The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
In 1999, Plaintiff AirTran Airways and Co-Defendant City of
Chicago entered an Amended and Restated Airport Use Agreement and
Facilities Lease, in which the City contracted to provide certain
services in connection with AirTran's commercial flight
operations at Chicago Midway Airport, which is owned and operated
by the City.*fn1 On July 6, 2002, the City's Airport Operations escorted a Boeing 727 owned by AirTran to a remote
parking spot after it landed at the Airport. An employee of
Co-Defendant Sharp Aviation rode the airplane's brake, and an
AirTran employee operated the push back tractor that towed the
airplane. The tractor operator was required to follow the City's
escort, who in turn was directed by Federal Aviation
Administration ("FAA") Ground Control. AirTran alleges that the
City's escort took a different route than was typically used and
that this new route included an improperly sharp turn. As a
result of this turn, the nose wheel steering gear of the aircraft
came into contact with the push back tractor and was badly
damaged. AirTran subsequently brought suit against the City and
Sharp Aviation, and the City now moves to dismiss AirTran's
Second Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1), or alternatively, to dismiss Count I of the
Second Amended Complaint pursuant to Rule 12(b)(6).
The City argues that dismissal under Rule 12(b)(1) is
appropriate because the amount in controversy may not exceed
$75,000, thus precluding jurisdiction under 28 U.S.C. § 1332(a).
The City appropriately argues this "with caution" because Count I
does pray for relief in excess of $75,000. If AirTran alleges "a
dispute substantial enough to come within the diversity
jurisdiction, [its] inability to prove an injury exceeding the
minimum amount in controversy does not affect jurisdiction."
Pratt Cent. Park Ltd. P'ship v. Dames & Moore, Inc.,
60 F.3d 350, 351 (7th Cir. 1995). Airtran is not required to prevail on
the merits as a condition of jurisdiction or to itemize damages. Id. at 351-52; Hydra-Stop, Inc. v. Severn
Trent Envtl. Servs., Inc., No. 03 C 4843, 2003 U.S. Dist. LEXIS
21769, at *12 (N.D. Ill. Dec. 3, 2003) (damages allegations
sufficient if they put opposing party "on notice of the nature of
the claimed damages"). Nonetheless, I am not limited to the face
of the complaint in determining whether or not the cause of
action meets jurisdictional requirements. See McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 184 (1936); Pratt Cent.
Park Ltd. P'ship, 60 F.3d at 352-53; Roman v. United States
Postal Serv., 821 F.2d 382, 385 (7th Cir. 1987). The City relies
on AirTran's computation of damages in its Rule 26(a) Disclosure
to argue that AirTran's damages only total $55,851.70, the sum of
repair and towing costs. According to the City, the additional
lost revenue damages that are listed in the Disclosure and place
the total alleged amount over $75,000 "are not sought in the
Second Amended Complaint." However, the Second Amended Complaint
does allege damages in excess of $75,000. Furthermore, the
itemized list of damages contained in AirTran's Disclosure, which
totals more than $160,000, raises sufficient doubt about the
City's argument that damages under the current complaint should
be limited to $55,841.70 and thus to an amount less than the
jurisdictional requirement. Under Illinois law, lost net revenue
is recoverable in a breach of contract action. See Durasys, Inc.
v. Leyba, 992 F.2d 1465, 1469 (7th Cir. 1993). The Disclosure
lists $104,168.56 in "lost revenue," and the City has not
submitted any evidence that these damages are not lost profits.
On the other hand, AirTran submitted a letter with its response
claiming that these lost revenue figures represent "lost net
revenue, i.e. lost profits." Accordingly, the Disclosure, rather
than casting doubt on AirTran's claim that damages exceed
$75,000, provides me with an adequate basis to conclude that the
Second Amended Complaint sufficiently alleges the required jurisdictional amount.
Therefore, I deny the motion to dismiss the Second Amended
Complaint based on Rule 12(b)(1).
Alternatively, the City argues that Count I fails to state a
claim upon which relief can be granted. In reviewing a
Rule 12(b)(6) motion to dismiss, I must assume the truth of all
wellpleaded allegations, making all reasonable inferences in
favor of AirTran. See Murphy v. Walker, 51 F.3d 714, 717 (7th
Cir. 1995); Sidney S. Arst Co. v. Pipefitters Welfare Educ.
Fund., 25 F.3d 417, 420 (7th Cir. 1994). I should grant the
motion only if AirTran cannot prove any set of facts in support
of its claim that would entitle it to relief. See Conley v.
Gibson, 355 U.S. 41, 45-46 (1957).
Count I alleges that the City breached its contract with
AirTran and deprived it of its entitlement to quiet enjoyment of
the premises by failing to adequately operate and maintain the
Airport in a reasonably prudent manner and by impeding AirTran's
right to tow and park its aircraft in a prudent and safe manner.
Specifically, it alleges that the City failed to properly escort
the airplane and failed to properly train its employees to
provide escort services for AirTran. The City argues that Count I
fails because there was no contractual obligation to provide
escort services, and even if there was, the route of travel was
dictated by the FAA, not the City. AirTran counters that Count I
includes several lease provisions that, despite absence of the
term "escort services," nevertheless established an obligation to
provide such services.
To state a cause of action for breach of contract under
Illinois law, AirTran must allege that: (1) a contract existed;
(2) AirTran performed its contractual obligations; (3) the City breached the contract; and (4) AirTran suffered damages resulting
from the breach. See Industrial Hard Chrome, Ltd. v. Hetran,
Inc., 64 F. Supp.2d 741, 745-46 (N.D. Ill. 1999). To survive a
motion to dismiss, AirTran is not required to prove its
allegations but need only have pleaded "the bare essentials of
performance and damages." Bell Enters. Venture v. Santanna
Natural Gas Corp., No. 01 C 2212, 2001 WL 1609417, at *4 (N.D.
Ill. Dec. 12, 2001) (citing Tibor Mach. Prods., Inc. v.
Freudenberg-NOK Gen. P'ship, 967 F. Supp. 1006, 1011 (N.D. Ill.
1997)). That the City disagrees with AirTran over whether or not
the provisions of the contract include "escort services" only
suggests that a dispute exists between the parties over how to
understand and interpret the contract provision that requires the
City to "operate and maintain the Airport." Such a dispute cannot
be resolved by a motion to dismiss. Echo, Inc. v. Whitson Co.,
121 F.3d 1099, 1104-05 (7th Cir. 1997); Quake Constr., Inc. v.
Am. Airlines, Inc., 565 N.E.2d 990, 994 (Ill. 1990).
Accordingly, I cannot dismiss AirTran's complaint on the basis of
the City's argument that the contract did not require it to
provide escort services. See id.
The City's second argument for dismissal under Rule 12(b)(6)
that the City's escort must follow the direction of FAA air
traffic controllers similarly fails. While relevant FAA
Advisory Circulars may establish the standard of care to be
followed by Airport operators, see Anderson v. Alberto-Culver
USA, Inc., 740 N.E.2d 819, 828-29 (Ill.App. Ct. 2000), the City
has not provided sufficient reason to conclude "beyond doubt"
that AirTran cannot prove any set of facts in support of its
claim, Hi-Lite Prods. Co. v. American Home Prods. Corp.,
11 F.3d 1402, 1405 (7th Cir. 1993). Whether or not the City followed
the FAA's standard of care is a fact question to be determined in
subsequent proceedings. See ...