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In Re: Air Crash Near Rio Grande Puerto Rico On December 3

January 13, 2012

IN RE: AIR CRASH NEAR RIO GRANDE PUERTO RICO ON DECEMBER 3, 2008


The opinion of the court was delivered by: Kenneth A. Marra United States District Judge

THIS DOCUMENT RELATES TO:

OPINION AND ORDER

This cause is before the Court upon Plaintiffs Alexander Kent Clapp and Jason Clapp's Motion for Partial Summary Judgment (DE 19 in case no. 11-md-02246). The motion is fully briefed and ripe for review. The Court has carefully considered the motion and is otherwise fully advised in the premises.

I. Background

The facts, as culled from exhibits and the Court record, and reasonably inferred therefrom in a light most favorable to the non-moving party, for the purpose of this motion, are as follows:*fn1

The instant action arises from an airplane crash that occurred near Rio Grande, Puerto Rico on December 3, 2008. The aircraft, which was operated by Websta's Aviation Services, Inc. ("Websta's") and Ramo, LLC ("Ramo"), among others, crashed into a mountain, killing all aboard. (First Am. Compl. ¶ 18; DE 45-1.) Among those killed were Plaintiffs' decedent, Kent W. Clapp, and his traveling companion, Tracy Turner. (Id. at ¶ 19.)

In the instant action, Plaintiffs bring claims for wrongful death and survivor damages against Websta's and Ramo, among others. (Id. at ¶ ¶ 29-46.) Plaintiffs also bring claims for fraudulent transfer. (Id. at ¶ ¶ 47-57.) In connection with the fraudulent transfer claim, Plaintiffs allege that on December 19, 2008, two weeks after the fatal accident and while on notice of potential claims arising from it, Websta's transferred ownership of five aircraft to Ramo; that the aircraft were assets of Websta's within the meaning of Florida Statutes § 726.102(2); that Ramo was an affiliate of Websta's within the meaning of Florida Statutes § 726.102(1)(d) in that Ramo controlled substantially all of Websta's assets; that as an affiliate of Websta's, Ramo was also an insider pursuant to Florida Statutes § 726.102(7)(d); that Websta's did not receive reasonably equivalent value from Ramo for the transfer of assets; and that Ramo now holds the only assets formerly owned by Websta's that Plaintiffs may draw upon for payment when their wrongful death and survivor claims against Websta's are liquidated. (Id. at ¶¶ 20-28.) Based on these allegations, Plaintiffs allege that the transfer of assets from Websta's to Ramo was fraudulent per se under Florida Statutes § 726.106(1) and fraudulent by implication under Florida Statutes § 726.105(1)(a), and seek all damages and relief recoverable for said conduct. (Id. at ¶ ¶ 47-57.)

On October 30, 2009, the estate of Tracy Turner commenced the action styled Turner v. Ramo, LLC, case number 9:09-cv-81609-KAM (the "Turner Action") in the United States District Court for the Southern District of Florida. (Case no. 9:09-cv-81609-KAM, DE 1.) In the Turner action, the Turner Estate alleged that on December 3, 2008, its decedent, Tracy Turner, was a passenger on a chartered aircraft operated by Websta's when the aircraft slammed into a mountain while en route to San Juan, Puerto Rico, killing all aboard, and that as a result Websta is liable to the estate for damages. (Complaint for Fraudulent Transfer and Request for Preliminary Injunction, Turner Action, hereinafter, "Turner Compl." ¶¶ 11-20.)

The Turner Estate alleged that on December 19, 2008, two weeks after the fatal accident, and while on notice of potential claims arising from it, Websta's transferred ownership of five aircraft to Ramo; that the aircraft were assets of Websta's within the meaning of Florida Statutes § 726.102(2); that Ramo was an affiliate of Websta's within the meaning of Florida Statutes § 726.102(1)(d) in that Ramo controlled substantially all of Websta's assets; that as an affilate of Websta's, Ramo was also an insider pursuant to Florida Statutes § 726.102(7)(d); that Websta's did not receive reasonably equivalent value from Ramo for the transfer of assets; and that Ramo now holds the only assets formerly owned by Websta's that plaintiffs may draw upon for payment when their wrongful death and survivor claims against Websta's are liquidated. (Turner Compl. ¶¶ 25-33.) On August 4, 2011, the Court entered its Findings of Fact and Conclusions of Law.*fn2 (DE 140, case number 9:09-cv-81609-KAM.)

Plaintiffs now move for summary judgment on the basis of collateral estoppel. Specifically, Plaintiffs contend the issues in the Turner action, based on the Florida's Uniform Fraudulent Transfer Act ("FUFTA"), are "identical to those presented in the Clapps' FUFTA claims," "have been fully litigated and no legitimate interest would be served for expending judicial resources on a second trial of these claims." For that reason, Plaintiffs seek partial summary judgment, on the basis of collateral estoppel, precluding Ramo from relitigating any issue that was a critical and necessary part of the Court's judgment in the Turner FUFTA. (DE 21 at 2-3.) In response, Defendants state that it is "indisputable" that the Clapps knew of and collaborated on the Turner FUFTA action and therefore should have joined in the Turner action against Ramo. On that basis, Defendants claim that the application of collateral estoppel would be "substantially unfair" to Ramo. (DE 51 at 5.)

II. Summary Judgment Standard

The Court may grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and any doubts in this regard should be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323. To discharge this burden, the movant must point out to the Court that there is an absence of evidence to support the nonmoving party's case. Id. at 325.

After the movant has met its burden under Rule 56(a), the burden of production shifts and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electronic Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record . . . or showing that the materials cited do not establish the absence or presence of a ...


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