Professional Documents
Culture Documents
Document 1
Filed 04/19/10
Page
1 of 11
or.
ptx
CARLSMITH BALL LLP ANDREW L. PEPPER ERIKA L. LEWIS ASB Tower, Suite 2200
ORIGINAL
5141-0 8580-0
FILED IN THE
UNI
1001
P atLPS'clikrBaErlI,
TEDois IARpTRIcEr?)Bur
elewis@carlsrnith.corn
Attorneys for Plaintiff BOMBARDIER, INC.
IN THE UNITED STATES DISTRICT COURT
BOMBARDIER, INC.,
Canadian
CIVIL
corporation,
Plaintiff,
VS.
CA6.100_0223AkE,
KSC
COMPLAINT; SUMMONS
Defendant.
COMPLAINT
("Bombardier") alleges
PARTIES
and
avers as
follows:
1.
Bombardier is
Canadian
of business in
4815-6435-9429.1.063395- 00001
Case 1:10-cv-00223-DAE-KSC
Document 1
Filed 04/19/10
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Air,
Inc.
("Island Air") is
Delaware
action under
parties.
1391(a) and
district,
a
omissions
giving rise
district, and a substantial part of the property that is the subject of the action was
is situated in this district.
or
about
Lease
Delaware
banking corporation,
predecessor-in-interest.
4815-6435-9429.1.063395-00001
2.
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6.
On
or
as
Lease
Supplement.
leased the
following:
Manufacturer
FAA
Registration
No.
Manufacturer's Model
DHC-8-102
Airframel
Engine
1
N979HA
PW-121
PW-121 14SF-7 14SF-7
PCE-121346
PCE-121320
Whithey
Engine 2 Propeller
1 Pratt &
Whitney
Hamilton Standard Hamilton Standard MFG-940406 MFG-940407
Propeller
2
8.
("Basic Rent")
the Aircraft
for
throughout the Lease Agreement term in amounts set forth in the Lease
Supplement.
9.
month.
Engine 2, Propeller
1 and
Propeller 2
are
referred
4815-6435-9429.1.063395-00001
3.
Case 1:10-cv-00223-DAE-KSC
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10.
For any
to pay
interest at
annum
plus
or
1.5% per
365-
366-day year,
as
the
case
11.
Lease
Island Air
was
to remain in
same
general
as on
and
the
good Delivery
operating
as
permitted"
Agreement;
original specifications;
4815-6435-9429.1.063395-00001
4.
Case 1:10-cv-00223-DAE-KSC
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d.
and be in
compliance with,
current
Airworthiness Certificate
f.
same
configuration
Engines
and
Propellers,
or
or
on
the
Delivery Date
h.
performed systems
and structural
i.
landing gears
Delivery;
same
cycles remaining as
at
j.
k.
Engines
and
accumulated
no more
hours and/or
cycles
than at
Delivery.
4815-6435-9429.1.063395-00001
5.
Case 1:10-cv-00223-DAE-KSC
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Agreement,
an
Event of Default
includes,
things,
perform or
observe covenants,
conditions,
defined
as
the Lease
Agreement,
"2
its
a
supplements,
Participation Agreement,
and
Agreement."
14.
If an Event of Default takes
may provide
"may do
one or more
of the
or
all of the
(a)
Lease;
or
Lessor may demand that [Island Air]... upon written demand of Lessor and at [Island Air's] expense
(b)
and risk, forthwith assemble and return or store the [the Aircraft, the Airframe, the Engines and/or the Propellers (the "Items of Equipment")] and [accompanying]
2
The Sub-Lease Participation Agreement was entered into on February 24, 2006 between Island Air, Wilmington Trust, and Bombardier's subsidiary and predecesor-in-interest, Bombardier Services Corporation. about February 24, 2006, Wilmington Trust, as trustee of lessee, assigned its interest in the Lease Agreement to trustee of Owner, Wells Fargo Northwest, a national banking association ("Wells Fargo"). Thus, Wells Fargo became Lessor under the Lease Agreement. Wilmington Trust notified Island Air of the assignment in or around March, 2006.
On
or
3
4815-6435-9429.1.063395-00001
6.
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documentation... to Lessor....; or Lessor may enter upon the premises where any Item of Equipment or item of... documentation is located and take immediate possession of and remove it (together with any engine, propeller or part which is not an Engine, a Propeller, or a Part but which is installed on the Airframe or an Engine.
proceed by appropriate court action or actions, either at law or in equity, to enforce performance by [Island Air] of the applicable covenants of this Lease and to recover damages for the breach thereof; (d) with or without taking possession thereof, Lessor may sell or cause to be sold all or any part of any Item of Equipment at public or private sale..
(c)
Lessor may
exercise any other right or remedy which may be available to it under applicable law, including without limitation, the Cape Town Convention.
(f)
15.
for any and all unpaid Rent and for all reasonable out-of-pocket expenses incurred by reason of the occurrence of any Event of Default or the exercise of Lessor's remedies with respect thereto, including all reasonable out-of-pocket expenses incurred in connection with the
Equipment] in accordance with [this Lease Agreement] or in placing such Item [of Equipment] in the condition and with Airworthiness Certificates as required by [this Lease Agreement].
16.
acknowledged and agreed that the Lease Agreement was subordinated to a Head
Lease
4815-6435-9429.1.063395-00001
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On
Agreement was
to
expire
on
January
28, 2009. Bombardier Services further informed Island Air that it was in default
due to failure to pay Rent for
result
or
termination
on
19.
notice that the date of surrender and return had passed. Bombardier Island Air pay rental amounts of USD
In
satisfy the
conditions
of the Lease
Agreement.
This amount was later reduced through negotiation between Bombardier and owner/head lessor Avmax International Aircraft Leasing, Inc., to $45, 000 per month. These efforts by Bombardier to mitigate its damages incidentally benefited Island Air.
4815-6435-9429.1.063395-00001
8.
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20.
On
21.
by August 24,
2009,
or on
amounts
due.
23.
The Aircraft
was
surrendered to Bombardier
on or
about
The Aircraft
was
surrendered to Bombardier in
a non-
Bombardier
currently estimates
same
general
and
appearance
the
prior paragraphs.
4815-6435-9429.1.063395-00001
9.
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26.
January 28,
Notice of
Default would be
non-operational
non-compliance with
the Lease
Bombardier is entitled to
damages
Bombardier is entitled to
damages
Island Air
owes
owes
charges
and
expenses incurred in
terms of the Lease
4815-6435-9429.1.063395-00001
10.
Case 1:10-cv-00223-DAE-KSC
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enter judgment in
its
an
amount amount
b.
no
an
equal to damages
$2, 213,000;
an
amount
equal to
including
reasonable
Bombardier
as
described
herein;
d.
all other
damages
as
Lease
Supplement,
Sub-Lease
Participation Agreement,
Participation
and
f.
DATED:
y, 2010.
0610=-'
ANDREW L. FEI-TEK
ERIKA L. LEWIS
4815-6435-9429.1.063395-00001
1 1.
Case 1:10-cv-00223-DAE-KSC
Document 1-1
Filed 04/19/10
Page
1 of 2
BOMBARDIER, INC.,
Canadian
CIVIL NO.
corporation,
Plaintiff,
VS.
SUMMONS
Defendant.
SUMMONS TO: HAWAII ISLAND AIR, INC. dba ISLAND AIR 99 Kapalulu Place Honolulu, HI 96819
A lawsuit has been filed
against you.
summons on
Within 21
you received agency,
or an
days
or
you
it)
60
or
days
if you
are
or a
officer
employee
12(a)(2)
or
(3)
you must
serve on
the
whose
and address
4815-6435-9429.1.063395- 00001
Case 1:10-cv-00223-DAE-KSC
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Filed 04/19/10
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Carlsmith Ball LLP ASB Tower, Suite 2200 1001 Bishop Street Honolulu, HI 96813
If you fail to
for
complaint.
answer or
motion
2010.
SU
CLERK
COURT
(.b-,
Aln4=Ki* co",, pi
OF
n
ai
4815-6435-9429.1.063395-00001
2.
Case 1:10-cv-00223-DAE-KSC
#ta.IS 44
Document 1-2
Filed 04/19/10
Pa
1 of 1
(Rev. 12/07)
0 ()a'
OAE
KSO
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ofpleadings or other papers as required by law, except as provided of by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use ofthe Clerk of Court for the purpose initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)
I.
(a)
PLAINTIFFS
BOMBARDIER, INC.
Plaintiff
Montreal, Canada
CASES)
Honolulu, Hawaii
ONLY)
IN U.S. PLAINTIFF
(c) Attorney's (Finn Name, Address, and Telephone Number) Andrew L. Pepper, Erika L. Lewis (Carlsmith Ball LLP) 1001 Bishop St., #2200, Honolulu, HI 96813
CPU 15.51
C. U5JO.,JL.,J.L.,JLSU
(Place
an
Only)
III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Plaintiff and One Box for Defendant) (For Diversity Cases Only)
PTF DEF PTF DEF 4
0 3 Federal Question
Plaintiff
(U.S.
Government Not
Party)
0 1
0 1
Incorporated or Principal
of Business In This State
Place
tg
0 2
U.S. Government
18I 4
0 2
Defendant
III)
Citizen
or
0 5
Subject of a
DI
0 6
INT
IV A TT TDU
!YE' CI TIT
fr.
"V"
/1
I
O O O O
coNTRAcr
110 Insurance
TORTS
PERSONAL INJURY
FORFEITURE/PENALTY
PERSONAL INJURY
BANKRUPTCY 0 422
OTHER STATUTES
310 315
320
140 Negotiable Instrument O 150 Recovery of Overpayment 0 & Enforcement ofJudgment 0 O 151 Medicare Act O 152 Recovery of Defaulted 0 Student Loans
0 Product 0
362 Personal
Injury
Employers' Liability
Med. Malpractice 365 Personal Injury Product Liability 368 Asbestos Personal Injury Product
Liability
PERSONAL PROPERTY 0 370 Other Fraud 0 371 Truth in Lending 0 380 Other Personal
0 610 Agriculture 0 620 Other Food & Drug 0 625 Drug Related Seizure of Property 21 USC 881 0 630 Liquor Laws 0 640 R.R. & Truck 0 650 Airline Regs. 0 660 Occupational
Appeal 28
USC 158
0 400 State Reapportionment 0 410 Antitrust 0 430 Banks and Banking 0 450 Commerce
0 0 0
460
Deportation
Corrupt Organizations
Safety/Health
0 690 Other
O 153
Liability
350 Motor Vehicle 355 Motor Vehicle
0
0 0
O 160
190
O 195 O 196
0 720 0 730
Injury
CIVIL RIGHTS
REAL PROPERTY 0 210 Land Condemnation 0 220 Foreclosure 0 230 Rent Lease & Ejectment 0 240 Torts to Land 0 245 Tort Product Liability 0 290 All Other Real Property
0
0
441
442
0
0 0 O
443
Sentence
Habeas
0 740 Railway Labor Act 0 790 Other Labor Litigation n 791 Empl. Ret. Inc.
SOCIAL SECURITY 0 861 HIA (13951T) 0 862 Black Lung (923) 0 863 DIWC/DIWW (405(g)) 0 864 SSID Title XVI 0 865 RSI (405(g)) FEDERAL TAX SUITS
0 870 Taxes
or
Exchange
0
0
875 Customer
Challenge
12 USC 3410 890 Other Statutory Actions 0 891 Agricultural Acts 0 892 Economic Stabilization Act 0 893 Environmental Matters 0 894 Energy Allocation Act 0 895 Freedom of Infonnation Act
Corpus:
Security Act
IMMIGRATION 0 462 Naturalization Application 0 463 Habeas Corpus Alien Detainee 0 465 Other Immigration
0 871
Employment
446 Amer. w/Disabilities
0 0 0 0 0
530 General
26 USC 7609
Penalty
900Appeal
to
Rights
Justice
0 950
Constitutionality of
State Statutes
Other
Rights
Actions
V. ORIGIN CR 1 Original
Proceeding
171 4 Reinstated or
Transferred
Lj 0
Multidistrict L itigation
0 7
'Cite
not cite
statutes unless
diversity):
onii c rs,.
!Brief description
of cause:
REQUESTED
COMPLAINT:
IN
Plaintiff seeking damages against Defendant for breach of contract and failure to return leased aircraft. CHECK YES only ifdemanded in complaint: DEMAND II CHECK IF THIS IS A CLASS ACTION
UNDER F.R.C.P. 23 JURY DEMAND:
0 Yes
a No
VIII. RELATED
CASE(S)
IF ANY
(See instructions):
JUDGE
SIGNATURE OF
DOCKET NUMBER
DATEAPH 1 9 2010
FOR OFFICE USE ONLY
ATTC_..............abLEA&WMKORD
RECEIPT
AMOUNT
APPLYING IFP
JUDGE
MAG. JUDGE