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Boston Executive Helicopters, LLC v. Town of Norwood

United States District Court, D. Massachusetts

November 9, 2017




         The 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[1] - retaliated against plaintiff Boston Executive Helicopters, Inc. (BEH), after BEH filed complaints against NAC with the Federal Aviation Administration (FAA).

         The 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.


         The 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), [2] 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.[3] 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.[4]

         On 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.[5] 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.

         At the 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. ¶ 74.[6]

         On June 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.

         On 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.[7] 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.

         Meanwhile, 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.

         BEH 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.


         Summary 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).

         As a 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.

         First, 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, ...

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