United States District Court, D. New Mexico
THE ESTATE OF JAMES BUTLER, deceased, Through Personal Representative, LEE HUNT, and PEARL YEAST, James Butler's Wife, Plaintiffs
TRI-STATE CARE FLIGHT, LLC, and Estate of David Cavigneux, deceased, through Personal Representative VALERIE CAVIGNEAUX, Defendants.
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant Tri-State Care
Flight, LLC's Motion for Dismissal of Plaintiffs'
Claims Pursuant to Fed.R.Civ.P. 12(b)(1) and (6) [Doc. 15].
The Court, having considered the motion and relevant law,
finds that the motion is well-taken and will be granted.
matter arises out of a helicopter air ambulance crash on July
17, 2014, as a result of which James Butler, a paramedic
employed by Defendant Tri-State Care Flight, LLC
(“Tri-State”), was killed. The facts as alleged
in Plaintiffs' Complaint for Wrongful Death and Loss of
Consortium are as follows. The helicopter air ambulance
industry had high crash levels and resulting fatalities
between 2003 and 2008. Doc. 1-2 at ¶ 24. The Federal
Aviation Administration (“FAA”) began reviewing
the regulations governing the helicopter air ambulance
industry in 2003, and the FAA Modernization and Reform Act of
2012 became law in February 2012. Id. at
¶¶ 25, 27. In January 2014, the FAA published new
rules for helicopter safety. Id. at ¶ 28. In
developing the new rules, the FAA identified four common
factors in the helicopter air ambulance crashes that occurred
from 1991 through 2010: inadvertent flight into instrument
meteorological conditions; loss of control; controlled flight
into terrain; and night conditions. Id. at ¶
February 2014, the FAA announced new operational procedures
and equipment requirements (“New Operational
Requirements”) to address the increase in helicopter
air crash levels. Id. at ¶ 36. Although
originally intended to go into effect on April 21, 2014, the
effective date was extended, and as a result, the New
Operational Requirements did not become mandatory for
helicopter air ambulance companies until April 21, 2015,
after the crash at issue in this case occurred. Id.
at ¶¶ 39-40. Nonetheless, as of July 17, 2014, the
date of the crash, Tri-State was “aware of the safety
value” of the New Operational Requirements.
Id. at ¶ 47.
July 17, 2014, Tri-State “had an operational control
center (“OCC”) to communicate with pilots,
provide weather information, provide management control of
flight operations, monitor flights, and assist with preflight
risk information.” Id. at ¶ 48. Also as
of that date, Tri-State's OCC procedures were to: advise
a pilot tasked with taking a flight whether the flight
request had been refused or rejected [by] any other pilot or
operator; provide weather information to the pilot; provide
risk assessment of the proposed flight; require management
approval of acceptance of a flight that had previously been
refused or rejected because of weather; update the pilot and
medical team with weather information; and monitor progress
of the flight. Id. at ¶ 49.
those procedures, Tri-State's business model established
a financial incentive for management to encourage pilots to
accept flights in unsafe conditions. Id. at ¶
50. Specifically, Tri-State's management prohibited its
OCC dispatchers from discussing weather conditions with
pilots and from offering information to pilots about others
who had previously refused the flight request due to weather
conditions. Id. at ¶¶ 52-53. Whenever a
pilot refused or rejected a flight, the dispatcher would
record the rejection and the Tri-State owner and/or
management would be informed of the refusal. Id. at
¶¶ 54-55. When a flight request was refused, a
member of Tri-State management would contact the pilot by
private cell phone, rather than through the Tri-State phone
system which automatically recorded calls, to pressure the
pilot to accept the flight request. Id. at
¶¶ 56-57. Tri-State employees had been fired or
disciplined for refusing flights because of unsafe weather
conditions. Id. at ¶ 58. The culture at
Tri-State was for pilots to accept as many flights as
possible. Id. at ¶ 59.
against this backdrop that, at 12:18 a.m. on July 17, 2014, a
hospital in Tucumcari called Tri-State's dispatch center
to request a patient transfer from Tucumcari to a hospital in
Albuquerque. Id. at ¶ 60. Tri-State dispatch
contacted Tri-State's Flight Crew 21, based in Tucumcari,
to transport the patient. Id. at ¶ 64. Flight
Crew 21 refused the flight due to dangerous weather
conditions, after having earlier in the evening been forced
to land in a field and reroute to Amarillo rather than return
to Tucumcari because of a thunderstorm. Id. at
¶¶ 62-65. Tri-State's dispatch then contacted
Tri-State's Flight Crew 23, based in Roswell.
Id. at ¶ 66. Flight Crew 23 also refused the
flight because of dangerous weather. Id. at ¶
67. The westerly moving storm, which was slow moving,
included heavy downpours, and fog called “creepers,
” “was one of the more violent storms in eastern
New Mexico of the year.” Id. at ¶¶
68-71. That evening, both the Storm Prediction Center and
National Weather Service Office in Albuquerque predicted
severe thunderstorms, including damaging wind, fog, and hail,
for the relevant region. Id. at ¶¶ 72-75.
12:42 a.m., a Tri-State dispatcher called Tri-State's
Crew 5, based in Santa Fe, and spoke with pilot David
Cavigneaux to request that Crew 5 take the flight.
Id. at 76. The Tri-State dispatcher did not inform
Mr. Cavigneaux that two other crews had declined the flight
request due to weather conditions. Id. at
¶¶ 77, 80. Mr. Cavigneaux “immediately”
accepted the flight and, at 12:50 a.m., he and two
paramedics, Rebecca Serkey and Mr. Butler, departed from the
Santa Fe Municipal Airport toward Tucumcari. Id. at
¶ 78. There is no record that Mr. Cavigneaux or the
medical team received information about the weather before
taking the flight or were informed that two other crews,
including a crew that had just been in the Tucumcari area,
had refused the flight due to dangerous weather. Id.
at ¶¶ 79, 80. Mr. Cavigneaux “knew of and
experienced pressure by the owners and management of
Tri-State to take as many flights as possible and to take
undue risks in dangerous weather conditions.”
Id. at ¶ 81. At 1:42 a.m. on July 17, 2014, the
Crew 5 helicopter crashed into a mesa in rugged terrain,
killing everyone on board. Id. at ¶ 82.
on these allegations, Plaintiffs Lee Hunt, as Personal
Representative of James Butler's estate, and Pearl Yeast,
Mr. Butler's wife, commenced the instant action against
Tri-State and the Estate of David Cavigneaux in state court
on May 16, 2017. Doc. 1-2. Tri-State filed a Notice of
Removal to Federal Court on June 29, 2017. Doc. 1-3.
Plaintiffs subsequently filed a motion to remand, which was
denied. Docs. 45, 47. Defendant Estate of David Cavigneaux
was dismissed without prejudice on December 21, 2018. Doc.
47. The Complaint alleges claims against Tri-State of
wrongful death (Count I) and loss of consortium (Count II).
6, 2017, Tri-State filed the instant motion to dismiss
pursuant to Rules 12(b)(1) and (6) of the Federal Rules of
Civil Procedure. Doc. 15. On July 20, 2017, Plaintiffs filed
a response in opposition to Tri-State's motion. Doc. 24.
Tri-State filed a reply on August 3, 2017. Doc. 31.
12(b)(1) states that a party may present the defense of lack
of subject matter jurisdiction by motion. Fed.R.Civ.P.
12(b)(1). Motions to dismiss under Rule 12(b)(1)
“generally take one of two forms: (1) a facial attack
on the sufficiency of the complaint's allegations as to
subject matter jurisdiction; or (2) a challenge to the actual
facts upon which subject matter jurisdiction is based.”
Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.
2002). If the motion is brought as a facial one, the Court
must treat the plaintiff's allegations as true, just as
the Court would in a motion brought under Rule 12(b)(6).
Id. In reviewing a factual attack, a court has
“wide discretion to allow affidavits, other documents,
and a limited evidentiary hearing to resolve disputed
jurisdictional facts.” Holt v. United States,
46 F.3d 1000, 1003 (10th Cir. 1995). In the course of a
factual attack under Rule 12(b)(1), a court's reference
to evidence outside the pleadings does not convert the motion
into a Rule 56 motion. Id.
Rule 12(b)(6), a Court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a
Rule 12(b)(6) motion tests the sufficiency of the allegations
within the four corners of the complaint.” Mobley
v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). When
considering a Rule 12(b)(6) motion, the Court must accept as
true all well-pleaded factual allegations in the complaint,
view those allegations in the light most favorable to the
non-moving party, and draw all reasonable inferences in the
plaintiff's favor. Smith v. United States, 561
F.3d 1090, 1097 (10th Cir. 2009), cert. denied, 558
U.S. 1148 (2010).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
The “court's function on a Rule 12(b)(6) motion is
not to weigh potential evidence that the parties might
present at trial” but to determine whether the
pleadings have facial plausibility. Brokers' Choice
of America, Inc. v. NBC Universal, Inc., 757 F.3d 1125,
1135 (10th Cir. 2014). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. “Where a complaint pleads facts that are
‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility of entitlement to
relief.'” Id. (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 557 (2007)).
Court in Iqbal identified “two working
principles” in the context of a motion to dismiss. 556
U.S. at 678. First, “the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. Accordingly,
Rule 8 “does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”
Id. at 678-79. “Second, only a complaint that
states a plausible claim for relief survives a motion to
dismiss.” Id. at 679; see Twombly,
550 U.S. at 570 (holding that a plaintiff must
“nudge” her claims “across the line from
conceivable to plausible”). Accordingly, “where
the well-pleaded facts do not permit the court ...