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Hunter v. Whisler Aviation, Inc.

United States District Court, D. Nebraska

December 27, 2019

KRISTEN GARDNER HUNTER, as Executrix of the Estate of Randall Don Hunter, Deceased; KRISTEN GARDNER HUNTER, as Surviving Spouse of Randall Don Hunter; KRISTEN GARDNER HUNTER, as Guardian of M.S.H., a minor; and KRISTEN GARDNER HUNTER, as Guardian of M.B.H., a Minor; Plaintiff,
WHISLER AVIATION, INC., a Nebraska Corporation; and CENTRAL CYLINDER SERVICE, INC., a Nebraska Corporation; Defendants.



         This case comes before the Court on defendant Whisler Aviation, Inc.'s (“Whisler's”) Motion to Dismiss (Filing 16) pursuant to Fed.R.Civ.P. 12(b)(6). Whisler requests dismissal of the claims against it found in counts one through four of the Complaint (Filing 1 at 13-19). As discussed below, the Court denies in part and grants in part Whisler's motion (Filing 16) upon finding that Plaintiff has adequately stated wrongful death and survival claims based on negligence but have failed to state a claim premised on breach of warranty.

         I. BACKGROUND

         Although Whisler may dispute some of the facts recited herein, when deciding a motion to dismiss, the Court “must accept a plaintiff's factual allegations as true” and make all reasonable inferences in favor of the nonmoving party. Retro Television Network, Inc. v. Luken Commc'ns, LLC, 696 F.3d 766, 768-69 (8th Cir. 2012).

         This case arises out of a plane crash that occurred on August 28, 2017, resulting in the death of Randall Don Hunter (“Randall”). Filing 1 at 2, ¶ 1. Defendant Whisler is a Nebraska corporation that does business in Nebraska. Filing 1 at 4-5, ¶ 8. At some point, Whisler:

repaired, overhauled, assembled, inspected, tested, serviced, maintained, reassembled, modified and certified as safe for service under the Federal Aviation Administration Regulations the engine installed on the subject aircraft, namely, a Continental Motors model IO-550(B) model engine, Serial Number 675936, including its associated component parts and systems, including, but not limited to, the subject engine's crankshaft, cylinders, cylinder assemblies, pistons, rings, bearings, bolts, connecting rods and related components and systems, that were replaced, modified, inspected, adjusted, or reassembled.

Filing 1 at 5, ¶ 9.

         Whisler allegedly performed the overhaul, repair, and other assorted tasks in a negligent manner by providing defective engine components, improperly performing an inspection and installation of said components, and improperly reassembling said engine. Filing 1 at 13-14, ¶ 39. Whisler also certified the engine and its components as safe, airworthy, and free from defect in addition to certifying or warranting the work it performed reassembling the engine was properly done. Filing 1 at 5, 16, ¶¶ 9, 46. Further, Plaintiff claims Whisler “expressly and/or impliedly warranted that the engine . . . [was] airworthy, of merchantable quality, fit and safe for the [requisite] purposes”; “warranted that the engine . . . [was] free from all defects, and assembled and re-assembled properly”; and “warranted expressly and/or impliedly that the workmanship, replacement parts, overhauled parts, and any subsequently required updated warnings, manuals, or instructions were proper, adequate and correct.” Filing 1 at 16, ¶¶ 46.

         Plaintiff's theory is that as a result of Whisler's work on the engine, a connecting rod or related components which Whisler improperly used, installed, or re-assembled caused the engine to “essentially c[o]me apart as a connecting rod broke through the crankcase and rendered the engine useless” on August 28, 2017. Filing 1 at 7-8, ¶ 22. This “in-flight catastrophic engine failure” crippled the aircraft and ultimately led it to crash, killing Randall. Filing 1 at 6-8, ¶¶ 17, 22. Randall experienced physical injuries and died the same day as a result of the engine failure and crash. Filing 1 at 6, 15 ¶ 17, 43. His wife, the executrix of his estate, surviving spouse, and guardian to his children, filed this wrongful death and survival action on August 5, 2019. See generally Filing 1. Plaintiff alleged a wrongful death claim based on a negligence, a survival claim based on negligence, a wrongful death claim based on breach of warranty, and a survival claim based on breach of warranty. Filing 1. Whisler moved to dismiss the case, arguing Plaintiff failed to state a claim upon which relief can be granted. Filing 16.


         A. Standard of Review

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy this requirement, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d 915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

         In analyzing a motion to dismiss, the Court must “accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party, but [is] not bound to accept as true ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements' or legal conclusions couched as factual allegations.” McDonough v. Anoka Cty., 799 F.3d 931, 945 (8th Cir. 2015) (citations omitted) (quoting Ashcroft, 556 U.S. at 678). “When considering a Rule 12(b)(6) motion, the court generally must ignore materials outside the pleadings, but it may consider some materials that are part of the public record or do not contradict the complaint, as well as materials that are necessarily embraced by the pleadings.” Ashford v. Douglas Cty., 880 F.3d 990, 992 (8th Cir. 2018) (quoting Smithrud v. City of St. Paul, 746 F.3d 391, 395 (8th Cir. 2014)).

         B. Analysis

         Whisler argues that all four counts Plaintiff alleges against it (the wrongful death and survival claims based on negligence and the wrongful death and survival claims based on breach of warranty) are conclusory without sufficient supporting factual allegations and should be dismissed. See Filing 17 at 3-4. In its brief in support of its motion to dismiss, Whisler first briefly addresses whether Nebraska or Georgia law applies. See Filing 17 at 2; Filing 28 at 2, 9. Second, Whisler parses Plaintiff's Complaint into distinct paragraphs and argues each separate paragraph fails to state a claim. See Filing 17 at 3-11.[1] Third, Whisler argues Plaintiff's allegations of wrongful death and survival based on negligence are conclusory, lack sufficient factual support, and do not adequately plead causation. See Filing 17 at 4-6, 11. Fourth, Whisler similarly argues Plaintiff's allegations of wrongful death and survival based on breach of warranty are conclusory and lack sufficient factual support. See Filing 17 at 7-8. Finally, Whisler supports its Motion to Dismiss (Filing 16) with an affidavit (Filing 18-1). The Court will address each issue and ultimately concludes, as discussed below, Plaintiff has adequately pled her wrongful death and survival claims based on negligence but have failed to state a claim against Whisler based on any breach-of-warranty claims.

         1. Choice of Law

         Both parties devote a portion of their respective briefs to whether Nebraska or Georgia law should apply. See Filing 17 at 2, Filing 27 at 10-14, Filing 28 at 9-10. However, Whisler notes that an in-depth discussion of the choice of law is premature. Filing 28 at 9. Plaintiff brings the choice-of-law issue to the court's attention but also concede the issue need not be determined at this stage because either law would lead to a similar outcome for purposes of the present motion. See Filing 27 at 10-14. In particular, Plaintiff cites nearly identical negligence pleading standards utilized in both states, expounds almost entirely on Nebraska law, does not address warranty law in Georgia, and pleads wrongful death and survival only under Nebraska statutes. See Filing 1 at 14-15, 17, 19, 21-22, 24, 26; Filing 27 at 11, 13. The Court will apply Nebraska law given the similarity between basic Georgia and Nebraska negligence and warranty law and the fact both parties agree the choice-of-law issue need not be decided at this time. See BBSerCo, Inc. v. Metrix Co., 324 F.3d 955, 960 n.3 (8th Cir. 2003) (citing Wood v. Mid-Valley Inc., 942 F.2d 425, 426 (7th Cir. 1991)) (“The operative rule is that when neither party raises a conflict of law issue in a diversity case, the federal court simply applies the law of the state in which the federal court sits.”); Shah v. Inter-Cont'l Hotel Chicago Operating Corp., 314 F.3d 278 (7th Cir. 2002) (explaining it is not necessary for plaintiffs to plead the applicable state law in order to survive a Rule 12(b)(6) motion to dismiss); Fisher v. Great Socialist People's Libyan Arab Jamahiriya, 541 F.Supp.2d 46, 52 (D.D.C. 2008) (explaining that the federal pleading standard does not require a complaint to set forth choice of law contentions or to specify a particular state out of which each claim arises). Thus, the Court will generally apply Nebraska law at this early juncture.

         2. Affidavit

         Whisler offers an affidavit (Filing 18-1) which it relies on in support of several of its arguments. See Filing 17 at 10-11. However, the Court, in its discretion, declines to consider the affidavit ...

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