Olivia v. Airbus Americas, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Ashley Olivia, et al., )

) CASE NO. 1:19 CV 1701

)

Plantiffs, ) JUDGE PATRICIA A. GAUGHAN

)

Vs. )

)

)

Airbus Americas, Inc., et al., ) Memorandum of Opinion and Order

)

Defendants. )

INTRODUCTION

This matter is before the Court upon Plaintiffs’ Motion to Remand with Request for

Attorney Fees and Expenses (Doc. 26). This action arises from injuries plaintiff Ashley Olivia

sustained while an airline passenger. For the reasons that follow, this motion is DENIED.

FACTS

Plaintiffs, Ashley, Vickie, and John Olivia, brought this lawsuit in the Cuyahoga County

Common Pleas Court against defendants Spirit Airlines, Spirit Airlines, Inc., and ten unnamed

John Doe defendants. The complaint alleged negligence in connection with injuries Ashley

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Olivia sustained during a Spirit Airlines flight. On June 20, 2019, plaintiffs filed a first amended

complaint, adding Airbus Americas, Inc. (“AAI”), Airbus, Lufthansa Technik Puerto Rico, LLC,

Lufthansa Technik, Lufthansa Technik, AG, Lufthansa Group, HAECO Americas, HAECO

Group, Hong Kong Aircraft Engineering Company, Ltd., Hong Kong Aircraft Engineering

Company America, Ltd., and Jason Sheppard as defendants. On June 26, 2019, plaintiffs filed a

second amended complaint, adding Brice Manufacturing Company, Inc. as a defendant.

Thereafter, on July 25, 2019, AAI removed this matter to federal court on the basis of diversity

jurisdiction.

The second amended complaint (“Complaint”) alleges the following in relevant part. On

June 26, 2017, Ashley Olivia was a passenger on a Spirit Airlines flight scheduled to depart from

Las Vegas, Nevada to Ohio. Upon boarding, Ms. Olivia sat in the middle section of the plane in

an aisle seat. Spirit Airlines flight attendants moved defendant Sheppard from the front section

of the plane to the seat directly in front of Ms. Olivia. Approximately 10-15 minutes after the

plane began to move towards the runway for takeoff, Sheppard’s seat broke and collapsed,

crushing Ms. Olivia’s left foot and toes. The airplane subsequently returned to the boarding area

and Ms. Olivia was taken via ambulance to a local hospital for treatment. Ms. Olivia returned to

Cleveland, Ohio the following day. Ms. Olivia’s parents, Vickie and John Olivia, traveled from

Florida to Ohio to assist and care for their daughter following her injuries.

The Complaint contains five claims for relief. Counts One through Four are asserted by

plaintiff Ashley Olivia. Count One is a claim for negligence and is asserted against all

defendants. Counts Two, Three, and Four are claims for statutory products liability, breach of

warranty, and supplier liability, respectively. These claims are asserted against all defendants

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except Spirit Airlines, Inc. and Sheppard. Count Five is asserted by plaintiffs Vickie and John

Olivia and is a claim for loss of consortium. It appears that Count Five is asserted against all

defendants.

In the notice of removal, defendants assert that plaintiffs Vickie and John Olivia and

defendant Sheppard were fraudulently joined in order to defeat diversity jurisdiction. Plaintiffs

move to remand this action to state court on the grounds no diversity of citizenship exists. AAI

opposes the motion.

STANDARD OF REVIEW

Under 28 U.S.C. § 1447(c), a case originally filed in a state court must be remanded if, at

any time before trial, it appears that the federal district court to which it was removed lacks

subject matter jurisdiction. Coyne ex rel. Ohio v. Am. Tobacco Co., 183 F.3d 488, 496-497 (6th

Cir. 1999) (“In a removed action, upon determination that a federal court lacks jurisdiction,

remand to state court is mandatory . . . “). The determination of federal jurisdiction in a diversity

case is made as of the time of removal. Ahearn v. Charter Township of Bloomfield, 100 F.3d

451, 453 (6th Cir. 1996). The party seeking removal bears the burden of showing that proper

subject matter jurisdiction exists. Id. at 453-54.

However, the “fraudulent joinder of non-diverse defendants will not defeat removal on

diversity grounds.” Coyne, 183 F.3d at 493. The party seeking removal bears the burden of

establishing diversity jurisdiction. To establish fraudulent joinder, the “removing party must

present sufficient evidence that a plaintiff could not have established a cause of action against

non-diverse defendants under state law.” Id. The relevant inquiry is whether there is a

“colorable basis for predicting that a plaintiff may recover against [a defendant].” Id. Any doubt

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as to whether removal is proper must be resolved in favor of remand. Id.

ANALYSIS

I. Diversity Jurisdiction

A. Florida Plaintiffs

Plaintiffs Vickie and John Olivia (“Florida Plaintiffs”) have brought loss of consortium

claims against all defendants, asserting they “have been deprived of the aide, comfort, support,

and society of their daughter.” They further allege they have lost income, incurred travel costs,

and provided home health care services for their daughter as a result of defendants’ negligence.

Plaintiffs move to remand this matter to state court on the ground that Florida Plaintiffs

and defendant Spirit Airlines, Inc. are Florida citizens, thus defeating diversity jurisdiction.

Plaintiffs argue that remand is required because a loss of consortium claim brought by parents of

adult children is viable under Ohio law. AAI disputes that Ohio would recognize such a claim.

In addition, AAI maintains that Florida law applies, which does not recognize loss of consortium

claims brought by parents of adult children. AAI contends that, because no such claim exists

under Florida law, Florida Plaintiffs were fraudulently joined. Thus, the Court finds a choice of

law analysis is necessary in order to determine whether Florida Plaintiffs’ citizenship should be

considered in evaluating whether diversity jurisdiction exists.

“A federal court exercising diversity jurisdiction applies the choice of law rules of the

state in which it sits.” Standard Fire Ins. Co. v. Ford Motor Co., 723 F.3d 690, 692 (6th Cir.

2013). In Ohio, courts have adopted the two-step approach contained in the Restatement

(Second) of Conflict of Laws. Premium Freight Management, LLC v. PM Engineered Solutions,

Inc., 906 F.3d 403, 406 (6th Cir. 2018). The first step is to determine whether there is an actual

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conflict between the laws of the states involved. Id. at 406-407. If such a conflict exists, courts

will “apply the law of the state with the most significant contacts to the dispute.” Saglioccolo v.

Eagle Ins. Co., 112 F.3d 226, 230 n. 3 (6th Cir. 1997). See also Newberry v. Silverman, 789

F.3d 636, 643 (6th Cir. 2015). Factors a court considers in making this determination include (1)

the place of injury; (2) the location where the conduct causing the injury took place; (3) the place

of business of the parties; (4) the place where the relationship between the parties is centered;

and (5) any factors under section six that may be deemed relevant to the action. Premium

Freight Management, 906 F.3d at 407 (citing Morgan v. Biro Mfg. Co., 474 N.E.2d 286, 289

(Ohio 1984)).

As to the first step in the analysis, the Court finds that a conflict exists between the laws

of Florida and Ohio.1 Florida has unequivocally prohibited the particular type of loss of

consortium claim Florida Plaintiffs have brought against the defendants. Cruz v. Broward

County School Bd., 800 So.2d 213, 217 (2001)(“[I]n Florida, a parent is not entitled to any claim

for damages when an adult child incurs personal injuries due to the tortious conduct of

another.”). In contrast, while the Supreme Court of Ohio has not ruled as to whether this type of

claim exists, some Ohio appellate courts have recognized loss of consortium claims brought by

parents of adult children, while others have not. See Moroney v. State Farm Mut. Auto Ins. Co.,

1 Both parties initially conceded Nevada, the state in which Florida Plaintiffs’

daughter sustained her foot injury, has little interest in the loss of consortium

claim. However, plaintiffs, in their reply brief, now suggest that Nevada may

recognize adult-child consortium claims. However, Nevada has no connection or

interest with respect to Florida Plaintiffs’ loss of consortium claims. Neither

Florida Plaintiff resides, works, or traveled to Nevada as a result of their

daughter’s injuries. The Court finds that Nevada law does not apply to Florida

Plaintiffs’ claims.

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2002-Ohio-3829, ¶¶5-10 (Ohio Ct. App. June 25, 2002) (finding parents cannot claim loss of

consortium for injuries to an adult child); Brady v. Miller, 2003-Ohio-4582, ¶19 (Ohio Ct. App.

Aug. 29, 2003) (finding parents could maintain a loss-of consortium claim in connection with the

medical malpractice performed on their adult child). Accordingly, a conflict exists between the

laws of Florida and Ohio, and the Court must proceed to engage in a choice of law analysis.

Upon review of the relevant factors, the Court concludes that Florida law applies to

Florida Plaintiffs’ claims. While their daughter’s physical injury occurred in Nevada, Florida

Plaintiffs’ injuries occurred in Florida. Indeed, within the Complaint, Florida Plaintiffs assert

lost wages and travel expenses, which would be felt by them in their domicile of Florida.

Florida Plaintiffs concede they have lived in Florida for decades and were married and raised

their daughter in Florida. Conversely, the relationship of the loss of consortium claim to Ohio is

tenuous at best. Florida Plaintiffs do not reside or work in Ohio. At most, the connection to

Ohio is that Florida Plaintiffs traveled to Ohio for a total of 11 days to care for their daughter.

Florida Plaintiffs argue that the “months following” their daughter’s injury “were the most

stressful and difficult” because “of the obvious pain [their] daughter was suffering.” However,

since they only traveled to Ohio for 11 days, the bulk of these stressful and difficult months

transpired when they were residing in Florida. Accordingly, the impact of their injuries,

particularly their purported financial losses, would be felt in Florida.

Florida Plaintiffs maintain that, since their daughter lives and works in Ohio, flew out of

Ohio, bought her plane ticket in Ohio, and received medical treatment in Ohio, it is Ohio law

which should apply. However, while the daughter’s domicile and her other various connections

to Ohio are relevant considerations with respect to her claims, they have little to do with Florida

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Plaintiffs’ loss of consortium claim. See Chartis v. Speciality Ins. Co. v. Lubrizol Corp., 2013

WL 12130642, *9 (N.D. Ohio Mar. 29, 2013)(“Ohio courts tend to evaluate choice of law

questions on an issue-by-issue basis. For example, Ohio follows the doctrine of dépeçage, which

allows for the application of different states’ laws to different claims.”); Bramberger v. Toledo

Hosp., 897 F.Supp.2d 587, 597 (N.D. Ohio Sept. 24, 2012); In re E.I. du Pont de Nemours and

Company C-8 Personal Injury Litigation, 316 F.Supp.3d 1021, 1035 (S.D. Ohio May 20,

2015)(applying West Virginia law to the claims of plaintiffs injured in West Virginia and Ohio

law to claims of those injured in Ohio); C.B. Fleet Co., Inc. v. Colony Specialty Ins. Co., 2013

WL 1908098, *6 (N.D. Ohio May 7, 2013); Taglieri v. Monasky, 2018 WL 7575036, *4 (N.D.

Ohio Jan. 10, 2018)(applying Italian law to some claims, Ohio law to others under Ohio’s choice

of law analysis).

In sum, Florida law applies to Florida Plaintiffs’ loss of consortium claim. Because

Florida law does not recognize such a claim, the Court finds that Florida Plaintiffs were

fraudulently joined and their citizenship will not be considered for purposes of determining

jurisdiction. See Casias v. Wal–Mart Stores, Inc., 695 F.3d 428, 432–33 (6th Cir.2012) (finding

fraudulent joinder occurs when “it is clear that there can be no recovery under the law of the

state on the cause alleged or on the facts in view of the law”)(internal quotation and citation

omitted).

B. Ohio Defendant

Plaintiff Ashley Olivia (“Ohio Plaintiff”) has brought a negligence claim against Jason

Sheppard, the individual whose airplane seat broke and fell onto her foot. Plaintiffs move to

remand this matter to state court on the ground that Ohio Plaintiff and Sheppard are both Ohio

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citizens, thus defeating diversity jurisdiction.

AAI argues that Sheppard was fraudulently joined, as the allegations against Sheppard

“cannot possibly support a claim for negligence.” Ohio Plaintiff disputes this, asserting

Sheppard failed to comply with the flight attendant’s directive to sit in a different seat than the

seat that ultimately collapsed. She contends Sheppard “must share the blame for [her] crushed

foot because of his failure to sit where he was directed.”

“When ruling on a motion to remand, a court generally looks to the plaintiff's complaint,

as it is stated at the time of removal, and the defendant's notice of removal.” Gentek Bldg.

Prods., Inc. v. Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). If the complaint

establishes a “colorable basis for predicting that a plaintiff may recover against non-diverse

defendants,” the action must be remanded to state court. Coyne, 183 F.3d at 493. When

evaluating the viability of a plaintiff’s claims, a court must “resolve all disputed questions of fact

and ambiguities in the controlling state law in favor of the non-removing party.” Id. The Sixth

Circuit has instructed district courts considering motions to remand based upon fraudulent

joinder to apply “a test similar to, but more lenient than, the analysis applicable to a Rule

12(b)(6) motion to dismiss.” Casias, 695 F.3d at 433. Plaintiff’s motive is immaterial to the

fraudulent joinder determination. Jerome-Duncan, Inc. v. Auto-By-Tel, LLC, 176 F.3d 904, 907

(6th Cir. 1999).

In the Complaint, Ohio Plaintiff makes the following allegations with respect to

Sheppard:

• On or about June 26, 2017, Plaintiff Ashley Olivia (hereinafter

“Olivia”), boarded a Spirit Airlines flight at McClarran Airport in

Las Vegas, Nevada scheduled to depart to Ohio. Olivia was seated

in the middle area of the plane in an aisle seat with her seatbelt

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fastened. There was no one seated in front of Plaintiff.

• At that time the Spirit Airlines flight attendants moved an

unknown man from the front area of the plane to a seat directly in

front of the Plaintiff. The unknown man was very large and took

up more than one seat in the row in front of Plaintiff. Based upon

information and belief, the unknown man has been identified as

Jason Sheppard of Columbus, Ohio.

• Approximately ten (10) to fifteen (15) minutes after the plane

began to move toward the runway to prepare for take-off, the seat

in front of Olivia in which the man was seated suddenly broke and

collapsed backward, crushing Plaintiff’s left foot and toes.

Plaintiff, Ashley Olivia, was in severe pain and her left foot was

bleeding. Plaintiff was wearing open-toed sandals at the time of

the incident.

• Based upon information and belief, Defendant Jason Sheppard was

negligent in his failure to follow Defendant Spirit Airlines’

employees’ directions and/or instructions regarding seating.

Upon review, the Court finds that the Complaint does not state a colorable

negligence claim against Sheppard. Accepting all the allegations as true, the Complaint

establishes that Spirit Airlines employees moved Sheppard to the seat directly in front of Ohio

Plaintiff. The seat subsequently collapsed. While the Complaint alleges Sheppard was negligent

in his failure to follow directions regarding seating, it is not clear what directives he ignored, as

the Complaint specifically states that it was Spirit Airlines employees, not Sheppard, who moved

him to the faulty seat. Even under the lenient standard applied to fraudulent joinder analysis, the

Court is unable to discern a colorable claim for negligence as to Sheppard.

Ohio Plaintiff now argues Sheppard did not sit where he was directed. The Complaint,

however, plainly alleges Spirit Airlines employees instructed Sheppard to sit in the purportedly

defective seat. The Court simply cannot consider a statement contained in a brief that is in direct

contradiction to the specific factual allegations made in the Complaint. See Jones v. Knox

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Exploration Corp, 2 F.3d 181, 182 (6th Cir. 1993)(finding federal jurisdiction ordinarily depends

on the facts as they exist at the time of removal).

Moreover, the Complaint does not assert factual allegations to sufficiently state a

negligence claim under Nevada or Ohio2 law. Under Ohio law, the elements a plaintiff must

plead to state a cause of action for negligence are (1) existence of a duty; (2) a breach of that

duty; and (3) an injury which was proximately caused by the breach. Rieger v. Giant Eagle,

2019-Ohio-3745, ¶10 (Ohio 2019). Similarly, under Nevada law, a plaintiff must show (1)

defendant owed plaintiff a duty of care; (2) defendant breached that duty; (3) the breach was the

legal cause of the plaintiff’s injuries; and (4) the plaintiff suffered damages. Foster v. Costco

Wholesale Corp., 128 Nev. 773, 777 (Nevada 2012).

As an initial matter, the Complaint does not specifically assert what duty Sheppard owed

Ohio Plaintiff. Assuming, arguendo,3 Sheppard owed Ohio Plaintiff a duty of care as a fellow

airline passenger, Ohio Plaintiff has not alleged either a breach of that duty or proximate cause.

While the Complaint alleges Sheppard was “negligent in his failure to follow” the airline

attendants’ instructions regarding seating, the Complaint does not explain what directives

Sheppard failed to follow or how the failure to follow these instructions resulted in her injuries.

There is nothing contained in the Complaint that would put Sheppard on notice that he breached

2 As Ohio Plaintiff’s claim against Sheppard fails under both Nevada and Ohio

law, the Court declines to conduct a choice of law analysis.

3 AAI argues Sheppard did not owe a duty of care to Ohio Plaintiff, thus

foreclosing a negligence claim between the parties under these circumstances.

The Court need not determine whether or not liability can be extended to

Sheppard because the Complaint, standing alone, does not allege enough to

establish a claim for negligence.

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any type of duty, as the Complaint expressly asserts he sat where the Spirit Airlines employees

had told him to sit. Ohio Plaintiff now argues that had Sheppard “complied in this case, the foot-

crush injury would have been completely avoided.” However, the Complaint does not link

Sheppard’s non-compliance to Ohio Plaintiff’s injuries. In sum, the Complaint is devoid of

allegations that can be fairly read as establishing a duty, breach, and causation. Accordingly,

there is no colorable cause of action against Sheppard for negligence.

The Court finds that Sheppard was fraudulently joined and his citizenship is immaterial

to the determination of diversity jurisdiction. As all other named defendants are completely

diverse from the Ohio plaintiff,4 the Court has jurisdiction over this matter.

II. Unanimous Consent

Plaintiffs further argue that remand to state court is required because all defendants did

not sign the removal petition or separately file written consent of removal to this Court.

Additionally, plaintiffs assert that “there is no indication anywhere in the record [Sheppard]

consented to the removal of this action.” According to AAI, the separate written consent of all

the co-defendants is not necessary and the consent of Sheppard is not required for proper

removal.

As an initial matter, the Court finds that the consent of Sheppard was not necessary or

required for proper removal. The consent of fraudulently joined parties is not required for

removal. Chambers v. HSBC Bank USA, N.A., 796 F.3d 560, 564 (6th Cir. 2015).

With respect to the consent contained in the removal notice, Title 28 U.S.C. § 1446

provides that, when a civil action is removed from state court, “all defendants who have been

4 As discussed supra, the Florida Plaintiffs’ citizenship is immaterial to

determining diversity jurisdiction.

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properly joined and served must join in or consent to the removal of the action.” 28 U.S.C.

§1446(b)(2)(A). In interpreting this statutory language, the Sixth Circuit has adopted the “rule

of unanimity,” meaning that all defendants in an action must join in the removal petition or file

their consent to removal, “in writing,” within 30 days of receipt of a summons when the

complaint demonstrates that the case is one that may be removed. Loftis v. United Parcel Serv.,

Inc., 342 F.3d 509, 516 (6th Cir. 2003).

In Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 202 (6th Cir. 2004), the Sixth Circuit

explicitly held that a removing defendant’s statement that the other defendants had consented to

the removal, even though the other defendants did not directly express this consent, satisfied the

“rule of unanimity.” Harper, 392 F.3d at 201-202. Indeed, courts throughout the Sixth Circuit

have allowed for an attorney for one defendant to “sign the notice of removal and certify that the

remaining defendants consented to the removal.” Ruff v. Bakery, Confectionary, Tobacco

Workers & Grain Millers & Industry Intern., 2015 WL 586112, *3 (S.D. Ohio Feb. 11, 2015).

See also City of Cleveland v. Deutsche Bank Trust Co., 571 F.Supp.2d 807, 815 (N.D. Ohio

2008) (finding that “Harper stands for the proposition that a party seeking to remove a case to

federal court need do no more than obtain the consent of his fellow defendants and make a

timely representation of that consent to the court[ ]”); Cadez v. Residential Credit Solutions, Inc.,

2013 WL 2238486, *3 (E.D. Mich. May 21, 2013). Therefore, plaintiffs’ argument to the

contrary is rejected.5

Accordingly, all properly joined and served defendants have consented to the removal of

5 Plaintiffs do not dispute that a number of the named defendants are not legal

entities. Nor do plaintiffs point to any proper legal entity that did not consent to

removal.

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this action. The Court DENIES this portion of plaintiffs’ motion.

CONCLUSION

For the foregoing reasons, the plaintiffs’ Motion to Remand with Request for Attorney

Fees and Expenses is DENIED. In addition, this Court dismisses Vickie and John Olivia’s

claims and dismisses Jason Sheppard from the action.

IT IS SO ORDERED.

/s/ Patricia A. Gaughan

PATRICIA A. GAUGHAN

United States District Judge

Chief Judge

Dated: 10/22/19

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