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Calderon v. Aerovias Nacionales de Colombia

United States Court of Appeals for the Eleventh Circuit

April 19, 1991

No. 90-5560


 [*600]  BIRCH, Circuit Judge

Appellants Avianca, Inc., Commodore Aviation, Inc. and Aerovias Nacionales de Colombia, S.A. ("Defendants") appeal from an order of the United States District Court for the Southern District of Florida ("the district court") remanding this case back to state court because of lack of subject matter jurisdiction. 738 F. Supp. 485. A district court order remanding a case to the state court from which it was removed generally is not appealable. Appellants contend that the presumptive effect of a treaty, the Warsaw Convention 2, dictates a different result. We disagree and find that we lack jurisdiction to consider this challenge.


On January 25, 1990, an Avianca Boeing 707 aircraft operating as Flight 052, en route from Colombia to New York, crashed near Cove Neck, New York. Casualties included 65 passengers killed and 84 passengers injured. Numerous wrongful death and personal injury actions were brought against Defendants. The Judicial Panel on Multidistrict Litigation transferred all of these actions pending in federal courts to Chief Judge Thomas C. Platt of the United States District Court for the Eastern District of New York for coordinated and consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407.

The present action initially was filed in the Circuit Court of the Eleventh Judicial Circuit for Dade County, Florida ("the state court"). These plaintiffs ("Plaintiffs") sought relief under the Florida wrongful death statute, and deliberately did not allege any federal causes of action. Defendants removed the action to the district court pursuant to 28 U.S.C. § 1441, 3  [*601]  claiming that because this wrongful death action arose out of "international transportation" as defined by the Warsaw Convention, the district court possessed federal question jurisdiction.

 [**3]  After removal was accomplished, Plaintiffs filed an emergency motion for remand. In their initial complaint, Plaintiffs alleged only state law causes of action and did not invoke any federal law, treaty or statute. Accordingly, Plaintiffs contended that federal question jurisdiction did not exist. Defendants opposed this motion, arguing that the Warsaw Convention creates Plaintiffs' exclusive cause of action, thereby preempting Plaintiffs' state law claims and establishing federal question jurisdiction. Holding that the Warsaw Convention provides only an exclusive remedy, not an exclusive cause of action, the district court rejected Defendants' arguments and granted Plaintiffs' motion to remand. The case was remanded for further proceedings in the state court.

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929 F.2d 599 *; 1991 U.S. App. LEXIS 6706 **

Jesus E. CALDERON, as Personal Representative of the Estate of Elvia Mercedes Calderon, Deceased and on behalf of Jesus E. Calderon, Claudia Elena calderon and Luis Alfonso Calderon, Plaintiffs-Appellees, v. AEROVIAS NACIONALES de COLOMBIA, Avianca, Inc., Commodore Aviation, Inc., Defendants-Appellants

Prior History:  [**1]  Appeal from the United States District Court for the Southern District of Florida. No. 90-1045-CIV-SMA, Aronovitz, Judge.

Disposition: Appeal Dismissed.


district court, remand order, state court, lack of subject matter jurisdiction, substantial issue, federal question, cause of action, substantive law, remanding

Civil Procedure, Jurisdiction, Subject Matter Jurisdiction, General Overview, Removal, Specific Cases Removed, Postremoval Remands, Appellate Review, Preliminary Considerations, Jurisdiction Over Actions