{"id":187555,"date":"2014-12-17T09:17:29","date_gmt":"2014-12-16T23:17:29","guid":{"rendered":"http:\/\/www.saipantribune.com\/?p=187555"},"modified":"2014-12-17T09:17:29","modified_gmt":"2014-12-16T23:17:29","slug":"fraud-claims-vs-2-swift-air-executives-press-ahead","status":"publish","type":"post","link":"https:\/\/www.saipantribune.com\/index.php\/fraud-claims-vs-2-swift-air-executives-press-ahead\/","title":{"rendered":"Fraud claims vs 2 Swift Air executives to press ahead"},"content":{"rendered":"<ul>\n<li><strong>Saipan Air\u2019s racketeering, unjust enrichment claims dismissed<\/strong><\/li>\n<li><strong>Pixley says he is preparing for the Feb. 2, 1015 jury trial<\/strong><\/li>\n<\/ul>\n<p>&nbsp;<\/p>\n<p>The federal court has allowed Saipan Air Inc.\u2019s fraud claims against two of three Swift<\/p>\n<p>Air executives to proceed, but issued a ruling favorable to the three executives on the<br \/>\nclaims of racketeering and unjust enrichment filed against them.<\/p>\n<p>In a 32-page decision and order, U.S. District Court for the NMI Chief Judge Ramona V.<br \/>\nManglona ruled that Saipan Air\u2019s fraud claim against Jeffrey Conry and Boris Van Lier shall<br \/>\nproceed but not against Donald A. Stukes.<\/p>\n<p>Manglona also granted summary judgment in favor of Conry, Van Lier, and Stukes in<br \/>\nSaipan Air\u2019s claims for violations of the Racketeer Influenced and Corrupt Organization Act<br \/>\nand for unjust enrichment. This means Saipan Air\u2019s RICO and unjust enrichment claims are<br \/>\nnow dismissed.<\/p>\n<p>When asked yesterday, Saipan Air counsel Steven P. Pixley said he is preparing for the\u00a0jury trial scheduled on Feb. 2, 2015.<\/p>\n<p>The trial will be against Conry and Van Lier relating to the fraud claims.\u00a0Conry and Van Lier are currently employed by Arizona-based Swift Air, which emerged\u00a0from bankruptcy in 2013.<\/p>\n<p>Saipan Air filed the racketeering lawsuit against Conry, Van Lier, and Donald A. Stukes\u00a0in July 2012.<\/p>\n<p>Swift Air filed for bankruptcy protection in Arizona shortly after notifying Saipan Air\u00a0that it would not deliver two 757 aircraft and one 737 aircraft for Saipan Air\u2019s program.\u00a0Saipan Air was unable to sue Swift Air directly because of the bankruptcy filing.<\/p>\n<p>Conry, Van Lier, and Stukes filed a motion for summary judgment. The motion sought a<br \/>\ndismissal of Saipan Air\u2019s claims.<\/p>\n<p>Saipan Air opposed the motion. After hearing the motion last Oct. 30, Manglona placed\u00a0the matter under advisement.<\/p>\n<p>In the order last week, Manglona said Stukes is alleged to have made false\u00a0representations only during negotiations beginning May 31, 2012, for a $1.5 million bridge\u00a0loan.<\/p>\n<p>Manglona said because the loan was never consummated, Saipan Air cannot show\u00a0detrimental reliance on or damages caused by those alleged misrepresentations.<\/p>\n<p>\u201cTherefore, as to fraud, summary judgment must be granted in favor of Stukes,\u201d\u00a0Manglona said.<\/p>\n<p>With respect to Conry and Van Lier, Manglona said Saipan Air has produced sufficient\u00a0evidence to create a genuine dispute as to whether, at the time the aircraft, maintenance,\u00a0and insurance (ACMI) agreement was executed, the two had any intention to deliver on\u00a0their promises of aircraft and services.<\/p>\n<p>\u201cAlthough as a matter of law, Saipan Air could have justifiably relied on\u00a0misrepresentations made by defendants early in the negotiations, the evidence, when viewed in the light most favorable to the nonmoving party, does not support the conclusion\u00a0that in fact Saipan Air so relied,\u201d she said.<\/p>\n<p>Manglona said that e-mails exchanged between Saipan Air\u2019s chief operating officer\u00a0Adam Ferguson and Van Lier show that in mid-January 2012, both parties to the\u00a0negotiation doubted Swift Air could deliver service in time for Saipan Air\u2019s July 2012\u00a0launch.<\/p>\n<p>Manglona said the fact that Saipan Air\u2019s COO [Ferguson], the person to whom the\u00a0alleged false representations were made, does not think the fraud started until March 2012\u00a0is strong evidence that Saipan Air did not rely on the early representations.<\/p>\n<p>Manglona said Saipan Air has not cited any substantial evidence that it relied on the\u00a0early representations when it decided to enter into the ACMI Agreement and sent a\u00a0security deposit in April 2012, or when it wired cash to Swift Air a second time in late May\u00a02012.<\/p>\n<p>\u201cThe court therefore finds that evidence of detrimental reliance on the early\u00a0representations is not such that a reasonable jury might determine that fraud was proved\u00a0within convincing clarity,\u201d the judge said.<\/p>\n<p>Manglona said there is a clear dispute as to material facts surrounding the conclusion of\u00a0the ACMI Agreement and the two wire transfers.<\/p>\n<p>Manglona said the court finds that Saipan Air has set forth specific facts showing that\u00a0there is genuine issue for trial as to whether, after negotiations resumed in March 2012,<\/p>\n<p>Conry and Van Lier knowingly made material misrepresentations that fraudulently induced\u00a0Saipan Air to enter into the ACMI Agreement and pay the $900,000 security deposit.<\/p>\n<p>Manglona said Saipan Air\u2019s most compelling argument against justifiable reliance is that\u00a0by May 22, 2012, Ferguson had concluded that Van Lier and Conry were liars.\u00a0Moreover, she said, although Ferguson no longer trusted Conry and Van Lier, Saipan Air\u00a0was \u201cnot aware that we\u2019re in the middle of a completely fraudulent deal up until that point.\u201d<\/p>\n<p>\u201cSaipan Air has produced sufficient admissible evidence to try this question to the jury,\u201d\u00a0the judge said.<br \/>\nOn RICO claim, Manglona said Saipan Air cannot establish continuity by reference to\u00a0alleged fraudulent acts against other persons and entities.<\/p>\n<p>\u201cBecause Saipan Air has not come forward with evidence to show a pattern of\u00a0racketeering activity, summary judgment will enter in favor of all defendants on the RICO\u00a0claim,\u201d Manglona said.<\/p>\n<p>The judge said it is unnecessary therefore to consider Stukes\u2019 alternative argument that\u00a0the evidence does not show that he directed the affairs of the alleged racketeering\u00a0enterprise.<\/p>\n<p>On the unjust enrichment claim, Manglona said Saipan Air has not gone beyond inflated\u00a0rhetoric to actually demonstrate that as a matter of law and based on the evidence, Swift\u00a0Air was the defendants\u2019 alter ego.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Saipan Air\u2019s racketeering, unjust enrichment claims dismissed Pixley says he is preparing for the Feb&#8230;.<\/p>\n","protected":false},"author":23,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[94,4],"tags":[93,259,862,1270],"class_list":["post-187555","post","type-post","status-publish","format-standard","hentry","category-headlines","category-local-news","tag-district-court","tag-lawsuit","tag-rico","tag-van-lier"],"_links":{"self":[{"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/posts\/187555","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/users\/23"}],"replies":[{"embeddable":true,"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/comments?post=187555"}],"version-history":[{"count":0,"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/posts\/187555\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/media?parent=187555"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/categories?post=187555"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/tags?post=187555"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}