United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge
Daniel McGraw and Susan McGraw filed suit against Superior
Aviation, LTD., Kubick Aviation Services, Inc., and QBE
Insurance Corp. asserting claims for compensatory and
punitive damages resulting from injuries suffered due to the
defendants' allegedly negligent repair and inspection of
Daniel McGraw's airplane. This Court has diversity
jurisdiction under 28 U.S.C. § 1332. Presently before
the Court are Kubick Aviation Services Inc.'s
(“Kubick”) motion for summary judgment and
Plaintiffs' 7(h) motion to amend the complaint. For the
reasons that follow, Kubick's motion for summary judgment
will be granted and Plaintiffs' motion to amend the
complaint will be denied.
entered into an Asset Purchase Agreement (“APA”)
with Superior Aviation, Ltd. (“Superior”) on
April 7, 2014. Kubick purchased nearly all of Superior's
assets for the purpose of expanding its current operations
and providing charter and other aviation services to the
the express terms of the APA, Kubick only purchased
Superior's assets, did not assume any of Superior's
liabilities, and “shall not be obligated for any
liabilities incurred by [Superior] during the operation of
[Superior's] business.” (ECF No. 31-1, pp. 2.)
Furthermore, a choice of law clause established that the
agreement was to be governed, construed, and enforced in
accordance with Michigan law. Plaintiffs contend the APA
provided in this case is incomplete as it does not include a
copy of the Operating Agreement referenced in Paragraph 5.2.
(Id. at pp. 3.) The asset purchase sale between
Kubick and Superior became final on April 18, 2014.
to the completion of the sale, Superior conducted an annual
inspection and performed maintenance and repairs on Daniel
McGraw's amateur-built Lancair airplane. All work was
completed by April 11, 2014-the day McGraw picked up the
plane from Superior's facility. The Superior technician
who performed the work, Alex Dupras, failed to update the
plane's logbooks. McGraw requested the logbooks when he
picked up his plane, but the lineman handing off the plane
did not know where they were. McGraw also called on at least
two other occasions in an unsuccessful attempt to retrieve
6, 2014 after approximately five hours of flight time,
McGraw's plane suffered a loss of engine power. McGraw
executed a forced landing in a field near Crivitz, Wisconsin.
He alleges he sustained severe injuries and that Superior
caused the accident by failing to reasonably and adequately
maintain his aircraft during the inspection, maintenance, and
repairs. At the time of the crash, McGraw was flying to
Kubick to discuss what should be done next on the plane.
the May 6, 2014 crash, Superior employee Timothy Spreen
contacted Dupras regarding the status of McGraw's
logbooks. By that time, Dupras was working for Kubick as he
was retained after the sale. Spreen requested that Dupras
update McGraw's logbook to reflect the work Dupras had
done on the plane. Dupras thereafter made entries in the
logbook reflecting the work he had previously performed but
then backdated the entries to April 10, 2014. The parties
dispute whether Dupras was acting on behalf of Kubick,
Superior, Spreen, or a combination of the three at the time
he updated the logbooks. The parties also dispute whether
Spreen (and thus Superior) maintained possession of the
logbooks following the asset sale or whether the logbooks
were stored in Superior's hanger-which Kubick took
control of after the sale.
and Susan McGraw filed this action on November 30, 2015. As
it relates to the pending motions before the Court,
Plaintiffs alleged that Kubick assumed all of Superior's
liabilities by virtue of being a continuation or
reincarnation of Superior. Plaintiffs also moved on November
30, 2016 to amend their complaint, alleging a negligence
cause of action against Kubick. Plaintiffs alleged Kubick
took possession of McGraw's logbooks after the sale,
negligently failed to provide McGraw with the logbooks, and
that McGraw suffered injury as a result. The matter is now
before the Court on Kubick's motion for summary judgment
and Plaintiffs' motion to amend the complaint.
STANDARD AND CHOICE OF LAW
motion for summary judgment should be granted “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). Where factual
disputes do exist, the non-movant's version of events is
accepted as true at this stage of the proceedings.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). The mere existence of some factual dispute does not
defeat a summary judgment motion; however, there must be a
genuine issue of material fact for the
cause of action to survive. Id. at 247-48.
“Material” means that the factual dispute must be
outcome-determinative under governing law. Contreras v.
City of Chicago, 119 F.3d 1286, 1291 (7th Cir. 1997).
Failure to support any essential element of a claim renders
all other facts immaterial. Celotex, 477 U.S. at
323. A “genuine” issue of material fact requires
specific and sufficient evidence that, if believed by a jury,
would actually support a verdict in the nonmovant's
favor. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at
249. Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
courts sitting in diversity cases must apply state
substantive laws and must look to the conflict of laws rules
of the forum state for the applicable substantive law.
See Klaxon Co. v. Stentor Elec. Mfg. Co., 312 U.S.
487, 496 (1941); Erie R.R. Co. v. Tompkins, 304 U.S.
64 (1938). In this case, the parties dispute whether
Wisconsin or Michigan law controls. The APA between Kubick
and Superior contains a choice of law clause specifying that
the agreement was to be governed, construed, and enforced in
accordance under Michigan law. Although Wisconsin generally
favors the enforcement of choice of law and forum selection
clauses, the presumption of enforcement is not absolute.
See Drinkwater v. Am. Family Mut. Ins. Co., 2006 WI
56, ¶¶ 25-31, 290 Wis.2d 642, 714 N.W.2d 568. These
provisions are entitled to less weight when third party
litigants are involved. See Gallenberg Equip. Inc., v.
Agromac Int'l, Inc., 10 F.Supp.2d 1050, 1052-53
(E.D. Wis. 1998) (citing Allstate Ins. Co. v. Hague,
449 U.S. 302, 328 (1981) (Stevens, J., concurring)). As
Plaintiffs were not a party to the APA between Kubick and
Superior, the choice of law provision is afforded less
“[a] court need resort to conflicts of laws rules only
when the parties point to a difference among state laws which
will make a difference to the outcome of the case.”
Ziolkowski v. Caterpillar, Inc., 800 F.Supp. 767,
778 (E.D. Wis. 1992), aff'd, 996 F.2d 1220 (7th
doctrine of corporate successor liability is substantially
similar under both Wisconsin and Michigan law and neither
party has identified any outcome determinative conflicts
between the laws. As a result, I will apply Wisconsin
substantive law. ...