Vorhees Ex Rel. Last Will & Testament of Brach v. Naper Aero Club, Inc.

(6th Cir.1950), requires that F.2d VORHEES, M. as Executor of Charles file his claim. We

Pherigo permitted Helen and Testament of Last Will the district court’s elect not to characterize dead, Brach, person presumed Plain- of dis abuse contrary determination tiff-Appellant, cretion, equitable cognizant but are courts, at the admiralty even powers of level, shape admiralty pro appellate CLUB, INC., an NAPER AERO Illinois jus substantial ceedings so as to achieve Fly- Corp.; Naperville Not-for-Profit Blue Sulphur Texas Co. v. tice. See Gulf Club, Inc., ing an Illinois Not-for- Co., 313 F.2d 359 Cir. Towing Stack Flying Corp.; Profit Business Men’s 1963) that district court’s (acknowledging Club, Inc., Illinois Not-for-Profit claimant deny permission late decision Corp., al., Defendants-Appellees. et pro nunc tunc was to file claim limitation discretion, sponte but sua not abuse of No. 00-2545. modifying permit district court’s order to Appeals, United States Court of timely filing of late claim subordinate claims). Seventh Circuit. Finally, we note that to have considered a similar case—in court Argued March 2001. severe, which a sole claimant suffered a 9, 2001. Decided Nov. on-the-job injury the deadline but missed filing proceed a claim in the limitation do, that ing concluded, as we the late — “R”

claim must be allowed. See In re Two 90-4184,

Drilling Civ. A. No. 1991WL (E.D.La. 1991) Sept.24, (permitting

injured employee to file three months late discussing requirement,

without cause not

ing only given facts of why

there was “no reason” late claim allowed). limit

should not be our hold

ing to the facts of this case. court’s order

The district of June closing proceeding the limitation

defaulting all unfiled claims is VACATED REMANDED

and the case with directions Pherigo

that the district court allow to file

his claim. Donovan, Hene- Jr.(argued),

Edward V. IL, Isaacson, han, Chicago, for Donovan & Plaintiff-Appellant. 1980s, changed. Madsen, things late had By Far- (argued), L. Farkas

Alan Naperville Aurora and were The cities of IL, Powen, Defendants- Chicago, for kas & and the explosive growth, experiencing Appellees. advantageously Farm situated Justice, Davies, Civ. Dept, Mark S. realized that commercial use. Vorhees DC, Div., Sec., for Ami- Washington, App. buildings on high-rise to build any plans cus Curiae. Farm, near its southern bor- especially the der, unat- impossible either would be WOOD, JR., MANION, and Before flights. of the constant low tractive because WOOD, Judges. P. Circuit DIANE highest the and best use Wishing to obtain formally Vorhees de- property, for his WOOD, Judge. DIANE P. Circuit from that the defendants cease manded the exec- M. Vorhees is Plaintiff Charles They the Farm. entering the over The the estate of Helen Brach. refused; utor of two lawsuits resulted. undivided, one-half estate owns an Brach brought against In a suit Vorhees (the Farm) farm in a 312-acre interest Department the of Secretary the of Illinois DuPage County, unincorporated located of the Divi Transportation, the Director Illinois, adjacent Naperville the cities of to Department of sion of Aeronautics of the Club, Aero Naper and Aurora. Defendant City Naperville, the of the Transportation, Aero) not-for-profit flying a (Naper Inc. Aurora, County DuPage, airport operates private club that a small Aero He based this suit Naper Club. (the adjacent to the southern Airport), amendment to the Illinois Aero on 1990 boundary of the Farm. The other five cor- person may that states: “No nautics Act porate flying defendants are clubs whose any airport create or construct hazard aircraft from the Air- operate members landing which a restricted area obstructs port; the 52 individual defendants are ei- airport....” or residential 620 ILCS 5/49.1 Airport private pilots ther owners of the (West 2001). that Vorhees believed Airport. alleged to have used the taking prop amendment amounted to a case, erty adjacent airports; to his he runways maintains two at Naper Aero argued give implicit he was forced to Airport landings. for takeoffs and One easement, which would limit or elimi south; runways of those runs north and ability develop to the Farm or sell nate his runway the north end of the abuts the purposes. remedy, it for commercial As a boundary of the Farm. As a re- southern enjoin permanently he asked the court to runway proximity sult of the enforcing from the amend the defendants Farm, taking aircraft off from or against ment him and to issue declarato necessarily travel across at this ry judgment stating that the amendment very Farm at low altitudes. taking private indeed effectuated A predecessor Naper Aero estab- just compensation was property for which Airport case, time around 1956. lished some court dismissed the due. The district early years, appears In the had failed to ruling that because Vorhees Airport Farm and the coexisted harmoni- preventing that the amendment was show ously. mostly The Farm had been used executing existing plans him from to devel land, farming purposes and had remained no “actual case or op the there was unimproved. incoming outgoing controversy” and the court therefore subject jurisdiction. the Farm’s matter Vo flights did not hinder lacked Brown, rhees v. 95 CV 1996 WL activities. 1996) re- (N.D.Ill. Mar.26, (dismissing filed a motion on October WL to the Circuit Court of Naperville); 1996 mand against city of claim 1996) (N.D.Ill. (dismissing Sept.27, DuPage County pursuant to 28 U.S.C. defendants). 1447(c). remaining against position § He took the that there claims court, this court affirmed unpublished opinion, jurisdiction was no devel attempt encouraged Vorhees either under 1331 or under 1332. The condem to commence inverse opment and undisputed; parties latter is on both sides instead. Vorhees proceedings nation of Illinois. of this case citizens With Brown, 375, 1998 WL 54657 argued respect Feb.4, 1998). Cir. Aviation Congress, enacting Federal Act, occupy did not intend to the field (which heeding our advice Rather than thoroughly preclude so as to the aviation do), obligation to Vorhees he was under no application of state laws. While Chancery in Divi- a second suit the filed pending, that motion was the defendants DuPage of Coun- sion of the Circuit Court pursuant a motion to dismiss to Fed. filed per- seeking again ty, August 12(b)(6), that the district arguing R.Civ.P. from manently enjoin the defendants to injunc- authority court had no to issue runway at the Air- the using north/south tion, Regula- since under Federal Aviation that the Vorhees claimed port. tions, only the Federal Aviation Adminis- in order for him to obtain necessary (FAA) authority has the to limit tration that the enjoyment property of his full airspace. airflight navigable above the entrance into the pilots’ trespass. Farm was a May the district court On immediately filed a defendants Certain denied Vorhees’s motion to remand and the federal to remove the case to motion the defendants’ motion to dismiss granted for the Northern District of Illinois court complaint. appeals now from the Vorhees (The § to 1441. other pursuant 28 U.S.C. court’s denial of his motion to both the acquiesced. apparently defendants of the com remand and from the dismissal requires that the removal statute all note novo, review decisions de plaint. We these removal, join in a motion for defendants to allegations all accepting well-pleaded disposition ap- our of this light but all rea complaint drawing as true and further.) point peal, pursue we do not plaintiff. in favor of the sonable inferences that because The defendants contended Prods. 211 F.3d Tylka v. Gerber of the sought prohibit Vorhees the use (7th Simek, Cir.2000); 447 Jones regula- Airport, at the because Cir.1999). (7th 193 F.3d 489 airports are matters operation tion and I the feder-

exclusively purview within the federal government, al 1441(a), “any Under 28 U.S.C. aspects to all respect state law with in a court of brought civil action State inaptly complaint. This amounted to the the district courts of the United which “complete” preemption, named federal jurisdiction, may be original have States believed, orig- they they thus relied on by the defendant or defen removed jurisdiction under 28 inal federal dants, court of the United to the district support their removal U.S.C. division embrac for the district and States petition. pend action is place where such ing noted, already par as a As we have ing.” the case now federal court With hence, diverse; this lawsuit are ties to petition, result of the removal Ill., nals, 53 F.3d Indus. Comm’n Inc. v. necessary for re- jurisdiction original (7th Cir.1995). case, exists, must be In such moval, jurisdiction if such ques- a federal critically to the presence on the refer based courts sometimes con- were able to “artfully tion. The defendants as one that has been complaint jurisdic- accept court claim, vince the district the federal see to evade pleaded” basis, contending the case on this tion over (7th Brown, 230 F.3d Lehmann “under the Constitu- arose ease Cir.2000), intent is although pleader’s tion, laws, the United treaties of jurisdictional issue. not relevant § 1331. 28 U.S.C. States.” court on the basis Removal to federal if the jurisdiction, even federal law

A arises under would not have had concurrent state court § when meaning within jurisdiction, option is one available way in some depends relief the claim for Reishauer Bartholet v. defendants. See law, anything al “unaided on federal (Zurich), 1073, 1075 of de anticipation or avoidance A.G. leged 1441(e). thought Cir.1992); the defendant These are fenses which Anderson, Taylor v. may interpose.” “complete in which the term the cases 75-76, L.Ed. 1218 34 S.Ct. U.S. used, although we has been preemption” (1914). com “well-pleaded is the This to note elsewhere that have had occasion every first-year law stu plaint” rule that Lehmann v. this is a misnomer. See in Louisville & was established dent learns Brown, (noting at 919 “com 230 F.3d Mottley, v. 211 U.S. Nashville R.R. Co. nothing to do with plete preemption” has (1908). 42, 149, 53 L.Ed. 126 Un 29 S.Ct. do with fed preemption everything and rule, only look der that federal courts field). occupation of a eral complaint, and not to well-pleaded to the and the district argue, The defendants defenses, any possible anticipated concluded, court that section 40103 if case arises under federal determine exactly this ef- Federal Aviation Act has Metropolitan law. Ins. Co. Life displace- “complete preemption” 95 fect Taylor, 481 U.S. S.Ct. (1987). They complaint L.Ed.2d 55 The of all law the field. ment state 40103(a) as the not invoke federal law filed did point to the fact that 49 U.S.C. action, complaint nor does his basis for his States Govern- provides “[t]he United issues—at least not con raise sovereignty ment has exclusive intentionally. only It raised sciously or The of the United States.” injunctive for state law claims would, blush, proba- at plaintiff seeks first relief. change their bly require the defendants to (Such change flight patterns. routes Nonetheless, though plaintiffs even necessary if the defendants might not their own normally are the masters of essentially purchase were forced to they and can choose which claims cases easement, possibility aside put but we there are limits to this present, wish to now.) flight change route of those limits arises discretion. One ultimately result patterns entirely displaced law has when federal regulation airspace, contravention question jurisdiction state law. Federal solely within regulation the rule that this is complaint if the does present will be even of the federal sovereignty occupies invoke it when “federal law so recovery requested Because the state impossible it is even to frame the field that authority, the would interfere with federal law.” Termi- a claim under state Ceres only argue, provide the claim must be com- intended to a federal defense defendants preempted. application state law. See pletely Graf Co., Elgin, Ry. Joliet & Eastern arguments these set forth a While (7th Cir.1986). ease, In this we they strong preemption, case for federal conclude that it is the latter. question of do not answer the more subtle dealing with so-called There are whether we two areas which Supreme or its more ordi “complete preemption” Court has found that Con cousin, nary preemption.” Only gress completely “conflict intended replace “complete” preemption purposes affects federal sub law with federal law for of feder ject jurisdiction. pre jurisdiction: matter al “Conflict” the first is in the field of emption relates to the merits of a claim. federal labor law and the second is in the play any It time a law area pension comes into of federal law. In the area of law, If allegedly conflicts with federal law. federal labor the Court has held that exists, such a conflict then the state law is 301 of the Labor Management and Rela (LMRA) necessarily give way and must tions Act completely preempts English to federal law. See v. General state law claims based violations of Elec. 110 S.Ct. contracts between an employer U.S. and a labor (1990). For if present pur organization require 110 L.Ed.2d 65 those claims inter however, poses, key point pretation is this: ordi the collective bargaining nary agreement. preemption merely Corp. Lodge or conflict See Avco v. Aero such, to the merits of a claim. defense As No. Int’l Ass’n Machinists & Aero Workers, according well-pleaded complaint space 390 U.S. 88 S.Ct. (1968). rule, it provide does not basis for federal L.Ed.2d 126 the field of law, jurisdiction. question Metropolitan pension Employee See federal the Retire 1542; (ERISA) 63, Life, 481 U.S. at 107 S.Ct. Leh ment Income Act Security com mann, pletely preempts brought 230 F.3d at 919-20. This is true state law claims if all or to parties anticipate pension even defense enforce or welfare benefits. 58, only Metropolitan Life, admit that the defense is the See 481 U.S. 107 federal (1987). at question truly Caterpillar, issue. Inc. S.Ct. 95 L.Ed.2d 55 Williams, 482 U.S. 107 S.Ct. fields, In both of these a state court (1987). 2425, 96 L.Ed.2d 318 claim necessary is not because the federal agree ingredients with the defendants that the claim includes the same as recovery. Illinois law is trying provides claims Vorhees to state claim and some may very preempted by provides assert well be Section 301 of the LMRA that “[sjuits Act (though Federal Aviation we make no for violation of contracts between time). ruling But employer organization rep- on that at this an and a labor resenting employees the fact that a federal statute a in an industry creates affect- ing defense to a state law claim does not nec- commerce as chapter, defined this has, that essarily “Congress any organizations, may mean stat- between such labor ute, subject away taken the from brought be district court of given having jurisdiction tribunals and it to federal courts.” United States 185(a). Ceres, parties....” 53 F.3d at 186. The 29 is U.S.C. Section 502(a)(3) whether, in enacting provides the Federal Aviation of ERISA that a civil Act, clearly “by participant, action a Congress completely brought intended enjoin ac- replace beneficiary, fiduciary” state law with federal law and to forum, or, a if it or the terms of likely, create federal more tion which violates ERISA 404 space”; but this does ereignty any provision to enforce plan,

an ERISA rights all based completely extinguish un- not due ERISA, recover benefits or to States v. Caus on state law. See United plan. a terms of der L.Ed. 66 S.Ct. 90 by, 328 U.S. contrast, 1132(a)(3). Federal Avi- (1946) a Fifth Amend (recognizing 1206 provi- enforcement Act has no civil ation claim connection with takings ment allowing private any provision sion or military aircraft overflights of U.S. an property torts of for the resident to sue case, it property). This affected This is airport operator. pilot or airline alleged tres recalling, worth is about pre- complete fatal to a claim seemingly prop over Vorhees’s pass into the 919; Lehmann, F.3d at 230 See emption. were as total erty. presence If the federal (7th Panchal, F.3d Rice claim, then Vorhees the defendants Cir.1995) (“[T]he un- ability bring suit claim if have no state even ‘compete is an element law] der [federal right to enter Vo- Naper Aero claimed federal unless the preemption’.... For guidelights build property rhees’s mat- remedy created a federal law has —no aircraft. We have there assist law, of neces- ter how limited —the past; that far in the to the con gone a defense to state sity, will arise as state law trary, we have held some action.”). law relating airflight may still have claims logic of the ERISA Following the merit, broad notwithstanding scope cases, circuit has added the Aviation Act. Bieneman v. the Federal of mobile telecommunications regulation F.2d Chicago, 864 entry to the areas Cir.1988) (federal and market rates preempt all does not field, totally occupies the which federal law airport noise common-law remedies do not in the relevant laws though may employ even dam pollution: “the state provision permit ages clude a civil enforcement to enforce federal re [ ] remedies In Bastien ting original right quirements regulate aspects of action. ... or to Serve., Inc., airport operation F.3d which the state has v. AT T over & Wireless (7th Cir.2000), discretionary authority.”). See also Caus that the Fed found we (“[w]hile at by, 328 U.S. 66 S.Ct. completely Act eral Communications as used in the meaning of property tele of mobile regulation it question, Fifth Amendment a federal [is] entry and market communications rates normally by its content refer will obtain pur of claims that and allowed removal law.”) (internal quotations ence to local law in this area. ported to invoke state omitted). Congress’s keep intent to states out of relevant statute picture was clear: Finally, we note that several of cases government or local stated that “no State govern- upon by relied States United any authority impose have shall ment, curiae, to show that the as amicus any private entry regulation upon rate or properly was dismissed as complaint land mobile service.” preempted by the Federal Aviation Act 332(c)(3) added); Bastien, courts, (emphasis in not federal were decided state broad lan F.3d at 987. There is no such courts. Austin v. Travis specifi in Act guage County the Federal Aviation 25 S.W.3d Landfill (state govern injunction and local cally prohibiting (Tex.App.1999) state any way airflight private in over regulating airflight against government ments from True, by the Federal property preempted does was whatsoever. the United States Sitorius, Act); Fiese v. 247 Neb. and exclusive national sov- Aviation “complete have (1995) FAA (airport approach own- free to with his con- 526 N.W.2d neighbor injunction against or requested pursue takings er’s cerns claim in the obstructing airflight preempted proper (probably federal court the Court Act); Krueger v. Mitch- Federal Aviation Claims, given of Federal the likely amount ell, Wis.2d N.W.2d controversy), in if he can satisfy otherwise (1983) in nui- (injunctive relief aviation prerequisites for such a suit. by Federal sance action was judgment of the district court is Act). all that appears, Aviation From and the case is for Remanded Vacated merely evaluating courts were these state of a purposes remand to the state court ordinary conflict preemp- the merits of 1447(c). party under 28 U.S.C. Each ruling accordingly, tion defense and shall bear its own costs on this appeal. they clearly competent are to do. WOOD, JR., II HARLINGTON Circuit Judge, dissenting. light principles, In of these we hold that district court should have remanded my view interesting case is not as jurisdic this case to state court want may appear. involved as it first Plaintiff finding, we need not ad tion. Given this complaint filed his in the circuit court of the merits of the defendants’ motion dress Illinois, DuPage County, Chancery, course, upon to dismiss. And of remand to injunction seeking prohibiting de- court, state that court will be free to con taking fendants from off or whether the Federal sider the runway permitting their oth- preempts Aviation Act the claim Vorhees ers to do so. One end of that ends attempting present here —a claim on twenty plain- about feet from one line of jurisdictional ruling rejecting which our property, depending tiffs and on weather “complete preemption” occupation conditions would be used for takeoffs or bearing. the field has no See Lister v. landings, unavoidably resulting both Stark, 943 n. 1 Cir. flights low-level across property. 1989). however, time, At the same we landings generally and re- Takeoffs encourage plaintiff long to think garded opera- as critical times aircraft pursuing hard before tions. airflight naviga court. Most issues of It is obvious that such airspace, probably including ble take-offs flight in the air regulate above landings, sovereign reg are within the plaintiffs property, which is what he seeks ulatory powers of the federal by prohibiting My disagreement it. do predict that it would be difficult at best I majority with the is that believe that the court that the claim to convince flight totally preempted regulation of is airspace try is about by the federal See 49 U.S.C. present not interfere with the ing to 40103(a)(1) (“The § United States Govern- regulatory apparatus. federal “These sub sovereignty airspace exclusive law, ment has jects governed by federal and a States.”). majority of the The United may procedures not use common law preemption out has not points that this or extract federal decisions in clearly made as other matters by them.” been as money from those who abide Bieneman, preemption, of federal federal labor law F.2d at 473. To the extent 864 law, pension important and federal both taking federal law itself has effectuated a federal It is true property, preemption. he is of course also areas of Vorhees’s 406 way taxi to another only as a government’s exclusive the federal in here. Courts may runway not be as is not at issue airspace navigable

control of been, Texas, Nebraska, I and Connecticut have but submit might it have explicit as regulate airspace. no more needed to thought that states not Congress held I -had -been said. already County Land- be said than Austin v. Travis See City of v. 191, to Bastien (Tex.App.1999); this case is similar believe 206 25 S.W.3d fill Services, Inc., F.3d 205 227, AT & T Wireless Sitorius, 526 247 Neb. Fiese Cir.2000). (7th 983, 986-87 86, (1995); United States v. 90 N.W.2d Haven, F.Supp. 367 1338 New succinctly points the United States As (D.Conn.1973). already court has had Our supporting the dis- in amicus brief out its in Kohr v. Alle- say problem about case: dismissal trict court’s Airlines, Inc., 504 F.2d 400 gheny to its Commerce Clause Pursuant Cir.1974). noted, in panel As the Kohr Congress preempted has power, country, early jurisprudence this airspace. Since regulation navigable navigable water was moved the control of 1926, for the law has asserted federal control. Id. at 403- from state to federal “complete and exclusive United States Airlines, Inc. v. (quoting Northwest sovereignty space” in the air national Minnesota, 322 U.S. State of country. United States over this (1944) (Jackson, 950, 88 L.Ed. S.Ct. 256, 250[sic], 66 S.Ct. Causby, 328 U.S. Kohr, J., concurring)). As was stated (1946), Air citing L.Ed. 1206 Airlines, Northwest quoting Act of Pub.L. No. 69- Commerce navigate Air as an element which to is (1926), by as amended 44 Stat. 568 inevitably federalized even more Act of Pub.L. Aeronautics Civil navigable than wa- commerce clause is (1938). 75-706, In No. Stat. Local exactions and barriers ter. provision Congress reenacted this neutralize free transit the air would Federal Aviation Act of part of the space conquest indifference to and its its Pub.L. No. 85-726. 72 Stat. of time. 1508(a) (1993). See U.S.C. Congress recodified and altered Congress recognized has the national preemption provision. phrasing of regulating air com- responsibility for “The provision now states: United merce. Federal control is intensive and has exclusive sover- States Government exclusive. Planes do not wander about eignty United States.” They clouds. move sky vagrant like 40103(a).

49 U.S.C. subject only by permission, federal in the hands of feder- inspection, “navigable airspace” Federal law defines and under an ally personnel certified needed to ensure safe- “airspace to include federal commands. system of intricate of aircraft.” ty the takeoff onto a ship The moment taxis 40102(a)(30). flight Were up it in an elaborate and de- caught but left to all the completely system of controls. It takes off tailed country, air trans- state courts across tow- only by instruction from control chaotic and dan- portation could beams, er, prescribed it travels Runway use cannot be viewed gerous. land- may be diverted from its intended cannot Runways be used separately. obeys signals and it and order. Its ing, landings affecting without takeoffs and far rights, protection, so Using privileges, flight patterns. concerned, it owes to the as transit America, UNITED STATES alone and not to Government

Federal Plaintiff-Appellee, Airlines, Northwest (quoting Id. at (Jack-

Inc., 322 U.S. at S.Ct. WALKER, Defendant- Thomas son, J., concurring)).1 Appellant. complete preemption

I believe exists No. 00-3052. proper. as a result the removal Appeals, United States Court properly plaintiffs district court denied Seventh Circuit. court. Mov- motion to remand to the state merits, I ing on to the would affirm the Argued Feb. 2001. com- district court’s dismissal Decided Nov. 2001. upon for failure to state a claim plaint Plaintiff granted. which relief can be regu- which would

seeks traffic, money damages. not

late plaintiff

If has state remedies not involv-

ing preempted flight airspace manage-

ment, com- which he does seek

plaint, I would leave further causes of plaintiff may pursue entirely

action lawyers.

judgment his own

I must Dissent. respectfully Furthermore, airports contrary 1. In some smaller where there to the issuance of tower, state, operating not be an control there by a federal aviation driver's license applicable procedures federal rules and for all regulations provide person that no pilots to follow. The Aircraft Owners and may pilot plane United States unless ("AOPA”)., Washington, Pilots Association pilot person possession a current has in his D.C., publishes very useful Handbook for (commonly pilot's referred to as a certificate private pilots which contains the federal avia- license) person pursuant issued to that to fed- regulations helpful tion and other information regulations. No can issue eral aviation concerning departing from or at air- pilot certificates. operating tower. ports without an control

Case Details

Case Name: Vorhees Ex Rel. Last Will & Testament of Brach v. Naper Aero Club, Inc.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Nov 9, 2001

Citation: 272 F.3d 398

Docket Number: 00-2545

Court Abbreviation: 7th Cir.