United States District Court, S.D. Iowa, Central Division
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTIONS
TO DISMISS PLAINTIFFS' COMPLAINT AND TO TRANSFER PURSUANT
TO 28 U.S.C. § 1404
A WALTERS UNITED STATES MAGISTRATE JUDGE
above resisted motions   are before the Court and have
been referred to the undersigned for Report and
Recommendation. 28 U.S.C. § 636(b)(1)(B), (C). The
parties have agreed the motions may be decided on the motion
papers as supplemented by transcript selections from a
pending arbitration proceeding. (See 6/19/18 Order
 at 1). The motions are thus fully submitted.
Frontier Airlines, Inc. (“Frontier”) moves to
dismiss plaintiffs' Amended Complaint  for lack of
subject matter jurisdiction or, alternatively with respect to
two common-law claims, for failure to state a claim upon
which relief can be granted. Fed.R.Civ.P. 12(1), (6).
Plaintiffs are some 100 former flight attendants employed by
Frontier. The relevant jurisdictional facts appear undisputed
and are largely taken from the Amended Complaint.
and the Association of Flight Attendants-CWA
(“Union”) which represented Frontier's flight
attendants entered into a collective bargaining agreement
(“CBA”) on October 14, 2011. (Amend. Complt. 
¶ 6). A few days before, on October 11, 2011, the Union
agreed to salary and benefit concessions to mitigate
Frontier's then financial difficulties. The concessions
were memorialized in a letter agreement entitled
“Flight Attendant Restructuring Investments.”
(Id. attach.  at 3-4; see Paschke Decl.
Ex. 7 (Glasscock Aff.)  at 28). Article 24 of the CBA was
intended to compensate flight attendants for the concessions.
(Amend Complt.  ¶ 9). It is captioned
“Equity, Profit-Sharing, and Wage & Benefit
Snapbacks.” (Id. ¶ 7 and attach.  at
1). Paragraph A of Article 24 (“Article 24A”)
entitled flight attendants to “Equity
Participation” in Frontier as described therein.
(Id. and attach.  at 1). Paragraph D of Article
24 (“Article 24D”) stipulated Equity
Participation would be “exclusively for Frontier Flight
Attendants on the Frontier Flight Attendant Seniority List as
of January 1, 2012.” (Id. ¶ 8 and attach.
 at 2). Each of the plaintiffs was on the seniority list
as of January 1, 2012 but left Frontier's employment
prior to March 15, 2017. (Id. ¶ ¶ 10, 11).
March 15, 2017, Frontier and the Union signed a Letter of
Agreement (“LOA”) under which Frontier was to pay
$40 million in satisfaction of its Equity Participation
obligations under Article 24A (the “Equity
Payment”). (Amend. Complt.  ¶ 12; see
Hollinger Decl. [8-2], Ex. C). The LOA gave the Union sole
authority to determine which flight attendants were eligible
to share in the Equity Payment. (Amend. Complt.  ¶
The Union determined only those flight attendants on the
seniority list who were continuously employed from January 1,
2012 through March 15, 2017 were eligible to receive a
portion of the Equity Payment. As they had ceased employment
before March 15, 2017, plaintiffs were denied a share of the
payment. (Id. ¶ 14).
Amended Complaint is in three counts. Count I alleges
Frontier breached Articles 24A and 24D of the CBA by
excluding them from a share of the Equity Payment because the
only Article 24D eligibility requirement was inclusion on the
flight attendant seniority list as of January 1, 2012.
(Amend. Complt.  ¶¶ 19, 20). Plaintiffs seek a
decree they are eligible to receive Equity Payments, damages
for emotional distress and pain and suffering, attorney fees
and costs. (Id. at 7). Count II claims promissory
estoppel based on the promises made in Articles 24A and 24D
“as well as other communications.” (Id.
¶ 28). Count III alleges Frontier was unjustly enriched
by the value of the uncompensated for concessions plaintiffs
made. (Id. ¶¶ 37-40). Counts II and III
seek damages, attorney fees and costs.
plead subject matter jurisdiction pursuant to 28 U.S.C.
§1337(a). That subsection gives district courts
“original jurisdiction of any civil action . . .
arising under any Act of Congress regulating commerce . . .
.” Plaintiffs assert their claims “arise
under” the Railway Labor Act (“RLA”), 45
U.S.C. §§ 151 et seq., an Act regulating
commerce. (Amend. Complt.  ¶ 3). Frontier's Rule
12(b)(1) motion to dismiss for lack of subject matter
jurisdiction is based on its argument that plaintiffs'
claim for breach of the CBA is a “minor dispute”
under the RLA within the exclusive jurisdiction of the
Frontier Flight Attendants' System Board of Adjustment
(“Board” or “Board of Adjustment”)
before which the arbitration of plaintiffs' grievance of
the denial of Equity Payment participation is currently
pending. Evidentiary hearing was held before the arbitration
panel on March 20, 2018, and post-hearing briefs were to be
filed by June 15, 2018. (Amend. Complt  ¶ 17;
Hollinger Supp. Decl. [14-1] at 2). Plaintiffs'
common-law promissory estoppel and unjust enrichment claims
are, says Frontier, preempted by the RLA because both would
require interpretation of the CBA.
motion to transfer, Frontier asks that the action be
transferred to the United States District Court for the
District of Colorado “[f]or the convenience of the
parties and witnesses [and] in the interests of
justice” as permitted by 28 U.S.C. § 1404(a).
Frontier argues many of the events took place in Colorado
where it is headquartered and many potential witnesses are
located, while no events took place in this district and no
witnesses live here. None of the plaintiffs reside in Iowa.
(See Amend. Complt.  ¶ 2).
initial question is which motion should be decided first. The
Court asked the parties to address the issue in light of the
United States Supreme Court's opinion in Sinochem
Intern. Co. Ltd. v. Malaysia Intern. Shipping Corp., 549
U.S. 422 (2007), and the Eighth Circuit's opinion in
Integrated Health Services of Cliff Manor, Inc. v. THCI
Co., LLC, 417 F.3d 953 (8th Cir. 2005).
Health involved a transfer of venue in circumstances
which required the circuit to address “the issue of the
district court's power to transfer the case before
deciding the issue of its own jurisdiction.” 417 F.3d
at 957. The circuit agreed “that a court without
subject matter jurisdiction cannot transfer a case to another
court under 28 U.S.C. § 1404(a).” Id.
(citing Klett v. Pim, 965 F.2d 587, 591 n.7 (8th
Cir. 1992)). The court concluded, however, the district court
had jurisdiction. Id.
issue in Sinochem was “[w]hether a district
court must first conclusively establish [its own]
jurisdiction before dismissing a suit on the ground of
forum non conveniens.” 549 U.S. at 425
(quoting Pet. for Cert. (brackets original to opinion)).
Section 1404(a) codifies the common-law doctrine of forum
non conveniens when transfer is sought to another
federal court. The doctrine remains applicable apart from the
statute only where the alternative forum is in another
country. In Sinochem the district court had
dismissed the action without deciding whether it had personal
jurisdiction over the defendant Sinochem, finding the case
could be more conveniently decided in the Chinese courts
where litigation was pending. Id. at 427-28. The
Court of Appeals reversed concluding the district court could
not dismiss the case on forum non conveniens grounds
until it determined definitively that it had both subject
matter jurisdiction of the cause and personal jurisdiction
over the defendant. Id. at 428.
Supreme Court reversed unanimously holding:
[A] court need not resolve whether it has authority to
adjudicate the cause (subject-matter jurisdiction) or
personal jurisdiction over the defendant if it determines
that, in any event, a foreign tribunal is plainly the more
suitable arbiter of the merits of the case.
Id. at 425. The court ended its opinion by
cautioning that in “the mine run of cases, jurisdiction
‘will involve no arduous inquiry' and both judicial
economy and the consideration ordinarily accorded the
plaintiff's choice of forum ‘should impel the
federal court to dispose of [those] issue[s]
first.'” Id. at 436 (quoting Ruhrgas
AG v. Marathon Oil Co., 526 U.S. 574, 587-88 (1999)).
But if subject matter (or personal) jurisdiction is
“difficult to determine, and forum non
conveniens considerations weigh heavily in favor of
dismissal, the court properly takes the less burdensome
would have the Court determine the transfer motion first. It
sees Sinochem as undercutting the Eighth Circuit
rule that without subject matter jurisdiction a court cannot
transfer a case. See Zavanna, LLC v. RoDa Drilling
Co., No. 4:09-cv-022, 2009 WL 3720177, at *15 (D.N.D.
November 3, 2009) (“there may be reason to doubt”
Integrated Health and like cases in light of
Sinochem “if the premise is the lack of
judicial power to transfer a case prior to deciding a
question of subject matter jurisdiction, given that the
transfer is a non-merits
determination.”). Frontier notes a court in this circuit,
and some courts elsewhere, have post-Sinochem
transferred cases without resolving a subject matter
jurisdiction challenge. See Woodland's Development,
LLCv. Regions Bank et al., Civil Action No.
13-514, 2013 WL 3233472, at *3 (E.D. La. June 24, 2013)
(citing cases); Emory v. Duke, No. 4:12CV00404 SWW,
2012 WL 13027254, at *2 (E.D. Ark. August 2, 2012); see
also KGM contractors, Inc. v. Heavy Haulers, Inc., Case
No. 16-cv-3638 (JNE/LIB); 2017 WL 2437239, at *1, 8 (D. Minn.
June 5, 2017)(bypassing personal jurisdiction issue in favor