The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
In this action, plaintiffs Mercy Flight Central, Inc. ("Mercy Flight") and EMS Air Services of New York, Inc. ("EMSAS") (collectively "Plaintiffs"), providers of emergency medical air transportation services, allege that Defendants are violating federal law by providing competing services without proper certification. Now before the Court are the following motions: 1) a motion [#10] by defendant TLC Emergency Medical Services, Inc. ("TLC"), for an order dismissing this action for improper venue, or, in the alternative, transferring venue to the United States District Court for the Northern District of New York, or, in the alternative, for an order dismissing the action for lack of subject-matter jurisdiction; 2) a motion [#11] by defendant New York State Police ("the State Police") for an order dismissing the action for lack of subject-matter jurisdiction or, in the alternative, for an order dismissing or transferring the action for improper venue; 3) a motion [#13] by defendant Onondaga County Sheriff's Department ("the Sheriff's Department") for an order dismissing the complaint for lack of subject-matter jurisdiction and for improper venue; 4) a motion [#18] by defendant Central New York Regional Emergency Medical Services Council ("the Council") for an order dismissing the action for lack of subject-matter jurisdiction, failure to state a claim and improper venue; and 5) a cross-motion [#27] by Plaintiffs for leave to amend the complaint. For the reasons that follow, the claims against the State Police and the Council are dismissed, and this action is transferred to the United States District Court for the Northern District of New York.
Unless otherwise noted the following facts are taken from Plaintiffs' Complaint [#1]. Plaintiffs are private not-for-profit corporations that, for a fee, jointly provide emergency medical helicopter transportation services to individuals throughout New York State. More specifically, Mercy Flight provides such transportation using helicopters that are owned and operated by EMSAS.
Defendants the State Police and the Sheriff's Department each also conduct emergency medical helicopter operations. The State Police, which has offices throughout the State of New York, performs its medical helicopter operations in various areas of the state, including the Western and Northern Districts of New York. In addition to employee crew members, State Police helicopters carry non-employee emergency medical providers and patients. Patients who are transported by the State Police are not charged for the transportation. However, Plaintiff alleges that patients are charged a fee for the emergency medical providers' services.
The Sheriff's Department, which has offices in Onondaga County, performs its medical helicopter transportation operations solely within the Northern District of New York. In addition to employee crew members, the Sheriff's Department helicopters transport volunteer emergency medical providers and patients. Patients who are transported by the Sheriff's helicopter are not charged for transportation. However, as with the State Police, Plaintiff alleges that patients are charged a fee for the emergency medical providers' services.
Defendant the Council is a regional emergency medical services council organized under New York Public Health Law § 3003, with offices in Syracuse, New York. (Affidavit of Warren Darby, ¶ 13). The Council operates in the Counties of Cayuga, Cortland, Onondaga, Oswego and Tompkins. Id. In or about July 2004, the Council organized a clearinghouse for requests for medical helicopter services. Id. at ¶ 15. In that regard, the Council created a chart of medical helicopter transportation providers, including the State Police and Onondaga County Sheriff, and arranged to have Defendant TLC, a private ground ambulance service provider, with offices in the Northern District of New York, relay requests for medical helicopter transport to providers on the chart. Id. at ¶ ¶ 15-16. TLC relays such requests for patients located within the counties of Onondaga, Cayuga, Cortland, Oswego, Tompkins, St. Lawrence, Lewis, Jefferson, Madison, Herkimer and Oneida. Id. at ¶ 19. TLC does not operate in the Western District of New York or relay calls for patients in the Western District. Id. Neither the Council nor TLC is directly involved in the operation of aircraft.
Plaintiffs' helicopter transport operations are "civilian aircraft operations" within the meaning of the Federal Aviation Act, and EMSAS is therefore required to be certified to perform such activity pursuant to 49 U.S.C. § 41101(a). In that regard, 49 U.S.C. § 41101(a)(1) provides that, "[e]xcept as provided in this chapter or another law--
(1) an air carrier may provide air transportation only if the air carrier holds a certificate issued under this chapter authorizing the air transportation[.]" The term "air carrier" is defined as "a citizen*fn1 of the United States undertaking by any means, directly or indirectly, to provide air transportation." 49 U.S.C. § 40102(a)(2). Further, the term "air transportation" is limited to "foreign air transportation, interstate air transportation, or the transportation of mail by aircraft." 49 U.S.C. § 40102(a)(5). Moreover, the term "interstate air transportation" is defined, in relevant part, as "the transportation of passengers by aircraft as a common carrier for compensation." 49 U.S.C. § 40102(a)(25) (Emphasis added).
On the other hand, the parties agree that "public aircraft" are not required to be certified under 49 U.S.C. § 41101(a). See, e.g., 41 C.F.R. § 102-33.165 ("A public aircraft is not subject to many Federal Aviation Regulations, including requirements relating to aircraft certification, maintenance, and pilot certification."). A "public aircraft" is defined as "[a]n aircraft owned and operated by the government of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of one of these governments, except as provided in [49 U.S.C. § ] 40125(b)." 49 U.S.C. § 40102(a)(41)(C). However, a government-owned and operated aircraft is not considered a "public aircraft" "when the aircraft is used for commercial purposes or to carry an individual other than a crewmember or a qualified noncrewmember." 49 U.S.C. § 40125(b). The term "commercial purposes" "means the transportation of persons or property for compensation or hire." 49 U.S.C. § 40125(a)(1). The term "qualified non-crewmember" means, in relevant part, "an individual, other than a member of the crew, aboard an aircraft . . . whose presence is required to perform, or is associated with the performance of, a governmental function," which means "an activity undertaken by a government, such as . . . firefighting [or] search and rescue." 49 U.S.C. § 40125(a)(2)-(3).
On June 26, 2007, Plaintiffs commenced the subject action and alleged two separate causes of action. The first cause of action alleges that the State Police and Sheriff's Department have violated "the Federal Aviation Act," presumably meaning 49 U.S.C. § 41101(a)(1). As for damages, the cause of action seeks compensatory money damages and a permanent injunction. The second cause of action alleges that the Council and TLC aided and abetted the alleged violations of the Federal Aviation Act by the State Police and Onondaga Sheriff, "by dispatching State Police helicopters or Sheriff's Department helicopters to emergency service locations." The second cause of action also seeks money damages and a permanent injunction.
On September 20, 2007, TLC filed the subject motion [#10] for an order transferring venue to the United States District Court for the Northern District of New York, or, in the alternative, for an order dismissing the action for lack of subject-matter jurisdiction. With regard to venue, TLC contends that the appropriate venue statute in this action is 49 U.S.C. § 46108, which states, in relevant part, that an action brought to enforce 49 U.S.C. § 41101(a)(1) "may be brought in the judicial district in which the defendant does business or the violation occurred." TLC maintains that it neither does business in the Western District of New York nor committed any of the acts complained of in the Complaint in this district. Instead, TLC states that venue on the claim would be proper only in the Northern District of New York. TLC further alleges that the claim against it must be dismissed for lack of subject-matter jurisdiction, since it does not operate any aircraft, and since there is no statutory basis for Plaintiff's claim of aiding and abetting.
On September 24, 2007, the State Police filed the subject motion [#11] for an order dismissing the action for lack of subject-matter jurisdiction or, in the alternative, for an order dismissing or transferring the action for improper venue. With regard to venue, the State Police contend that venue is proper only in the Northern District of New York, since that is where all of the complained-of activities took place. (See, Declaration of Emil Bove, Jr. Esq. at ¶ 9) ("While the New York State Police does engage in government functions throughout the State of New York, it is clear that the claims in the Complaint in this Action arise out of its air medivac activities in the Northern District of New York."). As for the motion to dismiss for lack of subject-matter jurisdiction, the State Police maintains that Plaintiff's claim for money damages is barred by the Eleventh Amendment to ...