Niswonger v. American Aviation, Inc.

• Decision Date: 02 June 1975
• Docket Number: Civ. A. No. 3148.
• Citation: 411 F. Supp. 763
• Parties: Scott M. NISWONGER, etc., Plaintiff, v. AMERICAN AVIATION, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

411 F. Supp. 763

Scott M. NISWONGER, etc., Plaintiff, v. AMERICAN AVIATION, INC., et al., Defendants.

Civ. A. No. 3148.

United States District Court, E. D. Tennessee, Northeastern Division.

On Motion to Dismiss August 1, 1974.

On Motion to Dismiss or to Stay June 2, 1975.

Carleton W. Smith, Greeneville, Tenn., for plaintiff.

O. C. Armitage, Jr., William W. Tweed, Greeneville, Tenn., R. Thomas Stinnett, and Harold B. Stone, Knoxville, Tenn., for defendants.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

This is a civil action seeking a declaration that a lease between the defendant American Aviation, Inc. and the defendants Greeneville-Greene County Airport Authority the Town of Greeneville, Tennessee and Greene County, Tennessee for all the portion of the Greeneville Municipal Airport usable as a fixed base operation is void as violative of 49 U.S.C. § 1349(a),¹ and for other equitable relief. The Court's jurisdiction is invoked under 28 U.S.C. § 1337.² Each defendant moved the Court to dismiss the complaint for lack of subject matter jurisdiction, Rule 12(b)(1), Federal Rules of Civil Procedure, and for failure to state a claim on which relief can be granted, Rule 12(b)(6), Federal Rules of Civil Procedure.

The plaintiff Mr. Scott M. Niswonger, doing business as Greeneville Air Service, alleged that this is an action under the Federal Aviation Act of 1958, as amended, particularly 49 U.S.C. § 1349(a), but he neglected to allege affirmatively that the Greeneville Municipal Airport is either a landing area or air navigation facility upon which federal funds have been expended. Such allegations would appear to be requisite to a consideration of the defendants' motion to dismiss, and the allegations of jurisdiction in the complaint herein therefore appear to be defective. Defective allegations of jurisdiction may be amended in this Court, 28 U.S.C. § 1653, where the amendments cure defects of form only, and not of substance. Smith v. Fisher Pierce Company, D.C.Tenn. (1965), 248 F.Supp. 815, 8162.

As the plaintiff particularizes in his complaint his reliance upon 49 U.S.C. § 1349(a) which refers to a landing area or air navigation facility upon which federal funds have been expended, it is considered that the aforementioned defects are of form only and not of substance. The Court will consider a proposed amendment to the complaint to amend the plaintiff's defective allegations of jurisdiction if filed within 10 days here-from.

MOTION TO DISMISS

This is a civil action by which the plaintiff Mr. Niswonger (Air Service) seeks a declaration^* that a certain lease between the defendant American Aviation, Inc. (American), on one part, and the defendants Greeneville-Greene County Airport Authority (Authority), the Town of Greeneville, Tennessee (Town) and Greene County, Tennessee (County), on the other part, is void and for other equitable relief. The respective defendants moved to dismiss the action on the grounds that the Court lacks jurisdiction of the subject matter, Rule 12(b)(1), Federal Rules of Civil Procedure, and that the plaintiff failed to state a claim on which relief can be granted, Rule 12(b)(6), Federal Rules of Civil Procedure. As matters outside the pleading are presented to and not excluded by the Court, the motion on the latter ground will be treated as one for summary judgment and disposed of as provided in Rule 56(c), Federal Rules of Civil Procedure, all the parties having been given a reasonable opportunity to present all material made pertinent to such a motion. Rule 12(b), Federal Rules of Civil Procedure.

The plaintiff Air Service claims that American, the Authority, the Town and the County, in entering into such lease, violated the prohibitions of 49 U.S.C. § 1349(a), which provides, inter alia: "* * * There shall be no exclusive right for the use of any landing area or air navigation facility upon which federal funds have been expended. * * *" Air Service alleged by amended complaint that the Greeneville municipal airport is an air navigation facility and landing area upon which federal funds have been expended; that the aforementioned lease of June 16, 1969 constituted American a fixed-base-operator at such airport; that on January 22, 1973, with the approval of American and the Authority, Air Service began operating as a licensed air-taxi-commercial-operator at and from such airport, utilizing American's services; that American is relying on the provisions of its lease giving it exclusive right to the use of such airport to cause Air Service to cease its operations at such airport, it being claimed by American that it has a lease-hold on all ramp and hanger space available at such airport; and that the Authority refuses to constitute Air Service a special fixed-base operator. For the purposes of the defendants' motion, these allegations must be assumed to be true. Williams v. Stone, D.C.Tenn. (1971), 339 F.Supp. 1298, 12993.

Involved here is the Federal Aviation Act of 1958, as amended, 49 U.S.C. §§ 1301, et seq. This act regulates air commerce. Rosenhan v. United States, C.C.A.10th (1942), 131 F.2d 932, 9343, certiorari denied (1943), 318 U.S. 790, 63 S.Ct. 993, 87 L.Ed. 1156. "The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce * * *". 28 U.S.C. § 1337.

The defendants contend that 49 U.S.C. § 1349(a), supra, is applicable only to actual runways and other areas which are used in common by air operators. They cite decisions which are inapposite here: Air Service claims it is being deprived of the use of the said airport because of the exclusive right which the aforementioned lease grants to the defendant American as a general fixed-base-operator. Air Service contends also (by brief) that American has been granted the exclusive use of more area of the airport in question than American can reasonably use in the conduct of its operations. The decisions relied on by the defendants relate to the leasing of certain buildings on, or areas of, an airport, viz.: Mac-Aire Aviation Corp. v. Corporate Air, Inc., (Conn.1970), 6 Conn.Cir. 238, 270 A.2d 849; Park v. Board of Aviation Trustees for City of Manchester, (1950), 96 N.H. 331, 76 A.2d 514; Hillsborough County Aviation Authority v. National Airlines, Inc., (Fla., 1953), 63 So.2d 61. It is Air Service's insistence that all the available area for a fixed-base operation has been leased to the defendant American.

49 U.S.C. § 1301(8) provides: "* * * `Air navigation facility' means any facility used in, available for use in, or designed for use in, aid of air navigation, including landing areas, lights, any apparatus or equipment for disseminating weather information, for signaling, for radio-directional finding, or for radio or other electrical communication, and any other structure or mechanism having a similar purpose for guiding or controlling flight in the air or the landing and take-off of aircraft. * * *" (Emphasis supplied). 49 U.S.C. § 1301(9) provides: "* * * `Airport' means a landing area used regularly by aircraft for receiving or discharging passengers or cargo. * * *" (Emphasis supplied). 49 U.S.C. § 1301(22) provides: "* * * `Landing area' means any locality, either of land or water, including airports and intermediate landing fields, which is used, or intended to be used, for the landing and take-off of aircraft, whether or not facilities are provided for the shelter, servicing, or repair of aircraft, or for receiving or discharging passengers or cargo. * * *" (Emphasis supplied).

The Attorney General of the United States analyzed the predecessor to 49 U.S.C. § 1349(a), which contains the same pertinent language, and opined as follows:

* * * * * *

The restrictions imposed by the provisions of section 303 of the Civil Aeronautics Act of 1938 upon the expenditure of Federal funds upon landing areas and air navigation facilities make it clear that the term "exclusive right" as used in the section was intended to describe a power, privilege, or other right excluding or debarring another or others from enjoying or exercising a like power, privilege, or right. This meaning is confirmed by the legislative history which shows that the purpose of the provision is to prohibit monopolies and combinations in restraint of trade or commerce and to promote and encourage competition in civil aeronautics in accordance with the policy of the act * * *. * *

It seems very doubtful that the term "exclusive right for the use of any landing area" was intended to apply only to the use of an airport for all aeronautical purposes or to the total of the aeronautical uses to which it is or may be devoted. Under such a construction the grant of one person of the exclusive right to use an airport for air carrier service would be permissible so long as another person or other persons used or were authorized to use it for other aeronautical activities. But this construction would give a monopoly at the airport to the air carrier operator and thus would frustrate the purpose of the limitation upon the use of Federal funds. * * * The provision is clearly applicable to any right for the use of a landing area or an airport in civil aeronautics which is exclusive in character.

Accordingly, it is my opinion that the grant of an exclusive right to use an airport for a particular aeronautical activity, such as an air carrier, falls within the provisions of section 303 of the Civil Aeronautical Act of 1938 proscribing any exclusive right for the use of any landing area. * * * (Emphasis supplied.)

* * * * * *

40 Op.A.G. 71 (1941). Advisory Circular no. 150/5190-2A of April 4, 1972 from the Department of Transportation, Federal Aviation Administration provides insight into that agency's interpretation of the prohibition of exclusive rights at airports.

"Exclusive right" is defined as: "* * * A power, privilege, or other right excluding or debarring another from

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