Opinion
CIVIL ACTION NO. 4:19-CV-01418
2020-10-29
UNITED STATES of America, Plaintiff, v. Michael D. KING, et al., Defendants.
Ariel Nicole Wiley, Keith Edward Wyatt, Office of U.S. Attorney, Houston, TX, for Plaintiff. Edward A. Rose, Jr., Edward A. Rose, Jr., Attorney at Law, PC, League City, TX, for Defendants.
Ariel Nicole Wiley, Keith Edward Wyatt, Office of U.S. Attorney, Houston, TX, for Plaintiff.
Edward A. Rose, Jr., Edward A. Rose, Jr., Attorney at Law, PC, League City, TX, for Defendants.
ORDER
Alfred H. Bennett, United States District Judge
Before the Court are Defendants’ Motion for Summary Judgment or Partial Summary Judgment (Doc. #17); the Government's Response (Doc. #21); Defendants’ Reply (Doc. #22); the Government's Motion for Summary Judgment (Doc. #18); and Defendants’ Response (Doc. #19). Having considered the parties’ arguments and applicable law, the Court grants partial summary judgment in favor of Defendants and denies summary judgment in favor of the Government.
I. Background
a. Federal Aviation Regulations
The Federal Aviation Administration ("FAA") regulates the safety of "civil aircraft in air commerce." 49 U.S.C. § 44701(a). The Federal Aviation Act (the "Act") defines "air commerce" as foreign or interstate "transportation of passengers or property by aircraft for compensation." See id. § 40102(a)(22) (defining "foreign air commerce"); id. § 40102(a)(24) (defining "interstate air commerce"). Under the Act, FAA issues Federal Aviation Regulations ("FARs") governing such "air commerce." Id. § 44701(a)(2). These rules distinguish between private or noncommercial carriage and common or commercial carriage, "with the latter subject to more stringent operating requirements." Flytenow, Inc. v. Fed. Aviation Admin. , 808 F.3d 882, 886 (D.C. Cir. 2015) ; see Fed. Aviation Admin. v. Landy , 705 F.2d 624, 628 (2d Cir. 1983) ("FAA has promulgated a far more extensive and stringent set of rules for certification and operation of ... commercial aviation.").
Generally, FAR Part 91 governs private or noncommercial carriage. Thibodeaux v. Exec. Jet Int'l, Inc. , 328 F.3d 742, 745 (5th Cir. 2003) ; see also Boeta v. Fed. Aviation Admin. , 831 F.3d 636, 638 (5th Cir. 2016) (noting that, without additional certification, aircraft lessor could operate only under Part 91, "noncommercially, for its or its lessee's own use"). Commercial operations may not be conducted under Part 91, except as provided for in Subpart F. See 14 C.F.R. § 91.501(b) (allowing certain types of commercial operations to be conducted under Part 91 "when common carriage is not involved"); see also id. § 1.1 (defining "commercial operator" as "person who, for compensation or hire, engages in the carriage by aircraft in air commerce of persons or property, other than as an air carrier"). Rather, commercial operations "have traditionally been subject to the more stringent safety standards of FAR Part 135." Thibodeaux , 328 F.3d at 745. To operate commercially under Part 135, the operator must obtain a certificate under FAR Part 119 and "operations specifications." Boeta , 831 F.3d at 639 (citing 14 C.F.R § 119.33(a), (b) ).
Part 119 applies to commercial operators and air carriers in air commerce. Id. § 119.1(a). The Act and FARs define an "air carrier" as "a person engaged in transportation of passengers as a ‘common carrier.’ " Flytenow , 808 F.3d at 886 ; see 49 U.S.C. § 40102(a)(2) ("air carrier" is person "undertaking by any means, directly or indirectly, to provide air transportation"); id. § 40102(a)(23), (25) (interstate and foreign air transportation is "transportation of passengers or property by aircraft as a common carrier for compensation"); 14 C.F.R. § 1.1 (air carrier is "person who undertakes directly by lease, or other arrangement, to engage in air transportation"). An air carrier who obtains or should obtain certification under Part 119 must also comply with the safety requirements of Part 135, which include:
• using manuals to conduct operations, id. § 135.21(a) ;
• keeping records of each pilot used, id. § 135.63(a)(4) ;
• exercising operational control of the aircraft, id. § 135.77; and
• creating and implementing training programs. Id. § 135.323(a).
b. Factual Background
Michael D. King owns and manages the flight instruction and aircraft rental company Ascent Aviation Solutions, LLC ("Ascent"). Doc. #1 ¶ 12; Doc. #18, Ex. E at 20:17–19. Ascent is the registered owner of a 1972 Cessna Citation 500 jet (the "Cessna"). Id. at 1, Ex. A at 1. While working as a contract pilot for the charter flight service "TapJets," King met Kevin Williams, a customer of TapJets. Doc. #19, Ex. B at 12:6–12; Doc. #21, Ex. L at 57:2–11. At that time, King told Williams that the Cessna was available to lease. Doc. #19, Ex. B at 14:8–15; Doc. #21, Ex. L at 57:12–15.
On February 10, 2017, Ascent and Williams executed the "Aircraft Dry Lease Agreement" leasing the Cessna to Williams for one year "without crew on a non-continuous, non-exclusive basis" (the "Dry Lease"). Doc. #17, Ex. B. The Dry Lease provided that Williams was to "be considered responsible for the operational control of the [Cessna]" "when the Aircraft has been scheduled and tendered" to him. Id. at 2. It also required Williams to contract only qualifying pilots, pay Ascent $1,000 "per flight hour," and cover incidental operating expenses, in addition to requiring Ascent to pay for repairs, maintenance, and aircraft insurance. Id. at 2–4.
Under a dry lease, a "lessor provides an aircraft to a lessee without furnishing the pilot or any other crew members." Boeta , 831 F.3d at 638. By contrast, under a wet lease, the lessor provides the lessee with "an entire aircraft and at least one crewmember." 14 C.F.R. § 110.2.
Between February 15, 2017 and August 17, 2017, Williams used the Cessna on fourteen flights within the United States (the "14 Flights"). Doc. #18, Ex. J at 1–12. It is undisputed that Williams paid for the fuel, pilots’ fees, and airport expenses for the 14 Flights. See Doc. #17, Ex. C at 22:1–2, 84:15–17; Doc. #18, Ex. D at 53:14–54:6. But the parties dispute whether Williams or King contacted and hired the pilots for those flights. See Doc. #17 ¶ 28; Doc. #18 at 1.
On August 17, 2017, Williams used the Cessna to travel to Nashville, Tenn. on a flight piloted by Robert Hans. Id. , Ex. J at 14. Like King, Hans was a contract pilot for TapJets and had also worked as a pilot examiner for King. Doc. #17, Ex. 2 ¶¶ 2, 4; Doc. #21, Ex. L at 82:21–83:4. When Williams and Hans landed in Nashville, FAA personnel performed a "ramp check" on the Cessna. Doc. #17, Ex. 2 ¶¶ 4–6; Doc. #21, Ex. M at 94:13–20. Ultimately, this "ramp check" ended Williams and King's "entire relationship." Id. , Ex. L at 59:16–19.
A "ramp check" permits FAA officers "to examine the pilot's and aircraft's licensing and certification to ensure that they conform to FAA regulations." United States v. Zukas , 843 F.2d 179, 181 (5th Cir. 1988).
c. Procedural History
On April 18, 2019, the Government filed suit against King and Ascent (collectively "Defendants"), alleging that the Dry Lease "was a sham lease designed to avoid Parts 119 and 135." Doc. #1 ¶ 26. The Government also asserts that Defendants operated the 14 Flights under Part 135 without obtaining proper certification, operations specifications, or authorization from FAA or meeting additional safety requirements, resulting in seventeen total violations of FARs. Id. ¶¶ 27–33. For each of the violations alleged, the Government seeks up to $12,586 in civil penalties, pursuant to 49 U.S.C. § 46301(a). Id. ¶ 34.
On February 23, 2020, Defendants filed the Motion for Summary Judgment or Partial Summary Judgment ("Defendants’ Motion"), arguing that the Government could not raise a genuine issue of fact as to whether Defendants had operated under Part 91 and whether Williams had operational control of the 14 Flights. Doc. #17. The Government moved for summary judgment on February 24, 2020 (the "Government's Motion"), alleging that Defendants had conducted the 14 Flights in common carriage and with operational control, in violation of Parts 119 and 135. Doc. #18. The parties have also filed responsive pleadings opposing the respective motions for summary judgment. See Doc. #19 (Defendants’ Response to the Government's Motion); Doc. #21 (the Government's Response to Defendants’ Motion); Doc. #22 (Defendants’ Reply to the Government's Response).
Defendants have also filed a "Motion to Exclude or Limit Testimony of Plaintiff's Unretained Experts," Charles Tompkins and Tim Allen, arguing that the Government "has failed to provide a meaningful summary of the facts and opinions to which they will testify at trial," pursuant to Federal Rule of Civil Procedure 26(a)(2)(C). Doc. #15. Under that rule, witnesses not required to submit a written report must provide "a summary of the facts and opinions to which [they] [are] expected to testify." Fed. R. Civ. P. 26(a)(2)(C)(ii). A "summary of opinions" is "a brief account of the main opinions of the expert," and a "summary of facts" is "a brief account of facts—only those on which the expert actually relied in forming his or her opinions—that states the main points derived from a larger body of information." Tolan v. Cotton , CIV.A. H-09-1324, 2015 WL 5332171, at *6 (S.D. Tex. Sept. 14, 2015) (quoting Little Hocking Water Assoc., Inc. v. E.I. DuPont de Nemours and Co. , No. 2:09-cv-1081, 2015 WL 1105840, at *9 (S.D. Ohio Mar. 11, 2015) ).
Here, the summaries for the Government's unretained experts meet the requirements of Rule 26. The summary for Tompkins states that he will testify as to "his investigation, FAA requirements for operating commercial flights in the United States, which regulations King violated, and damages." Doc. #15 at 2. The summary for Allen is largely similar, except that Allen may also testify as to "Part 135 air carrier operations, illegal charter operations, aircraft leases, FAA advisory circulars pertaining to illegal charters, and [Parts 91, 119 and 135]." Id. Thus, the Court finds the Government has sufficiently stated a "brief account" of Tompkins and Allen's main opinions and the facts they relied upon in forming those opinions. The Court also notes that the jury trial in this case has not been reset since it was cancelled on April 17, 2020, pursuant to Special Order H-2020-6, giving Defendants additional time to prepare for the experts’ trial testimony. Doc. #25. Accordingly, Defendants’ Motion to Exclude is hereby DENIED.
II. Legal Standard
a. Motion for Summary Judgment
Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56. "A genuine dispute of material fact exists when the evidence is such that a reasonable jury could return a verdict for the nonmoving party. The moving party bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record ... demonstrat[ing] the absence of a genuine issue of material fact. Once the moving party fulfills this responsibility, the non-moving party must go beyond the pleadings and ... designate specific facts showing that there is a genuine issue for trial." Nola Spice Designs, LLC v. Haydel Enterprises, Inc. , 783 F.3d 527, 536 (5th Cir. 2015) (cleaned up). When parties have filed cross-motions for summary judgment, the court evaluates "each party's motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party." Cooley v. Hous. Auth. of City of Slidell , 747 F.3d 295, 298 (5th Cir. 2014) (quoting Ford Motor Co. v. Tex. Dep't of Transp. , 264 F.3d 493, 498 (5th Cir. 2001) ).
b. Aircraft Leases
Under Part 91, a lease is "any agreement by a person to furnish an aircraft to another person for compensation or hire, whether with or without flight crewmembers." 14 C.F.R. § 91.23(e). An aircraft owner entering into a leasing arrangement may bring its operations under Part 91 and avoid acting as an air carrier by executing a dry lease of the aircraft and transferring operational control to the lessee. See Boeta , 831 F.3d at 638 (explaining that aircraft owner may transfer possession and operational control of aircraft to another entity through dry lease under which owner provides aircraft to lessee "without furnishing the pilot or any other crew members"). But if the owner operates as a common carrier and retains operational control, Parts 119 and 135 govern its operations, even if it has executed a leasing agreement. See Woolsey v. Nat'l Transp. Safety Bd. , 993 F.2d 516, 525 (5th Cir. 1993) (finding that lessor operating aircraft in common carriage could not "bring these operations under Part 91," because "it is the objective conduct of himself and his corporation which bring their actions under FAR Part 135"); Decruz v. Elwell , 751 F. App'x 1, 2–3 (D.C. Cir. 2018) ("Parts 119 and 135 apply when a pilot engages in common carriage and has control over the operational functions performed in providing that transportation.").
1. Common Carriage
Because neither the Act nor FARs define "common carriage," courts look primarily to the common law relating to air carriers to determine common carrier status. Woolsey , 993 F.2d at 522. In evaluating common carrier status, "[t]he crucial determination ... is whether the carrier has held itself out to the public or to a definable segment of the public as being willing to transport for hire, indiscriminately." Id. at 523 ; see FED. AVIATION ADMIN. , U.S. DEP'T OF TRANSP. , No. 120-12A, PRIVATE CARRIAGE VERSUS COMMON CARRIAGE OF PERSONS OR PROPERTY ¶ 4 (Apr. 24, 1986) [hereinafter "Advisory Circular 120-12A"] ("A carrier becomes a common carrier when it ‘holds itself out’ to the public, or to a segment of the public, as willing to furnish transportation within the limits of its facilities to any person who wants it."). An air carrier qualifies as a "common carrier" when it "affirmatively" holds itself "out to the public, either by advertising or by a course of conduct evincing a willingness to serve members of the general public (or a segment thereof) indiscriminately, so long as they are willing to pay the fee." Woolsey , 993 F.2d at 524 n.24. In the leasing context, courts have found common carrier status even if an aircraft operator holds out transportation services only to a limited segment of the general population. See Thibodeaux , 328 F.3d at 745, 752–53 (operator of aircraft used in shared ownership and leasing program was common carrier where the program had been "marketed on the internet, through direct mail, in business and upscale publications, and at public and quasi-public events," and where its services were offered "indiscriminately" to anyone "willing to pay for those services"); Woolsey , 993 F.2d at 518, 524–25 (operator of aircraft subject to leasing agreement with famous musician was common carrier where it "had marketed itself to numerous rock stars, and sought to enter and capture the country music industry by directly soliciting the business of country music luminaries," and where there was no evidence that it had "ever turned away any member of the music industry who was able to pay [its] fees"); see also Decruz , 751 F. App'x at 4 (operator of flights conducted under dry lease was common carrier where the record contained evidence of his "expressions of willingness to provide transportation to multiple individuals" and "reputation for providing such transportation").
2. Operational Control
Operational control is "the exercise of authority over initiating, conducting or terminating a flight." 14 C.F.R. § 1.1. In examining operational control, the court "looks beyond the words of a lease to the real-world circumstances of the flight." Decruz , 751 F. App'x at 5 ; see also Landy , 705 F.2d at 631 ("[Courts] have looked beyond the form of contractual agreements to the substance of actual aircraft operations, sanctioning those who effectively operate an aircraft for compensation or hire in violation of FAA safety regulations."). "FAA has taken the position that if a person leases an aircraft to another and also provides the flightcrew[sic], fuel, and maintenance, the lessor of the aircraft is the operator." FED. AVIATION ADMIN. , U.S. DEP'T OF TRANSP. , NO. 91-37B, TRUTH IN LEASING ¶ 8.3 (Feb. 10, 2016) [hereinafter "Advisory Circular 91-37B"]. FAA has also set forth seven factors to consider when deciding whether a lessor has retained operational control:
1. who decides to assign crewmembers and aircraft, accepts flight requests, and initiates, conducts, and terminate flights;
2. who do the pilots work for;
3. who maintains the aircraft, and where is it maintained;
4. who ensures the flight, aircraft, and crew comply with regulations before departure;
5. who decides when or where to perform maintenance, and who directly pays it;
6. who determines weather and fuel requirements, and who directly pays for fuel; and
7. who directly pays for airport fees, parking and hangar costs, food service, or rental cars."
Id. ¶ 6.3 (the "91-37B Factors").
III. Analysis
a. Defendants’ Motion
1. Common Carrier Status
Defendants first argue that, because King "merely leased" the Cessna to Williams, there "is no reasonable dispute that Defendants were operating under Part 91." Doc. 17 ¶¶ 25–26. Defendants further argue that neither Ascent nor King held "themselves out to provide transportation" to Williams. Id. ¶ 34. In the Response, the Government contends that Defendants "held themselves out as common carriers by advertising and consistently leasing [the Cessna]." Doc. #21 at 2–3.
Here, it is undisputed that Defendants did not meet the requirements of Parts 119 or 135 in conducting the 14 Flights. See Doc. #18 at 8 ("Defendants admit that they did not hold an air certificate, operations specifications, or an air operator certificate issued by the FAA from February 15, 2017 to August 17, 2017."); Doc. #17 ¶ 35 ("Defendants are not in violation Part 119 because the defendants operate under Part 91. Part 119 only applies to operations under Part 121, 125, or 135."). In sworn deposition testimony, King stated that he was "not sure" whether he had advertised the Cessna "for leasing" but "might have." Doc. #18, Ex. E at 61:15–17. King also stated that Williams was "still looking at buying" his own aircraft for business travel while leasing the Cessna from King. Doc. #21, Ex. L at 59:9–25. Additionally, Plaintiffs submitted evidence of three other dry leases executed by King that are nearly identical to the Dry Lease. Id. , Ex. K.
Even viewed in the light most favorable to the Government, this evidence is insufficient to support a jury finding that Defendants held themselves out to the public "as being willing to transport for hire, indiscriminately." Woolsey , 993 F.2d at 523. Although King conceded that he "might have" advertised the Cessna, the Government has produced no evidence of such advertisements or where King may have posted them. Cf. Thibodeaux , 328 F.3d at 753 at 752–53 (operator was common carrier where its aircraft had been used in shared ownership and leasing program "marketed on the internet, through direct mail, in business and upscale publications, and at public and quasi-public events"). Indeed, the Government has not even identified a segment of the public that King may have served "indiscriminately." Cf. Woolsey , 993 F.2d at 524–25 (lessor was common carrier where it was "directly soliciting the business of country music luminaries" and had "never turned away any member of the music industry who was able to pay [its] fees"). Likewise, the Government offered no evidence of how Defendants operated under the other dry lease agreements, which would indicate that King held himself out as "willing to furnish transportation" "to any person who wants it." See Advisory Circular 120-12A ¶ 4. Therefore, because "only those carriers who affirmatively hold themselves out to the public" qualify as common carriers, the Court finds that the Government failed to submit evidence sufficient to demonstrate that Defendants acted as common carriers. See Woolsey , 993 F.2d at 524 n.2. Accordingly, because the Government failed to establish a genuine factual dispute as to common carrier status, the Court grants Defendants’ Motion on the issue of common carriage. See Nola Spice , 783 F.3d at 536.
The Government also has moved for summary judgment as to common carrier status, asserting that Williams and King's testimony and the express terms of the Dry Lease show that Defendants had operated the 14 Flights in common carriage. Doc. #18 at 12. But the Government relies on the same evidence cited in the Response to Defendant's Motion, which the Court has determined is insufficient to defeat summary judgment. Because the Government has failed to raise a genuine factual dispute as to whether Defendants acted as common carriers, the Court need not independently evaluate the Government's Motion for summary judgment purposes. Accordingly, the Court denies the Government's Motion on the issue of common carriage.
2. Operational Control
Defendants next argue that the Government failed to produce evidence showing Williams did not have operational control of the Cessna. Doc. #17 ¶¶ 10, 34. Specifically, Defendants deny providing or paying the pilots for the 14 Flights or managing any flights or flight plans. Id. ¶ 29. In the Response, the Government asserts that, under the 91-37B factors, "Defendants controlled all the factors that applied to [the 14 Flights]" and served as "the single source of the aircraft and pilot services." Doc. #21 at 3, 6.
Here the Dry Lease contained an "Operational Control" provision stating that, "[f]or the times when the [Cessna] has been scheduled and tendered to [him]," Williams was to "be considered responsible for the operational control of the Aircraft under this lease." Doc. #17, Ex. B at 2. The Dry Lease also required Williams to (1) pay Ascent $1,000 "per flight hour as recorded on the Hobbs meter"; (2) "contract only those pilots who meet or exceed all the qualifications established by policies of insurance" for the Cessna; and (3) "pay for all expenses incidental to the operation of the Aircraft while in [his] possession," including fuel costs, crew salaries, landing and handling fees, and "any other incidental expenses." Id. In turn, Ascent agreed to (1) "make the [Cessna] available to [Williams] at [Williams's] request"; (2) pay for maintenance and repairs; and (3) maintain insurance coverage. Id. at 2–4. Additionally, it is undisputed that Williams arranged the 14 Flights by calling or emailing King and asking if the Cessna was available. Doc. #18, Ex. D at 45:25–47:1. But the parties dispute whether Williams or King contacted and hired pilots for these flights. See Doc. #17 ¶ 28 and Doc. #18 at 1. In sworn deposition testimony, Williams stated that he hired pilots "through" King and was "relying on [King] to use qualified pilots" because he was not a pilot. Id. , Ex. D at 40:1–5, 71:2–8. Williams further stated that King did not provide him with a list of pilots to choose from and that King piloted "half or better" of the 14 Flights. Id. at 83:18–20, 27:22–28:10. Williams also denied doing "anything else to set up" the 14 Flights besides contacting King to reserve the Cessna and "handing [his] credit card over." Id. at 63:25–64:4. Lastly, Hans, the pilot on the Nashville flight, stated that he could not recall whether Williams had contacted him to arrange that flight. Doc. #21, Ex. M at 21:12–18.
The Government also cites an "Aviation Safety Inspector's Report" prepared in connection with the ramp check conducted on August 17, 2017. Doc. #18, Ex. I. The Inspector's Report contains an "Aircraft Crew Checklist" and "Passenger Checklist" (the "Checklists") stating that King had scheduled the flight, assigned the crew and pilots, and paid for and "accomplished" maintenance. Id. at 3–4. On March 15, 2020, Defendants objected to the admissibility of the Checklists as hearsay and untrustworthy, arguing that "these documents do not indicate who the person(s) are that answered the questions on these checklists." Doc. #20. Because the Court does not rely on the Checklists in resolving Defendant's Motion, it need determine their admissibility at this stage. Accordingly, Defendants’ objections are hereby ‘OVERRULED as moot.
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Viewed in the light most favorable to the Government, this evidence is sufficient for a reasonable jury to find that King had operational control of the Cessna during the 14 Flights, even if the Dry Lease expressed otherwise. See Decruz , 751 F. App'x at 5 ("The operational-control test looks beyond the words of a lease to the real-world circumstances of the flight."). In particular, Williams's testimony stating that King had selected the pilots for the 14 Flights, as well as the provisions of Dry Lease requiring King to maintain the Cessna, raises the inference that King assumed operational control of the Cessna even while Williams was using the plane. See Advisory Circular 91-37B ¶ 8.3 ("[I]f a person leases an aircraft to another and also provides the flightcrew [sic], fuel, and maintenance, the lessor of the aircraft is the operator."). The evidence also shows that King assigned and employed the pilots, accepted flight requests, was responsible for maintaining the Cessna, and paid for maintenance and repairs, suggesting that four 91-37B factors weigh in his favor. See id. ¶ 6.3 (factors one, two, three, and five). Therefore, because the Government has produced evidence sufficient to establish that King retained operational control of the Cessna, the Court finds that a genuine factual dispute exists as operational control. See Nola Spice , 783 F.3d at 536. Accordingly, the Court denies Defendants’ Motion on the issue of operational control.
b. The Government's Motion
Having considered Defendant's Motion on its own merits as to operational control, the Court now independently evaluates the Government's Motion to determine whether the evidence relating to operational control is sufficient to grant summary judgment in its favor. See Cooley , 747 F.3d at 298 (quoting Ford , 264 F.3d at 498 ) ("When parties file cross-motions for summary judgment, we review ‘each party's motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party.’ "). In seeking judgment as a matter of law, the Government asserts that "King conducted all of the preparation" for the 14 Flights, thus demonstrating operational control. Doc. #18 at 7–8. In the Response, Defendants maintain that Williams provided and paid for the pilots on the 14 Flights and that those pilots had managed the flights, as well as prepared flight plans. Doc. #19 at 13.
Here, Williams provided sworn deposition testimony stating that he:
• hired pilots only "through" King, Doc. #18, Ex. D at 40:1–5;
• relied on King "to use qualified pilots," id. at 71:2–8;
• "wasn't given a list where [he] could choose this pilot or that pilot," id. at 83:18–20;
• scheduled flights by contacting King and asking if the Cessna was available, id. at 45:25–47:1; and
• did not ensure "flight aircraft and crew were in line with regulations," determine weather and fuel requirements, or do "anything else" besides reserving the plane and handing over his credit card.
Id. at 55:17–22, 57:4–24, 63:25–64:4. Williams also stated that King piloted "half or better" of the 14 Flights. Id. at 27:22–28:10. Additionally, the Dry Lease required King to (1) "repair and maintain the [Cessna]"; (2) "pay all costs and expenses of new parts and accessories for replacement"; and (3) maintain "insurance covering the [Cessna]." Id. , Ex. A at 2–4. It also required that Williams pay for "all expenses incidental to the operation of the [Cessna]," including "fuel, crew salaries, catering, Aircraft supplies, crew expenses, landing fees." Id. at 3.
Further, King provided a sworn declaration stating that he did, in fact, provide Williams with "a list of pilots to choose from that [King] knew were rated in the aircraft" and "met the insurance requirements." Doc. #17, Ex. 1 ¶ 3; see also id. , Ex. D (list entitled "Citation Pilots"). King also stated that he gave Williams this pilot list the first time that Williams had rented the Cessna, and Williams could choose "anybody" from that list. Doc. #21, Ex. L at 75:8–13. Additionally, Williams's credit card statements show that he made payments directly to King, Hans, and various airports between February 17, 2017 and August 19, 2017. Doc. #18, Ex. G.
Moreover, in a sworn declaration, Hans stated that he "assumed" Williams had contacted him to conduct the August 17, 2017 flight and that he "was responsible for pre-flighting the aircraft pursuant to the manufacturer's checklist, preparing and filing the flight plan, the route to be taken, and to check the weather to see if the flight was feasible." Id. , Ex. 2 ¶ 4. Hans also stated that he "never received any compensation from [Ascent] for piloting [the Cessna] on a dry lease." Id. ¶ 5. Finally, King's expert Lawson Brown II stated that Williams "arranged the pilots and paid directly for the pilots for each and every trip at issue." Id. , Ex. 3 ¶ 4. Brown further stated that King did not have operational control during the 14 Flights because he did not provide pilots, create flight plans, or make flight decisions based on weather conditions. Id. ¶ 5.
Viewed in the light most favorable to Defendants, this evidence is sufficient for a reasonable jury to render a verdict in Defendant's favor as to operational control. In particular, because King stated that Williams had selected and paid for the pilots, and the Dry Lease required Williams to assume operational control and pay for incidental operating expenses, a reasonable jury could conclude that Williams had some "authority over initiating, conducting or terminating flights." 14 C.F.R. § 1.1. The evidence also suggests that King neither provided flight crews nor paid for fuel for the 14 Flights, which weighs against a finding of operational control. Cf. Advisory Circular 91-37B ¶ 8.3 ("person [who] leases an aircraft to another and also provides the flightcrew, fuel, and maintenance ... is the operator"). Lastly, the evidence shows that Williams arranged the 14 Flights and paid for the pilots, fuel, and airport fees, thereby supporting an inference that four 91-37B factors weigh in his favor. See Advisory Circular 91-37B (factors one, four, five, and six). Thus, the Court finds that Defendants have established a genuine factual dispute as to operational control, and the Government failed to meet its burden at summary judgment. See Nola Spice , 783 F.3d at 536. Accordingly, because Defendants have produced evidence sufficient to demonstrate a triable fact issue, the Court denies the Government's Motion on the issue of operational control.
IV. Conclusion
Because the Govenunent failed to produce evidence raising a triable issue of fact as to common carrier status, the Court finds that Defendants partial summary judgment is warranted. Additionally, because neither the Government nor Defendants have established the absence of a genuine factual dispute as to operational control, the Court concludes that neither party is entitled to summary judgment.
Accordingly, the Court hereby ORDERS that Defendants’ Motion be GRANTED IN PART and DENIED IN PART and that the Government's Motion be DENIED.
It is so ORDERED.