Summary
excusing plaintiff's failure to serve demand letter thirty days prior to filing of third amended complaint
Summary of this case from In re Chocolate Confectionary Antitrust LitigationOpinion
Civil Action No. 00-CV-05489
March 16, 2004
ANTHONY J. DIMARINO, III, FREDERICK A. TECCE, for of plaintiff David E. Lilly.
GERALDINE D. ZIDOW, J. BRUCE MC KISSOCK, for of defendant Turboprop East, Incorporated.
OPINION
This matter is before the court on Defendant's Rule 12(b)(6) Motion to Dismiss Plaintiff's Claim pursuant to the Massachusetts Regulation of Business Practice and Consumer Protection Act, or, in the Alternative, for Summary Judgment filed September 25, 2003. Defendant seeks to dismiss plaintiff's unfair-methods-of-competition claim under Massachusetts law from plaintiff's Third Amended Complaint. For the reasons expressed below, we deny defendant's motion.
On October 14, 2003, plaintiff filed his Response of Plaintiff David E. Lilly in Opposition to Defendant Turboprop East Incorporated's Rule 12(b)(6) Motion to Dismiss Plaintiff's Claim pursuant to the Massachusetts Regulation of Business Practice and Consumer Protection Act, or, in the Alternative, for Summary Judgment.
Procedural History
On August 13, 2003, we held argument on Defendant's Motion in Limine to Preclude Plaintiff's Claim pursuant to Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), which sought to dismiss plaintiff's claim under the UTPCPL. We granted the motion, but gave plaintiff 20 days in which to file an amended Complaint in which plaintiff was permitted to state a claim under the Massachusetts equivalent to Pennsylvania's law. On September 2, 2003, plaintiff filed a Third Amended Complaint with a claim under Massachusetts' unfair-methods-of-competition law. Defendant's within motion is in response to plaintiff's Massachusetts claim within the Third Amended Complaint. Defendant seeks either to have the claim dismissed under Rule 12(b) of the Federal Rules of Civil Procedure, or, in the alternative, to have the court grant summary judgment in favor of defendant on that claim.Jurisdiction and Venue
The within civil action was initiated on October 30, 2000. Plaintiff's Third Amended Complaint includes five counts. The Complaint alleges claims for breach of contract, negligence, breach of warranty, breach of implied warranty and a claim under Massachusetts' unfair-methods-of-competition law. Defendant's Answer contains one counterclaim for breach of contract. This action is before the court on diversity jurisdiction. See 28 U.S.C. § 1332. This court has supplemental jurisdiction over the counterclaim.See 28 U.S.C. § 1367. Venue is proper in the Eastern District of Pennsylvania.
Facts
Based upon the pleadings, affidavits, depositions and record papers, the pertinent facts are as follows. Plaintiff David E. Lilly owns and operates a Beechcraft King Air C90 aircraft which was manufactured in approximately 1971 under Serial Number LJ-532, bearing Federal Aviation Registration Number N575C ("the aircraft"). Because of either design or manufacturing flaws (according to plaintiff) or because of maintenance requirements for the aircraft (according to defendant), special care was required for certain fittings and structures in the wings of the aircraft. Defendant Turboprop East, Incorporated, is engaged in selling and installing SK Spar Strap Systems, which plaintiff believes improve the structural integrity of the outboard wing attachment fittings. In connection with defendant's sales efforts, defendant sent promotional brochures and videotapes to registered owners of affected King Air aircraft, including Mr. Lilly, in the Northeast region of the United States. The parties agree that defendant installed SK Spar Strap System on plaintiff's aircraft at a price of approximately $17,500.00. Federal Aviation Administration (FAA) regulations require periodic inspections for certain components of Beech King Air Series Aircraft. The regulations also require that a notation of successful completion of this inspection be entered in the aircraft's permanent record. On or about August 7, 2000, Lilly brought the aircraft to defendant for the purpose of conducting an inspection in accordance with the applicable requirements. The inspection took place at defendant's place of business in Massachusetts. During the course of the inspection the top two wing attachment bolts were removed, and a hydraulic jack was place under the left wing for support. After the jack was placed under the wing the jack "bled-down." On August 8, 2003, defendant showed Lilly that there was damage to the left wing of the airplane. In a letter dated August 11, 2000, Jean Calhoun, President of Turboprop, informed Lilly that steps "have been, and will be, taken by us to perform the repair on your aircraft that was the result of an erroneous oversight by Turboprop East, Inc." Thereafter, Raytheon Aircraft did work on the aircraft. When Raytheon Aircraft finished its work, plaintiff wanted to take the airplane from the Massachusetts facility to Allentown, Pennsylvania, the home base for the aircraft. Defendant requested payment for services it allegedly rendered and would not release the aircraft. On November 15, 2000, Lilly and Turboprop reached an agreement concerning the release of the aircraft. Lilly agreed to place $5,447.00 in an interest-bearing account pending resolution of the claims between the parties and Turboprop agreed to release the aircraft. Lilly picked up the aircraft on the evening of November 15, 2000.Standard for Motion to Dismiss
When considering a motion to dismiss the court must accept as true all factual allegations in the complaint and construe all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff. Jurimex Kommerz Transit G.M.B.H. v. Case Corp., 65 Fed. Appx. 803 (3d Cir. 2003)(citing Lorenz v. CSX Corp., 1 F.3d 1406, 1411 (3d Cir. 1993)). A Rule 12(b)(6) motion should be granted "if it appears to a certainty that no relief could be granted under any set of facts which could be proved." Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997). But a court need not credit a complaint's "bald assertions" or "legal conclusions" when deciding a motion to dismiss. 132 F.3d at 906.Discussion
Defendant avers that plaintiff failed to comply with the procedural requirements for filing a claim under Chapter 93A of the Massachusetts General Laws. Specifically, defendant contends that plaintiff must serve a notice of the claim and a demand for relief upon defendant 30 days prior to filing a cause of action or the claim is procedurally barred.See Mass. Gen. Laws, Ch. 93A, § 9 (1969). Because plaintiff did not do so, defendant seeks to dismiss Count V from plaintiff's Third Amended Complaint, alleging an unfair-methods-of-competition claim under Massachusetts law. For the following reasons, we disagree.
Plaintiff's failure to send a demand letter to defendant 30 days prior to filing the Third Amended Complaint is not fatal to plaintiff's unfair methods of competition claim. "The purpose of the demand letter . . . is to encourage negotiation and settlement and to control the amount of damages which the consumer might ultimately recover."Stark v. Patalano Ford Sales, Inc., 30 Mass. App. Ct. 194, 199, 567 N.E.2d 1237, 1240 (1991).
However, "[t]he thirty-day requirement is not necessarily jurisdictional." Tarpey v. Crescent Ridge Dairy, Inc., 47 Mass. App. Ct. 380, 391, 713 N.E.2d 975, 983 (1999)(citing York v. Sullivan, 369 Mass. 157, 163, 338 N.E.2d 341, 346 (1975)). In Tarpey, the Appeals Court of Massachusetts permitted a Chapter 93A claim to stand even though a demand letter was sent after plaintiff's amended complaint containing the unfair-competition claim was filed. Such is the case herein.
In the instant case, plaintiff served a demand letter on defendant together with his response to defendant's motion. Moreover, defendant was on notice that plaintiff sought to state a claim for unfair methods of competition and attempted to receive treble damages on the claim because plaintiff's UTPCPL claim was essentially equivalent to the Massachusetts claim. Consequently, defendant has the opportunity to control the measure of its damages. Accordingly, we conclude that the policy objectives behind the demand letter requirement are satisfied, and we deny defendant's motion to dismiss the claim.
Summary Judgment Standard
Summary judgment is proper when no genuine issue of material fact is in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Federal Home Loan Mortgage Corp. v. Scottsdate Insurance Company, 316 F.3d 431, 443 (3d Cir. 2003).Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Federal Home Loan Mortgage Corp., 316 F.3d at 443. Thus, a "material" fact is one that is necessary to establish an element under the substantive law governing a claim. An issue of material fact is "genuine" if it is such that it would enable a reasonable jury to return a verdict for the non-moving party. Anderson, supra.
When considering summary judgment, the court must take the facts in the light most favorable to the non-moving party. While the non-moving party is not burdened to prove his case as he might at trial, a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial.Anderson, supra.; Fed.R.Civ.P. 56(e). As a result, plaintiff, as the non-moving party, must set forth such facts that would permit a reasonable factfinder to conclude that the plaintiff can establish every element of his case.
Discussion
Plaintiff initially pursued an unfair-methods-of-competition claim under two alternate theories: (1) that defendant misrepresented what the SK Spar Strap System did, and plaintiff suffered the exact harm which defendant's device was supposed to prevent; or (2) that defendant misrepresented that maintenance and inspections would be conducted in a manner consistent with FAA regulations; and, to the contrary, maintenance and inspections were done by uncertified mechanics in violations of FAA regulations. It appears that plaintiff has abandoned the first theory in its current response. Accordingly, we address only plaintiff's second theory.
Plaintiff contends that defendant agreed to inspect and perform maintenance on the aircraft in accordance with FAA regulations. Having an uncertified mechanic inspect and perform maintenance on the aircraft allegedly violates FAA regulations. Thus, plaintiff contends that defendant violated an express and implied warranty concerning maintenance.
Generally, a breach of warranty constitutes a violation of Massachusetts General Laws Chapter 93A, Section 2. Moreover, it is not a defense to a Chapter 93A claim that the defendant's conduct was negligent rather than intentional. Maillet v. ATF-Davidson Company, Inc., 407 Mass. 185, 193, 552 N.E.2d 95, 100 (1990). Therefore, a reasonable factfinder could believe plaintiff's testimony that defendant made either an express or implied guaranty that it would abide by FAA regulations in the maintenance of the aircraft. Accordingly, there is a genuine issue of fact, and plaintiff has a viable cause of action under the Massachusetts unfair-methods-of-competition law.
The thrust of defendant's argument is that it is entitled to summary judgment because plaintiff cannot prove that defendant acted more than negligently. Because intent is irrelevant to whether or not plaintiff can state a cause of action under the Massachusetts unfair-methods-of-competition law, this argument is irrelevant.
See Maillet, 407 Mass. at 193, 552 N.E.2d at 100.
Defendant failed to provide any evidence establishing the lack of a genuine issue of material fact regarding whether defendant provided either an express or implied warranty to plaintiff (that the work done on the aircraft would be conducted in accordance with FAA regulations). Conversely, plaintiff submits his own testimony. Plaintiff's testimony establishes that defendant guaranteed plaintiff that it would abide by FAA regulations during maintenance of the aircraft. Accordingly, because plaintiff has demonstrated a disputed issue of material fact which must be resolved by a factfinder, summary judgment is inappropriate.