United States District Court, C.D. California
DAVINCI AIRCRAFT, INC.
UNITED STATES OF AMERICA ET AL.
Present: The Honorable CHRISTINA A. SNYDER Judge.
CIVIL MINUTES - GENERAL
CHAMBERS) - UNITED STATES'S MOTION TO DISMISS (Filed
March 20, 2017, Dkt. 26)
August 5. 2016. DaVinci Aircraft, Inc. ("DaVinci")
filed a complaint against the United States of America, as
well as Michael Christmas and Rodnev Lewis, two members of
the United States Air Force. Dkt. 1 ("Compl."). The
Complaint alleges five claims against all of the defendants,
namely, (1) fraud. (2) negligent misrepresentation. (3)
conspiracy, (4) implied contract, and (5) conversion.
Id. The gravamen of DaVinci's complaint is that
agents of the United States Air Force allegedly conspired to
fraudulently compel DaVinci to surrender ten "JASSM
November 28, 2016, the United States filed a motion to
dismiss DaVinci's complaint pursuant to Federal Rules of
Procedure 12(b)(1) and 12(b)(6). Dkt. 12. On January 30,
2017, the Court granted the United States's motion and
granted DaVinci 21 days in which to file an amended
complaint. Dkt. 18.
February 21, 2017, DaVinci filed a First Amended Complaint
("FAC"). Dkt. 19. The FAC adds a party, defendant
Joel Russell, and alleges Bivens claims against
"All Defendants." Unlike the Complaint, the FAC
does not allege breach of an implied contract.
March 20, 3017, the United States filed a motion to dismiss
the FAC. Dkt. 26 (the "Motion" or
"Mot."). On March 31, 2017, Da Vinci filed an
opposition. Dkt. 31. ("Opp'n"). On April 3,
2017, the United States filed a reply, in which the United
States also requested that DaVinci's untimely opposition
be stricken. Dkt. 32 ("Reply"). On April 4, 2017,
DaVinci filed an opposition to the United States's
request to strike DaVinci's opposition to the motion to
dismiss. Dkt. 33 ("Opp'n to Striking").
April 17, 2017, the Court held oral argument on the instant
motion, after which the Court took the matter under
submission. Dkt. 37. Having carefully considered the
parties' arguments, the Court rules as follows.
alleges the following facts.
about March 2013, DaVinci avers that ten JASSM antennas were
originally manufactured by Ball Aerospace and subsequently
offered for sale to the public by Lockheed Martin. FAC ¶
15. The antennas were allegedly purchased by Avatar Unlimited
"as part of a bulk sale of surplus parts, "
Id. at 2:14, and subsequently sold again to BPB
Surplus, Id. at 2:13. DaVinci alleges that, on July
31. 2013. it purchased the ten antennas from BPB Surplus for
$3, 000. Id. ¶ 24.
DaVinci offered the ten JASSM antennas for sale for an asking
price of $125, 000 each. Id.¶ 29. On September
17. 2013. Laura Voyatzis, a special agent with the U.S. Air
Force Office of Special Investigations, accompanied by three
other agents. Lenora Madison. John Drapalik. and David
Givemero, visited DaVinci's office. Id. ¶
26. Voyatzis allegedly stated that the agents were there to
inspect and discuss the JASSM antennas. Id. After
inspecting the antennas, Voyatzis allegedly demanded that
DaVinci surrender the ten JASSM antennas. Id. ¶
27. DaVinci refused to surrender the antennas and the agents
asked for the price at which DaVinci would sell the
equipment. Id. ¶ 29. After learning that the
asking price was $125, 000 per antenna, the agents left.
April 21. 2014 - in response to a price request from Rodney
Lewis, a contracting officer on Eglin Air Force Base -
DaVinci offered to sell the antennas for $75, 000 each.
Id. ¶ 30. Lewis allegedly made a counteroffer
to pay $7, 359 for all ten antennas, based upon the price
that DaVinci originally paid. Id. ¶ 32. DaVinci
rejected the offer and insisted upon payment of $750, 000.
Id. ¶33. Lewis allegedly replied. "I
encourage you to propose a more reasonable price so we both
can benefit." Id.
11, 2014. DaVinci allegedly offered to sell the antennas to
Eglin Air Force Base for a total of $600, 000. Id.
¶36. DaVinci received no response. Id. ¶
September 30, 2014, Joel Russell, a special agent with the
Air Force Office of Special Investigations, arrived at Da
Vinci's office with two other Air Force Officers.
Id. ¶ 39. The agents insisted that DaVinci
surrender the JASSM antennas. Russell stated that the Air
Force was authorized and intended to take possession of the
antennas. Id. Russell presented DaVinci with a
letter, signed by Michael Christmas, Special Agent in Charge
at the Office of Special Investigations, "purportedly
authorizing the Air Force to take possession of the
JASSM" antennas. Id. The letter stated:
The undersigned, being fully authorized to take possession of
the following items being claimed as constituting or
consisting of "information relating to the national
defense" acknowledges received often (10) JASSM antennae
-from Leonardo Parra and DaVinci Aircraft. The undersigned
further acknowledges that the delivery of the said items by
Leonardo Parra and DaVinci Aircraft is made under compulsion
of law pursuant to 18 USC 793 (d) and is made without
prejudice to any claims by Leonardo Parra andor DaVinci
Aircraft for their fair market value.
Id. ¶ 39; Ex. F ("Christmas Letter").
DaVinci alleges that it surrendered the antennas
"pursuant to the demands and threats made by Special
Agent Russell to provide the JASSM Antennae under compulsion
of law . . . including the threat of criminal prosecution for
any failure to comply." Id. ¶ 40.
avers that the Air Force lacked authority to take possession
of the JASSM antennas and fraudulently represented its
authority to induce surrender of the antennas. Id.
¶ 78. DaVinci asserts that defendants knowingly and
intentionally made false and fraudulent statements to DaVinci
regarding its authority and the risk of criminal prosecution
in order to defraud DaVinci. Id. ¶ 73.
According to DaVinci. defendants knowingly conspired to make
the foregoing misrepresentations to induce surrender of
property without due process of law. Id. ¶ 78.
March 12. 2015. Da Vinci's counsel allegedly sent a
letter to the Office of Special Investigations at Eglin Air
Force Base, requesting that an attached "Form 95.
Administrative Claim for Damages" be filed regarding
plaintiffs intended tort claims. Id. ¶ 42.
"Ms. Sipp, " a litigator in the Claims Division of
the Office of the Staff Judge Advocate for the Department of
the Army, requested that Da Vinci file its request, including
the original signed documents, with the Claims Division of
the Office of the Staff Judge Advocate "to process the
claim." Id. ¶ 43. On August 18, 2015,
DaVinci sent the requested documents to the Claims Division
as well as the Office of Special Investigations at Eglin Air
Force Base. Id. ¶ 44. On August 20, 2015, the
Office of the Staff Judge Advocate acknowledged receipt of
DaVinci's claim against the United States Government.
Government has offered evidence that at least part of the
JASSM antennas are classified at the "SECRET and SECRET
SPECIAL ACCESS REQUIRED level" pursuant to a Special
Access Program called "SENIOR RODEO." Hemmingsen
Decl. Ex. A. The principal change made by plaintiff to the
pleadings as they relate to the United States is in relation
to the classification of the JASSM Antennas. Plaintiff
alleges that the JASSM Antennas were manufactured as
"UNCLASSIFIED hardware and not subject to the security
requirement which would have applied to the manufacture of
classified hardware . . . [including] Special Access Program
SENIOR RODEO." FAC ¶ 17. Plaintiff further alleges