Quest Aviation, Inc. v. Nationair Insurance Agencies, Inc.

Filing 17

Opinion and Order denying 7 Motion to Dismiss for Failure to State a Claim. Signed by U.S. District Judge Roberto A. Lange on 4/10/2015. (JLS)

UNITED STATES DISTRICT COURT

FILED

DISTRICT OF SOUTH DAKOTA

APR 10 2015

NORTHERN DIVISION

~~

QUEST AVIATION, INC.,

1: 14-CV-01 025-RAL

Plaintiff,
OPINION AND ORDER DENYING

MOTION TO DISMISS

vs.
NATIONAIR INSURANCE AGENCIES, INC.,
Defendant.

Quest Aviation, Inc. (Quest) filed a complaint for declaratory judgment against NationAir
Insurance Agencies, Inc. (NationAir) in South Dakota state court. Doc. 1-1 at 13-19. NationAir
removed the case to federal district court pursuant to 28 U.S.C. § 1441, asserting diversity
jurisdiction under 28 U.S.C. § 1332. Doc. 1. NationAirthen filed its Motion to Dismiss, Doc. 7,
for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Quest opposed
the motion to dismiss and requested oral argument on the motion. Doc. 13. This Court finds that
Quest has stated a justiciable claim upon which relief may be granted and the circumstances do
not justify dismissal of the claim.

I.

FACTS
When ruling on a motion to dismiss for failure to state a claim, a court "must accept as

true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89,
93-94 (2007) (per curiam). Therefore, the pertinent facts will be taken from what Quest alleges
in its complaint.

Quest is a South Dakota Corporation, with its principal place of business in Aberdeen,
South Dakota. Doc. 1-1 at 13. Quest provides air charter and other aeronautical services in
Aberdeen and Tea, South Dakota.

Id. at 13, 16.

NationAir is an insurance broker that

specializes in procuring aviation insurance for clients.

Id. at 14.

NationAir's specialized

experience in insurance for the aviation industry is valuable, it claims, because business
insurance policies generally exclude aviation related losses. Id.
John Worthing (Worthing), an experienced sales executive and director at NationAir,
secured two insurance policies for Quest in late 2010 and early 2011.

Id. at 14-15. Both

policies were underwritten by National Union Fire Insurance Company (National Union). Id. at
15. One policy, entitled "Aviation Policy," had a $3 million per occurrence liability limit. Id.
The other policy, an "Aviation Commercial General Liability" policy, had a $20 million per
occurrence liability limit.

Id.

Worthing visited Quest in South Dakota annually to discuss

Quest's business and to provide quotes and was aware of Quest's air charter operations. Id. Due
to NationAir's representations about its expertise, skill, and knowledge in the aviation insurance
field, Quest relied upon NationAir to procure appropriate types and amounts of insurance
coverage.

Id.

Quest believed that the commercial general liability policy would provide

coverage for incidents involving aircraft it operated. Id. at 16.
In 2008, Quest began leasing a Cessna 421 C (the Cessna) for use in its air charter
operations. Id. The Cessna crashed on December 9,2011, killing the three chartered passengers
onboard. Id. at 16-17. The estates of the three passengers filed wrongful death suits against
Quest in South Dakota state court. Id. One of the estates has settled its claim against Quest, but
two cases are still pending. Id. at 17. The claims for damages in the wrongful death litigation in
aggregate exceed $3 million. Id.

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Quest submitted claims for coverage under both the Aviation Policy and its commercial
general liability policy.

Id.

In January 2014, National Union informed Quest that the $20

million commercial general liability insurance did not cover the 2011 aircraft crash because of an
exclusion in the policy for bodily injury caused by aircraft operated by Quest. Id. According to
its complaint, Quest had not been informed of this exclusion by NationAir. Although Quest
employees had previously reviewed the $20 million commercial general liability policy, they
"did not recognize or understand" that it excluded coverage for incidents involving aircraft
operated by Quest. Id. at 16-17. If Quest had known about the aviation exclusion, it would have
"taken a different course of action with respect to its operations or its insurance coverage." Id. at

17-18. Because of the exclusion in the commercial general liability policy, Quest is uninsured
for any damage awards aggregating more than $3 million relating to the 2011 aircraft crash. Id.
National Union is defending Quest and providing coverage for the 2011 aircraft crash under the
Aviation Policy, which has a $3 million liability limit.
Quest seeks judgment from this Court declaring that NationAir is liable for damages
Quest may pay in the wrongful death litigation to the extent that they exceed $3 million dollars.
Quest alleges NationAir breached a fiduciary duty and acted negligently by not advising Quest
that the commercial general liability policy it procured would not provide coverage for incidents
involving Quest-operated aircraft. Id. at 18-19.

II.

~AJL1{SIS

NationAir's motion to dismiss is based on the fact that Quest has not been and may never
be ordered to pay a judgment that exceeds the $3 million Aviation Policy coverage cap in the
wrongful death litigation. NationAir argues that Quest does not have a claim against NationAir
unless and until Quest is forced to pay a judgment (or a portion thereof) out of its own pocket in

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the wrongful death litigation. Three arguments form the basis ofNationAir's motion to dismiss,
all sprouting from the current absence of final judgment for damages exceeding $3 million: (1)
Quest has not alleged damages, an essential element of the underlying torts that form the basis of
this action; (2) the claim is not yet ripe for adjudication; and (3) a declaratory judgment action
cannot or should not be used to bring tort claims. Because the second argument concerning
ripeness raises a jurisdictional issue, this Court will address the ripeness argument first, followed
by the argument that the essential element of damages is lacking, and then the propriety of
issuing a declaratory judgment in this case.

A. Ripeness Argument
NationAir argues that if a claim has been stated, it is not yet ripe for adjudication due to
the lack of concrete injury. The federal Declaratory Judgment Act requires that there be an
"actual controversy," 28 U.S.C. § 2201, which has been interpreted as merely emphasizing the
case and controversy requirement embodied in Article III of the U.S. Constitution, Gopher Oil
Co. v. Bunker, 84 F.3d 1047, 1050 (8th Cir. 1996); see also U.S. Const. art. III, § 2. Article III
requires that there be "a substantial controversy, between parties having adverse legal interest, of
sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Md. Cas.
Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941). Just like any other action in federal court,
an action for declaratory relief must be ripe for federal jurisdiction to exist. Pub. Servo Comm'n
of Utah v. Wycoff Co., 344 U.S. 237, 242 (1952); Gopher Oil Co., 84 F.3d at 1050.
Here, NationAir disputes Quest's claim that NationAir breached either its duty as an
insurance broker or as a fiduciary in its procurement of Quest's insurance policies. The dispute
is based on alleged actions that occurred in 2010 and 2011 that place the parties in adverse legal
positions about whether a duty existed and, if so, whether it was breached. This case is factually

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developed enough that, even without an exact damage amount, a decision on the matter would
not be an advisory opinion based on a hypothetical set of facts. See Pub. Servo Comm'n of Utah,
344 U.S. at 242--43. Quest faces a legitimate risk of a damage award exceeding the $3 million
policy limit in the wrongful death litigation, for which it believes NationAir ultimately should be
responsible to pay. Quest and NationAir are in adverse legal positions sufficient to create a case
and controversy. See Gopher Oil Co., 84 F.3d at 1051 (finding declaratory judgment action was
ripe for adjudication where declaratory judgment plaintiff was defendant in EPA lawsuit to
collect reclamation expenses for environment damage allegedly caused by declaratory judgment
defendant). This case is an actual controversy upon which this Court may rule without issuing
an impermissible advisory opinion.
B. Essential Element Argument

To survive a motion to dismiss for failure to state a claim, a complaint must contain a
"short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R.
Civ. P. 8(a)(2). This standard requires that the plaintiff allege "sufficient factual matter," which
if true, would "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Com. v. Twombly, 550 U.S. 544, 570 (2007)). While this
standard does not require detailed factual allegations, a complaint must contain facts that are
more than labels, conclusions, or "formulaic recitation[s] of the elements." Twombly, 550 U.S.
at 555. When applying this standard, a court "must accept as true all factual allegations set out in
the complaint, and must construe the complaint in the light most favorable to the plaintiff,
drawing all inferences in [the plaintiffs] favor." Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th
Cir.2006).

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Federal law allows a party to obtain a judicial declaration of a legal right or relation with
or without seeking any other remedy. 28 U.S.C. § 2201. Section 2201 is a procedural device for
adjudicating existing rights but it does not alter substantive rights. W. Cas. & Sur. Co. v.
Hennan, 405 F.2d 121, 124 (8th CiT. 1968); see also Beacon Theatres, Inc. v. Westover, 359 U.S.
500, 504-06 (1959) (holding that a party's right to trial by jury and all legal and equitable
defenses of underlying substantive law in a declaratory judgment action are preserved). Thus,
whether Quest has stated a claim is detennined by the underlying substantive legal basis of the
action, that is, the claims of negligent procurement and breach of fiduciary duty.
Quest alleges that NationAir breached a fiduciary duty it owed to Quest and that
NationAir "negligently failed to advise Quest" that the commercial general liability insurance
policy did not cover airplane accidents. Doc. 1-1 at 18. This Court looks to underlying state
law, in this case South Dakota law, to define the substantive law of cases brought pursuant to
federal diversity jurisdiction. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 72-73, 78 (1938). In
order to state a claim for the tort of breach of fiduciary duty, "a plaintiff must prove: (1) that the
defendant was acting as plaintiffs fiduciary; (2) that the defendant breached a fiduciary duty to
plaintiff; (3) that plaintiff incurred damages; and (4) that the defendant's breach of the fiduciary
duty was a cause of plaintiffs damages." Chern-Age Indus., Inc. v. Glover, 652 N.W.2d 756,
772 (S.D. 2002). To state a claim for negligence under South Dakota law, a plaintiff must prove
that (1) the defendant owed a duty; (2) the defendant failed to perfonn that duty; and (3) the
plaintiff was injured as a result of that failure. Leslie v. City of Bonesteel, 303 N.W.2d 117, 119
(S.D. 1981). An insurance agent has a duty to a person seeking coverage to use reasonable
diligence in procuring "insurance of the kind and with the provisions specified" by the person
seeking coverage. Cole v. Well mark of S.D., 776 N.W.2d 240,251 (S.D. 2009) (quoting City of

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Colton v. Schwebach, 557 N.W.2d 769, 771 (S.D. 1978)). When a person seeks a review and
recommendation for his or her insurance needs, the insurance agent's duty extends to procuring
the type of coverage that the insurance agent recommends. Id.
For purposes of the motion to dismiss, NationAir argues only that Quest cannot show
actual injury from any alleged breach of fiduciary duty or negligence because National Union is
currently defending Quest in the wrongful death litigation and Quest has not been ordered to pay
aggregate judgments in excess of the $3 million Aviation Policy limit of liability.

Quest has

only alleged that it faces the potential of combined judgments against it in excess of the Aviation
Policy limit of liability. See Doc. 1-1 at 17-18; Doc. 13 at 5. If it were certain that Quest will
have to pay some amount of damages out of its pocket in the wrongful death litigation, there
could be no argument that Quest had failed to state a claim upon which relief could be granted.
Because it is not certain that Quest will be found liable in the remaining wrongful death suits, let
alone that the aggregate damages will exceed the $3 million limit of liability on the aviation
policy, NationAir asserts that there is no injury.
Uncertainty about whether a plaintiff has been injured by the alleged tortfeasor is fatal to
a tort claim, but once the fact of injury is certain, uncertainty about the amount of damages is not
fatal. Weekley v. Prostrollo, 778 N.W.2d 823, 830 (S.D. 2010). In a negligent procurement
action, the injury under South Dakota law is the lack of insurance coverage sought by the
plaintiff, see Kobbeman v. Oleson, 574 N.W. 2d 633, 638 (S.D. 1998) ("[I]n failure to procure
insurance cases, claims may reasonably arise long before a judgment."), but the measure of the
damages owed a plaintiff-the compensation for the injury-"is the amount the insurer would
have paid on behalf of the insured had the desired coverage been obtained," id. at 635. Here,

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Quest has an injury in not having the extent of coverage it alleges NationAir should have
procured, but the measure of the injury is uncertain.
Concerning the wrongful death claims from the Cessna crash, National Union has
accepted coverage only under the Aviation Policy with a $3 million limit and has denied
coverage under the Commercial General Liability Policy with the $20 million limit purchased by
Quest. Quest alleges that it "would have taken a different course of action" had it known at the
time of purchase that the commercial general liability policy would not cover situations like the
2011 aircraft accident. In other words, but for the alleged breach of fiduciary duty or negligent
procurement, Quest either would not have purchased a General Liability Policy excluding
aviation-related incidents, would have sought out coverage with a higher liability limit than $3
million for damages caused by aiIplane use, or possibly would not have undertaken passenger
flights. Thus, Quest is currently exposed to pay any aggregate amount exceeding $3 million and
attributes this exposure to NationAir failing to procure the insurance Quest sought. Despite the
uncertainty about what amount of damages will fairly compensate Quest for NationAir's alleged
breach of duty, one certain measure of damages would be the premiums paid by Quest for a
policy that did not provide the coverage it sought. This measure of damages likely would leave
Quest dissatisfied, but illustrates the point that the alleged injury is certain with the uncertainty
being the amount of compensation allegedly owed. See Kobbeman, 574 N.W.2d at 638 (citing
Antal's Rest., Inc. v. Lumbermen's Mut. Cas. Co., 680 A.2d 1386, 1389 (D.C.1996». Here, the
alleged injury is certain-Quest does not have its desired coverage or at least paid premiums for
a policy that did not provide the coverage sought--even though the amount of compensation it
might be owed for such an injury is not. Thus, Quest has stated a claim for which relief may be
granted.

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Even if the issue of injury were not certain, § 2201 changes the nature of the injury
required, notwithstanding that § 2201 does not alter substantive rights.
require an injury to establish a claim, so do breach of contract actions,

Just as tort actions
Guthmiller v. Deloitte

& Touche, LLP, 699 N.W.2d 493,498 (S.D. 2005) (listing the elements of a breach of contract

claim as (1) an enforceable promise, (2) a breach of the promise, and (3) resulting damages).
However, at least one purpose of allowing declaratory relief is to clearly establish rights or
relationships before damages accrue. Cunningham Bros. v. Bail, 407 F.2d 1165, 1167--68 (7th
Cir. 1969); E. Edelmann & Co. v. Triple-A Specialty Co., 88 F.2d 852, 854 (7th Cir. 1937) ("It
was the congressional intent to avoid accrual of avoidable damages to one not certain of his
rights and to afford him an early adjudication without waiting until his adversary should see fit to
begin suit, after damage had accrued."). Thus, in a declaratory judgment action, while the
substantive rights remain unaltered, the requirement of actual injury is satisfied by a concrete
threat of actual injury. See lOB Charles Alan Wright, et aI., Federal Practice & Procedure
§ 2751, at 456 (3d ed. 1998) ("[Declaratory judgment] gives a means by which rights and
obligations may be adjudicated in cases involving an actual controversy that has not reached the
stage at which either party may seek a coercive remedy."); cf. Gopher Oil Co., 84 F.3d at 1051
(holding declaratory judgment action was ripe when plaintiff had pending action against it for
environmental cleanup expenses but no final judgment). Declaratory judgment actions are often
used by prospective defendants seeking to define their obligations, but they also may be used by
prospective plaintiffs to confirm the existence of an obligation. See, e.g., Modern Equip. Co. v.
Cont'! W. Ins. Co., 146 F. Supp. 2d 987,991-92 (S.D. Iowa 2001) (denying motion to dismiss
declaratory judgment action brought by insured seeking to confirm insurance coverage); see also
Aetna Life Ins. Co. of Hartford Conn. v. Haworth, 300 U.S. 227,244 (1937) ("[T]he character of

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the controversy and of the issue to be detennined is essentially the same whether it is presented
by the insured or by the insurer.").

Declaratory relief allows the insured to establish his

contractual rights before suffering any injury, that is, before he would be able to assert a claim
for breach of contract. And there is nothing in the text of § 2201 that suggests it would operate
any differently in the context of an underlying tort action. Therefore, the lack of a monetary
injury is not necessarily fatal to a tort claim brought under the declaratory judgment act.
Quest's current exposure to liability exceeding the $3 million Aviation Policy limit of
liability is sufficient under South Dakota law to constitute an injury in a declaratory judgment
action based on an alleged negligent procurement or breach of fiduciary duty. The final issue is
whether this Court ought to entertain a claim for declaratory relief.
C. Propriety of Declaratory Judgment Argument

NationAir argues that a declaratory judgment action is not the proper procedural avenue
for negligence and intentional tort claims, and thus, NationAir argues, this action must be
dismissed. Doc. 16 at 4. Although federal courts are courts of limited jurisdiction, a federal
court is generally obligated to decide a case when jurisdiction is established. See Colo. River
Water Conservation Dist. v. United States, 424 U.S. 800, 813-19 (1976) (holding an otherwise
justiciable case l could be dismissed only in "exceptional" circumstances). However, when a
case is brought as a declaratory judgment action under § 2201, district courts have greater
discretion to dismiss an otherwise justiciable case. Wilton v. Seven Falls Co., 515 U.S. 277,286
I In Colorado River, the Supreme Court found that three different categories of the "doctrine of
abstention" did not apply to the case before considering whether other considerations justified
dismissal. 424 U.S. at 814-17. The three categories of the doctrine of abstention are: (1) when
the case presents a federal constitutional issue that might be "mooted or presented in a different
posture by a state court determination of pertinent state law," (2) when the case presents difficult
questions of state law that will affect policy considerations more important than the case at bar,
and (3) when federal jurisdiction is being improperly "invoked for the purpose of restraining
state criminal proceedings." ld.

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(1995). The pennissive language in § 220l-"a court 'may declare the rights and other legal
relations of any interested party"'-distinguishes declaratory judgment actions from other
actions. Id. (quoting 28 U.S.C. § 2201).
In a declaratory judgment action, the breadth of a court's discretion depends upon a
preliminary detennination of whether there is a "parallel" state court proceeding. Scottsdale Ins.
Co. v. Detco Indus., 426 F.3d 994, 999 (8th Cir. 2005). When there is a parallel state court
proceeding to a federal action for declaratory judgment, a district court has broad discretion to
dismiss or stay the federal proceeding. Wilton, 515 U.S. at 290; Scottsdale Ins. Co., 426 F.3d at
997. When there is not a parallel state court proceeding, a district court has less discretion,
guided by the balancing of six factors, to dismiss or stay an otherwise justiciable declaratory
judgment action. Scottsdale Ins. Co., 426 F.3d at 998. Thus, the next issue is whether the
wrongful death litigation is a "parallel" state court proceeding to this case.
"Suits are parallel if substantially the same parties litigate substantially the same issues in
different forums." Conn Cas. Co. v. Advance Terrazzo & Tile Co., 462 F.3d 1002, 1006 (8th
Cir. 2006) (quoting Scottsdale Ins. Co., 426 F.3d at 998). In this case, Quest and NationAir are
litigating the issue of NationAir's liability, if any, to Quest for allegedly breaching a duty owed
Quest during the procurement of insurance coverage. In the wrongful death litigation, the estates
of the decedents and Quest are litigating the issues of liability and possible damages owed by
Quest arising out of the 2011 Cessna crash. NationAir is not a party to the wrongful death
litigation, and the proceedings are detennining distinct factual issues, although some facts and
the damage award in the wrongful death litigation impact this case. This action is not "parallel"
to the wrongful death litigation because this case involves different parties and issues from the
state wrongful death claims. See id. at 1006; Scottsdale Ins. Co., 426 F.3d at 997. Thus, the six­

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factor test adopted by the Eighth Circuit in Scottsdale controls the decision to dismiss or stay the
case.
The relevant factors a court must consider when deciding whether to dismiss or stay a
declaratory judgment action when there are no parallel state court proceedings are:
(1) whether the declaratory judgment sought will serve a useful
purpose in clarifying and settling the legal relations in issue; (2)
whether the declaratory judgment will terminate and afford relief
from the uncertainty, insecurity and controversy giving rise to the
federal proceeding; (3) the strength of the state's interest in having
the issues raised in the federal declaratory judgment action decided
in the state courts; (4) whether the issues raised in the federal
action can more efficiently be resolved in the court in which the
state action is pending; (5) whether permitting the federal action to
go forward would result in unnecessary entanglement between the
federal and state court systems, because of the presence of
overlapping issues of fact or law; and (6) whether the declaratory
judgment action is being used merely as a device for procedural
fencing-that is, to provide another forum in a race for res judicata
or to achieve a federal hearing in a case otherwise not removable.

Scottsdale Ins. Co., 426 F.3d at 998 (citations and alterations omitted) (adopting a test articulated
in Aetna Cas. & Sur. Co. v. Ind-Com. Elec. Co., 139 F.3d 419, 422 (4th Cir. 1998) (per curiam)).
These factors do not militate for dismissal of this case.
The first two factors of the Scottsdale Insurance test favor proceeding with the
declaratory judgment action. Clarification of NationAir's liability to Quest, if any, through this
declaratory judgment action could serve a useful purpose by allowing Quest, in the wrongful
death litigation, to know whether it has any recourse for contribution from NationAir above the
$3 million from its aviation insurance coverage. A declaratory judgment in this case favoring
Quest would allow NationAir to know whether it has an interest in the wrongful death litigation
and to have some opportunity, however limited, to protect its interests in the case, such as by
voluntarily participating in the settlement discussions.

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A declaratory judgment favoring

NationAir would let Quest know that it will be responsible for any liability not covered by its
Aviation Policy.

The clarification provided by a declaratory judgment in this case would

terminate the uncertainty of liability because a judgment would fully clarify each party's
obligations in case a judgment in the wrongful death litigation exceeded the $3 million insurance
limit in aggregate. See O'Daniel v. Stroud, 607 F. Supp. 2d 1065, 1069 (D.S.D. 2009) (finding
that the measure of damages after an insurance agent breaches a duty to obtain the type of
insurance sought is "the amount the insurer would have paid on behalf of the insured had the
desired coverage been obtained"); Kobbeman, 574 N.W.2d at 635 (noting that the amount of
damages for negligently procuring insurance coverage under South Dakota law is "the amount
the insurer would have paid on behalf ofthe insured had the desired coverage been obtained").
The federalism and judicial efficiency concerns embodied in the next three factors do not
militate for dismissal of this case. South Dakota has no strong interest in deciding in state court
the issues raised in this declaratory judgment action.

This case involves straight-forward

application of established tort causes of action without raising novel questions of state law that
properly should be answered by state courts. The legal issue in this case--whether NationAir
breached a duty to Quest-turns on a different set of facts than the wrongful death litigation, and
any overlap in the cases would not cause a duplication of efforts. This case will not cause
unnecessary entanglement between the federal and state courts.

The issue in this case is

NationAir's alleged liability to Quest based on allegedly tortious conduct in procuring insurance
policies. This case will not "encompass the same factual determinations" as the wrongful death
litigation, which will focus on the circumstances surrounding the Cessna crash. See Scottsdale
Ins. Co., 426 F.3d at 999-1000. Furthermore, this case has been removed to federal court, and
dismissal of this action in favor of refiling in state court would undermine NationAir's right to

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properly remove an action under 28 U.S.C. § 1332 and § 1441. Indeed, neither party is seeking
to have this claim litigated in state court, Quest at this point wants to proceed in federal court,
and NationAir-the party that removed the case to federal court-wants the action to be
dismissed, not deferred in favor of a state court proceeding. Resolution of this case is just as
efficient in federal court as it would be in state court.
The final factor likewise favors retention of federal jurisdiction because there is no
improper procedural fencing involved in this case. This factor seeks to discourage a defendant's
efforts to file a case in another forum in a "race for res judicata" or to undennine a plaintiff's
traditional right to choose a forum. See Lexington Ins. Co. v. Integrity Land Title Co., 721 F.3d
958, 972 (8th Cir. 2013). In this case, plaintiff Quest filed the declaratory judgment action, and
the case was properly removed by defendant NationAir to federal court. There is no race for res
judicata with another proceeding or potential proceeding, and no improper attempt to undennine
a plaintiff's choice of forum here. Because none of the six factors required to be considered
militate toward dismissing or staying this action, this Court will exercise its jurisdiction and
proceed to detennine the issues in the case.
III.

CONCLUSION
Quest Aviation has adequately stated a claim in its declaratory judgment action that

meets the constitutional case and controversy requirement. Because none of the factors required
to be considered militate toward dismissal of the action, this Court will adjudicate the case.
Therefore, for the reasons stated herein, it is
ORDERED that NationAir's Motion to Dismiss, Doc. 7 is DENIED. It is further
ORDERED that Quest's Request for Oral Argument, Doc. 13, is DENIED.
DATED this

10" day of April, 20l5.

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BY THE COURT:

~Q~

ROBERTO A. LAN E
UNITED STATES DISTRICT JUDGE

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