CARIAS, Jr. v. AMERICAN AIRLINES, INC.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-cv-21606-ALTMAN/Reid

FRANCISCO CARIAS, JR.,

as the personal representative of the

Estate of Guillo Carias,

on behalf of the Estate, and his Survivors,

Plaintiff,

v.

AMERICAN AIRLINES, INC.,

Defendant.

_______________________________/

ORDER

On May 11, 2022, Francisco Carias returned to North Carolina after a family trip in the

Dominican Republic. See Complaint [ECF No. 1-2] ¶ 6. His flight back to North Carolina had one

stop—in Miami. Ibid. Unfortunately, while he was walking up the ramp in Miami to board his flight,

Mr. Carias injured his back so severely that, when he got to North Carolina, he had to undergo

emergency surgery. Id. ¶¶ 11–12. Tragically, the surgery was unsuccessful, and Mr. Carias died. Id. ¶

12.

Our Plaintiff—the Estate of Mr. Carias—sued the Defendant, American Airlines, in the

Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, asserting one

count of negligence and wrongful death under Florida law. See generally Complaint. On May 1, 2023,

American Airlines removed the case to federal court under the provisions of 28 U.S.C. §§ 1332(a),

1441(a), and 1446. See Notice of Removal [ECF No. 1] at 1. On that same day, American Airlines filed

a Motion to Dismiss [ECF No. 5], arguing that the Plaintiff’s state-law claim is preempted by the

Convention for the Unification of Certain Rules for International Carriage by Air (passed on May 28,

1999), commonly known as the Montreal Convention. Having carefully reviewed the Motion, the

Response, the Reply, and the governing law, we now GRANT American Airlines’s Motion to

Dismiss.1

THE FACTS2

Francisco Guillermo Carias, also known as Guillo Carias, was a well-known jazz musician.

Complaint ¶ 2. In honor of Mr. Carias’s contributions to jazz, “in April 2022, the presidency of the

Dominican Republic invited Mr. Carias to receive an honorary, private decoration directly from

President Luis Abinader.” Id. ¶ 3. But Mr. Carias was an elderly man with osteoporosis. See id. ¶ 13.

So, to make his trip “easier and more comfortable,” he requested upgrades to first class and wheelchair

assistance at the airport on “all legs of his round-trip ticket.” Id. ¶ 5. Mr. Carias attended the event at

the presidential palace on April 28, 2022. Id. ¶ 3. On May 11, 2022, he left the Dominican Republic

on an American Airlines flight back to North Carolina, with a layover in Miami. Id. ¶ 6. Before his

departure, “he, again, called the airline in advance and requested a wheelchair and special assistance.”

Ibid. After an uneventful first leg of the trip, Mr. Carias arrived in Miami, where gate agents

“transported him to the boarding gate.” Id. ¶ 7.

Since there was no jet bridge, “an American Airlines agent wheeled Mr. Carias down the

tarmac but stopped in front of a ramp that separated Mr. Carias from the plane’s entrance.” Id. ¶ 8.

The gate agent then left, leaving Mr. Carias and his wife feeling “helpless . . . since they had received

no further instruction.” Id. ¶ 9. According to the Complaint, the “American Airlines flight crew stood

silently at the top of the ramp and looked down at Mr. Carias from the plane door” without offering

to help. Ibid. Eventually, Mr. Carias walked up the ramp and boarded the plane. “[W]alking the ramp

1 The Motion to Dismiss is ripe for resolution. See Plaintiff’s Response to Motion to Dismiss (the

“Response”) [ECF No. 7]; American Airlines’s Reply Memorandum in Further Support of Rule

12(b)(6) Motion to Dismiss (the “Reply”) [ECF No. 8].

2 We take the following facts from the Plaintiff’s Complaint and accept them as true for purposes of

this Order.

without a wheelchair was enough to cause great strain on Mr. Carias’ spine, causing severe and

debilitating injuries.” Id. ¶ 11. Mr. Carias underwent emergency surgery when he got back to North

Carolina, but the surgery was unsuccessful, and he ultimately passed away. Id. ¶ 12.

THE LAW

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this

“plausibility standard,” a plaintiff must “plead[ ] factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550

U.S. at 556). The standard “does not require ‘detailed factual allegations,’ but it demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at

555). “[T]he standard ‘simply calls for enough fact to raise a reasonable expectation that discovery will

reveal evidence’ of the required element.” Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309–10

(11th Cir. 2008) (quoting Twombly, 550 U.S. at 545). “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Iqbal, 556 U.S. at 678. On a motion to dismiss, “the court must accept all factual

allegations in a complaint as true and take them in the light most favorable to plaintiff.” Dusek v.

JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016).

ANALYSIS

In its Motion to Dismiss, American Airlines contends that the “Estate’s claims against

American [Airlines] are specifically preempted pursuant [to] the Montreal Convention” because “the

Montreal convention preempts all local claims that fall within its scope, even if the claims are not

cognizable (i.e., even if they do not satisfy the conditions for liability under the Convention.).” Motion

to Dismiss at 4. And, American Airlines adds, “[g]iven that the United States and the Dominican

Republic are both signatories of the Montreal Convention,”3 and because Mr. Carias “was allegedly

injured during international travel between the Dominican Republic and the United States, the

Montreal Convention is applicable in this context and its provisions preempt the Estate’s state law

wrongful death claim.” Ibid. We agree with the Defendant that the Plaintiff’s wrongful-death claim is

preempted by the Montreal Convention. But, to understand why, we must first back up and examine

the Montreal Convention’s predecessor: The Warsaw Convention.4

The Warsaw Convention was signed in 1929 with one primary purpose: to “limit[ ] the liability

of air carriers in order to foster the growth of the fledgling commercial aviation industry.” E. Airlines,

Inc. v. Floyd, 499 U.S. 530, 546 (1991). “[T]o achieve this aim, the Convention set[ ] forth uniform rules

for claims that arise out of incidents that occur during international air transportation.” Marotte v. Am.

Airlines, Inc., 296 F.3d 1255, 1258–59 (11th Cir. 2002); see also El Al Israel Airlines, Ltd. v. Tseng, 525 U.S.

155, 169 (1999) (“The cardinal purpose of the Warsaw Convention . . . is to achieve uniformity of

rules governing claims arising from international air transportation.” (cleaned up)). In Tseng, the

Supreme Court “held that the Warsaw Convention is the exclusive mechanism of recovery for

personal injuries suffered on board an aircraft or in the course of embarking or disembarking from an

airplane.” Marotte, 296 F.3d at 1259; see also Tseng, 525 U.S. at 161 (“[R]ecovery for a personal injury

suffered on board an aircraft or in the course of any of the operations of embarking or disembarking,

if not allowed under the Convention, is not available at all.” (cleaned up)). The Supreme Court

reasoned that “[r]ecourse to local law . . . would undermine the uniform regulation of international air

carrier liability that the Warsaw Convention was designed to foster.” Ibid.

3 That’s a true statement. See Tirado v. JetBlue Airways Corp., 2021 WL 5418049, at *3 (D.P.R. July 8,

2021) (“The United States and the Dominican Republic are both signatories to the Montreal

Convention[.]”).

4 The Convention for the Unification of Certain Rules Relating to International Transportation by

Air, signed at Warsaw on October 12, 1929, 49 STAT. 3000, T.S. 876 (1934), note following 49 U.S.C.

§ 40105 (1994).

Before the Supreme Court’s decision in Tseng, the federal circuit courts were divided over

whether “a plaintiff who did not qualify for relief under the [Warsaw] Convention could seek relief

under local law for an injury sustained in the course of international air travel.” Tseng, 525 U.S. at 161

& n.3. On one side, the Second and Third Circuits had held that the Warsaw Convention was not

exclusive—meaning that it did not preclude plaintiffs from bringing state-law actions against air carriers

when the Convention didn’t permit recovery. On the other side, the Fifth Circuit had held that the

Warsaw Convention created the exclusive cause of action against international air carriers for personal

injuries arising from international air travel. Compare Abramson v. Japan Airlines Co., 739 F.2d 130, 134

(3d Cir. 1984) (“Article 24(2) [of the Warsaw Convention] does not by its express terms limit

maintenance of actions brought under local law.”), and Tokio Marine & Fire Ins. Co. v. McDonnell Douglas

Corp., 617 F.2d 936, 942 (2d Cir. 1980) (holding that the drafters of the Warsaw Convention “did not

intend [the] cause of action to be exclusive”), with Potter v. Delta Air Lines, Inc., 98 F.3d 881, 885 (5th

Cir. 1996) (holding that the Warsaw Convention created the “exclusive cause of action” against

international air carriers for “personal injuries and death” arising from international air travel).

The Supreme Court resolved this circuit split in Tseng, rejecting the Second and Third Circuit’s

approach and holding that the Warsaw Convention was the exclusive mechanism for plaintiffs seeking

recovery for personal injuries they sustained during international air travel—whether onboard the

aircraft or in the course of embarkation or disembarkation. The Supreme Court reasoned that any

other result would contravene the central purpose of the Convention. In its words:

Our inquiry begins with the text of Article 24, which prescribes the exclusivity of the

Convention’s provisions for air carrier liability . . . . Article 24 provides that “cases

covered by article 17”—or in the governing French text, “les cas prévus à l’àrticle

17”—may “only be brought subject to the conditions and limits set out in th[e]

[C]onvention.” . . . . In Tseng’s view, and in the view of the [Second Circuit] Court of

Appeals, “les cas prévus à l’àrticle 17” means those cases in which a passenger could

actually maintain a claim for relief under Article 17. So read, Article 24 would permit

any passenger whose personal injury suit did not satisfy the liability conditions of

Article 17 to pursue the claim under local law . . . .

Construing the Convention [this way], to allow passengers to pursue claims under local

law when the Convention does not permit recovery could produce several anomalies.

Carriers might be exposed to unlimited liability under diverse legal regimes, but would

be prevented, under the treaty, from contracting out of such liability. Passengers

injured physically in an emergency landing might be subject to the liability caps of the

Convention, while those merely traumatized in the same mishap would be free to sue

outside of the Convention for potentially unlimited damages. The Court of Appeals’

construction of the Convention would encourage artful pleading by plaintiffs seeking

to opt out of the Convention’s liability scheme when local law promised recovery in

excess of that prescribed by the treaty . . . . Such a reading would scarcely advance the

predictability that adherence to the treaty has achieved worldwide.

Tseng, 525 U.S. at 167, 171. Finding the Second Circuit’s theory incompatible with the goals of the

Convention, the Supreme Court held that the Warsaw Convention precluded a passenger from

maintaining a state-law action for damages even when the passenger’s claim did not satisfy the

conditions for liability under the Convention. Id. at 176.

In 1999, fifty-two countries, including the United States, signed the Montreal Convention, “a

treaty to replace the Warsaw Convention.” Eli Lilly & Co. v. Air Exp. Int’l USA, Inc., 615 F.3d 1305,

1308 (11th Cir. 2010). As with its predecessor, the Montreal Convention sets out a uniform system of

liability governing international air carriage. See ibid. (describing the Montreal Convention as “set[ting]

forth uniform rules for international air carriage”). “Given the relationship between [the Warsaw and

Montreal Conventions], courts may rely on cases interpreting the Warsaw Convention ‘where the

equivalent provision of the Montreal Convention is substantively the same.’” Pettaway v. Miami Air

Int’l, Inc., 624 F. Supp. 3d 1268, 1276 n.4 (M.D. Fla. 2022) (Corrigan, J.) (quoting Ugaz v. Am. Airlines,

Inc., 576 F. Supp. 2d 1354, 1360 (S.D. Fla. 2008) (Moreno, C.J.)).

As relevant here, the Warsaw and Montreal Conventions include very similar provisions on

the issue of exclusivity. So, for instance, Article 24(1) of the Warsaw Convention provides as follows:

In the carriage of passengers and baggage, any action for damages, however founded,

can only be brought subject to the conditions and limits set out in this Convention,

without prejudice to the question as to who are the persons who have the right to

bring suit and what are their respective rights.

Warsaw Convention, art. 24, § 1. The corresponding provision in the Montreal Convention, Article

29, reads this way:

In the carriage of passengers, baggage and cargo, any action for damages, however

founded, whether under this Convention or in contract or tort or otherwise, can only be brought

subject to the conditions and such limits of liability as are set out in this Convention

without prejudice to the question as to who are the persons who have the right to

bring suit and what are their respective rights.

Montreal Convention, art. 29 (emphasis added). These provisions are “substantively the same,” and

courts interpreting them have consistently held that the Warsaw and Montreal Conventions express

an “identical preemptive effect.” Ugaz, 576 F. Supp. 2d at 1360; see also Paradis v. Ghana Airways, Ltd.,

348 F. Supp. 2d 106, 111 (S.D.N.Y. 2004) (finding that the “preemptive effect is identical regardless

of whether the Montreal Convention or the Warsaw Convention” applies because “Article 29 of the

Montreal Convention simply clarified the language of the Montreal Protocol’s amendment to Article

24(1) of the Warsaw Convention”).

Notably, the Eleventh Circuit has “enforced the Montreal Convention’s preemptive effect by

dismissing a plaintiff’s state law claims.” Pettaway, 624 F. Supp. 3d at 1282 (first citing Eli Lilly, 615

F.3d at 1313 n.4 (“Article 29 of the [Montreal] Convention preempts state law actions falling within

its scope.”); and then citing Jacob v. Korean Air Lines Co. Ltd., 606 F. App’x 478, 480 (11th Cir. 2015)

(per curiam) (affirming the district court’s dismissal of state-law conversion claim “on the ground that

it was preempted by the [Montreal] Convention”)).

Relying on this guidance, district courts in the Eleventh Circuit have likewise enforced the

Montreal Convention’s preemptive effect by dismissing the state-law claims of international-air

plaintiffs. See, e.g., Ugaz, 576 F. Supp. 2d at 1360 (“For all air transportation to which the Montreal

Convention applies, if an action for damages falls within . . . the treaty’s damage provisions, then the

treaty provides the sole cause of action under which a claimant may seek redress for his injuries.”);

Pettaway, 624 F. Supp. 3d at 1282 (dismissing the Pettaways’ state-law claims because “the Montreal

Convention applies to the Pettaways’ claims arising from the Flight 293 incident, [so] the Montreal

Convention preempts their state law claims”); Llanes v. Iberia Air Lines of Spain, S.A., 2008 WL

11417407, at *3 (S.D. Fla. June 30, 2008) (Ungaro, J.) (“In keeping with the Convention’s goals, the

[c]ourt finds that [p]laintiffs’ state law claims are preempted by the Convention, thus enhancing the

uniformity of the air carrier liability scheme.”); DHL Glob. Forwarding (China) Co., Ltd. v. Lan Cargo,

S.A., 2019 WL 13067929, at *5 (S.D. Fla. June 17, 2019) (Cooke, J.) (“As for the Convention’s

preemptive effect, the language of Article 29 is as clear and expansive as the skies themselves . . . .

[F]or all air transportation to which the Montreal Convention applies, if an action for damages falls

within one of the treaty’s damage provisions, then the treaty provides the sole cause of action under

which a claimant may seek redress for his injuries.”); Hicks v. Avianca Inc., 2023 WL 4743037, at *3

(S.D. Fla. July 25, 2023) (Gayles, J.) (same); Hedetniemi v. Am. Airlines, Inc., 2018 WL 7824483, at *3

(S.D. Fla. Nov. 7, 2018) (Moore, C.J.) (same).

We recognize that a tiny minority of our colleagues have decided not to enforce the Montreal

Convention’s preemptive effect and have allowed state-law claims to proceed, subject to the

Convention’s limitations on liability. See, e.g., Adler v. WestJet Airlines, Ltd., 31 F. Supp. 3d 1381, 1390

(S.D. Fla. 2014) (Cohn, J.) (“The Court thus views the Montreal Convention as permitting a plaintiff

to proceed on state law claims alleging personal injury harms within the scope of the Convention,

subject to the Convention’s limitations on liability . . . . Therefore, although the Adlers’ claims fall

within the scope of the Montreal Convention, they may proceed on their claims subject to the

Convention’s limitations on liability.”). Respectfully, we disagree. Our holding today effectuates the

driving purpose of the Montreal Convention, which is to create a uniform liability scheme for

accidents that occur during international travel.

Turning to the facts of this case, we find that the Estate’s cause of action falls squarely within

the scope of the Montreal Convention. As we’ve said, “[b]oth the Supreme Court and the Eleventh

Circuit have made clear that the Montreal Convention ‘is the exclusive mechanism of recovery for

personal injuries suffered on board an aircraft or in the course of embarking or disembarking from an

airplane.’” Vanderwall v. United Airlines, Inc., 80 F. Supp. 3d 1324, 1335 (S.D. Fla. 2015) (Bloom, J.)

(quoting Marotte, 296 F.3d at 1259). In our case, it’s undisputed that Mr. Carias was injured while

traveling internationally between the Dominican Republic and the United States. See Motion to

Dismiss at 2 (“Carias sustained his injury while boarding flight [sic] during his international return

travel from the Dominican Republic.”); Complaint ¶ 6 (noting that, on May 11, 2022, Mr. Carias left

the Dominican Republic on an American Airlines flight back to North Carolina, with a layover in

Miami). The Complaint also alleges that Mr. Carias was injured while “walking up the ramp” to board

the plane. See Complaint ¶¶ 6, 13. In other words, Mr. Carias was injured during international air travel

and “in the course of any of the operations of embarking or disembarking.” Tseng, 525 U.S. at 161; see

also Gezzi v. British Airways, PLC, 991 F.2d 603, 604 (9th Cir. 1993) (holding that the claim of a plaintiff

who was injured on the stairs between the tarmac and the plane fell within the ambit of the Warsaw

Convention because the stairs were part of “the operations of embarking”). The Plaintiff’s cause of

action is therefore governed by the Montreal Convention, which provides the exclusive remedy for the

Estate’s claims.

Resisting this interpretation, the Estate advances three arguments—all unavailing. First, the

Estate contends that its claims aren’t governed by the Montreal Convention because Article 17 of the

Convention “imposes liability on an aircraft carrier when an ‘accident’ causes a passenger’s death or

bodily injury in an international flight,” and (the Estate says) no “accident” occurred here. Response

at 1–2 (emphasis added). In saying so, the Estate points to Air France v. Saks—a Supreme Court case

that predates Tseng—for the proposition that an accident is “an unexpected or unusual event or

happening that is external to the passenger,” not “the passenger’s own internal reaction to the usual,

normal, and expected operation of the aircraft.” 470 U.S. 392, 405–6 (1985). According to the Estate,

“there are no allegations that claim an unexpected or unusual event [occurred in this case]. In fact, the

event that occurred is quite usual.” Response at 3. We reject the Estate’s first argument for two reasons.

One, the events as alleged in the Complaint indicate that an “accident” did occur. The Estate

is correct that, under Article 17 of the Convention, “a carrier is liable only for damage sustained when

the ‘accident’ which caused the death or injury took place on board the aircraft or in the course of any

of the operations of embarking or disembarking.” Ugaz, 576 F. Supp. 2d at 1360. And the Eleventh

Circuit has said that, to satisfy Article 17, “an accident must have occurred.” Marotte, 296 F.3d at 1259.

But the Supreme Court has expressly held that a flight crew’s “inaction” (or “refusal to assist”) does

constitute an “accident” within the meaning of the Warsaw Convention.5 See Olympic Airways v. Husain,

540 U.S. 644, 654, 656 (2004). In Husain, the deceased passenger, Dr. Hanson, “suffered from asthma

and was sensitive to secondhand smoke.” Id. at 647. So, before his flight, he “request[ed] nonsmoking

seats.” Ibid. After boarding the plane, he discovered that his seat was “located only three rows in front

of the economy-class smoking section.” Ibid. Within a few hours, he was “surrounded by ambient

cigarette smoke,” and his wife asked the flight crew if he could switch seats. Ibid. The flight crew

refused, and Dr. Hanson died onboard the plane. Id. at 648. The Supreme Court held that the flight

attendants’ refusal to provide assistance to Dr. Hanson constituted an “accident” within the meaning

of the Warsaw Convention because the “relevant ‘accident’ inquiry under Saks is whether there is an

unexpected or unusual event or happening. The rejection of an explicit request for assistance would

be an ‘event’ or ‘happening’ under the ordinary and usual definitions of these terms.” Id. at 654–55

(cleaned up).

5 This principle has carried over to cases interpreting the Montreal Convention. See, e.g., Armstrong v.

Hawaiian Airlines, Inc., 416 F. Supp. 3d 1030, 1041 (D. Haw. 2019) (holding that, under Article 17 of

the Montreal Convention, “[a]n ‘event or happening’ can take the form of action or inaction”).

Our facts are similar. In our case, the Estate alleges that American Airlines’s flight crew and

gate agent failed to assist Mr. Carias after he twice requested a wheelchair and special assistance for his

preexisting health conditions:

In order to make the trip easier and more comfortable for Mr. Carias, he requested

upgrades to 1st class on all legs of his round-trip ticket, as well as wheelchair and

wheelchair assistance at the airport. Mr. Carias’ request was acknowledged . . . . On his

return to Raleigh, NC via Miami on May 11, he, again, called the airline in advance and

requested a wheelchair and special assistance . . . . When the gate agent departed, Mr.

Carias and his wife felt quite helpless but understood they would have to board the

aircraft on their own, especially since they had received no further instruction. The

American Airlines flight crew stood silently at the top of the ramp and looked down

at Mr. Carias from the plane door but offered nothing in the way of help. And so,

Plaintiff’s 76 year-old wife walked to the side and slightly behind Mr. Carias as he

traversed the narrow ramp up to the plane door, with no help from any of the flight

crew.

Complaint ¶¶ 5–6, 9–10. Accepting these factual allegations as true—and taking them in the light most

favorable to the Plaintiff—we find that American Airlines’s failure to assist Mr. Carias after repeated

requests for a wheelchair (and wheelchair assistance) constituted an “accident” for purposes of Article

17 of the Montreal Convention.

Two, this whole debate over whether an accident occurred is ultimately immaterial to the

question of preemption—which is to say that the Estate’s first argument reflects a fundamental

misunderstanding of the law. The fact is that, even if the airline’s inaction didn’t constitute an Article 17

“accident,” the Estate’s claims would still be preempted because (as we’ve said) the Montreal

Convention “precludes a passenger from maintaining an action for personal injury damages under

local law [even] when her claim does not satisfy the conditions for liability under the Convention.”

Tseng, 525 U.S. at 675; see also Siddiq v. Saudi Arabian Airlines Corp., 2013 WL 2152566, at *4 n.5 (M.D.

Fla. Jan. 9, 2013) (Fawsett, J.) (“The Supreme Court of the United States has held that Article 24

provides a ‘rule of exclusivity’ prohibiting suits under local laws even when a passenger cannot

establish a covered air carrier’s liability under the Montreal Convention.”). For these two reasons,

then, we reject the Estate’s contention that its claim isn’t governed by the Montreal Convention.

The Estate’s second argument fares no better. Here, the Estate teases us with the following

section header: “Dismissal Is Not Proper Because the Montreal Convention Merely Discusses

Damages, and Nothing More.” Response at 3. Bafflingly, however, the section that follows doesn’t

advance any arguments about damages. Instead, in this second argument, the Estate appears to suggest

that, because we have subject-matter jurisdiction over this case, the Montreal Convention cannot preempt

the Plaintiff’s state-law claim. “The Convention,” the Estate insists, “provides the exclusive remedy

for injuries or damage to individuals incurred on board international flights . . . . Under the terms of

the Convention, this remedy can be pursued only in certain jurisdictions . . . . In this case, because

American Airlines operates services in this particular district, the action is rightfully brought in this

Court.” Response at 3–4. This argument is a nonstarter. For one thing, “American is not contesting

this Court’s exercise of subject matter jurisdiction.” Reply at 5. In fact, it was American Airlines that

removed this case to our Court on the basis of our diversity jurisdiction. See Notice of Removal at 2.

For another, the issue of subject-matter jurisdiction is entirely separate from—and has nothing to do

with—the question of preemption.6 Put differently, a federal court can—and often will—have

subject-matter jurisdiction over a case, even though the state-law claims at issue in the case are

preempted by a federal statute. See, e.g., Vanderwall, 80 F. Supp. 3d at 1335 & n.1 (holding that the

Montreal Convention preempted the plaintiff’s state-law claim even though the court had diversity

jurisdiction over that claim).

Third, the Estate argues that the Montreal Convention “does not preempt Plaintiff’s state law

claims in its [sic] entirety” because “Article 29 of the Montreal Convention . . . preempts those claims

only to the extent that they exceed the limits set by the convention . . . . [T]here is, literally, a chorus

6 See, e.g., Jones v. LMR Int’l, Inc., 457 F.3d 1174, 1179 (11th Cir. 2006) (“Unlike complete preemption,

which is jurisdictional, defensive preemption is a substantive defense, justifying dismissal of

preempted state law claims.”).

of holdings that show that the Montreal Convention does not completely preempt state law claims.”

Response at 4–5. Here, the Estate has confused the doctrines of complete and ordinary preemption.

As the Eleventh Circuit has explained, the term “preemption” has “enkindled a substantial amount of

confusion between the complete preemption doctrine and the broader and more familiar doctrine of

ordinary preemption. Stated simply, complete preemption functions as a narrowly drawn means of

assessing federal removal jurisdiction, while ordinary preemption operates to dismiss state claims on

the merits and may be invoked in either federal or state court.” Blab T.V. of Mobile, Inc. v. Comcast Cable

Commc’ns, Inc., 182 F.3d 851, 854–55 (11th Cir. 1999). So, to the extent the Plaintiff is arguing that the

Montreal Convention doesn’t provide a basis for removal under the doctrine of complete preemption,

that simply isn’t an issue in our case because American Airlines removed the Plaintiff’s claim under

our diversity jurisdiction, see Notice of Removal at 2, and because the Plaintiff never filed a motion to

remand the case back to state court, see generally Docket, and never suggested that we lack diversity

jurisdiction over this case. Nor could the Estate have argued otherwise. After all, the parties are

completely diverse—the Estate sits in North Carolina, while American Airlines is a Delaware

corporation with its principal place of business in Texas, see Notice of Removal ¶ 11—and the

controversy is for much more than $75,000, see id. ¶ 15. For purposes of our case, then, the doctrine

of complete preemption is neither here nor there. And, to the extent that the Estate takes issue with

our ordinary-preemption analysis, we’ve already explained why its “state law claim is displaced by the

Montreal Convention under an ordinary preemption analysis.” Fernandez v. Am. Airlines, Inc., 2019 WL

13258037, at *2 (S.D. Fla. Oct. 7, 2019) (Williams, J.).

Having addressed all three of the Plaintiffs arguments—and having found them

unconvincing—we hold that the Plaintiffs state-law neghgence and wrongful-death claim 1s

preempted by the Montreal Convention.’

After careful review, therefore, we hereby ORDER and ADJUDGE as follows:

1. The Defendant’s Motion to Dismiss [ECF No. 5] is GRANTED.

2. ‘The Clerk of Court ts directed to CLOSE this case.

3. All pending deadlines and hearings are TERMINATED, and any pending motions are

DENIED as moot.

DONE AND ORDERED in the Southern District of Florida on October 3, 2023.

ROYK.ALTMAN ———™

UNITED STATES DISTRICT JUDGE

cc: counsel of record

’ And we won’t give the Plaintiff leave to amend because it never asked—either in its Response or in

a separate motion for leave to amend—for permission to amend its claims. See Wagner v. Daewoo Heavy

Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (A district court is not required to grant a plaintiff

leave to amend his complaint sua sponte when the plaintiff, who 1s represented by counsel, never filed

a motion to amend nor requested leave to amend before the district court.”’); Avena v. Imperial Salon &

Spa, Inc, 740 F. App’x 679, 683 (11th Cir. 2018) (“[W]e’ve rejected the idea that a party can await a

ruling on a motion to dismiss before filing a motion for leave to amend.”).

14