Commercial Litigation and Arbitration

Internet Evidence — Website of Parent Can’t Be Attributed to Subsidiary under Rule 801(d)(2)(D) Absent Showing That Parent Was Sub’s Agent & Statements Were Made within the Scope of the Agency

Venegas v. Globa Aircraft Serv., Inc., 2016 U.S. Dist. LEXIS 130164 (D. Me. Sept. 23, 2016):

Before the Court is the Defendants' joint motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 (ECF No. 100). For the reasons stated below, the Defendants' joint motion for summary judgment is GRANTED IN PART and DENIED IN PART.


The following facts are based on the parties' joint statement of material facts, which contains all of the parties' statements of [*2]  facts and responses. At the summary judgment stage, I am obligated to view the facts in the light most favorable to the non-moving party and make all reasonable inferences in that party's favor. Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir. 2013).

The Parties


This class/collective action arises out of restoration work being performed on a Lockheed L-1649A Super Star airplane (the "Super Star") at the Lewiston-Auburn Municipal Airport in Auburn, Maine. The Plaintiffs are individuals who performed work on the Super Star project.

Defendant Lufthansa Technik North America Holding Corp.

Defendant Lufthansa Technik North America Holding Corp. ("LTNA") falls within the corporate structure of Deutsche Lufthansa AG ("Lufthansa"). Lufthansa "is a global aviation group with approximately 540 subsidiaries, which are organized into five primary business segments: Passenger Airline Group;1 Logistics; Maintenance, Repair, and Overhaul ("MRO"); Catering; and IT Services." Joint Statement of Material Facts and Resp. to Req. to Strike ¶ 1 ("JSMF") (ECF No. 121). These business segments are referred to collectively as the "Lufthansa Group," and Lufthansa is the parent company of all Lufthansa Group entities. JSMF ¶¶ 1-2.

1   The Passenger Airline Group [*3]  is the largest operating segment in the Lufthansa Group. Joint Statement of Material Facts and Resp. to Req. to Strike ¶ 3 ("JSMF") (ECF No. 121). Airlines within the Lufthansa Group include "Lufthansa German Airlines, Swiss International Airlines, and Austrian Airlines." JSMF ¶ 4.

The events leading to this litigation began in December of 2007, when the Deutsche Lufthansa Berlin-Stiftung ("DLBS"), which is managed and controlled by Lufthansa, acquired three Super Star airplanes.2 JSMF ¶¶ 37, 39. DLBS then contracted with Lufthansa Technik AG ("LHT") "to overhaul and restore one of the Super Stars to an airworthy condition." JSMF ¶ 37. LHT is a wholly owned subsidiary of Lufthansa, which provides MRO services for civil aircraft. JSMF ¶ 6. LHT provides integral services to the Passenger Airline Group, which is LHT's single largest customer. JSMF ¶¶ 9-10.

2   In January of 2015, ownership of the Super Star transferred from DLBS to Lufthansa Super Star GmbH ("LSSG"). JSMF ¶ 38. "LSSG is a wholly-owned subsidiary of Deutsche Lufthansa AG and its supervisory board consists of high level management personnel of Deutsche Lufthansa AG." JSMF ¶ 40.

Defendant LTNA is a wholly owned and controlled subsidiary [*4]  of LHT. JSMF ¶ 13. LTNA does not operate any aircraft itself. JSMF ¶ 105; Defs.' Resp. to Pls.' Statement of Material Fact ¶ 105 ("DRPSMF"). Instead, LTNA performs MRO work on "the aircraft and components used by Lufthansa German Airlines, . . . airlines that are under common control by Deutsche Lufthansa AG, and other external airlines." JSMF ¶ 14. MRO "are functions traditionally performed by airline employees in the aircraft industry." JSMF ¶ 53. The majority of LTNA's MRO work is performed for passenger and freight airlines through LTNA's Federal Airline Regulation Part 145 Repair Stations, which are located in Maine, California, Florida, Oklahoma, and Puerto Rico. JSMF ¶¶ 15-16.

Defendant Global Aircraft Services, Inc.

Defendant Global Aircraft Services, Inc. ("GAS") is a Texas repair company that services, maintains, and repairs aircraft fuel systems. JSMF ¶ 83; Ex. 6 to Loc. Rule 56(h) Stip. Rec. ¶ 2 ("Ex. 6") (ECF No. 122-6). Like LTNA, GAS does not operate any commercial flights. JSMF ¶ 106.

The Super Star Project

In September of 2009, LTNA retained GAS "to deseal, change fasteners and dome nuts, and reseal the wings of the Super Star." JSMF ¶ 80; Ex. 6, ¶ 3. After GAS was retained, however, [*5]  "it became clear that the extent of the corrosion on other portions of the aircraft required more work than GAS was able to provide." JSMF ¶ 81. Accordingly, LTNA requested that GAS "identify and supply sheet metal contractors to perform repairs outside the fuel system." JSMF ¶ 82. "Although GAS's ordinary business was limited to fuel systems, it agreed to use its own repair-station license and contacts in the industry to refer contractors to the Super Star project." JSMF ¶ 83.

The referred contractors all signed the same agreement with GAS to work as independent contractors restoring the Super Star at an hourly rate. Ex. 3 to Loc. Rule 56(h) Stip. Rec. 57:10-20; 58:6-9 ("Ex. 3") (ECF No. 122-3). Christopher Venegas, the named Plaintiff, began working on the Super Star project in early 2013. Ex. 11 to Loc. Rule 56(h) Stip. Rec. ¶ 3 ("Ex. 11") (ECF No. 122-11).

The project involves the restoration of the Super Star at LTNA's Auburn, Maine Repair Station, which is located on the grounds of the Auburn-Lewiston Airport. JSMF ¶¶ 47-48. The Super Star "is being modified to meet current FAA standards for passenger safety." JSMF ¶ 54. Accordingly, the work "is highly regulated by the FAA." JSMF ¶ 85. While the work was initially [*6]  performed through GAS's FAA Repair Station authorization, the FAA required LTNA to have its own Repair Station Certificate in 2010. JSMF ¶ 49. As the holder of an Air Agency Certificate, LTNA must comply with "the requirements of the Federal Aviation Regulations relating to the establishment of an Air Agency and Repair Station." JSMF ¶ 51. Thus, LTNA's Director of Maintenance for the project "is responsible for the overall operation of the Repair Station[,]" including "directing, planning, and laying out the details of inspection standards, methods, and procedures used by the repair station in complying with all applicable Federal Aviation Regulations." JSMF ¶¶ 55-56.

The discovery of hidden damage on the Super Star has extended the project five years past its anticipated end date. JSMF ¶ 66. The Super Star itself has not flown in at least ten years, and the restoration project has now been ongoing for seven years. JSMF ¶¶ 108, 111. The Plaintiffs in this case have worked on the Super Star project only at the Auburn-Lewiston Airport. JSMF ¶ 109. And LTNA has not performed any additional work at the Auburn-Lewiston Airport beyond working on the Super Star. JSMF ¶ 110.

The majority of [*7]  the work on the Super Star is performed by workers designated as independent contractors, although there are some LTNA employees who work on the project. See JSMF ¶ 58. For his part, Venegas "worked on fabricating parts, constructing the frame, installing various parts, and inspecting parts that would be installed on the Super Star." JSMF ¶ 65. Although the type of sheet metal work done on the Super Star was typical of the type of work airlines perform to maintain passenger and cargo aircraft, the licensing requirements were different.3 Workers on the Super Star project did not need an Airframe and Power Plant license, which would be required if the work were performed for an airline. Pls.' Resp. to Defs.' Statement of Material Fact ¶ 63 ("PRDSMF"); Pls.' Resp. to Defs.' Reply Statement of Material fact ¶ 116 ("PRDRSMF"). "GAS's job advertisement for 'Aircraft Sheet Metal Contractors' states that an Airframe and Power Plant license is not required." PRDSMF ¶ 63.

3   Although the Plaintiffs deny that the type of work they were doing is similar to maintenance work that would occur for scheduled maintenance, the only difference they raise is the license requirement. Pls.' Resp. to Defs.' Statement [*8]  of Material Fact ¶ 63 ("PRDSMF"); Pls.' Resp. to Defs.' Reply Statement of Material fact ¶ 116 ("PRDRSMF"). Based on Cull's deposition, individual workers are not required to have Airframe and Power Plant licenses if they are working for a licensed repair station. Cull Dep. Tr. 48:4-25; 49:1-16 (ECF No. 122-14). LTNA was a licensed repair station.

The Super Star's Intended Use

Lufthansa, DLBS and LSSG "are restoring the Super Star aircraft to meet current FAA-standards for passenger service."4 JSMF ¶ 42. "Once the full restoration is complete, the Super Star will provide paying passengers with a unique service of traveling on one of Deutsche Lufthansa AG's fleet of vintage aircraft, flying both national and international routes." JSMF ¶ 43. Flights on the Super Star will operate as airplanes did in the 1950s--at half the speed and half the altitude of today's commercial airliners--"providing passengers with a unique perspective of the landscapes below." JSMF ¶ 44. "The Super Star will also be presented at airshows and exhibitions." JSMF ¶ 45. And ticket prices for flights on the Super Star "will be priced on the basis of a break-even policy to directly support the maintenance of the plane." [*9]  JSMF ¶ 46.

4   Paragraphs 41 through 45 of the Defendants' Joint Statement of Material Facts describe Lufthansa's intended uses for the renovated Super Star once it becomes flight worthy. See PRDSMF ¶¶ 41-45. The Plaintiffs deny portions of these paragraphs referring to a Declaration of Andrew Howell, which describes a website that Howell states he accessed on November 9, 2015. Nov. 19, 2015 Howell Decl. ¶¶ 6-8. ("Howell Decl.") (ECF No. 122-12). The website, according to Howell, is "operated and published by the Lufthansa Group." Howell Decl. ¶ 6. Howell printed the website page as a PDF and attached it as Exhibit A to his declaration. Howell Decl. ¶ 7. The website page purports to depict the number of commercial aircraft in the Lufthansa Group's fleet as of 2013. The makeup of the Lufthansa Group's fleet in 2013 does not contradict the Defendants' factual assertions regarding how the Super Star will be used in the future once it is fully restored. Because paragraphs 41-45 have not been properly controverted, they are deemed admitted. See Local Rule 56(f).

Plaintiffs repeat the facts asserted in the Howell Declaration in paragraphs 112 through 115 of their Statement of Additional Material Facts in Support [*10]  of Plaintiffs' Opposition to the Defendants' Motion for Summary Judgment. The Defendants qualify these paragraphs and request to strike them. The parties elaborate on their positions in the briefing supporting the Defendants' Joint Motion for Leave to File Motion to Strike. (ECF Nos. 120, 123 & 124). The Defendants posit that Exhibit A constitutes inadmissible hearsay. The Plaintiffs make two arguments that the website content is admissible. First, they contend that the website page is not hearsay under Rule 801(d)(2)(C) because Andreas Pakszies, an employee of Lufthansa Technik AG, has been authorized to make statements on behalf of Lufthansa Technik AG and Lufthansa. But there is nothing suggesting that Pakszies made the statements on the website print-out at issue or that a party to this lawsuit authorized the statement on the website. Second, they contend that the statements on the website should be attributed to LTNA under Rule 801(d)(2)(D) because Lufthansa is LTNA's parent corporation. Plaintiffs rely on Big Apple BMW, Inc. v. BMW of North America, Inc., in which the Third Circuit held that "[t]he statement of a subsidiary may be attributed to its corporate parent, consistent with agency theory, where the parent [*11]  dominates the activities of the subsidiary." 974 F.2d 1358, 1373 (3d Cir. 1992). Unlike Big Apple BMW, the Plaintiffs are attempting to use the statements of a corporate parent against a subsidiary. Even if it is appropriate to attribute statements of a corporate parent to a subsidiary based on an agency theory, the Plaintiffs, as proponents of the disputed evidence, must show that Lufthansa was LTNA's agent and that the statements were made within the scope of their agency relationship. See Aumand v. Dartmouth Hitchcock Med. Ctr., 611 F. Supp. 2d 78, 93 (D.N.H. 2009) ("The proponent of a statement as an admission by an agent within the scope of his employment bears the burden of showing both the existence and scope of the relationship."). The Plaintiffs have not made this showing. Thus, I grant the Defendants' requests to strike paragraphs 112 through 115 and DENY AS MOOT the Defendants' Joint Motion for Leave to File Motion to Strike.

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