). This latter ground forremoval is often referred to as "federal ingredient" jurisdiction. Id. at461.

In this case, Alshrafi's complaint makes absolutely no mention ofSections 41713(b) and 44902(b) of the Airline Deregulation Act (the"Act"), or of any other federal law. Therefore, the issues presented tothis Court are (1) whether Alshrafi's state claims have been completelypreempted by the Act, and (2) whether the effect of the Act's safetyprovision, 49 U.S.C. § 44902(b), on Alshrafi's state claims warrantsthe removal of this case to federal court.

1. Complete Preemption

In most cases, federal preemption is considered a defense. Rivet, 522U.S. at 476. The Supreme Court has held, however, that "[o]nee an area ofstate law has been completely pre-empted, any claim purportedly based onthat pre-empted state-law claim is considered, from its inception, a federal claim, and therefore arisesunder federal law." Caterpillar Inc. v. Williams, 482 U.S. 386, 393(1987) (emphasis added). To hold state law completely preempted, a courtmust conclude "that Congress intended federal law to occupy the whole ofa regulatory field; that federal judicial power properly extends toactions originally filed in state courts to the extent that they touchupon that field; and that the exercise of such federal power does notoffend principles of federalism." BIW Deceived v. Local 56, Indus. Unionof Marine & Shipbuilding Workers, 132 F.3d 824, 833-34 (1st Cir.1997).6 The issue of federal preemption7 under the Airline DeregulationAct has been extensively briefed by the parties in their summaryjudgement memoranda. American Airlines contends that Alshrafi's statediscrimination and tort claims are preempted because the Act explicitly prevents states from "enact[ing] orenforc[ing] any law . . . related to a price, route, or service of an aircarrier." 49 U.S.C. § 41713(b)(1); Defs.' Summ. J. Mem. at 20-24.Alshrafi argues that his state claims fall outside the intended scope ofthe Act's preemption clause. Pl.'s Summ J. Opp'n at 13-17.

The Supreme Court in Morales v. Trans World Airlines, Inc., 504 U.S. 374(1992), explained the congressional intent behind the Act's preemptionprovision: In 1978, . . . Congress, determining that "maximum reliance on competitive market forces" would best further "efficiency, innovation, and low prices" as well as "variety [and] quality . . . of air transportation services," enacted the Airline Deregulation Act. . . . To ensure that the States would not undo federal deregulation with regulation of their own, the ADA included a pre-emption provision, prohibiting the States from enforcing any law "relating to rates, routes, or services" of any air carrier.504 U.S. at 378-79 (internal citations omitted). Morales broadly defined"relating to" in the preemption clause as "having a connection with orreference to, airline `rates, routes, or services.'" Id. at 384. TheMorales Court, however, left room for state laws for which the connectionwas "too tenuous, remote, or peripheral . . . to have pre-emptiveeffect." American Airlines, Inc. v. Wolens, 513 U.S. 219, 224 (1995)(quoting Morales, 504 U.S. at 390) (internal quotation marks omitted);see also Morales, 504 U.S. at 390 ("[W]e do not . . . set out on a roadthat leads to pre-emption of state laws against gambling and prostitution as applied to airlines. Nor need we address whether stateregulation of the nonprice aspects of fair advertising (for example,state laws preventing obscene depictions) would similarly `relat[e] to'rates; the connection would obviously be far more tenuous."). In holdingthat Illinois' deceptive advertising guidelines where preempted by theAct, the Morales Court concluded: "All in all, the obligations imposed bythe guidelines would have a significant impact upon the airlines' abilityto market their product, and hence a significant impact upon the faresthey charge." Morales, 504 U.S. at 390.

Under the basic framework set out in Morales and reaffirmed by theSupreme Court in Wolens, 513 U.S. at 224, this Court must determinewhether Alshrafi's state claims for discrimination and intentionalinfliction of emotional distress "relate to" air carrier rates, routes,or services, and, if so, whether their relationship is "too tenuous,remote, or peripheral" to warrant preemption. Although passenger boardingwould seem to be within the purview of air carrier "services" under thepreemption clause, Alshrafi urges this Court to limit preemption to claimsthat more directly touch upon the economic aspects of rates, routes, orservices.8 Pl.'s Opp'n at 13-14. The Supreme Court's pronouncements in Morales and Wolens do not suggest that courts shouldmake a rigid distinction between state claims that are economic in natureand those that are not. This Court will instead be guided by Congress'sintent to promote "maximum reliance on competitive market forces" and byMorales' exception for state laws with only a "tenuous" relationship withrates, routes, and services.

Some Justices of the Supreme Court have recognized that the meaning ofthe term "service" in Section 41713(b)(1) of the Act has divided theCourts of Appeals. In Northwest Airlines, Inc. v. Duncan, 531 U.S. 1058(2000) (Mem.), the Supreme Court declined to review a Ninth Circuit caseholding that an airline's allowance of smoking on trans-Pacific flightsdid not relate to a "service" and therefore the plaintiff's personalinjury claims resulting from the policy were not preempted under theAct. See Duncan v. Northwest Airlines, Inc., 208 F.3d 1112, 1114-16 (9thCir. 2000). Justice 0'Connor, joined by Chief Justice Rehnquist andJustice Thomas, dissented from the denial of certiorari, commenting that the Courts of Appeals "have taken directly conflictingpositions on this question of statutory interpretation": The Ninth Circuit below, adhering to its decision in Charas v. TWA, 160 F.3d 1259 (1998) (en banc), held that the term "service" encompasses "`the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail,'" but not the "`provision of in-flight beverages, personal assistance to passengers, the handling of luggage, and similar amenities.'" Duncan v. Northwest Airlines, Inc., 208 F.3d 1112, 1114-1115 (2000) (quoting Charas, supra, at 1261). The Third Circuit has expressly agreed with this approach. Taj Mahal Travel, Inc. v. Delta Airlines Inc., 164 F.3d 186, 194 (1998). In contrast, three Courts of Appeals have adopted a much broader definition. See Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995) (en bane) (defining "service" in terms of the "`[contractual] features of air transportation,'" including "`ticketing, boarding procedures, provision of food and drink, and baggage handling'"); Smith v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998) ("Undoubtably, boarding procedures are a service rendered by an airline") (citing Hodges, supra, at 336); Travel All Over The World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996) (adopting Hodges definition). See also Chukwu v. Board of Directors British Airways, 889 F. Supp. 12, 13 (D. Mass. 1995), aff'd mem., 101 F.3d 106, 1996 WL 662466 (1st Cir. 1996) (same).Id. The circuit split described by Justice O'Connor persists to thisday; indeed it has become more stark, and the Supreme Court has yet toelaborate on the scope of the Act's preemption provision beyond itsprevious decisions in Morales and Wolens.

Although the meaning of "services" under Section 41713(b) is notwithout controversy, the fact that numerous federal courts have declinedto construe the Act to preempt a variety of state tort and discrimination claims arising from airline conduct stronglysuggests that these fields have not been completely preempted forpurposes of federal question jurisdiction. See, e.g., Newman v. AmericanAirlines, Inc., 176 F.3d 1128, 1130-31 (9th Cir. 1999) (holding that theAct did not preempt a state disability discrimination claim);Abdu-Brisson v. Delta Airlines, 128 F.3d 77, 86 (2d Cir. 1997) (holdingthat the Act did not preempt a state age discrimination claim);Chowdhury v. Northwest Airlines Corp., 238 F. Supp.2d 1153, 1155-56(N.D. Cal. 2002) (applying Charas and holding that the Act did notpreempt a state ethnic discrimination claim).

It is presently unclear whether the First Circuit would adopt Hodges'broad definition of air carrier "services" or Charas' narrowerunderstanding of the term. Two years before Charas was decided, the FirstCircuit summarily affirmed in an unpublished table decision a districtcourt opinion adopting the Hodges definition and holding that theplaintiff's slander and intentional infliction of serious emotionaldistress claims resulting from a denial of boarding were preempted bySection 41713(b)(1). Azubuko v. Bd. of Dirs., British Airways,101 F.3d 106, 1996 WL 662466 (1st Cir. 1996) (unpublished tabledecision), aff'g 889 F. Supp. 12 (D. Mass. 1995) (Lasker, J.). This areaof law has undergone significant development in the years since Azubuko.Most important, of course, at the time Azubuko was decided, the FirstCircuit did not have the benefit of the compelling argument outlined by the Ninth Circuit in Charas for itsposition that Congress intended to preempt state economic regulation ofthe airline industry, not run-of-the-mill tort claims: We conclude that when Congress enacted federal economic deregulation of the airlines, it intended to insulate the industry from possible state economic regulation as well. It intended to encourage the forces of competition. It did not intend to immunize the airlines from liability for personal injuries caused by their tortious conduct. Like "rates" and "routes," Congress used "service" . . . in the public utility sense — i.e., the provision of air transportation to and from various markets at various times. In that context, "service" does not refer to the pushing of beverage carts, keeping the aisles clear of stumbling blocks, the safe handling and storage of luggage, assistance to passengers in need, or like functions.Charas, 160 F.3d at 1266.

Even though the First Circuit's Azubuko opinion is binding on thisCourt,9 though perhaps not on subsequent panels of the [EDITORS NOTE: THIS PAGE IS BLANK.] First Circuit,10 its decision to affirm suggests only that the Actpartially preempts state tort law. Recent district court rulings withinthe First Circuit have held that the Act does not completely preemptstate tort law for purposes of federal question jurisdiction. See SkydiveFactory, Inc. v. Maine Aviation Corp., 268 F. Supp.2d 61, 62, 64 (D. Me.2003) (holding that the Act did not completely preempt state contract andnegligence claims); Kingsley v. Lania, 221 F. Supp.2d 93, 97-98 (D.Mass. 2002) (Dein, M.J.) (holding that the Act did not completely preemptstate contract and tort claims); see also Stone v. Frontier Airlines,Inc., 256 F. Supp.2d 28, 40-43 (D. Mass. 2002) (holding that the Act didnot completely preempt a passenger's wrongful death claim); Somes v.United Airlines, 33 F. Supp.2d 78, 85-97 (D. Mass. 1999) (Lasker, J.)(same). As these courts have, this Court concludes that Azubuko does not preclude it from examining the Act's application to Alshrafi's particularstate claims before concluding whether complete preemption warrantsremoval of this case to federal court.

With regard to Alshrafi's claims of discrimination and intentionalinfliction of emotional distress, the parties' memoranda highlight twoinstructive preemption cases. American Airlines argues that this Courtshould look to Huggar v. Northwest Airlines, Inc., No. 98 C 594, 1999 WL59841 (N.D. 111. Jan. 27, 1999), a case holding that the Act preempted apassenger's claims of intentional infliction of emotional distress andentering summary judgment for the airline on the passenger's racediscrimination claim under the Illinois Human Rights Act. Id. at *6, *9.Huggar, an African American, alleged that he was removed from a NorthwestAirlines flight on the basis of his race. Id. at *1. Northwest Airlinesmaintained in their defense that Huggar was removed for purely safetyreasons after he and a flight attendant were involved in a verbalaltercation. Id. at *2. In concluding that Huggar's "claims `relate to'the airline's provision of services" and were therefore preempted by theAct, the court reasoned that "Huggar's claims expressly refer toNorthwest Airlines' service of transportation" and "are based onNorthwest Airlines' decision to remove Huggar from the aircraft forsafety reasons rather than transport him to Minneapolis on that flight."Id. at *9. Alshrafi urges the Court instead to follow Doricent v. AmericanAirlines, Inc., Civ. A. No. 91-12084Y, 1993 WL 437670 (D. Mass. Oct. 19,1993), a case in which this Court held that the Act did not preempt apassenger's claims of intentional infliction of emotional distress andrace discrimination under Mass. Gen. Laws ch. 93, § 102. Id. at *5-7.Doricent alleged that prior to his flight's departure from Haiti,American Airlines employees referred to him using racial epithets,threatened to remove him from the plane, and physically assaulted him.Id. at *l-2. American Airlines denied that the incident ever took place.Id. at *1. This Court held that American Airlines' alleged actions didnot "relate to" services under the Supreme Court's decision in Morales: While the context of American's actions here may . . . arguably constitute "services" — poor services, to be sure — . . . the Morales decision does not compel a conclusion that the state claims of intentional torts made by Doricent here "relate to" services as the Morales court analyzed the term. Racial discrimination, the intentional infliction of emotional distress, and assault and battery have nothing whatsoever to do with any legitimate or quasi-legitimate industry-wide practice of affording airline service. Imposing liability for such conduct under Massachusetts law is not shown to in any way "significantly impact" an airline's ability to administer services, or set rates and routes. In addition, this Court has no evidence before it that recognition of Doricent's claims will frustrate in any way the purpose of the Airline Deregulation Act to promote "competitive market forces."Id. at *5. American Airlines tries to distinguish Doricent from this case byarguing that Doricent involved more extreme allegations of discriminationand did not present this Court with issues of safety and security. Defs.'Summ. J. Reply at 12. Alshrafi attempts to minimize Huggar by summarilytagging it as an "unpersuasive outlier." Pl.'s Summ. J. Opp'n at 16.Neither argument is terribly compelling.

This Court concludes that the reasoning in Doricent easily can extendto cases that present issues of safety and security such as this one. Thequestion in such cases is whether claims brought for racial and religiousdiscrimination and the intentional infliction of emotional distresscaused by such discrimination are preempted by an air carrier's right to"refuse to transport a passenger or property the carrier decides is, ormight be, inimical to safety."11 49 U.S.C. § 44902(b). American Airlines has not suggested, and this Court cannot imagine, that racialand religious prejudice and the intentional infliction of emotionaldistress12 bear any relation to the legitimate preservation ofairline security. Although Section 44902 certainly extends broaddiscretion to air carriers to make safety decisions, the statute does notgrant them a license to discriminate. See Bayaa v. United Airlines,Inc., 249 F. Supp.2d 1198, 1205 (C.D. Cal. 2002). Nor does it permit aircarriers to exercise their discretion arbitrarily or capriciously.Indeed, actions motivated by racial or religious animus are necessarilyarbitrary and capricious, and therefore beyond the scope of thediscretion granted by Section 44902. See Dasrath v. ContinentalAirlines, Inc., 228 F. Supp.2d 531, 540 n.12 (D.N.J. 2002).Fundamentally, it is beyond dispute that Congress cannot enact any lawthat would effectuate, directly or indirectly, the private racial andreligious biases of airline employees. See Palmore v. Sidoti, 466 U.S. 429,432-33 (1984) ("Classifying persons according to their race is more likely to reflect racial prejudicethan legitimate public concerns; the race, not the person, dictates thecategory. . . . Private biases may be outside the reach of the law, butthe law cannot, directly or indirectly, give them effect."). Therefore,the possible application of Section 44902 to this case does nothing tobolster American Airlines' argument that Alshrafi's state claims arepreempted by the Act and thus subject to removal.

Moreover, although the allegations set forth in Doricent were arguablymore extreme than those in this case, it still holds true that "[r]acialdiscrimination [and] intentional infliction of emotional distress . . .have nothing whatsoever to do with any legitimate or quasi-legitimateindustry-wide practice of affording airline service" under the Act'sexpress preemption provision. Doricent, 1993 WL 437670, at *5. At most,Massachusetts' discrimination and intentional tort laws have a "tenuous,remote, or peripheral" effect on airline services, and Section 41713(b)thus has no "pre-emptive effect." Wolens, 513 U.S. at 224 (quotingMorales, 504 U.S. at 390) (internal quotation marks omitted).Furthermore, American Airlines has not provided this Court with anyevidence that Alshrafi's state claims would impair the Act's purpose topromote "maximum reliance on competitive market forces." See Morales, 504U.S. at 378-79. This Court therefore holds that Alshrafi's state claimsfor discrimination under Mass. Gen. Laws ch. 272, §§ 92A, 98 (Count I) and intentional infliction of emotional distress (CountII) are not completely preempted by the Airline Deregulation Act, andthus cannot be removed to federal court on this basis.

Huggar v. Northwest Airlines does not contradict this result. In itspreemption analysis, the Huggar court assumed that the airline's decisionto deny boarding to Huggar was on the legitimate basis of security, notrace. The court explained that Huggar's claims "relate[d] to" serviceswithin the meaning of the preemption clause because they were "based onNorthwest Airlines' decision to remove Huggar from the aircraft forsafety reasons." Huggar, 1999 WL 59841, at *9 (emphasis added). The courtframed Huggar's claim in such a way because it held earlier in itsopinion that (1) "[e]xamination of Huggar's answer to Northwest Airline'smotion for summary judgment reveals that [Huggar's allegations that racewas the real reason he was escorted from the plane] are merely conclusorystatements unsupported by the record"; and (2) "[t]he record clearlyshows that Huggar's threatening words and actions warranted his removalfrom that Northwest Airlines flight, not only for the crew[']s safety butfor the safety of the other passengers." Id. at *6. Thus, although thecourt lists Huggar's state race discrimination count among the "TortClaims" preempted by the Act, the court's preemption analysis really onlydeals with ordinary tort claims; the court disposed of the racediscrimination claim by finding that no genuine issue of material factexisted and that the airline was "entitled to judgment as a matter of law." Fed.R. Civ.P. 56(c); see Huggar, 1999 WL 59841, at *6, *9-10.

In contrast to Huggar, it is still disputed in this case whetherAlshrafi was denied boarding for legitimate security reasons or whethersecurity was merely a pretext for discrimination on the basis of nationalorigin, race, or religion. Therefore, Huggar does not conflict with thisCourt's holding that Alshrafi's state claims are not completely preemptedby the Act for purposes of federal question jurisdiction.

2. Federal Ingredient Jurisdiction

Although the history of federal ingredient jurisdiction has been markedby some controversy, the doctrine "remains vibrant" in the FirstCircuit. Metheny, 352 F.3d at 460. As the First Circuit elaborated inAlmond, the doctrine survives but should be applied sparingly: A more controversial basis for "arising under" jurisdiction under section 1331 exists where, regardless of whether federal or state law creates the claim, a well-pleaded complaint necessarily "requires resolution of a substantial question of federal law." Franchise Tax Bd., 463 U.S. at 13. The Supreme Court has periodically affirmed the basis for jurisdiction in the abstract (Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921), is the most famous example), occasionally cast doubt upon it, rarely applied it in practice, and left the very scope of the concept unclear. Perhaps the best one can say is that this basis endures in principle but should be applied with caution and various qualifications.Id. at 23 (parallel citations and footnote omitted). The Supreme Courthas allowed federal ingredient jurisdiction in cases presenting important constitutional issues, see Smith, 255 U.S. at 180;City of Chicago v. International College of Surgeons, 522 U.S. 156(1997), but has denied federal ingredient jurisdiction in cases wherestate tort claims merely incorporated federal fault standards, seeMerrell Dow, 478 U.S. at 804; Moore v. Chesapeake & Ohio Ry. Co.,291 U.S. 205 (1934).

American Airlines cites only one case, Schaeffer v. Cavallero,29 F. Supp.2d 184 (S.D.N.Y. 1998), in support of its argument thatresolution of Alshrafi's state claims necessarily requires this Court toresolve the question whether Blackstone's actions were "arbitrary andcapricious" under Section 44902(b). Defs.' Jdn. Mem. at 2. In Schaeffer,the defendant pilot expelled the plaintiff from a flight following adispute over his carry-on luggage. Schaeffer, 29 F. Supp.2d at 185. Theplaintiff filed suit in state court, asserting contract and tort claims,and the defendants removed the case to federal court, contending that theplaintiff's right to relief was governed by section 44902(b)'s provisionthat an airline "may refuse to transport a passenger or property thecarrier decides is or might be inimical to safety." Id. (quoting49 U.S.C. § 44902(b)). The court held that removal was proper because"the federal standard set by § 44902, as authoritatively interpreted bythe federal courts [in the Second Circuit], has become an essentialelement of any New York state law claim arising from an airline's refusalto transport a passenger." Id. at 186 (citing Williams v. Trans World Airlines, 509 F.2d 942, 948 (2d Cir. 1975), which held, under thepredecessor to Section 44902, that an air carrier cannot be liable forrefusing to transport a passenger if the decision was "rational orreasonable and not capricious or arbitrary," and Adamsons v. AmericanAirlines, 58 N.Y.2d 42, 48 (N.Y. 1982), which held that a New York stateclaim for wrongful exclusion from an air carrier cannot be submitted to ajury absent an "arbitrary and capricious" showing).

This Court is not persuaded by Schaffer. American Airlines has notcited, and this Court's research has not revealed, any case in the FirstCircuit or in the courts of the Commonwealth of Massachusetts that haseven approached making the sweeping statement that the "arbitrary andcapricious" standard applied to decisions made pursuant to Section44902(b) has become an essential element of any Massachusetts claimarising from an airline's denial of a passenger's boarding.13Furthermore, American Airlines has not sufficiently demonstrated to thisCourt that Alshrafi's claims even "require[] resolution of a substantialquestion of federal law." Franchise Tax Board, 463 U.S. at 13 (emphasisadded). Certainly it is foreseeable that, upon remand, the state court may eventually have to apply the "arbitraryand capricious" standard to American Airlines' decision to deny boardingto Alshrafi. If, however, Alshrafi could prove by a preponderance of theevidence that he was denied boarding on the basis of his nationalorigin, race, or religion, then American Airlines could not availthemselves of the discretion extended to them under Section 44902(b) andno review under the "arbitrary and capricious" standard would berequired. Similarly, if Alshrafi could prove all the elements ofintentional infliction of emotional distress under Massachusetts law,including that American Airlines' actions were "extreme and outrageous,""beyond all possible bounds of decency," and "utterly intolerable in acivilized community," Sena v. Massachusetts, 417 Mass. 250, 263-64 (1994)(internal citations omitted), then it would appear that American Airlinesacted beyond the scope of their discretion under Section 44902(b).Overall, even if Alshrafi's claims raise federal issues somewhere downthe road, this Court cannot, at this juncture, rule those federal issuessufficiently important to confer federal ingredient jurisdiction on thisCourt. IV. CONCLUSION

Accordingly, this case is REMANDED to the Massachusetts Superior Courtsitting in and for the County of Suffolk for lack of federal subjectmatter jurisdiction.

SO ORDERED.

1. Although the particular facts of the underlying dispute are notrelevant at present, they provide some useful background. A review of therecord before this Court reveals that the core facts are in controversy.Blackstone testified that his refusal to allow Alshrafi to board Flight181 was based on four security concerns allegedly communicated to him atthe gate by Deputy United States Marshal Brian Renzi ("Deputy MarshalRenzi"): (1) that passengers had reported concerns about the passengerlater identified as Alshrafi; (2) that the passenger had caused adisturbance at a security checkpoint; (3) that the passenger's name wasclose to one on a terrorist "watch list"; and (4) that the Marshalhimself had concerns about this passenger. Defs.' Mot. Summ. J. [Doc. No.18] ¶¶ 24-25 ("Defs.' Facts"). In stark contrast to Blackstone's account, Deputy Marshal Renzi statedthat he told Blackstone only that he had received word from an AmericanAirlines Passenger Service Representative that a female passengercomplained about another passenger who made her nervous. Pl.'s Resp.Defs.' Facts [Doc. No. 24] ¶ 16 ("Pl.'s Facts"). According to DeputyMarshal Renzi, he did not mention a watch list to Blackstone, did notstate that he had concerns about the passenger, and did not state thatthe passenger had been involved in any disturbance at a securitycheckpoint. Id. In addition, Alshrafi presents evidence that DeputyMarshal Renzi and American Airlines Customer Service Manager and GroundSecurity Coordinator Christine Konevich communicated to Blackstone thatthey did not consider Alshrafi a security risk and urged Blackstone toreconsider his refusal to allow Alshrafi to board. Id. ¶¶ 32-34.Blackstone again refused. Id. 1 35. It is undisputed that shortlythereafter American Airlines offered to re-book Alshrafi and allowed himto board another flight to Los Angeles. Id. ¶ 40; Defs.' Facts 1 40.

2. The Court cannot imagine why counsel for American Airlines wasunable to ascertain the identity of the captain on a specificallyidentified American Airlines flight before filing papers with two courtsalleging that diversity jurisdiction existed.

3. It has been settled since Strawbridge v. Curtiss, 7 U.S. (3 Cranch)267 (1806), that the diversity jurisdiction statute is interpreted torequire that all defendants must be diverse from all plaintiffs, exceptin certain circumstances not present here. Congress has yet to overrulethis interpretation by statute.

4. It is of no consequence that Blackstone had not been identified asthe defendant pilot, "John Doe," until after the complaint was filed. TheFirst Circuit has stated that substitution of a non-diverse defendant fora fictitious party after removal destroys diversity jurisdiction. SeeCasas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 670,675 (1st Cir. 1994).

5. See also Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804 (1986)("[P]etitioner contends that the case represents a straightforwardapplication of the statement in Franchise Tax Board that federal-questionjurisdiction is appropriate when `it appears that some substantial,disputed question of federal law is a necessary element of one of thewell-pleaded state claims.' 463 U.S. at 13. Franchise Tax Board,however, did not purport to disturb the long-settled understanding thatthe mere presence of a federal issue in a state cause of action does notautomatically confer federal-question jurisdiction." (parallel citationomitted)).

6. See also 14B Wright, Miller & Cooper, supra, § 3722.1 ("Incomplete preemption a federal court finds that Congress desired tocontrol the adjudication of the federal cause of action to such an extentthat it did not just provide a federal defense to the application ofstate law; rather, it replaced state law with federal law and made itclear that the defendant has the ability to seek adjudication of thefederal claim in a federal forum.").

7. The sweeping nature of recent Supreme Court preemptionjurisprudence has been the subject of considerable comment, much of itcritical. See, e.g., Andrews-Clarke v. Travelers Ins. Co., 984 F. Supp. 49,53 & n.20 (D. Mass. 1997) (noting with frustration that under ERISApreemption jurisprudence, it "had no choice but to pluck [the plaintiff's]case out of the state court in which she sought redress (and where reliefto other litigants is available) and then, at the behest of [thedefendants], to slam the courthouse doors in her face and leave herwithout any remedy"); Betsy J. Grey, Make Congress Speak Clearly: FederalPreemption of State Tort Remedies, 77 B.U. L. Rev. 559, 561 (1997)(commenting that "corporations have attempted to turn [federal statutes]from regulatory swords into private shields"); Calvin Massey, "Joltin'Joe Has Left And Gone Away": The Vanishing Presumption againstPreemption, 66 Alb. L. Rev. 759, 759 (2003) (commenting that the SupremeCourt's preemption jurisprudence has reduced the "presumption againstpreemption" into merely a "ceremonial federalism"); Caleb Nelson,Preemption, 86 Va. L. Rev. 225, 229 (2000) (noting that "conservativeadvocates of federalism and liberal advocates of government regulationhave joined in arguing that the current tests for preemption riskdisplacing too much state law"); David G. Owen, Federal Preemption ofProducts Liability Claims, 55 S.C. L. Rev. 411, 412 (2003) (observingthat "[d]espite the best efforts of courts and commentators to bringorder to the chaos, the law on federal preemption has obstinately refusedto set anchor in enduring principles" (footnote omitted)); Donald P.Rothschild, A Proposed "Tonic" with Florida Lime to Celebrate Our NewFederalism: How to Deal with the "Headache" of Preemption, 38 U. MiamiL. Rev. 829, 830-31 & n.3 (1984) (noting that "present preemptiondoctrines interfere with a state's right to supplement federal regulationin order to afford greater protection for citizens residing within itsborders"); see also Judith Resnik, Constricting Remedies: The RehnquistJudiciary, Congress, and Federal Power, 78 Ind. L.J. 223, 309 n.460(2003) (noting that a majority of the Supreme Court has been willing tooverride state law in preemption cases). Still, it is bedrock thatSupreme Court decisions bind the analysis of this Court, and this Courtfollows such precedents respectfully and completely.

8. Alshrafi observes that almost all of the cases cited by AmericanAirlines involved state laws with an economic impact on rates andservices. See e.g., Wolens, 513 U.S. at 227-28 (holding that the Actpreempted a state consumer fraud claim for retroactive modification of theairline's frequent flyer program); Morales, 504 U.S. at 389-90 (holdingthat the Act preempted a state law claim for deceptive fareadvertisement); Statland v. American Airlines, Inc., 998 F.2d 539, 541-42(7th Cir. 1993) (holding that the Act preempted a state law claimchallenging the airline's practice of withholding ten percent of thefederal tax on canceled tickets); Blackner v. Continental Airlines,Inc., 311 N.J. Super. 10, 13-15 (App. Div. 1998) (holding that the Actpreempted a state law claim challenging the airline's $60 surcharge toreplace a lost ticket); Vail v. Pan Am Corp., 260 N.J. Super. 292,299-300 (App. Div. 1992) (holding that the Act preempted state law claimschallenging a security surcharge added to ticket prices).

9. At an absolute minimum, unpublished First Circuit decisions, suchas Azubuko, represent persuasive authority in the district courts. SeeCaron v. United States, 183 F. Supp.2d 149, 156 n.7 (D. Mass. 2001)(relying on an unpublished opinion's persuasive authority); Giese v.Pierce Chem. Co., 43 F. Supp.2d 98, 103 n.l (D. Mass. 1999) (same). The Eighth Circuit has gone a step further, holding that unpublishedopinions have precedential effect. Anastasoff v. United States,223 F.3d 898, 899-905 (8th Cir. 2000), vacated as moot, 235 F.3d 1054(8th Cir. 2000) (en banc); see also Richard S. Arnold, UnpublishedOpinions: A Comment, 1 J. App. Prac. & Process 219 (1999). The EighthCircuit's Local Rule 28A(i) provided that "[u]npublished opinions are notprecedent," but that they could be cited for their "persuasive value."Anastasoff, 223 F.3d at 899. Anastasoff held this rule unconstitutional,reasoning that the Framers of the Constitution were aware of the doctrineof precedent and intended it to "limit the judicial power delegated tothe courts by Article III." Id. at 900. "A more alarming doctrine couldnot be promulgated by any American court," exclaimed the court, "thanthat it was at liberty to disregard all former rules and decisions, andto decide for itself, without reference to the settled course ofantecedent principles." Id. at 904. Refuting Anastasoff, the Ninth Circuit upheld its local ruleprohibiting the citation of unpublished decisions as constitutional. Hartv. Massanari, 266 F.3d 1155 (9th Cir. 2001); see also Symbol Techs.,Inc. v. Lemelson Med., 277 F.3d 1361, 1366-68 (Fed. Cir. 2002) (rejectingAnastasoff and adopting Hart). The Hart court reasoned that "[r]ules thatempower courts of appeals to issue nonprecedential decisions do not cutthose courts free from all legal rules and precedents," but instead"allow panels of the courts of appeals to determine whether futurepanels, as well as judges of the inferior courts of the circuit, will bebound by particular rulings." Id. at 1160. The court emphasized that"[t]he concept of binding case precedent, though it was known at commonlaw, was used exceedingly sparingly" at the time Article III of theConstitution was drafted. Id. at 1175 (internal citation omitted).Overall, Hart conceives of "the principle of strict binding authority" as"a matter of judicial policy," rather than a constitutional issue. Id. Local rules cabining litigants' ability to cite unpublished opinionshave come under attack recently by the Advisory Committee on AppellateRules of the United States Judicial Conference. Amid much opposition, theCommittee voted 7-2 in favor of proposed Federal Rule of AppellatePractice 32.1, stating that "no prohibition or restriction may beimposed" on the citation of unpublished decisions. See Tony Mauro,Unpublished Opinions Get a First Nod, Nat'l L.J., Apr. 19, 2004, at 6.The Committee has left it up to the Courts of Appeals to decide how muchweight they will give to unpublished opinions. Id. Thus, the proposedrule does nothing to prevent courts of appeals from refusing to giveprecedential effect to unpublished decisions. Even if the proposal isapproved by the full United States Judicial Conference and the SupremeCourt, the constitutional debate between Anastasoff and Hart willcontinue unabated. See Gary Young, Cite, Publish or Perish?, Nat'l L.J.,May 3, 2004, at Sl. Because this Court considers the reasoning of Anastasoff especiallycompelling, it will treat the First Circuit's holding in Azubuko withgreat care and respect. Notwithstanding this position, the Court observesthat Azubuko easily can be distinguished from the instant case for thereasons set forth in this opinion.

10. First Circuit Local Rule 32.3(a)(2) provides: Citation of an unpublished opinion of this court is disfavored. Such an opinion may be cited only if (I) the party believed that the opinion persuasively addresses a material issue in the appeal; and (2) there is no published opinion from this court that adequately addresses the issue. The court will consider such opinions for their persuasive value but not as binding precedent. This Court notes with some concern, however, that the constitutionalityof this local rule is suspect under the reasoning of Anastasoff.

11. In its reply brief, American Airlines points to two cases wherecourts have held a state's safety regulation preempted by the Act. Defs.'Summ. J. Reply at 9-10 (citing French v. Pan Am Express, Inc., 869 F.2d 1,1 (1st Cir. 1989), which held that the Act preempted state law providingfor drug testing of pilots, and Huntleigh Corp. v. Louisiana State Boardof Private Security Examiners, 906 F. Supp. 357, 361 (M.D. Wash. 2003),which held that the Act preempted state laws governing the registrationand training of private security officers performing airportscreenings)). This is not, however, a case where Massachusetts hasprescribed airline safety provisions that compete with or conflict withthe Act. Section 44902 simply states that an "air carrier . . . mayrefuse to transport a passenger or property the carrier decides is, ormight be, inimical to safety." 49 U.S.C. § 44902(b). It does not statethat an air carrier may use "safety" as a pretext to refuse transport toa passenger on the basis of his race or intentionally to inflictemotional distress upon a passenger. Thus, French and Huntleigh do notapply to this case.

12. To prove intentional infliction of emotional distress underMassachusetts law, Alshrafi must prove, among other elements, thatAmerican Airlines' "conduct was extreme and outrageous, was beyond allpossible bounds of decency and was utterly intolerable in a civilizedcommunity." Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976)(internal citations and quotation marks omitted); see also Sena v.Massachusetts, 417 Mass. 250, 263-64 (1994). Even under the most lenientof standards, this Court seriously doubts that such outrageous,intolerable conduct could constitute a legitimate airline securitymeasure.

13. Even if Massachusetts had incorporated the federal standard ofSection 44902 as an essential element of state claims arising out ofpassenger boarding, this case would likely be more akin to Merrell Dow andMoore (both denying federal jurisdiction where a state claim incorporateda federal fault standard) than to Smith and City of Chicago (bothallowing federal jurisdiction where a state claim raised importantconstitutional issues).

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