JETSTREAM AERO SERVICES v. New Hanover County

672 F. Supp. 879

JETSTREAM AERO SERVICES, INC., Plaintiff, v. NEW HANOVER COUNTY, et al., Defendants.

No. 86-85-CIV-7.

United States District Court, E.D. North Carolina, Wilmington Division.

August 13, 1987.

Barringer, Allen & Pinnix, Thomas L. Barringer, Noel L. Allen, Miriam J. Baer, Raleigh, N.C., for plaintiffs.

Womble Carlyle Sandridge & Rice, R. Howard Grubbs, Winston-Salem, N.C., Marshall, Williams, Gorham & Brawley, Lonnie B. Williams, Wilmington, N.C., Carlton S. Prickett, Jr., Wilmington, N.C., for defendants.

ORDER

DUPREE, District Judge.

On November 12, 1986 plaintiff instituted this action pursuant to 42 U.S.C. § 1983 against New Hanover County, various county officers and two business competitors alleging $5,000,000 in damages when its due process and equal protection rights were violated because of concerted acts by defendants to discriminate against and harass plaintiff in its operation as a fixed base operator (hereinafter referred to as FBO) at the New Hanover County Airport. Plaintiff also seeks redress for violations of the North Carolina Constitution, Article 1, Sections 19 (due process and equal protection) and 34 (prohibiting monopolies), as well as unfair and deceptive trade practices pursuant to N.C.G.S. § 75-1.1.¹

The action is presently before the court on motions by the county defendants to amend their answer and for judgment on the pleadings to which the parties have filed lengthy memoranda in support of their respective positions. Plaintiff also moves to amend its complaint.

The following facts are alleged by plaintiff in its complaint: On or about January 1, 1981 plaintiff entered into an agreement to lease a portion of the property owned by the defendant county known as New Hanover County Airport. Plaintiff continues to lease this property from defendant county to date under two subsequent leases dated November 20, 1985 and January 1, 1986. Plaintiff operates on the leased premises as a limited FBO, providing airplane services to users of the county airport. Pursuant to the terms of each lease, plaintiff has the right to use common areas of the airport and appurtenances thereto; to land, take off, fly, taxi, tow, load and unload aircraft and other equipment used in its operations; to repair, maintain, condition, service, test, park or store aircraft in conformity with rules and regulations adopted by the county; to sell or lease aircraft; and various other rights as set forth in the lease agreements. Furthermore each lease provides that plaintiff is entitled to access to the leasehold over roads established at the airport.

On or about September 12, 1983 plaintiff formally submitted an announcement with the airport commission of its intent to expand its limited FBO to a full service FBO to include fuel sales. However at this time defendants Air Wilmington and Wilmington General, also operating as FBOs at the airport, began efforts to injure and destroy plaintiff whom they considered to be a major competitor in that market. These defendants conspired with county officials, most particularly R.C. Shackelford, Jr., Airport Manager, to harass and delay plaintiff in its ongoing business and expansion efforts.

Defendants Air Wilmington and Wilmington General Aviation are purportedly two separate entities but apparently have common ownership and control in William and Harry Cherry. Plaintiff believes that the president of Air Wilmington and acting president of Wilmington General is privy to certain information concerning defendant Shackelford, which enables him to exert pressure upon Shackleford to act in a manner favorable to the corporate defendants and adverse to plaintiff. The conspiratorial acts of defendants as alleged by plaintiff include breaches of the lease, inequitable administration of airport rules and the North Carolina building code, violations of the Federal Aviation Act (hereinafter referred to as the FAA), harassment, secret surveillance, and malicious publication of false and derogatory statements.

MOTION FOR JUDGMENT ON THE PLEADINGS

In their motion for judgment on the pleadings defendants make several arguments. First, defendants contend that plaintiff has failed to allege any constitutional right which has been violated to support its claim under 42 U.S.C. § 1983. Defendant states that plaintiff's allegations of excessive rent, the condition of the premises, and the inability to utilize the premises are claims based on the lease agreement between the parties and that the appropriate remedy for such a landlord/tenant dispute lies in state courts. Coastland Corporation v. County of Currituck, 734 F.2d 175, 178 (4th Cir.1984); Perry v. Housing Authority of City of Charleston, 664 F.2d 1210, 1216 (4th Cir.1981); Heath v. City of Fairfax, 542 F.2d 1236 (4th Cir.1976); Stewart v. Hunt, 598 F.Supp. 1342 (E.D.N. C.1984). Moreover, defendants submit that plaintiff has no constitutional right to use the facilities at the airport or to obtain the most favorable lease terms and that the county has no obligation to lease property to plaintiff.

Second, defendants argue that plaintiff's allegations of selective enforcement of certain ordinances including the North Carolina building code do not violate equal protection because plaintiff has failed to show that the selection was based upon unjustifiable standards such as race, religion or other arbitrary classification. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962). In addition, defendants contend that plaintiff's equal protection claim fails because plaintiff does not allege that the county's action constituted a denial of a right, privilege or immunity secured by the federal constitution. Muckway v. Craft, 789 F.2d 517, 523 (7th Cir.1986).

Third, defendants submit that plaintiff's 1983 action is foreclosed because a federal statute exists which provides a comprehensive scheme for enforcing the rights plaintiff asserts. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 19, 101 S.Ct. 2615, 2625-26, 69 L.Ed.2d 435 (1981). According to defendant, any right plaintiff may have to a nondiscriminatory lease or one identical to other FBOs is provided by 49 U.S.C. § 2210(a), the Airport and Airway Improvement Act of 1982. However, because this statutory provision has been interpreted as not providing a private cause of action any relief sought must be in accordance with the enforcement scheme under the Act. Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91 (2d Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 248, 93 L.Ed. 2d 172 (1986).

Fourth, defendants assert that plaintiff's slander or defamation claim is not actionable under Section 1983 as provided in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).² Also, defendants contend that the conclusory allegations of conspiracy do not state a claim under Section 1983. Wetherington v. Phillips, 380 F.Supp. 426, 428 (E.D.N.C.1974), aff'd, 526 F.2d 591 (4th Cir.1975). Finally, defendants state that because no federal claim exists the court is without jurisdiction to hear plaintiff's pendent North Carolina constitutional claims.

Plaintiff, on the other hand, resists defendants' motion on several grounds. First, plaintiff argues that the action is more than just a lease dispute inasmuch as the county, through its officials, and in conspiracy with plaintiff's competitors, have harassed and discriminated against plaintiff's ongoing business thereby depriving plaintiff of its constitutional rights to due process and equal protection.

As to violations of its due process rights plaintiff submits that this claim rests on the interference and harassment by defendants of its property right — "the peaceful enjoyment of its lease." Plaintiff states that the conspiratorial efforts of defendants to impose unreasonable and arbitrary conditions upon the use of plaintiff's property constitute a violation of its substantive due process right to property.

Plaintiff contends that its equal protection claims must also be sustained because it has specifically plead as required by Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944) "purposeful" discrimination by defendants. Plaintiff points to numerous facts alleged in its complaint which support this "pervasive pattern of arbitrary, capricious and discriminatory acts": demands for additional rent in violation of the lease terms, false and disparaging statements regarding plaintiff's payment performance, restricting access to the leasehold, providing more favorable lease terms to plaintiff's competitors, restricting plaintiff's aircraft spraypainting operations on the leasehold, narrowly and/or erroneously selectively enforcing state laws and local building codes against plaintiff, wrongfully requiring plaintiff to obtain undue insurance not required by the lease or statute, wrongfully requiring of plaintiff personal financial information not required of other defendants FBO, failing to provide plaintiff adequate security, wrongfully restricting and denying plaintiff's attempts to expand its areas of operation, wrongfully reneging on prior agreements, wrongfully denying or delaying plaintiff's requests for additional facilities, ramp space and hangar space, wrongfully entering plaintiff's leasehold for the purposes of harassment, wrongfully allowing a ditch to be created on plaintiff's leasehold which floods and interferes with plaintiff's parking area, wrongfully requiring plaintiff to obtain an air taxi certificate when such a requirement is not enforced against the corporate defendants, allowing the corporate defendants to operate with insufficient shop and hangar space in violation of applicable ordinances while strictly enforcing said ordinances against plaintiff, allowing defendant Wilmington General to utilize a building without payment while not according similar privileges to plaintiff, wrongfully failing to intervene to prevent and...