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 II0 ONE MONARCH PLACE SUITE I310R SPRINGFIELD, MA 01144 TEL: 617-479-5000 FAX: 617-479-6469 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 ofthe ChiefCounsel 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 andNorwoodAirport Commission; DocketNo. 16-15-05 Respondent's Motion (or Leave to File a Third SupplementalRebuttal
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. Ifleave 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 ofthe lawsuit filed by the Complainant, Boston Executive

1 For purposes ofconsistency, 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 ofthe ChiefCounsel 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 ofBoston 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 oftwelve (12) separate claims? Ofparticular 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 ofthis decision in the Federal Lawsuit is to dismiss eleven (11) ofthe twelve (12) claims asserted by BEH in the Federal Lawsuit. This dismissal is notable because ofthe overlap ofissues 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 ofaviation 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 ofthe 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 ofBEH and the Norwood Airport Commission).

• Counts II and III (Breach ofContract);

• Count IV (Detrimental Reliance);

• Counts V and VI (Alleged Violations of42 U.S.C. § 1983);

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

2 In their Motion for Leave to File a First Supplemental Rebuttal, the Respondents provided an overview ofthe 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 ofthe ChiefCounsel Attention: FAA Part 16 Docket Clerk AGC-600 Federal Aviation Administration September 2, 2016 Page 3

• Counts IX, X, XI, and XII (Alleged Violations ofFederal and Massachusetts Antitrust Laws). 3 In part, the Federal Court held that "no evidence ofmalice on the part ofany ofthe 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 ofexperience 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 ofConcord, N.C., FAA Docket No. 16-02-01 (Director's Determination, August 22, 2003); FlightLine Aviation, Inc. v. City ofShreveport 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) ofBEH'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 ofthe 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 of42 U.S.C. § 1983). This claim has not been adjudicated and is currently pending.MURPHY, HESSE, TOOMEY & LEHANE, LLP Attorneys At Law Office ofthe ChiefCounsel 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 ofNorwood, 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 ofSeptember 2016, a copy ofthe 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 ofthe ChiefCounsel 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-AWA-AGC-Part-16@faa.gov

945992vl Brandon H. Moss

# Exhibit 145Case 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, 

### etal. MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS FORFAILURE TO STATE ACLAIM 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 ofthe NAC. DefendantFrancisT. Maguire is the NorwoodAirport Manager. BEH alleges thattheAirport Commissioners andAirportManager Maguire, individually, and in their official capacity, have conspired with defendant FlightLevel Norwood, LLC (FlightLevel), theAirport's private fuel provider, to perpetuate FlightLevel's monopoly over the sale ofjet fuel atCase 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, andthe state andfederal antitrustlaws. 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 authorityis derivedfrom 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 ofTransportation (DOT) and the analog Massachusetts DOT. 1 To meet the requirements of the Grant Assurances,theNAC haspromulgatedits ownsetofGeneralRegulations and MinimumStandards (NAC Standards)governing airportoperations. Among other provisions, the NAC Standards commit the NAC to the promotion of fair competition among the Airport's commercial operators.

1Thefederal GrantAssurancesprovideinrelevantpartthattheAirport remain open "withoutunjust discriminationto 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 ofthe 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 atthe airportto 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).
2Case 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% ofthe Airport's available ramp space. For several years, BEH, which holds a general flight operations permit, has soughtto selljetfuel attheAirportincompetitionwithFlightLevel. The NAC Standards require an applicant for an FBO permit to make a good-faith capital investment in the Airport. To satisfythe requirement, BEH leased a 30,000 square foot plot at the Airport, on which it built a new hangar and undergroundfuel tanks. Despite the investment, the NAC has refusedto 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 protectthe production ofthat 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 thatthe NAC, inretaliationfor BEH's filing oftwo complaints

3Case 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 barriersto block access to BEH's hangargates, andthatwhen BEH obtained
a preliminaryinjunction orderingthe barriers removed, caused the Town of Norwoodto file baseless criminal charges against it. BEH initiatedthis actioninNorfolk SuperiorCourtonOctober 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 respondedbyfiling thisAmendedComplaint seeking a declaratoryjudgment determining the respective rights and obligations of BEH and the NAC (Count I). The Amended Complaintfurther alleges breach ofcontractbythe NAC (Counts II and III); promissoryestoppel (detrimentalreliance) 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 ofBEH's righttoprocedural and substantive due process, violationofitsrightto equal protection under the law, and abridgment of its First Amendment rights

4Case 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 (CountVIII); andfinally, claims under the state and federal antitrust laws (Counts IX, X, XI, andXII). Defendants renewedtheir motionto dismiss on May 6, 2016. DISCUSSION To survive a motion to dismiss pursuantto 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]hreadbarerecitals oftheelements ofa cause ofaction, supportedbymere conclusory statements, do not suffice." Id. 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
5Case 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 monopolypublic service." 

### City of Lafayette v. LouisianaPower&

### LightCo., 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 

### RectrixAerodrome 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 plaintiffaircarrier, operating outofa municipal airport where it rented space, sought to expand its business by sellingjetfuel. This court found that defendant Barnstable Airport, which had refused to issue Rectrix the necessaryFBO permit, was entitledto immunityunder

### 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 ofmunicipal airports," Mass. Gen. Laws ch. 90, § 51J; to "determine the charges or rentals for the use ofany properties, facilities, installations, landing fees, concessions, uses and services," 

### id. § 51H, and to
6Case 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 ofAppeals, like this court, readthis statutorylanguage as broadly reflective of the Legislature's "purpose to allow the suppression of competition." Id. The First Circuit also notedthatthe 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 ofa private corporation, stopped short of an express delegation ofthe authority to act anticompetitively by failingthe clear-articulationtest. Id. at 1011-1012. "[W]hena State'sposition 'is one of mere 

### neutrality respecting the municipal actions challenged as
7Case 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, theprinciple of

### expresio unius estexclusio alterius. As the First Circuit emphasized in

### Rectrix, [T]he Massachusetts statute involved here goes out ofits wayto include a section specifically prohibiting exclusive contracts relatedtotransportationto andfromtheairport, 

### id. §51M, which surely suggests that the legislature did perceive that the airport might otherwise employ exclusivity restrictions (and chose to ban onlythis narrow set). 610 F.3d at 13. Adhering to this reasoning, I am firmly ofthe 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 ofstate action immunity.

2 This conviction is reinforcedbyJustice Sotomayor'sreliance on 

### Town of Hallie, supra, and 

### Columbia v. Omni OutdoorAdvertising, Inc., 499 U.S. 365 (1991), as illustrations ofcases meetingthe clear-articulationtest, 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 8Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 9 of 21

Defendants move to dismiss Counts II, III, and IV ofBEH's Amended Complaint, all ofwhich soundincontract, onthegroundsthatBEH hasfailed 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, SwiftAviation Services, Inc. (Swift)4withtheconsentofthe NAC, established
an enforceable bilateral contractual relationship between it andthe NAC. Legislature's explicit decision to preserve competition m the airport transportation services sector.
3The defendants also askthe courtto dismissthe declaratoryjudgment Count I ofthe Amended Complaint. Ordinarily, declaratoryjudgment is a means ofdeterminingthe parties' rights so as to 

### avoidimpending litigation. 

### See, e.g., Dist.Attorney for the SuffolkDist. v. Watson, 381 Mass. 648, 659- 660 (1980). In this case, litigation has alreadybegun, and the reliefsought 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'sAmended Complaint. 

### Ernst& 

### Young 

### v. DepositorsEcon. 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 NorwoodAirport,

### Mayer v. 

### BostonMetro.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 subleaseto Swift, to which BMAandthe NAC bothassented. 

### Id. In 2011, Swift assigned its interest to BEH, again with the consent of BMA and the NAC. 9Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 10 of 21

BEH's argument fails as a matter oflaw. In Massachusetts, as in the
common law, no privity ofcontract (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 propertyto a sublessee, the sublessee acquires a privityofestate aswell as contract,therebyreleasingthe 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 ofNorwood, through the NAC (the landlord or prime lessor), agreed to lease the airport propertyto 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 itto BEH. However, because BMA (the prime lessee) did not at anypoint assign the entirety ofits interest inthe sublease to any partyin the chain ofsuccession, BMA remains in privity ofcontract and estate with the NAC. As none of the subsequent transactions between the successive

s Hence, the anti-assignment clauses found in manyleases.
10Case 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) betweenthe NAC and BEH to bebreached. 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 [betweentheNAC andBMA] showthatthepartiestothe contractclearlyand 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, onlyintendedbeneficiaries, notincidental beneficiaries, have standing to enforce a contract to which they are not a party. 

### Harvard LawSch. Coal.for CivilRights 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 expresslybenefiting employees onthe premises).

6 BEH's quasi-contractual (promissoryestoppel) 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 andoperations atthe airportbefore its applicationwouldeven beconsidered, there is no suggestionthattherewas everanyexplicitpromise that an FBO permitwouldbe forthcoming as a result. 11Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 12 of 21

BEH has not allegedthat anylanguage in the prime lease, otherthan a boilerplate contemplation ofthe possibility offuture sublease agreements, bestowed third-partybeneficiary status on BEH (or any other past or future sublessee).? BEH's bald and unsupported assertion that it is a third-party beneficiaryofthe prime lease, as set out in the Amended Complaint andthe 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 beneficiaryclaim whereplaintiffs "assert[ed] merelythe conclusionthatthey
were third-partybeneficiariesto the defendants' agreements without setting forth anyfactual allegations concerningthe defendants' intentions."). Defendants also seek dismissal ofBEH's claim under42 U.S.C. § 1983 that its Fourteenth Amendment right to procedural and substantive due process was violated bythe handling ofits 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-partybeneficiary statuson a sublessee. Any suchrule wouldlikelyhave the effect ofnarrowing a tenant's rights bycausing landlords to flatly ban or heavily tax the right of the tenant to sublet all or anypart ofits 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. WorldAllianceFin. Corp., 502 F. App'x 455, 459 (6thCir. 2012); 

### Hibbs v. K-Mart Corp., 870 F.2d 435, 441 (8th Cir. 1989). 12Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 13 of 21 protectedinterestin 'life, libertyorproperty'is notinitselfunconstitutional; 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 ofa property interest, "[t]he plaintiffmust identify a legitimate claim ofentitlement 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 contextis high. Everyappealbya disappointeddeveloperfrom anadverse 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 simplyto give these statelawclaims constitutionallabels 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 protectedpropertyinterestin an FBO permit, Massachusetts lmy clearly provides an adequate post13Case 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 remedyprecludes 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 ofwhat procedures are applied." 

### Miga 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 ofmunicipal 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 narrowband offundamental rights. 

### SeeAlbright v. Oliver, 510 U.S. 266, 272 (1994) ("The protections ofsubstantive due process have for the most part been accorded to matters relating to marriage, family, procreation, andthe right to bodilyintegrity."). 14Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 15 of 21
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 ofits substantive due process claim, BEH recites in the most generic of terms defendants' "manipulationandabuse oftheirauthorityin orderto delay, deterandinjure BEH." Pl.'s Opp'n at34. No furtherprecisionis given. Insum, theAmended Complaint fails utterlyto allege the kind of "trulyhorrendous," conscienceshocking behaviorthat gives rise to a substantive due process claim. 

### Nestor Colon, 96,4 F.2d at45· 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 commercialland-usedisputehave a significantburden, even duringthe 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
15Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 16 of 21 differentlyfrom another."' 

### Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir. 2007), quoting 

### Vill. ofWillowbrook v. Olech, 528 U.S. 562, 565 (2ooo) (Breyer, J., concurring). BEH'sAmended Complaint simplystates thatboth BEH and FlightLevel were commercial tenants at Norwood Airport seeking todobusiness as FBOs (inotherwords, thetwo companieswere competitors, not necessarily comparators).9 Even at the pleading stage, conclusory and unsupported statements that a comparator was similarly situatedjustifies a dismissal. 10 While "the degree of similarity required may be relaxed somewhat" where "the plaintiffhas presented evidence ofpersonal 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 ofexperience as an FBO at NorwoodAirport).

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 bymanagers of"landuse project," where plaintiffs failed to allege that comparator projects were similarly situated in terms oflocation, age, and degree ofenvironmental sensitivity). 16Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 17 of 21

malice on the part ofany ofthe individual defendants is offered or imputed to the NAC byBEH. Hence, the 1claim 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 assertionthat defendants retaliated against BEH to punish it for the exercise ofits First Amendment rights. Specifically, BEH contends: (1) thatthe NAC tabledconsideration ofits application for an FBO permitin response to its filing ofa complaintwiththe FAA; (2) thatthe 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 inretaliation for BEH filing a public records lawsuit. Pl.'s Opp'n at 22-26. With respect to this claim, BEH has alleged facts that, ifproven 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 Complaint makes a passing reference to a hearsay statement in which Maguire is said to have referred to one of BEH's principals as a "richJew." Am. Compl.

**~** 150. No attempt, however, is made to showthat anti-Semiticbias infectedthe NAC's decision making process. 17Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 18 of 21 property" by means of"threats, intimidation, or coercion" intended to force BEHtowithdrawits FBO application. Am. Compl.

**~~** 241-243. Forpurposes ofthe MCRA, "a '[t]hreat'
... involves the intentional exertion ofpressureto make another fearful or apprehensive ofinjury or harm
.... 'Intimidation' involves puttingin fear for the purpose ofcompelling or deterring conduct
..

. . ['Coercion' involves] 'the application to another of such force, either physical or moral, as to constrain [a person] to do againsthis 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 underthe MCRAinvolve a factual element ofphysical 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). Theonecaseofsomepotentialhelpto BEHis

### 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 theyproduced a favorable survey indicating that the dock would have
a limited environmental impact onthe local shellfish population, the town's
18Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 19 of 21
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 ofthe proposed dock to skew the results ofa subsequent impact survey. Id. at 756-757. Convinced that pursing a permit would be futile in light ofthe constable's opposition, the plaintiffs abandoned the application. The SJC, in overturning a grant of summaryjudgmentto defendants, agreed thatthe mere denial ofa land-use permitbylocal officials could notgive rise to a constitutional deprivation, as the lawgave plaintiffs no entitlementtothepermit. Id. at761-762. However, withinthe "distinctlimits"of

### Kennie, plaintiffshadmade aplausible showing that the constable's threats and his sabotage of the environmental survey amountedto an interference with an "interestinthe land on which theyhad
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-partyinterloper attempting to meddle in the permit-grantingprocess. Id. at756. 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
19Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 20 of 21
administrative action, atleastwhennotpartofa scheme ofharassment, does not amount to 'threats, intimidation or coercion."' 

### Smith v. Longmeadow, 29 Mass. App. Ct. 599, 603 (1990). 

### See also RoslindaleMotor Sales7 Inc. v. Police Comm'r ofBoston7 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 CountVII. Within fourteen (14) days ofthe date ofthe Order, thepartieswill submitajointproposalfor discoverydirectedtothe surviving retaliation claim.

12BEH points to the NAC's tabling ofits permit application, ostensibly with the aim offorcing it to withdraw its FAA complaint, as an example of coercive interference with its property rights. While perhaps relevant to BEH's retaliationclaim, because BEHhadno entitlementtothepermititself, no propertyrightis implicatedbythe deferral. BEH's further claimsthatthe NAC conspired with FlightLevel to place barriers blocking access to its hangar gate, and to cause baseless criminal charges to be brought against it aftera courtgrantedBEH a preliminaryinjunctionmandatingtheirremoval, while possibly relevant to a showing ofa pattern ofretaliation against BEH for its exercise ofFirst Amendment rights, but is not plausibly shown to be connectedto the NAC's processing ofBEH's permit application. 20Case 1:15-cv-13647-RGS Document 38 Filed 07/06/16 Page 21 of 21

SO ORDERED. 

### Is/Richard G. Stearns UNITED STATES DISTRICTJUDGE

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