Airtran Airlines, Inc. v. Plain Dealer Pub. Co.
| Decision Date | 14 September 1999 |
| Docket Number | No. 1:98-CV-1750-CAM.,1:98-CV-1750-CAM. |
| Citation | 66 F.Supp.2d 1355 |
| Parties | AIRTRAN AIRLINES, INC., Plaintiff, v. PLAIN DEALER PUBLISHING CO., doing business as the Plain Dealer, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Wayne Grant, L. Lin Wood, Jr., Kimberly W. Rabren, Wood & Grant, Atlanta, GA, for AirTran Airlines, Inc., plaintiff.
Peter Crane Canfield, Sean R. Smith, Cynthia L. Counts, Dow Lohnes & Albertson, Atlanta, GA, for Plain Dealer Pub. Co., defendant.
The above-styled action is before the court on 1) defendant's motion for summary judgment [# 27]; 2) plaintiff's motion to extend time to respond to defendant's motion for summary judgment [# 33]; 3) plaintiff's motion for leave to file supplemental brief [# 45]; 4) defendant's motion to stay discovery [# 29]; 5) defendant's motion for protective order [# 48]; 6) defendant's motion to dismiss [# 25-2]; and 7) plaintiff's motion to extend time for discovery [# 51].
Plaintiff AirTran Airlines, Inc. ("AirTran") operates a domestic airline. Prior to January 11, 1998, AirTran had operated as ValuJet Airlines, Inc. ("ValuJet"). In 1996, a ValuJet plane crashed into the Florida Everglades claiming 110 victims and leading to an ongoing FAA investigation and oversight of plaintiff. From October 20, 1997 to January 30, 1998, the Federal Aviation Administration ("FAA") conducted a National Aviation Safety Inspection Program ("NASIP") inspection of AirTran. The FAA drafted several documents during the course of the NASIP inspection.
On January 11, 1998, defendant The Plain Dealer published an article, which was prepared by Elizabeth A. Marchak (the "Article"). (Smith Declaration, Tab 1). The Article's headline read:
New name, old problems for ValuJet
FAA finds faults at AirTran
Safety violations
continue to plague airline
documents show
FAA finds faulty repairs, other problems at AirTran
The Article consists of the following 22 paragraphs:
When FAA inspectors recently visited a contractor repainting several former ValuJet Airlines planes with the company's new red, teal and white paint scheme, they discovered that rudders used to steer the planes in flight had been improperly reinstalled.
Those inspectors found other serious safety violations concerning the airline, now called AirTran Airlines, including falsified documents, improper maintenance, faulty repairs and repeated failures to supervise contractors, according to internal Federal Aviation Administration documents obtained by The Plain Dealer.
The documents, based on a three-week inspection that ended Nov. 7, show the airline had a larger number of serious safety-related violations than a February 1996 report that recommended the airline be grounded. That warning went unheeded until after the May 11, 1996, crash of ValuJet Flight 592 in the Everglades claimed 110 lives.
After the crash, the FAA said the airline had lost control of its maintenance and the airline voluntarily grounded itself for four months until Sept. 30, 1996.
Last September, ValuJet changed its name and its paint scheme. It now serves 45 locations, including Akron-Canton Regional Airport.
Lori LeRoy, an AirTran spokeswoman, declined to discuss specific safety problems mentioned in the FAA documents, but said, "Informally, we understand that the outcome was excellent." She declined further comment.
The FAA documents include a preliminary draft of the agency's AirTran inspection report. The draft report mentions numerous safety problems that have been documented in at least four previous FAA inspections and one conducted by the Defense Department. The draft report alleges:
✓ Three instances of failing to properly calculate the proper weight and balance of aircraft to determine safe takeoff and landing speeds.
✓ A senior pilot who oversees the qualifications of other pilots falsified information about the experience of an unspecified number of them.
✓ Failure to examine seven planes' transponders, which send out altitude and directional information to traffic controllers, after the planes received major overhauls.
✓ Improperly trained workers renovated an unspecified number of cabins to make way for larger business-class seats and modify the passengers' emergency oxygen system.
✓ Failure to have an FAA-required program to properly inspect fuel tanks for corrosion.
Margaret Gilligan, the FAA's deputy associate administrator for regulation and certification, said she could not comment until the final report is completed and its findings are validated.
"I think we do want to make it clear we are very mindful of the continuing interest by the public in aviation safety generally and in our continued oversight of AirTran," she said. "We are considering that as we continue to refine this inspection."
Refining the AirTran inspection apparently has provoked an internal dispute between the FAA team that performed the inspection and the Atlanta FAA office that oversees AirTran, sources familiar with the inspection say. Such inspections are widely accepted in the aviation industry as not only an evaluation of the airline, but also of the FAA office that routinely oversees it.
Another indication of an apparent internal dispute is the length of time it has taken for the AirTran report to be completed. Such reports usually are finalized within about 30 days and available to the public under the Freedom of Information Act.
Gilligan, however, downplayed the issue, describing it as a disagreement over the findings, and defended the agency's oversight. She said a second team was sent to reinspect the airline in late November and early December. She said both teams had been ordered to prepare the final report.
The FAA's AirTran inspections come 18 months after the agency promised Congress, families of those killed in the ValuJet crash and the flying public that it would change the way it oversees ValuJet and other emerging airlines. It vowed to better inspect airlines, better train its inspectors and better use its resources.
The agency's promises won support and praise in Congress, which added $758 million to the FAA's $8 billion budget to make improvements, including hiring 367 additional safety inspectors.
Concern about the FAA's recent inspection of AirTran has attracted the attention of Democratic Rep. Peter A. DeFazio of Oregon, who said Friday that he had asked FAA Administrator Jane Garvey for a full accounting of the airline's safety problems.
"They [FAA] are acting more to protect the industry or, in this case, one particular carrier than they are to fully inform the public of concerns that they have that the flying public would share," said DeFazio, a member of the House Transportation subcommittee on aviation, which conducted hearings in 1996 into the fatal crash.
And Republican Sens. John McCain of Arizona, chairman of the Commerce, Science and Transportation Committee, and Slade Gorton of Washington, chairman of the committee's aviation subcommittee, are scheduled to be briefed by the FAA tomorrow concerning the AirTran inspection, according to a Senate official.
(Smith Declaration, Tab 1).
On June 22, 1998, plaintiff filed its complaint for libel. In its complaint, plaintiff alleged that the Article contained numerous false and defamatory statements which damaged plaintiff's business and business reputation by conveying to the public that plaintiff operated an unsafe airline. Plaintiff further alleged that the false and defamatory statements about plaintiff were negligently published by defendant and were published with actual malice.
Rule 56 of the Federal Rules of Civil Procedure defines the standard for summary judgment: Courts should grant summary judgment when "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). The party seeking summary judgment bears "the initial responsibility of informing the ... court of the basis for its motion, and identifying those portions of [the record] `together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Adickes v. S.H. Kress and Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437-38 (11th Cir.1991).
In meeting this initial responsibility, for issues on which the movant would bear the burden of proof at trial, "that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial." Four Parcels of Real Property, 941 F.2d at 1438 (citations and internal quotation marks omitted). For issues on which the non-movant would bear the burden of proof at trial,
the moving party is not required to support its motion with affidavits or other similar material negating the opponent's claim .... [T]he moving party simply may show[] — that is, point[ ] out to the district court — that there is an absence of evidence to support the non-moving party's case. Alternatively, the moving party may support its motion for summary judgment with affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial.
Four Parcels of Real Property, 941 F.2d at 1438 (citations, footnote and internal quotation marks omitted).
In determining whether the movant has met its burden, the court views the evidence in the light most favorable to the party opposing the motion. Adickes, 398 U.S. at 158-59, 90 S.Ct. 1598. Moreover, "[r]easonable doubts as to the facts should be resolved in favor of the nonmoving party," Borg-Warner Acceptance Corp. v. Davis, 804 F.2d 1580, 1582...
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