United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
DISMISS FOR FAILURE TO STATE A CLAIM
Richard G. Stearns UNITED STATES DISTRICT JUDGE
Boston Executive Helicopters, LLC (BEH) is a Delaware limited
liability company operating as a private air carrier at the
Norwood Municipal Airport. Defendant Norwood Airport
Commission (NAC) is a municipal agency of codefendant Town of
Norwood, Massachusetts. Defendants Mark Ryan, Kevin
Shaughnessy, Martin Odstrchel, Michael Sheehan, Leslie
LeBlanc, and Thomas Wynne are current or former members of
the NAC. Defendant Francis T. Maguire is the Norwood Airport
Manager. BEH alleges that the Airport Commissioners and
Airport Manager Maguire, individually, and in their official
capacity, have conspired with defendant FlightLevel Norwood,
LLC (FlightLevel), the Airport's private fuel provider,
to perpetuate FlightLevel's monopoly over the sale of jet
fuel at Norwood Airport, and in so doing, have violated
BEH's civil rights, contractual rights, and the state and
federal antitrust laws.
Municipal Airport is a public-use general aviation facility
established pursuant to the Municipal Airport Act, Mass. Gen.
Laws ch. 90, §§ 51D-51M (the NAC's oversight
authority is derived from the same statute). Norwood Airport
has received substantial state and federal assistance over
the years, conditioned on the NAC's compliance with Grant
Assurances issued by the United States Department of
Transportation (DOT) and the analog Massachusetts
To meet the requirements of the Grant Assurances, the NAC has
promulgated its own set of General Regulations and Minimum
Standards (NAC Standards) governing airport operations. Among
other provisions, the NAC Standards commit the NAC to the
promotion of fair competition among the Airport's
typical of small airports, a single fixed-base operator
(FBO), FlightLevel, has the exclusive right to provide
aircraft fueling services. FlightLevel leases approximately
85% of the Airport's available ramp space. For several
years, BEH, which holds a general flight operations permit,
has sought to sell jet fuel at the Airport in competition
with FlightLevel. The NAC Standards require an applicant for
an FBO permit to make a good-faith capital investment in the
Airport. To satisfy the requirement, BEH leased a 30, 000
square foot plot at the Airport, on which it built a new
hangar and underground fuel tanks. Despite the investment,
the NAC has refused to act on BEH's FBO application.
alleges that the refusal stems from collusion between the
defendants and FlightLevel. Specifically, BEH alleges that
the NAC and Maguire frustrated its permit application by
demanding sensitive financial information from BEH's
owners (which other FBO applicants were not required to
provide); reneging on a confidentiality agreement that was to
protect the production of that information; refusing to lease
land to BEH of sufficient size to support an FBO operation;
declining to consider evidence from a third-party financial
analyst supporting BEH's fitness as a potential FBO; and
refusing to comply with BEH's public records requests.
BEH further alleges that the NAC, in retaliation for
BEH's filing of two complaints against it with the
Federal Aviation Authority (FAA), improperly tabled BEH's
application for an FBO permit, threatened to revoke its
permit to operate at the Airport, and refused to hold public
hearings on the merits of BEH's application. BEH also
alleges that the NAC and FlightLevel erected barriers to
block access to BEH's hangar gates, and that when BEH
obtained a preliminary injunction ordering the barriers
removed, caused the Town of Norwood to file baseless criminal
charges against it.
initiated this action in Norfolk Superior Court on October 2,
2015. On October 26, 2015, Maguire removed the case to the
federal district court with the consent of all defendants,
asserting federal question jurisdiction. Defendants then
filed a motion to dismiss. On March 29, 2016, BEH responded
by filing this Amended Complaint seeking a declaratory
judgment determining the respective rights and obligations of
BEH and the NAC (Count I). The Amended Complaint further
alleges breach of contract by the NAC (Counts II and III);
promissory estoppel (detrimental reliance) against the NAC
based on alleged misrepresentations regarding the FBO permit
application process (Count IV); claims against all defendants
under the Federal Civil Rights Act, 42 U.S.C. § 1983,
based on alleged denials of BEH's right to procedural and
substantive due process, violation of its right to equal
protection under the law, and abridgment of its First
Amendment rights (Counts V, VI, and VII); a claim for
interference by defendants with BEH's right to "use,
enjoy and improve its property" by means of threats,
intimidation, and coercion, pursuant to the Massachusetts
Civil Rights Act (MCRA), Mass. Gen. Laws ch. 12, §11I
(Count VIII); and finally, claims under the state and federal
antitrust laws (Counts IX, X, XI, and XII). Defendants
renewed their motion to dismiss on May 6, 2016.
survive a motion to dismiss pursuant to Rule 12, a complaint
must "state a claim to relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). This standard requires more than
"labels and conclusions" or "naked assertions
devoid of further factual enhancement." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). The court must accept the plaintiffs
plausible factual allegations as true, but with respect to
legal conclusions, "[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice." Id.
defendants claim immunity from antitrust liability under the
doctrine established in Parker v. Brown, 317 U.S.
341, 352 (1943), which shields anticompetitive restraints
that have been established "as an act of [state]
government." That protection extends to acts of
municipalities effectuating a "state policy to displace
competition with regulation or monopoly public service."
City of Lafayette v. Louisiana Power & Light Co.,
435 U.S. 389, 413 (1978). The policy must be "clearly
articulated and affirmatively expressed, " id.
at 410, at least to the extent that it includes an explicit
delegation of authority "that foreseeably will result in
anticompetitive effects." Town of Hallie v. City of
Eau Claire, 471 U.S. 34, 43 (1985).
court addressed an almost identical set of antitrust claims
in Rectrix Aerodrome Ctrs., Inc. v. Barnstable Mun.
Airport Comm'n, 534 F.Supp.2d 201, 205 (D. Mass.
2008), aff'd, 610 F.3d 8 (1st Cir. 2010). In
Rectrix, as here, the plaintiff air carrier,
operating out of a municipal airport where it rented space,
sought to expand its business by selling jet fuel. This court
found that defendant Barnstable Airport, which had refused to
issue Rectrix the necessary FBO permit, was entitled to
immunity under Parker's state action doctrine.
affirming the decision, the First Circuit noted that the
governing Massachusetts law permits airport commissions to
"adopt rules and regulations for the use of municipal
airports, " Mass. Gen. Laws ch. 90, § 51J; to
"determine the charges or rentals for the use of any
properties, facilities, installations, landing fees,
concessions, uses and services, " id. §
51H, and to lease airport land for up to 20 years "under
such terms and conditions as it may prescribe, for hangars,
shops, storage, industrial purposes, offices and other space
rental, and for concessions, " id. § 51F.
Rectrix, 610 F.3d at 13. The Court of Appeals, like
this court, read this statutory language as broadly
reflective of the Legislature's "purpose to allow
the suppression of competition." Id. The First
Circuit also noted that the Massachusetts statute expressly
rejected the suppression of competition in one specific area
of operations (transportation to and from airports),
indicating that it contemplated the lawful suppression of
competition in others. Id. (citing Mass. Gen. Laws
ch. 90, § 51M).
to cast doubt on the continuing validity of Rectrix,
BEH cites a more recent Supreme Court municipal antitrust
decision, Fed. Trade Comm'n v. Phoebe Putney Health
Sys., 133 S.Ct. 1003 (2013). In Phoebe Putney,
the Supreme Court held that a Georgia state law permitting
municipalities to create local Hospital Authorities vested
with the power to acquire or lease property, set rates for
services, to sue and be sued, borrow money, and otherwise
exercise the powers of a private corporation, stopped short
of an express delegation of the authority to act
anticompetitively by failing the clear-articulation test.
Id. at 1011-1012. "[W]hen a State's
position ‘is one of mere neutrality respecting
the municipal actions challenged as anticompetitive, '
the State cannot be said to have
"'contemplated'" those anticompetitive
actions." Id. at 1012 (emphasis in original),
quoting Cmty. Commc'ns Co. v. Boulder, 455 U.S.
40, 55 (1982). There ...