United States District Court, N.D. California
ORDER RE: MOTION TO DISMISS FAC Re: Dkt. No.
MARIA-ELENA JAMES United States Magistrate Judge
before the Court is Defendant Eric Lundahl's Motion to
Dismiss the First Amended Complaint (“FAC”)
pursuant to Federal Rule of Civil Procedure
(“Rule”) 12(b)(6). Plaintiff Lawrence Shapiro
filed an Opposition (Dkt. No. 28) and Defendant filed a Reply
(Dkt. No. 29). The Court previously vacated the hearing on
the Motion. See Dkt. No. 30. Having considered the
parties' positions, the relevant legal authority, and the
record in this case, the Court GRANTS Defendant's Motion
for the following reasons.
November 5, 2014, Shapiro and Lundahl left La Paz, Mexico in
a private, noncommercial Cessna model 182K aircraft (the
“182 Cessna”). FAC ¶¶ 1-2, 19, Dkt. No.
26. Although Shapiro “has been a pilot licensed to act
as a Pilot in Command (‘PIC') with passengers for
most of his life[, ]” he alleges that on November 5,
2014, he was a passenger, and that Lundahl acted as PIC of
the plane. Id. ¶¶ 2-3, 7. After leaving La
Paz, the plane crossed the Sea of Cortez. Id.
¶¶ 1, 16. Plaintiff alleges Defendant refused to
refuel near Loreto, Mexico, flew over San Felipe, Mexico,
then decided to turn around and stop at San Felipe
International Airport in Mexico to refuel the plane.
Id. ¶¶ 1, 20, 22. Lundahl encountered
turbulence, “found that he was unable to fly the
airplane and abdicated control of the airplane to Plaintiff
with approximately thirty seconds remaining to land.”
Id. ¶ 23. Shapiro was unable to correct the
landing, the plane crashed, and Shapiro was severely injured.
Id. ¶¶ 24-25.
November 4, 2016, Shapiro filed the original Complaint in
this Court. He alleged three claims for violations of Federal
Aviation Regulations 91.103, 91.151, and 91.13. See
Compl., Dkt. No. 1 He named as defendants Lundahl, as well as
a number of entities related to Baja Pirates. Shapiro alleged
Lundahl is the owner or one of the owners of Baja Pirates,
together with the owner of the airplane, and that the Cessna
182 was used in connection with Baja Pirates' business
activities on November 5, 2014. See id. ¶¶
8-10. Lundahl moved to dismiss the Complaint on the ground it
failed to state a claim upon which relief can be granted.
See First MTD, Dkt. No. 6. The Court found the
Complaint failed to state a claim:
Each of Shapiro's claims is based on Lundahl's
alleged violation of the Federal Aviation Act
(“FAA”), 49 U.S.C. § 40103, and its
implementing regulations. See Compl. Shapiro
contends federal jurisdiction exists because “[t]his
action arises under 28 U.S.C. [§] 1331, 49 U.S.C.
[§] 40103, 28 U.S.C. [§] 1331(1) and [the
FAA's] implementing regulations.” Id.
The FAA “creates an extensive administrative
enforcement scheme” but the Ninth Circuit has
concluded, repeatedly and without equivocation, that it does
not create a private right of action.
First Order at 3 (citing cases), Dkt. No. 25.
First Amended Complaint
for the most part reasserts the allegations he included in
the Original Complaint, adding a few more details regarding
the basis for his claims. As is relevant to the Motion, the
FAC alleges Defendant was negligent in deciding to plan the
trip without any intermediate stops for refueling despite the
availability of refueling stops (id. ¶ 16); not
becoming familiar with all available information concerning
the flight, including fuel requirements (id. ¶
26); not having enough fuel in the plane when beginning the
flight (id. ¶ 28); refusing to land to refuel
at Loreto International Airport (id. ¶ 20); and
failing to land the plane at San Felipe International Airport
(id. ¶ 22-24). Based on these allegations,
Plaintiff asserts claims based on violation of federal
aviation regulations (claims 1-3) and general negligence
(claim 4). He asserts federal jurisdiction exists based on
admiralty. Id. ¶ 5.