Cozumel Leasing, Llc v. International Jets, Inc. et al

MOTION for Summary Judgment

W.D. Wash.March 2, 2017

DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 1 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Honorable Robert J. Bryan UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA COZUMEL LEASING, LLC, a Delaware limited liability company, Plaintiff, vs. INTERNATIONAL JETS, INC., a Washington corporation; DAVID KILCUP, an individual; ALDEN ANDRE, an individual; AIRCRAFT SOLUTIONS, LLC, a Washington limited liability company, Defendants. No. 3:16-cv-05089 RJB DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT NOTE ON MOTION CALENDAR: FRIDAY, MARCH 24, 2017 WITHOUT ORAL ARGUMENT I. REQUEST FOR RELIEF The Defendant Aircraft Solutions, LLC (“Aircraft Solutions”), respectfully requests this Court grant its motion for summary judgment and dismiss the Plaintiff’s claims against Aircraft Solutions with prejudice. II. STATEMENT OF FACTS On September 17, 2013, the Plaintiff, through Dr. David Fallang, communicated with Mr. David Kilcup of International Jets, Inc. (hereinafter “International Jets”) regarding a 1977 Cessna Citation ISP Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 1 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 2 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 “Stallion,” model 501, serial number 501-0034, U.S. Registration N501CP (hereinafter “the Aircraft”). (Dkt. No. 48, ¶¶ 8-10). International Jets, which offers aircraft brokerage services, was selling the Aircraft for the previous owner, VonJet. (Declaration of Charlie Archer in Support of Defendant Aircraft Solutions, LLC’s Motion for Summary Judgment, hereinafter “Archer Decl.” at 2:5-7). Dr. Fallang indicated his intent to purchase the Aircraft through International Jets for personal use. (Dkt. No. 48, ¶¶ 8-10). On September 19, 2013, Mr. Kilcup, acting as President of International Jets, executed a letter of intent (hereinafter “LOI”) with Dr. Fallang, acting as principal for the Plaintiff, whereby the Plaintiff would purchase the Aircraft from International Jets pending its delivery in an “airworthy condition” and the completion of “a satisfactory pre-purchase inspection.” (Dkt. No. 48, ¶ 14). Mr. Kilcup and Dr. Fallang agreed that a Phase V inspection, previously scheduled with Aircraft Solutions under the Aircraft’s prior lease, would “render the Aircraft airworthy, such that it could be flown to Texas where Cozumel would conduct a pre-purchase inspection . . . .” (Dkt. No. 48, ¶ 15 (emphasis added)). The Plaintiff and International Jets were the only parties to and referenced by the LOI. (Dkt. No. 2-1 at 2). With the LOI intact, Mr. Kilcup and Dr. Fallang continued to finalize the details of the transaction between International Jets and the Plaintiff. Mr. Kilcup “suggested that [Aircraft Solutions]’s inspection act as the pre-purchase inspection,” “assured Fallang [sic] that the Phase V inspection would be an adequate pre-purchase inspection,” and “stated that a few maintenance deficiencies would be found during the Phase V inspection.” (Dkt. No. 48, ¶¶ 19-20). Aircraft Solutions was not consulted by Mr. Kilcup or Dr. Fallang regarding the Phase V inspection serving as the pre-purchase inspection for the Aircraft sale. (Archer Decl. at 3:12-14). Aircraft Solutions never agreed to conduct a pre-purchase inspection. (Archer Decl. at 3:15-16). Aircraft Solutions never conducted a pre-purchase inspection. (Archer Decl. at 3:15-16). Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 2 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 3 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 On October 14, 2013, Plaintiff and International Jets entered into an Aircraft Sales Agreement (hereinafter “the Agreement”) memorializing the details of the transaction. (Dkt. No. 48, ¶ 24). The Agreement neither expressly nor impliedly referenced Aircraft Solutions. (Dkt. No. 2-2). In fact, the Plaintiff and International Jets were the only parties to and referenced by the Agreement. (Dkt. No. 2-2 at 2). After the Plaintiff and International Jets executed the Agreement, arrangements were made to move the Aircraft to Aircraft Solutions’ premises. (Dkt. No. 48, ¶ 25). On or about October 20, 2013, VonJet brought the Aircraft to Aircraft Solutions’ shop for the Phase V inspection. (Archer Decl. at 2:7- 9). Several days later, Dr. Fallang accompanied Ben Hoffman, who piloted the Aircraft, on a test flight. (Dkt. No. 48, ¶ 26). Due to flight failures that involved the starboard engine, the test flight was cancelled and the Aircraft was unable to return to Aircraft Solutions’ premises at that time. (Dkt. No. 48, ¶¶ 27-28). Mr. Kilcup assured Dr. Fallang that the Aircraft defects would be communicated to Aircraft Solutions and resolved during the Phase V inspection. (Dkt. No. 48, ¶ 29). Aircraft Solutions was neither aware of nor involved in the representations made by Mr. Kilcup to Dr. Fallang regarding resolution of the Aircraft’s defects during the Phase V inspection. (Archer Decl. at 2:13-15). A Phase V inspection involves examination of certain items to identify airworthiness discrepancies with an aircraft; the repair of identified discrepancies is not part of a Phase V inspection. (Archer Decl. at 2:22-3:2). A Phase V inspection only requires that work be completed in accordance with the applicable maintenance service manual issued by the aircraft’s manufacturer. (Archer Decl. at 3:2-4). The Aircraft’s manufacturer manual does not require a test flight as part of or following a Phase V inspection. (Archer Decl. at 3:4-5). A Phase V inspection is not a pre-purchase inspection, which is a discretionary measure taken by a prospective aircraft purchaser who wishes to identify airworthiness Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 3 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 4 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issues. (Archer Decl. at 3:8-12). The Aircraft’s Phase V inspection was completed on November 20, 2013. (Dkt. No. 48, ¶ 32). Dr. Fallang flew to Aircraft Solutions’ premises on November 21, 2013, where he met an associate of Mr. Kilcup, Mr. Alden Andre, “who was involved with the maintenance and operations of the Aircraft.” (Dkt. No. 48, ¶¶ 34-35). Mr. Andre discussed the details of the Phase V inspection, including gear replacement and wing inspection, with Dr. Fallang. (Dkt. No. 48, ¶ 36). Mr. Andre assured Dr. Fallang “that the aircraft was in airworthy condition.” (Dkt. No. 48, ¶ 37). At all times, Mr. Andre acted on his own behalf and lacked authority to speak for Aircraft Solutions. (Archer Decl. at 4:6-10). The Aircraft’s delivery flight to Bozeman, Montana, occurred on November 22, 2013. (Dkt. No. 48, ¶ 38). During the flight, the Aircraft’s pressurization system malfunctioned. (Dkt. No. 48, ¶ 39). The pressurization system malfunction was an airworthy discrepancy that rendered the Aircraft un- airworthy. (Dkt. No. 48, ¶¶ 43-44; see also (Archer Decl. at 5:1-2)). With knowledge of the pressurization problem, the Plaintiff accepted delivery of the Aircraft, (Dkt. No. 48, ¶ 42), notwithstanding the Plaintiff’s ability to rescind the Agreement if there were airworthy discrepancies with the Aircraft. (Dkt. No. 48, ¶ 18). The Agreement further outlined that the Plaintiff assumed the risk of loss or damage to the Aircraft at the time of delivery. (Dkt. No. 2-2, ¶ 4). Mr. Kilcup was aware of the problem, and he arranged for Naples Jet Center (hereinafter “NJC”) to repair the Aircraft in Montana. (Dkt. No. 48, ¶ 40). On December 3, 2013, NJC began repair services on the Aircraft. (Dkt. No. 48, ¶ 45). During the repair, NJC discovered several additional problems with the Aircraft, including a fuel leak in the starboard wing. (Dkt. No. 48, ¶ 46). Dr. Fallang believed such leak should have been discovered during the Phase V inspection which Dr. Fallang and Mr. Kilcup, only, had agreed would serve as the pre- Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 4 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 5 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 purchase inspection; however, Mr. Kilcup disagreed and maintained that the fuel leak should have manifested itself during the three week period the Aircraft was located at Aircraft Solutions premises. (Dkt. No. 48, ¶¶ 49-50). No such fuel leak was observed while the Aircraft was located at Aircraft Solutions premises. (Archer Decl. at 4:19-22). Nonetheless, Mr. Kilcup “promised Cozumel that [Aircraft Solutions] agreed to pay the cost of repairs for the right hand wing and pressurization problem,” along with “the repair of the left hand wing if the leak met Cessna’s definition of a leak.” (Dkt. No. 48, ¶¶ 55-56). Aircraft Solutions never agreed to pay the cost of any repairs to the Aircraft, let alone repairs for the right hand wing and pressurization problem or for the repair of the left wing leak. (Archer Decl. at 5:2-4). Notwithstanding the efforts of Mr. Kilcup and his associates and NJC, the Aircraft continued to suffer from mechanical problems, which even NJC could not seem to resolve. NJC worked to resolve the pressurization problem, which NJC now attributed to a defective solenoid. (Dkt. No. 48, ¶¶ 61-62). NJC had previously attributed the pressurization problem to an air pressure controller. (See Dkt. No. 48, ¶¶ 53-54). On January 10, 2014, NJC believed the Aircraft was ready for delivery. (Dkt. No. 48, ¶ 64). Despite such belief, the Aircraft continued to experience pressurization issues; and over the coming months, “a host of new maintenance defects” allegedly were discovered. (Dkt. No. 48, ¶ 72). As a result of the lack of progress, the Plaintiff moved the Aircraft from NJC to Total Aero Services. (Dkt. No. 48, ¶ 73). In March 2014, the Aircraft was moved to the Orlando Citation Service Center for tests and repairs. (Dkt. No. 48, ¶¶ 74-75). III. ISSUES 1. Whether Aircraft Solutions is entitled to summary judgment on the Plaintiff’s unjust enrichment claim? Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 5 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 6 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2. Whether Aircraft Solutions is entitled to summary judgment on the Plaintiff’s negligent misrepresentation claim? 3. Whether Aircraft Solutions is entitled to summary judgment on the Plaintiff’s Washington Consumer Protection Act claim? 4. Whether Aircraft Solutions is entitled to summary judgment on the Plaintiff’s negligence claim? 5. Whether Aircraft Solutions is entitled to summary judgment on the Plaintiff’s conspiracy claim? IV. EVIDENCE RELIED UPON 1. The Declaration of Charlie Archer in Support of Defendant Aircraft Solutions, LLC’s Motion for Summary Judgment with exhibits attached; and 2. The pleadings and files herein. V. ARGUMENT AND AUTHORITY Under the Erie doctrine, a federal court sitting with diversity jurisdiction applies state substantive law and federal procedural law. (See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996); 28 U.S.C. § 1652). In the present case, this Court has jurisdiction based on diversity. (Dkt. No. 48, ¶ 1). A. Summary Judgment Standard. Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” (Fed.R.Civ.P. 56(a)). The moving party bears the initial burden or production, demonstrating an absence of a genuine issue of material fact. (See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). “In order to carry its burden of Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 6 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 7 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” (Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000)). Once the moving party carries its burden, then the burden shifts to the nonmoving party, and the nonmoving party must produce evidence to support its claims. (Id. at 1103 (citations omitted)). If the nonmoving party fails to produce evidence in support of its claims and fails to establish a question of fact, then the moving party is entitled to summary judgment. B. The Plaintiff Cannot Prove Defendant Aircraft Solutions Unjustly Retained a Benefit. To prevail on a claim for unjust enrichment, the Plaintiff must prove that (1) Aircraft Solutions received a benefit, (2) the benefit received was at the Plaintiff’s expense, and (3) under the circumstances it was unjust for Aircraft Solutions to retain the benefit without payment to the Plaintiff. (See Mastaba, Inc. v. Lamb Weston Sales, Inc., 23 F. Supp. 3d 1283, 1295 (E.D. Wash. 2014) (citing Young v. Young, 164 Wn.2d 477, 484, 191 P.3d 1258 (Wash. 2008)). The Plaintiff must establish all three elements to prove Aircraft Solutions was unjustly enriched. (Young v. Young, 164 Wn.2d 477, 191 P.3d 1258 (Wash. 2008)). In the present case, the Plaintiff cannot point to any facts showing that Aircraft Solutions received a benefit from the Plaintiff. The Plaintiff alleges that it “directly conferred a benefit on [Aircraft Solutions] . . . by paying for certain repairs performed on the Aircraft by [Aircraft Solutions]”. (Dkt. No. 48, ¶¶ 124-126). Yet, the Plaintiff made no payments to Aircraft Solutions; nor did the Plaintiff make any payments for repairs performed by Aircraft Solutions. (Archer Decl. at 2:18-20). The only repair-related payments Aircraft Solutions received were from VonJet, the previous owner, who paid Aircraft Solutions to correct the airworthy discrepancies identified in the Phase V inspection. Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 7 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 8 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Archer Decl. at 2:12; 2:18-20). The discrepancies were corrected prior to delivery of the Aircraft, and Aircraft Solutions did not complete any subsequent repairs on the Aircraft. (Archer Decl. at 2:16-18). Accordingly, the Plaintiff cannot prove that it conferred any direct benefit on Aircraft Solutions. The Plaintiff also claims it “was a third-party beneficiary of any payments made by [International] to [Aircraft Solutions].” (Dkt. No. 48, ¶ 127). The only payment Aircraft Solutions received from International Jets was for the cost of the Phase V inspection. (Archer Decl. at 2:12-13; 2:18-20). Irrespective of the Plaintiff considering the Phase V inspection and pre-purchase inspection as equivalents, a consideration that is patently misguided, the Plaintiff had no involvement in the arrangement for Aircraft Solutions to complete the Phase V inspection. (Archer Decl. at 2:9-10). As a result, the Plaintiff cannot show that, at the time the Phase V inspection was arranged, Aircraft Solutions’ performance was intended to necessarily and directly benefit the Plaintiff. (See Nielsen v. Unum Life Ins. Co. of Am., 58 F. Supp. 3d 1152, 1161 (W.D. Wash. 2014) (Under Washington law, “[a] third-party beneficiary contract exists when the contracting parties, at the time they enter into the contract, intend that the promisor will assume a direct obligation to the claimed beneficiary.”)). In fact, it is undisputed that Aircraft Solutions was hired to complete the Phase V inspection prior to International Jets advertising the Aircraft as for sale. (See Dkt. No. 48, ¶ 12 (emphasis added)). Given that Aircraft Solutions and International Jets would have been unaware of the Plaintiff’s existence at the time they arranged for the Phase V inspection, it would have been factually impossible for the parties to intend for the Plaintiff, an unknown party at the time, to be a beneficiary of the pre-existing arrangement. Thus, the Plaintiff could not have been a third-party beneficiary when neither Aircraft Solutions nor VonJet intended for the Plaintiff to benefit from the inspection upon the pre-existing agreement between Aircraft Solutions and VonJet to conduct the Phase V inspection. Because the Plaintiff cannot prove that Aircraft Solutions received any benefit from the sale of the Aircraft, let alone Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 8 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 9 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a benefit at the Plaintiff’s expense, the Plaintiff’s unjust enrichment claim against Aircraft Solutions fails as a matter of law. Even if the Plaintiff could prove all three elements of unjust enrichment, the Plaintiff’s unjust enrichment claim against Defendant Aircraft Solutions fails as a matter of law. Unjust enrichment provides recovery in the absence of a contractual relationship; however, Washington courts have not permitted unjust enrichment claims that relate to the same subject matter of a valid express agreement. (MacDonald v. Hayner, 43 Wn. App. 81, 85, 715 P.2d 519, 522 (1986); Washington Ass'n of Child Care Agencies v. Thompson, 34 Wn. App. 235, 238, 660 P.2d 1129 (1983); Associated Gen. Contractors of Am., Inc. v. State, 10 Wn. App. 406, 518 P.2d 212 (1974)). Thus, where a valid agreement includes terms that cover the disputed conduct, a party to such agreement may not disregard the contract and bring an implied contract claim, i.e., unjust enrichment, in contravention of the express agreement. (Id.). Here, the Agreement between International Jets (the “seller”) and the Plaintiff (the “buyer”) covered repairs, i.e., “airworthy discrepancies.” (Dkt. No. 2-2, ¶ 2). The Agreement defined airworthy discrepancy as “any item discovered during the pre-purchase inspection . . . necessary to be corrected to render the Aircraft airworthy.” (Id.). Moreover, the Agreement states that “[International Jets] will remedy all airworthy discrepancies.” The Plaintiff may not disregard the contractual language relating to repairs and thereby assert that Aircraft Solutions was unjustly enriched. (See MacDonald v. Hayner, 43 Wn. App. 81, 85, 715 P.2d 519 (1986)). Plaintiff has a remedy under the Agreement, and the Plaintiff must exercise that remedy. This Court should find that Plaintiff’s unjust enrichment claim fails as a matter of law. C. Aircraft Solutions is Entitled to Summary Judgment on the Plaintiff’s Negligent Misrepresentation Claim as It Neither Made Representations Nor Supplied Information to the Plaintiff in the Business Transaction Between International Jets and the Plaintiff. Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 9 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 10 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Washington courts follow the Restatement (Second) of Torts for negligent misrepresentation claims. “A plaintiff must prove by clear, cogent, and convincing evidence that he or she justifiably relied on the information that the defendant negligently supplied.” (Lawyers Title Ins. Corp. v. Soon J. Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (2002) (quoting Restatement (Second) of Torts § 552(1) (1977))). Under this approach, a negligent misrepresentation claim requires the plaintiff to prove the following six elements: (1) the defendant supplied false information for guidance of others in their business transactions; (2) the defendant knew or should have known the representations were false; (3) the defendant was negligent in obtaining or communicating the false information; (4) the plaintiff relied on the false information; (5) the plaintiff’s reliance was justified, and (6) the plaintiff’s reliance was the proximate cause of damages. (BP W. Coast Prod. LLC v. SKR Inc., 989 F. Supp. 2d 1109, 1120 (W.D. Wash. 2013) (citing Lawyers Title Ins. Corp. v. Soon J. Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (2002)). The Plaintiff's negligent misrepresentation claim is based upon alleged false statements by Defendants Mr. Kilcup and Mr. Andre. (Dkt. No. 48, ¶¶ 165-69). In connecting this claim to Aircraft Solutions, the Plaintiff alleges that Mr. Andre’s statements are imputed to Aircraft Solutions. (Dkt. No. 48, ¶ 165; see id. at ¶ 178 (“Andre, as Kilcup’s associate, is or was an agent of [Aircraft Solutions].”)). Under Washington law, the Plaintiff bears the burden of proving that Mr. Andre is, or at any time was, an agent of Aircraft Solutions. (See Thermion, Inc. v. Thermion Metalizing Sys., Ltd., 423 F. Supp. 2d 1146, 1151 (W.D. Wash. 2006) (“[T]he burden of establishing an agency rests upon the one who asserts it.”) (quoting Moss v. Vadman, 77 Wn.2d 396, 402–03, 463 P.2d 159 (1969))). An agency relationship must be established before the wrongs of an agent can be imputed to his principal. King v. Garfield Cty. Pub. Hosp. Dist. No. 1, 17 F. Supp. 3d 1060, 1083 (E.D. Wash. 2014) (citing Matsumura v. Eilert, 74 Wn.2d 362, 363, 444 P.2d 806 (1968)). “An agency relationship is created, either expressly or by implication, ‘when one party acts at the instance of and, in some material Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 10 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 11 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 degree, under the direction and control of another.’” (Id. at 1084 (quoting Hewson Constr., Inc. v. Reintree Corp., 101 Wn.2d 819, 823, 685 P.2d 1062 (1984)). “It arises from manifestations that one party consents that another shall act on his behalf and subject to his control, and corresponding manifestations of consent by another party to act on behalf of and subject to the control of the other.” (Matsumura v. Eilert, 74 Wn.2d 362, 368, 444 P.2d 806, 810 (1968) (citing Restatement (Second) of Agency § 1 (1958)). In the present case, Mr. Andre was not Aircraft Solutions’ agent, and Aircraft Solutions was not involved in the discussions between Mr. Andre and the Plaintiff. (Archer Decl. at 4:6-12). Nor did Aircraft Solutions hire Mr. Andre to perform any tasks related to the Phase V inspection. (Archer Decl. at 4:6-10; 13-15). In fact, at the time of the alleged misrepresentations, Aircraft Solutions had no involvement whatsoever in the transaction because Aircraft Solutions did not perform any repairs following the Aircraft’s delivery to the Plaintiff. (Archer Decl. at 2:18-20). Aircraft Solutions did not contact the Plaintiff and manifest consent for Mr. Andre, let alone any other party, to act on behalf of and subject to Aircraft Solutions’ control. (Archer Decl. at 4:13-15). There are no facts that suggest Aircraft Solutions exercised any control over Mr. Andre’s performance of his duties. Furthermore, Aircraft Solutions made no manifestation to the Plaintiff that Mr. Andre was allowed to act on behalf of Aircraft Solutions. (Archer Decl. at 4:10-15). The Plaintiff cannot thereby claim Aircraft Solutions supplied any information for the guidance of the Plaintiff’s transaction with International in the absence of a relationship between Mr. Andre and Aircraft Solutions. Even if Mr. Andre’s statements could be imputed to Aircraft Solutions, which Aircraft Solutions denies, the Plaintiff’s reliance would not be justified because the alleged statements directly contradicted the express terms of the Agreement. (See BP W. Coast Prod. LLC v. SKR Inc., 989 F. Supp. 2d 1109, 1120 (W.D. Wash. 2013) (court finding that reliance was not justified where the alleged statements Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 11 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 12 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 directly contradicted the express terms of the parties’ agreement)). Here, the Agreement stated that the seller, i.e., International Jets, would “remedy all airworthy discrepancies . . . necessary to be corrected to render the Aircraft airworthy.” (Dkt. No. 2-2, ¶ 2). The only logical interpretation of this contractual language is that International Jets was responsible for repairing the Aircraft, thereby giving the Plaintiff no valid reason to believe any party other than International Jets would cover repairs for the Aircraft. Where reasonable minds can reach only one conclusion, justified reliance can be determined as a matter of law. (BP W. Coast Prod. LLC v. SKR Inc., 989 F. Supp. 2d 1109, 1120 (W.D. Wash. 2013) (citing Barnes v. Cornerstone Invest., 54 Wn. App. 474, 478, 773 P.2d 884 (1989)). Because the Plaintiff cannot meet its burden of proving Aircraft Solutions supplied false information, nor that the Plaintiff justifiably relied upon such information, this Court should find the Plaintiff’s negligent misrepresentation claim fails as a matter of law. D. There is No Basis for Plaintiff’s Consumer Protection Act Claim against Defendant Aircraft Solutions. To prevail on a Consumer Protection Act (“CPA”) claim, the plaintiff must prove the defendant engaged in unfair or deceptive acts or practices causing injury to the plaintiff’s business or property, and that the defendant’s conduct occurred within trade or commerce and impacted the public interest. (Kelley v. Microsoft Corp., 251 F.R.D. 544, 556 (W.D. Wash. 2008) citing Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986)). “Whether an act is unfair or deceptive is a question of law.” (McDonald v. OneWest Bank, FSB, 929 F. Supp. 2d 1079, 1097 (W.D. Wash. 2013) (citing Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 150, 930 P.2d 288 (1997))). The Plaintiff first claims that Aircraft Solutions engaged in unfair and deceptive acts or practices by communicating false and misleading representations to the Plaintiff. (Dkt. No. 48, ¶¶ 175-182). Aircraft Solutions made no representations to the Plaintiff, or to anyone else for that matter. (Archer Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 12 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 13 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Decl. at 4:10-13). Furthermore, contrary to Plaintiff’s allegations, Mr. Andre was not an agent of Aircraft Solutions; he had no authority to speak for or on behalf of Aircraft Solutions. (Archer Decl. at 4:6-8; see discussion of agency relationship in Section V. C., supra). Therefore, the Plaintiff’s CPA claim is not supported under a theory that Aircraft Solutions made misrepresentations because Aircraft Solutions did not make any representations to the Plaintiff and Mr. Andre’s conduct or representations are not properly attributed to Aircraft Solutions. The Plaintiff further alleges that “all failures of the Defendants to perform competent mechanical inspection and repair of the Aircraft . . . were unfair and deceptive acts or practices.” (Dkt. No. 48, ¶ 174). The Plaintiff claims Aircraft Solutions lacked “the capacity to perform a proper Phase V or pre- purchase inspection1 of the Aircraft.” (Id.). First, it is unknown what the plaintiff means by claiming that Aircraft Solutions lacked “capacity.” The FAA Air Agency Certificate and Operations Specifications clearly provide the legal authority for Aircraft Solutions to perform a Phase V inspection. (See Exhibits 1 and 2, respectively, attached to Archer Decl.). Second, Aircraft Solutions never agreed to conduct a pre-purchase inspection for the Plaintiff. (Archer Decl. at 3:15-16). Aircraft Solutions only agreed to conduct the Phase V inspection, which was scheduled prior to the Plaintiff beginning negotiations with International Jets and its representatives and associates. (Dkt. No. 48, ¶ 12). As such, not only did Aircraft Solutions at all relevant times possess the capacity to perform a proper Phase V inspection as authorized by the FAA Air Agency Certificate and Operations Specification, it did just that when it completed the Phase V inspection in accordance with the Aircraft manufacturer’s requirements. (Archer Decl. at 3:5-6). Further, there is no evidence that VonJet, the proper party to take issue with the 1 The Plaintiff incorrectly included pre-purchase inspection in this allegation. The pre-purchase inspection and Phase V inspection are not equivalents. (Archer Decl. at 3:9-13). Aircraft Solutions was not involved in any negotiations with either the Plaintiff or International Jets and did not agree to conduct a pre-purchase inspection, let alone any other inspection for the Plaintiff. (Archer Decl. at 3:16-21). Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 13 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 14 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Phase V inspection and repairs given that VonJet was the Aircraft’s owner, raised any dispute over Aircraft Solutions’ performance. (Archer Decl. at 3:6-7). Even accepting as true the Plaintiff’s allegations regarding misrepresentations or those allegations pertaining to mechanical inspection and repair, (see Dkt. No. 48, ¶¶ 175-182), the Plaintiff cannot prove Aircraft Solutions’ conduct had the capacity to deceive a substantial portion of the public. (See Segal Co. (E. States) v. Amazon.Com, 280 F. Supp. 2d 1229, 1233 (W.D. Wash. 2003) (To prove conduct was unfair or deceptive, the plaintiff must show such conduct had “the capacity to deceive a substantial portion of the public.”) (internal quotations omitted)). The Plaintiff’s complaint attempts to support this requirement by alleging the “Defendants’ actions impact the public interest because they could induce other prospective buyers or aircraft owners to have improper inspections performed at [Aircraft Solutions]” and “the Defendants’ actions thus had or have the capacity to injure other persons.” (Dkt. No. 48, ¶¶ 175-182). Such an allegation is nothing more than fanciful speculation. There is no evidence whatsoever that the public was in any way aware of any statements made by Aircraft Solutions, or its authorized speaking agents, such that the public could somehow be misled thereby, hire Aircraft Solutions to perform a Phase V inspection, and then have such an inspection be improperly performed. Accordingly, the Plaintiff has failed to show that the alleged improper inspection deceived or had the capacity to deceive the Plaintiff, let alone a substantial portion of the public. The “mere speculation that an alleged unfair or deceptive act had the capacity to deceive a substantial portion of the public is insufficient to survive summary judgment” for a Washington Consumer Protection Act claim. (Brown ex rel. Richards v. Brown, 157 Wn. App. 803, 817, 239 P.3d 602 (2010) (citing Westview Invs., Ltd. v. U.S. Bank Nat'l Ass'n, 133 Wn. App. 835, 854 n. 27, 138 P.3d 638 (2006)). Moreover, the mere prospect that Aircraft Solutions could engage in future commercial or consumer dealings does not Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 14 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 15 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 indicate a capacity to deceive a substantial portion of the public. (See Segal Co. (E. States), 280 F. Supp. 2d. at 1233). There is also no indication that Aircraft Solutions’ conduct had any impact on the public. In Hangman Ridge the Washington Supreme Court clarified what must be shown by a plaintiff to prove public impact. (Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 790, 719 P.2d 531 (1986)). The relevant mode of proving public impact, i.e., the factors to be considered by the trier of fact, depends on whether the circumstances amount to a consumer transaction or a private transaction. (Id.). For a consumer transaction to impact the public interest, the relevant factors are: (1) Were the alleged acts committed in the course of defendant's business? (2) Are the acts part of a pattern or generalized course of conduct? (3) Were repeated acts committed prior to the act involving plaintiff? (4) Is there a real and substantial potential for repetition of defendant's conduct after the act involving plaintiff? (5) If the act complained of involved a single transaction, were many consumers affected or likely to be affected by it? (Id.). Where a transaction is private in nature, the relevant factors include: (1) Were the alleged acts committed in the course of defendant's business? (2) Did defendant advertise to the public in general? (3) Did defendant actively solicit this particular plaintiff, indicating potential solicitation of others? (4) Did plaintiff and defendant occupy unequal bargaining positions? (Id.). While Aircraft Solutions contends the transaction at issue in this case was a private transaction, the Plaintiff cannot show public impact even if this Court were to consider the context to be a consumer transaction. Looking first at the consumer transaction factors, Aircraft Solutions’ business did not involve a transaction whereby the Plaintiff was induced to have an inspection performed by Aircraft Solutions; rather Aircraft Solutions had a previously scheduled inspection, which International Jets suggested should function as a pre-purchase inspection. (Dkt. No. 48 at 4, ¶¶ 12, 19). Aircraft Solutions could not be involved as part of a pattern or repeated inducements because Aircraft Solutions was selected to perform the Phase V inspection prior to the transaction between the Plaintiff and International Jets. Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 15 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 16 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Dkt. No. 48, ¶ 12). There is zero potential for repetition by Aircraft Solutions because of the near impossibility that an owner of an aircraft would schedule a maintenance inspection with Aircraft Solutions, said aircraft would later be advertised for sale, the hypothetical seller or broker would induce the prospective purchaser to have the previously scheduled inspection function as a pre-purchase inspection, and that the seller or broker’s inducement would be improper. No trier of fact would consider such a speculative hypothetical to suggest a real and substantial for potential repetition, let alone any potential whatsoever. Similarly, the Plaintiff cannot show the relevant factors for a private transaction apply to Aircraft Solutions. The alleged inducement was not committed in the course of Aircraft Solutions’ business, but instead occurred after the prior owner scheduled the inspection with Aircraft Solutions. Aircraft solutions neither advertised to the public in general nor did Aircraft Solutions solicit the Plaintiff in any capacity. (Archer Decl. at 4:15-16). In fact, Aircraft Solutions did not communicate with the Plaintiff; it was International Jets that solicited the previously scheduled Phase V inspection to function as a pre- purchase inspection. (Archer Decl. at 2:7-10, 3:12-16; Dkt. No. 48, ¶¶ 19-20). Finally, there is no indication that Aircraft Solutions and the Plaintiff occupied unequal bargaining positions, given the two parties would have needed to actually engage in the act of bargaining to fully assess this factor; however, the record is replete of facts showing any bargaining process between Aircraft Solutions and the Plaintiff. With regard to the final two elements of a CPA claim, the Plaintiff has failed to show injury to its business or property that was proximately caused by Aircraft Solutions. The facts show that Aircraft Solutions took no actions to induce the Plaintiff to have the Phase V inspection function as a pre- purchase inspection. Further, Aircraft Solutions performed the inspection in accordance with the Aircraft manufacturer’s requirements; and, VonJet, the proper entity to dispute the adequacy of any Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 16 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 17 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 repairs, raised no issue with the Aircraft Solutions’ performance. (Archer Decl. at 3:6-7). Thus, there is no plausible connection between any actions by Aircraft Solutions and the Plaintiff’s alleged economic injuries. If anything, causation lies with the Plaintiff’s own conduct, considering the Plaintiff knew of deficiencies with the Aircraft and accepted delivery notwithstanding the Plaintiff’s ability to rescind the Agreement. (Dkt. No 48, ¶ 18). Thus, the Plaintiff cannot seek to attribute the consequences of the bargain the Plaintiff accepted to Aircraft Solutions, which had no involvement whatsoever in the transaction between the Plaintiff and International Jets. Because the Plaintiff cannot meet the requirement of proving an unfair or deceptive act or practice, let alone the other elements of a Washington CPA claim, the Plaintiff’s Consumer Protection Act claim against Aircraft Solutions fails as a matter of law. (See Hangman Ridge, 105 Wn.2d. at 793, 719 P. 2d 531 (court finding that failure to meet the first element of a CPA claim is fatal because plaintiffs must establish all five elements)). E. The Plaintiff’s Negligence Claim Fails Because Aircraft Solutions Owed No Duty to the Plaintiff. To recover for negligence, Washington law requires a plaintiff to show that (1) defendant owed plaintiff a duty, (2) defendant breached that duty, (3) plaintiff suffered an injury, and (4) defendant’s breach proximately caused plaintiff’s injury. (Pac. Boring, Inc. v. Staheli Trenchless Consultants, Inc., 138 F. Supp. 3d 1156, 1165 (W.D. Wash. 2015)). Whether a defendant owed a duty to a plaintiff is a threshold question the court answers as a matter of law. (Alhadeff v. Meridian on Bainbridge Island, LLC, 167 Wn.2d 601, 618, 220 P.3d 1214, 1222 (2009)). Here, Aircraft Solutions did not owe the plaintiff any duty. Aircraft Solutions only owed a contractual duty, not a tort duty, to VonJet to perform a Phase V inspection, which it fulfilled, and for which VonJet paid Aircraft Solutions directly. (Archer Decl. at 2:18-20). In addition, Aircraft Solutions never agreed to undertake and never performed a pre- purchase inspection related to the eventual sale of the subject aircraft so as to give rise to any duty, Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 17 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 18 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 whether contractual or otherwise, owed to plaintiff to perform such an inspection. (Archer Decl. at 3:15-16). Because there are no facts that establish that Aircraft Solutions owed the Plaintiff any duty, the Plaintiff’s negligence claim fails as a matter of law. F. The Plaintiff’s Civil Conspiracy Claim Fails Because Aircraft Solutions Neither Engaged in an Activity With an Unlawful purpose Nor Did It Accomplish Any Activity by Unlawful Means. For a civil conspiracy claim, Washington law requires a plaintiff to prove “by clear, cogent, and convincing evidence that (1) two or more people combined to accomplish an unlawful purpose, or combined to accomplish a lawful purpose by unlawful means; and (2) the conspirators entered into an agreement to accomplish the conspiracy.” (Gossen v. JPMorgan Chase Bank, 819 F. Supp. 2d 1162, 1171 (W.D. Wash. 2011)) (citing Wilson v. State, 84 Wn. App. 332, 350-51, 929 P.2d 448 (1996)). The plaintiff’s claim will fail where the plaintiff is unable to show the defendant had an unlawful purpose. (See id. at 1171 (“Because the conspiracy must be combined with an unlawful purpose, civil conspiracy does not exist independently—its viability hinges on the existence of a cognizable and separate underlying claim.”)). Here, the Plaintiff alleges the Defendants conspired to unlawfully induce the Plaintiff to go forward with the transaction by making deceitful representations about the pre-purchase inspection and the Aircraft’s airworthiness at the time of delivery. (Dkt. No. 48, ¶ 199). This allegation is inapplicable to Aircraft Solutions. Aircraft Solutions did not make any representations to the Plaintiff whatsoever regarding these issues. (Archer Decl. at 3:15-22). Further, any representations or statements made by Mr. Kilcup and Mr. Andre cannot be imputed to Aircraft Solutions. The Plaintiff has acknowledged that Mr. Kilcup acted on behalf of International Jets. (Dkt. No. 48, ¶ 165). And, Mr. Andre was never an employee or agent of Aircraft Solutions; as such, any representations made by Mr. Andre could not be imputed to Aircraft Solutions. (See Section V. D, supra); see also (Archer Decl. at 4:6-15). Without an Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 18 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 19 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 unlawful purpose to attribute to Aircraft Solutions, the Plaintiff’s conspiracy claim fails as a matter of law. The Plaintiff also alleges the Defendants carried out the unlawful purpose “by unlawful means by failing to accurately perform work in the manner required by the Federal Aviation Regulations.” (Dkt. No. 48, ¶ 199). Even if the Plaintiff had correctly pleaded2 this aspect of a conspiracy claim, there is simply no evidence that Aircraft Solutions improperly performed the Phase V inspection. The only federal aviation requirement regarding this type of inspection is that it be performed consistent with the manufacturer’s recommendations. (Archer Decl. at 2:22-3:6). Aircraft Solutions performed the Phase V inspection in accordance with the requirements set forth by the Aircraft’s manufacturer. (Archer Decl. at 3:5-6). Even if the Plaintiff could prove the first element of a conspiracy claim, the Plaintiff cannot prove that Aircraft Solutions entered into an agreement with any other defendant to do anything unlawful. Aircraft Solutions was scheduled to complete the Phase V inspection before the Plaintiff expressed an interest in the Aircraft. The inspection would have taken place irrespective of who ultimately purchased the Aircraft. There were no changes to the inspection plan from the time it was scheduled to its completion. At best, the Plaintiff’s allegation functions as a suspicion, yet the “[m]ere suspicion or commonality of interests is insufficient to prove a conspiracy.” (Nat'l City Bank, N.A. v. Prime Lending, Inc., 737 F. Supp. 2d 1257, 1269 (E.D. Wash. 2010)) (citing Wilson v. State, 84 Wn. App. 332, 350-51, 929 P.2d 448 (1996)). 2 The Plaintiff has incorrectly stated and applied Washington law, which requires a plaintiff to prove civil conspiracy “by showing by clear, cogent and convincing evidence that (1) two or more people . . . combined to accomplish a lawful purpose by unlawful means . . . .” (Gossen v. JPMorgan Chase Bank, 819 F. Supp. 2d 1162, 1171 (W.D. Wash. 2011) (emphasis added). Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 19 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 20 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Because the Plaintiff cannot prove that any of the elements of a civil conspiracy claim apply to Aircraft Solutions, this Court should find the conspiracy claim fails as a matter of law. VI. CONCLUSION The Plaintiff has failed to meet its burden of proof for each claim advanced against Aircraft Solutions. Accordingly, Aircraft Solutions respectfully requests that this Court grant its motion and dismiss the Plaintiff’s claims against it with prejudice. DATED this 2nd day of March, 2017. /s/ Mark S. Northcraft Mark S. Northcraft, WSBA #7888 Northcraft, Bigby & Biggs, P.C. 819 Virginia Street, Suite C-2 Seattle, WA 98101 Telephone: (206) 623-0229 Facsimile: (206) 623-0234 E-mail: mark_northcraft@northcraft.com Attorney for Defendant Aircraft Solutions, LLC Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 20 of 21 DEFENDANT AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT - 21 (3:16-CV-05089 rjb) w:\cozumel\pld\def aircraft msj.mot NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE OF SERVICE I hereby certify that on March 2, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Heidi C Anderson andersonh@lanepowell.com; docketing-sea@lanepowell.com; stevensk@lanepowell.com; craiga@lanepowell.com Timothy Clement DeFors deforst@lanepowell.com; hunterj@lanepowell.com; docketing-sea@lanepowell.com Jason Goldstein jgoldstein@rgattorneys.com; gvaldez@rgattorneys.com; rrichards@rgattorneys.com; jsaval@rgattorneys.com Daniel R. Laurence dan@stritmatter.com; jeanne@stritmatter.com David M. Schoeggl schoeggld@lanepowell.com; rosenkranzl@lanepowell.com SIGNED in Seattle, Washington on March 2, 2017. /s/ Lilly B. Tang Lilly B. Tang Legal Assistant Northcraft, Bigby & Biggs, P.C. 819 Virginia Street, Suite C-2 Seattle, WA 98101 Telephone: (206) 623-0229 Facsimile: (206) 623-0234 E-mail: lilly_tang@northcraft.com Case 3:16-cv-05089-RJB Document 62 Filed 03/02/17 Page 21 of 21 [PROPOSED] ORDER GRANTING AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT (3:16-cv-05089 RJB) - 1 w:\cozumel\pld\def aircraft msj.mot-proposed order NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Honorable Robert J. Bryan UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA COZUMEL LEASING, LLC, a Delaware limited liability company, Plaintiff, vs. INTERNATIONAL JETS, INC., a Washington corporation; DAVID KILCUP, an individual; ALDEN ANDRE, an individual; AIRCRAFT SOLUTIONS, LLC, a Washington limited liability company, Defendants. No. 3:16-cv-05089 RJB [PROPOSED] ORDER GRANTING AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT NOTE ON MOTION CALENDAR: FRIDAY, MARCH 24, 2017 WITHOUT ORAL ARGUMENT THIS MATTER having come before this Court upon Aircraft Solutions, LLC’s Motion for Summary Judgment, the Court having reviewed the pleadings, court records, and file materials herein, including: 1. Aircraft Solutions, LLC’s Motion for Summary Judgment; 2. Declaration of Charlie Archer in Support of Motion for Summary Judgment; 3. ________________________________________________________________________ _____________________________________________________________________; Case 3:16-cv-05089-RJB Document 62-1 Filed 03/02/17 Page 1 of 2 [PROPOSED] ORDER GRANTING AIRCRAFT SOLUTIONS, LLC’S MOTION FOR SUMMARY JUDGMENT (3:16-cv-05089 RJB) - 2 w:\cozumel\pld\def aircraft msj.mot-proposed order NORTHCRAFT, BIGBY & BIGGS, P.C. 819 Virginia Street / Suite C-2 Seattle, Washington 98101 tel: 206-623-0229 fax: 206-623-0234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4. ________________________________________________________________________ _____________________________________________________________________; 5. ________________________________________________________________________ _____________________________________________________________________; 6. ________________________________________________________________________ _____________________________________________________________________; 7. ________________________________________________________________________ _____________________________________________________________________; 8. ________________________________________________________________________ _____________________________________________________________________. ORDERED, ADJUDGED, AND DECREED that Aircraft Solutions, LLC’s Motion for Summary Judgment is GRANTED and the Plaintiff’s claims against Aircraft Solutions, LLC are dismissed with prejudice. DONE IN OPEN COURT this day of , 2017. ___________________________________________ HONORABLE ROBERT J. BRYAN PRESENTED BY: /s/ Mark S. Northcraft Mark S. Northcraft, WSBA #7888 Northcraft, Bigby & Biggs, P.C. 819 Virginia Street, Suite C-2 Seattle, WA 98101 Telephone: (206) 623-0229 Facsimile: (206) 623-0234 E-mail: mark_northcraft@northcraft.com Attorney for Defendant Aircraft Solutions, LLC Case 3:16-cv-05089-RJB Document 62-1 Filed 03/02/17 Page 2 of 2