# EuroTec Vertical Flight Solutions LLC v. Safran Helicopter Engines

> District Court, N.D. Texas · August 1, 2019

URL: https://www.frixlaw.com/law-library/cases/10447979

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** August 1, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10447979

## How later opinions describe it (automated extraction)

- holding that the Cartwright Act was “modeled after the Sherman Act” and so the analysis “mirrors the analysis under federal law” (citations omitted)
- finding that the plaintiff did not adequately plead the existence of a conspiracy
- holding two corporations owned by a single entity do not “conspire” for the purposes of Sherman Act § 1

## Opinion text

United States District Court
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

EUROTEC VERTICAL FLIGHT §
SOLUTIONS, LLC. §
§
v. § CASE NO. 3:15-CV-3454-8
§
SAFRAN HELICOPTER ENGINES §
S.A.8S., SAFRAN HELICOPTER §
ENGINES USA, INC., and SAFRAN §
HELICOPTER ENGINES CANADA, §
INC, §
MEMORANDUM OPINION AND ORDER
Plaintiff EuroTec Vertical Fight Solutions, LLC (‘Plaintiff’) brings this action against
Safran Helicopter Engines USA, Inc. (“SafranHE USA”), and against Safran Helicopter Engines
S.A.S, (SafranHE France”) and Safran Helicopter Engines Canada, Inc. (“SafranHE Canada”)
(together, “International Defendants,” and collectively with SafranHE USA, “Defendants”)}. In
the Third Amended Complaint (the “Complaint”)}—which is the fourth complaint in this case—
Plaintiff alleges violations of the Sherman Act, 15 U.S.C.§§ 1, 2, California Cartwright Act, CAL.
Bus, & PRoF. CODE § 16720 ef seg., Kansas Restraint of Trade Act, KAN. STAT. ANN. § 50-101 ef
seg., §35 of the Lanham Act, 15 U.S.C. § 1117, Texas Deceptive Trade Practices Consumer
Protection Act (“DTPA”), TEX. Bus. & Com. Cope ANN,§§ 17.46, 17.50, as well as common law
claims for breach of contract, wrongful detention, conversion, negligence, tortious interference,
civil conspiracy, unfair competition, misrepresentation, and concealment.
Pending before the Court is SafranHE USA’s and the International Defendants’ Motions
to Dismiss [ECF Nos. 103, 104]. For the foregoing reasons, the Court grants in part and denies in
part the Motions.

I BACKGROUND
Pursuant to Special Order 3-318, this case was transferred from the docket of Judge Jane
J. Boyle to the docket of this Court on March 8, 2018.
Plaintiff filed its original complaint on October 23, 2015, and amended the complaint to
join new defendants on March 28, 2016. On June 1, 2016, Defendants filed a Motion to Compel
Arbitration and a Motion to Dismiss, which the Court granted, staying the case pending arbitration.
Following arbitration, the Court reopened the case on September 18, 2017, Plaintiff filed its
Second Amended Complaint on October 9, 2017, and Defendants filed a new set of motions to
dismiss. The Court heid a hearing on the second set of motions to dismiss on November 18, 2018,
The Court dismissed the Second Amended Complaint in its entirety but granted Plaintiff's motion
for leave to amend. Although the Court expressed hope that affording Plaintiff an opportunity to
replead would result in “some of the weaker of [the] 14 claims... [getting] taken out,” ECF No.
92, at 65:21-23, Plaintiff's fourth attempt includes thirty causes of actions over the course of 130
pages, and includes many of the same weaker claims as its prior attempt. See Third Am, Compl.
Defendants filed a third set of motions to dismiss on January 25, 2019, which is the subject of this
Memorandum Opinion and Order.
A. Parties
Plaintiff is a Kansas limited liability company that owns helicopters and helicopter engines,
is a certified repair station, and is in the business of buying, selling, and leasing helicopters,
engines, and engine parts. See Third Am. Compl. {J 1-4. Plaintiff also provides consumers with
various services, including engine maintenance, repair, and overhaul services (“MRO Services”).
id. 45. Defendants are manufacturers, marketers, sellers, and lessors of helicopter engines and of
modules, components, parts, and accessories for those engines. /d. J{]9, 12-15, 18. Defendants
also market and provide MRO Services for their engines. /d.

With the exception of SafranHE USA, which is a Delaware corporation with its principal
place of business in Dallas County, Texas, the Defendants are foreign companies. /d { 11.
SafranHE France, formerly Turbomeca, S.A. and Turbomeca S.A.S., is a French company and
domiciliary. Jd 97. SafranHE Canada is a Canadian corporation and domiciliary. Jd. □ 17.
Plaintiff contends, however, that there is a significant unity of interest in ownership and control
between the three Defendants, such that they are alter egos of one another, /d. 720. Plaintiff
alleges that either SafranHE France is able to exert a great degree of control over the other
Defendants, that Defendants are agents of one another, or that they acted in concert, pursuant to
apreements, or as a joint venture, such that they should be considered a single business enterprise.
Id, □ 21-24.
B. Market Allegations
Civilian and military helicopters are designed and manufactured by Airbus Helicopters
(“Airbus”), Bell Helicopter, Leonardo Helicopters, Sikorsky Aircraft Corporation and other
companies. /d. 470. According to Plaintiff, approximately 45% of all civil and parapublic
helicopters worldwide are manufactured by Airbus. /d. 73. Airbus does not manufacture the
engines used in its helicopters, instead relying on companies in the business of designing and
manufacturing engines. /d. 75. Defendants are the largest manufacturers dedicated solely to the
manufacturing of helicopter engines, and compete with “General Electric, Rolls-Royce, and Pratt
& Whitney Canada.” Id.
Plaintiff alleges that there is one geographic market and two relevant product markets,! □□□
7 244. The geographic is allegedly the United States, while the product markets are: (1) market
for Defendants’ engines and parts; and (2) market for MRO Services for Defendants’ engines.

' These allegations are relevant to Plaintiff's antitrust claims, As explained in more detail below, most of Plaintiff's
claims require it to plead a relevant market, which is composed of a geographic market—-the geographic area where

(1) Geographic Market
Plaintiff asserts that the relevant geographic market is the United States. Jd 4244.
Nonetheless, Plaintiff contends that (1} Defendants deal in the United States and Canada;
(2) Defendants’ customers are located in the United States and Canada, and turn to sellers in both
countries for engines and parts; and (3) sellers of Safran engines and parts, as well as providers of
MRO Services, view as competition sellers and service providers in both the United States and
Canada, fd 9] 245-49.
(2) Market for Engines and Parts
The first relevant product market is allegedly the market for Defendants’ engines and parts.
Id. 9252, Plaintiff states that SafranHE France is the largest supplier of helicopter engines to
Airbus, manufacturing all of the engines for the ten Airbus models sold in the United States. id.
479. According to the Complaint, there are approximately 1,632 helicopters in existence with
Defendants’ engines. /d § 74. Airbus’s other supplier, Pratt & Whitney Canada, is the exclusive
supplier for only one Airbus model. fd. Plaintiff alleges that a consumer would not find it cost-
effective either to replace an entire engine or to seek FAA recertification of a helicopter for use
with another engine to avoid paying Defendants’ higher prices. fd. 258-60.
Moreover, engines and parts manufactured by Defendants are allegedly neither
interchangeable nor compatible with engines and parts manufactured by other manufacturers. Ia.
99 253-55. Thus, a part manufactured by General Electric, for example, cannot be used in
Defendants’ engines. fd. | 257, According to Plaintiffs, the demand for Defendants’ engines and
parts is thus independent of the demand for other manufacturers’ engines and parts. /d. 4 256.

Defendants _compete—and a product market—a market of reasonably interchangeable goods. See infra
? plantif's allegations on this point are inconsistent. Plaintiff later alleges that Defendants sought to “prevent
competition from manufacturers of new PMA Parts (substitute parts otherwise manufactured by companies nat

Plaintiff has not alleged, however, the total number of Airbus helicopters or other facts
from which the Court could deduce Defendants’ market share with Airbus. Similarly, Plaintiff
alleged that there are more than 2,300 helicopters with Defendants’ engines, id. 981, but has not
alleged Defendants’ market share of all engines or parts in the United States or worldwide, aside
from the conclusory statement that Defendants have “a market share of over 50 percent.” fd. | 668.
Plaintiff further claims that while some manufacturers use distributors to sell engine parts,
some sell refurbished or used parts, and others sell new replacement parts, id. {J 83-86, Defendants
are the sole distributors of their own parts. /d. 9 670-71. Plaintiff thus contends that Defendants
have monopoly power in the market for their own parts. fd. {| 668-73.
(3) Market for MRO Services
Plaintiff alleges that there is a market for MRO Services. /d 4193. Plaintiff asserts that
“fsjervices provided to helicopter manufacturers are not within [this] relevant [product] market.”
Id. 262. Some manufacturers provide MRO Services themselves, while others authorize
independent service providers to perform MRO Services. Jd J 93-94. Purportediy, there is no
cross-elasticity? between the MRO Services for Defendants’ engines and MRO Services for other
manufacturers’ engines. /d. 263.
Defendants provide MRO Services and have also authorized other companies to perform
MRO Services subject to limitations—for example, one company is authorized to perform only
“Level 4” engine repair and overhaul on a limited number of models. /d. {J 93-100. Defendants

affiliated with defendants, under an FAA program known as Part Manufacturing Authorization).” Jd. [689 (emphasis
added). Thus, there appears to be some substitutability of parts.
3 “Cross-elasticity” refers to the responsiveness of the demand for one product to a change in price of another product.
This concept is used to define a product market in antitrust claims. See United States v. EL. du Pont de Nemours &
Co., 351 U.S, 377, 404 (1956). For example, if “a slight decrease in the price of cellophane causes a considerable
number of customers of other flexible wrappings to switch to cellophane, it would be an indication that a high cross-
elasticity of demand exists between [flexible wrappings and cellophane]; that the products compete in the same
market.” Jd. at 400. If the products have low cross-elasticity of demand—.e., a change in the price of one product
does not affect demand for another product, then the products are likely competing in different markets.

allegedly choose whom to authorize to perform repair services, restrain access to technical
information, and withhold the supply of parts necessary to perform certain repairs. /d. □ 264.
Plaintiff also states, with no factual support, that Defendants have a market share of at least 50%
in the MRO Services for their engines and parts, mirroring its conclusory allegations regarding
Defendants’ share of the engines and parts market. Compare id. 9674, with id. J 668. Plaintiff
thus contends that Defendants have monopoly power in the MRO Services for their engines and
parts. fd. [4 674-83.
Cc. The Dispute over Parts
For more than a decade, Plaintiff would request MRO Services or engine parts from
SafranHE USA or SafranHE Canada, and these Defendants would honor Plaintiffs requests. Jd.
101-03. Moreover, Plaintiff allegedly had a business arrangement in which SafranHE USA
provided it with access to technical information, allowing Plaintiff to perform MRO Services on
Defendants’ engines and parts. Jd. { 104.
According to the Complaint, Plaintiff would routinely send parts to SafranHE USA or
SafranHE Canada, requesting a quote of an estimated cost for the inspection and service. /d. 4 109.
SafranHE USA and SafranHE Canada would review the documentation, disassemble the parts,
and develop a quote for Plaintiff's review. /d. 4] 110-11. The parties would then negotiate the
nature of the service and any remaining or unused parts would be promptly returned to Plaintiff
certified as airworthy or marked “as is."* /d. ff 112-18. Between 2001 and 2010, SafranHE USA
and SafranHE Canada allowed their customers to request “scrap parts” to be returned in their “as
is” condition without SafranHE USA or SafranHE Canada certifying the parts as airworthy,

4 The Complaint does not explain what “as is” certification entails.

repairable, or unserviceable. /d 9§ 119-20. SafranHE USA and SafranHE Canada would also
offer to compensate Plaintiff if its part was lost in their course of dealing, Id. 122-23.
SafranHE USA and SafranHE Canada did not, however, return to Plaintiff all of the parts
it sent them for MRO Services. Jd. {| 125-28 & Exs. A-C. They allegedly lost some of the parts
after assigning them work order numbers, /d. Jf 127-31. SafranHE USA and SafranHE Canada
marked some other parts as “scrap” but sent them to SafranHE France to be made serviceable
again. /d.{§ 136-38, According to Plaintiff, SafranHE USA and SafranHE Canada agreed to
compensate Plaintiff for some of these parts, and the parties continued discussing compensation
for the remaining lost parts. □□□ 132-35, 139-47.
Plaintiff further alleges that SafranHE USA and SafranHE Canada instituted a policy of
“defacing” parts by scratching through the part or serial number, engraving a triangle into the part,
or otherwise physically damaging the part (the “Defacing Policy”). Jd. § 148. A part that has been
defaced allegedly cannot be repaired or serviced pursuant to Federal Aviation Administration
(“FAA”) regulations. Jd 9149. Even if a part was “scrap,” it was still valuable to Plaintiff,
Defendants, and their customers, because it could become approved for use in engines if, among
other things, the manufacturer increased the usage or service life, or the manufacturer or the FAA
approved a new repair method. /d. 4 150-51. Moreover, Plaintiff alleges that the defacing of its
parts was contrary to the parties’ course of dealing, FAA regulations, and SafranHE USA’s and
SafranHE Canada’s terms and conditions. /d. $] 152-58. On prior occasions, SafranHE USA and
SafranHE Canada allegedly offered to compensate Plaintiff for the defaced parts. /d. 156-57.
In late 2008 or early 2009, however, SafranHE USA began holding Plaintiffs
unserviceable parts pending policy review and gave Plaintiffan option of either allowing SafranHE
USA to hold Plaintiff's parts, or allowing it to return the parts defaced. □□□ J 159-60. Plaintiff

claims that SafranHE USA did not inform it of any decision to change the original course of
dealing, but also alleges that SafranHE USA began including language in their quotes authorizing
SafranHE USA to deface the parts, /d. Yf{ 162-63. SafranHE USA emailed Plaintiff about the new
Defacing Policy on April 25, 2011, and sought to impose the policy on any part already stored. Id.
{| 164, 290-92. Subsequent attempts to resolve the dispute were unfruitful, with SafranHE France
requiring SafranHE USA to implement the policy, and Plaintiff objecting to it and refusing to
allow its parts to be defaced. /d. 165-69, 171-76. Plaintiff claims that by this time, SafranHE
Canada had already defaced some of Plaintiff's parts. 7d. | 170.
After Plaintiff filed the present action, Defendants announced that they would not deface
parts before returning “unsalvageable parts” to customers, so long as the customers would sign an
indemnification agreement holding Defendants harmless and commit not to equip Defendants’
engines with unserviceable parts. Jd. {1 176-77, Defendants’ authorized service providers adopted
similar requirements for returning unserviceable parts. /d. J§ 178-82.
In addition to its allegations regarding the Defacing Policy, Plaintiff complains about
Defendants’ policy regarding engines and parts involved in an accident (the “Accident Policy”)
and SafranHE USA and SafranHE Canada’s refusal to certify or return parts serviced by Plaintiff.
Id. 4185. Pursuant to the Accident Policy, Defendants allegedly restricted the scope of available
repair services unless certain conditions are met, id. 7 184, and SafranHE USA refused to return
Plaintiff's parts certified “as is.” fd. 190, 193, 290-92. Plaintiff, however, alleges that it never
agreed to be bound by this policy, that the policy is contrary to the parties’ course of dealing, and
that the policy is not required by FAA regulations. Jd 186-88, 191-92. Additionally,
Defendants allegedly refused to repair or certify parts that Plaintiff serviced because Plaintiff was

not “approved” to perform Level 3 and 4 services. fd. 194-95. As a result, Plaintiff contends
that its parts are not as marketable or profitable. fad. 198.
D. The Dispute over Plaintiff's Role as a Service Provider
In 2007 and 2008, Plaintiff and SafranHE USA discussed allowing Plaintiff to be an
authorized provider of “Level 3” MRO Services. /d §383. To meet SafranHE USA’s
requirements, Plaintiff trained personnel and made other investments. /d. 4385. Nonetheless,
SafranHE France, through SafranHE USA, denied Plaintiff's request to become an authorized
service provider in 2008 and again in 2009. Id. Jf 386-88.
In 2010, however, SafranHE USA offered Plaintiff a Maintenance Authorization
Agreement (“MAA”), which allowed Plaintiff to perform Level 3 maintenance. /d. 389. Plaintiff
maintains that it could not negotiate any change to this agreement because of its significant
investment, and so agreed. The MAA obligated Defendants to provide Plaintiff with various
documentation including technical information. Jd. 9389-92. Either party could terminate the
MAA for any reason, provided it gave ninety days’ written notice. Jd. 9393. A breaching party
had thirty days to cure a breach of the MAA. /d. 4394.
In May 2012, SafranHE USA and SafranHE France terminated Plaintiff's access to certain
technical information. /d. {J 395-402. Moreover, SafranHE USA allegedly breached the MAA
by refusing to train Plaintiffs technicians. Jd. | 411. Mike Gaines? admitted to SafranHE USA’s
president that the MAA was still in effect, but suggested that it be terminated. /d. 9403. According
to Plaintiff, SafranHE USA attempted to formally terminate the MAA in August 2014, when it
sent Plaintiff a notice of termination due to Plaintiffs breach of the MAA. Jd 4404. Plaintiff
alleges, however, that the termination letter was not effective to terminate the agreement because

> The Complaint does not state who Gaines is.

Plaintiff did not receive notice that it was in breach of the MAA,.® Jd 405. Plaintiff further
alleges that it had a right to continued access to Defendants’ technical information because of its
substantial investment. Jd. | 406.
E. Alleged Anticompetitive Conduct
According to Plaintiff, Defendants engaged in various anticompetitive conduct. Plaintiff's
allegations can be grouped into the following categories: (1) MAAs; (2) the Defacing Policy and
the Accident Policy; (3) the Fleet Service Agreements; (4) alleged price fixing; (5) alleged group
boycott; (6) alleged exclusive supply agreements; (7) other restraints on MRO Services; and
(8) monopolization allegations.
(1) Maintenance Authorization Agreements
Plaintiff alieges that the MAAs SafranHE USA signed with Plaintiff and Helicopter
Services of Nevada LLC (“HSN”) restrain competition in the engines and parts market and the
MRO Services market. /d 9] 421-58. The MAAs purportedly insulate Defendants from rivals
offering less expensive engine parts and services. [d. □□ 433-34, 451-52. Plaintiff alleges to have
been harmed by tts own MAA and by SatranHE USA’s MAA with HSN. Jd. 49] 438, 457.
(2) Defacing and Accident Policies
Plaintiff also complains that Defendants conspired together and with other MRO Service
Providers to implement the “Defacing Policy” and the Accident Policy. /d. {] 270-76. SafranHE
France specifically required authorized service providers to abide by the Defacing Policy, and
Defendants required service providers to observe the Accident Policy through a series of service
letters. Jd. 9] 275-77. For example, SafranHE USA and SafranHE France purportedly entered

® At an unspecified time, Defendants did notify Plaintiff that Plaintiff was breaching the MAA by failing to maintain
trained technicians, failing to comply with audit requirements, and failing to maintain insurance. /d. 9408. Plaintiff
disputes that it breached any provision. fd. J] 408-10, 412.
10

into contracts with service providers Heli-One Colorado, Inc., Heli-One Canada, Inc., and Heli-
One American Support LLC (collectively “Heli-One”), Advanced Helicopter Services of
Woodland, CA (“Advanced”), and Vector Aerospace Helicopter Services, Inc. (“Vector”),
requiring the service providers to observe Defendants’ policies. fd. 4278. Thus, Heli-One,
Advanced, and Vector have Defacing Policies. /d, J] 279-83. Additionally, Defendants and other
service providers return unserviceable parts only after a customer agrees to indemnify and hold
them harmless, and agrees not to use unserviceable parts in Defendants’ engines or other
helicopters. Jd. 9] 285-87. Similarly, Plaintiff claims that SafranHE USA and SafranHE Canada
contracted with Heli-One, Vector, and Advanced to enforce the Accident Policy, meaning that
Plaintiff has no available provider to make parts involved in an accident serviceable again. □□□
© 288.
According to Plaintiff, the alleged contracts adopting, and the purported conspiracy to
adopt, the Defacing Policy and Accident Policy suppresses intrabrand competition in both the
engine and parts market and the MRO Services market. § 294. The contracts and conspiracy
allegedly allow Defendants to entrench their position in the markets for their own parts and
services, /d. 4299. In other words, the alleged conduct is meant to prevent the emergence of a
market for second-hand parts and for unauthorized repair centers. □□□ 300-02.
(3) Fleet Parts and Service Agreements
SafranHE USA and SafranHE Canada allegedly entered into Fleet Service Agreements or
Fleet Parts Agreements with owners of helicopter fleets. Under a Fleet Service Agreement, a fleet
owner is granted access to technical information solely for the purpose of performing services on
Defendants’ parts that the owners owned, leased, or operated. Jd 9461. SafranHE USA
purportedly has such agreements with HSN and Papillon Airways, Inc. (“Papillon”), □□□
91 452-65. A Fleet Parts Agreement, in turn, provides that SafranHE USA’s or SafranHE
11

Canada’s certification of any part they service for a fleet owner is nontransferable. fd. § 479.
According to Plaintiff, these agreements suppress intrabrand competition for Defendants’ parts
and have harmed Plaintiff. fa Ff] 466, 471-75, 484, 489-94.
(4) Price Fixing
Plaintiff claims that Defendants conspired to fix the price of MRO Services. /d. § 497-502.
Specifically, SafranHE USA allegedly entered into agreements with Heli-One, Advanced, Arrow
Aviation Company LLC (“Arrow”), and Precision Aviation Services (“Precision”), whereby these
service providers agreed not to “undercut” SafranHE USA’s MRO Services pricing. Id. 4] 497-
500, Advanced, in turn, entered into similar agreements with Rorotech Services, Inc. (““Rorotech’’)
and Helicopter Specialties, Inc. (“Helicopter Specialties”). fd. 501. Plaintiff contends that this
scheme harms intrabrand competition and has caused Plaintiff to pay higher prices for MRO
Services. Jd. □ 508-12.
(5) Group Boycott
According to the Complaint, Defendants were also concerned with whether Plaintiff was a
true end user of its parts, or whether it was secretly reselling them. /d. 555-56. Defendants
asked Plaintiff about the real end user and were allegedly not convinced by the information
Plaintiff provided. Jd 99§557-59. Beginning in February 2015, SafranHE USA allegedly
instructed its network of authorized service providers not to do business with Plaintiff. /d. {4 561-
65, This alleged group boycott was aimed at eliminating the market for second-hand parts, and
harmed competition and Plaintiff. fd. 9] 560-77.
(6) Exclusive Supply Agreements
Plaintiff claims that Defendants entered into exclusive supply agreements with Zodiac
Aerospace (“Zodiac”) and other vendors, such that the vendors agreed to supply engine parts and
accessories only to Defendants. /d. [9 615-18. Defendants allegedly entered into such agreements
12

to ensure control over pricing, quality, and reliability. /d 99617, 624. Plaintiff asserts that
customers complain that these supply agreements increase time and cost. /d. J] 618-22. Plaintiff
argues that this vertical restraint harmed Plaintiff, increased costs for consumers, and was
unreasonable, unjustified, and anticompetitive. /d. {| 626-40.
(7) Other Restraints on MRO Services
Plaintiff alleges that Defendants imposed other unreasonable restraints on MRO Services.
Defendants allegedly: (1) required the use of Defendants’ parts and prohibited the installation of a
customer’s own parts or parts from other repair stations not authorized by Defendants,
(2) conditioned the sale of some services on the purchase of modifications a customer has not
requested; and (3) conditioned the return of parts used in a level of service a customer is not
allowed to perform on the return of the part to an authorized service center, /d. {| 644-53. These
restraints harmed Plaintiff and are allegedly unreasonable, unjustified, and anticompetitive. /d.
653-65,
(8) Monopolization Allegations
Finally, Plaintiff alleges that Defendants monopolized or attempted to monopolize the
markets for Defendants’ engines and parts and MRO Services by: (1) preventing competition from
manufacturers of substitute parts by directing repair centers to throw away any substitute part
found in Defendants’ engines and by informing its customers of this fact; and (2) preventing
unauthorized repair centers from accessing Defendants’ technical information. /d. {J 689-92, 701.
By taking these actions, Defendants were purportedly able to obtain or maintain monopoly power
in the relevant markets. /d. {fj 693-96, 700.

13

□□□ Summary of the Claims
Plaintiff alleges thirty separate state and federal law claims against Defendants. For the
sake of clarity, the Court will group these claims into four categories: (1) breach of contract claims,
(2) antitrust claims; (3) tort claims; and (4) deceptive practices claims.
(1) Breach of Contract Claims
In Count I, Plaintiff alleges that SafranHE USA and SafranHE Canada breached an express
or implied contract by losing, misappropriating, defacing, withholding, or refusing to certify
Plaintiffs parts. In Count VIII, Plaintiff alleges that SafranHE USA and SafranHE France
breached the MAA.
(2) Antitrust Claims
In Counts V and VI, brought under Sherman Act § 1 and California’s Cartwright Act,
respectively, Plaintiff alleges that Defendants are liable for conspiring and entering into the
Defacing Policy and Accident Policy together and with other service providers. In Count VII,
Plaintiff alleges that Defendants imposed the Defacing Policy on its unwilling customers in
violation of Sherman Act § 1. In Counts IX and X, Plaintiff alleges that the MAAs Defendants
signed with Plaintiff and HSN unreasonably restrain trade in violation of Sherman Act § 1. In
Counts XI and XII, Plaintiff claims that the Fleet Service Agreements and the Fleet Parts
Agreements violate Sherman Act § 1. In Counts XIII and XIV, Plaintiff seeks to recover under
Sherman Act § 1 and the Cartwright Act, respectively, for the alleged price fixing. Counts XVII
and XVIII purport to state claims under Sherman Act § | and the Cartwright Act, respectively, for
the alleged group boycott. In Count XX, Plaintiff claims that the alleged exclusive supply
agreements violate Sherman Act § |. Count XXI states a Sherman Act § 1 claim premised on the
various other restraints Defendants impose on the MRO Services. In Counts XXII and XXIII
Plaintiff seeks damages and an injunction for Defendants’ alleged monopolization or attempted
14

monopolization of the relevant markets under Sherman Act § 2. Finally, Plaintiff appears to recast
all of the alleged claims under the Kansas Restraint of Trade Act in Counts XXIV and XXV.
(3) Tort Claims
In Count IIL, Plaintiff alleges that Defendants are all liable as bailees for wrongful detention,
conversion, or negligence of Plaintiff's parts. Plaintiff alleges in Counts II and IV that SafranHE
France directed or induced SafranHE USA and SafranHE Canada to breach their contracts with
Plaintiff, and so is liable for tortious interference with contracts or existing business relationships.
In Counts XV and XVI, Plaintiff alleges that SafranHE USA is liable for tortious interference
because it instructed Advanced to breach its contracts with Plaintiff, to not do business with
Plaintiff, or to refuse to extend Plaintiff credit, and otherwise restricted that business relationship.
In Count XIX, Plaintiff claims that SafranHE USA tortiously interfered with its business
relationship with Zodiac by instructing it not to deal with Plaintiff. Count recasts the
aforementioned conduct as a claim for civil conspiracy.
(4) Deceptive Practices Claims
Plaintiff alleges two sets of claims arising out of SafranHE USA’s allegedly deceptive
conduct. First, according to Plaintiff, SafranHE USA falsely stated in service bulletins and
marketing that all manuals and technical documentation were proprietary and not available to
service providers not approved by SafranHE USA. /d. 9] 733-36. This statement was allegedly
false because the FAA recently suggested that a manufacturer may not deny access to such
technical information. /d. 99737, 745, 758. Plaintiff alleges in Counts and XXVIII that
these statements ate actionable under Lanham Act § 35 or as common law unfair competition
through deceptive marketing. fd. 732-63.
Second, Plaintiff complains of a certain helicopter engine module (“Module 3”). fd. 9765.
SafranHE USA allegedly serviced and overhauled this module in October 2009. /d. § 766. At the
15

time of the service, SafranHE USA allegedly knew that its current service procedure caused
problems with the module’s blades, and had already developed a new procedure to address this
problem. /d. [§ 773-76. Nonetheless, SafranHE USA allegedly serviced the module pursuant to
the old procedure, concealed the issue from the owner of the module, and intentionally or
negligently misrepresented to the owner that the module would operate for 800 hours. /d. {| 769,
778-79, After Plaintiff purchased the module and resold it to “Heli Afrique,” it failed after only
96.5 hours of service. /d. {{ 770, 784. SafranHE USA refused to repair it, informing Plaintiff that
there was no justifiable reason for extending the warranty period. /d. 784-86, 789. Based on
the foregoing allegations, Plaintiff alleges that SafranHE USA’s statements regarding the
availability of the new service procedure and the lack of justifiable reason for extending the
warranty were false or misleading. /d. Jf] 789, 797, 800-12. Plaintiff seeks to hold SafranHE USA
liable for these alleged false statements in Count XXIX, under the DTPA, and in Count XXX,
under theories of misrepresentation or concealment.
G. Pending Motions
In their Motions, Defendants raise multiple reasons for the Court to dismiss twenty-seven
Counts in whole or in part. SafranHE USA argues that Plaintiff did not sufficiently plead claims
under the Sherman Act, Cartwright Act, Kansas Restraint of Trade Act, Lanham Act, or for unfair
competition, tortious interference, and civil conspiracy. See Br. of SafranHE USA (hereinafter,
“Br.”) 3-17, 19-25. SafranHE USA also argues that some of Plaintiff's antitrust claims are barred
by the applicable statutes of limitations. See id 17-19. The International Defendants join
SafranHE USA’s arguments, but also ask the Court to dismiss the alter ego allegations, to hold
that the Court lacks subject matter jurisdiction over the antitrust claims, and to hold that SafranHE
France is not subject to personal jurisdiction over any claims asserted against it. See Int’ Defs.’
Br. 4-25,
16

iI. LEGAL STANDARDS
A. Subject Matter Jurisdiction
Under the Constitution, a federal court may decide only actual cases or controversies. U.S.
Const. art. HI, § 2. A court properly dismisses a case where it lacks the constitutional power to
decide it. See Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (Sth
Cir. 1998). Dismissal for lack of subject matter jurisdiction is warranted when “‘it appears certain
that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to
relief.” Gilbert vy. Donahoe, 751 F.3d 303, 307 (Sth Cir. 2014) (quoting Ramming v. United States,
281 F.3d 158, 161 (Sth Cir. 2001)). “Lack of subject matter jurisdiction may be found in any one
of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts.” Ramming, 281 F.3d at 161 (citing Barrera-Montenegro v. United
States, 74 F.3d 657, 659 (Sth Cir. 1996)),
B. Personal Jurisdiction
Federal Rule of Civil Procedure 12(b)(2) allows defendants to move to dismiss claims for
iack of personal jurisdiction. The plaintiff bears the burden of making a prima facie showing that
a court has personal jurisdiction over a defendant. Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d
429, 431 (Sth Cir. 2014). In considering a motion to dismiss pursuant to Rule 12(b)(2), the court
must accept the plaintiff's “uncontroverted allegations, and resolve in its favor all conflicts.”
Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir, 2000), The court may consider
“affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized
methods of discovery.” Stuart v. Spademan, 772 F.2d 1185, 1192 (Sth Cir. 1985),
Because Texas’s long-arm statute extends to the limits of federal due process, this Court
has personal jurisdiction over a nonresident defendant so long as the assertion of jurisdiction
17 □

comports with the Due Process Clause of the United States Constitution. See Sangha v. Navig8
ShipManagement Private Ltd., 882 F.3d 96, 101 (Sth Cir. 2018). “Due process requires that the
defendant have ‘minimum contacts’ with the forum state... and that exercising jurisdiction is
consistent with ‘traditional notions of fair play and substantial justice.’” Jd. (quoting Johnston vy.
Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (Sth Cir. 2008)).
Personal jurisdiction can be general or specific. See Lewis v. Fresne, 252 F.3d 352, 358
(Sth Cir. 2001). General jurisdiction aliows a court to hear any claim against a nonresident
defendant, and it exists when that defendant’s “affiliations with [Texas] are so ‘continuous and
systematic’ as to render them essentially at home in [Texas].” Daimler AG v. Bauman, 571 US.
117, 127 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919
(2011)). “Establishing general jurisdiction is ‘difficult’ and requires ‘extensive contacts between
a defendant and a forum.’” Sangha, 882 F.3d at 101-02 (quoting Johnston, 523 F.3d at 609).
In evaluating specific jurisdiction, courts consider:
(1) whether the defendant has minimum contacts with the forum state, i.e., whether
it purposely directed its activities toward the forum state or purposefully availed
itself of the privileges of conducting activities there; (2) whether the plaintiffs
cause of action arises out of or results from the defendant’s forum-related contacts;
and (3) whether the exercise of personal jurisdiction is fair and reasonable.
Carmona v. Leo Ship Mgmt. Inc., 924 F.3d 190, 193 (Sth Cir. 2019) (quoting Seiferth v.
Helicopteros Atuneros, Inc., 472 F.3d. 266, 271 (Sth Cir. 2006)). “In order for a... court to
exercise specific jurisdiction, ‘the suit’ must ‘arisfe] out of or relat[e] to the defendant’s contacts
with the forum.” Bristol-Myers Squibb Co. v, Super. Ct., 137 8. Ct. 1773, 1780 (2017) (first
alteration added) (quoting Daimler AG, 571 U.S. at 127). “In other words, there must be ‘an
affiliation between the forum and the underlying controversy, principally, [an] activity or an
occurrence that takes place in the forum State and is therefore subject to the State’s regulation.””
fd. (alteration in original) (quoting Goodyear, 564 U.S. at 919),
18

The minimum contacts analysis is fact intensive, and the touchstone is “whether the
defendant’s conduct shows that it ‘reasonably anticipates being hauled into court’” in the forum
state. McFadin v. Gerber, 587 F.3d 753, 759 (5th Cir. 2009) (quoting Luv N’ care, Ltd. v. Insta-
Mix, Inc., 438 F.3d 465, 470 (5th Cir. 2006)). Once the plaintiff establishes minimum contacts,
the burden shifts to the defendant to show that the exercise of jurisdiction is “unfair and
unreasonable.” Sangha, 882 F.3d at 102. In determining whether the defendant has carried this
burden, courts balance five factors: (1) the burden on the nonresident defendant of having to defend
itself in the forum; (2) the interests of the forum state in the case; (3) the plaintiff's interest in
obtaining convenient and effective relief; (4) the interstate judicial system’s interest in the most
efficient resolution of controversies; and (5) the shared interests of the states in furthering
fundamental social policies. fd
C. Failure to State a Claim
To defeat a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), a
plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. vy. Earle, 517 F.3d 738,
742 (5th Cir. 2008). To meet this “facial plausibility” standard, a plaintiff must “plead[] factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Igbal, 556 U.S, 662, 678 (2009), Plausibility does not require
probability, but a plaintiff must establish “more than a sheer possibility that a defendant has acted
unlawfully.” /d. The court must accept well-pleaded facts as true and view them in the light most
favorable to the plaintiff. Sonnier v. State Farm Mut. Auto. ins., 509 F.3d 673, 675 (Sth Cir. 2007).
However, the court does not accept as true “conclusory allegations, unwarranted factual inferences,
or legal conclusions,” Ferrer vy. Chevron Corp., 484 F.3d 776, 780 (Sth Cir. 2007). A plaintiff
must provide “more than labels and conclusions, and a formulaic recitation of the elements of a
19

cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). “Factual
allegations must be enough to raise a right to relief above the speculative level . . . on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” (internal
citations omitted),
The ultimate question is whether the complaint states a valid claim when viewed in the
light most favorable to the plaintiff. Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co.,
313 F.3d 305, 312 (5th Cir. 2002). At the motion to dismiss stage, the court does not evaluate the
plaintiffs likelihood of success. It only determines whether the plaintiff has stated a claim upon
which relief can be granted. Mann v. Adams Realty Co., 556 F.2d 288, 293 (Sth Cir, 1977).
Ill. ANALYSIS
A, Alter Ego
The Complaint states that “[D]efendants are the alter-egos of one another.” Third Am.
Compl. ff 20-24. A sufficiently pleaded alter ego theory could affect the Court’s analysis of the
challenges to its subject matter jurisdiction or its personal jurisdiction over the International
Defendants, and so the Court will address this issue first. See, e.g., Patin v. Thoroughbred Power
Boats Inc., 294 F.3d 640, 653 (5th Cir. 2002) (“[A] court [may] exercise personal jurisdiction
over... corporation that would not ordinarily be subject to personal jurisdiction in that court
when the... corporation is an alter ego... of a corporation that would be subject to personal
jurisdiction in that court.” (collecting cases)).
The Court resolves alter ego issues by considering “the totality of the circumstances,” in
light of the following list of non-exhaustive factors:
(1) the parent and the subsidiary have common stock ownership; (2) the parent and
the subsidiary have common directors or officers; (3) the parent and the subsidiary
have common business departments; parent and the subsidiary file
consolidated financial statements and tax returns; (5) the parent finances the
subsidiary; (6) the parent caused the incorporation of the subsidiary; (7) the
20

subsidiary operates with grossly inadequate capital; (8) the parent pays the salaries
and other expenses of the subsidiary; (9) the subsidiary receives no business except
that given to it by the parent; (10) the parent uses the [subsidiary’s] property as its
own; (11) the daily operations of the two corporations are not kept separate; and
(12) the subsidiary does not observe the basic corporate formalities, such as keeping
separate books and records and holding shareholder and board meetings.
Gundle Lining Constr. Corp. v. Adams Cty. Asphalt, Inc., 85 F.3d 201, 208-09 (Sth Cir. 1996)
(quoting United States v. Jon-T Chems., Inc., 768 F.2d 686, 691-92, 694 (Sth Cir. 1985)). Texas
state courts consider similar factors. See, e.g., Mancorp, Inc. v. Culpepper, 802 $.W.2d 226, 229
(Tex. 1990). Generally, the Court will only find corporations to be alter egos of one another “when
there is such unity between [the corporations] that the separateness of the corporation[s] has ceased
and holding only [one] corporation liable would result in injustice.” SEC v. Res. Dey. Int'l, LLC,
487 F.3d 295, 302 (5th Cir. 2007) (quoting Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex.
1986)). The Court can dismiss an alter ego claim where the complaint lacks sufficient factual
allegations to state the claim. See, e.g., dare Parkcentral Glob. Litig., Civ. A. No. 3:09-CV-0765-
M, 2010 WL 3119403, at *10-11 (N.D. Tex. Aug. 5, 2010) (dismissing a claim to pierce the
corporate veil); Rolls-Royce Corp. v. Heros, Inc., 576 F. Supp. 2d 765, 789 (N.D. Tex. 2008)
(dismissing alter ego claim where complaint was devoid of factual assertions in support of it).
The Court finds that the Complaint lacks sufficient factual allegations to suggest that the
Defendants are alter egos of one another. First, the Court does not credit Plaintiff's conclusory
allegation that “there has existed...a unity of interest in ownership and control between
[Defendants].” Third Am. Compl. 4 20. This leaves only one allegation to support the alter ego
theory: that SafranHE France exercised substantial decision-making power over the other
Defendants. See id. J§ 21-24. After foraging the Complaint for examples of such control, the
Court found the following allegations: (1) SafranHE France decided who would be an authorized
service provider, see id. YJ 52-53; (2) SafranHE France imposed various policies upon the other

21

Defendants, see id. [9 55, 149, 186; and (3) the other Defendants shipped parts to SafranHE France
for repairs, see id. § 138. Even accepting these allegations as true, the relationship between
Defendants is a far cry from “such unity between [the corporations] that the separateness of the
corporation[s] has ceased.” Res. Dev. Int'l, 487 F.3d at 302. Thus, the Court finds that Plaintiff
did not plead sufficient facts to show that Defendants are alter egos of one another, Accordingly,
the Court grants the Motions as to the alter ego allegations and will treat Defendants separately for
jurisdictional purposes.
B, Jurisdiction
Having determined that the Complaint does not state a viable alter ego claim, the Court
now turns to whether the Complaint alleges sufficient facts to establish the Court’s subject matter
jurisdiction and personal jurisdiction. Here, Defendants raise four arguments: (1) that the Foreign
Trade Antitrust Improvements Act (“FTAIA”) bars the federal antitrust claims against them;
(2) that the FTAIA also bars the state antitrust claims; (3) that Plaintiff lacks standing to bring a
Cartwright Act claim; and (4) that the Court lacks personal jurisdiction over SafranHE France.
For the reasons stated below, the Court finds that it lacks subject matter jurisdiction over Counts IX
and X as to the International Defendants, lacks subject matter jurisdiction over Count XI as to
SafranHE Canada, and lacks personal jurisdiction over SafranHE France as to Count U. The Court
otherwise denies the Motions to dismiss on these bases.
(1) FTAIA and Sherman Act Claims
The FTAIA limits the application of the federal antitrust laws when non-import foreign
commerce is involved, See 15 U.S.C. § 6a; Den Norske Stats Oljieselskap As v. HeereMac Vof,
241 F.3d 420, 421 (Sth Cir. 2001). The FTAIA specifically excludes claims under the Sherman
Act for non-import activity unless (1) the conduct has a direct, substantial, and reasonably
foreseeable effect on United States imports, domestic commerce, or United States exports, and
22

(2) such effect gives rise to a claim under the Sherman Act. See 15 U.S.C, § 6a(1); Hartford Fire
Ins. v. California, 509 U.S. 764, 796 n.23 (1993). The FTAIA also “precludes subject matter over
claims by foreign plaintiffs against defendants where the situs of the injury is overseas and that
injury atises from effects in a non-domestic market.” Den Norske, 241 F.3d at 428.
In this case, the Court finds that the FTAIA does not bar the antitrust claims pleaded in
Counts V, VIJ, XI (against SafranHE France only), XII, XII, XVII, XXI, and XXIL For these
Counts, Plaintiff alleged that the International Defendants’ conduct harmed domestic commerce
and Plaintiff, a domestic corporation. See, e.g., Third Am. Compl. {{] 298, 374, 702. Moreover,
Plaintiff alleged that the International Defendants either directly participated in the U.S. markets,
see, e.g., id. 99245, 285, 358, 672, 701, entered into alleged anticompetitive agreements with
U.S. companies, see, e.g., id. J] 273, 278, 280, 463, 479, 503, or allegedly conspired to restrain
U.S. commerce, see, e.g., J§ 270, 483, 561, 643, 645. At this stage of the litigation, these
allegations are sufficient for the Court to exercise subject matter jurisdiction over these claims.
Conversely, the Court finds that it lacks subject matter jurisdiction over the antitrust claims
asserted against the International Defendants in Counts LX and X, and against SafranHE Canada
in Count XI. In Counts IX and X, Plaintiff alleged only that SafranHE France had a practice of
denying access to technical information to unauthorized service centers, see id. 4] 425, 444, and
that SafranHE France “approved the restraint in the... MAAJs].” See id. 9] 426, 444. Plaintiff
cannot, however, state a Sherman Act § 1 claim against SafranHE France premised on its approval
of the contract alone, absent allegations that it was a party to the contract or a co-conspirator. See
Rio Grande Royalty Co. y. Energy Transfer Partners, L.P., 786 F. Supp. 2d 1190, 1199-1200 (S.D.
Tex. 2009). As for SafranHE Canada, the Complaint is silent about its involvement in these
allegations; therefore, Plaintiff has not pleaded conduct that gives rise to a Sherman Act claim

23

against SafranHE Canada in these Counts. See 15 U.S.C. § 6a(1); Hartford Fire Ins., 509 U.S. at
796 n.23..
Accordingly, the Court finds that it lacks subject matter jurisdiction over Counts IX and X
insofar as they are pleaded against the International Defendants, and Count XI against SafranHE
Canada.
(2) FTATA and State Law Antitrust Claims
The International Defendants assert that the FTAIA also bars the Kansas and California
antitrust claims against them (Counts VI, XIV, XVIH, XXIV, and XXV), see Int’! Defs.’ Br. 17-
18, and Plaintiff does not respond to this argument. The Court, however, liberally construes
Plaintiff's Response to encompass the International Defendants’ challenge of this Court’s subject
matter jurisdiction over the state antitrust claims. First, the Court notes that it is without binding
authority as to whether the FTAIA extends to state law claims. Some federal courts have
concluded that it does. See In re TFT-LCD (Flat Panel) Antitrust Litig., No. C 12-3802 SI, 2014
WL 1568870, at *4 (N.D. Cal. Apr. 18, 2014) (collecting cases, but refusing to reach the issue).
The Court does not need to decide this question, however, because all of the state law claims allege
that the International Defendants engaged in domestic conduct that caused domestic harm. See
Third Am. Compl. ff 311, 326, 338, 341, 517-21, 523, 530, 532, 588, 592, 597, 710-12, 719-21.
Accordingly, even if the Court found that the FTAIA extends to the Cartwright Act and the Kansas
Restraint of Trade Act, a conclusion the Court specifically does not reach, the Court would find
that it has subject matter jurisdiction over these claims.
(3) Personal Jurisdiction
SafranHE France also moves to dismiss all claims brought against it, arguing that the Court
lacks personal jurisdiction over it. The Court finds that it lacks personal jurisdiction over SafranHE

24

France as to Count II, but finds that it has specific or pendent personal jurisdiction over SafranHE
France as to the other Counts.
a. General Jurisdiction
As explained above, general jurisdiction allows a court to hear any claim against a
nonresident defendant, and it exists when that defendant’s “affiliations with [Texas] are so
‘continuous and systematic’ as to render them essentially at home in [Texas].” Daimler AG, 571
U.S. at 127 (quoting Goodyear, 564 U.S. at 919). “Itis ... incredibly difficult to establish general
jurisdiction in a forum other than the place of incorporation or principal place of business.”
Monkton, 768 F.3d at 432 (citations omitted). Plaintiff does not contend in its response that the
Court has general jurisdiction over SafranHE France. Nor could it, as the Complaint makes clear
that SafranHE France is a French company. See Third Am. Compl. 47. Moreover, SafranHE
France’s main customer is headquartered in France, and nothing in the Complaint suggests that
SafranHE France’s principal piace of business is anywhere in the United States. See id 471.
Accordingly, the Court finds that it lacks general jurisdiction over SafranHE France.
b. Specific Jurisdiction
The specific jurisdiction analysis differs for federal antitrust claims and state law claims.
For the federal antitrust claims, “jurisdiction over [SafranHE France] may be obtainable based on
nationwide contacts rather than just Texas contacts,” because Congress authorized nationwide
service of process for these claims. Access Telecom, Inc. vy. MCI Telecomms. Corp., 197 F.3d 694,
718 (Sth Cir. 1999) (citing 15 U.S.C. § 22). For state law claims, however, the focus is on
SaftanHE France’s contacts with Texas, because ““the suit’ must ‘aris[e] out of or relat[e] to the
defendant’s contacts with the forum.’” Bristol-Myers Squibb, 1378S. Ct. at 1780 (quoting Daimler
AG, 571 U.S. at 127). Regardless,

25

Pendent personal jurisdiction “exists when a court possesses personal jurisdiction
over a defendant for one claim, lacks an independent basis for personal jurisdiction
over the defendant for another claim that arises out of the same nucleus of operative
fact, and then, because it possesses personal jurisdiction over the first claim, asserts
personal jurisdiction over the second claim.”
Nat'l Oil Well Varco, L.P. v. Sadagopan, Civ. A. No. H-16-2261, 2017 WL 2957908, at *6 (S.D.
Tex. July 11, 2017) (quoting Rolls-Royce, 576 F. Supp. 2d at 783). “The decision to exercise
pendent personal jurisdiction is discretionary with the court.” Gen. Elec. Capital Corp. □□□
Mackzilla, LLC, Civ. A. No. H-15-2425, 2016 WL 1059529, at *5 (S.D. Tex. Mar. 17, 2016)
(citing Rolls-Royce, 576 F. Supp. 2d at 784). “Although the Fifth Circuit has not yet addressed
pendent personal jurisdiction, this district and every circuit to decide the issue have approved the
doctrine.” /d. In this case, SafranHE France argues that Plaintiff did not plead sufficient minimum
contacts for the Court to exercise jurisdiction over it, but does not argue that the exercise of
personal jurisdiction would be otherwise unfair or unreasonable. See Int’] Defs.’ Br. 18-21.
The Court finds that it has specific or pendent personal jurisdiction over SafranHE France
as to Counts IH, IV, V, VI, VI, VII, [X, X, XL, XU, XE XIV, XXI, XXII, XXUI, XXIV, XXV,
and For each of these Counts, Plaintiff alleged that SafranHE France either contracted
with, conspired with, or directed a Texas or domestic entity to engage in certain conduct—e.z., to
adopt the Defacing and Accident Policies, to authorize the defacing of unserviceable parts, or to
set prices, refuse services to a customer. See, e.g., Third Am. Compl. 278, 350, 498-503, 558-
62. The Court finds that these allegations suffice to show minimum contacts with the forum and
a claim arising out of those contacts. See Access Telecom, 197 F.3d at 719 (“While [the defendant|
did not conduct much business in Texas, it conducted a high volume of business with Texas and
Texas corporations. It was this business with which [the defendant] was concerned when [it]
allegedly canceled [the plaintiff's] numbers. Such actions, if done without a legal right, may
amount to a violation of U.S. law.”). Even if specific jurisdiction did not exist as to one or more
26

of these claims, the Court finds that these claims arise out of a common nucleus of operative facts
and exercises pendent jurisdiction as to these claims.
On the other hand, the Court finds that Plaintiff did not plead sufficient facts for the Court
to exercise specific or pendent personal jurisdiction over SafranHE France as to Count H, in which
Plaintiff claims that SafranHE France converted Plaintiff's property. The Fifth Circuit addressed
this precise issue in Pervasive Software Inc. v. Lexware GmbH & Co. KG, 688 F.3d 214 (2012).
In Pervasive, the Fifth Circuit considered whether specific jurisdiction existed over a German
corporation regarding a claim of conversion of property. See id. at 229. The Fifth Circuit noted
that specific jurisdiction would exist if the German corporation committed the tort “in whole or in
part” in Texas. /d (quoting TEX. Civ. PRAc. & REM. CODE ANN § 17.042). Finding that the
complaint alleged that the German corporation had offices only in Germany and did not allege that
any act occurred in Texas, the Fifth Circuit concluded that the alleged conversion occurred in
Germany and so did not fall under Texas’s long-arm statute. /d. (citations omitted).
The Court finds the present case analogous. Plaintiff alleged that SafranHE France, a
French company, converted and refused to return Plaintiff's property. See Third Am. Compl.
211,218. There are no allegations showing that SafranHE France took any tortious action in
Texas. Accordingly, the Court lacks specific jurisdiction over SafranHE France as to Count II.
The Court further finds that the conversion allegations do not arise out of the same nucleus of
operative fact as the other claims and so declines to exercise pendent personal jurisdiction over
SafranHE France as to this Count. For these reasons, the Court grants the International
Defendants’ Motion as to Count II.
(4) Standing under the Cartwright Act
SafranHE USA challenges Plaintiff's Cartwright Act claims, arguing that Plaintiff has not
alleged that it was injured in California. See Br. 19-20. The Court construes this as a challenge to
27

Plaintiff’s standing to bring these claims. The Cartwright Act “is California’s version of the federal
Sherman Act and sets forth California’s antitrust laws.” Cellular Plus, Inc. v. Super. Ct, 14 Cal.
App. 4th 1224, 1232 n.2 (1993), In order for a private plaintiff to have standing to sue under the
Cartwright Act, the plaintiff must prove antitrust injury, “which is to say injury of the type the
antitrust laws were intended to prevent and that flows from that which makes defendants’ acts
unlawful.” Jd. at 1234 (citations omitted). Standing is broader under the Cartwright Act than
under the Sherman Act, because the Cartwright Act allows even indirect purchasers to recover.
Lorenzo v. Qualcomm Inc., 603 F. Supp. 2d 1291, 1302 (S.D. Cal, 2009). Here, Plaintiff alleges
that its injury implicates California because the various conspiracies involve Advanced, which
appears to be a corporation located in California. See Third Am. Compl. 98, 338, 530, 597,
The Complaint also suggests that Plaintiff was Advanced’s customer. See, e.g., id 9] 283, 536.
For the purposes of the pending motions, the Court finds that these allegations, viewed in the light
most favorable to Plaintiff, are sufficient to confer standing upon Plaintiff as a customer of a
California company. See Lorenzo, 603 F. Supp. 2d at 1302 (quoting Cellular Plus, 14 Cal. App.
4th at 1233)).
C. Failure to State a Claim
Defendants further contend that the Complaint does not include sufficient facts to state
twenty-six of the thirty causes of action alleged therein. Defendants do not challenge the
sufficiency of the pleadings as to the alleged breach of contract involving Plaintiffs parts,
wrongful detention, conversion, or negligence as to the parts, violation of the DTPA, and
misrepresentation or concealment. For the following reasons, the Court grants the Motion as to
every challenged claim except Count XV.’

7 To the extent the Court already dismissed a claim in whole or in part, the following analysis constitutes additional
grounds for dismissing that claim.
28

(1) Antitrust Claims
a. Sherman Act § I
Section 1 of the Sherman Act prohibits “[e|very contract, combination... , or conspiracy
in [unreasonable] restraint of trade or commerce.” MM Steel, LP. v. JSW Steel (USA) Inc., 806
F.3d 835, 848 (Sth Cir, 2015) (alteration in original) (quoting 15 U.S.C. § 1). “[A] key distinction
in antitrust law” is that certain restraints on trade are deemed per se illegal while others are
analyzed under the rule of reason. /d Thus, the Court will first determine whether the claims
should be analyzed under the rule of reason or per se mode of analysis, and will then address the
sufficiency of Plaintiff's allegations for these claims.
i. Mode of Analysis
Most arrangements challenged under § 1 are analyzed under the “rule of reason,” which
“requires the factfinder to decide whether under all the circumstances of the case the restrictive
practice imposes an unreasonable restraint on competition.” Arizona v. Maricopa Cty. Med. Sec’y,
457 US. 332, 343 (1982). Experience has shown, however, that certain arrangements are
generally found to be unlawful under the rule of reason, and so are presumed to unreasonably
restrain competition. /d at 344. These practices are referred to as per se violations and include
certain types of “price fixing, division of markets, group boycotts and tying arrangements.” WN.
Tex. Specialty Physicians v. FTC, 528 F.3d 346, 360 (Sth Cir. 2008) (quoting Maricopa Cty, 457
U.S. at 344 n.15); but see Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 887, 899
(2007) (holding that vertical price fixing is analyzed under rule of reason); Meijer, Inc. y. Barr
Pharm, Inc., 572 F. Supp. 2d 38, 48-49 (D.D.C. 2008) (collecting cases where exclusive supply
agreements were analyzed under rule of reason), Courts generally do not expand the per se
category absent demonstrable economic effect and a substantial history of declaring particular
conduct unlawful. See Abadir & Co. v. First Miss. Corp., 651 F.2d 422, 428 (Sth Cir. Unit A July
29

1981) (first quoting Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 58-59 (1977); and then
quoting United States v. Topco Assocs., Inc., 405 U.S. 596, 607 (1972)).
Counts V, VIE, IX, X, XI, XII, XX, and XxX appear to be premised on contracts or
conspiracies between entities at different levels of the distribution chain. Such vertical restraints
are analyzed under the rule of reason. See, e.g., Sylvania, 433 U.S. at 58 (holding that vertical
restraints are generally analyzed under rule of reason); Abadir & Co., 651 F.2d at 428 (refusing to
extend per se category to “include all suppliers who also compete with their distributors”). Even
if these Counts alleged contracts or conspiracies between competitors alone, these Counts do not
allege price fixing, division of markets, group boycotts, or tying arrangements, and the Court will
not unduly expand the per se category. Thus, the Court will analyze Counts V, VU, IX, X, XI,
Xil, XX, and XX] under the rule of reason.
This leaves Counts XII and XVIH, which are labeled “price fixing” and “group boycott,”
respectively. See Third Am. Compl. 77, 90. Viewing the Complaint in the light most favorable
to Plaintiff, the Court finds that Count XIH alleges a conspiracy to set prices among competitors.
See, ¢.g., id. 497 (“SafranHE USA and Heli-One [agreed] not [to] undercut SafranHe [sic] USA’s
MRO services pricing... .”). Horizontal price fixing agreements are per se unlawful. See NV. Tex.
Specialty, 528 F.3d at 360. For the purpose of resolving the pending Motions, therefore, the Court
will apply the per se mode of analysis to Count XIII.
With regard to the group boycott claim, “[t}]he Supreme Court has regularly applied per se
liability to agreements described as ‘either directly denying or persuading or coercing suppliers or

On its own review of the Complaint, the Court is of the opinion that Count XXI includes allegations that could be
construed as giving rise to a tying claim under the Sherman Act. Although Plaintiff never raises this legal theory,
“[t]o survive a 12(b}(6) motion to dismiss, a complaint need not correctly categorize the legal theories giving rise to
the claims.” Rathborne v, Rathborne, 683 F.2d 914, 917 n.8 (Sth Cir. 1982); see also Shippitsa Ltd. y. Slack, Civ. A.
No. 3:18-CV-1036-D, 2019 WL 3304890, at *12 (N.D. Tex. July 23, 2019) (“Even if [the] complaint fails to identify
a specific legal theory, the court cannot dismiss it on that ground.”). Accordingly, the Court addresses a potential
tying claim and dismisses it for the reasons stated below, See infra § IILC. Lc.
30

customers to deny relationships the competitors need in the competitive struggle.’” AZM Steel, 806
F.3d at 848 (quoting Nw. Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 US.
284, 294 (1985)}. Viewed in the light most favorable to Plaintiff, the Complaint appears to suggest
that Defendants and other authorized repair centers conspired not to sell parts to Plaintiff, a
competitor. See Third Am. Compl. 554, 564. Accordingly, the Court will analyze Count XVII
under the per se mode of analysis for the purpose of resolving the pending Motions.
ii. Per Se Clainis
Although price fixing and group boycotts generally are found to be per se unlawful, it is
not enough for a plaintiff to summarily assert that a price fixing or group boycott conspiracy is
afoot. The Supreme Court analyzed the sufficiency of conspiracy allegations in Bell Atlantic Corp.
v. Twombly, and held that a complaint must state more than “an allegation of parallel conduct and
a bare assertion of conspiracy.” 550 U.S. at 556; see also Schafer v. State Farm Fire & Cas. Co.,
507 F. Supp. 2d 587, 596-97 (E.D. La. 2007) (finding that the plaintiff did not adequately plead
the existence of a conspiracy).
The Court finds that Plaintiff did not plead sufficient facts to state a conspiracy either to
fix prices or to boycott Plaintiff. Count XII, for example, alleges that Defendants conspired to fix
prices through a series of agreements with competitors. See Third Am. Compl. □□□ 495-514. The
Complaint does not mention, however, any agreement to which SafranHE Canada or SafranHE
France was a party. Even when the Complaint discusses a specific agreement, the Complaint states
no more than that SafranHE USA entered into agreements with its competitors “not to undercut
SafranHe [sic] USA’s service pricing.” See id. 9] 497-502. This allegation simply rephrases the
claim-~i.e., that SafranHE USA contracted with competitors to fix prices. Plaintiff did not allege
facts showing the purported conspiracy, such as allegations showing a decrease in price
competition, changes in pricing, or other facts establishing “more than a sheer possibility that
31

[Defendants] halve] acted unlawfully.” Jgbal, 556 U.S. at 678. Similarly, Count XVII describes
in significant detail how Defendants and other companies keep track of the end user of their
products, see Third Am. Compl. 9] 555-60, and then summarily states that “SafranHE USA
instructed Advanced . , . as well as the entire network of repair centers . . . not to do business with
[Plaintiff].” /d 561. These allegations, without more, are conclusory and do not raise Plaintiff's
claim above the speculative level.? Accordingly, the Court grants the Motions as to Counts XII
and XVII.
iii. Rule of Reason Claims
(a) Market Definition
For the Court to declare a contract or conspiracy unlawful under the rule of reason, a
plaintiff must allege that the contract or conspiracy restrains a particular market. See MM Steel,
806 F.3d at 843 (quoting Spectators’ Comme’n Network Inc. v. Colonial Country Club, 253 F.3d
215, 220 (5th Cir. 2001); Muenster Butane, Inc. v. Stewart Co., 651 F.2d 292, 295 (Sth Cir, Unit A
July 1981). To allege a relevant market, a plaintiff must allege a product market and a geographic
market. See PSKS, Inc. v. Leegin Creative Leather Prods., Inc.,615 F.3d 412, 417 (Sth Cir, 2010).
A product market is defined by considering cross-elasticity of demand—i.e., two products are in
the same market if an increase in the price of one product increases demand for another product.
See E.L du Pont, 351 U.S. at 404, Although the definition of the product market usually presents
a question of fact, the Court may determine it as a matter of law:
[wlhere the plaintiff fails to define its proposed [product] market with reference to
the rule of reasonable interchangeability and cross-elasticity of demand, or alleges
a proposed relevant market that clearly does not encompass all interchangeable

Even if Plaintiff had adequately pleaded that SafranHE USA entered into a conspiracy to fix prices or boycott
Plaintiff, the Complaint is devoid of any facts showing SafranHE France’s or SafranHE Canada’s participation in the
alleged conspiracies. This deficiency is fatal to Plaintiffs claims against SafranHE France and SafranHE Canada.
32

substitute products even when all factual inferences are granted in plaintiffs
favor....
Apani Sw., Inc. v. Coca-Cola Enters., Inc., 300 F.3d 620, 628 (Sth Cir. 2002).
The geographic market is based on the area of “effective competition ... [which] must be
charted by careful selection of the market area in which the seller operates and to which the buyers
can practicably turn for supplies.” Jd. at 626 (citation omitted). Specifically, the geographic
market includes all areas “not just where consumers currently purchase the product, but where
consumers could turn for alternative products or sources of the product if a competitor raises
prices.” Surgical Care Cir. of Hammond, L.C. v. Hosp. Serv. Dist. No. 1 of Tangipahoa Par. , 309
F.3d 836, 840 (Sth Cir. 2002). Here, the market definition is deficient in several ways.
Plaintiff alleges two product markets: a market for Defendants’ engines and parts, and a
market for MRO Services for Defendants’ engines and parts. See Third Am. Compl. J 252, 261.
Even if the Court accepted that the product markets are limited to Defendants’ products, Plaintiff
provides no justification for defining the markets in reference to all of Defendants’ customers
except helicopter manufacturers. See id 99253, 262. Plaintiff argues that helicopter
manufacturers are properly excluded because they “are not long-term owners of the engines and
thus are not participants in the MRO [Slervices or engine/parts markets.” Resp. to SafranHE
USA’s Mot. to Dismiss (hereinafter, “Resp.”) 13. The Court will not credit this implausible
assertion and unwarranted factual inference. See Ferrer, 484 F.3d at 780. Nothing in the
Complaint suggests that helicopter manufacturers cannot sell leftover engines or parts, or request
or perform MRO Services on old parts in lieu of purchasing new parts. Even if helicopter
manufacturers are properly excluded, Plaintiffs product market allegations do not include
“manufacturers of new PMA Parts (substitute parts otherwise manufactured by companies not
affiliated with [Defendants], under an FAA program known as Part Manufacturing

33

Authorization).” Third Am. Compl. { 689. A substitute part is by definition interchangeable for
the part it substitutes, meaning that the demand for substitute and original parts is typically
cross-elastic. By the same token, the market definition presumably needed to include companies
that service PMA parts. Finally, the Court finds that Plaintiffs allegations that the parts and
services of other manufacturers are not interchangeable for Defendants’ parts and services, id.
254-55, 263, are conclusory. See Twombly, 550 U.S. at 555.
Even if Plaintiffs product markets were properly defined, Plaintiff incomprehensibly
limits the geographic market to the United States.'° See Third Am. Compl. 245. Plaintiff's own
allegations suggest that the geographic market is broader than this: the Complaint states that
Defendants’ customers and competitors are located in the United States and Canada. fd. J] 245-49.
Additionally, there are numerous allegations that would suggest the relevant geographic market
might be worldwide. For example, Plaintiff alleges that: (1) SafranHE France transacts business
in the United States, id. 9] 42, 45; (2) Defendants’ principal customer Airbus allegedly has its
headquarters in Marginane, France, id. | 71; (3) SafranHE France “is the largest solely dedicated
manufacturer of Helicopter Engines in the world,” id. J 76, 79; and (4) Defendants would ship
parts for service across the Atlantic, see id. J{ 64, 138. These allegations show that companies in
this industry operate globally—-i-e., a French company can profitably conduct business in the
United States while maintaining a physical location abroad. The Complaint provides no reason
for the Court to ignore Defendants’ international competitors. See Surgical Care, 309 F.3d at 840
(considering whether consumer would turn to areas outside the United States for “alternative

© Plaintiff contends that this is a typo and that the sentence should have read “United States and Canada.” See Resp.
12 & n.17. It is axiomatic that Plaintiff cannot amend the complaint by a brief in opposition to a motion to dismiss.
Energy Coal v. Citgo Petroleum Corp., 836 F.3d 457, 462 n.4 (Sth Cir. 2016) (citing Roebuck v. Dothan Sec., □□□□□
515 F. App’x 275, 280 (Sth Cir, 2013)). In any event, this correction would not save Plaintiffs defective market
definition. Therefore, the Court will not grant Plaintiff leave to amend. See Resp. 12 n.17 (requesting leave to amend);
Legate v. Livingston, 822 F.3d 207, 211 (Sth Cir. 2016) (“[A] district court need not grant a futile motion to amend.”),
34

products or sources of the product if a competitor raises prices”). In short, Plaintiff's “geographic
market definition does not comport with the commercial realities of the industry” as described by
Plaintiff. See Honeywell Int’l Inc. v. MEK Chem. Corp., Civ. A. No. 3:17-cv-1390-M, 2018 WL
6737514, at *3 (N.D. Tex. July 5, 2018).
For the foregoing reasons, the Court finds that Plaintiff did not properly allege a relevant
market and grants the Motions as to Counts V, VII, [X, X, XI, XII, XX, and XXI.
(b) Injury to Competition
Even if Plaintiff adequately alleged a market for these Counts, the Court finds that
Plaintiff's assertions regarding market injury are speculative. To state a claim under Sherman Act
§ 1, a plaintiff must allege facts showing an anticompetitive effect stemming from the unlawful
conduct alleged. See Marucci Sports, LLC. v. NCAA, 751 F.3d 368, 375 (Sth Cir, 2014)
(“[Plaintiff's] Second Amended Complaint must allege facts showing that the [conduct]
unreasonably restrained trade in the... market.” (citations omitted)}. “Speculation about
anticompetitive effects is not enough.” Roy B. Taylor Sales, Inc. v. Hollymatic Corp, 28 F.3d
1379, 1385 (Sth Cir, 1994) (holding that plaintiff needed to show “that the tie ‘as it actually
operate[d] in the market’ harmed competition,” rather than the mere existence of a tie (quoting
Jefferson Par. Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 29 (1984))). Here, Plaintiff pleaded no facts
showing an injury to competition for any of its Sherman Act § 1 claims. Plaintiff alleges, for
example, that certain practices “suppress intrabrand competition,” Third Am. Compl. Jf 294, 466,
627, “harm{] competition, foreseeably, directly, and substantially,” id. J] 298, 364, 432, 450, 488,
658, or raise prices. See id 635. Plaintiff does not, however, provide any details about
competition in the relevant markets. Accordingly, the Court finds Plaintiffs allegations of
anticompetitive effect to be speculative and conclusory, and grants the Motions as to Counts V,
VII, IX, X, XI, XU, XX, and XX],
35

b. Sherman Act § 2
To state a claim for monopolization, a plaintiff must plausibly allege “(1) the possession
of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that
power as distinguished from growth or development as a consequence of a superior product,
business acumen, or historic accident.” Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S.
451,481 (1992). To state a claim for attempted monopolization, a plaintiff must plausibly allege
“(1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific
intent to monopolize and (3) a dangerous probability of achieving monopoly power [in the relevant
market].” Retractable Techs., Inc. v. Becton Dickinson & Co., 842 F.3d 883, 891 (Sth Cir. 2016)
(citation omitted). For both claims, Plaintiff must properly define a geographic and product
market. See Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993) (noting that an
attempted monopolization claim generally requires “a definition of the relevant market and
examination of market power”), Eastman Kodak, 504 U.S. at 481 (noting that a plaintiff must
allege “monopoly power in the relevant market” for a monopolization claim).
Plaintiff purports to have defined the market for its monopolization and attempted
monopolization claims in its Sherman Act § 1 claims. See Third Am. Compl. {{ 667, 698. As
explained above, Plaintiff's market definition is deficient. Without a validly defined market, the
Court cannot determine whether Defendants have market or monopoly power in those markets.
See Honeywell Int’l Inc., 2018 WL 6737514, at *3. Accordingly, the Court finds that Plaintiff did
not sufficiently plead claims for monopolization and attempted monopolization, and grants the
Motions as to Counts XXII and XXIII.
Tying Claim
A tying arrangement is “an agreement by a party to sell one product [(also called a tying
product)] but only on the condition that the buyer also purchases a different (or tied) product, or at
36

least agrees that he will not purchase that product from any other supplier.” Schlotzsky's, Ltd. v.
Sterling Purchasing & Nat'l Distrib. Co., 520 F.3d 393, 405 (Sth Cir. 2008) (quoting Eastman
Kodak, 504 U.S. at 461-62), The essential characteristic of an illegal tying arrangement “lies in
the seller’s exploitation of its control over the tying product to force the buyer into the purchase of
a tied product that the buyer either did not want at all, or might have preferred to purchase
elsewhere on different terms.” Tool Works Inc. v, Indep. Ink, Inc., 547 U.S. 28, 34-35 (2006)
(citation omitted).
While tying arrangements ate often included in the list of per se violations of the Sherman
Act, see N. Tex. Specialty, 528 F.3d at 360 (quoting Maricopa Cty., 457 U.S. at 344 n.15), not all
tying arrangements are per se unlawful. To state a claim for per se tying, a plaintiff must plausibly
allege facts showing:
(1) Two separate products (as opposed to components of a single product); (2) The
two products are tied together or customers are coerced; (3) The supplier possesses
substantial economic power over the tying product; (4) The tie has an
anticompetitive effect on the tied market; and (5) The tie affects a not insubstantial
volume of commerce,
United Farmers Agents Ass'n, Inc. v. Farmers Ins. Exch., 89 F.3d 233, 235 n.2 (Sth Cir. 1996)
(citation omitted). Specifically, a plaintiff must plead “two, distinct markets,” Paramount Pictures
Corp. v. Johnson Broad. Inc., 432 F. Supp. 2d 707, 709 (S.D. Tex. 2006) (citing Jefferson Par.,
466 U.S. at 21), properly “define the parameters of each of these markets,” id. (emphasis added),
and allege that the defendant has market power in the market for the tying product. See Honeywell
Inc., 2018 WL 6737514, at *6 (citations omitted). A tying arrangement that does not meet
these requirements is analyzed under the rule of reason, which requires a plaintiff to show, among
other things, an actual adverse effect on competition. fd. (citations omitted).
Here, Plaintiff does not affirmatively raise a tying claim but alleges in Count XXTI that
“SafranHE USA and SafranHE Canada . . . conditioned the sale of MRO Services on the purchase
37

of unnecessary ‘modifications.”” Third Am. Compl. 645. As the Court should not dismiss a
claim solely because Plaintiff did not identify a legal theory, Rathborne, 683 F.2d at 917 n.8, the
Court must determine whether Plaintiff stated a plausible tying claim under either the per se or the
rule of reason mode of analysis. First, the Court finds that Plaintiff did not state a per se tying
claim, because the Complaint does not include a proper market definition, see supra
§ IILC. 1.avdiia., let alone valid definitions of fwo distinct markets. See Paramount Pictures, 432
F, Supp. 2d at 709. And, in the absence of a validly defined market, the Court cannot determine
that SafranHE USA or SafranHE Canada had market power in the sale of MRO Services. See
Honeywell Int'l Inc., 2018 WL 6737514, at *3, *6. Second, Plaintiff cannot recover for tying
under the rule of reason, because the Complaint does not plead facts showing actual injury to
competition. /d at *6. As explained above, Plaintiffs allegations of injury to competition are
speculative and conclusory. See supra § IILC.1.a.iii.b. Accordingly, the Court grants the Motions
as to Count XXI insofar as it states a tying claim.
d, Cartwright Act and Kansas Restraint of Trade Act
The same analysis conducted in conjunction with Plaintiff's Sherman Act claims governs
Plaintiff's Cartwright Act and Kansas Restraint of Trade Act claims, See Cty. of Tuolumne □□□
Sonora Cmty. Hosp., 236 F.3d 1148, 1160 (9th Cir. 2001) (holding that the Cartwright Act was
“modeled after the Sherman Act” and so the analysis “mirrors the analysis under federal law”
(citations omitted)); KAN. STAT. ANN. § 50-163(b) (“[T]he Kansas restraint of trade act shall be
construed in harmony with ruling judicial interpretations of federal antitrust law by the United
States [S]upreme [C]ourt.”). Accordingly, the Court grants the Motions as to Counts VI, XIV,
XVIII, XXIV, and XXV for the reasons stated above.

38

e, Statute of Limitations
Even if the Court did not dismiss every antitrust claim for one or more of the deficiencies
described above, the Court finds that Plaintiff did not assert Count [IX and portions of Counts □□□
XXII, XXIH, XXIV, and XXV, within the relevant limitations period.
“TA] complaint that shows relief to be barred by... the statute of limitations[] may be
dismissed for failure to state a cause of action.” Kaiser Aluminum & Chem. Sales, Inc. v. Avondale
Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (collecting cases). Federal antitrust claims
that are not brought within four years of their accrual are “forever barred.” 15 U.S.C. § 15b,
“Generally, a cause of action accrues and the statute begins to run when a defendant commits an
act that injures a plaintiffs business.” Rx.com v. MedcoHealth Sols., Ine., 322 F. App’x 394, 396
(5th Cir, 2009) (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971)).
If a plaintiff alleges a continuing antitrust violation, suit may be brought within four years after
the defendant “commits an overt act in furtherance of an antitrust conspiracy ... or commits an
act that by its very nature is a continuing antitrust violation.” Kaiser, 677 F.2d at 1051. The key
question is whether some injurious act actually occurred during the limitations period. See
Hibernia Nat’l Bank v. Indus. Alloys Co., No, 93-3035, 1993 WL 209995, at *2 (Sth Cir. June 4,
1993); Kaiser, 677 F.2d at 1053 (citing Poster Exch., Inc. v. Nat’l Screen Serv. Corp., 517 F.2d
117, 128 (Sth Cir. 1975)). Thus, a plaintiff could allege a continuing antitrust violation by pleading
that the defendant violated an antitrust duty to deal at a subsequent time during the limitations
period, see Rx.com, 322 F. App’x at 396, but not by pleading that a contract was in existence at
that time. See Kaiser, 677 F.2d at 1053. Importantly, even if a plaintiff alleges a continuing
antitrust violation, the plaintiff can only recover for harm that occurred within the limitations
period. See Klehr v. A.O. Smith Corp., 521 U.S, 179, 189 (1997) (“But the commission of a

39

separate new overt act generally does not permit the plaintiff to recover for the injury caused by
old overt acts outside the limitations period.” (collecting cases)).
The analysis is similar for the state law antitrust claims. A claim brought under either
California’s Cartwright Act or the Kansas Restraint of Trade Act is not barred if the plaintiff
alleges a continuous violation—a new, independent overt act that inflicts a new injury on the
plaintiff. See Garrison v. Oracle Corp., 159 F. Supp. 3d 1044, 1071-72 (N.D. Cal. 2016);
Manildra Milling Corp. v. Ogilvie Mills, Inc., 723 F. Supp. 567, 570 (D. Kan. 1989). Like federal
claims, a Cartwright Act claim is subject to a four-year statute of limitations. See In re TFT-LCD
(Flat Panel) Antitrust Litig., No. M 07-1827 SI, 2014 WL 2527221, at *3 (N.D. Cal. June 4, 2014)
(citing CAL. Bus. & Pror. CoDE §§ 16750.1, 17200). On the other hand, a Kansas Restraint of
Trade Act is subject to a three-year statute of limitations, See Four B Corp. v. Daicel Chem. Indus.,
253 F. Supp. 2d 1147, 1155-56 (D. Kan. 2003) (citing KAN. STAT. ANN. 60-512(2)). The two
statutes also differ as to when the limitation period begins to run. While the limitations period
under Kansas law begins to run when “the plaintiff knew or should have known of the harm,” /n
re Vitamins Antitrust Litig., No. MISC 99-197, 2000 WL 1524912, at *2 (D.D.C. July 14, 2000)
(discussing McCue v, Franklin, 131 P.2d 704 (Kan. 1942)), a Cartwright Act claim accrues “when
[it] is complete with all of its elements.” Garrison, 159 F. Supp. 3d at 1065 (quoting Pooshs v.
Philip Morris USA, Inc., 51 Cal. 4th 788, 797 (2011)).
In this case, Plaintiff first alleged antitrust claims in its First Amended Complaint, filed
March 28, 2016. See ECF No. 10. Consequently, any federal claim premised on injury that
occurred solely before March 28, 2012, is barred, see Kaiser, 677 F.2d at 1051, any Cartwright
Act claim that Plaintiff could have brought before March 28, 2012, is barred, see Garrison, 159 F.
Supp. 3d at 1071-72, and any Kansas Restraint of Trade Act premised on injury that Plaintiff

40

should have discovered before March 28, 2013, is barred, see Manildra Milling, 723 F. Supp. at
570.
Viewing the Complaint in the light most favorable to Plaintiff, the Court finds that Plaintiff
timely brought the following claims: (1) Counts V, VI, and VII premised on the alleged Defacing
or Accident Policies that were enforced from 2013 to 2015 and harmed Plaintiff until 2014, see
Third Am. Compl. 9] 174, 190, 279, 281-82, 289-90, 353-55; (2) Count X that is premised on
SafranHE USA’s MAA with HSN signed in October 2012, see id, § 442; (3) Counts XI and XII
based on the Fleet Parts or Service Agreements, except the agreement with Heli-One signed in
May 2009, see id. 462; (4) Counts XII, XIV, XVII, and XVII, purporting to state price-fixing
and group-boycott claims based on conduct occurring in 2014 or 2015, see id. 44 498-502;
(5) Counts XX and XXI that are based on exclusive supply agreements and other alleged MRO
Services restraints adopted between 2013 and 2016, see id. {9 616, 623, 646-48; (6) Count XXII
insofar as it alleges monopolization based on Defendants’ agreements with Advanced or the Fleet
Parts or Service Agreements, see id. 679, 681; and (7) Counts XXIII, XXIV, and XXV, to the
extent they state claims not otherwise found untimely. These allegations suffice to show that the
claims arose, Plaintiff was injured, or Defendants committed a continuous violation during the
limitations period.
Conversely, the Court finds that the following claims are time-barred: (1} Count LX based
on Plaintiffs MAA that was entered into on April 30, 2010, see id. {| 390, 421-39; (2) Count XI
insofar as it purports to state a claim for Heli-One’s agreement entered into in February 2010, see
id. § 497; (3) Count XXII to the extent it is premised on Defendants adopting policies of throwing
away substitute parts and informing customers of this policy on February 9, 2003, see id.
{| 689-90; and (4) Counts XXIII, XXIV, and KXV, to the extent they are based on Plaintiff's

4]

MAA, SafranHE USA’s February 2010 agreement with Heli-One, or Defendants’ policy regarding
substitute parts. Additionally, the Court finds that Counts XXIV and XXV are barred by the three-
year statute of limitations applicable to Kansas Restraint of Trade claims, see Four B. Corp., 253
F. Supp. 2d at 1155-56, to the extent they are based on SafranHE USA’s MAA with HSN. See
Third Am. Compl. 4 442. The Court further finds that Plaintiff did not allege any facts for these
Counts showing that Defendants entered into, acted pursuant to, or harmed Plaintiff as a result of
these contracts or policies during the limitations period. See Kaiser, 677 F.2d at 1051; Garrison,
159 F. Supp. 3d at 1071-72; Manildra Milling, 723 F. Supp. at 570. As such, the Court cannot
conclude that these Counts describe a continuing antitrust violation. Accepting all of Plaintiffs
well-pleaded allegations as true, the Court find that any antitrust injury arising out Plaintiffs
MAA, Heli-One’s agreement, Defendants’ policy with regards to substitute parts, and SafranHE
USA’s MAA with HSN under the Kansas Restraint of Trade Act, occurred outside of the relevant
limitations periods,
For the reasons stated above, the Court grants the Motions on limitations grounds as to
Count [X, denies the Motions on this basis as to Counts V, VI, VU, XII, XIV, XVII, XVII, XX,
and XXI, and grants in part and denies in part the Motions on this basis as to Counts XI, □□□□□
XXII, XXIV, and XXV to the extent described in the preceding paragraph.
(2) Deceptive Practices Claims
a. Lanham Act
A prima facie case of false advertising under [Lanham Act § 43(a)}] requires the
plaintiff to establish: (1) A false or misleading statement of fact about a product;
(2) Such statement either deceived, or had the capacity to deceive a substantial
segment of potential consumers; (3) The deception is material, in that it is likely to
influence the consumer’s purchasing decision; (4) The product is in interstate
commerce; and (5) The plaintiff has been or is likely to be injured as a result of the
statement at issue.

42

Pizza Hut, Inc. v. Papa John’s Int'l, Inc., 227 F.3d 489, 495 (Sth Cir. 2000) (citations omitted).
“The failure to prove the existence of any element of the prima facie case is fatal to the plaintiff's
claim.” Jd. (citation omitted). The first element of a § 43(a) claim requires a plaintiff to
“demonstrate that the commercial advertisement or promotion is either literally false, or that [if
the advertisernent is not literally false,] it is likely to mislead and confuse consumers.” □□□
(alteration in original) (quoting Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1390 (Sth Cir.
1996)).
Here, Plaintiff alleges that the following statements of SafranHE USA are false or
misleading: (1) unauthorized service centers do not have access to Defendants’ technical
documentations, see Third Am. Compl. 9] 733-35, 742, 744; (2) unauthorized repair centers are
“issuing falsified release documents” when they repair Defendants’ engines, id § 734;
(3) Defendants may withhold instructions or other documentation as proprietary, see id. § 736; and
(4) repair centers that Defendants neither authorized nor did not authorize to provide repair service
do so in violation of FAA regulations,'! see id. 742. Plaintiff posits that these statements are
“false and misleading because FAA regulations require [Defendants] to make available Technical
Instructions ... to all owners and maintenance providers.” /d. §§] 737, 745. The Lanham Act is
not, however, an appropriate vehicle to enforce Plaintiff's interpretation of FAA regulations. See
Greater Hous. Transp. Co. v. Uber Techs., Inc., Civ. A. No. 4:14-0941, 2015 WL 1034254, at
*10-11 (S.D. Tex. Mar. 10, 2015) (citing, among other things, /O Prods. Co. v. Pennzoil Prods.
Co., 305 F.3d 368, 373-74 (Sth Cir. 2002)) (holding that the plaintiffs “failed to plead a cognizable

The pertinent statement reads: “Turbomeca USA, Inc. specializes in the design, production, sale and support of low
to medium power gas turbine engines for helicopters. ...There are no other FAA authorized... Repair Centers
within the United States qualified to provide all levels of repair and overhaul of the engine and fuel control unit other
than Turbomeca USA, Inc.. [sic] Also, all manuals and technical documentation required to perform any repairs
and/or overhauls on the Turbomeca engines are proprietary to Turbomeca USA, Inc. and are not available to
non-authorized Repair Centers. Any other company providing repair service on this engine would be in violation of
FAA regulations.” Third Am. Compl. § 742.
43

cause of action that [the defendant’s] representations that they ‘meet all local regulations’ are false
or misleading” because local regulations were subject to multiple interpretations). Thus, the fact
that Plaintiffs Lanham Act claim seeks to enforce Plaintiff's preferred interpretation of FAA
regulations is alone sufficient to warrant dismissal of Count □□ □□□
The Court further finds that Plaintiff did not allege sufficient facts to show that any of
SafranHE USA’s statements were false or misleading. Plaintiff's only non-conclusory allegation
showing that the statements were false or misleading is the FAA’s November 10, 2016, letter to
First Aviation Services, Inc., stating that “a design approval holder... may not deny access to
{technical information] based on claims of proprietary data.” Third Am. Compl. § 737. Nothing
in the Complaint explains how a 2016 FAA letter renders SafranHE USA’s statements from 2009
to 2013 false or misleading. See S. Snow Mfg. Co. v. Snow Wizard Holdings, Inc., 829 F. Supp.
2d 437, 453 (E.D. La. 2011) (finding that subsequent agency action did not render prior statements
false), Accordingly, the Court grants Safran HE USA’s Motion as to Count XX VIL.
b, Common Law Unfair Competition
“Unfair competition under Texas law ‘is the umbrella for all statutory and nonstatutory
causes of action arising out of business conduct which is contrary to honest practice in industrial
or commercial matters.’” Taylor Publ’g Co. v. Jostens, Inc., 216 F.3d 465, 486 (Sth Cir. 2000)
(quoting Am. Heritage Life Ins. v. Heritage Life Ins., 494 F.2d 3, 14 (Sth Cir, 1974)). Liability for
unfair competition must be premised on some “independent substantive tort or other illegal
conduct.” Schoellkopfy. Pledger, 778 S.W.2d 897, 904-05 (Tex. App.—Dallas 1989, writ denied).
Plaintiffs common law unfair competition claim is premised on the same allegedly false or
misleading statements as its Lanham Act claim. See Third Am, Compl. 99 755-63; Resp. 24
(arguing that Plaintiff adequately pleaded a common law unfair competition claim because
Plaintiff alleged a Lanham Act claim). As the Court grants SafranHE USA’s Motion as to the
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Lanham Act claim, the Court finds that Plaintiff's unfair competition claim is not premised on any
independent substantive tort or other illegal conduct. See Schoellkopf, 778 S.W.2d at 904-05.
Even if the unfair competition claim was premised on some tort, the Court finds that Plaintiff did
not plead sufficient facts to show that SafranHE USA made any faise or misleading statement for
the reasons stated above. See also Indus., Inc. v. Selander, 932 F. Supp. 2d 754, 763 (N.D. Tex.
2013) (explaining that a common law unfair competition claim is analyzed under the same standard
as a claim under the Lanham Act (quoting Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d
225, 236 n.7 (5th Cir. 2010))). Consequently, the Court grants SafranHE USA’s Motion as to
Count XXVIII.
(3) Breach of Contract
SafranHE France moves to dismiss the portion of Count VIII that asserts that SafranHE
France breached Plaintiffs MAA. “In Texas, ‘[t]he essential elements of a breach of contract
action ate: (1) the existence of a valid contract; (2) performance or tendered performance by the
plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as
a result of the breach.’” Smith Int’l, Inc. v. Egle Grp., LEC, 490 F.3d 380, 387 (Sth Cir. 2007)
(alteration in original) (quoting Valero Mktg. & Supply Co. v. Kalama Int'l, L.L.C., 51 S.W.3d
345, 351 (Tex. App.—Houston [1st Dist.] 2001, no pet.)).
In this case, the Complaint makes clear that SafranHE France was not a party to the contract
between SafranHE USA and Plaintiff. See Third Am. Compl. § 390 (“[Plaintiff] and SafranHE
USA entered into the [MAA]....”). Plaintiff does not dispute that SafranHE France was not a
party to this agreement, but argues that due to SafranHE France’s control over the technical
instructions, an implied contract existed between the two. See Resp. to Int’! Defs.’ Mot. to Dismiss
19-20. Even if the Court permitted this eleventh hour amendment of the Complaint, which it does
not, see Energy Coal, 836 F.3d at 462 n.4, the Court would still grant the International Defendants’
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Motion as to this claim. A claim for breach of an implied contract requires a plaintiff to “plead
the existence of a valid implied contract,” which, in turn, requires allegations showing “(1) an
offer, (2) an acceptance, (3) a meeting of the minds, (4) each party’s consent to the terms, and
(5) execution and delivery of the contract with the intent that it be mutual and binding.”
Electrostim Med. Servs., Inc. v. Health Care Serv. Corp., 614 F. App’x 731, 744 (Sth Cir. 2015)
(quoting Plotkin v. Joekel, 304 S.W.3d 455, 476 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied}). The Complaint includes no facts showing that SafranHE France offered, accepted, or
consented to any terms of Plaintiffs MAA with SafranHE USA. Accordingly, the Court grants
the International Defendants’ Motion as to the portion of Count VIII asserted against SafranHE
France.
(4) Tort Claims
a. Tortious Interference with Contract
“The elements of a tortious interference with contract claim are: (1) the existence of a
contract subject to interference; (2) a willful and intentional act of interference; (3) such act was a
proximate cause of damage; and (4) actual damage or loss occurred.” Fluorine On Call, Lid. v.
Fluorogas Ltd., 380 F.3d 849, 864 (Sth Cir. 2004) (citation omitted). To prevail on a claim for
tortious interference with an existing contract, a plaintiff must present evidence that the defendant
induced a third party to breach the contract, El Paso Healthcare Sys., Lid. v. Murphy, 518 S.W.3d
412, 421-22 (Tex. 2017). For the act of interference to be intentional or willful, “[t}]he interfering
party must know of the existence of a contract between the plaintiff and a third party.” Hill v.
Heritage kes., inc., 964 8.W.2d 89, 123 (Tex. App.-El Paso 1997, pet. denied).
The Court finds that Count III should be dismissed because Plaintiff did not allege
sufficient facts to show that SafranHE France had knowledge of any contract subject to
interference. Plaintiff merely stated, in conclusory fashion, that “SafranHE France had knowledge
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of th[e] contracts,” Third Am. Compl. 4225, which is insufficient to state a claim for tortious
interference. See Hoffman v. L&M Arts, 774 F, Supp. 2d 826, 846 (N.D. Tex. 2011). The only
other allegation even remotely on point—that “a SafranHE France employee[| specifically
mentioned [Plaintiff] in a presentation addressing both the Defacing Policy and the Accident
Policy,” Third Am. Compl. € 225—does nothing to suggest that SafranHE France was aware of
any specific contract. Accordingly, the Court grants the International Defendants’ Motion as to
Count II.
The Court denies, however, SafranHE USA’s Motion as to Count XV. SafranHE USA
argues that Count XV should be dismissed because Plaintiff did not plead that Defendants engaged
in an independently tortious act. See Br. at 24-25. Plaintiff was not required, however, to plead
an independently tortious act for this claim. See E/ Paso, 518 S.W.3d at 421 (“[I]nterference with
an existing contract does not” require “a finding that the defendant engaged in independently
tortious or unlawful conduct.”). Accordingly, the Court denies SafranHE USA’s Motion as to
Count XV.
b. Tortious Interference with Business Relationships
The Complaint does not clearly state whether Plaintiff is alleging tortious interference with
an existing or prospective business relationship. See Third Am. Compl. J] 541-51. To the extent
Plaintiff is alleging tortious interference with an existing business relationship, “its elements are:
*(1) unlawful actions undertaken by (the defendants] without a legal right or justifiable excuse;
(2) with the intent to harm [the plaintiff]; and (3) resulting actual harm or damage.’” D’Onofrio
v. Vacation Publ’ns, Inc., 888 F.3d 197, 214-15 (th Cir. 2018) (alteration in original) (quoting
Am. Med. Int'l, Inc. v. Giurintano, 821 S.W.2d 331, 335 (Tex. App.—Houston [14th Dist.] 1991,
no writ)). To the extent Plaintiff alleges tortious interference with a prospective business
relationship, its elements are:
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1} a reasonable probability that the parties would have entered into a contractual
relationship; 2) an independently tortious or unlawful act by the defendant that
prevented the relationship from occurring; 3) the defendant acted with a conscious
desire to prevent the relationship from occurring, or it knew that the interference
was certain or substantially certain to occur as a result of his conduct; and 4) the
plaintiff suffered actual harm or damage as a result of the defendant’s interference.
Ewbank v. ChoicePoint Inc., 551 F. Supp. 2d 563, 566-67 (N.D. Tex. 2008) (citing RAJ Partners,
Ltd. vy. Darco Constr. Corp., 217 8.W.3d 638, 649 n.10 (Tex. App.—Amarillo 2006, no pet.);
Richardson-Eagle, Ine. v. William. M. Mercer, Inc., 213 8.W.3d 469, 475 (Tex. App.—Houston
[ist Dist.] 2006, rev. denied).
Either way, Plaintiff must establish that Defendants committed an independently tortious
or unlawful act. See Ewbank, 551 F. Supp. 2d at 566-67; Adrain v. Genetec Inc., No, 2:08-CV-
423, 2009 WL 3161386, at *3 (E.D. Tex. Sept. 30, 2009) (holding that unlawful act requirement
of tortious interference with an existing business relationship claim is satisfied by showing that a
defendant engaged in conduct that is “independently tortious or unlawful”). To be independently
tortious or unlawful, the conduct must be more than “merely ‘sharp’ or unfair’—it must be
“actionable under a recognized tort [theory].” Centuria, Inc. v. Regiment Sec, LLC, Civ. A. No.
3:11-CV-2500-N, 2013 WL 12250941, at *2 (N.D. Tex. Jan. 11, 2013) (alteration in original)
(quoting Ash v. Hack Branch Distrib. Co., 54 S.W.3d 401, 414-15 (Tex. App—Waco 2001, pet.
denied)).
In this case, Plaintiff alleges that Defendants’ anticompetitive conduct satisfies the
independently tortious act requirements of Counts 1V, XVI, and XIX. See Third Am. Compl.
234, 236, 545; Resp. 25 (suggesting that the antitrust violations satisfy the independently
wrongful action element). Alleged antitrust violations satisfy the independently tortious act
requirement, regardless of whether the Violations rise to the level of valid antitrust claims. See Jn
re Mem’! Hermann Hosp. Sys., 464 S.W.3d 686, 704-06 (Tex. 2015). Nevertheless, for the reasons

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discussed above, the Court cannot conclude that Plaintiff has pleaded a plausible antitrust
violation. The various antitrust violations are deficient because Plaintiff did not plead sufficient
facts to allege a conspiracy, to define a relevant market, or to show injury to competition, or
because the claim itself is untimely. See supra § HI.C.1. Consequently, the Court finds that
Plaintiff did not plead an independently tortious act and grants the Motions as to Counts IV, XVI,
and XIX.
Furthermore, the Court notes that Count IV suffers from an incurable defect. Plaintiff
alleges in this Count that the independently tortious act is SafranHE France’s decision to have
SafranHE USA and SafranHE Canada adopt the Defacing Policy. See Third Am. Compl. ff] 234,
236. Plaintiff clarifies that this decision is independently tortious because it is an unlawful
anticompetitive scheme. See Resp. to Int’] Defs.” Mot. to Dismiss 19. The Court finds that
Plaintiff did not sufficiently plead that the Defacing Policy violates the antitrust laws. SafranHE
France would not violate § 1 of the Sherman Act by “conspiring” with SafranHE USA or SafranHE
France to adopt certain policies, because Defendants are in a parent-subsidiary relationship. See
Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 771-72 (1984) (holding a parent and a
wholly-owned subsidiary do not “conspire” for the purposes of Sherman Act § 1); Century Oil
Tool, Inc. v. Prod. Specialties, Ine., 737 F.2d 1316, 1317 (Sth Cir. 1984) (holding two corporations
owned by a single entity do not “conspire” for the purposes of Sherman Act § 1). Nor has Plaintiff
adequately pleaded that SafranHE France’s decision to adopt the Defacing Policy violates
Sherman Act §2. In the absence of a validly defined market, the Court cannot determine if
SafranHE France possessed monopoly power in the relevant market—a necessary element of a § 2
claim. See Eastman Kodak, 504 U.S. at 481. As the analysis of the state antitrust claims would
be the same, see supra § III.C.1.d., the Court finds that Plaintiff did not sufficientiy plead that the

49

decision to adopt the Defacing Policy is independently tortious and grants the International
Defendants’ Motion as to Count IV for this additional! reason.
c. Civil Conspiracy
A civil conspiracy claim has the following elements: “(1} two or more persons; (2) an
object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or
more unlawful, overt acts; and (5) damages as a proximate result.” Wackman v. Rubsamen, 602
F.3d 391, 408 (Sth Cir. 2010) (quoting Triv. J.T, 162 S.W.3d 552, 556 (Tex. 2005)). Defendants
allege that Plaintiff's allegations regarding “a meeting of the minds” are conclusory. The Court
agrees that Plaintiff's civil conspiracy claim should be dismissed.
The only remaining claims at this point are: Count! alleging that SafranHE USA and
SafranHE Canada breached contracts; Count I alleging that SafranHE USA and SafranHE Canada
are liable for wrongful detention, conversion, and negligence; Count VII alleging that SafranHE
USA breached Plaintiffs MAA; Count XV stating that SafranHE USA tortiously interfered with
Plaintiff's contracts with Advanced; and Counts XXIX and XXX alleging that SafranHE USA is
liable for misrepresentations or concealment under the DTPA or common law. The civil
conspiracy claim does not, however, relate to any of these Counts. Rather, the conspiracy claim
appears to be premised on the dismissed antitrust allegations. See Third Am. Compl. J 727 (“The
object to be accomplished by the conspiracy or conspiracies was to prevent competition... .”).
As the Court grants the Motions as to the predicate claims, the Court also grants the Motions as to
the civil conspiracy claim. See Walker v. Beaumont Indep. Sch. Dist., Civ. A. No. 1:15-CV-379,
2016 WL 6666828, at *10 (E.D. Tex. Mar. 11, 2016) (dismissing conspiracy claim after dismissing
predicate claim). Accordingly, the Court grants the Motions as to Count XXVI.

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D. Dismissal with Prejudice
The Court has discretion whether to dismiss a claim with or without prejudice. See Club
Retro LLC. v. Hilton, 568 F.3d 181, 215 n.34 (Sth Cir, 2009). “[A]t some point, a court must
decide that a plaintiff has had fair opportunity to make his case; if, after that time, a cause of action
has not been established, the court should finally dismiss the suit.” Schiller v. Physicians Res.
Grp., Inc., 342 1.3d 563, 567 (Sth Cir. 2003) (quoting Jacquez v. Procunier, 801 F.2d 789, 792
(Sth Cir. 1986)), “[P]leadings review is not a game where the plaintiff is permitted to file serial
amendments until he finally gets it right.” United States ex rel. Adrian v. Regents of the Univ. of
Cal., 363 F.3d 398, 404 (Sth Cir. 2004); see also United States ex rel. Willard v. Humana Health
Plan of Tex. Inc., 336 F.3d 375, 387 (Sth Cir. 2003) (holding that leave to amend was properly
denied where the plaintiff had two prior opportunities to amend the complaint and the district court
had once before granted leave to cure the complaint’s lack of specificity). This is especially true
where a plaintiff “did not suggest in [his or her] responsive pleading any additional facts not
initially pled that could, if necessary, cure the pleading defects raised by the defendants.”
Goldstein v. MCI WorldCom, 340 F.3d 238, 255 (Sth Cir. 2003). Additionally, a district court may
deny the plaintiff an opportunity to replead if an amendment of a claim is futile. See Legate, 822
F.3d at 211 (citing Stripling v. Jordan Prod. Co., 234 F.3d 863, 872 (Sth Cir. 2000)).
Plaintiff did not move for leave to amend the Complaint. In fact, Plaintiff only requested
to amend the definition of the geographic market, and the Court found this proposed amendment
to be futile. See supra note 10. Moreover, Plaintiff had the benefit of an entire arbitration
proceeding, see ECF No. 44, four prior motions to dismiss, ECF Nos. 25, 31, 54, 55, and oral
argument before this Court, see ECF No. 91. In fact, the Court previously dismissed the Second
Amended Complaint due to numerous pleading deficiencies, see ECF No. 92 at 61:20-24, and
many of these deficiencies stayed the same after Plaintiff's third amendment. See ECF
5]

Nos. 54, 55. Despite being afforded significant opportunities to state its case, Plaintiff used these
opportunities to expand the number of its claims while failing to substantiate with facts existing
claims. The Court will not condone Plaintiff's scattershot pleading tactics. The Fifth Circuit has
held that a court may, in its sound discretion, deny leave to amend on substantially similar facts.
See Humana Health Plan, 336 F.3d at 387. Accordingly, in its discretion, the Court finds that
Plaintiff “has had fair opportunity to make [its] case,” Schiller, 342 F.3d at 567, and grants the
Motions as to Counts II and VIII against SafranHE France with prejudice and Counts III, IV, V,
VI, VII, [X, %, XI, XII, XIII, XIV, XVI, XVUL, XIX, XX, XXI, XXII, XXII, XXIV, XXV,
XXVI, XVI, and XXVIII against all Defendants in their entirety with prejudice. The Court
additionally finds that amendment of Counts III, 1V, V, VI, VII, VII, [X, X, XI, XII, XX, XXI,
XXIL, XXIO, XXIV, XXV, XVI, XXVIL and would be futile.
IV. CONCLUSION
For the reasons discussed above, the Court grants in part and denies in part the Motions.
The Court grants the Motions as to Counts II and VIII against SafranHE France with prejudice and
Counts III, IV, V, V1, VII, IX, X, XI, XII, XIN, XIV, XVI, XV, XVII, XIX, XX, XXI, XXII,
XXUI, XXIV, XXV, XXXVI, XVI, and XXVIII against all Defendants in their entirety with
prejudice. The Court denies SafranHE USA’s Motion as to Count XV,
SO ORDERED.
SIGNED August 1, 2019.

SAREN GREN SCHOLER
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10447979. Public record. Not legal advice.