Pan American v . Pease, et a l . CV-03-093-M 10/29/03 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Pan American Airways Corp. and Arlington Leasing, Inc., Plaintiffs
v. Civil N o . 03-93-M Opinion N o . 2003 DNH 186 Pease Development Authority, William Bartlett, Jr., Peter Loughlin, Robert Allard, Margaret Lamson, Arthur Nickless, Jr., Robert Preston, John Bohenko, Executive Hangar, LLC, Airbill, Inc., High Tech Hangar Corp., High Tech Aircraft Corp., and TXB Corp., Defendants
O R D E R
Pan American Airways Corp. (“Pan Am”) brings this action
against Pease Development Authority and its individual members
(collectively, “PDA”), seeking damages for alleged violations of
its constitutionally protected right to equal protection. See
generally 42 U.S.C. § 1983. Pan Am also advances several state
common law causes of action against PDA, as well as Executive
Hangar, LLC, two of Executive’s members, and those members’
subsidiaries (collectively, “Executive”), over which it asks the
court to exercise supplemental jurisdiction. Defendants move to dismiss all claims set forth in Pan Am’s complaint. Pan Am
objects.
Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must “accept as true the well-pleaded factual
allegations of the complaint, draw all reasonable inferences
therefrom in the plaintiff’s favor and determine whether the
complaint, so read, sets forth facts sufficient to justify
recovery on any cognizable theory.” Martin v . Applied Cellular
Tech., Inc., 284 F.3d 1 , 6 (1st Cir. 2002). Dismissal is
appropriate only if “it clearly appears, according to the facts
alleged, that the plaintiff cannot recover on any viable theory.”
Langadinos v . American Airlines, Inc., 199 F.3d 6 8 , 69 (1st Cir.
2000). See also Gorski v . N.H. Dep’t of Corr., 290 F.3d 466, 472
(1st Cir. 2002).
Notwithstanding this deferential standard of review,
however, the court need not accept as true a plaintiff’s bald
assertions or conclusions of law. See Resolution Trust Corp. v .
Driscoll, 985 F.2d 4 4 , 48 (1st Cir. 1993) (“Factual allegations
2 in a complaint are assumed to be true when a court is passing
upon a motion to dismiss, but this tolerance does not extend to
legal conclusions or to ‘bald assertions.’”) (citations omitted).
See also Chongris v . Board of Appeals, 811 F.2d 3 6 , 37 (1st Cir.
1987).
Background
Accepting the allegations set forth in Pan Am’s complaint as
true, the material facts are as follows.
Pease Development Authority was created pursuant to N.H.
Rev. Stat. Ann. (“RSA”) 12-G to “ensure the proper planning and
optimal use of” the land and airport facility located at the
former Pease Air Force Base, now known as the Pease International
Tradeport (the “Airport”). RSA 12-G:1. PDA is governed by a
board of directors comprised of seven members, RSA 12-G:4, and is
“a public instrumentality,” exercising authority that, by
statute, is deemed to be “the performance of public and essential
governmental functions of the state,” RSA 12-G:3 I . In the
parlance of constitutional tort law, then, PDA is a “state
actor.”
3 In February of 1997, PDA sublet a tract of land at the
Airport to Tyco International Ltd. Under that lease, Tyco was
permitted to construct an aviation fuel storage facility and
corporate aircraft hangar. Tyco was also authorized to fuel
aircraft and support vehicles owned or operated by i t , subject to
the provisions of various regulations implemented by PDA.
Approximately nine months later, PDA adopted “Minimum
Standards for Commercial and Noncommercial General Aviation
Operators” at the Airport. See Complaint, Exhibit A . Among
other things, those Minimum Standards were adopted in an effort
to ensure that “general aviation activities at the Airport are
conducted in a safe, fair, and equitable manner, in accordance
with PDA, state, and federal standards.” Id. at para. 1.01.
The Minimum Standards distinguish between “Noncommercial
Operators” and “general aviation Commercial Operators.” Among
other restrictions imposed upon Noncommercial Operators is the
provision that they may not “acquire, store, or dispense fuel in
connection with the operation of Aircraft other than the Aircraft
owned, leased, or otherwise operated by the Noncommercial
4 Operator.” Minimum Standards at para. 5.02(b) (emphasis
supplied). In other words, Noncommercial Operators are not
permitted to sell aviation fuel to third parties, but they are
permitted to “self-fuel.” Commercial Operators, on the other
hand, are not permitted to self-fuel. Consequently, unless a
Commercial Operator wishes to purchase aviation fuel from a
third party, it may self-fuel only if it first meets the Minimum
Standards’ requirements applicable to Full-Service Fixed Base
Operators (“FBO’s”). FBOs are entities authorized to store and
sell aviation fuel.1
In 1998, Pan Am sought permission from PDA to fuel its own
aircraft at the Airport. At the time, Tyco had already been
granted the right to “supply its own fuel from a fuel storage
facility located on the Premises and to fuel aircraft and
accessory equipment or vehicles owned or operated” by Tyco.
Complaint, Exhibit B , Sublease Between PDA and Tyco International
at para. 9.10. Nevertheless, Pan Am says PDA told it that,
1 The Minimum Standards define “Full-Service Fixed Base Operator” as a “general aviation Commercial Operator that is required to offer for sale to the public a range of basic and essential general aviation services and products.” Id. at para. 1.02(j) (emphasis in original).
5 pursuant to the recently-enacted Minimum Standards, only FBO’s
were permitted to dispense fuel at the Airport and that PDA had
denied similar requests from other entities seeking permission to
“self-fuel.” In reliance upon those representations, Pan Am says
it purchased the existing FBO at the Airport and created “Pan Am
Services” to provide the services required of FBO’s by the
Minimum Standards (e.g., general aviation fuel and oil sales,
aircraft deicing, aircraft recovery, e t c . ) .
Initially, Pan Am services provided aviation fuel to its own
aircraft and sold fuel to other aircraft at the Airport,
including three planes owned and/or operated by Airbill, High
Tech Aircraft, and Tyco Healthcare. Subsequently, however, Tyco
Healthcare and the parent companies of Airbill (TXB Corp.) and
High Tech Aircraft (High Tech Hangar) formed Executive. In
February of 2003, with PDA’s approval, Tyco International
assigned its sublease to Executive. Accordingly, Executive
acquired Tyco International’s contractual right (which pre-dated
the adoption of the Minimum Standards) to store aviation fuel at
the Airport and to self-fuel its aircraft. See Complaint,
Exhibit B at para. 9.10. Shortly thereafter, Executive began
6 providing fuel (from its own on-site storage facility) to the
three planes which had previously purchased fuel from Pan Am.
In March of 2003, Pan Am filed this action, claiming that
Executive had dispensed fuel to Airbill, High Tech Aircraft, and
Tyco Healthcare nine times during the previous month. It claims,
among other things, that, by requiring Pan Am to meet the
requirements of an FBO in order to dispense fuel at the Airport
(rather than honoring its request to self-fuel), while permitting
Executive to dispense fuel without meeting those requirements,
PDA violated Pan Am’s constitutionally protected right to equal
protection. Specifically, Pan Am claims that by permitting
Executive:
to store aviation fuel and dispense it to aircraft other than those owned, leased, or operated by [ i t ] , without becoming an FBO and assuming the significant additional obligations of an FBO, in violation of the Minimum Standards promulgated by PDA, PDA and its individual members, acting under color of state law, intentionally and/or purposefully discriminated against Pan Am and Pan Am Services as a similarly-situated dispenser of aircraft fuel, thereby . . . denying Pan Am and Pan Am Services equal protection of the law in violation of the Fourteenth Amendment.
7 Complaint at para. 3 4 . In short, Pan Am claims PDA discriminated
by enforcing the Minimum Standards against i t , while allowing
Executive to operate without regard to those standards, and/or by
denying Pan Am’s request to self-fuel, while permitting Executive
to do just that.
Discussion
I. Pan Am’s Equal Protection Claim.
Pan Am is a commercial airline which, among other things,
transports members of the general public for a fee. It i s ,
therefore, a “Commercial Operator,” as that term is used in the
Minimum Standards. Id. at para. 1.02(e). Unlike Executive, Pan
Am is not a “Noncommercial Operator,” which is defined as “an
entity or governmental agency which maintains a facility or
provides a general aviation service solely for its own benefit,
and not for the benefit of the public.” Id. at para. 1.02(r)
(emphasis supplied). Consequently, pursuant to the Minimum
Standards, Pan Am could not avail itself of the “self-fueling”
option made available exclusively to Noncommercial Operators.
See id. at para. 5.02(b).
8 S o , if Pan Am wished to operate a commercial aviation
enterprise from the Airport, it faced a choice: either become an
FBO and acquire the right to self-fuel (as well as the right and
obligation to sell aviation fuel to third parties); or purchase
fuel from an existing FBO. It chose the former, presumably
concluding that it was the most cost-effective option. Pan Am
now complains that, having expended the substantial sums
necessary to obtain and operate an FBO, PDA is discriminating
against it by allowing Executive to fuel aircraft it (allegedly)
neither owns nor operates, and without having been required to
meet the eligibility requirements of an FBO.
Central to Pan Am’s claim is the assertion that Executive (a
limited liability corporation) is legally distinct from its
individual members. Consequently, says Pan Am, Executive does
not “own or operate” the aircraft owned or operated by its
members (or those members’ subsidiaries). It follows, then, that
Pan Am claims Executive is not “self-fueling” those aircraft, but
is instead storing and providing fuel for aircraft owned by third
parties, in violation of the Minimum Standards (which permit only
9 FBO’s to store and provide fuel for aircraft owned or operated by
third parties). See Complaint at para. 3 0 .
To state a viable claim that it was denied equal protection,
Pan Am must allege that it “has been intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Village of
Willowbrook v . Olech, 528 U.S. 5 6 2 , 564 (2000). See also Hoffman
v . City of Warwick, 909 F.2d 6 0 8 , 621-22 (1st Cir. 1990) (“Where
a statutory scheme adopts a classification that neither burdens a
suspect class nor impinges on a fundamental right, the
classification will withstand an Equal Protection challenge if it
is rationally related to a legitimate state purpose.”)
Additionally, Pan Am’s complaint must, at a minimum, articulate
some “motive to explain why [PDA] would treat [it] arbitrarily or
irrationally.” Donovan v . City of Haverhill, 311 F.3d 7 4 , 77
Pan Am’s complaint fails to articulate a viable equal
protection claim because, among other things, it fails to
adequately allege that PDA treated it and a “similarly situated”
10 entity differently. Pan Am is a commercial airline, which
maintains a fleet of aircraft and support vehicles, and (both
directly and through its affiliates) operates numerous domestic
and international flights for fee-paying members of the public.
Executive, on the other hand, is a “Noncommercial Operator,”
which maintains and operates (through its members and their
subsidiaries) three non-commercial airplanes.
Notwithstanding its claims to the contrary, it is not
sufficient for Pan Am to focus exclusively on the fact that both
it and Executive store and dispense aviation fuel at the Airport.
That superficial similarity in one aspect of their activity
simply does not make the two entities “similarly situated” for
purposes of the Equal Protection Clause. As the Court of Appeals
for this circuit has observed, “The formula for determining
whether individuals or entities are ‘similarly situated’ for
equal protection purposes is not always susceptible to precise
demarcation.” Barrington Cove LP v . R.I. Hous. & Mortg. Fin.
Corp., 246 F.3d 1 , 8 (1st Cir. 2001). Nevertheless, the court
has articulated a generalized test to determine whether two
entities are “similarly situated.”
11 [Plaintiffs’] obligation [is] to identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently, instances which have the capacity to demonstrate that the [plaintiffs] were singled out for unlawful oppression. . . . The test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated. Much as in the lawyer’s art of distinguishing cases, the “relevant aspects” are those factual elements which determine whether reasoned analogy supports, or demands, a like result. Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared to apples.
Dartmouth Review v . Dartmouth College, 889 F.2d 1 3 , 19 (1st Cir.
1989) (emphasis supplied) (citations and internal punctuation
omitted).
Here, rather than comparing apples to apples, Pan Am seeks
to compare “plums to pomegranates.” Perex-Guzman v . Gracia,
F.3d __, 2003 WL 2230926 at *11 (1st Cir. Oct. 9, 2003). The
vast differences between Executive and Pan Am render untenable
any effort to assert that those entities are, for Equal
Protection purposes, “similarly situated.”
12 Moreover, even if Pan Am and Executive could be said to be
“similarly situated” insofar as they both store and dispense
aviation fuel at the Airport, nothing in Pan Am’s complaint
suggests that PDA lacked a rational basis for treating Commercial
Operators and Noncommercial Operators differently. And, more
specifically, Pan Am’s complaint fails to suggest that PDA’s
decision to permit Executive to store and dispense fuel
(exclusively to aircraft owned or operated by i t , its members, or
their subsidiaries) lacked a rational basis. In light of the
Minimum Standard’s “Statement of Purpose,” id. at para. 1.01, it
is not irrational for PDA to establish different standards and
rules of conduct for Commercial Operators and Noncommercial
Operators. It i s , for example, entirely reasonable for PDA to
demand that those entities using the Airport for commercial gain
dedicate greater resources to improve the Airport facility and
assist in making general aviation support services available to
others using that facility (e.g., ground handling, aircraft
recovery and deicing, e t c . ) . That rational distinction drawn
between Commercial Operators and Noncommercial Operators is
enough to defeat Pan Am’s claim. See, e.g., Starlight Sugar,
Inc. v . Soto, 253 F.3d 1 3 7 , 146 (1st Cir.) (“Given the
13 [challenged regulation’s] stated purpose . . . , and the
specifications throughout that appear to intend to further that
goal, it is at least ‘plausible’ that [the regulation] is
rationally related to health and safety considerations. Since
equal protection analysis does not subject legislative choice to
courtroom factfinding, and a court may uphold such legislation on
the basis of rational speculation unsupported by evidence or
empirical data, we need go no further.”) (citations and internal
punctuation omitted), cert. denied, 534 U.S. 1021 (2001). See
also Dandridge v . Williams, 397 U.S. 4 7 1 , 485 (1970) (“a State
does not violate the Equal Protection Clause merely because the
classifications made by its laws are imperfect. If the
classification has some ‘reasonable basis,’ it does not offend
the Constitution simply because the classification is not made
with mathematical nicety or because in practice it results in
some inequality.”) (citation and quotation marks omitted).
Even aside from the fact that Executive, unlike Pan Am, is a
Noncommercial Operator, Executive also succeeded to the
contractual rights of Tyco International (which rights predated
Pan Am’s establishment of a presence at the Airport). Those
14 contractual rights allowed Executive to maintain and operate a
fuel storage facility located on a portion of the Airport
property. Again, those pre-existing contractual rights to store
and, on a limited basis, dispense aviation fuel, provide PDA with
an additional rational basis to treat Executive and Pan Am
differently.
Finally, to the extent Pan Am might be basing its Equal
Protection claim on an assertion that PDA inequitably (or
selectively) enforced the Minimum Standards by allowing Executive
(a Noncommercial Operator) to provide aviation fuel to aircraft
it (allegedly) neither owns nor operates (i.e., the aircraft
owned by Executive’s members and their subsidiaries), that claim
fails as well. As the court of appeals has made clear,
“departures from administrative procedures established under
state law or the denial of a permit based on reasons illegitimate
under state law, do not normally amount to a violation of the
[plaintiff’s] federal constitutional rights.” PFZ Properties,
Inc. v . Rodriguez, 928 F.2d 2 8 , 32 (1st Cir. 1991). In other
words, that Pan Am disagrees with PDA’s apparent view that
Executive “owns or operates” the three airplanes at issue
15 (thereby allowing Executive, under the Minimum Standards, to
self-fuel those p l a n e s ) , does not give rise to a viable claim
that PDA has deprived Pan Am of its constitutionally protected
right to equal protection.
II. Pan Am’s State Law C l a i m s .
In counts two through five of its complaint, Pan Am advances
several state common law c l a i m s , over which it asks the court to
exercise supplemental jurisdiction. Complaint at p a r a . 1 7 . See
also 2 8 U.S.C. § 1 3 6 7 . Section 1367 provides that the court may
decline to exercise supplemental jurisdiction over a plaintiff’s
state law claim w h e n :
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). To assist district courts, the Court of
Appeals for the First Circuit has identified the following
16 additional factors that should be considered when determining
whether to exercise supplemental jurisdiction over state law
claims: (1) the interests of fairness; (2) judicial economy; (3)
convenience; and (4) comity. See Camelio v . American Fed’n, 137
F.3d 666, 672 (1st Cir. 1998). With regard to principles of
fairness and comity, the Supreme Court has observed:
Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.
United Mine Workers v . Gibbs, 383 U.S. 715, 726 (1966) (footnote
Given that this case is “at an early stage in the
litigation,” Camelio, 137 F.3d at 6 7 2 , and in the interests of
both comity and fairness to the parties, the court declines to
exercise supplemental jurisdiction over the state law claims in
counts two through five of Pan Am’s complaint.
17 Conclusion
Pan Am’s complaint fails to adequately allege: (1) that Pan
Am and Executive are “similarly situated” for purposes of an
Equal Protection claim; or (2) that PDA lacked a rational basis
to treat those two entities differently. Accordingly, Pan Am’s
Equal Protection claim must be dismissed. See e.g., Campagna v .
Mass. Dep’t of Envtl. Prot., 334 F.3d 1 5 0 , 156-57 (1st Cir. 2003)
(affirming dismissal of equal protection claim on grounds that
complaint failed to adequately allege that plaintiff was treated
differently from others who were “similarly situated”); Hoffman,
909 F.2d at 622 (affirming dismissal of plaintiffs’ equal
protection claims because, among other things, “the
classification at issue reflects . . . rational considerations”).
For the foregoing reasons, and for the reasons set forth in
defendants’ memorandum in support of their motion to dismiss, the
court holds that Pan Am’s complaint fails to adequately allege
the essential elements of a viable Equal Protection claim.
Defendants’ motion to dismiss (document n o . 5 ) i s , therefore,
granted in part and denied in part. Count one of Pan Am’s
complaint is dismissed for failure to state a viable claim. With
18 regard to Pan Am’s state law claims, the court declines to
exercise supplemental jurisdiction and those claims (counts two
through five) are dismissed without prejudice.
The Clerk of Court shall enter judgment in accordance with
this order and close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
October 2 9 , 2003
cc: R. Matthew Cairns, Esq. Daniel J. Mullen, Esq. Roscoe Trimmier, Jr., Esq.