Jon Campisi Oct. 11, 2013, 7:51am


A major airline being sued over lost cremated remains wants the

case to be heard in federal court.

Attorneys representing US Airways filed court papers at the U.S. District Court in Philadelphia on Oct. 9 seeking to transfer out of state court a civil action initiated by Bucks County resident Angeline O’Grady.

As previously reported by the Pennsylvania Record, O’Grady filed suit at Philadelphia’s Common Pleas Court last month over allegations that the defendant lost the ashes of her late husband, Brian O’Grady, who died from cancer in the fall of 2011.

The plaintiff says that her husband’s dying wishes were to have his cremated remains flown to England, and spread out across a cemetery in Hull, where his mother’s ashes were scattered months before his death.

Angeline O’Grady claims in her lawsuit that she attempted to board a plane at Philadelphia International Airport in November 2011 carrying her husband’s cremated remains, but was told the ashes would have to be placed in her checked luggage.

The remains, O’Grady claims, never made it to England, and the airline has yet to offer an apology or even an explanation as to what became of the urn.

In their removal petition this week, US Airways attorneys J. Denny Shupe and Stephen J. Shapiro, of the Philadelphia law firm of Schnader Harrison Segal & Lewis, argued that the matter belongs in federal court because O’Grady’s state law claims are preempted by a federal treaty, and also because the defendants and the plaintiff are diverse citizens and the damages sought by the plaintiff will likely exceed the jurisdictional limit in a Pennsylvania court.

The lawyers for the airline claim that the lawsuit is preempted by a treaty of the United States known as the Montreal Convention, which governs claims alleging, among other things, the destruction of, loss of or damage to checked baggage during “international carriage [if] the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier,” according to the defense removal notice.

The filing notes that both the United States and the United Kingdom are signatories to the treaty.

The defense attorneys wrote that courts have repeatedly held that claims alleging damage to, theft from or loss of mishandling of baggage fall within the scope of the Montreal Convention and its predecessor, the Warsaw Convention.

The lawyers specifically cite the similar case of Noboa v. De Espana, in which a federal judge determined that the Warsaw Convention governed allegations that the defendant airline lost the cremated remains of the plaintiff’s mother.

“Where, as here, the facts pled fall within the scope of the Montreal Convention, the rights of the parties are governed exclusively by its provisions,” the removal petition states.

The attorneys went on to cite the “complete preemption doctrine” as legal justification as to why the matter belongs in federal, not state, court.

The lawyers also noted that O’Grady “explicitly invoked” federal law within her complaint.

“Plaintiff’s attempt to artfully plead a federal claim as a state law negligence claim should be rejected,” the defense attorneys wrote.

 

The federal case number is 2:13-cv-05933-AB.

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