Barry Aviation, Inc. v. Land O'Lakes Municipal Airport Commission

219 F.R.D. 457, 2003 U.S. Dist. LEXIS 23965, 2003 WL 23095997
CourtDistrict Court, W.D. Wisconsin
DecidedMay 14, 2003
DocketNo. 02-C-0635-C
StatusPublished
Cited by2 cases

This text of 219 F.R.D. 457 (Barry Aviation, Inc. v. Land O'Lakes Municipal Airport Commission) is published on Counsel Stack Legal Research, covering District Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barry Aviation, Inc. v. Land O'Lakes Municipal Airport Commission, 219 F.R.D. 457, 2003 U.S. Dist. LEXIS 23965, 2003 WL 23095997 (W.D. Wis. 2003).

Opinion

OPINION AND ORDER

CRABB, District Judge.

This is a civil action for monetary relief in which plaintiff Barry Aviation, Inc. contends that defendants fraudulently induced it to enter into a contract to become a fixed-base operator at the Land O’Lakes Municipal Airport and, in doing so, (1) violated the Wisconsin Organized Crime Control Act, Wis. Stat. § 946.83; (2) violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961; (3) committed common law fraud; (4) destroyed public records in violation of Wis. Stat. § 946.72; (5) committed a civil conspiracy to defraud; (6) violated plaintiffs rights to due process and equal protection; and (7) breached the parties’ contract by failing to observe the covenants of good faith and fair dealing. In addition, plaintiff contends that defendants violated the express terms of their contract by allowing non-qualifled personnel to perform airplane maintenance and by failing to maintain and replace the aviation fuel system and underground tanks.

Presently before the court is defendants’ motion to dismiss. Although defendants assert a myriad of grounds for dismissal of plaintiffs complaint, I need determine only three issues. First, as a preliminary matter, I conclude that plaintiff has failed to plead its allegations of fraud with the particularity required under Fed.R.Civ.P. 9(b). Second, even if plaintiff had met the pleading requirements of Rule 9(b), it has failed to state a claim upon which relief can be granted as to its RICO and § 1983 claims. Thus, defendants’ motion to dismiss will be granted as to plaintiffs federal claims. Typically, plaintiff would be given leave to amend to cure its Rule 12(b)(6) pleading deficiencies as to its federal claims. However, because it is clear from the complaint that the statute of limitations has run on plaintiffs RICO and § 1983 claims, any amendment as to these claims would be futile. Finally, because the only remaining claims are state law claims and plaintiff has failed to establish diversity jurisdiction (plaintiff alleged only its principal place of business and not its state of incorporation), defendants’ motion to dismiss will be granted as to the state law claims for lack of subject matter jurisdiction.

For the sole purpose of deciding defendants’ motion to dismiss, plaintiffs allegations in the complaint are accepted as true.

ALLEGATIONS OF FACT

Plaintiff Barry Aviation, Inc. is a corporation with its principal place of business in West Palm Beach, Florida. (Although defendants pointed out that plaintiff failed to allege its place of incorporation in its complaint, plaintiff has remained silent on the issue.) Defendant Land O’Lakes Municipal Airport Commission is a political subdivision established under Wisconsin law for the exclusive purpose of governing, administrating and managing the municipal airport. Defendant Town of Land O’Lakes is a municipality located in Vilas County, Wisconsin. (For simplicity, I will refer to defendant Town of Land O’Lakes as defendant Town and defendant Land O’Lakes Municipal Airport Commission as defendant Commission.) Defendants Richard Peterson, Henry Mitchell, Michael Stopczynski Sr., Ronald Ramesh, Karl Kerscher and James A. Bates are officials either elected or appointed by defendant Town or défendant Commission.

In 1992, plaintiff investigated starting an aviation business known as a fixed-base operation. A fixed-base operator generally sells and rents aircraft, operates charters, repairs [459]*459airplanes and avionics and provides fuel services and aircraft storage facilities at public airports. Plaintiffs investigation focused on several public airports located in Michigan’s upper peninsula and north central Wisconsin, including the Land O’Lakes Airport.

In 1993, plaintiffs principal, Timothy Barry, attended a public meeting held by defendants Town and Commission. At that meeting, Barry met defendant Kerscher, who was the manager of the airport and head of the town’s airport committee. Plaintiff also met “other” defendants at this meeting. (I have used quotation marks to highlight instances in which plaintiff has failed to plead its claims of fraud with the particularity required under Rule 9(b).) During the meeting, “defendants” represented to plaintiff: (1) there were plans for substantial redevelopment of the airport in the future; and (2) the airport had in excess of 10,000 general aviation “operations” a year. (The Federal Aviation Administration defines an “operation” as the arrival or departure of an aircraft from an airport.) Future development included the acquisition of substantial government funding through funds provided by: (1) the FAA for airport improvement (as administered by the Wisconsin Department of Transportation); and (2) the state of Wisconsin (as funded directly through Wisconsin DOT). The funds were to be used for land acquisition, runway reconstruction, lights and approach obstruction removal.

Plaintiff was given the Airport Master Record (FAA Form OMB 2120-0015), which was prepared by the FAA on the basis of information provided to the FAA from the “[defendants acting as and through the Town and the Commission.” The Airport Master Record show that the airport had a total of 10,000 operations in the 12-month period ending September 13,1991.

Plaintiff was given defendant Town’s March 10,1993 Project Statement, which was prepared for the Wisconsin DOT and the FAA for the purpose of obtaining state and federal capital improvement funds for the airport. Defendant Town represented and certified in the Project Statement that 11,000 operations took place at the airport for the 12-month period ending July 1993.

“Additional representations were made to Plaintiff that certain terms and covenants would be provided in an anticipated public contract for [fixed-base operations] to protect Plaintiff from unfair competition at the Airport.”

On June 15, 1993, on the basis of “the written materials provided and the representations of Defendants in all of their various capacities,” plaintiff entered into a fixed-base operator contract with defendants Town and Commission. Under the 20-year contract, the parties “contemplated” that plaintiff would make substantial investments that would be recovered as a result of the volume of operations over a “period of years.”

During the first two years under the contract, plaintiff renovated and expanded the operations center and hangar; established a first-class aircraft maintenance facility, flight school and fuel sales operation; and sold, chartered and rented aircraft on a 12-month basis. Plaintiff purchased 18 new and used airplanes, all of which were located at the airport. Plaintiff brought the U.S. National Glider Aerobatic Championships to the airport for two successive years. In addition, plaintiff was selected “for a repeat award of this important competition as a possible preview for the World Championships at a future date.”

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Cite This Page — Counsel Stack

Bluebook (online)
219 F.R.D. 457, 2003 U.S. Dist. LEXIS 23965, 2003 WL 23095997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barry-aviation-inc-v-land-olakes-municipal-airport-commission-wiwd-2003.