Those Amazing Performers LLC v. International Council of Air Shows
OPINION AND ORDER: Defendant's 50 motion to dismiss is GRANTED IN PART AND DENIED IN PART. It is GRANTED with respect to Count XIII but DENIED as to all other counts. Plaintiffs are ORDERED to join the FAA as a defendant to Count I of this law suit within twenty-eight days of the entry of this order. Alternatively, Plaintiffs may dismiss Count I of their complaint. Signed by Judge Joseph S Van Bokkelen on 9/25/2017. (jss)
United States District Court
Northern District of Indiana
THOSE AMAZING PERFORMERS LLC,
d/b/a Team AeroDynamix, MICHAEL
STEWART, DANNY KIGHT, ROBERT
GIBBONS, TAD SARGENT, and JOHN
INTERNATIONAL COUNCIL OF AIR
Civil Action No. 2:15-CV-273 JVB
OPINION AND ORDER
This matter is before the Court on the motion of International Council of Air Shows Inc.
(“ICAS”) to dismiss Plaintiffs’ complaint.
According to the complaint, Plaintiff Those Amazing Performers LLC, d/b/a Team
AeroDynamix (“AeroDynamix”) is an aerobatic team that performs ten-pilot routines at air
shows across the United States. The other plaintiffs— Michael Stewart, Danny Kight, Robert
Gibbons, Tad Sargent, and John Hornbeck— are pilots who were employed by AeroDynamix.
Stewart is the founder and team leader of AeroDynamix. In order to perform aerobatics at air
shows, each pilot must hold a certificate issued by the Federal Aviation Administration (“FAA”)
called a Statement of Aerobatic Competency (“SAC”) card.
Defendant International Council of Air Shows (“ICAS”) is a private not-for-profit
corporation to which the FAA has delegated authority to evaluate pilots under the FAA’s
Aerobatic Competency Evaluation (“ACE”) program and make recommendations to the FAA
regarding the issuance, re-evaluation, or rescission of SAC cards. ICAS has a Safety and
Operations Committee whose members are also members of air show teams that compete with
AeroDynamix. The ACE committee, a subcommittee of the Safety and Operations Committee, is
also composed of members of air show teams in competition with AeroDynamix. Plaintiffs assert
that these individuals had an economic interest in preventing AeroDynamix from performing at
air shows, such that allowing them to serve on ICAS committees with the power to regulate other
air show teams is a conflict of interest.
After an incident at an air show in Alabama in March 2015, involving two of
AeroDynamix’s pilots, a group of ICAS members investigated and recommended that ICAS’s
Safety and Operations Committee recommend to the FAA revocation of the SAC cards for all
ten AeroDynamix pilots, which the FAA did on April 10, 2015. Plaintiffs allege that ICAS’s
recommendation was unrelated to any genuine safety concerns regarding AeroDynamix’s pilots.
They further allege that re-evaluating the pilots and reissuing their SAC cards has been unduly
On April 17, 2015, ICAS began an additional investigation into the safety practices of
AeroDynamix, which Plaintiffs maintain was unjustified and unrelated to the safety practices of
AeroDynamix but instead undertaken as a pretext to prevent AeroDynamix from participating in
the air show industry. As part of this investigation, a Safety Review Committee, composed of
members of other air show teams in direct competition with AeroDynamix, investigated
AeroDynamix. Again Plaintiffs allege that the committee members’ economic interest in
preventing AeroDynamix from performing created a conflict of interest.
On June 17, 2015, ICAS issued a memorandum to the FAA with recommendations that
Plaintiffs allege were calculated to damage AeroDynamix’s business, including the
recommendation that AeroDynamix be restricted to flying an air show team of no more than four
pilots. The memorandum also criticized Stewart’s leadership of AeroDynamix and required
AeroDynamix pilots to execute an indemnification agreement as a condition of the re-issuance of
their SAC cards. The agreement required AeroDynamix’s pilots to indemnify ICAS members
for attorney’s fees and costs arising from any lawsuit brought because of ICAS’s evaluations of
AeroDynamix’s pilots and waive all of ICAS’s liabilities. Plaintiffs allege that the
recommendations in the June 17 memorandum were not related to any failure of AeroDynamix’s
pilots to adhere to existing safety procedures and were unreasonable and unjustified. The FAA
issued a memorandum on July 9, 2015, accepting the recommendations without substantial
Plaintiffs claim that ICAS’s recommendations to the FAA have deprived AeroDynamix
of the ability to fly in fifteen air shows during the 2015 season. Further, ICAS’s undue delay in
reissuing its pilots’ SAC cards has prevented AeroDynamix from scheduling air shows for the
2016 season and interfered with its business relationships with thirteen air show organizers.
In Count I of their complaint, Plaintiffs seek a declaratory judgment that the FAA’s
delegation of authority to ICAS is unconstitutional, that all ICAS’s policies, regulations, or other
findings are unconstitutional, and that ICAS’s recommendations to the FAA concerning
AeroDynamix and its pilots are unconstitutional, invalid, and no longer binding on them. Count
II seeks a declaration that the indemnity agreement is unconscionable. In Count III, Plaintiffs
claim tortious interference with contracts AeroDynamix had with air show organizers. Count IV
claims tortious interference with Plaintiffs’ business relationships with air show organizers.
Count V alleges that ICAS’s recommendations interfered with employment contracts between
AeroDynamix and four pilots who left the team.
Counts VI and VII allege that ICAS’s April 8, 2015, and June 17, 2015, memoranda to
the FAA are defamatory. Count VIII alleges that ICAS made defamatory statements to the air
show industry. Counts IX and X allege that the April and June 2015 memoranda constitute trade
Count XI alleges that various individuals who are competitors of AeroDynamix
conspired with ICAS to exclude AeroDynamix from the air show market under the guise of
enforcing FAA regulations, in violation of anti-trust laws. Count XII is a claim that ICAS’s
members conspired with it to monopolize the air show market, in violation of anti-trust laws.
Finally, in Count XIII, Plaintiffs claim that ICAS denied them due process by not giving
them a meaningful opportunity to be heard during its investigation.
ICAS first argues that this Court lacks subject matter jurisdiction over Plaintiffs’ claims
because they are collateral attacks on FAA administrative orders so that the exclusive forum to
assert such claims is the appropriate circuit court under 49 U.S.C. § 46110. But ICAS has not
provided the Court with any document that is even vaguely recognizable as an FAA order. It
claims that a July 9, 2015, letter from an FAA official to the president of ICAS (DE 52-4) is an
FAA order denying Plaintiffs’ appeals of the recision of their SAC cards. This letter is not
addressed to the Plaintiffs—they are not even listed as receiving copies—but instead is a
“request” from the FAA to ICAS that ICAS adopt and implement certain FAA recommendations
concerning AeroDynamix and its pilots. Nowhere does the letter mention the denial of any
appeal. The Court is unable to determine that Plaintiffs’ claims are inextricably intertwined with
an FAA communication that doesn’t even purport to be an order directed to them. Accordingly,
Plaintiffs’ complaint will not be dismissed for lack of subject matter jurisdiction.
ICAS argues that Count I of Plaintiffs’ complaint should be dismissed pursuant to
Federal Rule of Civil Procedure 12(b)(7) because the FAA is a required party under Federal Rule
of Civil Procedure 19 whose joinder in this litigation is not feasible. Plaintiffs’ only response is
that they are merely seeking a declaration that ICAS exceeded the scope of the authority granted
it by the FAA and that the FAA’s presence is not required for such a determination.
Despite Plaintiffs’ assertion to the contrary, Count I plainly challenges the
constitutionality of the FAA’s delegation of authority to ICAS. (See Compl., DE 46 at 11–12.
“Plaintiffs . . . prays [sic] that this Court enter judgment finding and declaring the following: (a)
That the FAA’s delegation of authority to ICAS is unconstitutional . . ..”) The Court is
convinced that the FAA is a required party with respect to Count I. However, ICAS has not
persuaded the Court that the FAA’s joinder is not feasible. In such circumstances, under Rule
19(a)(2), the Court must order that the FAA be made a party. Accordingly, the Court will order
Plaintiffs to join the FAA as a defendant in this law suit as to Count I within twenty-eight days
of the entry of this order. In the alternative, Plaintiffs may dismiss Count I from their complaint.
ICAS also claims that Counts XI and XII of Plaintiffs’ complaint must be dismissed
because ICAS is a federal instrumentality that is absolutely immune from antitrust liability. But
immunity is an affirmative defense and as such is ordinarily not proper for adjudication on a
motion to dismiss. Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004).
Moreover, Defendant simply has sufficiently explained the relationship between ICAS and the
FAA to decide at this stage of the litigation that ICAS is entitled to immunity as a federal
instrumentality. Therefore the Court will not dismiss Plaintiffs’ antitrust claims at this time.
Finally, ICAS seeks dismissal of Count XIII of Plaintiffs’ complaint, which is labeled a
due process claim. Plaintiffs have not responded to ICAS’s arguments. The only basis for their
claim against ICAS for damages for the violation of a federal constitutional right is the Bivens
doctrine, which is inapplicable to corporate defendants even if they are acting under color of
federal law. Muick v. Glenayre Electronics, 280 F.3d 741, 742 (7th Cir 2002). Thus, Count XIII
of the complaint will be dismissed.
For the foregoing reasons, Defendant’s motion to dismiss is GRANTED IN PART AND
DENIED IN PART. It is GRANTED with respect to Count XIII but DENIED as to all other
counts. Plaintiffs are ORDERED to join the FAA as a defendant as to Count I of this law suit
within twenty-eight days of the entry of this order. Alternatively, Plaintiffs may dismiss Count I
of their complaint.
SO ORDERED on September 25, 2017.
s/ Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge
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