Bullar et al v. Archway Skydiving Centre, Inc. et al

Filing 119

ORDER denying 78 Vandalia Municipal Airport's Motion to Dismiss for Failure to State a Claim. Signed by Judge Michael J. Reagan on 5/2/12. (caa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DARYL and GINA BULLAR, Co-Administrators of
the Estate of JONATHAN BULLAR,
Plaintiffs,
vs.
ARCHWAY SKYDIVING CENTER, INC., JASON
MARK, ANITA WUERTZ, SSK INDUSTRIES, INC.,
AIRTEC GmbH SAFETY SYSTEMS, VANDALIA
PARK DISTRICT, VANDALIA MUNICIPAL AIRPORT,
ARCHWAY EXPRESS, INC., and ADRENALINE
ALLEY, INC.,
Defendants.
SSK INDUSTRIES, INC.,
Counter Claimant,
vs.
DARYL and GINA BULLAR, Co-Administrators of
the Estate of JONATHAN BULLAR,
Counter Defendants.

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MEMORANDUM AND ORDER
REAGAN, District Judge:
A. Introduction
Plaintiffs, Daryl and Gina Bullar, Co-Administrators of the Estate of Jonathan
Bullar, filed this action against Defendants seeking damages for Jonathan’s death in a skydiving
accident. Jonathan fell to his death on October 9, 2010, when his main and reserve parachutes

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failed to deploy.

The action now proceeds on Plaintiffs’ Second Amended Complaint

(“Complaint”) (Doc. 76).
Defendant, Vandalia Municipal Airport (“Airport”), moves to dismiss Plaintiffs’
complaint, asserting that there is no legal entity known as the “Vandalia Municipal Airport”
(Doc. 78). Plaintiffs have filed their response (Doc. 86), so the matter is fully briefed and ready
for disposition.
B.

Applicable Legal Standards
Defendants seek dismissal of the claims brought against them under Federal

Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. A
12(b)(6) motion challenges the sufficiency of the complaint to state a claim upon which relief
can be granted. Hallinan v. Fraternal Order of Police Chicago Lodge 7, 570 F.3d 811, 820
(7th Cir.), cert. denied, 130 S. Ct. 749 (2009). The United States Supreme Court explained in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), that Rule 12(b)(6) dismissal is
warranted if the complaint fails to set forth “enough facts to state a claim to relief that is
plausible on its face.” In making this assessment, the District Court accepts as true all well-pled
factual allegations and draws all reasonable inferences in plaintiff’s favor. Rujawitz v. Martin,
561 F.3d 685, 688 (7th Cir. 2009); Tricontinental Industries, Inc., Ltd. v. PriceWaterhouse
Coopers, LLP, 475 F.3d 824, 833 (7th Cir.), cert. denied, 552 U.S. 824 (2007). See also Hemi
Group, LLC v. City of New York, 130 S. Ct. 983, 986-87 (2010)(“This case arises from a motion
to dismiss, and so we accept as true the factual allegations in the ... amended complaint.”).

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Even though Bell Atlantic retooled federal pleading standards, notice pleading
remains all that is required in a complaint. “A plaintiff still must provide only enough detail to
give the defendant fair notice of what the claim is and the grounds upon which it rests and,
through his allegations, show that it is plausible, rather than merely speculative, that he is
entitled to relief.” Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008). See also
Erickson v. Pardus, 551 U.S. 89, 93 (2007)(Rule 8 requires only a short and plain statement of
the claim showing that the pleader is entitled to relief; “Specific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the claim is and the grounds
upon which it rests.’”). But “surviving a Rule 12(b)(6) motion requires more than labels and
conclusions;” the allegations must “raise a right to relief above the speculative level.” Pugh v.
Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008). With these principles in mind, the Court turns to
the Airport’s motion to dismiss.
C.

Discussion
The Airport contends that Count 1 1 of Plaintiffs' Second Amended Complaint

fails to state a cause of action against it because there is no legal entity known as the Vandalia
Municipal Airport. The Airport submits that, in 1960, the Vandalia Park District received by
conveyance from the City of Vandalia real estate where an airport had been in place since
sometime in the 1930's on real estate owned by the City of Vandalia. The Park District has
permitted the presence of a fixed base operator at this location, but there has never been a
legal entity that identified itself as the Vandalia Municipal Airport.

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In support of its motion, the Airport provides the affidavits of Mark
Miller, President of the Vandalia Park District, and Ricky Gottman, Mayor of the City of
Vandalia, as well as a quit claim deed whereby the City conveyed to the Park District the real
estate where the Airport was located (Doc. 79, Exhs. 1, 2).
Plaintiffs respond that the Airport’s motion must be denied because it presents
materials outside the pleadings and because Plaintiffs have not had the opportunity to obtain
all material pertinent to the motion. Plaintiffs maintain that the Airport is a suable entity and
that, if this matter were converted to a motion for summary judgment, they would expect to
show that the Airport is insured, that license agreements exist involving use of the “Vandalia
Municipal Airport” and that various agencies have recognized the Airport and assigned it
location identifier codes, airport codes and location indicators.
As with the motions to dismiss previously denied by the Court (see Docs. 117,
118), when assessing a motion under Rule 12(b)(6), the Court is prohibited from viewing
materials “outside the pleadings” (including affidavits and exhibits not attached to or otherwise
made part of the complaint). Restating those rulings in brief, the Court notes that Federal Rule
of Civil Procedure 12(d) requires that extrinsic materials only be considered if the motion is
treated as one for summary judgment under Rule 56, with notice to the parties that the motion
will be construed as such plus an opportunity to brief the motion that way. FED. R. CIV. P. 12(d).
If outside materials are considered, the notice and briefing opportunity is mandatory. Loeb
Industries, Inc. v. Sumitomo Corp., 306 F.3d 469, 479 (7th Cir. 2002) (citation omitted).

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The Airport relies on extrinsic matters - affidavits and a quit claim deed - to show
that it is not a legal entity. But the Court cannot consider these documents without converting
the motion to dismiss into a motion for summary judgment, which would require giving notice
to Plaintiffs and allowing them an opportunity to present evidence.
Since the Airport’s motion was filed before it answered Plaintiffs’ complaint and
before a reasonable opportunity to conduct discovery had occurred, it would be premature to
convert the motion to dismiss into a motion for summary judgment.
Because the Court cannot consider the materials outside the pleadings upon
which the Airport’s motion to dismiss is grounded and because it would be premature to
convert the motion into a motion for summary judgment, the motion must be denied.
D.

Conclusion
For the foregoing reasons, the Court DENIES Vandalia Municipal Airport’s motion

to dismiss (Doc. 78).
IT IS SO ORDERED.
DATED this 2nd day of May, 2012

s/Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge

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