MURPHY, HESSE, TOOMEY & LEHANE, LLP 

Attorneys At Law 

CROWN COLONY PLAZA 

300 CROWN COLONY DRIVE 

SUITE 4IO 

QUINCY, MA02169 

75-101 FEDERAL STREET 

BOSTON, MA 02 I I 0 

ONE MONARCH PLACE 

SUITE I310R 

SPRINGFIELD, MA 01144 

TEL: 617-4 79-5000 FAX: 617-4 79-6469 

TOLL FREE: 888-841-4850 

www.mhtl.com 

Please respond to Quincy 

VIA OVERNIGHT MAIL 

AND EMAIL (9-AWA-AGC-Part-16@faa.gov) 

Office of the Chief Counsel 

Attention: FAA Part 16 Docket Clerk AGC-600 

Federal Aviation Administration 

800 Independence Ave., S.W., Room 900E 

Washington, D.C. 20591 

Arthur P Murphy 

James A. Toomey 

Katherine A. Hesse 

Michael C. Lehane 

John P Fl; nn 

Regina Williams Tate 

Mary Ellen Sowyrda 

David A DeLuca 

Donald L Graham 

Andrew J. Waugh 

Geoffrey P. Wermuth 

Kathryn M Murphy 

Alisia St. Florian 

Thomas W. Colomb 

Brandon H. Moss 

Kevin F. Bresnahan 

Doris R. MacKenzie Ehrens 

Jean E Zeiler 

Clifford R. Rhodes, Jr. 

Karis L North 

Kerry R Jenness 

Michael J. Maccaro 

Bnan P Fox 

Lanren C Galvin 

Tami L. Fay 

Kier B. Wachterhauser 

Sarah A Catignani 

Felic1a S. Vasude\an 

Ann M. O'Neill, Senior Counsel 

September 2, 2016 

Re: Part 16 Complaint: Boston Executive Helicopters v. Town of Norwood, 

Massachusetts and Norwood Airport Commission; Docket No. 16-15-05 

Respondent's Motion (or Leave to File a Third Supplemental Rebuttal 

Dear Sir or Madam: 

Pursuant to 14 C.F.R. § 16.19, the Respondents in the above-referenced matter, the Town 

ofNorwood, Massachusetts and the Norwood Airport Commission (collectively, 

"Respondents"), respectfully move the Federal Aviation Administration ("FAA"), for leave to 

file a Third Supplemental Rebuttal in connection with the above-referenced Part 16 Complaint. 

If leave is granted, the Respondents' Third Supplemental Rebuttal is set forth herein and in 

Exhibit 145. 1 

The basis for this Motion for Leave to File a Third Supplemental Rebuttal is to update the 

FAA concerning the status of the lawsuit filed by the Complainant, Boston Executive 

1 For purposes of consistency, the Respondents continue the sequence of exhibi~ numbering from 

their previously filed Answer, Rebuttal and First Supplemental Rebuttal. 
MURPHY, HESSE, TOOMEY & LEHANE, LLP 

Attorneys At Law 

Office of the Chief Counsel 

Attention: FAA Part 16 Docket Clerk AGC-600 

Federal Aviation Administration 

September 2, 2016 

Page 2 

Helicopters, LLC ("BEH"), which is pending in federal court. This federal lawsuit was 

addressed in the Respondents' Motion for Leave to File a First Supplemental Rebuttal- to which 

BEH did not file an opposition or any response. 

In particular, in the matter of Boston Executive Helicopters, LLC v. Maguire et al., 

United States District Court for Massachusetts Civil Action No. 1:15-cv-13647-;RGS ("Federal 

Lawsuit"), the various defendants (collectively, "Norwood Defendants")- which included the 

Respondents - filed a Motion to Dismiss BEH' s Amended Complaint. This Amended 

Complaint consisted of twelve (12) separate claims? 

Of particular significance. the United States District Court for Massachusetts (Stearns, 

D.J.) ("Federal Court") issued a Memorandum and Order on the Norwood Defendants' Motion 

to Dismiss for Failure to State a Claim ("Memorandum and Order"). The consequence of this 

decision in the Federal Lawsuit is to dismiss eleven (11) of the twelve (12) claims asserted by 

BEH in the Federal Lawsuit. This dismissal is notable because of the overlap of issues between 

the above-referenced Part 16 Complaint, including BEH's allegations that the various Norwood 

Defendants conspired with FlightLevel Norwood, LLC ("FlightLevel"), the incumbent fixedbase operator ("FBO"), to perpetuate its purported monopoly over the sale of aviation fuel at 

Norwood Memorial Airport ("Norwood Airport"), thereby violating BEH's alleged civil rights 

and contract rights, and state and federal antitrust laws. 

A copy of the Memorandum and Order is enclosed as Exhibit 145. The claims that were 

dismissed were as follows: 

• Count I (Declaratory Judgment concerning the rights and obligations of BEH and the 

Norwood Airport Commission). 

• Counts II and III (Breach of Contract); 

• Count IV (Detrimental Reliance); 

• Counts V and VI (Alleged Violations of 42 U.S.C. § 1983); 

• Count VIII (Alleged Violation of the Massachusetts Civil Rights Act); and 

2 In their Motion for Leave to File a First Supplemental Rebuttal, the Respondents provided an overview of the 

Federal Lawsuit. Exhibit 143, accompanying that Motion for Leave to File a First Supplemental Rebuttal, contains 

the relevant pleadings and court filings in the Federal Lawsuit. 
MURPHY, HESSE, TOOMEY & LEHANE, LLP 

Attorneys At Law 

Office of the Chief Counsel 

Attention: FAA Part 16 Docket Clerk AGC-600 

Federal Aviation Administration 

September 2, 2016 

Page 3 

• Counts IX, X, XI, and XII (Alleged Violations of Federal and Massachusetts 

Antitrust Laws). 3 

In part, the Federal Court held that "no evidence of malice on the part of any of the 

individual defendants is offered or imputed to the NAC [i.e., the Norwood Airport Commission] 

by BEH" and that any such "claim fails even under a 'relaxed' test." See Exhibit 145 at 16-17. 

Moreover, the Federal Court held that FlightLevel and BEH "are not in fact similarly situated," 

including, inter alia, that "BEH is concededly a new market entrant, while FlightLevel has years 

of experience as an FBO at Norwood Airport." See id. at 16 n. 9 (emphasis in original). 

As explained in the Respondents' prior submittals, litigation risk, including "future costly 

and frivolous litigation" can be considered in evaluating an airport sponsor's conduct. See 

Jacquelin R. Ashton & Kent J. Ashton v. City of Concord, N.C., FAA Docket No. 16-02-01 

(Director's Determination, August 22, 2003); FlightLine Aviation, Inc. v. City of Shreveport 

through Shreveport Airport Authority, FAA Docket. No. 16-07-05 (Director's Determination, 

March 7, 2008); Glyn Johnson d/b/a Zoo City Skydivers v. Yazoo County & Yazoo County Port 

Commission, FAA Docket No. 16-04-06 (Director's Determination, February 9, 2006). Such is 

the case here, given the prior lawsuits that BEH has filed against the Respondents - including the 

Federal Lawsuit, in which eleven (11) of BEH's twelve (12) claims have been dismissed at the 

outset. 

For the reasons stated herein, and in their prior filings, the Respondents respectfully 

request that the FAA: (1) dismiss BEH's above-referenced Part 16 Complaint; (2) decline to 

investigate BEH's above-referenced Part 16 Complaint; (3) determine that the Respondents have 

complied with the FAA's Grant Assurances; and ( 4) take no further action in the abovereferenced matter. Please let me know ifl can provide any additional information in the FAA's 

review of the above-referenced Part 16 Complaint. 

Thank you for your courtesy in this matter. 

Very truly yours, 

py,~ JWt,&J. e 

Brandon H. Moss 

3 The sole remaining claim is under Count VII (Alleged Violations of 42 U.S.C. § 1983). This claim has not been 

adjudicated and is currently pending. 
MURPHY, HESSE, TOOMEY & LEHANE, LLP 

Attorneys At Law 

Office of the Chief Counsel 

Attention: FAA Part 16 Docket Clerk AGC-600 

Federal Aviation Administration 

September 2, 2016 

Page 4 

CERTIFICATE OF SERVICE 

I, Brandon H. Moss, counsel to the Respondents, Town of Norwood, Massachusetts and 

Norwood Airport Commission in Boston Executive Helicopters, LLC v. Town ofNorwood, 

Massachusetts and Norwood Airport Commission, FAA Docket No. 16-15-05, hereby certify 

that on this 2nd day of September 2016, a copy of the foregoing document was served via 

overnight mail and email as follows: 

Complainant, Boston Executive Helicopters, LLC (one copy): 

Timothy I. McCulloch, Esquire 

Hinshaw & Culbertson LLP 

2375 East Camelback Road, Suite 750 

Phoenix, AZ 85016 

TMcCulloch@hinshawlaw.com 

FAA Part 16 Airport Proceedings Docket (original and three (3) copies): 

Office of the Chief Counsel 

Attention: FAA Part 16 Airport Docket Clerk AGC-600 

Room 900-E 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

9-A WA-AGC-Part-16@faa.gov 

945992vl 

Brandon H. Moss 
Exhibit 145 
Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 1 of 21 

UNITED STATES DISTRICT COURT 

DISTRICT OF MASSACHUSETTS 

CIVIL ACTION NO. 15-13647-RGS 

BOSTON EXECUTIVE HELICOPTERS, LLC 

v. 

FRANCIS MAGUIRE, et al. 

MEMORANDUM AND ORDER ON DEFENDANTS' 

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 

July 6, 2016 

STEARNS, D.J. 

Plaintiff Boston Executive Helicopters, LLC (BEH) is a Delaware 

limited liability company operating as a private air carrier at the Norwood 

Municipal Airport. Defendant Norwood Airport Commission (NAC) is a 

municipal agency of codefendant Town of Norwood, Massachusetts. 

Defendants Mark Ryan, Kevin Shaughnessy, Martin Odstrchel, Michael 

Sheehan, Leslie LeBlanc, and Thomas Wynne are current or former 

members of the NAC. Defendant Francis T. Maguire is the Norwood Airport 

Manager. BEH alleges that the Airport Commissioners and Airport Manager 

Maguire, individually, and in their official capacity, have conspired with 

defendant FlightLevel Norwood, LLC (FlightLevel), the Airport's private fuel 

provider, to perpetuate FlightLevel's monopoly over the sale of jet fuel at 
Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 2 of 21 

Norwood Airport, and in so doing, have violated BEH's civil rights, 

contractual rights, and the state and federal antitrust laws. 

BACKGROUND 

Norwood Municipal Airport is a public-use general aviation facility 

established pursuant to the Municipal Airport Act, Mass. Gen. Laws ch. 90, 

§§ 51D-51M (the NAC's oversight authority is derived from the same statute). 

Norwood Airport has received substantial state and federal assistance over 

the years, conditioned on the NAC's compliance with Grant Assurances 

issued by the United States Department of Transportation (DOT) and the 

analog Massachusetts DOT. 1 To meet the requirements of the Grant 

Assurances, the NAC has promulgated its own set of General Regulations and 

Minimum Standards (NAC Standards) governing airport operations. Among 

other provisions, the NAC Standards commit the NAC to the promotion of 

fair competition among the Airport's commercial operators. 

1 The federal Grant Assurances provide in relevant part that the Airport 

remain open "without unjust discrimination to all types, kinds and classes of 

aeronautical activities". 62 Fed. Reg. 29,766. The Grant Assurances also 

mandate that the Airport will "permit no exclusive right for the use of the 

airport by any person providing, or intending to provide, aeronautical 

services to the public," and that the Airport "will not, either directly or 

indirectly, grant or permit any person, firm, or corporation, the exclusive 

right at the airport to conduct any aeronautical activities," including the sale 

of aviation petroleum products. Id. The Grant Assurances do, however, 

provide a relevant exception for certain fixed-base operators (FBOs). 

2 
Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 3 of 21 

As is typical of small airports, a single fixed-base operator (FBO), 

FlightLevel, has the exclusive right to provide aircraft fueling services. 

FlightLevelleases approximately 85% of the Airport's available ramp space. 

For several years, BEH, which holds a general flight operations permit, has 

sought to sell jet fuel at the Airport in competition with FlightLevel. The NAC 

Standards require an applicant for an FBO permit to make a good-faith 

capital investment in the Airport. To satisfy the requirement, BEH leased a 

30,000 square foot plot at the Airport, on which it built a new hangar and 

underground fuel tanks. Despite the investment, the NAC has refused to act 

on BEH's FBO application. 

BEH alleges that the refusal stems from collusion between the 

defendants and FlightLevel. Specifically, BEH alleges that the NAC and 

Maguire frustrated its permit application by demanding sensitive financial 

information from BEH's owners (which other FBO applicants were not 

required to provide); reneging on a confidentiality agreement that was to 

protect the production of that information; refusing to lease land to BEH of 

sufficient size to support an FBO operation; declining to consider evidence 

from a third-party financial analyst supporting BEH's fitness as a potential 

FBO; and refusing to comply with BEH's public records requests. BEH 

further alleges that the NAC, in retaliation for BEH's filing of two complaints 

3 
Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 4 of 21 

against it with the Federal Aviation Authority (FAA), improperly tabled 

BEH's application for an FBO permit, threatened to revoke its permit to 

operate at the Airport, and refused to hold public hearings on the merits of 

BEH's application. BEH also alleges that the NAC and FlightLevel erected 

barriers to block access to BEH's hangar gates, and that when BEH obtained 

a preliminary injunction ordering the barriers removed, caused the Town of 

Norwood to file baseless criminal charges against it. 

BEH initiated this action in Norfolk Superior Court on October 2, 2015. 

On October 26, 2015, Maguire removed the case to the federal district court 

with the consent of all defendants, asserting federal question jurisdiction. 

Defendants then filed a motion to dismiss. On March 29, 2016, BEH 

responded by filing this Amended Complaint seeking a declaratory judgment 

determining the respective rights and obligations of BEH and the NAC 

(Count I). The Amended Complaint further alleges breach of contract by the 

NAC (Counts II and III); promissory estoppel (detrimental reliance) against 

the NAC based on alleged misrepresentations regarding the FBO permit 

application process (Count IV); claims against all defendants under the 

Federal Civil Rights Act, 42 U.S.C. § 1983, based on alleged denials of BEH's 

right to procedural and substantive due process, violation of its right to equal 

protection under the law, and abridgment of its First Amendment rights 

4 
Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 5 of 21 

(Counts V, VI, and VII); a claim for interference by defendants with BEH's 

right to "use, enjoy and improve its property" by means of threats, 

intimidation, and coercion, pursuant to the Massachusetts Civil Rights Act 

(MCRA), Mass. Gen. Laws ch. 12, §ui (Count VIII); and finally, claims under 

the state and federal antitrust laws (Counts IX, X, XI, and XII). Defendants 

renewed their motion to dismiss on May 6, 2016. 

DISCUSSION 

To survive a motion to dismiss pursuant to Rule 12, a complaint must 

"state a claim to relief that is plausible on its face." Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007). This standard requires more than 

"labels and conclusions" or "naked assertions devoid of further factual 

enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 

quotation marks omitted). The court must accept the plaintiff's plausible 

factual allegations as true, but with respect to legal conclusions, 

"[t]hreadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice." I d. 

The defendants claim immunity from antitrust liability under the 

doctrine established in Parker v. Brown~ 317 U.S. 341, 352 (1943), which 

shields anticompetitive restraints that have been established "as an act of 

[state] government." That protection extends to acts of municipalities 

5 
Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 6 of 21 

effectuating a "state policy to displace competition with regulation or 

monopoly public service." City of Lafayette v. Louisiana Power & Light Co., 

435 U.S. 389, 413 (1978). The policy must be "clearly articulated and 

affirmatively expressed," id. at 410, at least to the extent that it includes an 

explicit delegation of authority "that foreseeably will result in 

anticompetitive effects." Town of Hallie v. City of Eau Claire, 471 U.S. 34, 

43 (1985). 

This court addressed an almost identical set of antitrust claims in 

Rectrix Aerodrome Ctrs., Inc. v. Barnstable Mun. Airport Comm'n, 534 F. 

Supp. 2d 201, 205 (D. Mass. 2008), affd, 610 F.3d 8 (1st Cir. 201o). In 

Rectrix, as here, the plaintiff air carrier, operating out of a municipal airport 

where it rented space, sought to expand its business by selling jet fuel. This 

court found that defendant Barnstable Airport, which had refused to issue 

Rectrix the necessary FBO permit, was entitled to immunity under Parker's 

state action doctrine. 

In affirming the decision, the First Circuit noted that the governing 

Massachusetts law permits airport commissions to "adopt rules and 

regulations for the use of municipal airports," Mass. Gen. Laws ch. 90, § 51J; 

to "determine the charges or rentals for the use of any properties, facilities, 

installations, landing fees, concessions, uses and services," id. § 51H, and to 

6 
Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 7 of 21 

lease airport land for up to 20 years "under such terms and conditions as it 

may prescribe, for hangars, shops, storage, industrial purposes, offices and 

other space rental, and for concessions," id. § 51F. Rectrix, 610 F.3d at 13. 

The Court of Appeals, like this court, read this statutory language as broadly 

reflective of the Legislature's "purpose to allow the suppression of 

competition." I d. The First Circuit also noted that the Massachusetts statute 

expressly rejected the suppression of competition in one specific area of 

operations (transportation to and from airports), indicating that it 

contemplated the lawful suppression of competition in others. Id. (citing 

Mass. Gen. Laws ch. 90, § 51M). 

Seeking to cast doubt on the continuing validity of Rectrix, BEH cites 

a more recent Supreme Court municipal antitrust decision, Fed. Trade 

Comm'n v. Phoebe Putney Health Sys., 133 S. Ct. 1003 (2013). In Phoebe 

Putney, the Supreme Court held that a Georgia state law permitting 

municipalities to create local Hospital Authorities vested with the power to 

acquire or lease property, set rates for services, to sue and be sued, borrow 

money, and otherwise exercise the powers of a private corporation, stopped 

short of an express delegation of the authority to act anticompetitively by 

failing the clear-articulation test. I d. at 1011-1012. "[W]hen a State's position 

'is one of mere neutrality respecting the municipal actions challenged as 

7 
Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 8 of 21 

anticompetitive,' the State cannot be said to have '"contemplated'" those 

anticompetitive actions." Id. at 1012 (emphasis in original), quoting Cmty. 

Commc'ns Co. v. Boulder, 455 U.S. 40, 55 (1982). There is, however, a 

crucial distinction between the Massachusetts Municipal Airports statute at 

issue in Rectrix, and the Georgia Hospital Authorities Law construed in 

Phoebe Putney, namely, the principle of expresio unius est exclusio alterius. 

As the First Circuit emphasized in Rectrix, 

[T]he Massachusetts statute involved here goes out of its way to 

include a section specifically prohibiting exclusive contracts 

related to transportation to and from the airport, id. § 51M, which 

surely suggests that the legislature did perceive that the airport 

might otherwise employ exclusivity restrictions (and chose to 

ban only this narrow set). 

610 F.3d at 13. Adhering to this reasoning, I am firmly of the view that the 

First Circuit's holding in Rectrix, that Massachusetts municipal airport 

commissions are in1mune fron1 antitrust liability under the state aclion 

doctrine, survives Phoebe Putney. 2 Consequently, the court will dismiss 

BEH's antitrust claims on grounds of state action immunity. 

2 This conviction is reinforced by Justice Sotomayor's reliance on Town 

of Hallie, supra, and Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 

365 (1991), as illustrations of cases meeting the clear-articulation test, where 

despite the absence of an explicit grant of permission to suppress 

competition, one could infer from the logic of the statues an implicit 

contemplation by the respective Legislatures of a suppression of 

competition. Here the contemplation is not implicit, but inferable from the 

8 
Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 9 of 21 

Defendants move to dismiss Counts II, III, and IV of BEH's Amended 

Complaint, all of which sound in contract, on the grounds that BEH has failed 

to show the existence of an agreement between it and the NAC. 3 BEH's 

counter-argument is that the sublease that it acquired from its predecessor, 

Swift Aviation Services, Inc. (Swift)4 with the consent of the NAC, established 

an enforceable bilateral contractual relationship between it and the NAC. 

Legislature's explicit decision to preserve competition m the airport 

transportation services sector. 

3 The defendants also ask the court to dismiss the declaratory judgment 

Count I of the Amended Complaint. Ordinarily, declaratory judgment is a 

means of determining the parties' rights so as to avoid impending litigation. 

See, e.g., Dist. Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, 659-

660 (1980). In this case, litigation has already begun, and the relief sought 

by BEH (a declaration that BEH meets the minimum standards for an FBO 

permit and that the NAC did not consider its application fairly) is closely 

intertwined with the remaining count of the Amended Complaint (Count 

VII) that survives defendants' motion to dismiss. The court will 

consequently exercise its "substantial discretion" and dismiss Count I of 

BEH's Amended Complaint. Ernst & Young v. Depositors Econ. Prot. Corp., 

45 F.3d 530, 534 (1st Cir. 1995). 

4 In 1967, the Town of Norwood, through the NAC, entered a Prime 

Lease with Boston Metropolitan Airport, Inc. (BMA), a Massachusetts 

corporation that has had a longstanding business relationship with the 

Town. As early as 1942, BMA served as the property manager for the 

Norwood Airport, Mayer v. Boston Metro. Airport, Inc., 355 Mass. 344, 345-

346 (1969), and continues in that capacity today. In 1989, BMA executed a 

sublease for a 30,000 square foot plot with Stol Aircraft Corporation (Stol) 

with the NAC's consent. Dkt. # 25-2. In 1994, Stol assigned its interest in 

the sublease to Swift, to which BMAand the NAC both assented. Id. In 2011, 

Swift assigned its interest to BEH, again with the consent of BMA and the 

NAC. 

9 
Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 10 of 21 

BEH's argument fails as a matter of law. In Massachusetts, as in the 

common law, no privity of contract (or estate) exists between a landowner 

and a subtenant. Dale v. H.B. Smith Co., 136 F.3d 843, 847 (1st Cir. 1998); 

Rolfe v. Tufts, 216 Mass. 563, 565 (1914); see also Waldo v. Hall, 14 Mass. 

486, 487 (1787) (contracts between a landlord and tenant, and a tenant and 

subtenant, are separate and distinct agreements). It is true that when the 

original tenant assigns its entire interest in the property to a sublessee, the 

sublessee acquires a privity of estate as well as contract, thereby releasing the 

original tenant from any continuing obligation to the landlord.s See Kaskel 

v. Hollander, 68 F.2d 265, 267 (1st Cir. 1933). 

In this case, the Town of Norwood, through the NAC (the landlord or 

prime lessor), agreed to lease the airport property to BMA (the prime lessee 

and sublessor). BMA, in turn, sublet a portion of its tenancy to Stol (the 

sublessee). Stol subsequently assigned the subtenancy to Swift, which in 

turn assigned it to BEH. However, because BMA (the prime lessee) did not 

at any point assign the entirety of its interest in the sublease to any party in 

the chain of succession, BMA remains in privity of contract and estate with 

the NAC. As none of the subsequent transactions between the successive 

s Hence, the anti-assignment clauses found in many leases. 

10 
Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 11 of 21 

sublessees severed or supplanted this relationship, there is no privity of 

contract (or estate) between the NAC and BEH to be breached. 6 

BEH's alternative claim to third-party beneficiary status under the 

contract between the NAC and BMA also fails. To support this claim, BEH 

must demonstrate that the "language and circumstances of the contract 

[between the NAC and BMA] show that the parties to the contract clearly and 

definitely intended the beneficiary to benefit from the promised 

performance." Doherty v. Admiral's Flagship Condo. Trust, Bo Mass. App. 

Ct. 104, 111 (2011) (internal citations and quotation marks omitted). Under 

Massachusetts law, only intended beneficiaries, not incidental beneficiaries, 

have standing to enforce a contract to which they are not a party. Harvard 

Law Sch. Coal. for Civil Rights v. President & Fellows of Harvard Coll., 413 

Mass. 66, 71 (1992); see also Anderson v. Fox Hill Village Homeowners 

Corp., 424 Mass. 365, 367 (1997) (lessee assumed no contractual 

responsibilities expressly benefiting employees on the premises). 

6 BEH's quasi-contractual (promissory estoppel) claim cites no alleged 

statements by the NAC pr~mising it (or anyone else) to do anything other 

than consider BEH's application for an FBO permit. While BEH correctly 

observes that the NAC Standards required it to invest substantially in 

infrastructure and operations at the airport before its application would even 

be considered, there is no suggestion that there was ever any explicit promise 

that an FBO permit would be forthcoming as a result. 

11 
Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 12 of 21 

BEH has not alleged that any language in the prime lease, other than a 

boilerplate contemplation of the possibility of future sublease agreements, 

bestowed third-party beneficiary status on BEH (or any other past or future 

sublessee).? BEH's bald and unsupported assertion that it is a third-party 

beneficiary of the prime lease, as set out in the Amended Complaint and the 

Omnibus Opposition, is a mouthful of empty rhetoric "not entitled to be 

assumed true." Iqbal, 556 U.S. at 681. See Cumis Ins. Soc'y, Inc. v. BJ's 

Wholesale Club, Inc., 455 Mass. 458, 467 (2009) (rejecting third-party 

beneficiary claim where plaintiffs "assert[ed] merely the conclusion that they 

were third-party beneficiaries to the defendants' agreements without setting 

forth any factual allegations concerning the defendants' intentions."). 

Defendants also seek dismissal of BEH's claim under 42 U.S.C. § 1983 

that its Fourteenth Amendment right to procedural and substantive due 

process was violated by the handling of its FBO application. "In procedural 

due process claims, the deprivation by state action of a constitutionally 

7 BEH does not suggest that anything in the generally tenant-friendly 

Massachusetts statutes operates to confer automatic third-party beneficiary 

status on a sublessee. Any such rule would likely have the effect of narrowing 

a tenant's rights by causing landlords to flatly ban or heavily tax the right of 

the tenant to sublet all or any part of its leasehold. Courts are, for the most 

part, reciprocally consistent in rejecting landlords' claims of third-party 

beneficiary status under subleases. See, e.g., Osprey-Troy Officentre, LLC 

v. World Alliance Fin. Corp., 502 F. App'x 455, 459 (6th Cir. 2012); Hibbs v. 

K-Mart Corp., 870 F.2d 435, 441 (8th Cir. 1989). 

12 
Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 13 of 21 

protected interest in 'life, liberty or property' is not in itself unconstitutional; 

what is unconstitutional is the deprivation of such an interest without due 

process of law." Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis in 

original). In order to substantiate a due process claim based on the 

deprivation of a property interest, "[t]he plaintiff must identify a legitimate 

claim of entitlement to the property in question . . . . For this purpose, an 

abstract need or desire or a unilateral expectation are not sufficient to 

cement a constitutionally protected interest." Davis v. Coakley, 802 F.3d 

128, 134 (1st Cir. 2015) (internal citations and quotation marks omitted). In 

the First Circuit, the burden on a plaintiff to establish a violation of 

procedural due process in a commercial land-use context is high. 

Every appeal by a disappointed developer from an adverse ruling 

by a local Massachusetts planning board necessarily involves 

some claim that the board exceeded, abused or "distorted" its 

legal authority in some manner, often for some allegedly 

perverse (from the developer's point of view) reason. It is not 

enough simply to give these state law claims constitutional labels 

such as "due process" or "equal protection" in order to raise a 

substantial federal question under section 1983. 

Creative Env'ts, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir. 1982). 

BEH does not challenge the adequacy of the pre-deprivation permit 

procedures per se; instead, BEH maintains that the NAC gave them short 

shrift. Assuming arguendo that BEH has a protected property interest in an 

FBO permit, Massachusetts lmy clearly provides an adequate post13 
Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 14 of 21 

deprivation remedy for procedural abuses (namely, certiorari appeal to the 

Superior Court, with the right to further appellate review). See Mass Gen. 

Laws. ch. 90, § 45; see also Nestor Colon Medina & Sucesores, Inc. v. 

Custodio, 964 F.2d 32, 40 (1st Cir. 1992) (even where state actors "violate 

and abuse" pre-deprivation procedures, an adequate post-deprivation 

remedy precludes a due process claim). 

The substantive due process facet of BEH's claim fares no better. 

"[S]ubstantive due process imposes absolute limits on State action, 

irrespective of what procedures are applied." Mig a v .. City of Holyoke, 398 

Mass. 343, 354 (1986). Substantive due process claims unanchored in 

fundamental rights and liberties are, however, generally disfavored. Nestor 

Colon, 964 F.2d at 45; see also Collins v. City of Harker Heights, 503 U.S. 

115, 125 (1992) ("As a general matter, [we have] always been reluctant to 

expand the concept of substantive due process because guideposts for 

responsible decisionmaking in this uncharted area are scarce and openended."). 8 In matters of municipal governance, the First Circuit has set an 

extremely high threshold for substantive due process claims, leaving "the 

8 The Supreme Court has largely restricted substantive due process 

claims to a narrow band of fundamental rights. See Albright v. Oliver, 510 

U.S. 266, 272 (1994) ("The protections of substantive due process have for 

the most part been accorded to matters relating to marriage, family, 

procreation, and the right to bodily integrity."). 

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door slightly ajar for federal relief [only] in truly horrendous situations." 

Nestor Colon, 964 F.2d at 45. As a result, a claim will not lie for a "run-ofthe-mill dispute between a developer and a town official," but attaches only 

in a truly "conscience-shocking situation." Mongeau v. City of 

Marlborough, 492 F.3d 14, 19 (1st Cir. 2007). In support of its substantive 

due process claim, BEH recites in the most generic of terms defendants' 

"manipulation and abuse of their authority in order to delay, deter and injure 

BEH." Pl.'s Opp'n at 34. No further precision is given. In sum, the Amended 

Complaint fails utterly to allege the kind of "truly horrendous," conscienceshocking behavior that gives rise to a substantive due process claim. Nestor 

Colon, 96,4 F.2d at 45· 

Defendants next seek dismissal of BEH's "class of one" equal 

protection claim, as they allege that BEH fails to proffer more than a 

conclusory allegation that it is similarly situated to FlightLevel, the only 

relevant potential comparator. Plaintiffs invoking equal protection in a 

commercial land-use dispute have a significant burden, even during the early 

stages of litigation, to identify a comparator or comparators similarly 

situated in all relevant respects. "The 'similarly situated"' requirement must 

be enforced with particular rigor in the land-use context because ... [land 

use] decisions 'will often, perhaps almost always, treat one landowner 

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differently from another."' Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir. 

2007), quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 565 (2ooo) 

(Breyer, J., concurring). BEH's Amended Complaint simply states that both 

BEH and FlightLevel were commercial tenants at Norwood Airport seeking 

to do business as FBOs (in other words, the two companies were competitors, 

not necessarily comparators).9 Even at the pleading stage, conclusory and 

unsupported statements that a comparator was similarly situated justifies a 

dismissal. 10 While "the degree of similarity required may be relaxed 

somewhat" where "the plaintiff has presented evidence of personal malice 

and 'bad faith' retaliation," Cordi-Allen, 494 F.3d at 251 n-4, no evidence of 

9 To the extent that further facts regarding the supposed similarity 

between the two companies are alleged in the Amended Complaint, they 

suggest that the companies are not in fact similarly situated (FlightLevel, 

unlike BEH, already controls over 500,000 square feet of ramp space at 

Norwood Airport; BEH is concededly a new market entrant, while 

FlightLevel has years of experience as an FBO at Norwood Airport). 

10 See Freeman v. Town of Hudson, 714 F.3d 29, 39-40 (1st Cir. 2013) 

(plaintiffs "failure to do more than conclusorily state that the [plaintiffs] 

were ... similarly situated to ... [alleged comparators] is insufficient to 

survive the defendants' motion to dismiss"); see also Najas Realty, LLC v. 

Seekonk Water Dist., 821 F.3d 134, 144 (1st Cir. 2016) (dismissing equal 

protection claim by managers of "land use project," where plaintiffs failed to 

allege that comparator projects were similarly situated in terms of location, 

age, and degree of environmental sensitivity). 

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malice on the part of any of the individual defendants is offered or imputed 

to the NAC by BEH. Hence, the 1

claim fails even under a "relaxed" test. Id. 11 

While to this point BEH's constitutional claims fail to gain traction, 

there is more heft to the assertion that defendants retaliated against BEH to 

punish it for the exercise of its First Amendment rights. Specifically, BEH 

contends: (1) that the NAC tabled consideration of its application for an FBO 

permit in response to its filing of a complaint with the FAA; (2) that the NAC 

refused to issue the permit, in part, because BEH publicly litigated the 

dispute in the press; and (3) that the NAC denied hearings on BEH's 

application in retaliation for BEH filing a public records lawsuit. Pl.'s Opp'n 

at 22-26. With respect to this claim, BEH has alleged facts that, if proven 

true, plausibly suggest that the NAC took adverse action against it in 

response to the exercise of three distinct, constitutionally protected 

activities. The defendants' motion to dismiss Count VII will therefore be 

denied. 

Defendants finally seek to dismiss BEH's claim under the MCRA that 

they have interfered with BEH's right to "use, enjoy and improve its 

n The Amended Com plaint makes a passing reference to a hearsay 

statement in which Maguire is said to have referred to one of BEH's 

principals as a "rich Jew." Am. Compl. ~ 150. No attempt, however, is made 

to show that anti-Semitic bias infected the NAC's decision making process. 

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property" by means of "threats, intimidation, or coercion" intended to force 

BEH to withdraw its FBO application. Am. Com pl. ~~ 241-243. For purposes 

of the MCRA, "a '[t]hreat' ... involves the intentional exertion of pressure to 

make another fearful or apprehensive of injury or harm .... 'Intimidation' 

involves putting in fear for the purpose of compelling or deterring conduct .. 

. . ['Coercion' involves] 'the application to another of such force, either 

physical or moral, as to constrain [a person] to do against his will something 

he would not otherwise have done."' Planned Parenthood League of 

Massachusetts, Inc. u. Blake, 417 Mass. 467, 474 (1994). While most cases 

decided under the MCRA involve a factual element of physical confrontation 

or force, "in certain circumstances, economic coercion, standing alone, may 

be actionable under the act." Buster v. George W. Moore, Inc., 438 Mass. 

635, 648 (2003). See Redgrave v. Boston Symphony Orchestra, Inc., 399 

Mass. 93, 95 (1987) (third-party threats leading to the loss of a vested 

contractual right). 

The one case of some potential help to BEH is Kennie v. Nat'[ Res. Dep't 

of Dennis, 451 Mass. 754, 762-763 (2008). In Kennie, plaintiffs had sought 

a permit to build a dock along their riverfront property. They alleged that 

when they produced a favorable survey indicating that the dock would have 

a limited environmental impact on the local shellfish population, the town's 

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shellfish constable stated that he would do whatever it took to block the 

construction of the dock, and that he would "take care of' the plaintiffs' 

environmental survey. Subsequently, the constable surreptitiously planted 

additional shellfish in the water near the site of the proposed dock to skew 

the results of a subsequent impact survey. Id. at 756-757. Convinced that 

pursing a permit would be futile in light of the constable's opposition, the 

plaintiffs abandoned the application. The SJC, in overturning a grant of 

summary judgment to defendants, agreed that the mere denial of a land-use 

permit by local officials could not give rise to a constitutional deprivation, as 

the law gave plaintiffs no entitlement to the permit. I d. at 761-762. However, 

within the "distinct limits" of Kennie, plaintiffs had made a plausible showing 

that the constable's threats and his sabotage of the environmental survey 

amounted to an interference with an "interest in the land on which they had 

a constitutionally protected right to make improvements." Id. at 762. This 

was all the more the case where the constable himself was not a decision 

maker with respect to the permit, but a third-party interloper attempting to 

meddle in the permit-granting process. I d. at 756. 

In contrast with Kennie, here there is no showing that the 

commissioner defendants have done anything more than refuse to act 

affirmatively on BEH's application for an FOB permit. "Adverse 

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administrative action, at least when not part of a scheme of harassment, does 

not amount to 'threats, intimidation or coercion."' Smith v. Longmeadow, 

29 Mass. App. Ct. 599, 603 (1990). See also Roslindale Motor Sales7 Inc. v. 

Police Comm'r of Boston7 405 Mass. 79, 82 (1989) (frustrated permit 

applicant could show no constitutional deprivation of a property interest 

absent a legitimate claim of entitlement to the permit's issuance); K. 

Hovnanian at Taunton7 Inc. v. Taunton, 37 Mass. App. Ct. 639, 646 & n.u 

(1994) (same). 12 

ORDER 

For the foregoing reasons, the defendants' Motion to Dismiss is 

ALLOWED as to Counts I, II, III, IV, V, VI, VIII, IX, X, XI, and XII, and is 

DENIED as to Count VII. Within fourteen (14) days of the date of the Order, 

the parties will submit a joint proposal for discovery directed to the surviving 

retaliation claim. 

12 BEH points to the NAC's tabling of its permit application, ostensibly 

with the aim of forcing it to withdraw its FAA complaint, as an example of 

coercive interference with its property rights. While perhaps relevant to 

BEH's retaliation claim, because BEH had no entitlement to the permit itself, 

no property right is implicated by the deferral. BEH's further claims that the 

NAC conspired with FlightLevel to place barriers blocking access to its 

hangar gate, and to cause baseless criminal charges to be brought against it 

after a court granted BEH a preliminary injunction mandating their removal, 

while possibly relevant to a showing of a pattern of retaliation against BEH 

for its exercise of First Amendment rights, but is not plausibly shown to be 

connected to the NAC's processing of BEH's permit application. 

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SO ORDERED. 

Is/ Richard G. Stearns 

UNITED STATES DISTRICT JUDGE 

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