Pissed Away N6VC, LLC v. Stricker
| Decision Date | 06 February 2012 |
| Docket Number | Case No. 2:11-cv-04278-NKL |
| Parties | PISSED AWAY N6VC, LLC, Plaintiff, v. WILLIAM E. STRICKER, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Pending before the Court is Defendant William Stricker's motion to dismiss Plaintiff Pissed Away's claims arising out of a contract for Pissed Away to buy an airplane from Stricker [Doc. # 13]. For the following reasons, the Court GRANTS the motion and dismisses the case.
Pissed Away is a limited liability company organized under Washington law and registered to do business in California. Stricker is a citizen of Missouri. In October 2010, the parties began negotiating the sale of Stricker's 1945 Grumman TBM-3E Avenger Aircraft to Pissed Away. As a part of those negotiations, Stricker represented to Pissed Away that the aircraft was priced above market, at $680,000, because it had undergone a complete ground-up restoration, and that Stricker had spent more than $1.3 million inrestoring the aircraft. Stricker represented that every item in the aircraft was either new or overhauled.
On October 15, 2010, the parties entered into a written contract for Stricker to sell the airplane to Pissed Away. The relevant terms of that contract are as follows:
The contract also contains handwritten modifications, accompanied by the following handwritten statement: [Doc. # 1-2 at 1].
Charles Smith accepted the aircraft as "attorney-in-fact" for Pissed Away. [Doc. # 14- 1 at 1]. Mr. Smith signed an "Aircraft Delivery Receipt," that states: "The Aircraft was received...and was determined by the undersigned to be in the condition required for Closing as defined in and pursuant to the Agreement." [Doc. # 14-1 at 1].2
Upon delivery of the aircraft to Pissed Away, the delivery pilot complained of significant structural, mechanical, and electrical problems with the aircraft. There were signs that the aircraft had not undergone a proper annual inspection. It also appeared that parts of the aircraft were neither new nor had been overhauled. Pissed Away brought this lawsuit, claiming breach of contract, fraud in the inducement, and negligent misrepresentation.
The parties agree that Washington law controls their contract dispute, pursuant to a valid choice-of-forum provision in the parties' contract. See Kagan v. Master Home Prods. Ltd., 193 S.W.3d 401, 407 (Mo. Ct. App. 2006). Stricker argues that Pissed Away's claims for fraud in the inducement and negligent misrepresentation are governed by Missouri lawbecause they are not covered by the terms of the contract and because Missouri has the most significant relationship to the parties' interactions. Pissed Away argues that the disclaimers in the parties' contract cause Washington law to control all three of its claims.
"Generally speaking, whether a forum selection clause that by its terms applies to contract actions also reaches non-contract claims depends on whether resolution of the claims relates to interpretation of the contract." Major v. McCallister, 302 S.W.3d 227, 231 (Mo. Ct. App. 2009) (internal quotes omitted). The court in Major cited a Ninth Circuit case for the foregoing proposition, and described that case as holding that a "forum selection clause reaches tort claims that cannot be adjudicated without analyzing whether the parties were in compliance with the contract." Id. at 232 (internal quotes omitted). The Major court also noted that it would apply a choice-of-law clause "where the statements giving rise to a tort claim are integrally linked to the contractual relation between the parties," but not where "the litigation did not arise due to the parties' agreement, but because [one party] allegedly interfered with [another party's] business dealings with a third party." Id. at 231.
The Court concludes that Missouri courts would apply Washington law to all of Pissed Away's claims. All three of Pissed Away's claims arise from its purchase of an aircraft. The parties attempted to memorialize in a contract all of their rights regarding that purchase. The Court necessarily must construe that contract according to contract law in order to determine whether that contract definitively determines the parties' rights and whether it precludes Pissed Away's claims, as Stricker claims it does. Because the resolution of all three claims "relates to interpretation of the contract," the Court enforces the choice-of-forum provision and applies Washington law to all three claims. Regardless, Stricker is not prejudiced by this conclusion, because Stricker has represented to the Court that "Washington and Missouri law are in accord on the elements of these causes of action." [Doc. # 14 at 8].
Neither party has addressed whether the Uniform Commercial Code ("UCC") applies to this transaction, and neither party cites the UCC in its briefing. Washington adopted the UCC in 1965, although it has made certain statutory variations to it. See Kimberly Quality Care v. Eastern Star Nursing Home, 813 P.2d 163, 165 n.2 (Wash. Ct. App. 1991). The UCC applies to "transactions in goods," and appears to govern the parties' contract to sell an airplane. RCW 62A.2-102. To the extent the parties' contract is clear, the Court need not consult the UCC because parties can generally vary the terms of the UCC by agreement. RCW 62A.1-102. To the extent the Court fills gaps in the parties' agreement, the Court will cite to both Washington case law and analogous portions of Washington's version of the UCC.
Pissed Away argues that Stricker waived all of the arguments made in this motion to dismiss by not raising these same arguments in his motion to dismiss filed in an earlier case between the parties filed in the Southern District of California. Although Pissed Away is correct that Federal Rule of Civil Procedure 12(g) requires that all Rule 12(b)(6) motions be brought at one time or waived, Pissed Away provides no authority suggesting that this requirement spans multiple lawsuits. A brief look at Rule 12 demonstrates that the Rule wasonly intended to set out the timing of motions in relation to the single set of pleadings and the single trial in a given case.
Further, none of the cases cited by Pissed Away hold that a motion is precluded by a different motion filed in an earlier case. Rather, both cases cited by Pissed Away feature straightforward applications of the Rule to two motions filed in the same case. See Broomfield v. Doolittle, 2 F.R.D. 517, 519 (S.D.N.Y. 1942); Thomas D. Wilson Consulting, Inc. v. Keely & Sons, Inc., 2006 U.S. Dist. LEXIS 73691 at * 1-2 (E.D. Mo. 2006). The Court thus finds Pissed Away's interpretation unpersuasive, and holds that Stricker's claims are not barred by Rule 12(g).
"Interpretation of an unambiguous contract is a question of law." Mayer v. Pierce Cty. Medical Bureau, Inc., 909 P.2d 1323, 1326 (Wash. Ct. App. 1995). "In construing a written contract, the basic principles require that (1) the intent of the parties controls; (2) the court ascertains the intent from reading the contract as a whole; and (3) a court will not read an ambiguity into a contract that is otherwise clear and unambiguous." Id. Pissed Away claims that Stricker breached a duty in the parties' contract that if Pissed Away "accepts the airplane, [Stricker] agrees to...conduct other repairs as necessary to fix broken non-functional equipment and to ensure flight worthiness." [Doc. # 1-2 at 1]. Pissed Away does not dispute that the parties' contract states that the airplane was sold "as is" and disclaims all warranties except as set forth in the agreement. Pissed Away's only attempt to reconcile these two provisions is to argue that Stricker "failed to perform in delivering the Aircraft in the 'as is'condition that the parties contracted for." [Doc. # 18 at 10]. This argument is not logical. Rather, it is well understood, in law and in common usage, that "[t]he term 'as is' implies that the property is taken with whatever faults it may possess and that the seller or lessor is released of any obligation to reimburse the purchaser for losses or damages that result from the condition of the property." Warner v. Design and Build Homes, Inc., 114 P.3d 664, 668 (Wash. Ct. App. 2005).
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