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Hantz Air, L.L.C. v. J. Mesinger Corporate Jet Sales

March 1, 2006

HANTZ AIR, L.L.C., A MICHIGAN LIMITED LIABILITY COMPANY, PLAINTIFF,
v.
J. MESINGER CORPORATE JET SALES, INC., A NEW MEXICO CORPORATION; JAY MESINGER, AN INDIVIDUAL; F.S.Y. CONSULTANTS, L.L.C., A TEXAS LIMITED LIABILITY COMPANY; F. SCOTT YAEGER, AN INDIVIDUAL; AND SUSAN S. YAEGER, AN INDIVIDUAL, DEFENDANTS.



The opinion of the court was delivered by: Senior District Judge Richard P. Matsch

ORDER DENYING MOTION TO DISMISS BY MESINGER DEFENDANTS

On July 28, 2005, defendants Jay Mesinger Corporate Jet Sales, Inc., and Jay Mesinger filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint alleging liability of these defendants for fraudulent misrepresentation and innocent misrepresentation in negotiations for the sale of an aircraft by F.S.Y. Consultants, L.L.C., to Hantz Air, L.L.C., a transaction in which the moving defendants acted as broker. The allegations of the complaint are that the condition of the aircraft was misrepresented on a web site of J. Mesinger Corporate Jet Sales, Inc., and in the negotiations for the sale. The motion to dismiss is based on the contention that the language of the sale agreement limits the plaintiff to a contract claim and provides for a right to rescind the agreement as the exclusive remedy for the breach. The legal argument made by the moving defendants is questionable. The contract between the seller and purchaser includes a disclaimer or repudiation of reliance on prior representations. The Mesinger defendants are not parties to the contract and their agency relationship with the seller does not preclude their liability for inducing the sale by misrepresentation of the condition of the aircraft. It is

ORDERED that the motion to dismiss by Jay Mesingner Corporate Jet Sales, Inc., and Jay Mesinger is denied.

Richard P. Matsch, Senior District Judge

20060301

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