September v. Constant Aviation, LLC, No. 1:25cv00052 (2025)

Case details
Country
United States
Jurisdiction
Federal
Decided
2025
Disposition
Motion Granted
© 2025 Thomson Reuters. No claim to original U.S. Government Works.Vision Management Group, LLC, et al., Plaintiffs, v. ConstantAviation, LLC, Defendant.United States District Court, N.D. Ohio. | September 22, 2025 | Slip Copy | 2025 WL 2695801Document Detailsstandard Citation:Vision Mgmt. Grp., LLC, et al., Plaintiffs, v. Constant Aviation, LLC,Defendant. Additional Party Names: Anthony Fiorillo, MakGabHoldings LLC, No. 1:25CV00052, 2025 WL 2695801 (N.D. Ohio Sept.22, 2025)All Citations:Slip Copy, 2025 WL 2695801Search DetailsSearch Query:adv: (openai "artificial intelligence" chatgpt "google gemini" "westlawcocounsel" "large language model") (hallucinat! fake fictitious spuriousnonexistent "non-existent" "made up" imagined /p (gpt ai "artificialintelligence" chatgpt chaton perplexity openai copilot "google gemini""google bard" grok "mata v. avianca" claude llm llms)) (hallucinat! fakefictitious spurious nonexistent "non-existent" "made up" imagined) +3(precedent case "legal authority" "legal case") & DATE(aft 1/1/2023)Jurisdiction:OhioDelivery DetailsDate:September 23, 2025 at 8:13 AMDelivered By: Client ID:NOCLIENTIDOutlineMEMORANDUMOPINION & ORDER(p.1)All Citations (p.16)
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 2695801Only the Westlaw citation is currently available.United States District Court, N.D. Ohio.Vision Management Group,LLC, et al., Plaintiffs,v.Constant Aviation, LLC, Defendant.Case No. 1:25cv00052|09/22/2025PAMELA A. BARKER, U. S. DISTRICT JUDGEMEMORANDUM OPINION & ORDER*1 Currently pending is Defendant ConstantAviation, LLC's Motion to Dismiss pursuant to Fed.R. Civ. P. 12(b)(6). (Doc. No. 9.) Plaintiffs VisionManagement Group, LLC, MakGab Holdings LLC,and Anthony Fiorillo filed a Brief in Opposition onMarch 13, 2025, to which Defendant replied on March21, 2025. (Doc. Nos. 10, 11.) For the followingreasons, Defendant's Motion to Dismiss (Doc. No. 9)is GRANTED.I. Factual Allegations1Defendant Constant Aviation, LLC (hereinafter“Defendant” or “Constant Aviation”) provides aircraftinspection and maintenance services. (Doc. No. 1at 3.) Plaintiffs allege that, on December 6,2021, “Plaintiffs retained Defendant to performinspection and repair services on a 1997 CessnaCitation X, MSN 750-0018, pursuant to a Contract toPurchase and associated warranties.” (Id. at 7.) Theparties’ Contract (hereinafter “Inspection Contract”) isattached to the Complaint as Exhibit A. (Doc. No. 1-1.)The Inspection Contract is between Plaintiff VisionManagement LLC (hereinafter “Vision Management”)and Constant Aviation, and is signed by PlaintiffAnthony Fiorillo in his capacity as President of VisionManagement.2 (Id. at PageID#s 10, 24.) PlaintiffMakGab Holdings, LLC (hereinafter “MakGab”) isnot a signatory to the Inspection Contract. (Doc. No.1-1.)Plaintiffs allege that Constant Aviation “warrantedthat all inspection and repair work would adhere toapplicable industry standards and that any defectswould be remedied.” (Doc. No. 1 at 8.) TheInspection Contract provides that Constant Aviationagrees to a “limited warranty,” as follows:WARRANTY AND WARRANTY PERIOD:Constant Aviation warrants its goods and servicessupplied per this proposal for Avionics, Paint,Interior, and Maintenance to be free from defectsin material and workmanship for the earlier of250 hours of aircraft operation or two years aftercompletion of the work. Used or customer-suppliedequipment will carry no warranty unless specifiedin the work scope above. Complete sand and paintwork scopes will carry no warranty.*2 (Doc. No. 1-1 at PageID# 22.) To assert a warrantyclaim, “the customer shall notify Constant Aviationin writing within thirty (30) days after the customerhas actual or constructive notice of such allegedwarranty clam.” (Id. at PageID# 21.) The InspectionContract provides that “[a]ll claims shall include thefollowing information: a. Serial number of the aircraft;b. Date services were performed; and c. Detailedexplanation of the nature of the claim, and the date ofdetection.” (Id.)The Inspection Contract provides that ConstantAviation has the right to inspect and repair anydefective or nonconforming work, as follows:INSPECTION: Constant Aviation shall have a fulland complete opportunity to inspect any allegeddefect or nonconforming work, and review anyrecords concerning the alleged defect prior toperformance of any repairs. The customer agreesto deliver its aircraft to Constant Aviation's closestservice facility at the customer's cost, in order tofacilitate such inspection.REPAIRS: If Constant Aviation determines that thedefective or nonconforming work is shown to be dueto a breach of the above warranty, and not due toany extraneous cause, including but not limited tomisuse by the customer or any third party, failureto perform recommended maintenance, or effects of
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2the environment (wind, water, corrosion, etc.), thenConstant Aviation shall repair the defective work. IfConstant Aviation determines that the customer hasfailed to meet its obligations set forth in this quoteor otherwise with respect to proper maintenance ofthe customer's aircraft, then the warranty set forthabove will not apply and, with prior notice to thecustomer, such repair work will be completed byConstant Aviation at the customer's cost.(Id. at PageID# 22.) The Inspection Contract alsoprovides that:DAMAGE: In the event Constant Aviationdamages customer's property, including the aircraft,customer's sole and exclusive remedy, and ConstantAviation's sole and exclusive liability, is limited tothe repair or replacement of the damaged portionof the property, at Constant Aviation's sole option.In no event shall Constant Aviation be liable forany special, incidental, consequential, or punitivedamages, including, but not limited to, loss ofprofits, loss of goodwill, loss of use, loss of time,inconvenience, or diminution in value.(Id. at PageID# 21.) Lastly, the parties agreedthat the Inspection Contract “shall constitute abinding agreement between Constant Aviation and thecustomer, which shall be construed under and enforcedin accordance with the laws of the State of Ohio,without regard to principles of conflicts of laws.” (Id.at PageID# 22.)Plaintiffs allege that they paid Constant Aviation forpre-purchase evaluations and subsequent inspectionservices totaling $94,315.44. (Doc. No. 1 at 9.)Plaintiffs allege that they later “discovered significantcorrosion on critical aircraft components duringinspections and repairs.” (Id. at 10.) There is aconflict between the allegations in the Complaint andthe Exhibits to the Complaint as to when this corrosionwas discovered. In the Complaint, Plaintiffs allege thatthey discovered the corrosion “on or around January11, 2024, and January 18, 2023.” (Id. at 10.) In ademand letter attached as an Exhibit to the Complaint,however, Plaintiffs state that they discovered thecorrosion during “subsequent inspections and repairsconducted and completed in or around September 2022and January 2023.” (Doc. No. 1-3 at PageID# 58.)*3 Plaintiffs allege that “[t]he corrosion constitutesa latent defect that should have been identified byDefendant during its initial inspections.” (Doc. No.1 at 11.) They allege that they “reasonably reliedon Defendant's repeated assurances that the aircraft'scondition was airworthy and free of significantdefects” and that “[t]hese assurances were integralto Plaintiffs’ decision to proceed with the purchaseand subsequent repairs.” (Id. at 13.) Accordingto Plaintiffs, “Defendant either failed to detectthe corrosion due to negligent inspection practicesand/or caused the corrosion due to substandardworkmanship.” (Id. at 11.) Additionally, “Defendantfailed to conduct critical tests during the pre-purchaseevaluation that would have identified corrosion inhigh-risk areas of the aircraft, including, but notlimited to, fuel tanks, landing gear components, and theairframe.” (Id. at 14.)Plaintiffs incurred “substantial expenses totaling$176,501.43 for repairs and inspections necessary toremediate the corrosion and an additional $123,000.00for operational disruptions caused by Defendant'snegligence.” (Id. at 12.) Plaintiffs allege that“[s]ubsequent inspections revealed that the corrosionhad existed for a significant period and was not new,directly contradicting Defendant's representations toPlaintiffs regarding the thoroughness of its inspectionand evaluation process.” (Id. at 15.) “Defendant'snegligence in identifying latent defects createdsubstantial safety risks and led to costly and time-consuming repairs that disrupted Plaintiffs’ businessoperations.” (Id. at 16.) In addition, “Defendantfailed to adhere to Federal Aviation Administration(‘FAA’) standards and guidelines for inspections,further evidencing its negligent practices and breach ofprofessional duties.” (Id. at 17.)On July 8, 2024, Plaintiffs sent Constant Aviationa demand letter detailing their claims and damages“related to Defendant's negligent performance andbreach of contract.” (Id. at 18.) Copies of theDemand Letter and its attachments are attached tothe Complaint as Exhibit C. (Doc. No. 1-3.) Plaintiffsallege that “Defendant's response to Plaintiffs’ claimsattempted to disclaim liability by relying on limitationsin the warranty, but Ohio law recognizes that suchdisclaimers do not absolve liability for latent defectsthat render a product unfit for its intended use.” (Id. at 19.) As a result of Constant Aviation's “actions and/or inactions,” Plaintiffs allege that they have “suffered
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3financial losses and loss of business opportunities dueto the extended downtime of the aircraft and the safetyconcerns arising from Defendant's failures.” (Id. at 20.)II. Procedural HistoryOn January 11, 2025, Plaintiffs Vision Management,Fiorillo, and MakGab filed a Complaint in this Courtagainst Constant Aviation, asserting the followingthree claims: (1) negligence and gross negligence(Count I); (2) breach of contract (Count II); and (3)unjust enrichment (Count III).3 (Doc. No. 1.)*4 On February 11, 2025, Constant Aviation filed aMotion to Dismiss all of Plaintiffs’ claims under Fed.R. Civ. P. 12(b)(6). (Doc. No. 9.) Plaintiffs filed a Briefin Opposition on March 13, 2025, to which ConstantAviation replied on March 21, 2025. (Doc. Nos. 10,11.)III. Standard of ReviewIn order to survive a motion to dismiss under Rule12(b)(6), “a complaint must contain (1) ‘enough factsto state a claim to relief that is plausible,’ (2) more than‘formulaic recitation of a cause of action's elements,’and (3) allegations that suggest a ‘right to relief abovea speculative level.’ ” Tackett v. M & G Polymers, USA,LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting in partBell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–556 (2007)). For purposes of both Rule 12(b)(6) andRule 12(c), “all well-pleaded material allegations ofthe pleadings of the opposing party must be taken astrue, and the motion may be granted only if the movingparty is nevertheless clearly entitled to judgment.”JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577,581 (6th Cir. 2007) (internal citation and quotationmarks omitted).The measure of a Rule 12(b)(6) challenge — whetherthe Complaint raises a right to relief above thespeculative level — “does not ‘require heightened factpleading of specifics, but only enough facts to state aclaim to relief that is plausible on its face.’ ” Bassettv. National Collegiate Athletic Ass'n., 528 F.3d 426,430 (6th Cir.2008) (quoting in part Twombly, 550 U.S.at 555–556). “A claim has facial plausibility when theplaintiff pleads factual content that allows the courtto draw the reasonable inference that the defendantis liable for the misconduct alleged.” Ashcroft v.Iqbal, 556 U.S. 662, 678 (2009). Deciding whether acomplaint states a claim for relief that is plausible is a“context-specific task that requires the reviewing courtto draw on its judicial experience and common sense.”Id. at 679.Consequently, examination of a complaint for aplausible claim for relief is undertaken in conjunctionwith the “well-established principle that ‘Federal Ruleof Civil Procedure 8(a)(2) requires only a short andplain statement of the claim showing that the pleaderis entitled to relief.’ Specific facts are not necessary;the statement need only ‘give the defendant fair noticeof what the...claim is and the grounds upon which itrests.’ ” Gunasekera v. Irwin, 551 F.3d 461, 466 (6thCir. 2009) (quoting in part Erickson v. Pardus, 551U.S. 89 (2007)). Nonetheless, while “Rule 8 marksa notable and generous departure from the hyper-technical, code-pleading regime of a prior era...it doesnot unlock the doors of discovery for a plaintiff armedwith nothing more than conclusions.” Iqbal, 556 U.S.at 679.IV. AnalysisIn its Motion, Constant Aviation seeks dismissal ofPlaintiffs’ claims for breach of contract, negligence/gross negligence, and unjust enrichment. (Doc. No.9.) The Court will address the parties’ arguments withrespect to each of these claims separately, below.A. Breach of Contract (Count II)In Count II, Plaintiffs allege that “the InspectionContract between Plaintiffs and Defendant obligatedDefendant to perform its services in accordance withthe agreed-upon terms and industry standards.” (Doc.No. 1 at 27.) Plaintiffs allege that they “havefully complied with the Inspection Contract” andthat “Defendant breached the Inspection Contract byincluding, but not limited to, failing to deliver thecontracted-for services free of defects, not notifyingthe Plaintiff of any defects, and by failing to adhereto the required industry standards.” (Id. at ¶¶ 28,29.) Plaintiffs allege that, as a direct and proximateresult of Defendant's breach, they “suffered damages,including: a) Costs for repairs and inspectionsnecessary to remediate the corrosion and otherlatent defects, totaling $176,501.43; b) Operational
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4disruptions and the resulting loss of businessopportunities, totaling $123,000.00; d) Additionalcosts incurred in obtaining substitute aircraft servicesduring the remediation period; and e) Attorney feesand expenses related to resolving disputes caused byDefendant's breach.” (Id. at 30.)*5 Constant Aviation argues that Plaintiffs’ breachof contract claim fails as a matter of law forseveral reasons. (Doc. No. 9 at PageID#s 184-186.)Constant Aviation first argues that this claim failswith respect to Plaintiffs Fiorillo and MakGabbecause neither of these Plaintiffs are parties tothe Inspection Contract and, therefore, they lackstanding to assert a breach of contract claim. (Id. atPageID#s 184-185.) Constant Aviation next assertsthat, although Vision Management is a party to theContract, its breach of contract claim fails becausethe Complaint fails to include sufficient allegationsthat Vision Management incurred any damages. (Id.at PageID#s 185-186.) Lastly, Constant Aviationmaintains that, even if Fiorillo and MakGab hadstanding and Vision Management had sufficientlyalleged that it suffered damages, Plaintiffs’ breachof contract claim nonetheless fails because Plaintiffsfailed to comply with the conditions precedent inthe Inspection Contract of notice, inspection, andopportunity to repair. (Id. at PageID# 186.)In response, Plaintiffs do not dispute that neitherFiorillo nor MakGab are signatories to the InspectionContract. (Doc. No. 10 at PageID#s 195-199.)Plaintiffs maintain, however, that Fiorillo and MakGabnonetheless have standing to assert a breach ofcontract claim because “Ohio law recognizes thatnon-signatories may enforce contract terms whenthey are intended third-party beneficiaries or havesuffered direct harm.” (Id. at PageID# 196.) Plaintiffsargue that they have sufficiently alleged that bothFiorillo and MakGab were intended beneficiaries ofthe Inspection Contract because they were the primarybeneficiaries of that Contract and suffered direct harmas a result of its alleged breach. (Id.) Plaintiffs nextargue that they have properly alleged that VisionManagement incurred damages as a result of ConstantAviation's alleged breach, noting that the Complaintspecifically alleges “financial harm, including repaircosts, operational delays, and diminished aircraftvalue.” (Id. at PageID# 197.) Lastly, Plaintiffs arguethat they complied with all conditions precedent orwere excused from doing so, asserting that they“allege that they notified Defendant of the defects,but Defendant failed to take corrective action.” (Id. atPageID# 198.) Plaintiffs maintain that “the contractualprovision requiring Defendant be given an opportunityto inspect and repair does not absolve Defendant ofliability where its breach was material and prior to anyrequired notice.” (Id.)The Court addresses the parties’ arguments in turn,below.1. Plaintiffs Fiorillo and MakGabAs noted supra, the Complaint in the instant caseprovides that “Plaintiffs” (plural) entered into theInspection Contract with Constant Aviation. (Doc. No.1 at ¶¶ 7, 9, 28) (alleging that “Plaintiffs” retainedDefendant to perform inspection and repair services,“Plaintiffs” paid for prepurchase evaluations andsubsequent inspection services, and “Plaintiffs” fullycomplied with the Inspection Contract.) Ordinarily, acourt “must accept all well-pleaded factual allegations[in a complaint] as true.” Benzon v. Morgan StanleyDistribs., Inc., 420 F.3d 598, 602 (6th Cir. 2005)(quoting Inge v. Rock Fin. Corp., 281 F.3d 613, 619(6th Cir. 2002)). See also Jones v. Select PortfolioServicing, Inc., 672 Fed. Appx. 526, 531 (6th Cir.2016). However, the Sixth Circuit has held that when a“written instrument plainly contradicts the pleadings,”the instrument “trumps the allegations.” Creelgroup,Inc. v. NGS Am., Inc., 518 Fed. Appx. 343, 347 (6thCir. 2013) (quoting Williams v. CitiMortgage, Inc., 498Fed. Appx. 532, 536 (6th Cir. 2012)). See also Catesv. Crystal Clear Technologies, LLC, 874 F.3d 530,536 (6th Cir. 2017) (same); Nolan v. Detroit EdisonCompany, 991 F.3d 697, 707 (6th Cir. 2021).Here, the Inspection Contract itself clearly indicates(and Plaintiffs do not dispute) that neither MakGab norFiorillo (in his personal capacity) are signatories to thatContract. Courts, including the Sixth Circuit, have heldthat non-signatories to a contract lack standing to asserta claim for breach of contract. See, e.g., Creelgroup,Inc., 518 Fed. Appx. at 347 (“A close reading of thecontract reveals that Creelgroup was never a party tothe contract. *** As a non-party to the agreement,Creelgroup cannot state a claim for relief.”); White v.Adena Health System, 2018 WL 3377087 at * 9 (S.D.
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5Ohio July 11, 2018) (dismissing a claim for breach ofa non-disparagement agreement under Rule 12(b)(6)where defendant was not a party to that agreement);DiPaolo v. Princeton Search, LLC, 2014 WL 517476at * 2-3 (N.D. Ohio Feb. 6, 2014) (dismissing acounterclaim for lack of standing on a 12(b)(6) motionwhere the contract was not assigned to defendant but,rather, to a different party); Beard v. New York Live Ins.& Annuity Corp., 2013 WL 4678105 at * 7 (Ohio App.10th Dist. Aug. 27, 2013) (dismissing a breach of claimfor lack of standing where plaintiff was not named inthe contract attached to his pleading).*6 Plaintiffs nonetheless assert that ConstantAviation is not entitled to dismissal of this claimbecause “Plaintiffs have sufficiently alleged thatMakGab and Fiorillo were intended beneficiaries[of the Inspection Contract] and incurred financiallosses due to Defendant's breach.” (Doc. No. 10 atPageID# 196.) Constant Aviation disagrees, arguingthat “the contract at issue in this case...gives noindication that it was intended to benefit eitherMakGab or Fiorillo.” (Doc. No. 11 at PageID# 206.)Regarding MakGab, Constant Aviation asserts thatthe fact that MakGab allegedly incurred expenses torepair the aircraft does not make it an intended thirdparty beneficiary, noting that “[t]here are no factsalleged in the Complaint to support a conclusion thatConstant was even aware of MakGab's existence atthe time it entered into the agreement with VisionManagement.” (Id.) Regarding Fiorillo, ConstantAviation argues that “the mere fact that [Fiorillo]signed the [Inspection Contract], or that he ownedVision Management, does not make him an intendedbeneficiary of the agreement.” (Id. at PageID# 207.)As noted above, pursuant to the Inspection Contract,the instant dispute is governed by Ohio law. (Doc.No. 1-1 at PageID# 22.) Under Ohio law, it is wellestablished that only intended third-party beneficiariesmay assert rights to contracts to which they are not aparty. See TRINOVA Corp. v. Pilkington Bros., P.L.C.,638 N.E.2d 572, 577 (Ohio 1994); Cook v. OhioNational Life Ins. Co., 961 F.3d 850, 855 (6th Cir.2020) (applying Ohio law); Torrance v. Rom, 157N.E.3d 172, 184 (Ohio App. 8th Dist. 2020) (“Only anintended third-party beneficiary has enforceable rightsunder a contract to which he or she is not a party;an incidental third-party beneficiary does not.”); SonyElec., Inc. v. Grass Valley Grp., Inc., 2002 WL 440749at *3 (Ohio App. 1st Dist. Mar. 22, 2002). ApplyingOhio law, “[t]he Sixth Circuit is in accord” thatonly an intended (rather than incidental) third-partybeneficiary has enforceable contract rights. Cook, 961F.3d at 855. See also Norfolk & W. Co. v. UnitedStates, 641 F.2d 1201, 1208 (6th Cir. 1980) (applyingOhio law, finding that third-party beneficiary hasenforceable rights under a contract only if he is an“intended beneficiary” as opposed to an “incidentalbeneficiary.”); Sagraves v. Lab One, Inc., 316 Fed.Appx 366, 371 (6th Cir. 2008) (same).The Ohio Supreme Court clarified the distinctionbetween intended third-party beneficiaries andincidental third-party beneficiaries by adopting theRestatement (Second) of Contracts, § 302 whichprovides:(1) Unless otherwise agreed between promisor andpromisee, a beneficiary of a promise is an intendedbeneficiary if recognition of a right to performancein the beneficiary is appropriate to effectuate theintention of the parties and either(a) the performance of the promise will satisfy anobligation of the promisee to pay money to thebeneficiary; or(b) the circumstances indicate that the promiseeintends to give the beneficiary the benefit of thepromised performance.(2) An incidental beneficiary is a beneficiary who isnot an intended beneficiary. Hill v. Sonitrol of SWOhio, Inc., 521 N.E.2d 780, 784 (Ohio 1988). See alsoCook, 961 F.3d at 855. The Ohio Supreme Court alsoquoted with approval comment e to Section 302 whichprovides, in relevant part, that: “Performance of acontract will often benefit a third person. But unless thethird person is an intended beneficiary as here defined,no duty to him is created.” Hill, 521 N.E.2d at 784. Seealso Norfolk, 641 F.2d at 1208 (“[T]he mere conferringof some benefit on the supposed beneficiary by theperformance of a particular promise in a contract [is]insufficient; rather, the performance of that promisemust also satisfy a duty owed by the promisee to thebeneficiary.”).
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6In sum, for a third party to be an intended beneficiaryof a contract under Ohio law, “there must be evidencethat the contract was intended to directly benefit thatthird party.” Huff v. FirstEnergy Corp., 957 N.E.2d 3,7 (Ohio 2011). See also Torrance, 157 N.E.3d at 184.“Generally, the parties' intention to benefit a third partywill be found in the language of the agreement.” Huff,957 N.E.2d at 7, 8-9 (“[F]or an injured third party toqualify as an intended third-party beneficiary under awritten contract, the contract must indicate an intentionto benefit that third party.”). See also Torrance, 157N.E.3d at 185. “Although there is no requirementthat the intended third-party beneficiary be expresslyidentified in the contract, the contract must be shownto have been made and entered into with the intent tobenefit that individual.” Torrance, 157 N.E.3d at 185(citing Heintschel v. Montgomery, 2010 WL 5550662at * 5 (Ohio App. 6th Dist. Dec. 30, 2010) and Bungardv. Dept. of Job & Family Servs., 2007 WL 4171105 at* 6 (Ohio App. 10th Dist. Nov. 27, 2007)).*7 Here, Plaintiffs do not set forth any allegationsin the Complaint that either MakGab or Fiorillo areintended third-party beneficiaries to the InspectionContract.4 Nor does the Complaint contain anyallegation(s) that the Inspection Contract was intendedto benefit either MakGab or Fiorillo in his personalcapacity. Under similar circumstances, courts havefound dismissal to be warranted on this basis alone.See, e.g., Breen v Group Management Services, Inc.,2022 WL 3096546 at * 3 (Ohio App. 8th Dist. Aug. 4,2022) (affirming district court's dismissal under Rule12(b)(6) for lack of standing because: “The complaintdoes not allege anywhere that Breen individually, oras trustee, is an intended third-party beneficiary of theContract. Nor does the complaint allege that Breenindividually, or as a trustee, was intended by GMS tohave ‘the benefit of the promised performance.’ ”).Even setting aside these pleading deficiencies andlooking to the Inspection Contract itself, the Courtfinds that Plaintiffs have failed to demonstrate thateither MakGab or Fiorillo are intended third-partybeneficiaries. Plaintiffs do not direct this Court'sattention to any provision of the Inspection Contractthat indicates an intention to benefit either MakGab orFiorillo in his personal capacity. And, upon its owncareful review, this Court finds no terms or conditionsin the Inspection Contract that contain languageestablishing (or even suggesting) such an intention.Notably, MakGab is not mentioned anywhere in theInspection Contract nor is there any language in theInspection Contract suggesting that Constant Aviationwas aware of MakGab, assumed any contractual dutyto MakGab, or intended to benefit MakGab.Likewise, Plaintiff has not directed this Court'sattention to (and this Court has not found) anylanguage or provisions in the Inspection Contractthat indicate an intention to benefit Fiorillo in hispersonal capacity. While the Court acknowledges thatFiorillo signed the Inspection Contract, the Contractitself clearly indicates that he did so in his capacityas President of Vision Management. (Doc. No. 1-1at PageID# 24.) Indeed, the Inspection Contractexpressly provides that it “can only be accepted byan authorized officer of the company or a companyrepresentative who has the capacity indicated and isauthorized to execute, deliver, and bind the customerto this agreement.” (Id.) Just below this provision,Fiorillo signed his name to the Inspection Contractand identified his title as “Pres[ident].” (Id.) TheCourt finds that this language indicates the InspectionContract was between Constant Aviation and VisionManagement and, further, that it does not indicate anyintention to benefit Fiorillo in his personal capacity.Plaintiffs’ arguments to the contrary are withoutmerit. Plaintiffs first suggest that they are intendedthird-party beneficiaries because they “suffered directharm” and “incurred financial losses” due to ConstantAviation's alleged breach. (Doc. No. 10 at PageID#196.) However, allegations that MakGab and Fiorillowere harmed or incurred financial losses as a result ofConstant Aviation's alleged breach of the InspectionContract are not sufficient, standing alone, to allegethat they are intended third-party beneficiaries tothat Contract. See Torrance, 157 N.E.3d at 185(finding that plaintiff was not an intended third-party beneficiary “simply because he was financiallyaffected by” defendant's breach of its contract withplaintiff's company). Rather, and as discussed above,to be considered intended third-party beneficiaries,MakGab and Fiorillo must sufficiently allege that theInspection Contract was entered into with the intentionof benefitting them. MakGab and Fiorillo have failedto do so.5
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.7*8 Lastly, Plaintiffs argue generally that dismissalis inappropriate because “whether a contract was‘directly or primarily’ for a third party's benefit is afactual question that requires further discovery.” (Doc.No. 10 at PageID#s 196-197.) In support, Plaintiffscite the Sixth Circuit's opinion in Cook, supra for theproposition that the determination of whether intendedbeneficiaries have standing to enforce a contract “isa fact intensive inquiry.” (Id.) The Sixth Circuit,however, said no such thing in Cook. Rather, inthat case, the Sixth Circuit found that “to determinewhether plaintiff is an incidental or intended third-party beneficiary, we look to the terms of the SellingAgreement.” Cook, 961 F.3d at 856. After analyzingseveral specific provisions of that Agreement, theSixth Circuit found that the plaintiff was not anintended third-party beneficiary and affirmed thedistrict court's dismissal under Rule 12(b)(6).6 Id. at854-855, 858-859. Plaintiffs’ argument that dismissalis inappropriate at the Rule 12(b)(6) stage is, therefore,without merit and rejected.7Accordingly, and for all the reasons set forth above, theCourt finds that Plaintiffs MakGab and Fiorillo lackstanding to assert a breach of contract claim againstConstant Aviation because they are neither signatoriesto the Contract nor intended third-party beneficiaries.MakGab and Fiorillo's breach of contract claimsagainst Constant Aviation are, therefore, dismissed.2. Vision ManagementConstant Aviation next argues that “VisionManagement is the only party to the [Inspection]Contract with Constant, but Vision Management hasnot and cannot allege an essential element of a breachof contract claim—damages.” (Doc. No. 9 at PageID#185.) In this regard, Constant Aviation asks thisCourt to disregard the allegation in the Complaintthat “Plaintiffs incurred substantial expenses...causedby Defendant's negligence.” (Doc. No. 1 at 12)(emphasis added) because it conflicts with the January2023 Invoices attached to the Complaint. (Doc. No.9 at PageID# 186.) Specifically, Constant Aviationasserts that these Invoices reflect that payments madeto conduct inspections and repairs after the discoveryof corrosion were made solely by MakGab – and notby Vision Management. (Id.)(citing Doc. No. 1-2 atPageID#s 34-49.)In their Brief in Opposition, Plaintiffs do not challengethe legal principle that this Court should disregardallegations in the Complaint that are contradictedby its Exhibits. (Doc. No. 10.) Moreover, Plaintiffsfail to address Constant Aviation's argument that theallegation that Vision Management suffered damagesis directly contradicted by the January 2023 Invoices,which Defendant maintains show that it was MakGab(and only MakGab) that paid for the subsequentinspection and repairs of the aircraft at issue.8*9 However, for the following reasons, the Courtfinds that Plaintiffs have nonetheless sufficientlyalleged that Vision Management (the only signatoryto the Inspection Contract) incurred damages asa result of Constant Aviation's alleged breach ofcontract. Although the January 2023 Invoices showthat MakGab (and in some instances Fiorillo) paidfor inspection and repair costs after the discovery ofcorrosion, Plaintiffs also allege that they suffered othertypes of damages as a result of Constant Aviation'salleged breach, including “operational disruptions andthe result of loss of business opportunities, totaling$123,000” and “additional costs incurred in obtainingsubstitute aircraft services during the remediationperiod.” (Doc. No. 1 at 30.) The Complaintadequately alleges that Vision Management sufferedthese damages and Constant Aviation does not directthis Court's attention to anything in the Exhibitsattached to the Complaint that directly contradict thisallegation.Accordingly, the Court finds that Plaintiffs havesufficiently alleged both that Vision Management is asignatory to the Inspection Contract and that it suffereddamages as a result of Constant Aviation's allegedbreach.3. Failure to Satisfy Conditions PrecedentLastly, Constant Aviation argues that Plaintiffs’ breachof contract claim fails because Vision Managementfailed to comply with the notice, inspection, andopportunity to repair requirements in the InspectionContract. (Doc. No. 9 at PageID# 186.) Specifically,Constant Aviation argues that “[b]ecause Plaintiffshave not (and cannot) allege that they gave timelynotice to Constant, or delivered the aircraft to Constant
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.8for inspection, or allowed Constant to repair theaircraft, Plaintiffs have not, and cannot, allege factsshowing that they fulfilled all conditions precedent torecovery in this case.” (Id.)In response, Plaintiffs argue that “the Contract'swarranty provisions do not absolve liability whereit failed to properly perform its obligations in thefirst instance,” particularly where the “defect at issuewas latent and not immediately discoverable.” (Doc.No. 10 at PageID# 195.) Plaintiffs maintain that they“allege that they notified Defendant of the defects, butDefendant failed to take corrective action” and arguethat “a condition does not require an act that would befutile.” (Id. at PageID# 198.) Plaintiffs further assertthat “the contractual provision requiring Defendantbe given an opportunity to inspect and repair doesnot absolve Defendant of liability where its breachwas material and prior to any required notice.” (Id.)Thus, Plaintiffs argue that Constant Aviation's Motionto Dismiss should be denied because Plaintiffs eitherfulfilled, or were excused from fulfilling, the notice,inspection, and repair provisions in the InspectionContract. (Id.)In its Reply Brief, Constant Aviation notes thatthe Complaint itself provides that Plaintiffs did notnotify Constant Aviation of the alleged defects untilJuly 8, 2024, which is “21 months after Plaintiffsallegedly discovered significant corrosion on criticalaircraft components.” (Doc. No. 11 at PageID# 208.)Constant Aviation notes that, under the express termsof the Inspection Contract, Vision Management wasrequired to provide notice within 30 days of actualor constructive notice of a warranty claim. (Id.)Constant Aviation further asserts that, by the timeit was notified by Plaintiffs of the alleged warrantyclaim, MakGab had already incurred the expenseto have the aircraft repaired, in violation of theinspection and repair provisions of the InspectionContract. (Id.) Thus, Constant Aviation maintains thatPlaintiffs have not alleged that Vision Managementfulfilled the notice, inspection, and/or repair provisionsof the Inspection Contract. (Id.) Constant Aviationfurther argues that Vision Management is not excusedfrom complying with these provisions, asserting that“Vision Management cannot ignore the requirementsof the contract to give notice and an opportunity tocure, and then claim that it was excused from doing sobecause Constant did not cure.” (Id. at PageID# 209.)*10 “Under Ohio law, the elements of a breach ofcontract claim are: (1) the existence of a contract;(2) performance by the plaintiff; (3) breach by thedefendant; and (4) damage or loss to the plaintiffas a result of the breach.” Asset Mgmt. One LLCv. U.S. Bank Nat'l Ass'n, 569 Fed. Appx 438, 441(6th Cir. 2014) (quoting V&M Star Steel v. CentimarkCorp., 678 F.3d 459, 465 (6th Cir. 2012)). “It is wellestablished under Ohio contract law that a party mustcomply with all express conditions to be performedin case of breach before it can claim damages byreason of the breach.” Au Rustproofing Center, Inc. v.Gulf Oil Corp., 755 F.2d 1231, 1237 (6th Cir. 1985)(citing Bell Brothers v. Robinson, 5 Ohio App. 454,458 (Ohio App. 6th Dist. 1916)). Moreover, “a right ofaction requiring notice as a condition precedent cannotbe enforced unless the notice provided for has beengiven.” Id. (citing18 O.Jur.3d Contracts § 210 (1980);17 Am.Jur.2d Contracts § 356 (1964); 3a A. Corbin,Corbin On Contracts, § 727 (1960)). See also LionFederal Credit Union v. WorldPay, LLC, 2024 WL1704551 at * 8 (S.D. Ohio April 19, 2024) (notingthat “Ohio law does require Lion to comply withall express conditions precedent, such as the MSA'sprovision requiring Lion to give Worldpay notice ofand an opportunity to cure any alleged breaches”),supplemented on other grounds by, 2024 WL 2701700(S.D. Ohio May 24, 2024)).As noted above, here, the Inspection Contractexpressly provides that “[t]o assert a warranty claim,the customer [i.e., Vision Management] shall notifyConstant Aviation in writing within thirty (30) daysafter the customer has actual or constructive noticeof such alleged warranty claim.” (Doc. No. 1-1at PageID# 21.) The Inspection Contract furtherprovides that: “Constant Aviation shall have a fulland complete opportunity to inspect any allegeddefect or nonconforming work, and review anyrecords concerning the alleged defect prior toperformance of any repairs.” (Id. at PageID# 22.)Lastly, the Inspection Contract provides that”[i]fConstant Aviation determines that the defective ornonconforming work is shown to be due to abreach of the above warranty, and not due toany extraneous cause, including but not limited to
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.9misuse by the customer or any third party, failureto perform recommended maintenance, or effectsof the environment (wind, water, corrosion, etc.),then Constant Aviation shall repair the defectivework.” (Id.)Plaintiffs do not dispute that the above notice,inspection, and right to repair provisions constituteconditions precedent. Nor do Plaintiffs argue that anyof the above provisions are ambiguous or that theyare unenforceable because they are unconscionableor otherwise against public policy. Rather, Plaintiffsassert that they did, in fact, “allege that they notifiedDefendant of the defects.” (Doc. No. 10 at PageID#198) (citing Doc. No. 1 at ¶¶ 18-19.) Plaintiffs maintainthat, because “Defendant failed to take correctiveaction” after receiving notice, Vision Management isexcused from complying with the inspection and repairprovisions of the Inspection Contract on the groundsthat it would be futile. (Id.)The Court finds Plaintiffs’ argument to be withoutmerit. In the Complaint, Plaintiffs allege that “[o]nor about July 8, 2024, [they] sent Defendant ademand letter detailing their claims and damagesrelated to Defendant's negligent performance andbreach of contract.” (Doc. No. 1 at 18.) AsConstant Aviation correctly notes, however, in theJuly 20249 demand letter, counsel for Plaintiffsexpressly states that Plaintiffs “discovered significantcorrosion on critical aircraft components duringsubsequent inspections and repairs conducted andcompleted in or around September 2022 and January2023.” (Doc. No. 1-3 at PageID# 58.) Thus, byPlaintiffs’ own acknowledgment, they discovered thealleged corrosion by no later than January 2023 butfailed to notify Constant Aviation until July 5, 2024– over seventeen (17) months later. Clearly, this iswell beyond the thirty (30) day notice period setforth in the Inspection Contract. Thus, the Courtrejects Plaintiffs’ argument that they complied with theInspection Contract's notice provision.*11 Relatedly, the Court also rejects Plaintiffs’argument that, because they provided notice andConstant Aviation nonetheless failed to “takecorrective action,” Plaintiffs were excused fromcomplying with the inspection and repair provisions ofthe Inspection Contract. The Invoices attached to theComplaint show that MakGab paid for repairs to theaircraft in question in January 2023 (Doc. No. 1-2 atPageID#s 34-53), i.e., well before Plaintiffs notifiedConstant Aviation of the alleged corrosion in July2024. Given the fact that Constant Aviation never hadany opportunity to inspect and/or repair the allegedcorrosion because Plaintiffs unilaterally completedthe repairs before providing notice, the Court rejectsPlaintiffs’ argument that they were excused from theinspection and repair provisions of the InspectionContract on futility grounds.Citing Tatonka Educ. Services, Inc. PBC v. YoungstownPreparatory Acad., 2023 WL 4085366 (N.D. OhioJune 20, 2023), Plaintiffs next argue (summarily) that“the contractual provisions requiring Defendant begiven an opportunity to inspect and repair does notabsolve Defendant of liability where its breach wasmaterial and prior to any required notice.” (Doc. No. 10at PageID# 198.) For the following reasons, the Courtrejects this argument.In Tatonka, the parties entered into a contract, inwhich plaintiff Tatonka Education Services, Inc. PBC(“Tatonka”) agreed to provide financial managementand human resource services to defendant YoungstownPreparatory Academy (“YPA”). Tatonka, 2023 WL4085366 at * 1. After YPA unilaterally terminated thecontract, Tatonka filed suit alleging breach of contractand breach of the implied covenant of good faith andfair dealing. Id. at * 2. YPA then filed counterclaims for(among other things) breach of contract and materialbreach. Id. Tatonka moved to dismiss, arguing thatYPA's counterclaims failed because YPA failed toperform under the contract. Id. YPA maintained thatit was excused from performance because Tatonkamaterially breached the contract first.10 Id.The district court explained that “Ohio courts haverecognized the doctrine of first material breach,which provides that ‘a non-breaching party to acontract is excused from complying with conditionsof the contract, when the party for whose benefit thecondition operates has already materially breached thecontract.’ ” Id. at * 3 (quoting Jackson v. State FarmFire & Cas. Co., 461 Fed. Appx 422, 426 (6th Cir.2012)). The court further noted as follows:
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.10It is well-settled in Ohio that a material breach ofcontract is “a failure to do something that is sofundamental to a contract that the failure to performdefeats the essential purpose of the contract ormakes it impossible for the other party to perform.”Price v. KNL Custom Homes, Inc., 2015-Ohio-436, 32, 28 N.E.3d 640, 651 (quoting Marion Fam.YMCA v. Hensel, 2008-Ohio-4413, 7, 178 OhioApp. 3d 140, 142–43, 897 N.E.2d 184, 186). Todetermine whether Tatonka materially breached theamended contract, the Court must consider thefollowing five factors that Ohio has adopted fromthe Restatement (Second) of Contracts (1981):[(1)] the extent to which the injured party willbe deprived of the expected benefit, [(2)] theextent to which the injured party can be adequatelycompensated for the lost benefit, [(3)] the extent towhich the breaching party will suffer a forfeiture,[(4)] the likelihood that the breaching party will cureits breach under the circumstances, and [(5)] theextent to which the breaching party has acted withgood faith and dealt fairly with the injured party.*12 Software Clearing House, Inc. v. Intrak, Inc.,66 Ohio App.3d 163, 170–71, 583 N.E.2d 1056(Ohio Ct. App. 1990); Freeman Indus. Prods.,L.L.C. v. Armor Metal Grp. Acquisitions, Inc., 2011-Ohio-1995, 31, 193 Ohio App. 3d 438, 449, 952N.E.2d 543, 551. If these factors weigh in favor ofthe injured party, then the Court may find that thebreaching party materially breached the amendedcontract.Id. The district court then carefully evaluated each ofthe above five factors, concluding that four of themweighed in YPA's favor. Id. at * 3-4. The district courttherefore denied Tatonka's motion to dismiss YPA'sbreach of contract and material breach counterclaims.Id. at * 4.In the instant case, Plaintiffs summarily cite Tatonkabut fail to acknowledge, address, or apply any of thefive factors noted in that decision. Indeed, Plaintiffsdevote only one sentence to this argument in theirBrief in Opposition, without any further development,discussion, or application of the five factors to thespecific facts alleged in the Complaint herein. It is wellestablished that “[i]ssues adverted to in a perfunctorymanner, unaccompanied by some effort at developedargumentation, are deemed waived.” McPherson v.Kelsey, 125 F.3d 989, 995 (6th Cir. 1997). See alsoGradisher v. City of Akron, 794 F.3d 574, 586 (6thCir. 2015) (same). “It is not sufficient for a partyto mention a possible argument in the most skeletalway, leaving the court to … put flesh on its bones.”McPherson, 125 F.3d at 995. Here, the Court findsthat, by failing to provide any meaningful discussionof this issue, Plaintiffs have waived their argumentthat Vision Management was excused from complyingwith the notice, inspection, and/or repair provisionsof the Inspection Contract because Constant Aviationallegedly materially breached that Contract first. TheCourt will not sua sponte consider and apply each ofthe five factors set forth in Tatonka to the allegations inthe Complaint, nor will it craft arguments on Plaintiffs’behalf in this regard. In light of Plaintiffs’ failure tosufficiently raise this argument, the Court declines toconsider it herein.Accordingly, and for all the reasons set forth herein,the Court grants Constant Aviation's Motion to DismissPlaintiffs’ breach of contract claim (Count II).B. Negligence/Gross Negligence (Count I)Constant Aviation also seeks dismissal of Plaintiffs’claim for “negligence/gross negligence.” In Count I,Plaintiffs allege that Constant Aviation owed them “acommon law duty, as well as a contractual duty, touse reasonable care while inspecting, maintaining, andrepairing the aircraft at issue.” (Doc. No. 1 at 22.)Plaintiffs allege that Constant Aviation breached itsduty to Plaintiffs by doing the following:a. Failing to perform inspections and maintenancewith the requisite skill and diligence expected ofprofessional aviation service providers;b. Failing to identify corrosion and other latentdefects during the initial inspection despite beingspecifically retained to ensure airworthiness;c. Neglecting to conduct critical industry-standardtests designed to identify latent corrosion issues inhigh-risk areas of the aircraft;*13 d. Representing that the aircraft was free ofmaterial defects despite the presence of significantcorrosion;
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.11e. Allowing the aircraft to be delivered in an unsafeand non-airworthy condition;f. Failing to adhere to FAA guidelines, industrystandards, and contractual obligations;g. Recklessly and knowingly disregarding thesafety implications of its inadequate inspections andrepairs; andh. Failing to train or supervise its employeesproperly to carry out inspections and repairs inaccordance with applicable standards.(Id. at 23.) Plaintiffs allege that, as a directand proximate result of the foregoing acts andomissions, Plaintiffs “have incurred substantial repaircosts, operational disruptions, reputational harm, andlost business opportunities.” (Id. at 25.) Lastly,Plaintiffs allege that the damages they suffered “weredirectly and proximately caused by the negligence,carelessness, recklessness, gross negligence, and/orwillful and wanton misconduct of Defendant.” (Id. at 24.)Constant Aviation argues that Plaintiffs’ negligenceclaim fails because (1) it is duplicative of, andtherefore precluded by, Plaintiffs’ breach of contractclaim; (2) Constant Aviation owed no duty toeither Fiorillo or MakGab because neither of thosePlaintiffs are parties to the Inspection Contract; and(3) it is barred by the economic loss doctrine.(Doc. No. 9 at PageID#s 181-184.) In response,Plaintiffs argue that their negligence claim is distinctfrom their breach of contract claim because theComplaint sufficiently alleges that Constant Aviationbreached professional duties that exist independentlyof the Inspection Contract, including adherence toFAA regulations and industry maintenance standards.(Doc. No. 10 at PageID#s 193-195.) Plaintiffs alsoassert that they have sufficiently plead a claimfor negligent misrepresentation, which they argue“may exist alongside breach of contract claimswhere the misrepresentation induced reliance outsidethe contract.” (Id.) Lastly, Plaintiffs argue that theeconomic loss doctrine does not apply in casesinvolving “professional negligence” and/or allegationsof property damage. (Id.)In Reply, Constant Aviation argues that Plaintiffs havefailed to allege any facts showing the existence of anyduty owed separately from the Inspection Contract.(Doc. No. 11 at PageID#s 202-205.) Constant Aviationfurther asserts that Plaintiffs’ professional negligenceargument fails because “Plaintiffs have cited no case inwhich an aircraft inspection and maintenance companyhas been found to be the type of ‘professional’to which a ‘professional negligence’ claim willapply.” (Id.) And, even if it could be considered such aprofessional, Constant Aviation argues that Plaintiffs’claim nonetheless fails because they fail to allege anydamages attributable to the alleged negligence that aredifferent from the damages arising from the allegedbreach of contract. (Id.)The Court will address the parties’ arguments withrespect to Vision Management, and to MakGab andFiorillo, separately, below.1. Vision ManagementAs discussed above, Vision Management is the onlyone of the three Plaintiffs that is a party to theInspection Contract and, therefore, the only Plaintiffherein that had standing to assert a breach of contractclaim against Constant Aviation. Under Ohio law, “theexistence of a contract action generally excludes theopportunity to present the same case as a tort claim.”Wolfe v. Continental Cas. Co., 647 F.2d 705, 710 (6thCir. 1981) (applying Ohio law). See also AcademicImaging LLC v. Soterion Corp., 352 Fed. Appx. 59,64 (6th Cir. 2009) (applying Ohio law); DG Gas, LLCv. TA Franchise Systems, LLC, 2025 WL 814928 at *31 (N.D. Ohio March 14, 2025); Stancik v. DeutscheNatl. Bank, 2015 WL 3899224 at * 7 (Ohio App. 8thDist. June 25, 2015); Textron Fin. Corp. v. NationwideMut. Ins. Co., 684 N.E.2d 1261, 1270 (Ohio App.9th Dist. 1996). More specifically, “Ohio law doesnot recognize a tort claim premised upon the sameactions as those upon which the plaintiff bases abreach of contract claim unless the plaintiff identifiessome duty or misrepresentation by the breaching partyindependent of the contract.” Bibbs v. Allstate Ins. Co.,2024 WL 4124171 at *8 (N.D. Ohio Sept. 9, 2024). Seealso Academic Imaging LLC, 352 Fed. Appx. at 64-65(“To be cognizable, a tort claim must allege a breach‘of some positive legal duty imposed by law because ofthe relationship of the parties, rather than from a mereomission to perform a contract obligation.’ ”) (quoting
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12Cuthbert v. Trucklease Corp., 2004 WL 1879023 at* 10 (Ohio App. 10th Dist. Aug. 24, 2004)); LittleMountain Precision, LLC v. DR Guns, LLC, 2023 WL1816711 at *6 (N.D. Ohio Feb. 8, 2023) (“A tort claimbased upon the same actions as those upon which aclaim of contract is based will exist independently ofthe contract action only if the breaching party alsobreaches a duty owed separately from that created bythe contract.”)*14 Moreover, where the causes of action in tortand contract are “factually intertwined,” a plaintiffmust show that the tort claims derive from the breachof duties that are independent of the contract andthat would exist notwithstanding the contract. Stancik,2015 WL 3899224 at * 7. “To hold otherwise would beto convert every unfulfilled contractual promise, i.e.,every alleged breach of contract, into a tort claim.”Telxon Corporation v. Smart Media of Delaware, Inc.,2005 WL 2292800 at * 13 (Ohio App. 9th Dist. Sept.21, 2005). See also Little Mountain Precision, LLC v.DR Guns, LLC, 2023 WL 1816711 at *6. A separateduty will arise in special relationships, such as betweenan insurer and its insured. Battista v. Lebanon TrottingAss'n, 538 F.2d 111, 117-18 (6th Cir. 1976). “If aseparate duty does not exist, the tort-based claim willnot lie.” Little Mountain Precision, LLC, 2023 WL1816711 at * 6.Here, Plaintiffs argue that Constant Aviation owedVision Management such a separate duty. Specifically,Plaintiffs argue that Constant Aviation “owed a dutyof care in performing aircraft inspections and repairs,independent of its contractual obligations.” (Doc. No.10 at PageID# 193.) In support of this argument,Plaintiffs first cite a purported Sixth Circuit case,“Onyx Enters. Int'l Corp. v. Sloan, 843 F. App'x 859,867 (6th Cir. 2021),” for the proposition that “a duty intort may arise separately from contractual obligationswhere professional services are involved.” (Id.)Despite many attempts, however, the Court was unableto locate this alleged Sixth Circuit case, either byname11 or by the Fed. Appx citation provided byPlaintiffs in their Brief in Opposition.12 Thus, theCourt will disregard this citation.Plaintiffs next argue that they have sufficientlyalleged that Constant Aviation performed improperinspections of the aircraft at issue “contrary to industryprotocol and standard,” and that these allegations“establish that Defendant's failures extended beyondmere breaches of contract and into the realm ofprofessional negligence.” (Doc. No. 10 at PageID#193.) Plaintiffs cite the following four cases in supportof this argument: (1) LifeTime Fitness, Inc. v. ChagrinValley Eng'g Ltd., 2014 WL 6879082 (N.D. Ohio Dec.4, 2014); (2) Cromer v. Children's Hosp. Med. Ctr.of Akron, 29 N.E.3d 921 (Ohio 2015); (3) HaddonView Inv. Co. v. Coopers & Lybrand, 436 N.E.2d 212(Ohio 1982); and (4) Corporex Dev. & ConstructionMgmt., Inv. v. Shook, Inc., 835 N.E.2d 701 (Ohio2005). While the above cases do, in fact, exist, theCourt agrees with Constant Aviation that they do notsupport Plaintiffs’ argument. Notably, none of thecases cited by Plaintiffs involve an aircraft inspectionand maintenance company or otherwise hold thatan aircraft inspection and maintenance companysuch as Constant Aviation constitutes the type of“professional” to which a “professional negligence”claim could apply. See LifeTime Fitness, Inc., 2014WL 6879082 at * 4 (involving a “design professional”that prepared a design of a parking lot); Cromer, 29N.E.3d at 929 (finding that the relationship betweenmedical professionals and their patients “can establishthe existence of an actor's duty to another person”);Haddon View Inv. Co., 436 N.E.2d at 215 (holdingthat “an accountant may be held liable by a third partyfor professional negligence when that third party isa member of a limited class whose reliance on theaccountant's representation is specifically foreseen”);Corporex, 835 N.E.2d at 413 (finding that theeconomic loss rule bars a building project owner fromrecovery of purely economic damages in tort against asubcontractor).*15 Moreover, while the Complaint does allege thatConstant Aviation “failed to adhere to Federal AviationAdministration (‘FAA’) standards and guidelines,”Plaintiffs fail to sufficiently allege or explain how thisalleged “breach of [Constant Aviation's] professionalduties” encompasses any duties separate from, orindependent of, the parties’ contractual relationship.Indeed, in their breach of contract claim (Count II),Plaintiffs allege that the Inspection Contract “obligatedDefendant to perform its services in accordance withagreed-upon terms and industry standards;” and thatConstant Aviation breached the Inspection Contractby, among other things, “failing to adhere to the
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.13required industry standards.” (Doc. No. 1 at ¶¶ 27, 29)(emphasis added). Plaintiffs further blur the boundarybetween their negligence and breach of contractclaims, by alleging in their negligence claim (Count I)that Constant Aviation “breached its duty to Plaintiffsby *** (f) Failing to adhere to FAA guidelines,industry standards, and contractual obligations.” (Id.at 23(f)) (emphasis added). In sum, the Court findsthat Plaintiffs have failed to sufficiently allege ordemonstrate the existence of a separate duty that isindependent from the Inspection Contract and thatwould “exist notwithstanding the contract.” Stancik,2015 WL 3899224 at * 7. Rather, any duties owedby Constant Aviation to Vision Management “aroseincident to the[ir] contractual relationship.” Ross v.PennyMac Loan Services LLC, 761 Fed. Appx. 491,496 (6th Cir. 2019). For this reason alone, the Courtfinds that Vision Management's negligence claimnecessarily fails as a matter of law. See also Stancik,2015 WL 3899224 at * 7.The Court further finds that Vision Management'snegligence claim fails for the additional reason thatPlaintiffs have failed to allege damages attributableto Constant Aviation's alleged negligent conduct thatare separate and distinct from damages attributableto its alleged breach of contract. Ohio courts havelong held that “[i]n addition to containing a dutyindependent of that created by contract, an actionarising out of contract which is also based upon tortiousconduct must include actual damages attributable tothe wrongful acts of the alleged tortfeasor which arein addition to those attributable to the breach of thecontract.” Textron Fin. Corp., 684 N.E.2d at 1271(emphasis in original.). See also Academic Imaging,LLC, 352 Fed. Appx. at 67-68 (same); LifeTimeFitness, Inc., 2014 WL 6879082 at * 4 (same). Here,Plaintiffs do not argue or otherwise explain howtheir alleged negligence damages are different fromor in addition to their alleged breach of contractdamages. Upon review, the Court agrees with ConstantAviation that Plaintiffs’ alleged damages relating totheir negligence claim are, in fact, indistinguishablefrom their alleged damages relating to their breach ofcontract claim.13Lastly, the Court rejects Plaintiffs’ argument that theyhave asserted a claim for negligent misrepresentationand, thus, their negligence claim is not “merelyduplicative” of their contract claim. (Doc. No. 10 atPageID# 193.) Plaintiffs cite Paragraphs 9 and 12of the Complaint in support of their argument thatthey “properly assert that Defendant misrepresentedits ability to properly inspect and repair the aircraft,further supporting a claim for negligence.” (Id.) TheseParagraphs provide as follows:9. Plaintiffs paid for pre-purchase evaluations andsubsequent inspection services totaling $94,315.44**12. Plaintiffs incurred substantial expenses totaling$176,501.43 for repairs and inspections necessary toremediate the corrosion and an additional $123,000for operational disruptions caused by Defendant'snegligence.*16 (Doc. No. 1 at ¶¶ 9, 12.) Even construing theabove Paragraphs in a light most favorable to Plaintiffs,it is clear that they do not “assert that Defendantmisrepresented its ability to properly inspect and repairthe aircraft.” (Doc. No. 10 at PageID# 193.)Although not cited by Plaintiffs, the Court notesthat, in Count I, Plaintiffs allege (among otherthings) that Constant Aviation was negligent becauseit “represent[ed] that the aircraft was free ofmaterial defects despite the presence of significantcorrosion.” (Doc. No. 1 at 23(d)). Neither partycites or addresses this particular allegation. Uponcareful review, the Court construes this allegationas alleging that this misrepresentation occurred afterConstant Aviation had already performed the agreed-upon inspection and repair services set forth in theInspection Contract. As such, the Court finds that it isduplicative of Plaintiff's claim that Defendant breachedthe contract by failing to “deliver the contracted-forservices free of defects” and “notify the Plaintiff ofany defects.” (Doc. No. 1 at 29.) In other words, theCourt finds that Constant Aviation's duty to accuratelyrepresent whether the aircraft was free of defects isa contractual duty – not a separate or independentduty apart from the Inspection Contract. See, e.g.,Textron Fin. Corp., 684 N.E.2d at 1271 (“Whetherintentionally or not, Nationwide failed to disclosethe true location of Textron's 200E computer and, infact, represented a location which was, if not initially,then ultimately, incorrect. However, the duty to obtainTextron's consent to a change in the computer's
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.14location was contractual. Textron did not establisha duty additional to that which was contractual.”)Moreover, and as discussed above, Plaintiffs have notalleged damages separately attributable to ConstantAviation's alleged negligent misrepresentation that aredistinguishable from those damages that it claims areattributable to Constant Aviation's alleged breach ofcontract.Accordingly, and for all the reasons set forth above,the Court finds that Vision Management's negligenceclaim necessarily fails as a matter of law.14 See alsoStancik, 2015 WL 3899224 at * 7.2. MakGab and FiorilloAs discussed supra, unlike Vision Management,MakGab and Fiorillo are not parties to the InspectionContract. Constant Aviation argues that MakGab andFiorillo's negligence claim should nonetheless bedismissed because “in the absence of a contract toprovide any goods or services to Fiorillo or MakGab,Constant owed them no duty.” (Doc. No. 9 at PageID#182.) Specifically, Constant Aviation asserts that theexistence of a duty depends on the foreseeability of theinjury. (Id.) Because neither MakGab nor Fiorillo areparties to the Inspection Contract, Constant Aviationargues that it “obviously would not foresee any injuryto [them].” (Id.) Lastly, Constant Aviation argues thatMakGab's and Fiorillo's negligence is also barred bythe economic loss doctrine because Plaintiffs “havealleged solely economic damages.” (Id. at PageID#183.)In their Brief in Opposition, Plaintiffs do notacknowledge or address Constant Aviation's argumentthat MakGab's and Fiorillo's negligence claim shouldbe dismissed because they are not signatories tothe Inspection Contract and, therefore, it was notforeseeable that they would be injured by ConstantAviation's alleged breach. (Doc. No. 10 at PageID#194.) Rather, Plaintiffs maintain that Constant Aviationowed all of the Plaintiffs (including MakGab andFiorillo) a duty separate and apart from the InspectionContract because “professionals providing specializedservices, such as aviation maintenance, are required toexercise reasonable care in their work.” (Id.)*17 As discussed at length above, however, theCourt has found that Plaintiffs have failed to citeany authority indicating that an aircraft inspectionand maintenance company such as Constant Aviationconstitutes the type of “professional” to which a“professional negligence” claim could apply. TheCourt has further found that Plaintiffs have failedto sufficiently allege or explain how ConstantAviation's alleged breach of its “professional duties”encompasses any duties separate from, or independentof, the Inspection Contract that was entered intobetween Vision Management and Constant Aviation.In addition, by failing to acknowledge or address theissue, Plaintiffs concede that it was not foreseeable thatMakGab and Fiorillo would be injured by ConstantAviation's alleged breach of the Inspection Contract,as neither of those Plaintiffs are parties to thatContract. Under these circumstances, the Court findsthat Constant Aviation is entitled to dismissal ofPlaintiffs MakGab's and Fiorillo's negligence claim.See e.g., Corporex, 835 N.E.2d at 415 (“Because theunderlying duties are created by a contract to whichDSI is not a party, no tort action lies in DSI's favor.”).Accordingly, and for all the reasons discussed above,Count I is dismissed.C. Unjust Enrichment (Count III)In Count Three, Plaintiffs allege that they “conferreda substantial benefit on Defendant by payingfor inspection and repair services that werenegligently performed, recklessly performed, and/ornot performed to the required standard.” (Doc. No. 1at 32.) Plaintiffs further allege that Defendant hadknowledge of Plaintiffs’ payments to Defendant andthat “Defendant's retention of these payments withoutproviding Plaintiffs the contracted-for services wouldbe unjust.” (Id. at 33.) Plaintiffs allege that theyare therefore “entitled to restitution of the amountspaid to Defendant under the principles of equity andfairness.” (Id. at 35.)In its Motion, Constant Aviation argues that Plaintiffs’unjust enrichment claim should be dismissed because“Plaintiffs are not permitted to seek relief underquasi-contract where an express contract governs thesame matter.” (Doc. No. 9 at PageID# 187.) ConstantAviation asserts that “there can be little dispute thatthe subject matter of Plaintiffs’ Complaint is governed
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.15by an express contract” and, therefore, “their unjustenrichment claim fails as a matter of law.” (Id.)Plaintiffs do not acknowledge or address ConstantAviation's arguments in their Brief in Opposition.(Doc. No. 10.)It is well established that, if a plaintiff fails to respondor to otherwise oppose a defendant's motion to dismiss,a district court may deem the plaintiff to have waivedopposition. See, e.g., Humphrey v. U.S. Attorney Gen.'sOffice, 279 Fed. Appx 328, 331 (6th Cir. 2008) (findingthat a plaintiff's failure to oppose arguments raised inthe defendants’ motion to dismiss is grounds for thedistrict court to assume that opposition to the motionis waived). See also Kuhlman v. City of Cleveland,2023 WL 2652585 at * 11 (N.D. Ohio March 23,2023) (finding that, by failing to respond to defendant'smotion to dismiss, plaintiff “waived any argument inopposition to the City's argument that plaintiff's statelaw claims are barred”); Selou v. Integrity Sol. Servs.,Inc., 2016 WL 612756 at *3 (E.D. Mich. Feb. 16, 2016)(“Plaintiff's failure to address any claim but her TCPAclaim in response to LiveVox's motion to dismiss iscause for dismissing those claims.”).Here, despite having every opportunity to respond toConstant Aviation's argument that Plaintiffs’ unjustenrichment claim is subject to dismissal, Plaintiffsfailed to do so. The Court, therefore, deems Plaintiffs tohave waived any opposition with respect to this issue.Accordingly, the Court grants Constant Aviation'sMotion to Dismiss unjust enrichment claim in CountIII.D. Request to AmendLastly, in the final paragraph of their Brief inOpposition, Plaintiffs state, summarily, that “shouldthe Court find any portion of the Complaintdeficient, Plaintiffs request leave to cure any perceiveddeficiencies.” (Doc. No. 10 at PageID# 199.) Plaintiffsdo not provide any further explanation regarding whythey believe leave to amend should be granted or whatadditional factual allegations they would include in anyproposed amended complaint to cure the deficienciesin the original Complaint. Nor do Plaintiffs attach acopy of any proposed amended complaint to their Briefin Opposition.*18 Plaintiffs’ request for leave to amend is denied.Under Rule 15, Plaintiffs had twenty-one (21) daysafter the filing of Constant Aviation's Motion toDismiss to amend their Complaint as a matter ofcourse. See Fed. R. Civ. P. 15(a)(1)(B). Plaintiffs failedto do so. Rather, they elected to wait for this Courtto rule on Constant Aviation's Motion and only seekamendment (via a cursory, one-sentence request) in theevent that the Court determined “any portion of theComplaint [to be] deficient.” (Doc. No. 10 at PageID#199.) But, as the Sixth Circuit has explained, “Plaintiffs[are] not entitled to an advisory opinion from the Courtinforming them of the deficiencies of the complaintand then an opportunity to cure those deficiencies.”Begala v. PNC Bank, Ohio, Nat'l Ass'n, 214 F.3d 776,784 (6th Cir. 2010).Rather, to properly seek leave to amend, Plaintiffs wererequired to do more than simply include a perfunctory,unexplained request for leave to amend in the lastparagraph of their Brief in Opposition. They wererequired to file a fully briefed and supported motionto amend or, at the very least, provide this Courtwith a proposed amended complaint accompanied byan explanation of how the amended complaint wouldresolve the deficiencies in the original Complaint.See Salazar v. Paramount Glob., 133 F.4th 642, 653(6th Cir. 2025) (“Salazar filed neither a motion toamend nor a proposed amended complaint. Instead,he requested leave to amend his complaint only ina single cursory footnote at the end of his responseto Paramount's motion to dismiss *** This ‘cursoryrequest’ did not ‘explain how a second amendedcomplaint would resolve the problems in the first.’So the district court did not abuse its discretionin dismissing Salazar's complaint with prejudice.)(quoting Crosby v. Twitter, Inc., 921 F.3d 617, 628 (6thCir. 2019)) (internal citations omitted).Just as in Salazar, Plaintiffs herein did not file aseparate motion to amend their Complaint or providethis Court with a proposed amended complaint alongwith an explanation of how the amended complaintwould resolve the problems in the original Complaint.Accordingly, Plaintiffs’ barebones request for leave toamend is denied.V. Conclusion
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.16Accordingly, and for all the reasons set forth herein,Defendant Constant Aviation LLC's Motion to Dismiss(Doc. No. 9) is GRANTED. Plaintiffs’ request forleave to amend is DENIED.IT IS SO ORDERED.s/Pamela A. BarkerPAMELA A. BARKERDate: September 22, 2025 U. S. DISTRICT JUDGEAll CitationsSlip Copy, 2025 WL 2695801Footnotes1In setting forth the facts, the Court considers the factual allegations in the Complaint as well as the Exhibitsattached to the Complaint, including the parties’ Inspection Contract (Doc. No. 1-1), inspection and repairrecords from January 2023 (Doc. No. 1-2) and Plaintiffs’ July 5, 2024 Demand Letter (Doc. No. 1-3). SeeBassett v. National Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008) (noting that, in ruling on aRule 12(b)(6) motion, a court “may consider the Complaint and any exhibits attached thereto, public records,items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long asthey are referred to in the Complaint and are central to the claims contained therein.”). See also Brent v.Wayne County Dep't of Human Services, 901 F.3d 656, 694 (6th Cir. 2018).2Although the Complaint alleges that the Inspection Contract was executed on December 6, 2021, theContract itself is signed by Plaintiff Fiorillo in his capacity as President of Vision Management on December9, 2021. (Id. at PageID# 24.)3In order to ensure that it has diversity jurisdiction over the instant matter, this Court issued a Show CauseOrder on January 13, 2025, directing Plaintiff to identify (1) the citizenship of all of the members (and sub-members, if any) of Vision Management, MakGab Holdings, and Constant Aviation; and (2) Fiorillo's stateof citizenship (as opposed to residency). (Doc. No. 6.) On January 27, 2025, Plaintiffs filed a Supplement(Doc. No. 7) providing the requested information, which indicated, in sum, that Plaintiffs are each citizens ofFlorida and Constant Aviation is a citizen of Ohio. (Id.) On January 29, 2025, the Court issued an Order that“[b]ased upon the information contained in and attached to Plaintiffs' [Supplement], the Court is satisfied, atthis time, that there is complete diversity of citizenship.” See Non- Doc Order dated Jan. 29, 2025.4Citing Paragraphs 12 -14 of the Complaint, Plaintiffs assert (summarily) that they have “sufficiently allegedthat MakGab and Fiorillo were intended beneficiaries and incurred financial losses due to Defendant'sbreach.” (Doc. No. 10 at PageID# 196.) The Court disagrees. Upon careful review, the Court finds thatParagraphs 12 through 14 of the Complaint do not in any way allege that MakGab or Fiorillo were intendedthird-party beneficiaries to the Inspection Contract. Nor do Paragraphs 12 through 14 allege that theInspection Contract was intended to benefit MakGab and/or Fiorillo or recite any specific provision in thatContract that would allegedly indicate such an intention. Thus, Plaintiffs’ assertion that these Paragraphsallege that MakGab and Fiorillo “were intended beneficiaries” is not supported by the record and is withoutmerit.5Plaintiffs maintain that “¶¶ 2-4” of the Inspection Contract “detail[ ] the contractual obligations undertakenby Defendant, which directly impacted MakGab and Fiorillo.” (Doc. No. 10 at PageID# 196.) However, thereare no Paragraphs 2, 3, or 4 in the Inspection Contract attached to the Complaint. (Doc. No. 1-1.) Thus,it is unclear what specific contractual obligations or provisions Plaintiffs are referring to. Nor do Plaintiffsotherwise direct this Court's attention to any provision in the Inspection Contract that indicates an intentionto benefit either MakGab or Fiorillo.6The Court notes that Plaintiffs provide an inaccurate citation to Cook, citing it as 960 F.3d 856 (6th Cir.2020). In fact, the correct citation is 961 F.3d 850 (6th Cir. 2020). In addition, Plaintiffs pinpoint p. 862 of theCook decision as holding that a determination of whether a third-party beneficiary has standing to enforcea contract is a “fact intensive inquiry.” (Doc. No. 10 at PageID# 197.) However, there is no page 862 in the
Vision Management Group, LLC, et al., Plaintiffs, v. Constant..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.17Cook decision. Counsel for Plaintiffs are reminded and cautioned that they have an obligation to ensure thatany filings in this Court include accurate case citations, both in terms of the content of the cited decisionand the citation itself.7Plaintiffs also cite cases from the Ninth Circuit Court of Appeals and the District Court for the District ofMassachusetts. (Doc. No. 10 at PageID# 197.) These out-of-Circuit cases, however, are not binding on thisCourt, particularly where they conflict with Sixth Circuit authority.8Although not noted by either Plaintiffs or Defendant, the Court observes that some of the January 2023Invoices are billed to both MakGab Holdings and “Tony Furillo,” which the Court presumes is meant to referto Plaintiff Anthony Fiorillo. (Doc. No. 1-2 at PageID#s 50-52.)9While the Complaint provides that Plaintiffs sent their demand letter to Constant on July 8, 2024, the actualdemand letter (attached as Exhibit C to the Complaint) is dated July 5, 2024. See Doc. No. 1-3 at PageID# 57.10For example, YPA alleged that Tatonka “failed to make timely payments to the State Employee RetirementSystem of Ohio, to timely pay utility bills and medical insurance premiums, and to remit unemployment taxeson behalf of YPA, amongst other failures.” Id. YPA alleged that these alleged breaches “led to accruedinterest charges and/or penalties that YPA is responsible for paying.” Id.11The Court notes that a search of the case name “Onyx Enters. Int'l Corp. v. Sloan” brings up two unreporteddecisions in the United States District Court for the District of Colorado and one unreported decision inthe United States District Court for the Southern District of Florida. See Onyx Enters. Int'l Corp. v. SloanInternational Holdings Corp., 2020 WL 1958414 (D. Colo. March 26, 2020); Onyx Enters. Int'l Corp. v. SloanInternational Holdings Corp., 2020 WL 1955398 (D. Colo. April 23, 2020); and Onyx Enters. Int'l Corp. v.Sloan International Holdings Corp., 2020 WL 9172668 (S.D. Fla. July 29, 2020). None of these cases relatein any way to the circumstances in which a duty in tort may arise separately from contractual obligations.12The Court hereby reminds counsel for Plaintiffs of her responsibilities under Fed. R. Civ. P. 11, as well asher ethical obligations and duty of candor as an officer of the Court. See, e.g., Park v. Kim, 91 F.4th 610, 615(2nd Cir. 2024) (finding that “[a]t the very least, the duties imposed by Rule 11 require that attorneys read,and thereby confirm the existence and validity of, the legal authorities on which they rely.”); Wadsworth v.Walmart, Inc., 348 F.R.D. 489, 495 (D. Wyo. 2025) (finding that “using a fake opinion to support an argumentis a violation of Rule 11(b)(2)” ); Mavy v. Comm'r of Soc. Sec., 2025 WL 2355222 at * 6 (D. Az. Aug. 14, 2025)(finding that, “[b]y repeatedly citing this Court to non-existent ‘cases’ and to actual cases that did not supportthe propositions for which they were cited,” counsel's conduct “squarely [ran] afoul of Rule 11’s mandate”).13Specifically, regarding their negligence claim, Plaintiffs allege that they “incurred repair costs, operationaldisruptions, reputational harm, and lost opportunities,” including “substantial expenses totaling $176,501.43for repairs and inspections necessary to remediate the corrosion and an additional $123,000.00 foroperational disruptions caused by Defendant's negligence.” (Doc. No. 1 at ¶¶ 12, 25.) Regarding the breachof contract claim, Plaintiffs similarly allege that they suffered damages in the amount of $176,501.43 forrepair and inspection costs and “[o]perational disruptions and the resulting loss of business opportunities,totaling $123,000.00,” as well as “[a]dditional costs incurred in obtaining substitute aircraft services duringthe remediation period” and attorney fees and costs. (Id. at 30.)14In light of the above, the Court need not (and does not) address Constant Aviation's argument that Plaintiffs’negligence claims are barred by the economic loss doctrine.End of Document© 2025 Thomson Reuters. No claim to original U.S.Government Works.
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