Vision Management Group, LLC v. Constant Aviation, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

Vision Management Group, LLC, Case No. 1:25cv00052

et al.,

Plaintiffs,

-vs- JUDGE PAMELA A. BARKER

Constant Aviation, LLC,

MEMORANDUM OPINION & ORDER

Defendant.

Currently pending is Defendant Constant Aviation, LLC’s Motion to Dismiss pursuant to Fed.

R. Civ. P. 12(b)(6). (Doc. No. 9.) Plaintiffs Vision Management Group, LLC, MakGab Holdings

LLC, and Anthony Fiorillo filed a Brief in Opposition on March 13, 2025, to which Defendant replied

on March 21, 2025. (Doc. Nos. 10, 11.) For the following reasons, Defendant’s Motion to Dismiss

(Doc. No. 9) is GRANTED.

I. Factual Allegations1

Defendant Constant Aviation, LLC (hereinafter “Defendant” or “Constant Aviation”)

provides aircraft inspection and maintenance services. (Doc. No. 1 at ¶ 3.) Plaintiffs allege that, on

December 6, 2021, “Plaintiffs retained Defendant to perform inspection and repair services on a 1997

Cessna Citation X, MSN 750-0018, pursuant to a Contract to Purchase and associated warranties.”

1 In setting forth the facts, the Court considers the factual allegations in the Complaint as well as the Exhibits attached to

the Complaint, including the parties’ Inspection Contract (Doc. No. 1-1), inspection and repair records from January 2023

(Doc. No. 1-2) and Plaintiffs’ July 5, 2024 Demand Letter (Doc. No. 1-3). See Bassett v. National Collegiate Athletic

Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) (noting that, in ruling on a Rule 12(b)(6) motion, a court “may consider the

Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached

to defendant’s motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained

therein.”). See also Brent v. Wayne County Dep’t of Human Services, 901 F.3d 656, 694 (6th Cir. 2018).

(Id. at ¶ 7.) The parties’ Contract (hereinafter “Inspection Contract”) is attached to the Complaint as

Exhibit A. (Doc. No. 1-1.) The Inspection Contract is between Plaintiff Vision Management LLC

(hereinafter “Vision Management”) and Constant Aviation, and is signed by Plaintiff Anthony

Fiorillo in his capacity as President of Vision Management.2 (Id. at PageID#s 10, 24.) Plaintiff

MakGab Holdings, LLC (hereinafter “MakGab”) is not a signatory to the Inspection Contract. (Doc.

No. 1-1.)

Plaintiffs allege that Constant Aviation “warranted that all inspection and repair work would

adhere to applicable industry standards and that any defects would be remedied.” (Doc. No. 1 at ¶

8.) The Inspection Contract provides that Constant Aviation agrees to a “limited warranty,” as

follows:

WARRANTY AND WARRANTY PERIOD: Constant Aviation warrants its goods

and services supplied per this proposal for Avionics, Paint, Interior, and Maintenance

to be free from defects in material and workmanship for the earlier of 250 hours of

aircraft operation or two years after completion of the work. Used or customer-

supplied equipment will carry no warranty unless specified in the work scope above.

Complete sand and paint work scopes will carry no warranty.

(Doc. No. 1-1 at PageID# 22.) To assert a warranty claim, “the customer shall notify Constant

Aviation in writing within thirty (30) days after the customer has actual or constructive notice of such

alleged warranty clam.” (Id. at PageID# 21.) The Inspection Contract provides that “[a]ll claims

shall include the following information: a. Serial number of the aircraft; b. Date services were

performed; and c. Detailed explanation of the nature of the claim, and the date of detection.” (Id.)

The Inspection Contract provides that Constant Aviation has the right to inspect and repair

any defective or nonconforming work, as follows:

2 Although the Complaint alleges that the Inspection Contract was executed on December 6, 2021, the Contract itself is

signed by Plaintiff Fiorillo in his capacity as President of Vision Management on December 9, 2021. (Id. at PageID# 24.)

2

INSPECTION: Constant Aviation shall have a full and complete opportunity to

inspect any alleged defect or nonconforming work, and review any records concerning

the alleged defect prior to performance of any repairs. The customer agrees to deliver

its aircraft to Constant Aviation's closest service facility at the customer's cost, in order

to facilitate such inspection.

REPAIRS: If Constant Aviation determines that the defective or nonconforming work

is shown to be due to a breach of the above warranty, and not due to any extraneous

cause, including but not limited to misuse by the customer or any third party, failure

to perform recommended maintenance, or effects of the environment (wind, water,

corrosion, etc.), then Constant Aviation shall repair the defective work. If Constant

Aviation determines that the customer has failed to meet its obligations set forth in

this quote or otherwise with respect to proper maintenance of the customer's aircraft,

then the warranty set forth above will not apply and, with prior notice to the customer,

such repair work will be completed by Constant Aviation at the customer's cost.

(Id. at PageID# 22.) The Inspection Contract also provides that:

DAMAGE: In the event Constant Aviation damages customer's property, including

the aircraft, customer's sole and exclusive remedy, and Constant Aviation's sole and

exclusive liability, is limited to the repair or replacement of the damaged portion of

the property, at Constant Aviation's sole option. In no event shall Constant Aviation

be liable for any special, incidental, consequential, or punitive damages, including, but

not limited to, loss of profits, loss of goodwill, loss of use, loss of time, inconvenience,

or diminution in value.

(Id. at PageID# 21.) Lastly, the parties agreed that the Inspection Contract “shall constitute a binding

agreement between Constant Aviation and the customer, which shall be construed under and enforced

in accordance with the laws of the State of Ohio, without regard to principles of conflicts of laws.”

(Id. at PageID# 22.)

Plaintiffs allege that they paid Constant Aviation for pre-purchase evaluations and subsequent

inspection services totaling $94,315.44. (Doc. No. 1 at ¶ 9.) Plaintiffs allege that they later

“discovered significant corrosion on critical aircraft components during inspections and repairs.” (Id.

at ¶ 10.) There is a conflict between the allegations in the Complaint and the Exhibits to the

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Complaint as to when this corrosion was discovered. In the Complaint, Plaintiffs allege that they

discovered the corrosion “on or around January 11, 2024, and January 18, 2023.” (Id. at ¶ 10.) In a

demand letter attached as an Exhibit to the Complaint, however, Plaintiffs state that they discovered

the corrosion during “subsequent inspections and repairs conducted and completed in or around

September 2022 and January 2023.” (Doc. No. 1-3 at PageID# 58.)

Plaintiffs allege that “[t]he corrosion constitutes a latent defect that should have been

identified by Defendant during its initial inspections.” (Doc. No. 1 at ¶ 11.) They allege that they

“reasonably relied on Defendant’s repeated assurances that the aircraft’s condition was airworthy and

free of significant defects” and that “[t]hese assurances were integral to Plaintiffs’ decision to proceed

with the purchase and subsequent repairs.” (Id. at ¶ 13.) According to Plaintiffs, “Defendant either

failed to detect the corrosion due to negligent inspection practices and/or caused the corrosion due to

substandard workmanship.” (Id. at ¶ 11.) Additionally, “Defendant failed to conduct critical tests

during the pre-purchase evaluation that would have identified corrosion in high-risk areas of the

aircraft, including, but not limited to, fuel tanks, landing gear components, and the airframe.” (Id. at

¶ 14.)

Plaintiffs incurred “substantial expenses totaling $176,501.43 for repairs and inspections

necessary to remediate the corrosion and an additional $123,000.00 for operational disruptions caused

by Defendant’s negligence.” (Id. at ¶ 12.) Plaintiffs allege that “[s]ubsequent inspections revealed

that the corrosion had existed for a significant period and was not new, directly contradicting

Defendant’s representations to Plaintiffs regarding the thoroughness of its inspection and evaluation

process.” (Id. at ¶ 15.) “Defendant’s negligence in identifying latent defects created substantial

safety risks and led to costly and time-consuming repairs that disrupted Plaintiffs’ business

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operations.” (Id. at ¶ 16.) In addition, “Defendant failed to adhere to Federal Aviation Administration

(‘FAA’) standards and guidelines for inspections, further evidencing its negligent practices and

breach of professional duties.” (Id. at ¶ 17.)

On July 8, 2024, Plaintiffs sent Constant Aviation a demand letter detailing their claims and

damages “related to Defendant’s negligent performance and breach of contract.” (Id. at ¶ 18.) Copies

of the Demand Letter and its attachments are attached to the Complaint as Exhibit C. (Doc. No. 1-

3.) Plaintiffs allege that “Defendant’s response to Plaintiffs’ claims attempted to disclaim liability

by relying on limitations in the warranty, but Ohio law recognizes that such disclaimers do not

absolve liability for latent defects that render a product unfit for its intended use.” (Id. at ¶ 19.) As

a result of Constant Aviation’s “actions and/or inactions,” Plaintiffs allege that they have “suffered

financial losses and loss of business opportunities due to the extended downtime of the aircraft and

the safety concerns arising from Defendant’s failures.” (Id. at ¶ 20.)

II. Procedural History

On January 11, 2025, Plaintiffs Vision Management, Fiorillo, and MakGab filed a Complaint

in this Court against Constant Aviation, asserting the following three claims: (1) negligence and gross

negligence (Count I); (2) breach of contract (Count II); and (3) unjust enrichment (Count III).3 (Doc.

No. 1.)

3 In order to ensure that it has diversity jurisdiction over the instant matter, this Court issued a Show Cause Order on

January 13, 2025, directing Plaintiff to identify (1) the citizenship of all of the members (and sub-members, if any) of

Vision Management, MakGab Holdings, and Constant Aviation; and (2) Fiorillo’s state of citizenship (as opposed to

residency). (Doc. No. 6.) On January 27, 2025, Plaintiffs filed a Supplement (Doc. No. 7) providing the requested

information, which indicated, in sum, that Plaintiffs are each citizens of Florida and Constant Aviation is a citizen of

Ohio. (Id.) On January 29, 2025, the Court issued an Order that “[b]ased upon the information contained in and attached

to Plaintiffs' [Supplement], the Court is satisfied, at this time, that there is complete diversity of citizenship.” See Non-

Doc Order dated Jan. 29, 2025.

5

On February 11, 2025, Constant Aviation filed a Motion to Dismiss all of Plaintiffs’ claims

under Fed. R. Civ. P. 12(b)(6). (Doc. No. 9.) Plaintiffs filed a Brief in Opposition on March 13,

2025, to which Constant Aviation replied on March 21, 2025. (Doc. Nos. 10, 11.)

III. Standard of Review

In order to survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain (1)

‘enough facts to state a claim to relief that is plausible,’ (2) more than ‘formulaic recitation of a cause

of action's elements,’ and (3) allegations that suggest a ‘right to relief above a speculative level.’”

Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting in part Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555–556 (2007)). For purposes of both Rule 12(b)(6) and

Rule 12(c), “all well-pleaded material allegations of the pleadings of the opposing party must be taken

as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to

judgment.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal

citation and quotation marks omitted).

The measure of a Rule 12(b)(6) challenge — whether the Complaint raises a right to relief

above the speculative level — “does not ‘require heightened fact pleading of specifics, but only

enough facts to state a claim to relief that is plausible on its face.’” Bassett v. National Collegiate

Athletic Ass'n., 528 F.3d 426, 430 (6th Cir.2008) (quoting in part Twombly, 550 U.S. at 555–556).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). Deciding whether a complaint states a claim for relief that is plausible is

a “context-specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Id. at 679.

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Consequently, examination of a complaint for a plausible claim for relief is undertaken in

conjunction with the “well-established principle that ‘Federal Rule of Civil Procedure 8(a)(2) requires

only a short and plain statement of the claim showing that the pleader is entitled to relief.’ Specific

facts are not necessary; the statement need only ‘give the defendant fair notice of what the ... claim

is and the grounds upon which it rests.’” Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)

(quoting in part Erickson v. Pardus, 551 U.S. 89 (2007)). Nonetheless, while “Rule 8 marks a notable

and generous departure from the hyper-technical, code-pleading regime of a prior era ... it does not

unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556

U.S. at 679.

IV. Analysis

In its Motion, Constant Aviation seeks dismissal of Plaintiffs’ claims for breach of contract,

negligence/gross negligence, and unjust enrichment. (Doc. No. 9.) The Court will address the

parties’ arguments with respect to each of these claims separately, below.

A. Breach of Contract (Count II)

In Count II, Plaintiffs allege that “the Inspection Contract between Plaintiffs and Defendant

obligated Defendant to perform its services in accordance with the agreed-upon terms and industry

standards.” (Doc. No. 1 at ¶ 27.) Plaintiffs allege that they “have fully complied with the Inspection

Contract” and that “Defendant breached the Inspection Contract by including, but not limited to,

failing to deliver the contracted-for services free of defects, not notifying the Plaintiff of any defects,

and by failing to adhere to the required industry standards.” (Id. at ¶¶ 28, 29.) Plaintiffs allege that,

as a direct and proximate result of Defendant’s breach, they “suffered damages, including: a) Costs

for repairs and inspections necessary to remediate the corrosion and other latent defects, totaling

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$176,501.43; b) Operational disruptions and the resulting loss of business opportunities, totaling

$123,000.00; d) Additional costs incurred in obtaining substitute aircraft services during the

remediation period; and e) Attorney fees and expenses related to resolving disputes caused by

Defendant’s breach.” (Id. at ¶ 30.)

Constant Aviation argues that Plaintiffs’ breach of contract claim fails as a matter of law for

several reasons. (Doc. No. 9 at PageID#s 184-186.) Constant Aviation first argues that this claim

fails with respect to Plaintiffs Fiorillo and MakGab because neither of these Plaintiffs are parties to

the Inspection Contract and, therefore, they lack standing to assert a breach of contract claim. (Id. at

PageID#s 184-185.) Constant Aviation next asserts that, although Vision Management is a party to

the Contract, its breach of contract claim fails because the Complaint fails to include sufficient

allegations that Vision Management incurred any damages. (Id. at PageID#s 185-186.) Lastly,

Constant Aviation maintains that, even if Fiorillo and MakGab had standing and Vision Management

had sufficiently alleged that it suffered damages, Plaintiffs’ breach of contract claim nonetheless fails

because Plaintiffs failed to comply with the conditions precedent in the Inspection Contract of notice,

inspection, and opportunity to repair. (Id. at PageID# 186.)

In response, Plaintiffs do not dispute that neither Fiorillo nor MakGab are signatories to the

Inspection Contract. (Doc. No. 10 at PageID#s 195-199.) Plaintiffs maintain, however, that Fiorillo

and MakGab nonetheless have standing to assert a breach of contract claim because “Ohio law

recognizes that non-signatories may enforce contract terms when they are intended third-party

beneficiaries or have suffered direct harm.” (Id. at PageID# 196.) Plaintiffs argue that they have

sufficiently alleged that both Fiorillo and MakGab were intended beneficiaries of the Inspection

Contract because they were the primary beneficiaries of that Contract and suffered direct harm as a

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result of its alleged breach. (Id.) Plaintiffs next argue that they have properly alleged that Vision

Management incurred damages as a result of Constant Aviation’s alleged breach, noting that the

Complaint specifically alleges “financial harm, including repair costs, operational delays, and

diminished aircraft value.” (Id. at PageID# 197.) Lastly, Plaintiffs argue that they complied with all

conditions precedent or were excused from doing so, asserting that they “allege that they notified

Defendant of the defects, but Defendant failed to take corrective action.” (Id. at PageID# 198.)

Plaintiffs maintain that “the contractual provision requiring Defendant be given an opportunity to

inspect and repair does not absolve Defendant of liability where its breach was material and prior to

any required notice.” (Id.)

The Court addresses the parties’ arguments in turn, below.

1. Plaintiffs Fiorillo and MakGab

As noted supra, the Complaint in the instant case provides that “Plaintiffs” (plural) entered

into the Inspection Contract with Constant Aviation. (Doc. No. 1 at ¶¶ 7, 9, 28) (alleging that

“Plaintiffs” retained Defendant to perform inspection and repair services, “Plaintiffs” paid for

prepurchase evaluations and subsequent inspection services, and “Plaintiffs” fully complied with the

Inspection Contract.) Ordinarily, a court “must accept all well-pleaded factual allegations [in a

complaint] as true.” Benzon v. Morgan Stanley Distribs., Inc., 420 F.3d 598, 602 (6th Cir. 2005)

(quoting Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002)). See also Jones v. Select

Portfolio Servicing, Inc., 672 Fed. Appx. 526, 531 (6th Cir. 2016). However, the Sixth Circuit has

held that when a “written instrument plainly contradicts the pleadings,” the instrument “trumps the

allegations.” Creelgroup, Inc. v. NGS Am., Inc., 518 Fed. Appx. 343, 347 (6th Cir. 2013) (quoting

Williams v. CitiMortgage, Inc., 498 Fed. Appx. 532, 536 (6th Cir. 2012)). See also Cates v. Crystal

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Clear Technologies, LLC, 874 F.3d 530, 536 (6th Cir. 2017) (same); Nolan v. Detroit Edison

Company, 991 F.3d 697, 707 (6th Cir. 2021).

Here, the Inspection Contract itself clearly indicates (and Plaintiffs do not dispute) that neither

MakGab nor Fiorillo (in his personal capacity) are signatories to that Contract. Courts, including the

Sixth Circuit, have held that non-signatories to a contract lack standing to assert a claim for breach

of contract. See, e.g., Creelgroup, Inc., 518 Fed. Appx. at 347 (“A close reading of the contract

reveals that Creelgroup was never a party to the contract. *** As a non-party to the agreement,

Creelgroup cannot state a claim for relief.”); White v. Adena Health System, 2018 WL 3377087 at *

9 (S.D. Ohio July 11, 2018) (dismissing a claim for breach of a non-disparagement agreement under

Rule 12(b)(6) where defendant was not a party to that agreement); DiPaolo v. Princeton Search, LLC,

2014 WL 517476 at * 2-3 (N.D. Ohio Feb. 6, 2014) (dismissing a counterclaim for lack of standing

on a 12(b)(6) motion where the contract was not assigned to defendant but, rather, to a different

party); Beard v. New York Live Ins. & Annuity Corp., 2013 WL 4678105 at * 7 (Ohio App. 10th Dist.

Aug. 27, 2013) (dismissing a breach of claim for lack of standing where plaintiff was not named in

the contract attached to his pleading).

Plaintiffs nonetheless assert that Constant Aviation is not entitled to dismissal of this claim

because “Plaintiffs have sufficiently alleged that MakGab and Fiorillo were intended beneficiaries

[of the Inspection Contract] and incurred financial losses due to Defendant’s breach.” (Doc. No. 10

at PageID# 196.) Constant Aviation disagrees, arguing that “the contract at issue in this case ... gives

no indication that it was intended to benefit either MakGab or Fiorillo.” (Doc. No. 11 at PageID#

206.) Regarding MakGab, Constant Aviation asserts that the fact that MakGab allegedly incurred

expenses to repair the aircraft does not make it an intended third party beneficiary, noting that “[t]here

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are no facts alleged in the Complaint to support a conclusion that Constant was even aware of

MakGab’s existence at the time it entered into the agreement with Vision Management.” (Id.)

Regarding Fiorillo, Constant Aviation argues that “the mere fact that [Fiorillo] signed the [Inspection

Contract], or that he owned Vision Management, does not make him an intended beneficiary of the

agreement.” (Id. at PageID# 207.)

As noted above, pursuant to the Inspection Contract, the instant dispute is governed by Ohio

law. (Doc. No. 1-1 at PageID# 22.) Under Ohio law, it is well established that only intended third-

party beneficiaries may assert rights to contracts to which they are not a party. See TRINOVA Corp.

v. Pilkington Bros., P.L.C., 638 N.E.2d 572, 577 (Ohio 1994); Cook v. Ohio National Life Ins. Co.,

961 F.3d 850, 855 (6th Cir. 2020) (applying Ohio law); Torrance v. Rom, 157 N.E.3d 172, 184 (Ohio

App. 8th Dist. 2020) (“Only an intended third-party beneficiary has enforceable rights under a

contract to which he or she is not a party; an incidental third-party beneficiary does not.”); Sony Elec.,

Inc. v. Grass Valley Grp., Inc., 2002 WL 440749 at *3 (Ohio App. 1st Dist. Mar. 22, 2002). Applying

Ohio law, “[t]he Sixth Circuit is in accord” that only an intended (rather than incidental) third-party

beneficiary has enforceable contract rights. Cook, 961 F.3d at 855. See also Norfolk & W. Co. v.

United States, 641 F.2d 1201, 1208 (6th Cir. 1980) (applying Ohio law, finding that third-party

beneficiary has enforceable rights under a contract only if he is an “intended beneficiary” as opposed

to an “incidental beneficiary.”); Sagraves v. Lab One, Inc., 316 Fed. Appx 366, 371 (6th Cir. 2008)

(same).

The Ohio Supreme Court clarified the distinction between intended third-party beneficiaries

and incidental third-party beneficiaries by adopting the Restatement (Second) of Contracts, § 302

which provides:

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(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a

promise is an intended beneficiary if recognition of a right to performance in the

beneficiary is appropriate to effectuate the intention of the parties and either

(a) the performance of the promise will satisfy an obligation of the promisee to pay

money to the beneficiary; or

(b) the circumstances indicate that the promisee intends to give the beneficiary the

benefit of the promised performance.

(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.

Hill v. Sonitrol of SW Ohio, Inc., 521 N.E.2d 780, 784 (Ohio 1988). See also Cook, 961 F.3d at 855.

The Ohio Supreme Court also quoted with approval comment e to Section 302 which provides, in

relevant part, that: “Performance of a contract will often benefit a third person. But unless the third

person is an intended beneficiary as here defined, no duty to him is created.” Hill, 521 N.E.2d at 784.

See also Norfolk, 641 F.2d at 1208 (“[T]he mere conferring of some benefit on the supposed

beneficiary by the performance of a particular promise in a contract [is] insufficient; rather, the

performance of that promise must also satisfy a duty owed by the promisee to the beneficiary.”).

In sum, for a third party to be an intended beneficiary of a contract under Ohio law, “there

must be evidence that the contract was intended to directly benefit that third party.” Huff v.

FirstEnergy Corp., 957 N.E.2d 3, 7 (Ohio 2011). See also Torrance, 157 N.E.3d at 184. “Generally,

the parties' intention to benefit a third party will be found in the language of the agreement.” Huff,

957 N.E.2d at 7, 8-9 (“[F]or an injured third party to qualify as an intended third-party beneficiary

under a written contract, the contract must indicate an intention to benefit that third party.”). See also

Torrance, 157 N.E.3d at 185. “Although there is no requirement that the intended third-party

beneficiary be expressly identified in the contract, the contract must be shown to have been made and

entered into with the intent to benefit that individual.” Torrance, 157 N.E.3d at 185 (citing Heintschel

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v. Montgomery, 2010 WL 5550662 at * 5 (Ohio App. 6th Dist. Dec. 30, 2010) and Bungard v. Dept.

of Job & Family Servs., 2007 WL 4171105 at * 6 (Ohio App. 10th Dist. Nov. 27, 2007)).

Here, Plaintiffs do not set forth any allegations in the Complaint that either MakGab or Fiorillo

are intended third-party beneficiaries to the Inspection Contract.4 Nor does the Complaint contain

any allegation(s) that the Inspection Contract was intended to benefit either MakGab or Fiorillo in

his personal capacity. Under similar circumstances, courts have found dismissal to be warranted on

this basis alone. See, e.g., Breen v Group Management Services, Inc., 2022 WL 3096546 at * 3 (Ohio

App. 8th Dist. Aug. 4, 2022) (affirming district court’s dismissal under Rule 12(b)(6) for lack of

standing because: “The complaint does not allege anywhere that Breen individually, or as trustee, is

an intended third-party beneficiary of the Contract. Nor does the complaint allege that Breen

individually, or as a trustee, was intended by GMS to have ‘the benefit of the promised

performance.’”).

Even setting aside these pleading deficiencies and looking to the Inspection Contract itself,

the Court finds that Plaintiffs have failed to demonstrate that either MakGab or Fiorillo are intended

third-party beneficiaries. Plaintiffs do not direct this Court’s attention to any provision of the

Inspection Contract that indicates an intention to benefit either MakGab or Fiorillo in his personal

capacity. And, upon its own careful review, this Court finds no terms or conditions in the Inspection

Contract that contain language establishing (or even suggesting) such an intention. Notably, MakGab

4 Citing Paragraphs 12 -14 of the Complaint, Plaintiffs assert (summarily) that they have “sufficiently alleged that

MakGab and Fiorillo were intended beneficiaries and incurred financial losses due to Defendant’s breach.” (Doc. No. 10

at PageID# 196.) The Court disagrees. Upon careful review, the Court finds that Paragraphs 12 through 14 of the

Complaint do not in any way allege that MakGab or Fiorillo were intended third-party beneficiaries to the Inspection

Contract. Nor do Paragraphs 12 through 14 allege that the Inspection Contract was intended to benefit MakGab and/or

Fiorillo or recite any specific provision in that Contract that would allegedly indicate such an intention. Thus, Plaintiffs’

assertion that these Paragraphs allege that MakGab and Fiorillo “were intended beneficiaries” is not supported by the

record and is without merit.

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is not mentioned anywhere in the Inspection Contract nor is there any language in the Inspection

Contract suggesting that Constant Aviation was aware of MakGab, assumed any contractual duty to

MakGab, or intended to benefit MakGab.

Likewise, Plaintiff has not directed this Court’s attention to (and this Court has not found) any

language or provisions in the Inspection Contract that indicate an intention to benefit Fiorillo in his

personal capacity. While the Court acknowledges that Fiorillo signed the Inspection Contract, the

Contract itself clearly indicates that he did so in his capacity as President of Vision Management.

(Doc. No. 1-1 at PageID# 24.) Indeed, the Inspection Contract expressly provides that it “can only

be accepted by an authorized officer of the company or a company representative who has the

capacity indicated and is authorized to execute, deliver, and bind the customer to this agreement.”

(Id.) Just below this provision, Fiorillo signed his name to the Inspection Contract and identified his

title as “Pres[ident].” (Id.) The Court finds that this language indicates the Inspection Contract was

between Constant Aviation and Vision Management and, further, that it does not indicate any

intention to benefit Fiorillo in his personal capacity.

Plaintiffs’ arguments to the contrary are without merit. Plaintiffs first suggest that they are

intended third-party beneficiaries because they “suffered direct harm” and “incurred financial losses”

due to Constant Aviation’s alleged breach. (Doc. No. 10 at PageID# 196.) However, allegations that

MakGab and Fiorillo were harmed or incurred financial losses as a result of Constant Aviation’s

alleged breach of the Inspection Contract are not sufficient, standing alone, to allege that they are

intended third-party beneficiaries to that Contract. See Torrance, 157 N.E.3d at 185 (finding that

plaintiff was not an intended third-party beneficiary “simply because he was financially affected by”

defendant’s breach of its contract with plaintiff’s company). Rather, and as discussed above, to be

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considered intended third-party beneficiaries, MakGab and Fiorillo must sufficiently allege that the

Inspection Contract was entered into with the intention of benefitting them. MakGab and Fiorillo

have failed to do so.5

Lastly, Plaintiffs argue generally that dismissal is inappropriate because “whether a contract

was ‘directly or primarily’ for a third party’s benefit is a factual question that requires further

discovery.” (Doc. No. 10 at PageID#s 196-197.) In support, Plaintiffs cite the Sixth Circuit’s opinion

in Cook, supra for the proposition that the determination of whether intended beneficiaries have

standing to enforce a contract “is a fact intensive inquiry.” (Id.) The Sixth Circuit, however, said no

such thing in Cook. Rather, in that case, the Sixth Circuit found that “to determine whether plaintiff

is an incidental or intended third-party beneficiary, we look to the terms of the Selling Agreement.”

Cook, 961 F.3d at 856. After analyzing several specific provisions of that Agreement, the Sixth

Circuit found that the plaintiff was not an intended third-party beneficiary and affirmed the district

court’s dismissal under Rule 12(b)(6).6 Id. at 854-855, 858-859. Plaintiffs’ argument that dismissal

is inappropriate at the Rule 12(b)(6) stage is, therefore, without merit and rejected. 7

5 Plaintiffs maintain that “¶¶ 2-4” of the Inspection Contract “detail[] the contractual obligations undertaken by Defendant,

which directly impacted MakGab and Fiorillo.” (Doc. No. 10 at PageID# 196.) However, there are no Paragraphs 2, 3,

or 4 in the Inspection Contract attached to the Complaint. (Doc. No. 1-1.) Thus, it is unclear what specific contractual

obligations or provisions Plaintiffs are referring to. Nor do Plaintiffs otherwise direct this Court’s attention to any

provision in the Inspection Contract that indicates an intention to benefit either MakGab or Fiorillo.

6 The Court notes that Plaintiffs provide an inaccurate citation to Cook, citing it as 960 F.3d 856 (6th Cir. 2020). In fact,

the correct citation is 961 F.3d 850 (6th Cir. 2020). In addition, Plaintiffs pinpoint p. 862 of the Cook decision as holding

that a determination of whether a third-party beneficiary has standing to enforce a contract is a “fact intensive inquiry.”

(Doc. No. 10 at PageID# 197.) However, there is no page 862 in the Cook decision. Counsel for Plaintiffs are reminded

and cautioned that they have an obligation to ensure that any filings in this Court include accurate case citations, both in

terms of the content of the cited decision and the citation itself.

7 Plaintiffs also cite cases from the Ninth Circuit Court of Appeals and the District Court for the District of Massachusetts.

(Doc. No. 10 at PageID# 197.) These out-of-Circuit cases, however, are not binding on this Court, particularly where

they conflict with Sixth Circuit authority.

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Accordingly, and for all the reasons set forth above, the Court finds that Plaintiffs MakGab

and Fiorillo lack standing to assert a breach of contract claim against Constant Aviation because they

are neither signatories to the Contract nor intended third-party beneficiaries. MakGab and Fiorillo’s

breach of contract claims against Constant Aviation are, therefore, dismissed.

2. Vision Management

Constant Aviation next argues that “Vision Management is the only party to the [Inspection]

Contract with Constant, but Vision Management has not and cannot allege an essential element of a

breach of contract claim—damages.” (Doc. No. 9 at PageID# 185.) In this regard, Constant Aviation

asks this Court to disregard the allegation in the Complaint that “Plaintiffs incurred substantial

expenses ... caused by Defendant’s negligence.” (Doc. No. 1 at ¶ 12) (emphasis added) because it

conflicts with the January 2023 Invoices attached to the Complaint. (Doc. No. 9 at PageID# 186.)

Specifically, Constant Aviation asserts that these Invoices reflect that payments made to conduct

inspections and repairs after the discovery of corrosion were made solely by MakGab – and not by

Vision Management. (Id.)(citing Doc. No. 1-2 at PageID#s 34-49.)

In their Brief in Opposition, Plaintiffs do not challenge the legal principle that this Court

should disregard allegations in the Complaint that are contradicted by its Exhibits. (Doc. No. 10.)

Moreover, Plaintiffs fail to address Constant Aviation’s argument that the allegation that Vision

Management suffered damages is directly contradicted by the January 2023 Invoices, which

Defendant maintains show that it was MakGab (and only MakGab) that paid for the subsequent

inspection and repairs of the aircraft at issue.8

8 Although not noted by either Plaintiffs or Defendant, the Court observes that some of the January 2023 Invoices are

billed to both MakGab Holdings and “Tony Furillo,” which the Court presumes is meant to refer to Plaintiff Anthony

Fiorillo. (Doc. No. 1-2 at PageID#s 50-52.)

16

However, for the following reasons, the Court finds that Plaintiffs have nonetheless

sufficiently alleged that Vision Management (the only signatory to the Inspection Contract) incurred

damages as a result of Constant Aviation’s alleged breach of contract. Although the January 2023

Invoices show that MakGab (and in some instances Fiorillo) paid for inspection and repair costs after

the discovery of corrosion, Plaintiffs also allege that they suffered other types of damages as a result

of Constant Aviation’s alleged breach, including “operational disruptions and the result of loss of

business opportunities, totaling $123,000” and “additional costs incurred in obtaining substitute

aircraft services during the remediation period.” (Doc. No. 1 at ¶ 30.) The Complaint adequately

alleges that Vision Management suffered these damages and Constant Aviation does not direct this

Court’s attention to anything in the Exhibits attached to the Complaint that directly contradict this

allegation.

Accordingly, the Court finds that Plaintiffs have sufficiently alleged both that Vision

Management is a signatory to the Inspection Contract and that it suffered damages as a result of

Constant Aviation’s alleged breach.

3. Failure to Satisfy Conditions Precedent

Lastly, Constant Aviation argues that Plaintiffs’ breach of contract claim fails because Vision

Management failed to comply with the notice, inspection, and opportunity to repair requirements in

the Inspection Contract. (Doc. No. 9 at PageID# 186.) Specifically, Constant Aviation argues that

“[b]ecause Plaintiffs have not (and cannot) allege that they gave timely notice to Constant, or

delivered the aircraft to Constant for inspection, or allowed Constant to repair the aircraft, Plaintiffs

have not, and cannot, allege facts showing that they fulfilled all conditions precedent to recovery in

this case.” (Id.)

17

In response, Plaintiffs argue that “the Contract’s warranty provisions do not absolve liability

where it failed to properly perform its obligations in the first instance,” particularly where the “defect

at issue was latent and not immediately discoverable.” (Doc. No. 10 at PageID# 195.) Plaintiffs

maintain that they “allege that they notified Defendant of the defects, but Defendant failed to take

corrective action” and argue that “a condition does not require an act that would be futile.” (Id. at

PageID# 198.) Plaintiffs further assert that “the contractual provision requiring Defendant be given

an opportunity to inspect and repair does not absolve Defendant of liability where its breach was

material and prior to any required notice.” (Id.) Thus, Plaintiffs argue that Constant Aviation’s

Motion to Dismiss should be denied because Plaintiffs either fulfilled, or were excused from

fulfilling, the notice, inspection, and repair provisions in the Inspection Contract. (Id.)

In its Reply Brief, Constant Aviation notes that the Complaint itself provides that Plaintiffs

did not notify Constant Aviation of the alleged defects until July 8, 2024, which is “21 months after

Plaintiffs allegedly discovered significant corrosion on critical aircraft components.” (Doc. No. 11

at PageID# 208.) Constant Aviation notes that, under the express terms of the Inspection Contract,

Vision Management was required to provide notice within 30 days of actual or constructive notice of

a warranty claim. (Id.) Constant Aviation further asserts that, by the time it was notified by Plaintiffs

of the alleged warranty claim, MakGab had already incurred the expense to have the aircraft repaired,

in violation of the inspection and repair provisions of the Inspection Contract. (Id.) Thus, Constant

Aviation maintains that Plaintiffs have not alleged that Vision Management fulfilled the notice,

inspection, and/or repair provisions of the Inspection Contract. (Id.) Constant Aviation further argues

that Vision Management is not excused from complying with these provisions, asserting that “Vision

Management cannot ignore the requirements of the contract to give notice and an opportunity to cure,

18

and then claim that it was excused from doing so because Constant did not cure.” (Id. at PageID#

209.)

“Under Ohio law, the elements of a breach of contract claim are: (1) the existence of a

contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) damage or loss to the

plaintiff as a result of the breach.” Asset Mgmt. One LLC v. U.S. Bank Nat’l Ass’n, 569 Fed. Appx

438, 441 (6th Cir. 2014) (quoting V&M Star Steel v. Centimark Corp., 678 F.3d 459, 465 (6th Cir.

2012)). “It is well established under Ohio contract law that a party must comply with all express

conditions to be performed in case of breach before it can claim damages by reason of the breach.”

Au Rustproofing Center, Inc. v. Gulf Oil Corp., 755 F.2d 1231, 1237 (6th Cir. 1985) (citing Bell

Brothers v. Robinson, 5 Ohio App. 454, 458 (Ohio App. 6th Dist. 1916)). Moreover, “a right of

action requiring notice as a condition precedent cannot be enforced unless the notice provided for has

been given.” Id. (citing18 O.Jur.3d Contracts § 210 (1980); 17 Am.Jur.2d Contracts § 356 (1964);

3a A. Corbin, Corbin On Contracts, § 727 (1960)). See also Lion Federal Credit Union v. WorldPay,

LLC, 2024 WL 1704551 at * 8 (S.D. Ohio April 19, 2024) (noting that “Ohio law does require Lion

to comply with all express conditions precedent, such as the MSA's provision requiring Lion to give

Worldpay notice of and an opportunity to cure any alleged breaches”), supplemented on other

grounds by, 2024 WL 2701700 (S.D. Ohio May 24, 2024)).

As noted above, here, the Inspection Contract expressly provides that “[t]o assert a warranty

claim, the customer [i.e., Vision Management] shall notify Constant Aviation in writing within thirty

(30) days after the customer has actual or constructive notice of such alleged warranty claim.” (Doc.

No. 1-1 at PageID# 21.) The Inspection Contract further provides that: “Constant Aviation shall have

a full and complete opportunity to inspect any alleged defect or nonconforming work, and review any

19

records concerning the alleged defect prior to performance of any repairs.” (Id. at PageID# 22.)

Lastly, the Inspection Contract provides that”[i]f Constant Aviation determines that the defective or

nonconforming work is shown to be due to a breach of the above warranty, and not due to any

extraneous cause, including but not limited to misuse by the customer or any third party, failure to

perform recommended maintenance, or effects of the environment (wind, water, corrosion, etc.), then

Constant Aviation shall repair the defective work.” (Id.)

Plaintiffs do not dispute that the above notice, inspection, and right to repair provisions

constitute conditions precedent. Nor do Plaintiffs argue that any of the above provisions are

ambiguous or that they are unenforceable because they are unconscionable or otherwise against

public policy. Rather, Plaintiffs assert that they did, in fact, “allege that they notified Defendant of

the defects.” (Doc. No. 10 at PageID# 198) (citing Doc. No. 1 at ¶¶ 18-19.) Plaintiffs maintain that,

because “Defendant failed to take corrective action” after receiving notice, Vision Management is

excused from complying with the inspection and repair provisions of the Inspection Contract on the

grounds that it would be futile. (Id.)

The Court finds Plaintiffs’ argument to be without merit. In the Complaint, Plaintiffs allege

that “[o]n or about July 8, 2024, [they] sent Defendant a demand letter detailing their claims and

damages related to Defendant’s negligent performance and breach of contract.” (Doc. No. 1 at ¶ 18.)

As Constant Aviation correctly notes, however, in the July 20249 demand letter, counsel for Plaintiffs

expressly states that Plaintiffs “discovered significant corrosion on critical aircraft components during

subsequent inspections and repairs conducted and completed in or around September 2022 and

9 While the Complaint provides that Plaintiffs sent their demand letter to Constant on July 8, 2024, the actual demand

letter (attached as Exhibit C to the Complaint) is dated July 5, 2024. See Doc. No. 1-3 at PageID# 57.

20

January 2023.” (Doc. No. 1-3 at PageID# 58.) Thus, by Plaintiffs’ own acknowledgment, they

discovered the alleged corrosion by no later than January 2023 but failed to notify Constant Aviation

until July 5, 2024 – over seventeen (17) months later. Clearly, this is well beyond the thirty (30) day

notice period set forth in the Inspection Contract. Thus, the Court rejects Plaintiffs’ argument that

they complied with the Inspection Contract’s notice provision.

Relatedly, the Court also rejects Plaintiffs’ argument that, because they provided notice and

Constant Aviation nonetheless failed to “take corrective action,” Plaintiffs were excused from

complying with the inspection and repair provisions of the Inspection Contract. The Invoices

attached to the Complaint show that MakGab paid for repairs to the aircraft in question in January

2023 (Doc. No. 1-2 at PageID#s 34-53), i.e., well before Plaintiffs notified Constant Aviation of the

alleged corrosion in July 2024. Given the fact that Constant Aviation never had any opportunity to

inspect and/or repair the alleged corrosion because Plaintiffs unilaterally completed the repairs before

providing notice, the Court rejects Plaintiffs’ argument that they were excused from the inspection

and repair provisions of the Inspection Contract on futility grounds.

Citing Tatonka Educ. Services, Inc. PBC v. Youngstown Preparatory Acad., 2023 WL

4085366 (N.D. Ohio June 20, 2023), Plaintiffs next argue (summarily) that “the contractual

provisions requiring Defendant be given an opportunity to inspect and repair does not absolve

Defendant of liability where its breach was material and prior to any required notice.” (Doc. No. 10

at PageID# 198.) For the following reasons, the Court rejects this argument.

In Tatonka, the parties entered into a contract, in which plaintiff Tatonka Education Services,

Inc. PBC (“Tatonka”) agreed to provide financial management and human resource services to

defendant Youngstown Preparatory Academy (“YPA”). Tatonka, 2023 WL 4085366 at * 1. After

21

YPA unilaterally terminated the contract, Tatonka filed suit alleging breach of contract and breach of

the implied covenant of good faith and fair dealing. Id. at * 2. YPA then filed counterclaims for

(among other things) breach of contract and material breach. Id. Tatonka moved to dismiss, arguing

that YPA’s counterclaims failed because YPA failed to perform under the contract. Id. YPA

maintained that it was excused from performance because Tatonka materially breached the contract

first.10 Id.

The district court explained that “Ohio courts have recognized the doctrine of first material

breach, which provides that ‘a non-breaching party to a contract is excused from complying with

conditions of the contract, when the party for whose benefit the condition operates has already

materially breached the contract.’” Id. at * 3 (quoting Jackson v. State Farm Fire & Cas. Co., 461

Fed. Appx 422, 426 (6th Cir. 2012)). The court further noted as follows:

It is well-settled in Ohio that a material breach of contract is “a failure to do something

that is so fundamental to a contract that the failure to perform defeats the essential

purpose of the contract or makes it impossible for the other party to perform.” Price

v. KNL Custom Homes, Inc., 2015-Ohio-436, ¶ 32, 28 N.E.3d 640, 651 (quoting

Marion Fam. YMCA v. Hensel, 2008-Ohio-4413, ¶ 7, 178 Ohio App. 3d 140, 142–43,

897 N.E.2d 184, 186). To determine whether Tatonka materially breached the

amended contract, the Court must consider the following five factors that Ohio has

adopted from the Restatement (Second) of Contracts (1981):

[(1)] the extent to which the injured party will be deprived of the expected

benefit, [(2)] the extent to which the injured party can be adequately

compensated for the lost benefit, [(3)] the extent to which the breaching party

will suffer a forfeiture, [(4)] the likelihood that the breaching party will cure its

breach under the circumstances, and [(5)] the extent to which the breaching party

has acted with good faith and dealt fairly with the injured party.

10 For example, YPA alleged that Tatonka “failed to make timely payments to the State Employee Retirement System of

Ohio, to timely pay utility bills and medical insurance premiums, and to remit unemployment taxes on behalf of YPA,

amongst other failures.” Id. YPA alleged that these alleged breaches “led to accrued interest charges and/or penalties that

YPA is responsible for paying.” Id.

22

Software Clearing House, Inc. v. Intrak, Inc., 66 Ohio App.3d 163, 170–71, 583

N.E.2d 1056 (Ohio Ct. App. 1990); Freeman Indus. Prods., L.L.C. v. Armor Metal

Grp. Acquisitions, Inc., 2011-Ohio-1995, ¶ 31, 193 Ohio App. 3d 438, 449, 952

N.E.2d 543, 551. If these factors weigh in favor of the injured party, then the Court

may find that the breaching party materially breached the amended contract.

Id. The district court then carefully evaluated each of the above five factors, concluding that four of

them weighed in YPA’s favor. Id. at * 3-4. The district court therefore denied Tatonka’s motion to

dismiss YPA’s breach of contract and material breach counterclaims. Id. at * 4.

In the instant case, Plaintiffs summarily cite Tatonka but fail to acknowledge, address, or

apply any of the five factors noted in that decision. Indeed, Plaintiffs devote only one sentence to

this argument in their Brief in Opposition, without any further development, discussion, or application

of the five factors to the specific facts alleged in the Complaint herein. It is well established that

“[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.” McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997). See

also Gradisher v. City of Akron, 794 F.3d 574, 586 (6th Cir. 2015) (same). “It is not sufficient for a

party to mention a possible argument in the most skeletal way, leaving the court to … put flesh on its

bones.” McPherson, 125 F.3d at 995. Here, the Court finds that, by failing to provide any meaningful

discussion of this issue, Plaintiffs have waived their argument that Vision Management was excused

from complying with the notice, inspection, and/or repair provisions of the Inspection Contract

because Constant Aviation allegedly materially breached that Contract first. The Court will not sua

sponte consider and apply each of the five factors set forth in Tatonka to the allegations in the

Complaint, nor will it craft arguments on Plaintiffs’ behalf in this regard. In light of Plaintiffs’ failure

to sufficiently raise this argument, the Court declines to consider it herein.

23

Accordingly, and for all the reasons set forth herein, the Court grants Constant Aviation’s

Motion to Dismiss Plaintiffs’ breach of contract claim (Count II).

B. Negligence/Gross Negligence (Count I)

Constant Aviation also seeks dismissal of Plaintiffs’ claim for “negligence/gross negligence.”

In Count I, Plaintiffs allege that Constant Aviation owed them “a common law duty, as well as a

contractual duty, to use reasonable care while inspecting, maintaining, and repairing the aircraft at

issue.” (Doc. No. 1 at ¶ 22.) Plaintiffs allege that Constant Aviation breached its duty to Plaintiffs

by doing the following:

a. Failing to perform inspections and maintenance with the requisite skill and

diligence expected of professional aviation service providers;

b. Failing to identify corrosion and other latent defects during the initial

inspection despite being specifically retained to ensure airworthiness;

c. Neglecting to conduct critical industry-standard tests designed to identify

latent corrosion issues in high-risk areas of the aircraft;

d. Representing that the aircraft was free of material defects despite the presence

of significant corrosion;

e. Allowing the aircraft to be delivered in an unsafe and non-airworthy condition;

f. Failing to adhere to FAA guidelines, industry standards, and contractual

obligations;

g. Recklessly and knowingly disregarding the safety implications of its

inadequate inspections and repairs; and

h. Failing to train or supervise its employees properly to carry out inspections and

repairs in accordance with applicable standards.

(Id. at ¶ 23.) Plaintiffs allege that, as a direct and proximate result of the foregoing acts and omissions,

Plaintiffs “have incurred substantial repair costs, operational disruptions, reputational harm, and lost

business opportunities.” (Id. at ¶ 25.) Lastly, Plaintiffs allege that the damages they suffered “were

24

directly and proximately caused by the negligence, carelessness, recklessness, gross negligence,

and/or willful and wanton misconduct of Defendant.” (Id. at ¶ 24.)

Constant Aviation argues that Plaintiffs’ negligence claim fails because (1) it is duplicative

of, and therefore precluded by, Plaintiffs’ breach of contract claim; (2) Constant Aviation owed no

duty to either Fiorillo or MakGab because neither of those Plaintiffs are parties to the Inspection

Contract; and (3) it is barred by the economic loss doctrine. (Doc. No. 9 at PageID#s 181-184.) In

response, Plaintiffs argue that their negligence claim is distinct from their breach of contract claim

because the Complaint sufficiently alleges that Constant Aviation breached professional duties that

exist independently of the Inspection Contract, including adherence to FAA regulations and industry

maintenance standards. (Doc. No. 10 at PageID#s 193-195.) Plaintiffs also assert that they have

sufficiently plead a claim for negligent misrepresentation, which they argue “may exist alongside

breach of contract claims where the misrepresentation induced reliance outside the contract.” (Id.)

Lastly, Plaintiffs argue that the economic loss doctrine does not apply in cases involving “professional

negligence” and/or allegations of property damage. (Id.)

In Reply, Constant Aviation argues that Plaintiffs have failed to allege any facts showing the

existence of any duty owed separately from the Inspection Contract. (Doc. No. 11 at PageID#s 202-

205.) Constant Aviation further asserts that Plaintiffs’ professional negligence argument fails

because “Plaintiffs have cited no case in which an aircraft inspection and maintenance company has

been found to be the type of ‘professional’ to which a ‘professional negligence’ claim will apply.”

(Id.) And, even if it could be considered such a professional, Constant Aviation argues that Plaintiffs’

claim nonetheless fails because they fail to allege any damages attributable to the alleged negligence

that are different from the damages arising from the alleged breach of contract. (Id.)

25

The Court will address the parties’ arguments with respect to Vision Management, and to

MakGab and Fiorillo, separately, below.

1. Vision Management

As discussed above, Vision Management is the only one of the three Plaintiffs that is a party

to the Inspection Contract and, therefore, the only Plaintiff herein that had standing to assert a breach

of contract claim against Constant Aviation. Under Ohio law, “the existence of a contract action

generally excludes the opportunity to present the same case as a tort claim.” Wolfe v. Continental

Cas. Co., 647 F.2d 705, 710 (6th Cir. 1981) (applying Ohio law). See also Academic Imaging LLC

v. Soterion Corp., 352 Fed. Appx. 59, 64 (6th Cir. 2009) (applying Ohio law); DG Gas, LLC v. TA

Franchise Systems, LLC, 2025 WL 814928 at * 31 (N.D. Ohio March 14, 2025); Stancik v. Deutsche

Natl. Bank, 2015 WL 3899224 at * 7 (Ohio App. 8th Dist. June 25, 2015); Textron Fin. Corp. v.

Nationwide Mut. Ins. Co., 684 N.E.2d 1261, 1270 (Ohio App. 9th Dist. 1996). More specifically,

“Ohio law does not recognize a tort claim premised upon the same actions as those upon which the

plaintiff bases a breach of contract claim unless the plaintiff identifies some duty or misrepresentation

by the breaching party independent of the contract.” Bibbs v. Allstate Ins. Co., 2024 WL 4124171 at

*8 (N.D. Ohio Sept. 9, 2024). See also Academic Imaging LLC, 352 Fed. Appx. at 64-65 (“To be

cognizable, a tort claim must allege a breach ‘of some positive legal duty imposed by law because of

the relationship of the parties, rather than from a mere omission to perform a contract obligation.’”)

(quoting Cuthbert v. Trucklease Corp., 2004 WL 1879023 at * 10 (Ohio App. 10th Dist. Aug. 24,

2004)); Little Mountain Precision, LLC v. DR Guns, LLC, 2023 WL 1816711 at *6 (N.D. Ohio Feb.

8, 2023) (“A tort claim based upon the same actions as those upon which a claim of contract is based

26

will exist independently of the contract action only if the breaching party also breaches a duty owed

separately from that created by the contract.”)

Moreover, where the causes of action in tort and contract are “factually intertwined,” a

plaintiff must show that the tort claims derive from the breach of duties that are independent of the

contract and that would exist notwithstanding the contract. Stancik, 2015 WL 3899224 at * 7. “To

hold otherwise would be to convert every unfulfilled contractual promise, i.e., every alleged breach

of contract, into a tort claim.” Telxon Corporation v. Smart Media of Delaware, Inc., 2005 WL

2292800 at * 13 (Ohio App. 9th Dist. Sept. 21, 2005). See also Little Mountain Precision, LLC v.

DR Guns, LLC, 2023 WL 1816711 at *6. A separate duty will arise in special relationships, such as

between an insurer and its insured. Battista v. Lebanon Trotting Ass'n, 538 F.2d 111, 117-18 (6th

Cir. 1976). “If a separate duty does not exist, the tort-based claim will not lie.” Little Mountain

Precision, LLC, 2023 WL 1816711 at * 6.

Here, Plaintiffs argue that Constant Aviation owed Vision Management such a separate duty.

Specifically, Plaintiffs argue that Constant Aviation “owed a duty of care in performing aircraft

inspections and repairs, independent of its contractual obligations.” (Doc. No. 10 at PageID# 193.)

In support of this argument, Plaintiffs first cite a purported Sixth Circuit case, “Onyx Enters. Int’l

Corp. v. Sloan, 843 F. App’x 859, 867 (6th Cir. 2021),” for the proposition that “a duty in tort may

arise separately from contractual obligations where professional services are involved.” (Id.) Despite

many attempts, however, the Court was unable to locate this alleged Sixth Circuit case, either by

27

name11 or by the Fed. Appx citation provided by Plaintiffs in their Brief in Opposition.12 Thus, the

Court will disregard this citation.

Plaintiffs next argue that they have sufficiently alleged that Constant Aviation performed

improper inspections of the aircraft at issue “contrary to industry protocol and standard,” and that

these allegations “establish that Defendant’s failures extended beyond mere breaches of contract and

into the realm of professional negligence.” (Doc. No. 10 at PageID# 193.) Plaintiffs cite the

following four cases in support of this argument: (1) LifeTime Fitness, Inc. v. Chagrin Valley Eng’g

Ltd., 2014 WL 6879082 (N.D. Ohio Dec. 4, 2014); (2) Cromer v. Children’s Hosp. Med. Ctr. of

Akron, 29 N.E.3d 921 (Ohio 2015); (3) Haddon View Inv. Co. v. Coopers & Lybrand, 436 N.E.2d

212 (Ohio 1982); and (4) Corporex Dev. & Construction Mgmt., Inv. v. Shook, Inc., 835 N.E.2d 701

(Ohio 2005). While the above cases do, in fact, exist, the Court agrees with Constant Aviation that

they do not support Plaintiffs’ argument. Notably, none of the cases cited by Plaintiffs involve an

aircraft inspection and maintenance company or otherwise hold that an aircraft inspection and

maintenance company such as Constant Aviation constitutes the type of “professional” to which a

11 The Court notes that a search of the case name “Onyx Enters. Int’l Corp. v. Sloan” brings up two unreported decisions

in the United States District Court for the District of Colorado and one unreported decision in the United States District

Court for the Southern District of Florida. See Onyx Enters. Int’l Corp. v. Sloan International Holdings Corp., 2020 WL

1958414 (D. Colo. March 26, 2020); Onyx Enters. Int’l Corp. v. Sloan International Holdings Corp., 2020 WL 1955398

(D. Colo. April 23, 2020); and Onyx Enters. Int’l Corp. v. Sloan International Holdings Corp., 2020 WL 9172668 (S.D.

Fla. July 29, 2020). None of these cases relate in any way to the circumstances in which a duty in tort may arise separately

from contractual obligations.

12 The Court hereby reminds counsel for Plaintiffs of her responsibilities under Fed. R. Civ. P. 11, as well as her ethical

obligations and duty of candor as an officer of the Court. See, e.g., Park v. Kim, 91 F.4th 610, 615 (2nd Cir. 2024)

(finding that “[a]t the very least, the duties imposed by Rule 11 require that attorneys read, and thereby confirm the

existence and validity of, the legal authorities on which they rely.”); Wadsworth v. Walmart, Inc., 348 F.R.D. 489, 495

(D. Wyo. 2025) (finding that “using a fake opinion to support an argument is a violation of Rule 11(b)(2)” ); Mavy v.

Comm’r of Soc. Sec., 2025 WL 2355222 at * 6 (D. Az. Aug. 14, 2025) (finding that, “[b]y repeatedly citing this Court to

non-existent ‘cases’ and to actual cases that did not support the propositions for which they were cited,” counsel’s conduct

“squarely [ran] afoul of Rule 11’s mandate”).

28

“professional negligence” claim could apply. See LifeTime Fitness, Inc., 2014 WL 6879082 at * 4

(involving a “design professional” that prepared a design of a parking lot); Cromer, 29 N.E.3d at 929

(finding that the relationship between medical professionals and their patients “can establish the

existence of an actor’s duty to another person”); Haddon View Inv. Co., 436 N.E.2d at 215 (holding

that “an accountant may be held liable by a third party for professional negligence when that third

party is a member of a limited class whose reliance on the accountant’s representation is specifically

foreseen”); Corporex, 835 N.E.2d at 413 (finding that the economic loss rule bars a building project

owner from recovery of purely economic damages in tort against a subcontractor).

Moreover, while the Complaint does allege that Constant Aviation “failed to adhere to Federal

Aviation Administration (‘FAA’) standards and guidelines,” Plaintiffs fail to sufficiently allege or

explain how this alleged “breach of [Constant Aviation’s] professional duties” encompasses any

duties separate from, or independent of, the parties’ contractual relationship. Indeed, in their breach

of contract claim (Count II), Plaintiffs allege that the Inspection Contract “obligated Defendant to

perform its services in accordance with agreed-upon terms and industry standards;” and that Constant

Aviation breached the Inspection Contract by, among other things, “failing to adhere to the required

industry standards.” (Doc. No. 1 at ¶¶ 27, 29) (emphasis added). Plaintiffs further blur the boundary

between their negligence and breach of contract claims, by alleging in their negligence claim (Count

I) that Constant Aviation “breached its duty to Plaintiffs by *** (f) Failing to adhere to FAA

guidelines, industry standards, and contractual obligations.” (Id. at ¶ 23(f)) (emphasis added). In

sum, the Court finds that Plaintiffs have failed to sufficiently allege or demonstrate the existence of

a separate duty that is independent from the Inspection Contract and that would “exist

notwithstanding the contract.” Stancik, 2015 WL 3899224 at * 7. Rather, any duties owed by

29

Constant Aviation to Vision Management “arose incident to the[ir] contractual relationship.” Ross

v. PennyMac Loan Services LLC, 761 Fed. Appx. 491, 496 (6th Cir. 2019). For this reason alone,

the Court finds that Vision Management’s negligence claim necessarily fails as a matter of law. See

also Stancik, 2015 WL 3899224 at * 7.

The Court further finds that Vision Management’s negligence claim fails for the additional

reason that Plaintiffs have failed to allege damages attributable to Constant Aviation’s alleged

negligent conduct that are separate and distinct from damages attributable to its alleged breach of

contract. Ohio courts have long held that “[i]n addition to containing a duty independent of that

created by contract, an action arising out of contract which is also based upon tortious conduct must

include actual damages attributable to the wrongful acts of the alleged tortfeasor which are in addition

to those attributable to the breach of the contract.” Textron Fin. Corp., 684 N.E.2d at 1271 (emphasis

in original.). See also Academic Imaging, LLC, 352 Fed. Appx. at 67-68 (same); LifeTime Fitness,

Inc., 2014 WL 6879082 at * 4 (same). Here, Plaintiffs do not argue or otherwise explain how their

alleged negligence damages are different from or in addition to their alleged breach of contract

damages. Upon review, the Court agrees with Constant Aviation that Plaintiffs’ alleged damages

relating to their negligence claim are, in fact, indistinguishable from their alleged damages relating

to their breach of contract claim.13

13 Specifically, regarding their negligence claim, Plaintiffs allege that they “incurred repair costs, operational disruptions,

reputational harm, and lost opportunities,” including “substantial expenses totaling $176,501.43 for repairs and

inspections necessary to remediate the corrosion and an additional $123,000.00 for operational disruptions caused by

Defendant’s negligence.” (Doc. No. 1 at ¶¶ 12, 25.) Regarding the breach of contract claim, Plaintiffs similarly allege

that they suffered damages in the amount of $176,501.43 for repair and inspection costs and “[o]perational disruptions

and the resulting loss of business opportunities, totaling $123,000.00,” as well as “[a]dditional costs incurred in obtaining

substitute aircraft services during the remediation period” and attorney fees and costs. (Id. at ¶ 30.)

30

Lastly, the Court rejects Plaintiffs’ argument that they have asserted a claim for negligent

misrepresentation and, thus, their negligence claim is not “merely duplicative” of their contract claim.

(Doc. No. 10 at PageID# 193.) Plaintiffs cite Paragraphs 9 and 12 of the Complaint in support of

their argument that they “properly assert that Defendant misrepresented its ability to properly inspect

and repair the aircraft, further supporting a claim for negligence.” (Id.) These Paragraphs provide

as follows:

9. Plaintiffs paid for pre-purchase evaluations and subsequent inspection services

totaling $94,315.44

**

12. Plaintiffs incurred substantial expenses totaling $176,501.43 for repairs and

inspections necessary to remediate the corrosion and an additional $123,000

for operational disruptions caused by Defendant’s negligence.

(Doc. No. 1 at ¶¶ 9, 12.) Even construing the above Paragraphs in a light most favorable to Plaintiffs,

it is clear that they do not “assert that Defendant misrepresented its ability to properly inspect and

repair the aircraft.” (Doc. No. 10 at PageID# 193.)

Although not cited by Plaintiffs, the Court notes that, in Count I, Plaintiffs allege (among

other things) that Constant Aviation was negligent because it “represent[ed] that the aircraft was free

of material defects despite the presence of significant corrosion.” (Doc. No. 1 at ¶ 23(d)). Neither

party cites or addresses this particular allegation. Upon careful review, the Court construes this

allegation as alleging that this misrepresentation occurred after Constant Aviation had already

performed the agreed-upon inspection and repair services set forth in the Inspection Contract. As

such, the Court finds that it is duplicative of Plaintiff’s claim that Defendant breached the contract by

failing to “deliver the contracted-for services free of defects” and “notify the Plaintiff of any defects.”

(Doc. No. 1 at ¶ 29.) In other words, the Court finds that Constant Aviation’s duty to accurately

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represent whether the aircraft was free of defects is a contractual duty – not a separate or independent

duty apart from the Inspection Contract. See, e.g., Textron Fin. Corp., 684 N.E.2d at 1271 (“Whether

intentionally or not, Nationwide failed to disclose the true location of Textron’s 200E computer and,

in fact, represented a location which was, if not initially, then ultimately, incorrect. However, the

duty to obtain Textron’s consent to a change in the computer’s location was contractual. Textron did

not establish a duty additional to that which was contractual.”) Moreover, and as discussed above,

Plaintiffs have not alleged damages separately attributable to Constant Aviation’s alleged negligent

misrepresentation that are distinguishable from those damages that it claims are attributable to

Constant Aviation’s alleged breach of contract.

Accordingly, and for all the reasons set forth above, the Court finds that Vision Management’s

negligence claim necessarily fails as a matter of law.14 See also Stancik, 2015 WL 3899224 at * 7.

2. MakGab and Fiorillo

As discussed supra, unlike Vision Management, MakGab and Fiorillo are not parties to the

Inspection Contract. Constant Aviation argues that MakGab and Fiorillo’s negligence claim should

nonetheless be dismissed because “in the absence of a contract to provide any goods or services to

Fiorillo or MakGab, Constant owed them no duty.” (Doc. No. 9 at PageID# 182.) Specifically,

Constant Aviation asserts that the existence of a duty depends on the foreseeability of the injury. (Id.)

Because neither MakGab nor Fiorillo are parties to the Inspection Contract, Constant Aviation argues

that it “obviously would not foresee any injury to [them].” (Id.) Lastly, Constant Aviation argues

14 In light of the above, the Court need not (and does not) address Constant Aviation’s argument that Plaintiffs’ negligence

claims are barred by the economic loss doctrine.

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that MakGab’s and Fiorillo’s negligence is also barred by the economic loss doctrine because

Plaintiffs “have alleged solely economic damages.” (Id. at PageID# 183.)

In their Brief in Opposition, Plaintiffs do not acknowledge or address Constant Aviation’s

argument that MakGab’s and Fiorillo’s negligence claim should be dismissed because they are not

signatories to the Inspection Contract and, therefore, it was not foreseeable that they would be injured

by Constant Aviation’s alleged breach. (Doc. No. 10 at PageID# 194.) Rather, Plaintiffs maintain

that Constant Aviation owed all of the Plaintiffs (including MakGab and Fiorillo) a duty separate and

apart from the Inspection Contract because “professionals providing specialized services, such as

aviation maintenance, are required to exercise reasonable care in their work.” (Id.)

As discussed at length above, however, the Court has found that Plaintiffs have failed to cite

any authority indicating that an aircraft inspection and maintenance company such as Constant

Aviation constitutes the type of “professional” to which a “professional negligence” claim could

apply. The Court has further found that Plaintiffs have failed to sufficiently allege or explain how

Constant Aviation’s alleged breach of its “professional duties” encompasses any duties separate from,

or independent of, the Inspection Contract that was entered into between Vision Management and

Constant Aviation. In addition, by failing to acknowledge or address the issue, Plaintiffs concede

that it was not foreseeable that MakGab and Fiorillo would be injured by Constant Aviation’s alleged

breach of the Inspection Contract, as neither of those Plaintiffs are parties to that Contract. Under

these circumstances, the Court finds that Constant Aviation is entitled to dismissal of Plaintiffs

MakGab’s and Fiorillo’s negligence claim. See e.g., Corporex, 835 N.E.2d at 415 (“Because the

underlying duties are created by a contract to which DSI is not a party, no tort action lies in DSI’s

favor.”).

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Accordingly, and for all the reasons discussed above, Count I is dismissed.

C. Unjust Enrichment (Count III)

In Count Three, Plaintiffs allege that they “conferred a substantial benefit on Defendant by

paying for inspection and repair services that were negligently performed, recklessly performed,

and/or not performed to the required standard.” (Doc. No. 1 at ¶ 32.) Plaintiffs further allege that

Defendant had knowledge of Plaintiffs’ payments to Defendant and that “Defendant’s retention of

these payments without providing Plaintiffs the contracted-for services would be unjust.” (Id. at ¶

33.) Plaintiffs allege that they are therefore “entitled to restitution of the amounts paid to Defendant

under the principles of equity and fairness.” (Id. at ¶ 35.)

In its Motion, Constant Aviation argues that Plaintiffs’ unjust enrichment claim should be

dismissed because “Plaintiffs are not permitted to seek relief under quasi-contract where an express

contract governs the same matter.” (Doc. No. 9 at PageID# 187.) Constant Aviation asserts that

“there can be little dispute that the subject matter of Plaintiffs’ Complaint is governed by an express

contract” and, therefore, “their unjust enrichment claim fails as a matter of law.” (Id.) Plaintiffs do

not acknowledge or address Constant Aviation’s arguments in their Brief in Opposition. (Doc. No.

10.)

It is well established that, if a plaintiff fails to respond or to otherwise oppose a defendant's

motion to dismiss, a district court may deem the plaintiff to have waived opposition. See, e.g.,

Humphrey v. U.S. Attorney Gen.'s Office, 279 Fed. Appx 328, 331 (6th Cir. 2008) (finding that a

plaintiff's failure to oppose arguments raised in the defendants’ motion to dismiss is grounds for the

district court to assume that opposition to the motion is waived). See also Kuhlman v. City of

Cleveland, 2023 WL 2652585 at * 11 (N.D. Ohio March 23, 2023) (finding that, by failing to respond

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to defendant’s motion to dismiss, plaintiff “waived any argument in opposition to the City’s argument

that plaintiff’s state law claims are barred”); Selou v. Integrity Sol. Servs., Inc., 2016 WL 612756 at

*3 (E.D. Mich. Feb. 16, 2016) (“Plaintiff's failure to address any claim but her TCPA claim in

response to LiveVox's motion to dismiss is cause for dismissing those claims.”).

Here, despite having every opportunity to respond to Constant Aviation’s argument that

Plaintiffs’ unjust enrichment claim is subject to dismissal, Plaintiffs failed to do so. The Court,

therefore, deems Plaintiffs to have waived any opposition with respect to this issue. Accordingly, the

Court grants Constant Aviation’s Motion to Dismiss unjust enrichment claim in Count III.

D. Request to Amend

Lastly, in the final paragraph of their Brief in Opposition, Plaintiffs state, summarily, that

“should the Court find any portion of the Complaint deficient, Plaintiffs request leave to cure any

perceived deficiencies.” (Doc. No. 10 at PageID# 199.) Plaintiffs do not provide any further

explanation regarding why they believe leave to amend should be granted or what additional factual

allegations they would include in any proposed amended complaint to cure the deficiencies in the

original Complaint. Nor do Plaintiffs attach a copy of any proposed amended complaint to their Brief

in Opposition.

Plaintiffs’ request for leave to amend is denied. Under Rule 15, Plaintiffs had twenty-one

(21) days after the filing of Constant Aviation’s Motion to Dismiss to amend their Complaint as a

matter of course. See Fed. R. Civ. P. 15(a)(1)(B). Plaintiffs failed to do so. Rather, they elected to

wait for this Court to rule on Constant Aviation’s Motion and only seek amendment (via a cursory,

one-sentence request) in the event that the Court determined “any portion of the Complaint [to be]

deficient.” (Doc. No. 10 at PageID# 199.) But, as the Sixth Circuit has explained, “Plaintiffs [are]

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not entitled to an advisory opinion from the Court informing them of the deficiencies of the complaint

and then an opportunity to cure those deficiencies.” Begala v. PNC Bank, Ohio, Nat’l Ass’n, 214

F.3d 776, 784 (6th Cir. 2010).

Rather, to properly seek leave to amend, Plaintiffs were required to do more than simply

include a perfunctory, unexplained request for leave to amend in the last paragraph of their Brief in

Opposition. They were required to file a fully briefed and supported motion to amend or, at the very

least, provide this Court with a proposed amended complaint accompanied by an explanation of how

the amended complaint would resolve the deficiencies in the original Complaint. See Salazar v.

Paramount Glob., 133 F.4th 642, 653 (6th Cir. 2025) (“Salazar filed neither a motion to amend nor

a proposed amended complaint. Instead, he requested leave to amend his complaint only in a single

cursory footnote at the end of his response to Paramount’s motion to dismiss *** This ‘cursory

request’ did not ‘explain how a second amended complaint would resolve the problems in the first.’

So the district court did not abuse its discretion in dismissing Salazar’s complaint with prejudice.)

(quoting Crosby v. Twitter, Inc., 921 F.3d 617, 628 (6th Cir. 2019)) (internal citations omitted).

Just as in Salazar, Plaintiffs herein did not file a separate motion to amend their Complaint or

provide this Court with a proposed amended complaint along with an explanation of how the amended

complaint would resolve the problems in the original Complaint. Accordingly, Plaintiffs’ barebones

request for leave to amend is denied.

V. Conclusion

Accordingly, and for all the reasons set forth herein, Defendant Constant Aviation LLC’s

Motion to Dismiss (Doc. No. 9) is GRANTED. Plaintiffs’ request for leave to amend is DENIED.

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IT IS SO ORDERED.

s/Pamela A. Barker

PAMELA A. BARKER

Date: September 22, 2025 U. S. DISTRICT JUDGE

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