United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE
sole remaining count in this dispute alleges that the
defendants - Norwood Airport Commission (NAC or the
Commission), the Town of Norwood, and certain individual
members of NAC - retaliated against plaintiff Boston
Executive Helicopters, Inc. (BEH), after BEH filed complaints
against NAC with the Federal Aviation Administration (FAA).
complaints arose out of BEH's frustrations over its
efforts to obtain a permit to expand its operations at
Norwood Municipal Airport. BEH had also filed a public
records request and a state court lawsuit to compel the
production of documents related to the Commission's delay
in granting BEH the requested permit, and had made a series
of comments in local news media regarding NAC's
recalcitrance - all of which, BEH alleges, led NAC to
retaliate by further delaying its permit application.
Following discovery, NAC moved for summary judgment on the
First Amendment retaliation claim. The court heard oral
argument on October 24, 2017. The court will now deny the
motion except as to defendants LeBlanc, Maguire, Paul
Shaughnessy, and Hutchens.
court assumes familiarity with the facts of this case as set
out in its previous Memorandum and Order on Defendants'
Motion to Dismiss for Failure to State a Claim, see
Boston Exec. Helicopters, LLC v. Maguire, 196 F.Supp.3d
134 (D. Mass. 2016),  and thus will set out only the facts
germane to the First Amendment retaliation claim. BEH, a
private air carrier providing helicopter transit services in
the greater Boston area, sought to boost its presence at the
Norwood Airport by obtaining a permit to sell jet fuel in
competition with another company, FlightLevel, which at the
time had the exclusive right to provide fueling services at
the Airport. NAC is a municipal agency of the Town of Norwood
that oversees Airport operations, including implementation
and enforcement of the Airport's General Regulations and
Minimum Standards. These standards require a company seeking
a permit to operate as a Fixed-Based Operator (FBO) to make a
good-faith capital investment in the airport. To that end,
BEH leased a 30, 000 square foot plot and built a new hangar
and underground fuel tanks.
March 14, 2013 - the day after NAC voted to approve BEH's
plan for the hangar and the underground fuel tanks - NAC
wrote to BEH stating that “[i]f a properly resourced
BEH were to apply for FBO status, and obtain a commercial
permit from the NAC, then BEH could provide ground- handling
services to compete with FlightLevel.” Am. Compl.
¶ 62. In January of 2014, BEH requested ramp space from
NAC on the only remaining public ramp (the West Apron) that
had not been leased to FlightLevel. On March 17, 2014, NAC sent
BEH a lease offer for 6, 889 square feet on the West Apron.
Later, in comments at a public hearing on April 9, 2014, BEH
complained that the offered space was inadequate to support a
full-service FBO. Id. ¶¶ 67-68.
next NAC meeting, on May 14, 2014, BEH sought to accept the
Commission's offer, while intimating that it would
continue to request additional ramp space. Id.
¶ 69. However, NAC treated BEH as having rejected the
lease offer, and refused to acknowledge BEH's acceptance.
Id. ¶ 70. BEH then requested a copy of the
audio recording of the April 9, 2014 meeting in an effort to
prove that it had not rejected NAC's offer - however, the
tape had been destroyed. BEH then offered to lease the entire
West Apron, and to pay for the full five-year lease in
advance. Id. ¶ 73. NAC rejected the offer and
made no counter-proposal. Id. ¶
5, 2014, BEH responded by filing a complaint with the FAA
pursuant to FAA Regulation Part 13, 14 C.F.R. § 13
et seq. (Part 13 Complaint). Am. Compl. ¶ 75.
On June 11, 2014, NAC voted to table any consideration of
BEH's lease and FBO permit application “based on a
complaint letter received by the Commission but not yet read
and discussed.” NAC Meeting Minutes (June 11, 2014),
Pl.'s Ex. 22. At the September 10, 2014 meeting, BEH
President Christopher Donovan asked to speak, but was told
that the Commission had a full agenda and could not
accommodate him. At the October 10, 2014 meeting, NAC
Chairman Ryan confirmed that BEH's FBO application
remained “tabled.” Pl.'s Ex. 30. BEH withdrew
its Part 13 Complaint in November of 2014. No further action
was taken on BEH's request for ramp space or FBO status
for the duration of 2014.
February 12, 2015, the defendants made a conditional offer to
lease to BEH 11, 786 square feet of space on the West Apron.
Am. Compl. ¶ 80. BEH objected that the space was too
small to support a full-service FBO, and that the conditions
attached to the proposed lease exceeded NAC's own
Regulations and Minimum Standards. On March 11, 2015, BEH filed
an administrative complaint with the FAA pursuant to FAA
Regulation Part 16, 14 C.F.R. § 16 et seq.
(Part 16 Complaint), alleging that NAC had violated the
federal Grant Assurances and had engaged in discriminatory
and exclusionary practices. BEH also filed a public records
request pursuant to Mass. Gen. Laws ch. 66, § 10. When
NAC refused to comply with the records request, BEH filed a
lawsuit in the Norfolk Superior Court. That Court ordered
defendants to produce the documents requested by BEH by
August 31, 2015. At its September 30, 2015 meeting, the NAC
again took no action on BEH's FBO permit application and
instead voted to rescind the February 12, 2015 lease offer.
Am. Compl. ¶ 105.
the quarrel between NAC and BEH spilled into the local news
media. In October of 2015, Commissioner Sheehan was quoted in
the Norwood Record as saying that “[h]ad
Boston Executive Helicopters provided the information that it
agreed to in February instead of providing false information,
threatening NAC with litigation and filing false complaints
to government agencies, it might find itself in a better
position today.” Pl.'s Ex. 82.
brought this lawsuit in the Superior Court on October 2,
2015. NAC removed the case to this court on October 26, 2015.
BEH, in turn, filed an Amended Complaint on March 29, 2016.
On July 6, 2016, this court granted NAC's motion to
dismiss the Amended Complaint with the exception of BEH's
First Amendment retaliation claim. The court will now turn to
that remaining claim.
judgment is appropriate where “there is no genuine
issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c). Rule 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party
bears the initial burden of establishing the absence of a
dispute by reference to documents contained in the record,
after which “the burden shifts to the nonmoving party,
who must, with respect to each issue on which she would bear
the burden of proof at trial, demonstrate that a trier of
fact could reasonably resolve that issue in her favor.”
Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d
1, 5 (1st Cir. 2010). In evaluating a motion for summary
judgment, the court draws “all reasonable inferences in
favor of the non-moving party while ignoring conclusory
allegations, improbable inferences, and unsupported
speculation.” Shafmaster v. United States, 707
F.3d 130, 135 (1st Cir. 2013).
threshold matter, defendants raise two arguments which they
contend either deprive this court of jurisdiction or counsel
in favor of abstention: first, that the dispute is moot
because NAC agreed to issue the FBO permit in June of 2016
(subject to certain conditions), with which BEH's owner
has testified that he has “no problem”; and
second, that this court should abstain under the primary
jurisdiction doctrine, at least while BEH's Part 16
Complaint remains pending before the FAA. Neither argument
has much sway.
even if the FBO permit had been granted in full, BEH's
First Amendment retaliation claim seeks monetary and punitive
damages, as well as reasonable attorneys' fees, for
conduct that predates the granting of the permit.
See Am. Compl. ¶¶ 235-237. “A case
becomes moot . . . ‘only when it is impossible for a
court to grant any effectual relief whatever to the
prevailing party.'” Campbell-Ewald Co. v.
Gomez, 136 S.Ct. 663, 669 (2016), as revised
(Feb. 9, 2016) (quoting Knox v. Service Employees
Int'l Union Local 1000,567 U.S. 298, 307 (2012));
see also Chafin v. Chafin,568 U.S. 165, 172 (2013)
(“As long as the parties have a concrete interest,