Int'l Aerobatics Club Chapter 1 v. City of Morris, 13 C 04272

• Decision Date: 22 December 2014
• Docket Number: No. 13 C 04272,13 C 04272
• Citation: 76 F.Supp.3d 767
• Parties: International Aerobatics Club Chapter 1 and Nicholas Scholtes, Plaintiffs, v. City of Morris, Jeffrey Vogen, and Sid Nelson, Defendants.
• Court: U.S. District Court — Northern District of Illinois

76 F.Supp.3d 767

International Aerobatics Club Chapter 1 and Nicholas Scholtes, Plaintiffs

v.City of Morris, Jeffrey Vogen, and Sid Nelson, Defendants.

No. 13 C 04272

United States District Court, N.D. Illinois, Eastern Division.

Signed December 22, 2014

Cal Richard Burnton, Colin Patrick O'Donovan, Thomas Ivan Matyas, Edwards Wildman Palmer LLP, Chicago, IL, for Plaintiffs.

Bradford Scott Purcell, Mark J. Mickiewicz, Jonathan P. Schaefer, Michael Duane Sanders, Thomas B. Underwood, Purcell & Wardrope, Chtd., Jennifer E. Simms, Baugh, Dalton, Carlson & Ryan, LLC, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

JOHN J. THARP, Jr., United States District Judge

The plaintiffs, Chapter 1 of the International Aerobatics Club and one of its members, Nicholas Scholtes, claim that the City of Morris is impermissibly regulating flight—which, they contend, only the Federal Aviation Administration can do—and is maliciously and arbitrarily threatening the Club's members with prosecution under a local ordinance and regulations. Scholtes was in fact prosecuted for a violation of the Morris ordinance, although the charge eventually was dropped. The defendants are the City of Morris, where the airport from which the Club operates is located, the airport manager, Jeffrey Vogen, and former airport manager and current “Airport consultant” Sid Nelson, both of whom are alleged to be agents of the City of Morris. They have moved to dismiss the entire complaint. First, they argue that the Court lacks subject matter jurisdiction because there is no live case or controversy and no standing. They further argue that the plaintiffs fail to state a claim for any constitutional violation or for the tort of malicious prosecution, and, finally, that the defendants are entitled to qualified immunity. For the reasons that follow, the defendants' motion is denied, except as to the substantive due process claim, which is dismissed without prejudice.

I. Background

The facts as alleged in the Amended Complaint are taken as true for purposes of this motion. Yeftich v. Navistar, Inc., 722 F.3d 911, 915 (7th Cir.2013). The documents attached to the plaintiffs' complaint are part of the pleadings and may also be considered. See Fed. R. Civ. P. 10(c) ; Williamson v. Curran, 714 F.3d 432, 436 (7th Cir.2013). Indeed, to the extent any exhibit contradicts the allegations in the complaint, the exhibit is controlling. Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir.2013). As for the defendants, the affidavit in support of their motion to dismiss may be considered to the extent it bears on the Court's subject-matter jurisdiction. Miller v. F.D.I.C., 738 F.3d 836, 840 (7th Cir.2013) (“When subject-matter jurisdiction is disputed, the district court may ‘properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.’ ”). The defendants cannot use extrinsic evidence to contradict the facts in the complaint for purposes of obtaining a Rule 12(b)(6) dismissal; the Court cannot consider such evidence unless the motion is converted into a summary-judgment motion and the plaintiff is given notice and opportunity to respond. See Fed. R. Civ. P. 12(d) ; Rutherford v. Judge & Dolph Ltd., 707 F.3d 710, 713–14 (7th Cir.2013). These principles guide the recitation of the facts.

The International Aerobatics Club Chapter 1 is a non-profit membership organization that, among other things, provides opportunities for pilots to practice and perform aerobatic maneuvers. The City of Morris owns and operates the Morris Municipal Airport. IAC Chapter 1 members “fly through airspace, depart from and arrive at Morris Airport, and also rent hangar space at the airport.” Aerobatic flight is a legally recognized form of aircraft operation regulated by the Federal Aviation Administration (FAA), which has prescribed rules and regulations for such flight. See 14 C.F.R. § 91.303. Under the regulations, no person may operate an aircraft in aerobatic flight: over any congested area of a city, town, or settlement; over an open air assembly of persons; within the lateral boundaries of the surface areas of certain airspace designated for an airport; within 4 nautical miles of the center line of any Federal airway; below an altitude of 1,500 feet above the surface; or when flight visibility is less than 3 statute miles. These regulations are subject to an FAA-issued waiver, for instance to create an Aerobatic Practice Area or an Aerobatic Competition Box, inside which the normal restrictions do not apply. An Aerobatic Practice Area is “established for the purpose of practicing aerobatic skills.” FAA Flight Standards Information Management Systems (FSIMS¹ ), Vol. 3, Ch. 5, Section 1, ¶ 3–118(a)(3)(a). “Pilots who wish to practice aerobatic maneuvers that do not meet the requirements of § 91.303 must obtain a waiver from the appropriate part(s) of § 91.303 in a designated area referred to as an aerobatic practice area. These areas are not to be considered event or competition sites. The aviation community uses these practice areas to establish and maintain proficiency as well as to enhance competitive skills in aerobatic maneuvers.” Id. ¶ 3–119.

In 1999 the City of Morris had passed an ordinance adopting by reference the provisions of the Morris Municipal Airport Rules and Regulations and granting enforcement authority to the airport manager, the fire marshal, the building and zoning officer, and the police department. Morris Municipal Code 8.75.010, 8.75.030.

The Rules and Regulations, in turn, purport to regulate aeronautical activity, insofar as they require that all such activity “shall be conducted in conformance with the statutes, law, rules, or regulations of the FAA and the Rules and Regulations.” Morris Airport Rules and Regulations § 400.1. The Rules and Regulations do not otherwise impose any substantive restrictions or requirements with respect to aeronautical activity. So far as the Amended Complaint or the parties' briefs reflect, no one was subject to prosecution for any violation of the Morris ordinance until after IAC Chapter 1 requested that the FAA establish an Aerobatic Practice Area near the airport in 2011.

In April 2011 IAC Chapter 1 applied to the FAA for a waiver for a Practice Area northwest of the Morris Airport—a location in which aerobatic flight would otherwise be restricted. The City of Morris opposed the location of the Practice Area, and a disgruntled former IAC Chapter 1 member, defendant Sid Nelson, made false and misleading statements in opposition to the practice area on behalf of the City in making its case. The defendants also threatened IAC Chapter 1 with “consequences” if it obtained the Practice Area. Ultimately, the FAA granted the requested waiver, effective May 1, 2011, to March 31, 2012.

During the effective period of the 2011–2012 Practice Area, at least one member of the Aerobatic Club was issued a ticket under Chapter 400.1 of the Rules and § 8.75.010 of the Morris City Code for “operat[ing] an aircraft in aerobatic flight within the lateral boundaries of the surface areas of Class B, Class C, Class D, or Class E airspace designated for an airport.” That citation was issued to plaintiff Nicholas Scholtes by the Airport Manager Jeffrey Vogen on March 28, 2012. According to the complaint, the alleged violation occurred while Scholtes “was flying miles away from the Morris Airport and beyond the city limits of Morris.” At the point Scholtes was ticketed, months after the alleged violation, Vogen had already reported the same incident twice to the FAA, which investigated and found nothing to support the charge of improper aerobatic maneuvering. Scholtes and IAC Chapter 1 disputed the ordinance violation and maintained that the City of Morris had no authority to prosecute a pilot for in-flight activities. The charge against Scholtes was pending for 17 months. The City finally dismissed it after Scholtes and IAC Chapter 1 filed a federal lawsuit to enjoin the state-court prosecution and after IAC Chapter 1 agreed to obtain, and did obtain, a new waiver for a Practice Area in a different location. The City failed to alert Scholtes that it was dismissing the charge, although it represented to the state court that he agreed to the dismissal.

According to the complaint, the City of Morris has threatened to prosecute other members of IAC Chapter 1 for flying offenses outside the Aerobatic Practice Area and has “selectively enforced and threaten[ed] to enforce the Morris Ordinance and Regulations against the Plaintiffs out of animus for aerobatic flying, Scholtes, and IAC Chapter 1.” Vogen has personally reported two IAC Chapter 1 members to the FAA for in-flight aircraft operations. Vogen and Nelson have harassed and intimidated IAC Chapter 1 members and deterred members from performing aerobatic flight maneuvers near Morris. The “harassment” has consisted of, for example, yelling at and distracting IAC Chapter 1 members on the ground while they were coaching or instructing pilots in the air, physically threatening and intimidating members, including by driving a car directly toward one before braking suddenly, and threatening members with prosecution for “unsafe maneuvers.”

II. Procedural History

In their amended complaint of September 12, 2013,² Scholtes and IAC Chapter 1 sued the City of Morris, Vogel, and Nelson for an injunction against enforcement of the Morris ordinance and Regulation as they pertain to the in-flight regulation of airplanes, claiming that the FAA has sole enforcement authority in that area. The plaintiffs further claim that the defendants violated the plaintiffs' equal-protection and substantive due process rights by arbitrarily and unjustifiably restricting the plaintiffs' liberty and freedom and movement out of malice. Finally, Scholtes claims malicious prosecution as to the ordinance violation enforcement...