The opinion of the court was delivered by: Ralph R. Beistline United States District Judge
ORDER GRANTING MOTION TO REMAND
Before the Court is Plaintiff S.M.N., a minor, by and through her
mother and next friend, Larissa Martins with a motion to remand at
Docket 11. Plaintiff contends that the current case should be
immediately remanded to state court because the removal of Plaintiff's
suit to this Court was not timely, and furthermore, such suit does not
"'turn' on a 'substantial question of federal law.'"*fn1
Defendants Hageland Aviation Services, Inc. ("Hageland") and
Megan Martins oppose at Dockets 17 and 16, respectively, and
argue that Plaintiff is claiming that Hageland violated 14 C.F.R. §
91.13 (2009), an allegation previously absent from Plaintiff's suit,
which falls within this Court's subject matter jurisdiction.*fn2
Inasmuch as this Court has determined that Plaintiff's potential use of 14 C.F.R. § 91.13 as the duty of care standard in its negligence claim does not present a substantial federal question, nor is Plaintiff's claim preempted by federal law, Plaintiff's claims were not properly removed and this Court lacks subject matter jurisdiction in the instant matter. Therefore, Plaintiff's Motion to Remand at Docket 11 is hereby GRANTED.
This is a personal injury case. Plaintiff, as an 18-month old infant, fell from a parked Hageland airplane on the tarmac in Bethel, Alaska.*fn3 Plaintiff landed on her head, fracturing her skull and suffering a traumatic brain injury.*fn4
Under 28 U.S.C. § 1447(c) (1996), after a case is removed from state court, "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." The present suit lacks complete diversity among the parties. Plaintiff and Defendant Megan Martins are residents of Alaska. Hageland is an Alaskan corporation. For this Court to acquire subject matter jurisdiction over plaintiff's suit, the suit must arise "under the Constitution, laws, or treaties of the United States."*fn5
A. This Court Does Not Have Subject Matter Jurisdiction Because 14 C.F.R. § 91.13 Does Not Create a Cause of Action, Nor Does its Potential Use Present a Substantial Federal Question.
Defendants argue that Plaintiff's claims "raise clear disputes as to the duties and obligations of the airman and air carrier under the Federal Aviation Regulations ("FARs"), issues that are undecided by federal courts."*fn6 Therefore, Defendants argue this Court has subject matter jurisdiction over Plaintiff's claims.*fn7 The Court does not find Defendants' argument persuasive.
The current litigation has been removed to this Court once before and, at that time, the Court found that it did not have jurisdiction over the suit.*fn8 After reviewing Plaintiff's current motion to remand, the Court finds that Plaintiff's complaint at the time of the first removal is identical, in all material aspects, to the first amended complaint, which Defendants recently removed to this Court.*fn9 However, in reply to an opposition brief filed in Greydanus v. Hageland Aviation Servs., Inc., No. 5463068, slip op.
(D. Alaska Dec. 29, 2010), counsel for Plaintiff stated, referring to the present case, that "[t]he plaintiff, a child, is arguing that Hageland was negligent, in violation of the 'careless and reckless' standard of 14 CRF [sic] § 91.13 . . . .*fn10 The only issue that must be resolved with regard to Plaintiff's motion to remand, therefore, is the effect on this Court's jurisdiction of Plaintiff's potential use of 14 C.F.R. § 91.13 as a negligence standard of care.
The Supreme Court has enumerated the situations in which Congress intended for federal courts to possess jurisdiction over cases removed from state courts.*fn11 The Plaintiff's well-pled complaint must establish that: (1) "'[F]ederal law creates the cause of action'"; or (2) "'[T]he plaintiff's right to ...