Those Amazing Performers LLC v. International Council of Air Shows

Filing 28

OPINION AND ORDER: Court DENIES 13 Motion to Remand to State Court. Signed by Judge Rudy Lozano on 3/31/2016. (tc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

THOSE AMAZING PERFORMERS, LLC,
d/b/a Team AeroDynamix,
Plaintiff,
vs.
INTERNATIONAL COUNCIL OF AIR
SHOWS, INC.,
Defendant.

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NO. 2:15-CV-273

OPINION AND ORDER
This matter is before the Court on the Motion to Remand to
State Court, filed by the plaintiff, Those Amazing Performers, LLC,
d/b/a Team AeroDynamix, on August 17, 2015.

(DE #13.)

For the

reasons set forth below, the motion is DENIED.

BACKGROUND
On or about June 17, 2015, the plaintiff, Those Amazing
Performers, LLC, d/b/a Team AeroDynamix (“AeroDynamix”), filed a
complaint

in

1506PL0048).

the

Lake

(DE #4.)

County

Indiana

Superior

Court

(45DO5

The complaint alleges claims of tortious

interference with a contract, defamation, defamation per se, libel,
and slander against the defendant, International Council of Air
Shows (“ICAS”).

(Id. at 1.)

AeroDynamix is described as a North

Carolina limited liability company with its principal place of
business in Gold Hill, North Carolina.

(Id. at 1.)

ICAS is

described as a not-for-profit corporation incorporated in the state
of Wisconsin with its principal place of business in Leesburg,
Virginia. (Id.) AeroDynamix, a formations aerobatic air show team
that performs choreographed flight routines in air shows throughout
the United States, consists of ten pilots,1 each of whom is
required

to

hold

special

certificates

issued

by

the

Federal

Aviation Administration (“FAA”) called Statements of Aerobatic
Competency cards (“SAC cards”).

(Id. at 2.)

All ten AeroDynamix

pilots passed their reevaluation and received a valid SAC card for
2015.

(Id.)

The

FAA

implemented

the

Aerobatic

Competency

Evaluation Program (“ACE program”) to regulate the issuance of SAC
cards, and it granted ICAS, a private corporation, the authority to
assist the FAA in evaluating pilots under the ACE program. (Id. at
2.)

According to the complaint, several of the ICAS members

responsible for making recommendations to the FAA regarding the
issuance, reevaluation, or rescission of SAC cards are direct
competitors of AeroDynamix, which creates a conflict because those
individuals

have

a

direct

economic

interest

in

preventing

AeroDynamix from performing in air shows across the country.

(Id.

at 2-4.)

1

The ten pilots are Mike Stewart, Greg Reese, John Hornbeck, Jerry
Morris, Tad Sargent, Tom Dubrouillet, Len Leggette, Danny Kight, Robert
Gibbons, and Martin Walker. (DE #4, p. 2.)

2

On March 29, 2015, two AeroDynamix pilots were involved in a
minor incident at an air show in Alabama.

(Id. at 4.)

A group of

ICAS

alleged

be

members,

including

some

members

to

direct

competitors of AeroDynamix, recommended that the FAA temporarily
revoke the SAC cards of all ten AeroDynamix pilots, and on April 8,
2015,

a

memorandum

inspector.

(Id.)

indicating

as

such

was

sent

to

the

FAA

On April 10, 2015, pursuant to the memorandum,

the FAA rescinded the SAC cards of all ten AeroDynamix pilots.
(Id. at 5.)

On April 29, 2015, nine of those pilots filed an

appeal of the FAA decision to the National Transportation Safety
Board; at the time of the filing of the complaint, the appeals were
still pending.

(Id.)

As a result of the rescission of the SAC cards, AeroDynamix
alleges that its pilots have been deprived of the ability to fly in
the following previously scheduled air shows:
•
•
•
•
•

Thunder Over Louisville in Louisville, Kentucky, on April 18,
2015
SUN ‘n FUN in Lakeland, Florida, from April 22 to April 26,
2015
Good Neighbor Day Air Shoe in Atlanta, Georgia, on May 20,
2015
Dover International Speedway in over, Delaware on May 31, 2015
Rockford Air Show in Rockford, Illinois, on June 6 and June 7,
2015

(Id. at 5-6.)

The complaint also indicates that the organizers of

the Cherry Festival Air Show in Traverse City, Michigan, “recently”
cancelled AeroDynamix’s performance.

(Id. at 6.)

According to

AeroDynamix, the unreasonable delay in re-issuing the SAC cards
further jeopardized the following scheduled air shows for 2015:
3

•
•
•
•
•
•
•
•
•

Gary South Shore Air Show in Gary, Indian on July 11, 2015
Milwaukee Air & Water Show in Milwaukee, Wisconsin, from July
25-26, 2015
Wings over Halls in Halls, Tennessee, on August 8, 2015
Chicago Air & Water Show in Chicago, Illinois, from August 1516, 2015
Lycoming County Balloonfest & Air Show in Williamsport,
Pennsylvania, on September 12, 2015
Memphis Air Show in Memphis, Tenessee, from September 26-27,
2015
Boshears Skyfest in Augusta, Georgia, from October 17-18, 2015
Blue Angels Homecoming Air Show in Pensacola, Florida, from
November 7-8, 2015
ICAS Convention in Ls Vegas, Nevada, from December 6-9, 2015

(Id.)
ICAS planned to release findings and recommendations from its
investigation into AeroDynamix on June 18, 2015;2 it is alleged
that those findings, which stem from a conflict of interest among
ICAS’s members who are direct competitors of AeroDynamix, were
designed to destroy AeroDynamix’s performances and severely and
irreparably

damage

its

business

reputation.

(Id.

at

6-7.)

According to the complaint, ICAS intentionally sought to injure
AeroDynamix through its allegedly improper recommendation to the
FAA for the rescission of the pilots’ SAC cards, effectively
crippling its ability to perform air shows.

(Id. at 7.)

AeroDynamix alleges that ICAS’s conduct interfered with the
contractual relationships of the organizers of the air shows
identified above, and it further alleges that ICAS’s statements,
documents, and memorandums – issued to the FAA and others with the

2

According to the complaint, the findings were to be released on June
18, 2015, one day after the complaint was filed in state court; the matter was
not removed to this Court until July 17, 2015. (DE #4, p. 7; DE #2.)

4

intent of damaging AeroDynamix’s reputation – were defamatory.
(Id. at 8-21.) As such, AeroDynamix requests compensatory damages,
all applicable exemplary and/or punitive damages, attorney fees,
costs, and injunctive relief.

(Id.)

On July 17, 2015, ICAS filed a notice of removal, stating its
basis for removal as diversity jurisdiction under 28 U.S.C. section
1332(a) and also pursuant to 28 U.S.C. section 1331 because the
claims

allegedly

preemption.

involve

(DE #2.)

issues

subject

to

federal

field

As to diversity jurisdiction, the notice

lists the citizenship of each member of AeroDynamix and concludes
that, because AeroDynamix is a limited liability company organized
and existing under the laws of North Carolina with its principal
place of business there as well, AeroDynamix is a citizen of the
states of North Carolina, South Carolina, and Georgia.

(Id. at 2-

3.) ICAS is described as a not-for-profit corporation incorporated
in the state of Wisconsin, with its principal place of business in
Virginia. The notice states that, based on the alleged contractual
interference with at least thirteen air shows, compensatory damages
alone are worth at least $104,000.

(Id. at 3.)

It arrives at this

number by noting that, upon information and belief, AeroDynamix is
paid at least $8,000 per show.

(Id.)

ICAS also points to the

allowance of punitive damages under Indiana law of up to the
greater of $50,000 or three times the amount of compensatory
damages awarded.

(Id. at 4; Ind. Code 34-51-3-4.)

Thus, it

states, in light of the fact that AeroDynamix has requested
5

compensatory
probability

and
that

punitive
the

damages,

amount

in

exclusive of costs and interest.

there

is

controversy

(Id.)

a

reasonable

exceeds

$75,000

In addition to diversity

jurisdiction, the notice also states that, although the claims in
the complaint are pled as state common law claims, they involve
actions taken by ICAS in its role as appointed by the FAA related
to aerobatic aviation safety, and are thus subject to and barred by
federal field preemption.

(Id.)

On August 17, 2015, AeroDynamix filed the instant motion to
remand

to

state

court,

arguing

that

there

is

no

diversity

jurisdiction because ICAS has failed to establish that the amount
in controversy at the time of removal exceeded $75,000. (DE #13 at
1.)

It also argues that ICAS’s federal field preemption argument

has no merit because AeroDynamix’s claims arise from state tort
law.

(Id. at 2.)

ICAS filed its response to the motion to remand

on August 31, 2015, setting forth its arguments related to field
preemption (DE #17, pp. 4-20) and diversity jurisdiction (Id. at
20-25).

In

support

of

its

contention

that

the

amount

in

controversy exceeds $75,000, ICAS has provided the affidavit of
John Cudahy (“Mr. Cudahy”), the president of ICAS, who indicates
that he has personal knowledge, based on his familiarity with the
air show industry, of the typical market rates for payment of
performance groups such as AeroDynamix.

(DE #18-1, p. 1.)

He

indicates that these types of groups are paid anywhere from $8,000
to $15,000 per show.

(Id.)

Mr. Cudahy also states that the annual
6

profit to ICAS from the ACE program was $70,470 for FY 2015, and he
anticipates that this profit will remain the same or increase in
future years.

(Id. at 2.)

Accordingly, Mr. Cudahy estimates that

a potential injunction enjoining ICAS from communicating to the FAA
under the ACE program would likely cost ICAS in excess of $70,000
per year.

(Id.)

Plaintiff filed its reply in support of the

motion to remand on September 8, 2015, reiterating its position
that federal field preemption does not apply because ICAS has
misinterpreted the nature of AeroDynamix’s tort claims (DE #19, pp.
2-15)

and

arguing

that

ICAS

did

not

meet

its

burden

in

demonstrating that the amount in controversy has been satisfied
(Id. at 15-21).

After being granted leave to do so, ICAS filed a

supplemental brief in opposition to AeroDynamix’s motion to remand
on October 5, 2015, arguing for the first time that this Court also
has jurisdiction pursuant to 29 U.S.C. section 1331 because ICAS
was acting as a federal officer and has a colorable federal defense
which makes removal proper under the federal officer removal
statute as set forth at 28 U.S.C. section 1442(a)(1).

(DE #25.)

AeroDynamix filed its response to the supplement on October 6,
2015.

(DE #26.)

Thus, the motion is ripe for adjudication.

DISCUSSION
A case may be removed from state court to federal court if it
is based on statutorily permissible grounds and if it is timely.
Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004).
7

See also 28 U.S.C. § 1441; 28 U.S.C. § 1446.

The Seventh Circuit

has directed that, “[c]ourts should interpret the removal statute
narrowly and presume that the plaintiff may choose his or her
forum.

Any doubt regarding jurisdiction should be resolved in

favor of the states, and the burden of establishing federal
jurisdiction

falls

on

the

party

seeking

removal.”

Doe

v.

Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993) (citations
omitted).

The party seeking removal must demonstrate that removal

is proper.

Boyd, 366 at 529.

When challenged, the party seeking

federal jurisdiction bears the burden of proving by a preponderance
of the evidence that a case belongs in federal court.

Meridian

Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540-43 (7th Cir. 2006).

Diversity Jurisdiction
A case may be properly removed from state court to federal
court on the basis of diversity jurisdiction.

28 U.S.C. § 1332.

For diversity jurisdiction to exist, the parties are required to be
diverse of citizenship, and the matter in controversy must exceed
the sum or value of $75,000.

28 U.S.C. § 1332(a).

Here, the

parties’ diversity of citizenship is not at issue. (DE #13, p. 1.)
Rather, the dispute focuses on the amount in controversy.

The

proponent of federal jurisdiction bears the burden of proof that a
claim meets the jurisdictional amount.

Sadowski, 441 F.3d at 541.

In satisfying this burden, a “party must do more than point to the
theoretical

availability

of

certain
8

categories

of

damages.”

McMillian v. Sheraton Chicago Hotel & Towers, 567 F.3d 839, 844-45
(7th Cir. 2009) (internal quotations omitted). However, “[t]hat is
easier said than done when the plaintiff, the master of the
complaint, does not want to be in federal court and provides little
information about the value of her claims.

In such a case, a

good-faith estimate of the stakes is acceptable if it is plausible
and supported by a preponderance of the evidence.”

Oshana v.

Coca-Cola Co., 472 F.3d 506, 511 (7th Cir. 2006) (citing Rubel v.
Pfizer, Inc., 361 F.3d 1016, 1020 (7th Cir. 2004)).

Once the

removing party has established the requisite amount in controversy,
the case must be remanded “only if it is legally certain that the
recovery (from the plaintiff’s perspective) or cost of complying
with the judgment (from the defendant’s) will be less than the
jurisdictional floor . . . .”

LM Insurance Corp. v. Spaulding

Enterprises Inc., 533 F.3d 542, 547 (7th Cir. 2008).

The Seventh

Circuit has emphasized that this “legal-certainty test sets the bar
high for excluding federal subject-matter jurisdiction.”
v. Stryker Corp., 658 F.3d 675, 681 (7th Cir. 2011).

Carroll

If a party

definitively wishes to prevent removal, he may stipulate to damages
not exceeding $75,000.

Oshana, 472 F.3d at 511-12; see also In re

Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) (“Litigants who
want

to

prevent

removal

must

file

a

affidavit with their complaints . . . .”)

binding

stipulation

or

If a plaintiff does not

do so, “the inference arises that he thinks his claim may be worth
more.”

Oshana, 472 F.3d at 512 (citation omitted).
9

In its motion to remand, AeroDynamix argues that ICAS’s notice
of removal contains only a “speculative statement” that the amount
in controversy could exceed $75,000 because it “simply attaches an
arbitrary

monetary

amount

to

each

air

show

in

which

Team

AeroDynamix was prevented from performing” and that ICAS “simply
invented the values it discusses in its notice of removal.”

In

response, ICAS has submitted the affidavit of Mr. Cudahy who stated
that he has personal knowledge, based on his familiarity with the
air show industry, of the typical market rates for payment of
performance groups such as AeroDynamix, which range from $8,000 to
$15,000 per show.

ICAS notes that AeroDynamix has specifically

requested both compensatory as well as punitive damages (which may
be awarded at up to three times the amount of compensatory damages
awarded for the predicate tort), and, as such, the compensatory
damages would need only be in excess of $18,750 total (or $1,250
per identified contract) to reach the $75,000 threshold.

Because

the typical market rate for performance groups per show is $8,000
at the low end of the range, ICAS argues that the minimum threshold
will be satisfied.
The Court agrees with ICAS that it cannot be said with
certainty that AeroDynamix’s damages will not meet the threshold
amount.

Although AeroDynamix has argued in its reply brief that

ICAS has failed to carry its burden in demonstrating that the
amount

in

controversy

has

been

satisfied

because

it

“simply

look[ed] to the allegations of the complaint and the defendant’s
10

belief regarding those allegations,” the Court disagrees.

In

Kuhlman v. Walgreen Co., 2:10-CV-84, 2010 WL 1737849 (N.D. Ind.
Apr. 26, 2010), a case on which AeroDynamix heavily focuses, this
Court determined that the defendant’s reliance on the general
allegations
establish

of

the

the

plaintiff’s

requisite

complaint

amount

in

2:10-CV-84, 2010 WL 1737849 at *4.
complaint

had

only

indicated

that

was

insufficient

controversy.

to

Kuhlman,

The Court noted that the
the

plaintiff

was

seeking

“compensatory damages for injures ‘some of which are permanent,’
[and] ‘loss of earnings and of future earning’ due to a metal shelf
falling onto [the plaintiff]”

Id.

Other than a few terms of art

included in the complaint, the Court was “largely in the dark as to
the nature and extent of Plaintiff’s claimed injuries and required
treatment.”

Id.

The present case is distinguishable from Kuhlman in two
significant ways.

First, AeroDynamix’s complaint is sufficiently

detailed with regard to its alleged damages.

AeroDynamix alleges

that, as a result of ICAS’s defamatory transmissions and tortious
interference with its contracts, it was deprived of the ability to
fly in six air shows, with another nine air shows placed into
jeopardy.
included
contracts,

While it is true that numerical figures were not
with
this

each
is

of
a

the

far

fifteen

cry

from

specifically
generally

“permanent injuries” or a “loss of earnings.”

identified

alleging

vague

AeroDynamix did not

choose to reference harms from tortious interference generally.
11

Rather, it painstakingly listed fifteen specific instances wherein
it was harmed contractually and requested compensatory and punitive
damages for each (and, this is to say nothing of the five separate
defamation counts).

As noted by this Court, “[w]hile relying on

general allegations of a complaint is insufficient to establish
jurisdiction, reliance on specific allegations in a complaint can
be sufficient to satisfy a removing party’s burden.”

Kuhlman,

2:10-CV-84, 2010 WL 1737849 at *3.
Which brings us to the second difference between the instant
case and Kuhlman.
described

within

pleadings

and

references.

Here, in addition to pointing to the damages
the

complaint,

provided

ICAS

evidence

looked

to

further

outside
quantify

of

the

those

The Seventh Circuit has explicitly stated that, in

attempting to establish the amount in controversy, a defendant may
rely on calculations from the complaint’s allegations as well as
“introduc[e]

evidence,

in

the

form

of

affidavits

from

the

defendant’s employees or experts, about how much it would cost to
satisfy the plaintiff’s demands.”

Sadowski, 441 F.3d at 541-42

(citing Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 447
(7th Cir. 2005); Rubel, 361 F.3d at 1018-19). That is exactly what
ICAS did.

Mr. Cudahy’s affidavit provides the necessary link

towards establishing how much the allegations in the complaint are
worth.

AeroDynamix argues that the affidavit “arbitrarily values”

its air show performances in a manner that is unacceptable for
establishing the amount in controversy.
12

However, as noted above,

an affidavit by the defendant’s employee is an adequate method of
doing so.

This is distinguishable from Kuhlman, where the Court

discounted the affidavit of the party’s attorney who had attempted
to “employ a sort of comparative analysis” by generally claiming
that, “compared to other cases with similar claims, the instant
allegations are enough to satisfy the amount in controversy.”
Kuhlman, 2:10-CV-84, 2010 WL 1737849 at *4.

In this case, Mr.

Cudahy has stated, based on his own personal knowledge of the
industry, that the typical market rates for performance groups such
as AeroDynamix range from $8,000 to $15,000 per performance.

ICAS

is not attempting to use Mr. Cudahy’s affidavit to comparatively
analyze this case to other cases with similar claims; it is using
Mr. Cudahy’s figures to provide a valuation of the exact types of
contracts relevant to this particular case.

AeroDynamix does not

dispute the factual assertions made by Mr. Cudahy or provide any
evidence of its own.

It simply takes issue with ICAS’s general

methodology. But, for the reasons outlined above, this Court finds
ICAS’s methodology acceptable for providing a good-faith estimate
of the damages at stake.
AeroDynamix also argues briefly that ICAS’s estimate is based
off of an improper measurement of damages because, under Indiana
law, recoverable damages are measured by lost profits, not lost
income.

See e.g. Turbines, Inc. v. Thompson, 684 N.E.2d 254, 257-

58 (Ind. Ct. App. 1997).

While this is true, ICAS is not using the

$8,000 to $15,000 figure to arrive at its jurisdictional threshold
13

total as AeroDynamix suggests; rather, it uses the extremely
conservative calculation of $1,250 per show, and then (as is
allowable) adds punitive damages of three times the amount of
compensatory damages.3

Based on Mr. Cudahy’s affidavit testimony

that

rates

typical

market

for

performance

groups

such

as

AeroDynamix are in the range of between $8,000 to $15,000, ICAS’s
estimate is both plausible and supported by a preponderance of the
evidence.

See Oshana, 472 F.3d at 511.

See also Columbus Med.

Servs. Org., LLC v. Liberty Healthcare Corp., 911 N.E.2d 85, 96
(Ind. Ct. App. 2009) (identifying tortious interference with a
contract as a tort where “all damages [that are] directly traceable
to

the

wrong

and

arising

without

an

intervening

agency

are

recoverable” including lost profits; finding that, as to such
damages, there is “no requirement of any particular degree of
mathematical certainty in assessing damages, and where there is any
doubt as to the exact proof of damages, such uncertainty must be
resolved against the wrongdoer.”) (internal quotation marks and
citations omitted).
Based

on

the

foregoing,

the

Court

finds

that

ICAS

has

established the requisite amount in controversy by a preponderance
of the evidence, and it cannot be said with legal certainty that
AeroDynamix’s recovery will be less than the jurisdictional floor.

3

$1,250 per show x 15 shows = $18,750. $18,750 + (3 x $18,750) =
$75,000. Thus, Aerodynamix’s lost profits would need only be $0.01 over the
$1,250 per show figure that ICAS uses to establish the requisite
jurisdictional minimum.

14

See LM Insurance Corp., 533 F.3d at 547. Therefore, ICAS’s removal
to federal court on the basis of diversity grounds was appropriate,
and subject matter jurisdiction exists in this case.

Because

diversity jurisdiction exists, the Court need not address ICAS’s
additional arguments with regard to federal field preemption at
this time.

CONCLUSION
For the reasons set forth above, the Motion to Remand to State
Court, filed by the plaintiff, Those Amazing Performers, LLC, d/b/a
Team AeroDynamix, on August 17, 2015 (DE #13), is DENIED.

DATED: March 31, 2016

/s/RUDY LOZANO, Judge
United States District Court

15