The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This matter comes before the Court on Defendants European Aviation, Ltd. (Aviation) and European Skybus Ltd.'s (Skybus) Motion to Dismiss Plaintiff's Complaint (d/e 13). For the reasons set forth below, the Motion is ALLOWED in part and DENIED in part. The claims against Aviation are dismissed for lack of jurisdiction, but Skybus' Motion to Dismiss is denied.
Aviation and Skybus move to dismiss for failure to state a claim and for lack of personal jurisdiction. For purposes of the Motion to Dismiss for failure to state a claim, the Court must accept as true all well-pleaded factual allegations contained in the Complaint (d/e 1) and draw all inferences in the light most favorable to Plaintiff Capital Airline Engine Leasing, LLC (Capital). Hager v. City of West Peoria, 84 F.3d 865, 868-69 (7th Cir. 1996); Covington Court, Ltd. v. Village of Oak Brook, 77 F.3d 177, 178 (7th Cir. 1996). For purposes of the Motion to Dismiss for lack of personal jurisdiction, the Court must accept the jurisdictional allegations in the Complaint because Aviation and Skybus have not submitted any contravening affidavits. See Turnock v. Cope, 816 F.2d 332, 333 (7th Cir. 1987).
According to the Complaint, Capital is a Wyoming limited liability company whose members are all citizens of Wyoming or Illinois. The Defendants are all British corporations and have their principal places of business in England. Defendant European Aviation Air Charter, Ltd. (Charter) was dissolved in December 2008. Aviation was the parent corporation of Charter and owned 100 percent of the stock of Charter. Aviation, in turn, was owned by Gannet Investments, Ltd. (Gannet). Gannet owned Skybus also. Capital alleges that Skybus was an affiliate of Charter. Complaint, ¶¶ 2-5, 10-12.
On November 10, 2006, Capital leased a Pratt & Whitney Model JT8D-15 Turbofan Engine, serial number 709016 (Engine) to Charter for a term of 24 months. Id. ¶¶ 24-25. The Lease stated, in part, "If any parent, subsidiary, or affiliate shall use the Engine, then such parent, subsidiary or affiliate shall automatically become a party to this Lease by reason of such use and shall use the Engine on the same terms and conditions as Lessee." Id., Exhibit 2, Engine Lease Agreement dated November 10, 2006 (Lease), § 7. The rent was $12,000.00 per month. At the end of the Lease, the Lessee had to return the Engine at its own expense. Id. ¶ 19. If the Engine was destroyed, lost or stolen the Engine would be deemed a total loss and "Lessee shall pay to Lessor within thirty (30) days of demand the 'Agreed Value' of such Engine..., together with all other payments owing under this Lease through such date." Lease § 10. The "Agreed Value" was $600,000.00. Id., Exhibit B. The Lease, further provided that upon default, Capital could recover the rent for the remainder of the Lease term, plus 12 percent prejudgment interest and attorney fees. Id. § 22. The Lease was to be construed in accordance with Illinois law, and the parties to the Lease expressly consented and agreed that any state or federal court in Illinois would have jurisdiction to hear any suit arising out of or in connection with the Lease. Id. §§ 26-27.
Capital delivered the Engine on November 13, 2006, in Miami, Florida. The Engine was then shipped to England. On December 27, 2006, the Engine was installed on a Boeing 737-229 commercial aircraft (Airplane) owned by Skybus. On January 10, 2007, Skybus exported the Airplane to Australia. The Airplane was then operated by OzJet Airlines Pty, Ltd. (OzJet). Gannet and an individual named Paul Stoddart owned 97 percent of OzJet. Stoddart was on the Board of Directors of all of the Defendants and OzJet. Capital alleges that OzJet was a related party to the Defendants. Complaint, ¶¶ 19-21, 27-33.
Skybus knew that the Engine was leased from Capital. Skybus invoiced OzJet for the $12,000.00 monthly rent. Capital does not know if OzJet paid Skybus the rent. Id. ¶ 34.
In May 2008, Stoddart and Gannet sold their ownership and controlling interests in OzJet to an Australian cargo airline named Heavy Lift Cargo Airlines (Heavy Lift). In connection with the sale, OzJet transferred the Airplane, with the Engine, to Heavy Lift. In connection with the sale, Stoddart warranted that the Lease could be terminated by OzJet "by sixty (60) days' written notice and redelivery to Bournemouth International Airport in serviceable condition" at Heavy Lift's expense. Complaint, Exhibit 4, Agreement for Purchase of Shares dated May 2, 2008 (Purchase Agreement), at § 5.9(b). Stoddart also warranted that "the arrangement for technical, computer and engineering support between the company [OzJet] and Stoddart's related entities, including but not limited to European Skybus Limited, European Aviation Air Charter Limited.... can be terminated by the Company [OzJet] by thirty 30 days' written notice." Id. § 5.9(c).
The term of the Lease ended 24 months after delivery on December 13, 2008. Capital made demand on Charter, Skybus, Stoddart, OzJet, and Heavy Lift for return of the Engine, but it was not returned. Capital secured a restraining order in Australia ordering the return of the Engine. The Engine, however, was taken to Jakarta, Indonesia. To the best of Capital's knowledge, the Engine is currently mounted on an airplane located at a maintenance facility in Jakarta. Capital alleges that the Engine is now a total loss. Capital seeks $848,520.00 in liquidated damages for the Engine, unpaid rent, interest and attorney fees up to the date of filing this action. Complaint, ¶¶ 39-41, 44-47.
Aviation and Skybus now move to dismiss for failure to state a claim and for lack of personal jurisdiction. Capital alleges that this Court has personal jurisdiction over Aviation and Skybus because the parties to the Lease consented to the jurisdiction of this Court and Aviation and Skybus each became a party to the Lease by using the Engine. Contractual consents to jurisdiction are effective and enforceable. TruServ Corp. v. Flegles, Inc., 419 F.3d 584, 589 (7th Cir. 2005). A party can also become a party to a contract if a party has knowledge of the offer in the contract, accepts the benefits of the offer, and knows that the offeror expects compensation. Chillmark Partners, LLC v. MTS, Inc., 2003 WL 1964408, at *2 (N.D.Ill. 2003).*fn1
In this case, Capital alleges that Skybus knew of the Lease and used the Engine knowing that Capital expected compensation. Capital alleges that: (1) Skybus was an affiliate of Charter; (2) the Lease stated that any affiliate that used the Engine agreed to be a Lessee under the Lease; (3) Skybus mounted the Engine on the Airplane owned by Skybus; (4) Skybus exported the Airplane with the Engine to OzJet in Australia; and (5) Skybus invoiced OzJet for the $12,000.00 per month rent called for in the Lease. Skybus has not submitted any evidence to controvert these allegations. For purposes of determining jurisdiction, therefore, the Court must assume the allegations are true. Turnock, 816 F.2d at 333. These allegations show that Skybus knew of the Lease, elected to take the benefits of the Lease by mounting the Engine on the Airplane, and knew that Capital expected compensation because Skybus invoiced OzJet for the rent. Skybus, therefore, accepted the terms of the Lease and became a party to the Lease, at least for purposes of determining jurisdiction. Pursuant to the terms of the Lease, Skybus consented to the jurisdiction of this Court. Skybus' Motion to Dismiss for lack of personal jurisdiction is denied.
Capital, however, does not allege that Aviation used the Engine. Capital only alleges that: (1) Aviation was part of the group of businesses owned by Gannet and Stoddart, including Skybus and OzJet; (2) Aviation was the parent corporation of Charter; and (3) Stoddart was the founder of some or all of these related companies and was a director of these companies. Capital does not allege that Aviation took possession of the Engine or the Airplane, or did anything else in relationship to the Lease. Capital further does not allege any basis to pierce the corporate veil or otherwise disregard the corporate form of any of these entities. Aviation, therefore, did not become a party to the Lease, and so, did ...