IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

THOSE AMAZING PERFORMERS, LLC, )

d/b/a Team AeroDynamix, )

)

Plaintiff, )

)

vs. ) NO. 2:15-CV-273

)

INTERNATIONAL COUNCIL OF AIR )

SHOWS, INC., )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on the Motion to Remand to

State Court, filed by the plaintiff, Those Amazing Performers, LLC,

d/b/a Team AeroDynamix, on August 17, 2015. (DE #13.) For the

reasons set forth below, the motion is DENIED. 

BACKGROUND

On or about June 17, 2015, the plaintiff, Those Amazing

Performers, LLC, d/b/a Team AeroDynamix (“AeroDynamix”), filed a

complaint in the Lake County Indiana Superior Court (45DO5

1506PL0048). (DE #4.) The complaint alleges claims of tortious

interference with a contract, defamation, defamation per se, libel,

and slander against the defendant, International Council of Air

Shows (“ICAS”). (Id. at 1.) AeroDynamix is described as a North
Carolina limited liability company with its principal place of

business in Gold Hill, North Carolina. (Id. at 1.) ICAS is

described as a not-for-profit corporation incorporated in the state

of Wisconsin with its principal place of business in Leesburg,

Virginia. (Id.) AeroDynamix, a formations aerobatic air show team

that performs choreographed flight routines in air shows throughout

the United States, consists of ten pilots,1

 each of whom is

required to hold special certificates issued by the Federal

Aviation Administration (“FAA”) called Statements of Aerobatic

Competency cards (“SAC cards”). (Id. at 2.) All ten AeroDynamix

pilots passed their reevaluation and received a valid SAC card for

2015. (Id.) The FAA implemented the Aerobatic Competency

Evaluation Program (“ACE program”) to regulate the issuance of SAC

cards, and it granted ICAS, a private corporation, the authority to

assist the FAA in evaluating pilots under the ACE program. (Id. at

2.) According to the complaint, several of the ICAS members

responsible for making recommendations to the FAA regarding the

issuance, reevaluation, or rescission of SAC cards are direct

competitors of AeroDynamix, which creates a conflict because those

individuals have a direct economic interest in preventing

AeroDynamix from performing in air shows across the country. (Id.

at 2-4.)

1

 The ten pilots are Mike Stewart, Greg Reese, John Hornbeck, Jerry

Morris, Tad Sargent, Tom Dubrouillet, Len Leggette, Danny Kight, Robert

Gibbons, and Martin Walker. (DE #4, p. 2.)

2
On March 29, 2015, two AeroDynamix pilots were involved in a

minor incident at an air show in Alabama. (Id. at 4.) A group of

ICAS members, including some members alleged to be direct

competitors of AeroDynamix, recommended that the FAA temporarily

revoke the SAC cards of all ten AeroDynamix pilots, and on April 8,

2015, a memorandum indicating as such was sent to the FAA

inspector. (Id.) On April 10, 2015, pursuant to the memorandum,

the FAA rescinded the SAC cards of all ten AeroDynamix pilots. 

(Id. at 5.) On April 29, 2015, nine of those pilots filed an

appeal of the FAA decision to the National Transportation Safety

Board; at the time of the filing of the complaint, the appeals were

still pending. (Id.) 

As a result of the rescission of the SAC cards, AeroDynamix

alleges that its pilots have been deprived of the ability to fly in

the following previously scheduled air shows:

• Thunder Over Louisville in Louisville, Kentucky, on April 18,

2015

• SUN ‘n FUN in Lakeland, Florida, from April 22 to April 26,

2015

• Good Neighbor Day Air Shoe in Atlanta, Georgia, on May 20,

2015

• Dover International Speedway in over, Delaware on May 31, 2015

• Rockford Air Show in Rockford, Illinois, on June 6 and June 7,

2015

(Id. at 5-6.) The complaint also indicates that the organizers of

the Cherry Festival Air Show in Traverse City, Michigan, “recently”

cancelled AeroDynamix’s performance. (Id. at 6.) According to

AeroDynamix, the unreasonable delay in re-issuing the SAC cards

further jeopardized the following scheduled air shows for 2015: 

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• Gary South Shore Air Show in Gary, Indian on July 11, 2015

• Milwaukee Air & Water Show in Milwaukee, Wisconsin, from July

25-26, 2015

• Wings over Halls in Halls, Tennessee, on August 8, 2015

• Chicago Air & Water Show in Chicago, Illinois, from August 15-

16, 2015

• Lycoming County Balloonfest & Air Show in Williamsport,

Pennsylvania, on September 12, 2015

• Memphis Air Show in Memphis, Tenessee, from September 26-27,

2015

• Boshears Skyfest in Augusta, Georgia, from October 17-18, 2015

• Blue Angels Homecoming Air Show in Pensacola, Florida, from

November 7-8, 2015

• ICAS Convention in Ls Vegas, Nevada, from December 6-9, 2015

(Id.)

ICAS planned to release findings and recommendations from its

investigation into AeroDynamix on June 18, 2015;2 it is alleged

that those findings, which stem from a conflict of interest among

ICAS’s members who are direct competitors of AeroDynamix, were

designed to destroy AeroDynamix’s performances and severely and

irreparably damage its business reputation. (Id. at 6-7.) 

According to the complaint, ICAS intentionally sought to injure

AeroDynamix through its allegedly improper recommendation to the

FAA for the rescission of the pilots’ SAC cards, effectively

crippling its ability to perform air shows. (Id. at 7.)

AeroDynamix alleges that ICAS’s conduct interfered with the

contractual relationships of the organizers of the air shows

identified above, and it further alleges that ICAS’s statements,

documents, and memorandums – issued to the FAA and others with the

2

 According to the complaint, the findings were to be released on June

18, 2015, one day after the complaint was filed in state court; the matter was

not removed to this Court until July 17, 2015. (DE #4, p. 7; DE #2.)

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intent of damaging AeroDynamix’s reputation – were defamatory. 

(Id. at 8-21.) As such, AeroDynamix requests compensatory damages,

all applicable exemplary and/or punitive damages, attorney fees,

costs, and injunctive relief. (Id.)

On July 17, 2015, ICAS filed a notice of removal, stating its

basis for removal as diversity jurisdiction under 28 U.S.C. section

1332(a) and also pursuant to 28 U.S.C. section 1331 because the

claims allegedly involve issues subject to federal field

preemption. (DE #2.) As to diversity jurisdiction, the notice

lists the citizenship of each member of AeroDynamix and concludes

that, because AeroDynamix is a limited liability company organized

and existing under the laws of North Carolina with its principal

place of business there as well, AeroDynamix is a citizen of the

states of North Carolina, South Carolina, and Georgia. (Id. at 2-

3.) ICAS is described as a not-for-profit corporation incorporated

in the state of Wisconsin, with its principal place of business in

Virginia. The notice states that, based on the alleged contractual

interference with at least thirteen air shows, compensatory damages

alone are worth at least $104,000. (Id. at 3.) It arrives at this

number by noting that, upon information and belief, AeroDynamix is

paid at least $8,000 per show. (Id.) ICAS also points to the

allowance of punitive damages under Indiana law of up to the

greater of $50,000 or three times the amount of compensatory

damages awarded. (Id. at 4; Ind. Code 34-51-3-4.) Thus, it

states, in light of the fact that AeroDynamix has requested

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compensatory and punitive damages, there is a reasonable

probability that the amount in controversy exceeds $75,000

exclusive of costs and interest. (Id.) In addition to diversity

jurisdiction, the notice also states that, although the claims in

the complaint are pled as state common law claims, they involve

actions taken by ICAS in its role as appointed by the FAA related

to aerobatic aviation safety, and are thus subject to and barred by

federal field preemption. (Id.) 

On August 17, 2015, AeroDynamix filed the instant motion to

remand to state court, arguing that there is no diversity

jurisdiction because ICAS has failed to establish that the amount

in controversy at the time of removal exceeded $75,000. (DE #13 at

1.) It also argues that ICAS’s federal field preemption argument

has no merit because AeroDynamix’s claims arise from state tort

law. (Id. at 2.) ICAS filed its response to the motion to remand

on August 31, 2015, setting forth its arguments related to field

preemption (DE #17, pp. 4-20) and diversity jurisdiction (Id. at

20-25). In support of its contention that the amount in

controversy exceeds $75,000, ICAS has provided the affidavit of

John Cudahy (“Mr. Cudahy”), the president of ICAS, who indicates

that he has personal knowledge, based on his familiarity with the

air show industry, of the typical market rates for payment of

performance groups such as AeroDynamix. (DE #18-1, p. 1.) He

indicates that these types of groups are paid anywhere from $8,000

to $15,000 per show. (Id.) Mr. Cudahy also states that the annual

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profit to ICAS from the ACE program was $70,470 for FY 2015, and he

anticipates that this profit will remain the same or increase in

future years. (Id. at 2.) Accordingly, Mr. Cudahy estimates that

a potential injunction enjoining ICAS from communicating to the FAA

under the ACE program would likely cost ICAS in excess of $70,000

per year. (Id.) Plaintiff filed its reply in support of the

motion to remand on September 8, 2015, reiterating its position

that federal field preemption does not apply because ICAS has

misinterpreted the nature of AeroDynamix’s tort claims (DE #19, pp.

2-15) and arguing that ICAS did not meet its burden in

demonstrating that the amount in controversy has been satisfied

(Id. at 15-21). After being granted leave to do so, ICAS filed a

supplemental brief in opposition to AeroDynamix’s motion to remand

on October 5, 2015, arguing for the first time that this Court also

has jurisdiction pursuant to 29 U.S.C. section 1331 because ICAS

was acting as a federal officer and has a colorable federal defense

which makes removal proper under the federal officer removal

statute as set forth at 28 U.S.C. section 1442(a)(1). (DE #25.) 

AeroDynamix filed its response to the supplement on October 6,

2015. (DE #26.) Thus, the motion is ripe for adjudication. 

DISCUSSION

A case may be removed from state court to federal court if it

is based on statutorily permissible grounds and if it is timely.

Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004). 

7
See also 28 U.S.C. § 1441; 28 U.S.C. § 1446. The Seventh Circuit

has directed that, “[c]ourts should interpret the removal statute

narrowly and presume that the plaintiff may choose his or her

forum. Any doubt regarding jurisdiction should be resolved in

favor of the states, and the burden of establishing federal

jurisdiction falls on the party seeking removal.” Doe v.

Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993) (citations

omitted). The party seeking removal must demonstrate that removal

is proper. Boyd, 366 at 529. When challenged, the party seeking

federal jurisdiction bears the burden of proving by a preponderance

of the evidence that a case belongs in federal court. Meridian

Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540-43 (7th Cir. 2006).

 

Diversity Jurisdiction

A case may be properly removed from state court to federal

court on the basis of diversity jurisdiction. 28 U.S.C. § 1332. 

For diversity jurisdiction to exist, the parties are required to be

diverse of citizenship, and the matter in controversy must exceed

the sum or value of $75,000. 28 U.S.C. § 1332(a). Here, the

parties’ diversity of citizenship is not at issue. (DE #13, p. 1.) 

Rather, the dispute focuses on the amount in controversy. The

proponent of federal jurisdiction bears the burden of proof that a

claim meets the jurisdictional amount. Sadowski, 441 F.3d at 541. 

In satisfying this burden, a “party must do more than point to the

theoretical availability of certain categories of damages.” 

8
McMillian v. Sheraton Chicago Hotel & Towers, 567 F.3d 839, 844-45

(7th Cir. 2009) (internal quotations omitted). However, “[t]hat is

easier said than done when the plaintiff, the master of the

complaint, does not want to be in federal court and provides little

information about the value of her claims. In such a case, a

good-faith estimate of the stakes is acceptable if it is plausible

and supported by a preponderance of the evidence.” Oshana v.

Coca-Cola Co., 472 F.3d 506, 511 (7th Cir. 2006) (citing Rubel v.

Pfizer, Inc., 361 F.3d 1016, 1020 (7th Cir. 2004)). Once the

removing party has established the requisite amount in controversy,

the case must be remanded “only if it is legally certain that the

recovery (from the plaintiff’s perspective) or cost of complying

with the judgment (from the defendant’s) will be less than the

jurisdictional floor . . . .” LM Insurance Corp. v. Spaulding

Enterprises Inc., 533 F.3d 542, 547 (7th Cir. 2008). The Seventh

Circuit has emphasized that this “legal-certainty test sets the bar

high for excluding federal subject-matter jurisdiction.” Carroll

v. Stryker Corp., 658 F.3d 675, 681 (7th Cir. 2011). If a party

definitively wishes to prevent removal, he may stipulate to damages

not exceeding $75,000. Oshana, 472 F.3d at 511-12; see also In re

Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) (“Litigants who

want to prevent removal must file a binding stipulation or

affidavit with their complaints . . . .”) If a plaintiff does not

do so, “the inference arises that he thinks his claim may be worth

more.” Oshana, 472 F.3d at 512 (citation omitted).

9
In its motion to remand, AeroDynamix argues that ICAS’s notice

of removal contains only a “speculative statement” that the amount

in controversy could exceed $75,000 because it “simply attaches an

arbitrary monetary amount to each air show in which Team

AeroDynamix was prevented from performing” and that ICAS “simply

invented the values it discusses in its notice of removal.” In

response, ICAS has submitted the affidavit of Mr. Cudahy who stated

that he has personal knowledge, based on his familiarity with the

air show industry, of the typical market rates for payment of

performance groups such as AeroDynamix, which range from $8,000 to

$15,000 per show. ICAS notes that AeroDynamix has specifically

requested both compensatory as well as punitive damages (which may

be awarded at up to three times the amount of compensatory damages

awarded for the predicate tort), and, as such, the compensatory

damages would need only be in excess of $18,750 total (or $1,250

per identified contract) to reach the $75,000 threshold. Because

the typical market rate for performance groups per show is $8,000

at the low end of the range, ICAS argues that the minimum threshold

will be satisfied. 

The Court agrees with ICAS that it cannot be said with

certainty that AeroDynamix’s damages will not meet the threshold

amount. Although AeroDynamix has argued in its reply brief that

ICAS has failed to carry its burden in demonstrating that the

amount in controversy has been satisfied because it “simply

look[ed] to the allegations of the complaint and the defendant’s

10
belief regarding those allegations,” the Court disagrees. In

Kuhlman v. Walgreen Co., 2:10-CV-84, 2010 WL 1737849 (N.D. Ind.

Apr. 26, 2010), a case on which AeroDynamix heavily focuses, this

Court determined that the defendant’s reliance on the general

allegations of the plaintiff’s complaint was insufficient to

establish the requisite amount in controversy. Kuhlman,

2:10-CV-84, 2010 WL 1737849 at *4. The Court noted that the

complaint had only indicated that the plaintiff was seeking

“compensatory damages for injures ‘some of which are permanent,’

[and] ‘loss of earnings and of future earning’ due to a metal shelf

falling onto [the plaintiff]” Id. Other than a few terms of art

included in the complaint, the Court was “largely in the dark as to

the nature and extent of Plaintiff’s claimed injuries and required

treatment.” Id. 

The present case is distinguishable from Kuhlman in two

significant ways. First, AeroDynamix’s complaint is sufficiently

detailed with regard to its alleged damages. AeroDynamix alleges

that, as a result of ICAS’s defamatory transmissions and tortious

interference with its contracts, it was deprived of the ability to

fly in six air shows, with another nine air shows placed into

jeopardy. While it is true that numerical figures were not

included with each of the fifteen specifically identified

contracts, this is a far cry from generally alleging vague

“permanent injuries” or a “loss of earnings.” AeroDynamix did not

choose to reference harms from tortious interference generally. 

11
Rather, it painstakingly listed fifteen specific instances wherein

it was harmed contractually and requested compensatory and punitive

damages for each (and, this is to say nothing of the five separate

defamation counts). As noted by this Court, “[w]hile relying on

general allegations of a complaint is insufficient to establish

jurisdiction, reliance on specific allegations in a complaint can

be sufficient to satisfy a removing party’s burden.” Kuhlman,

2:10-CV-84, 2010 WL 1737849 at *3.

Which brings us to the second difference between the instant

case and Kuhlman. Here, in addition to pointing to the damages

described within the complaint, ICAS looked outside of the

pleadings and provided evidence to further quantify those

references. The Seventh Circuit has explicitly stated that, in

attempting to establish the amount in controversy, a defendant may

rely on calculations from the complaint’s allegations as well as

“introduc[e] evidence, in the form of affidavits from the

defendant’s employees or experts, about how much it would cost to

satisfy the plaintiff’s demands.” Sadowski, 441 F.3d at 541-42

(citing Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 447

(7th Cir. 2005); Rubel, 361 F.3d at 1018-19). That is exactly what

ICAS did. Mr. Cudahy’s affidavit provides the necessary link

towards establishing how much the allegations in the complaint are

worth. AeroDynamix argues that the affidavit “arbitrarily values”

its air show performances in a manner that is unacceptable for

establishing the amount in controversy. However, as noted above,

12
an affidavit by the defendant’s employee is an adequate method of

doing so. This is distinguishable from Kuhlman, where the Court

discounted the affidavit of the party’s attorney who had attempted

to “employ a sort of comparative analysis” by generally claiming

that, “compared to other cases with similar claims, the instant

allegations are enough to satisfy the amount in controversy.” 

Kuhlman, 2:10-CV-84, 2010 WL 1737849 at *4. In this case, Mr.

Cudahy has stated, based on his own personal knowledge of the

industry, that the typical market rates for performance groups such

as AeroDynamix range from $8,000 to $15,000 per performance. ICAS

is not attempting to use Mr. Cudahy’s affidavit to comparatively

analyze this case to other cases with similar claims; it is using

Mr. Cudahy’s figures to provide a valuation of the exact types of

contracts relevant to this particular case. AeroDynamix does not

dispute the factual assertions made by Mr. Cudahy or provide any

evidence of its own. It simply takes issue with ICAS’s general

methodology. But, for the reasons outlined above, this Court finds

ICAS’s methodology acceptable for providing a good-faith estimate

of the damages at stake. 

AeroDynamix also argues briefly that ICAS’s estimate is based

off of an improper measurement of damages because, under Indiana

law, recoverable damages are measured by lost profits, not lost

income. See e.g. Turbines, Inc. v. Thompson, 684 N.E.2d 254, 257-

58 (Ind. Ct. App. 1997). While this is true, ICAS is not using the

$8,000 to $15,000 figure to arrive at its jurisdictional threshold

13
total as AeroDynamix suggests; rather, it uses the extremely

conservative calculation of $1,250 per show, and then (as is

allowable) adds punitive damages of three times the amount of

compensatory damages.3 Based on Mr. Cudahy’s affidavit testimony

that typical market rates for performance groups such as

AeroDynamix are in the range of between $8,000 to $15,000, ICAS’s

estimate is both plausible and supported by a preponderance of the

evidence. See Oshana, 472 F.3d at 511. See also Columbus Med.

Servs. Org., LLC v. Liberty Healthcare Corp., 911 N.E.2d 85, 96

(Ind. Ct. App. 2009) (identifying tortious interference with a

contract as a tort where “all damages [that are] directly traceable

to the wrong and arising without an intervening agency are

recoverable” including lost profits; finding that, as to such

damages, there is “no requirement of any particular degree of

mathematical certainty in assessing damages, and where there is any

doubt as to the exact proof of damages, such uncertainty must be

resolved against the wrongdoer.”) (internal quotation marks and

citations omitted). 

Based on the foregoing, the Court finds that ICAS has

established the requisite amount in controversy by a preponderance

of the evidence, and it cannot be said with legal certainty that

AeroDynamix’s recovery will be less than the jurisdictional floor. 

3

 $1,250 per show x 15 shows = $18,750. $18,750 + (3 x $18,750) =

$75,000. Thus, Aerodynamix’s lost profits would need only be $0.01 over the

$1,250 per show figure that ICAS uses to establish the requisite

jurisdictional minimum. 

14
See LM Insurance Corp., 533 F.3d at 547. Therefore, ICAS’s removal

to federal court on the basis of diversity grounds was appropriate,

and subject matter jurisdiction exists in this case. Because

diversity jurisdiction exists, the Court need not address ICAS’s

additional arguments with regard to federal field preemption at

this time. 

CONCLUSION

For the reasons set forth above, the Motion to Remand to State

Court, filed by the plaintiff, Those Amazing Performers, LLC, d/b/a

Team AeroDynamix, on August 17, 2015 (DE #13), is DENIED. 

DATED: March 31, 2016 /s/RUDY LOZANO, Judge

United States District Court

15