United States District Court, N.D. California
ORDER RE: MOTION TO DISMISS SAC RE: DKT. NO.
MARIA-ELENA JAMES United States Magistrate Judge.
Eric Lundahl moves to dismiss the Second Amended Complaint
(“SAC”) pursuant to Federal Rule of Civil
Procedure (“Rule”) 12(b)(6). Plaintiff Lawrence
Shapiro filed an Opposition (Dkt. No. 35) and Defendant filed
a Reply (Dkt. No. 36). The Court finds this Motion is
suitable for disposition without oral argument and vacates
the July 13, 2017 hearing. See Civ. L.R. 7-1(b);
Fed.R.Civ.P. 78. Having considered the parties'
positions, the relevant legal authority, and the record in
this case, the Court GRANTS Defendant's Motion for the
action arises out of an airplane crash that occurred on
November 5, 2014 in San Felipe, Mexico. Shapiro was traveling
in a private plane piloted and owned by Lundahl; he alleges
that Lundahl's actions and omissions caused the crash,
resulting in catastrophic injuries to Plaintiff. The Court
has twice held Shapiro failed to allege facts sufficient to
show the existence of federal jurisdiction over his claims
and dismissed the Original and First Amended Complaints on
November 4, 2016, Shapiro filed the original Complaint in
this Court. He alleged three claims for violations of Federal
Aviation Administration (“FAA”) regulations.
See Compl., Dkt. No. 1. He named as defendants
Lundahl, as well as a number of entities related to Baja
Pirates.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
dismissed the Complaint, holding that the “FAA creates
an extensive administrative 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 (internal quotation marks and citations omitted), Dkt.
No. 25. The Court allowed Plaintiff to file an amended
complaint. Id. at 4.
First Amended Complaint
timely filed his First Amended Complaint (“FAC”),
which Lundahl once more moved to dismiss. See FAC,
Dkt. No. 26; Second MTD, Dkt. No. 27. Shapiro for the most
part reasserted the allegations he had included in the
Original Complaint, adding a few more details regarding the
basis for his claims. See FAC. In relevant part, the
FAC alleged Lundahl 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 asserted claims based on violations of FAA
regulations (claims 1-3) and general negligence (claim 4). He
asserted federal jurisdiction existed based on admiralty.
Id. ¶ 5.
Court again dismissed the claims based on FAA regulations.
See Second Order at 4, Dkt. No. 31. The Court also
found Plaintiff failed to allege facts sufficient to show
admiralty jurisdiction existed:
[T]he FAC alleges no facts sufficient to show the negligent
acts that allegedly caused the crash occurred over navigable
water. On the contrary, Plaintiff alleges Defendant was
negligent in planning the trip in La Paz (on dry land), in
refusing [to] land the plane to refuel at Loreto (on dry
land), and in crashing the plane in San Felipe (on dry land).
. . . The only allegation suggesting this action has any
connection to water is that the plane flew over the Sea of
Cortez at some point before the accident. This is
insufficient to confer admiralty jurisdiction.
Id. at 5. The Court also noted the FAC did not
appear to allege facts sufficient to show the accident bore
“a significant relationship to traditional maritime
activity” as it only alleged Lundahl was transporting
friends or business associates up the Coast of Baja.
Id. at 6-7. It granted Shapiro a final opportunity
to amend. Id. at 7.
Factual Allegations of the SAC
Pirates is a sports-fishing business owned by Lundahl, and is
based in La Paz, Mexico. SAC ¶¶ 12-15, 18, Dkt. No.
32. Lundahl and Shapiro traveled to La Paz to promote Baja
Pirates. Id. ¶¶ 15, 19. On November 5,
2014, Shapiro and Lundahl left La Paz in a Cessna model 182K
aircraft, with the ultimate destination of Palo Alto,
California. Id. ¶¶ 1-2, 19-20. Baja
Pirates owned the Cessna; the only people on the plane were
Lundahl, Shapiro, and Shapiro's wife and daughter.
Id. ¶¶ 8, 13, 15, 20.
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, 11. Shapiro alleges Lundahl
calculated he had enough fuel to fly for 4.9 hours, which,
assuming no wind and no deviation from the straight line
trajectory, the plane could have reached the planned
destination of Calexico with less than 30 minutes of flight
time remaining. Id. ¶¶ 3-4; see also
id. ¶ 21 (Lundahl decided to fly direct from La Paz
to Calexico, California, after consulting flight software
program). While flying over the Sea of Cortez, due to
headwinds that reduced the plane's ground speed, Lundahl
should have known it was impossible to reach Calexico with
the amount of fuel remaining on board. Id.
¶¶ 5, 26. Shapiro asked Lundahl to land at Loreto
airport to refuel and allow the passengers a break; Lundahl
vehemently refused to land. Id. ¶ 25. After
flying over San Felipe, Mexico, Lundahl decided to turn
around and stop at San Felipe International Airport in Mexico
to refuel the plane. Id. ¶¶ 6-7, 27.
“On the descent to the airport, the plane encountered
turbulence and with only seconds remaining before landing,
” Lundahl ...