Preemption Defense Based on FAA Rejected

Monroe v. Cessna Aircraft Co., 417 F. Supp. 2d 824 (E.D. Tex., 2006)
Judge: Leonard Davis
Division: Marshall
Holding: Amended Motion to Dismiss Under FRCP 12(b)(6) DENIED
COMMENTS:
This is a product liability case arising out of an airplane crash.  Defendant Cessna sought dismissal for failure to state a claim, claiming that the field of aviation safety is preempted by the Federal Aviation Act.  Judge Davis denied the motion, holding that it was not.
On a local rules issue, Cessna filed a one sentence motion to dismiss as part of its answer.  The plaintiff filed an equally brief response.  Cessna then filed its "amended" motion with full briefing.  The plaintiffs objected that this was either briefing not included in the original motion, in violation of CV-7(c), or an oversize reply brief in violation of CV-7(f).  Judge Davis denied that motion as substantively inadequate, but held that since 12(b)(6) motions can be made at any time, the amended motion would be considered as an original motion, and on the merits.