United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
JOSEPH S. VAN BOKKELEN, District Judge.
This matter is before the Court on two motion to dismiss the complaint of Plaintiff, Gary Jet Center, Inc, the first (DE 25) filed by Defendants, Gary/Chicago International Airport Authority (the "Airport Authority"), Cornell Collins, Marion J. Johnson, Silas Wilkerson, Ross Amundson, and Nicole Thorn; and the second (DE 32) filed by Intervenors, East Lake Management and Development Corporation and B. Coleman Aviation LLC. All Defendants and Intervenors maintain that Plaintiff's § 1983 should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and that its contract claim should be dismissed under Rule 12(b)(1) because this Court lacks subject matter jurisdiction over it.
A. Legal Standards
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss claims over which the federal court lacks subject matter jurisdiction. Jurisdiction is the "power to decide" and must be conferred upon a federal court. In re Chicago, Rock Island & P. R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). When jurisdictional allegations are questioned, the plaintiff has the burden of proving that the jurisdictional requirements have been met. Kontos v. United States Dep't of Labor, 826 F.2d 573, 576 (7th Cir. 1987). In reviewing a Rule 12(b)(1) motion to dismiss, the Court may look beyond the complaint and review any extraneous evidence submitted by the parties to determine whether subject matter jurisdiction exists. United Transp. Union v. Gateway Western R.R. Co., 78 F.3d 1208, 1210 (7th Cir. 1996).
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim is to test the sufficiency of the pleading, not to decide the merits of the case. See Gibson v. Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). Rule 8(a)(2) provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." However, "recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). As the Supreme Court has stated, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. Rather, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. at 1940 (quoting Twombly, 550 U.S. at 570). A complaint is facially plausible if a court can reasonably infer from factual content in the pleading that the defendant is liable for the alleged wrongdoing. Id. (citing Twombly, 550 U.S. at 570). The Seventh Circuit has synthesized the standard into three requirements. See Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). "First, a plaintiff must provide notice to defendants of her claims. Second, courts must accept a plaintiff's factual allegations as true, but some factual allegations will be so sketchy or implausible that they fail to provide sufficient notice to defendants of the plaintiff's claim. Third, in considering the plaintiff's factual allegations, courts should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id.
B. Plaintiff's Complaint
Plaintiff, Gary Jet Center Inc., is suing the Airport Authority and five individuals who comprised the Airport Authority's board when the actions complained of occurred (the "Old Board"). Plaintiff is a "fixed base operator" ("FBO") at the Gary/Chicago International Airport. An FBO operates like a service station for aircraft owners, providing services such as fueling, hangar space, and aircraft maintenance. The Airport Authority is the municipal body that controls the Airport.
The Airport Authority has adopted standards for FBOs operating at the Airport (the "FBO Regulations"), which classify FBOs according to the breadth of services they provide. The classifications range from an FBO-F, which provides only repairs to avionics, to an FBO-A, which provides everything from aircraft fueling and repairs to charter services, flight instruction, and aircraft rentals. Under the FBO Regulations, only an FBO-A may provide fueling services. However, the Airport Authority, through the Old Board, voted to exempt Intervenor East Lake Management and Development Corporation from the FBO Regulations applicable to FBO-As, allowing it to sell fuel at the Airport without holding it to other requirements of the FBO Regulations applicable to FBO-As. For example, although the FBO Regulations require that an FBO-A must provide a building that is at least 10, 000 square feet in size and a minimum of 35, 000 gallons of above-ground fuel storage, East Lake is not operating out of a building of that size and has no above-ground fuel storage. According to Plaintiff, the Airport Authority has also been relieved of FBO Regulation requirements that it collect fuel flowage fees, landing fees, and parking fees from its customers. While Plaintiff is required to pay supplemental rent based on the fees it collects, East Lake is not.
Plaintiff maintains that this differential treatment, for which the Airport Authority had no legitimate justification and no rational basis, gives East Lake an unfair and illegal economic advantage over it and is causing it economic harm. Plaintiff asserts that Defendants have thus violated its right to equal protection of the laws as guaranteed by the Fourteenth Amendment.
Plaintiff also asserts a breach of contract claim. In Article II, paragraph A of its lease with the Airport Authority, the Airport Authority covenants that it will operate the Airport "consistent with and pursuant to the Sponsor's Assurance" given by the Airport Authority to the United States under the Federal Airport Act. (Compl. Ex. C, DE 1-2 at 4.) Pursuant to the Airport and Airway Improvement Act of 1982, 49 U.S.C. § 47101, et seq. (AAIA), as a condition of receiving federal funds for airport improvements, the Federal Aviation Administration (FAA) requires airport sponsors such as the Airport Authority to make written assurances that the sponsor will make the airport available for public use without unjust discrimination and will subject FBOs who use the airport in a similar manner to the same charges. Plaintiff alleges that the Airport Authority has breached the lease by failing to comply with several provisions of the Sponsor's Assurances, including Assurance 22(c), which provides that FBOs at the airport "shall be subject to the same rates, fees, rentals, and other charges as are uniformly applicable to all other fixed-base operators making the same or similar uses of such airport and utilizing the same or similar facilities." (Compl. Ex. A, DE 1-1 at 10.)
C. Plaintiff's Equal Protection Claim
Plaintiff does not allege that it is a member of any protected group. Therefore it is asserting an equal protection "class of one" claim. See Charleston v. Univ. of Ill. at Chi., 741 F.3d 769, 775. The parties do not agree, and the Seventh Circuit has not settled on a pleading standard for such claims. See Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir. 2012) ( en banc ). In Del Marcelle, five judges voted to affirm the district court's judgment dismissing a complaint for failure to state an equal protection class of one claim and five voted to remand for further proceedings in three separate opinions. The tie vote resulted in affirmance of the dismissal because a majority is required to reverse a judgment. Id. at 888. Neither the lead opinion nor the dissent has the force of controlling precedent. Id. at 906 (Wood, J., dissenting).
The four judges who joined in the lead opinion would require a plaintiff to show he was "the victim of discrimination intentionally visited on him by state actors who knew or should have known that they had no justification, based on their public duties, for singling him out for unfavorable treatment-who acted in other words for personal reasons, with discriminatory intent and effect. " Id. at 889.
According to the five dissenting judges, in order to state a claim for class of one discrimination a plaintiff must include in its complaint plausible allegations that "(1) plaintiff was the victim of intentional discrimination, (2) at the hands of a state actor, (3) the state actor lacked a rational basis for so singling out the plaintiff, and (4) the plaintiff has been injured by the intentionally discriminatory ...