Nelson Daniel Farr Bunker v. Red Bull North America, Inc.

CENTRAL DISTRICT OF CALIFORNIA JS-6

CIVIL MINUTES—GENERAL

Case No. CV 21-4040 MWF (ASx) Date: August 3, 2021

Title: Nelson Daniel Farr Bunker v. Red Bull North America, Inc.

Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge

Deputy Clerk: Court Reporter:

Rita Sanchez Not Reported

Attorneys Present for Plaintiff: Attorneys Present for Defendant:

None Present None Present

Proceedings (In Chambers): ORDER RE: MOTION TO DISMISS [8]; MOTION

TO REMAND [13]

Before the Court are two motions:

The first is Defendant Red Bull North America, Inc.’s (“Red Bull”) Motion to

Dismiss (the “Motion to Dismiss”), filed on June 3, 2021. (Docket No. 8). Plaintiffs

Nelson Daniel Farr Bunker and Nelson Daniel Farr filed an opposition on June 28,

2021. (Docket No. 19). Defendant filed a reply on July 12, 2021. (Docket No. 24).

The second is Plaintiffs’ Motion to Remand Case to Los Angeles County

Superior Court (the “Motion to Remand”), filed on June 11, 2021. (Docket No. 13).

Defendant filed an opposition on June 28, 2021. (Docket No. 20). Plaintiffs filed a

reply on July 12, 2021. (Docket No. 23).

The Court has read and considered the papers filed in connection with the

Motions and held a telephonic hearing on July 26, 2021, pursuant to General Order 21-

08 arising from the COVID-19 pandemic.

For the reasons stated below, the Motion to Remand is GRANTED. The

Complaint does not raise a federal question under the act of state doctrine. The Motion

to Dismiss is therefore DENIED as moot.

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CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 21-4040 MWF (ASx) Date: August 3, 2021

Title: Nelson Daniel Farr Bunker v. Red Bull North America, Inc.

I. BACKGROUND

Plaintiff commenced this action on March 30, 2021, in Los Angeles County

Superior Court (“LASC”). (See Complaint (Docket No. 1-1)). Plaintiffs, dual citizens

of the United States and Guatemala, allege that pilot Steven Andelin (“Andelin”)

negligently engaged in acrobatic stunts during a practice session the day before an air

show organized by the Aeroclub of Guatemala in Iztapa, Guatemala. (Id. ¶¶ 1-3, 16-

24). Plaintiffs allege that Andelin was negligent by flying “at a low altitude, directly

over congested areas including the club and spectators,” when he crashed the aircraft.

(See id.). Plaintiff Philip Farr was injured, and his mother and grandmother were killed

in the crash, along with Andelin. (See id. ¶ 22).

Based on these allegations, Plaintiff asserts the following claims: (1) negligence

(wrongful death and survivor action); and (2) negligence (personal injury action). (See

generally id.).

On May 13, 2021, Red Bull filed the Notice of Removal (“NoR”), invoking this

Court’s federal question jurisdiction. (Docket No. 1).

II. LEGAL STANDARD

Courts should “strictly construe the removal statute against removal

jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Doubts as to

removability should be resolved in favor of remanding the case to the state court. Id.;

see also Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). “Federal

jurisdiction must be rejected if there is any doubt as to the right of removal in the first

instance.” Gaus, 980 F.2d at 566.

Under the “well-pleaded complaint” rule, “federal jurisdiction exists only when

a federal question is present on the face of the plaintiff’s properly pleaded complaint.”

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).

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CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 21-4040 MWF (ASx) Date: August 3, 2021

Title: Nelson Daniel Farr Bunker v. Red Bull North America, Inc.

III. DISCUSSION

Plaintiffs move to remand this case to LASC on the basis that the two negligence

claims in the Complaint do not give rise to a federal question. (Motion to Remand at

1). Red Bull argues that the Court has federal question jurisdiction through the “act of

state doctrine” because Plaintiffs’ negligence claims are premised on behavior that was

sanctioned by the Guatemalan government pursuant to Convention on International

Civil Aviation, 61 stat. 1180, 15 U.N.T.S. 295, T.I.A.S. No. 1591 (1944) (“Chicago

Convention”). (Opposition to Motion to Remand at 1).

The act of state doctrine is “a rule of decision requiring that the acts of foreign

sovereigns taken within their own jurisdictions shall be deemed valid. The doctrine

reflects the concern that the judiciary, by questioning the validity of sovereign acts

taken by foreign states, may interfere with the executive branch’s conduct of foreign

policy.” Von Saher v. Norton Simon Museum of Art at Pasadena, 897 F.3d 1141, 1148

(9th Cir. 2018) (internal citations and quotation marks omitted); see also Royal Wulff

Ventures LLC v. Primero Mining Corp., 938 F.3d 1085, 1092 (9th Cir. 2019) (“[T]he

[act of state] doctrine bars suit where ‘(1) there is an official act of a foreign sovereign

performed within its own territory; and (2) the relief sought or the defense interposed

[in the action would require] a court in the United States to declare invalid the [foreign

sovereign’s] official act.’” (citation omitted)).

The act of state doctrine serves as the basis for federal question jurisdiction

when the “governmental action is a central element of the claim or its validity is

disputed by the parties.” Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582

F.3d 1083, 1092 (9th Cir. 2009).

Red Bull asserts that the Guatemala’s General Directorate of Civil Aeronautics

(“DGAC”) issued a Certificate of Waiver (the “Certificate”) permitting Andelin to fly

at low altitudes and directly over crowds in connection with the Iztapa Air Show,

which is the same conduct that forms the basis of Plaintiffs’ claims. (Opposition to

Motion to Remand at 7) (citing Complaint ¶ 24 (“Mr. Andelin was performing

improper and unsafe aerobatic flying maneuvers at a low altitude, directly over

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CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 21-4040 MWF (ASx) Date: August 3, 2021

Title: Nelson Daniel Farr Bunker v. Red Bull North America, Inc.

congested areas including the club and spectators, where he should not have been

performing.”)). Red Bull argues that the Certificate is central to Plaintiff’s negligence

claims, and therefore invokes the act of state doctrine as articulated in Grable & Sons

Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005), because it

informs the Court’s analysis on the elements of causation and breach. (Id.).

As a preliminary matter, the Court notes that the Certificate is not before this

Court and Red Bull acknowledges that it does not even have a copy of the Certificate.

(Opposition to Motion to Remand at 5 n.2). Even if Red Bull had provided a copy of

the Certificate in connection with its Opposition, it would be inappropriate for this

Court to consider the Certificate as a basis for removal because it is not part of the

pleadings. See, e.g., Eguia v. Arc Imperial Valley, 2012 WL 6061323, *3-*4 (S.D. Ca.

Dec. 6, 2012) (explaining removal cannot be based on documents submitted by

defendants, as opposed to pleadings and other papers from plaintiff). Given that the

Complaint contains only state law claims and makes no reference to the Certificate, the

Motion to Remand could be granted on this basis alone. See Caterpillar, 482 U.S. at

392 (“federal jurisdiction exists only when a federal question is present on the face of

the plaintiff’s properly pleaded complaint”).

Even if the Court were to ignore this threshold issue, the Court is not convinced

that the Supreme Court’s decision in Grable supports Defendant’s position that the

Certificate would implicate the act of state doctrine here.

In Grable, the Supreme Court articulated the test for determining whether state

law claims invoke the act of state doctrine: “the question is, does a state-law claim

necessarily raise a stated federal issue, actually disputed and substantial, which a

federal forum may entertain without disturbing any congressionally approved balance

of federal and state judicial responsibilities.” 545 U.S. at 314; see also Gunn v.

Minton, 568 U.S. 251, 258 (2013).

The federal question in Grable was deemed both contested and substantial

because (1) the federal question of whether the IRS had complied with a federal statute

was the only contested issue in the case; and (2) the federal question “presented a

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CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 21-4040 MWF (ASx) Date: August 3, 2021

Title: Nelson Daniel Farr Bunker v. Red Bull North America, Inc.

nearly ‘pure issue of law,’ . . . that could be settled once and for all and thereafter

would govern numerous tax sale cases.” Ilczsyzn v. Southwest Airlines, Co., No. C-15-

2768 EMC, 2015 WL 5157372, * 2 (N.D. Ca. Sept. 1, 2015) (quoting Empire

Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 699-701 (2006)).

In Empire, the Supreme Court emphasized that Grable’s holding is limited to a

very “special” and “slim” category of cases. See Stevens v. Moore, CV-1701-AWI

BAM, 2015 WL 1637953, * 4 (E.D. Cal. April 13, 2015) (citing Empire, 547 U.S. at

699- 700). Those cases have “historically . . . been ones involving a federal agency’s

interpretation of a federal statute.” Depuy v. Aircraft Spruce & Specialty, Co., CV 17-

7226-R, 2018 WL 376701, * 2 (C.D. Cal. Jan. 10, 2018) (citations omitted) (emphasis

added). See also Sesay v. Hawker Beechcraft Corp., et al., CV-04637-JHN (CWx),

2011 WL 7501887, *4 (C.D. Cal. Dec. 9, 2011) (same).

This action does not appear to be one that would fall within the “special” and

“slim” category of cases contemplated by Grable because it involves neither a federal

agency nor a federal statute. (See generally Complaint).

Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083 (9th Cir.

2009) is instructive. In Provincial, the plaintiff sued an American corporation for

damages allegedly caused by the company’s mining operations, including severe land

and water pollution. 582 F.3d at 1084. The operative complaint alleged that the

President of the Philippines (1) overturned a government proclamation in order to

allow the defendant to mine a forest reserve; (2) ordered “a government commission to

issue a permit,” which allowed the dumping of toxic materials into the water; (3)

ordered that same pollution commission “to remove restraints on dumping”; and (4)

“order[ed] a pollution control board not to enforce a cease and desist order.” Id. The

defendant argued that removal was proper under the act of state doctrine because the

complaint “was premised upon conduct that occurred pursuant to government permits

and other acts or omissions by the Philippine government.” Id. (emphasis added).

The Ninth Circuit determined that removal was improper, emphasizing the

distinction between “alleging government action [which] led to the defendant’s

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CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 21-4040 MWF (ASx) Date: August 3, 2021

Title: Nelson Daniel Farr Bunker v. Red Bull North America, Inc.

challenged conduct,” and “determining whether that government action is a central

element of the claim or its validity is actually disputed by the parties.” Id. at 1090.

The Ninth Circuit viewed as “[m]ost important” the fact that “the parties’ dispute as

framed by the complaint does not require us to pass on the validity of the Philippines’

governmental actions.” Id. “At best, the allegations regarding the Philippine

government’s involvement in [defendant’s] endeavors, if true, may serve as a defense

to the [plaintiff’s] claims.” Id. at 1092. Thus, the Ninth Circuit found that the

complaint “does not present a federal question based upon the act of state doctrine.”

Id.

Given that the complaint in Provincial did not present a federal question based

on the act of state doctrine, it is clear that the Complaint in this action likewise lacks a

federal question. Unlike the complaint in Provincial, which explicitly referenced

numerous acts taken by the President of the Philippines that allegedly gave rise to

defendant’s misconduct, the Complaint here makes no reference to any government

action whatsoever. See id. at 1084. Even if the Complaint did reference the acts of

the Guatemalan government, it would merely signal the availability of a possible

defense to Plaintiff’s negligence claims, rather than showing that the action is “a

central element of the claim or [that] its validity is actually disputed by the parties.”

See id. at 1092. It is well-settled 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 concede that the federal defense is the only

question truly at issue.” Caterpillar, 482 U.S. at 393 (citing Franchise Tax Board, 463

U.S., at 12, 103 S.Ct., at 2847-2848).

At the hearing, Defendant reiterated its argument that Plaintiff cannot benefit

from the well-pleaded complaint rule by “artfully pleading” his way around a federal

question. (Opposition at 6) (citing JustMed, Inc. v. Byce, 600 F.3d 1118, 1124 (9th

Cir. 2010) (“Under the artful pleading rule ‘a plaintiff may not defeat removal by

omitting to plead necessary federal questions in a complaint.’”)). In Justmed, the

Ninth Circuit determined that, although the Complaint raised only state law trade secret

and conversion claims, the “allegations directly implicate the Copyright Act” because,

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CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 21-4040 MWF (ASx) Date: August 3, 2021

Title: Nelson Daniel Farr Bunker v. Red Bull North America, Inc.

to prevail on those state law claims, the plaintiff would need to apply the “work-for-

hire doctrine” arising under federal copyright law. See JustMed, 600 F.3d at 1125.

Defendant argues that the federal question here is implicit in Plaintiff’s

negligence claims because the conduct underlying the negligence claims is the exact

conduct authorized by the Certificate issued by the DGAC: flying at low altitudes and

directly over crowds. (Opposition at 7). As that may be, the fact that the Certificate

authorized the exact conduct at issue does not mean that the Certificate is essential to

Plaintiff’s negligence claims. Plaintiff’s ability to state a plausible negligence claim is

completely untethered to the existence of the Certificate. Plaintiff is alleging that

Andelin failed to exercise the requisite level of care, not that he was acting in violation

of the Certificate or any other “act of state.” Therefore, as discussed above, the

Certificate merely provides a potential defense to Plaintiff’s claims. The Court is not

persuaded that the act of state doctrine is essential to Plaintiff’s claims or otherwise

gives rise to federal question jurisdiction.

Accordingly, the Motion to Remand is GRANTED. The action is

REMANDED to the Los Angeles County Superior Court. The Motion to Dismiss is

DENIED as moot.

IT IS SO ORDERED.

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