Barguil v. JetBlue Airways Corporation et al
| Barguil Elfie, Primeflight Aviation Service, Inc. and Elfie Barguil |
| JetBlue Airways Corporation and Port Authority of New York And New Jersey |
| 1:2023cv00510 |
| January 24, 2023 |
| US District Court for the Eastern District of New York |
| Brian M Cogan |
| Airplane |
| 28 U.S.C. § 1446 Notice of Removal |
| Plaintiff |
Docket Report
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ORDER GRANTING PLAINTIFF'S MOTION TO REMAND and REMANDING CASE to the Supreme Court, Queens County, Index No. 719343/2019, as untimely removed under 28 U.S.C. 1446(b). Even assuming the complaint did not start the 30-day removal period (and the Court has seen carriers, on complaints no more detailed than this one, remove on the basis of the Montreal Convention), defendants had actual notice that this case implicated the Montreal Convention in early 2021, and thus, removal almost two years later was untimely. Ordered by Judge Brian M. Cogan on 2/7/2023. (PW)
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| Filing 13 MEMORANDUM in Opposition in Response to Order to Show Cause filed by JetBlue Airways Corporation, Port Authority of New York And New Jersey. (Attachments: #1 Affidavit Alimonti Aff in response to OTC, #2 Exhibit A - Summons & Complaint, #3 Exhibit B - Pages - Barguil Dep, #4 Exhibit C - Pages - Ruano Dep, #5 Exhibit D - Pages Pierre-Louis Dep, #6 Exhibit E - Pages - Espinosa Dep, #7 Exhibit F - Composite Emails, #8 Exhibit G - Notice of Motion - 12-23-21, #9 Exhibit H - Notice of Motion - Notice of Motion - 7-15-21, #10 Exhibit Order and Decision - 12-15-22) (Alimonti, Frederick) |
| Filing 12 Letter In support of Court's OSC to Remand by Elfie Barguil (Slobin, Gary) |
| Filing 11 NOTICE of Appearance by Gary Slobin on behalf of Elfie Barguil (notification declined or already on case) (Slobin, Gary) |
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ORDER TO SHOW CAUSE. This case appears to have been untimely removed in bad faith. Assuming arguendo that the Montreal Convention completely preempts plaintiff's state law claims (which I know the parties dispute and the state court never decided), the Convention does not preempt those claims just because the state court entered an order allowing defendants to amend their answers to assert the Convention as an affirmative defense. At the latest, defendants knew when they served their request for a Supplemental Bill of Particulars on 4/12/21 that they intended to assert that the Convention applied. As defendants told the state court on 12/23/21: "Plaintiff's counsel was on notice of the Defendants' intention to assert this defense as early as March 22, 2021.... This amendment has been under continuous discussion among the undersigned and Plaintiff's counsel since March 2021...." Even earlier than that, when defendants were served with the complaint, defendants knew or should have known that plaintiff was at JFK because she had a JetBlue ticket for international travel, which tickets always contain the Convention endorsement. Defendants thus could have removed based on the face of the complaint, as the case law deems the removal period to have commenced in complete preemption cases with the service of complaints with far less information than defendants had here. See Hoover v. Allied Van Lines, 205 F. Supp. 2d 1222, 1241 (D. Kan. 2002); Woodward v. Employers Casualty Company, 785 F. Supp. 90, 92 (S.D. Tex. 1992); Golke v. Lee Lumber & Building Materials, 671 F. Supp. 568 (N.D. Ill. 1987). Indeed, even defendants' notice of removal references paragraph 41 of the complaint as showing the basis for removal. But whether their time to remove started to run when the complaint was served or in 2021, it certainly had run months before the state court said, "go ahead, assert your Convention defense." That order is immaterial to the removal period, as the Convention was referenced in numerous documents filed by both plaintiffs and defendants prior to the state court order. Defendants are therefore ORDERED TO SHOW CAUSE by 2/6/23 why this action should not be remanded to State Court as untimely removed and sanctions imposed for improper removal. Ordered by Judge Brian M. Cogan on 1/30/2023. (PW)
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| Filing 10 Corporate Disclosure Statement by Primeflight Aviation Service, Inc. identifying Corporate Parent PFAS, Inc. for Primeflight Aviation Service, Inc.. (Bartholomay, Zoe) |
| Filing 9 NOTICE of Appearance by Zoe G. Bartholomay on behalf of Primeflight Aviation Service, Inc. (aty to be noticed) (Bartholomay, Zoe) |
| Filing 8 NOTICE of Appearance by David John Harrington on behalf of Primeflight Aviation Service, Inc. (aty to be noticed) (Harrington, David) |
| Filing 7 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (SR) |
| Filing 6 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (SR) |
| This case has been opened in the Eastern District of New York. If you plan to continue representing your client(s), you must be admitted to practice before this court. You must do so by applying for Pro Hac Vice or permanent admission. To apply for Pro Hac Vice admission, you must first register for an ECF login and password. Please visit the Court's website at www.nyed.uscourts.gov/attorney-admissions for guidance. Once registered, you must electronically file a Motion to Appear Pro Hac Vice. You must pay the required pro hac vice fee online. (SR) |
| Filing 5 CERTIFICATE OF SERVICE by JetBlue Airways Corporation, Port Authority of New York And New Jersey re #1 Notice of Removal, Affirmation or Service (Alimonti, Frederick) |
| Filing 4 Corporate Disclosure Statement by JetBlue Airways Corporation (Alimonti, Frederick) |
| Filing 3 Corporate Disclosure Statement by Port Authority of New York And New Jersey (Alimonti, Frederick) |
| Filing 2 Civil Cover Sheet.. Re #1 Notice of Removal, by JetBlue Airways Corporation, Port Authority of New York And New Jersey (Alimonti, Frederick) |
| Case Assigned to Judge Brian M. Cogan. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (SR) |
| Filing 1 NOTICE OF REMOVAL by JetBlue Airways Corporation, Port Authority of New York And New Jersey from Supreme Queens, case number 719343/2019. ( Filing fee $ 402 receipt number BNYEDC-16340029) (Attachments: #1 Exhibit Exhibits A-C to Notice of removal, #2 Exhibit Appendix of all pleadings and order from State Court Proceeding - Queens Index No. 719343/2019) (Alimonti, Frederick) |
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