Davis v. Horry County Council et al

Filing 237

ORDER: Defendant FAA's Motion to Dismiss, ECF No. 212 , is GRANTED, and all claims against Defendant FAA and the Individual Federal Defendants, in their official capacity, (by and through the United States of America) are dismissed with prejudice. Signed by the Honorable Donald C Coggins, Jr on 07/23/2019. (lsut, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Michael Davis, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
Horry County Council, et al.,
)
)
Defendants. )
________________________________ )

Case No. 4:17-cv-391-DCC

OPINION AND ORDER

This matter is before the Court on the Motion to Dismiss filed by Defendant Federal
Aviation Administration. ECF No. 212. Plaintiffs filed a Response in Opposition, and the
Defendants filed a Reply. ECF Nos. 221, 224. Accordingly, the Motion is ripe for
consideration.
FACTUAL HISTORY1
Plaintiffs are eleven individuals who claim prior employment with, or ownership of,
the business Skydive Myrtle Beach. In March 2012, Plaintiffs made plans to open Skydive
Myrtle Beach, Inc. "to provide recreational skydiving activities at the Grand Strand
Regional Airport ["the Airport"] in Myrtle Beach, South Carolina, which is owned by Horry
County." ECF No. 207 at 5. During this period of time, the Airport was operated by Grand
Strand Aviation, Inc., and was known as "Ramp 66." Id. at 6. Ramp 66 and the Horry
County Department of Airports agreed to allow Skydive Myrtle Beach, Inc. to carry out
recreational skydiving activities at the Airport. Despite this agreement, Robinson Aviation,
Inc., which was under contract to provide air traffic control and tower services to the

1

In light of the procedural posture of the case, the Court views the allegations of the
Second Amended Complaint in the light most favorable to the Plaintiffs.
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Airport, "initially balked" at permitting recreational skydiving, "stating that it was Robinson
Aviation's policy not to allow skydiving at any of the airports at which Robinson provides
tower management." Id. "Eventually, however, Robinson Aviation was required to back
down since the Federal Aviation Authority ["FAA"] controls skydiving, and Robinson
Aviation could not determine federal law on its own." Id.
On May 10, 2012, Skydive Myrtle Beach signed an eight-year lease with Ramp 66
"and also executed a Letter of Agreement with Ramp 66, the Airport tower, and the Horry
County Department of Airports." Id. However, these parties never briefed Plaintiffs on
the Airport's Landing Operations Area ("LOA") or provided Plaintiffs with an official airport
operation brief. Id. From April to May 2012, Skydive Myrtle Beach "gained access and
commenced skydiving." Id. On March 21, 2013, Horry County announced that it was
resuming control of the Airport from Ramp 66. Id. Starting in May 2013, Ramp 66
attempted to make Skydive Myrtle Beach sign a new lease due to Horry County's takeover
of the Airport, but Skydive Myrtle Beach refused. Id. However, on July 1, 2013, the Horry
County Department of Airports required Skydive Myrtle Beach to sign "a space use
permit" or to vacate the Airport property.2 Id. This was intended to be a temporary
measure until Horry County created new leases for all tenants. Id.

2

The Second Amended Complaint provides conflicting dates for the signing of the space
use permit. Initially, Plaintiffs contend Skydive Myrtle Beach was required to sign the
permit on July 1, 2013. ECF No. 207 at 6. Later in the same paragraph, Plaintiffs state
that Skydive Myrtle Beach "signed the space use permit on September 10, 2013. Id.
However, on the next page of the Second Amended Complaint, Plaintiffs state that
Skydive Myrtle Beach signed the space use permit on September 18, 2013. Id. at 7.
While these inconsistencies are not determinative in any of the pending Motions to
Dismiss, they highlight the convoluted and confusing nature of the Second Amended
Complaint.
2

On September 13, 2013, the Airport and the Horry County Department of Airports
notified Skydive Myrtle Beach that they were "interested in bringing in a bigger aircraft, in
order to start to increase business." Id. at 6–7. On that day, Skydive Myrtle Beach asked
when it would receive a new lease from Horry County and was told that it would take
several more weeks. Id. at 7. According to Plaintiffs, a campaign of harassment began
around this time. For example, on October 2013, Plaintiffs discovered that their business
mail was not being forwarded from the front desk at the Airport and that there were lost
parcels of mail and packages that were returned to sender. Id. Over the next few weeks,
Plaintiffs were unilaterally told to relocate their landing zone to a smaller and less safe
area, received no assistance in procuring permits and logistical support for skydiving
activities, and obtained no resolution for their mail difficulties. Id.
This harassment continued, as the Horry County Department of Airports enlisted
the support of a police officer to place restrictions on Plaintiffs' activities and accuse
Plaintiffs of violating various Airport policies. Id. at 8. In January 2014, Skydive Myrtle
Beach was fined by the Fire Marshall for a defective circuit panel, which Skydive Myrtle
Beach had been asking the Horry County Department of Airports to fix.

Id. at 9.

Additionally, Plaintiff Aaron Holly began receiving emails from the Airport about jumpers
landing outside of the approved landing area. Id. However, Plaintiffs did not receive any
official communications from the FAA, and there was no official investigation by any
federal authorities. Id. On top of these harassing communications, the Airport's tower
began placing holds on Skydive Myrtle Beach while skydivers were in the air. Id. This
cost Plaintiffs "a huge amount of money due to fuel and hours on the airplane." Id.

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On February 5, 2014, Plaintiff Holly caught an Airport employee breaking into
Plaintiffs' hangar with two unauthorized contractors. Id. This caused Skydive Myrtle
Beach to shut down for two days to inspect its plane and equipment. Id. In response,
Plaintiff Holly requested a meeting to clear the air with the Airport and FAA. Id. This
meeting took place on February 7, 2014 but was unproductive. Id. After this meeting,
Plaintiffs determined that the Airport was seeking to shut down Skydive Myrtle Beach. Id.
While this harassment continued, Plaintiffs' "received a letter from Horry County attorney
Randolph Haldi of allegations of violations, and a 72-hour notice to vacate" unless
Skydive Myrtle Beach signed a new lease giving the Airport 24% of its gross profits. Id.
at 10.
After months of confusion related to determining what rules and regulations the
Airport expected Skydive Myrtle Beach to comply with, the tension between the parties
escalated. Id. at 12. On September 1, 2015, the FAA wrote a letter to the Horry County
Department of Airports stating that 91 violations were reported by the Airport. Id. at 13.
As it turns out, the Horry County Department of Airports "and Robinson Aviation
employees filed some 112 'safety violations' against the Plaintiff(s) during the period of
March 29, 2013 and September 27, 2015" which were not investigated by the FAA. Id.
On October 15, 2015, Plaintiffs received an email giving them 24 hours to vacate the
hangar. Id. Plaintiffs complied with the request in order to avoid criminal charges. Id.
Plaintiffs contend that the alleged violations were unfounded, including some
alleged violations that were said to have taken place on dates that Plaintiffs did not
conduct jumps. In 2014, Plaintiffs filed a Complaint with the FAA in what is known as a
Part 16 proceeding.

The Complaint states that Horry County's "actions, including

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attempts to restrict the landing area (Drop Zone or DZ) and reporting violations as 'safety
concerns,' are unreasonably restrictive and discriminatory as applied to an FAArecognized aeronautical activity—skydiving." See Skydive Myrtle Beach, Inc. v. Horry
Cty. Dep't of Airports, FAA Docket No. 16-14-05, Director's Determination at 1 (Oct. 7,
2015). Randall S. Fiertz, Director of Airport Compliance and Management Analysis for
the FAA, issued a Determination on October 7, 2015, which found that Horry County was
not engaged in economic discrimination against Skydive Myrtle Beach and that "[u]nless
immediate steps are taken, up to and including closure of the DZ, [Horry] County will be
considered to be in violation of [a federal grant]."3 Id. at 66.
Plaintiffs then filed an administrative appeal with the FAA, and the FAA issued a
Final Agency Decision affirming the Director's Determination on August 4, 2016.4 Skydive
Myrtle Beach, Inc. v. Horry Cty. Dep't of Airports, FAA Docket No. 16-14-05, Final Agency
Decision (Aug. 4, 2016). The Final Agency Decision advised Plaintiffs that they could
petition for judicial review "in the United States Court of Appeals for the District of
Columbia Circuit or in the Court of Appeals of the United States for the Circuit in which
the [Plaintiffs reside] or [have their] principal place of business." Id. at 9. Plaintiffs filed
an appeal of the Part 16 Determination in the Fourth Circuit; however, the appeal was
untimely and denied by the Court. Skydive Myrtle Beach, Inc. v. Horry Cty. Dep't of
Airports, 735 F. App'x 810 (4th Cir. 2018).

3

https://part16.airports.faa.gov/pdf/16-14-05b.pdf.

4

https://part16.airports.faa.gov/pdf/16-14-05.pdf.
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PROCEDURAL BACKGROUND
Initially, each Plaintiff filed factually identical cases pro se, naming a large group
of Defendants in each lawsuit. ECF No. 199 (citing initial pro se cases). The Court
"considered consolidating the matters for pre-trial handling and trial but concluded that
because each of the [P]laintiffs was pro se, consolidation would be problematic." ECF
No. 199. Indeed, while Plaintiffs' cases proceeded individually and pro se, there were a
large number of dispositive motions filed, leading to extensive briefing, many rulings by
the Court, and several Amended Complaints.
On July 10, 2018, nearly a year and a half after this federal litigation began,
attorney Robert Bratton Varnado filed a Notice of Appearance on behalf of all Plaintiffs.
ECF No. 191. The following day, Plaintiffs' counsel filed a Motion to Consolidate the
individual cases and sought an extension of time to reply to the various pending
dispositive motions.

ECF No. 194.

Generally, Defendants opposed consolidation,

claiming defects in Plaintiffs' pleadings, failure to serve those pleadings or name
Defendants uniformly, and prejudice resulting from consolidation prior to ruling on
dispositive motions. See ECF Nos. 195–98.
On August 31, 2018, the Court consolidated the eleven cases pursuant to Federal
Rule of Civil Procedure 42(a) and directed Mr. Varnado to file a consolidated Amended
Complaint in Davis v. Horry County Council, 4:17-cv-391 by September 15, 2018. ECF
No. 199.

On September 11, 2018, Plaintiffs requested additional time to file their

consolidated Amended Complaint, and the Court extended the deadline until October 1,
2018. ECF Nos. 200–01.

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On October 1, 2018, Plaintiffs filed an Amended Complaint. ECF No. 203. On
October 9, 2018, the Court entered a Text Order striking Plaintiffs' Amended Complaint
because the Amended Complaint omitted Plaintiff Amanda Boulineau and added a partyplaintiff, Skydive Myrtle Beach, Inc., without authorization from the Court or consent from
all Defendants. ECF No. 205. The Court directed Plaintiffs' counsel to file a Second
Amended Complaint that complied with its August 31, 2018, Order within three days. Id.
Plaintiffs filed a Second Amended Complaint in compliance with the Court's Order.5 ECF
No. 207. Thereafter, on October 16, 2018, the Court dismissed the other ten pro se cases
so that the consolidated case could proceed without duplicative litigation. ECF No. 208.
Plaintiffs' Second Amended Complaint named five groups of Defendants: (1)
Defendants Horry County Department of Airports, Pat Apone, Charles Bree, Chad Cox,
Ed Dingley, Brett Cullen, Heather Solomon, John (or Jack) Teal, Tim Jackson, Horry
County Council, Harold Worley, Mark Lazarus, Bill Howard, Jimmy Washington, Gary
Loftus, Tyler Servant, Cam Crawford, Harold Phillips, Johnny Vaught, W. Paul Prince,
Jody Prince, Al Allen, Lisa Bourcier, Arrigo Carotti, Randolph Haldi, and Frank Venegas
(collectively, "Horry County Defendants"); (2) Defendants Robinson Aviation, Inc., Glenn
Ray, Jack Griffin, Bill Tiller, and Phill Zell (collectively, "Robinson Aviation Defendants");
(3) Defendants USPA, Randy Ottinger, and Ed Scott (collectively, "USPA Defendants");
(4) Defendant FAA; and (5) Defendants James Cline, James Dangerfield, Howard Hollis,
Gary Pendleton, Robert Giguere, Daryl McMillen, Herman Smith, Thomas Winston,
Daniel Jones, and Larry Ayers (collectively, "Individual Federal Defendants"). ECF No.

5

The caption of Plaintiffs' Second Amended Complaint does not precisely mirror the
Defendants named in the Second Amended Complaint. However, the dispositive motions
pending in this case dispose of all parties against whom claims have been filed.
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207. Additionally, Plaintiffs named Defendant State of South Carolina "for the purpose of
notice."6 Id. at 4–5.
Plaintiffs' Complaint alleges eleven causes of action: (1) Violation of 42 U.S.C.
§ 1983 as to Horry County Defendants; (2) Implied Constitutional Action for Damages
Under Bivens7 as to Individual Federal Defendants; (3) Civil Conspiracy as to All
Defendants; (4) Fraud and/or Constructive Fraud as to All Defendants; (5) Violation of
South Carolina's Unfair Trade Practices Act as to Defendant Robinson Aviation, Inc.; (6)
Breach of Contract as to USPA Defendants; (7) Breach of Contract & Wrongful Eviction
as to Horry County Defendants; (8) Breach of Contract – Letter of Agreement as to Horry
County Defendants; (9) Trespass and Wrongful Held Property as to Defendants Tim
Jackson, Jack Teal, Charles Bree, Arrigo Carotti; (10) Negligence and Negligent
Misrepresentation as to All Defendants; and (11) Declaratory Judgment as to Defendants
FAA and Horry County Department of Airports.
Following the filing of the Second Amended Complaint, Defendants filed a series
of dispositive motions. See ECF Nos. 212 (Motion to Dismiss by Defendant FAA); 213
(Motion to Dismiss by USPA Defendants); 214 (Motion to Dismiss by Individual Federal
Defendants); 215 (Motion to Dismiss by Robinson Aviation Defendants); 216 (Motion to
Dimiss by Horry County Defendants). These Motions have been fully briefed, and the

6

The Court previously dismissed the State of South Carolina as a party defendant. ECF
No. 77. While Plaintiffs have named the State of South Carolina as a party defendant,
they have alleged no cause of action relating to the State of South Carolina. Accordingly,
the State of South Carolina is not a valid party to this action.

7

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
8

Court heard oral arguments from the parties on April 30, 2019. Accordingly, the Motions
are ripe for review.
LEGAL STANDARD
I.

Rule 12(b)(1)
When subject matter jurisdiction is challenged by a Rule 12(b)(1) Motion, the

burden of proving subject matter jurisdiction is on the plaintiff. Adams v. Bain, 697 F.2d
1213, 1219 (4th Cir. 1982). In determining whether jurisdiction exists, the district court
regards the pleadings’ allegations as mere evidence on the issue and may consider
evidence outside the pleadings without converting the proceeding to one for summary
judgment. Id.
DISCUSSION
As an initial matter, Defendant FAA8 contends that it is not a proper party to this
lawsuit, because "[u]nder 28 U.S.C. § 2679, federal agencies cannot be named
defendants in tort actions." ECF No. 212 at 2. In response, Plaintiffs acknowledge
violating a Court Order by not substituting the United States as a Defendant and states,
"Plaintiffs will substitute the United States as the sole Defendant for the acts and/or
omissions of the FAA and the Individual Federal Defendants,9 who were sued in their
official capacities." ECF No. 221 at 2. Defendant FAA, however, asks the Court to

8

As set forth below, the proper party defendant in this case is the United States of
America. However, for ease of reference and to comport with how Plaintiffs named the
party in their Second Amended Complaint, the Court will refer to the party as Defendant
FAA.
9

Defendant United States correctly notes, "[t]he only counts against individual federal
employees for which the United States is not substituted as the defendant are counts
alleging a violation of the Constitution." ECF No. 212 at 2.
9

dismiss Plaintiffs' Second Amended Complaint pursuant to Federal Rule of Civil
Procedure 8.

Alternatively, Defendant offers a number of alternative grounds for

dismissal, including failure to present a proper claim under the Federal Tort Claims Act
("FTCA"), prematurely filing this lawsuit without waiting for an agency response, and lack
of subject matter jurisdiction under 49 U.S.C. § 46110.
The Court declines to dismiss Plaintiffs' case in toto solely based on their violation
of a prior Court Order to officially substitute the United States as the proper party.
However, Defendant FAA's claim that the Court lacks subject matter jurisdiction under 49
U.S.C. § 46110 is well taken. Section 46110(a) of the Federal Aviation Act vests federal
courts of appeal with exclusive jurisdiction over challenges to FAA orders:
[A] person disclosing a substantial interest in an order issued by the
Secretary of Transportation . . . or the Administrator of the Federal Aviation
Administration with respect to aviation duties and powers designated to be
carried out by the Administrator . . . may apply for review of the order by
filing a petition for review in the United States Court of Appeals for the
District of Columbia Circuit or in the court of appeals of the United States
for the circuit in which the person resides or has its principal place of
business.
49 U.S.C. § 46110(a). Indeed, "[i]t is well settled that the review of any order of the FAA
Administrator must be taken in a court of appeals." Ligon v. LaHood, 614 F.3d 150, 154
(5th Cir. 2010) (citations omitted). "Specific grants of jurisdiction to the courts of appeals
override general grants of jurisdiction to the district courts." Id. at 154–55 (citations
omitted). "Moreover, district courts lack jurisdiction not only over direct challenges to FAA
orders, but also over damages claims that are 'inescapably intertwined with a review of
the procedures and merits surrounding an FAA order.'" Id. at 155 (quoting Zephyr
Aviation, L.L.C. v. Dailey, 247 F.3d 565, 572 (5th Cir. 2001). "That is, a plaintiff may not

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circumvent the exclusive jurisdiction of the court of appeals by collaterally attacking an
administrative order in a federal district court." Id. (citation omitted).
The Court has reviewed Plaintiffs' Second Amended Complaint, and, while it is
very difficult to follow, the claims against the FAA and Individual Federal Defendants, in
their official capacity, relate solely to the FAA's Determination. Plaintiffs appealed this
Determination internally, and the FAA affirmed the findings. See ECF No. 212 at 4–5.
Plaintiffs attempted to file an appeal in the Fourth Circuit Court of Appeals, but they
missed the 60-day deadline for doing so.

Indeed, the Fourth Circuit issued an

unpublished opinion finding Plaintiffs' appeal untimely and that there were no reasonable
grounds for the delay. See Skydive Myrtle Beach, Inc., 735 F. App'x at 815. The Court
finds that Plaintiffs' claims against Defendant FAA and the Individual Federal Defendants,
in their official capacity, (by and through the United States of America) are inescapably
intertwined with the merits of their belated appeal to the Fourth Circuit. Accordingly, the
Court grants Defendant FAA's Motion to Dismiss.
CONCLUSION
For these reasons, Defendant FAA's Motion to Dismiss, ECF No. 212, is
GRANTED, and all claims against Defendant FAA and the Individual Federal Defendants,
in their official capacity, (by and through the United States of America) are dismissed with
prejudice.
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
July 23, 2019
Spartanburg, South Carolina

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