The opinion of the court was delivered by: John Gleeson, United States District Judge
Plaintiff Air Italy S.p.A. brings this action against Aviation Technologies and Scanderbeg Air, asserting causes of action for breach of contract, promissory estoppels, and fraud. Aviation Technologies now moves to dismiss the complaint for failure state a claim upon which relief may be granted. For the reasons stated below, the motion to dismiss is denied.
A. The Initial Agreement Between Aviation Technologies and Sky King
This case involves a dispute over an air charter agreement. In February 2009, Sky King Inc. and Aviation Technologies, Inc. sought approval from the Department of Transport ("DOT") to operate a series of 40 round-trip charter flights between June 12, 2009 and September 13, 2009.*fn1 The proposed flights all originated from and terminated at John F. Kennedy Airport, and were destined for Tirana, Albania and Pristina, Kosovo. In the prospectus filed with the DOT, Sky King was identified as the "direct air carrier," and Aviation Technologies was named the "charterer." Am. Compl. ¶ 7. DOT approved the prospectus on March 4, 2009.
Under DOT regulations, all customer payments to the charterer must be held in escrow. 14 C.F.R. § 380.34(c). The payments are held first in the charterer's escrow account, then in an escrow account in the carrier's name; the carrier only takes full possession of the customers' money two days after the completion of the flight. Id. In this case, Sky King and Aviation Technologies informed DOT that their escrow accounts were in a bank in Michigan.
Though Aviation Technologies was officially the charterer, the complaint alleges that another company, Scanderbeg Air, took the lead in organizing the flights. According to the amended complaint, Scanderbeg was the "driving force in the solicitation of sales" for the flights, Scanderbeg "participated in financial proceeds of the charter sales," and Scanderbeg "actively participated in business decisions" with Aviation Technologies. Am. Compl. ¶ 9.
For most of the period identified in the prospectus, the charter flights operated in accordance with the original plan, using Sky King's aircraft. On August 19, 2009, however, Sky King became unable or unwilling to fulfill its end of the bargain.
Scanderbeg and Aviation Technologies decided to continue with the flights without Sky King. They agreed that Aviation Technologies would take custody of the customer payments previously held in escrow for Sky King, and that Aviation Technologies would control that money in the interests of Aviation Technologies and Scanderbeg. According to the complaint, Aviation Technologies and Scanderbeg agreed that Aviation Technologies would make direct payment to the air carrier that replaced Sky King. Am. Compl. ¶ 11.
B. The Contracts with Air Italy
Scanderbeg and Aviation Technologies needed a new carrier to complete the remaining flights, and they turned to Air Italy. The complaint states that Scanderbeg was the "moving force" in arranging the new deal. Am. Compl. ¶ 9.
On August 20, 2009, Scanderbeg called Air Italy, proposing that Air Italy sub-charter one of its Boeing 757-200 aircraft to Sky King. Scanderbeg sent Air Italy a proposed Aircraft, Crew, Maintenance Insurance ("ACMI") Contract, whereby Air Italy would agree to fly the rest of the flights that Sky King had promised to provide. On its face, the "757 contract" was between, on one hand, Sky King and Scanderbeg, and, on the other hand, Air Italy.
Am. Compl. Ex. A. Aviation Technologies's name appears nowhere on the 757 contract.
Beginning on August 23, 2009, Air Italy provided flights in accordance with the 757 contract. On August 28, 2009, Air Italy and Scanderbeg / Sky King entered into a replacement ACMI contract, the "767 contract," whereby Air Italy operated a substitute service for the remainder of the chartered flights using a Boeing 767-300 airplane. The complaint states that Air Italy performed its obligations in full. Am. Compl. ¶ 15.
According to the complaint, the ACMI contracts, though nominally sub-charters between Air Italy and Sky King, were "arranged and entered into at the instigation, encouragement and participation of . Scanderbeg and Aviation Technologies for the purpose and with the intended effect of benefiting solely the economic interests of those two defendants." Am. Compl. ¶ 16. Air Italy asserts that Scanderbeg and Aviation Technologies chose to characterize the new arrangement as a sub-charter with Sky King in order to comply with the initial prospectus filed with DOT. ...