United States District Court, D. South Carolina, Florence Division
OPINION AND ORDER
C. COGGINS, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion to Dismiss filed by
Defendant Federal Aviation Administration. ECF No. 212.
Plaintiffs filed a Response in Opposition, and the Defendants
filed a Reply. ECF Nos. 221, 224. Accordingly, the Motion is
ripe for consideration.
are eleven individuals who claim prior employment with, or
ownership of, the business Skydive Myrtle Beach. In March
2012, Plaintiffs made plans to open Skydive Myrtle Beach,
Inc. "to provide recreational skydiving activities at
the Grand Strand Regional Airport ["the Airport"]
in Myrtle Beach, South Carolina, which is owned by Horry
County." ECF No. 207 at 5. During this period of time,
the Airport was operated by Grand Strand Aviation, Inc., and
was known as "Ramp 66." Id. at 6. Ramp 66
and the Horry County Department of Airports agreed to allow
Skydive Myrtle Beach, Inc. to carry out recreational
skydiving activities at the Airport. Despite this agreement,
Robinson Aviation, Inc., which was under contract to provide
air traffic control and tower services to the Airport,
"initially balked" at permitting recreational
skydiving, "stating that it was Robinson Aviation's
policy not to allow skydiving at any of the airports at which
Robinson provides tower management." Id.
"Eventually, however, Robinson Aviation was required to
back down since the Federal Aviation Authority
["FAA"] controls skydiving, and Robinson Aviation
could not determine federal law on its own."
10, 2012, Skydive Myrtle Beach signed an eight-year lease
with Ramp 66 "and also executed a Letter of Agreement
with Ramp 66, the Airport tower, and the Horry County
Department of Airports." Id. However, these
parties never briefed Plaintiffs on the Airport's Landing
Operations Area ("LOA") or provided Plaintiffs with
an official airport operation brief. Id. From April
to May 2012, Skydive Myrtle Beach "gained access and
commenced skydiving." Id. On March 21, 2013,
Horry County announced that it was resuming control of the
Airport from Ramp 66. Id. Starting in May 2013, Ramp
66 attempted to make Skydive Myrtle Beach sign a new lease
due to Horry County's takeover of the Airport, but
Skydive Myrtle Beach refused. Id. However, on July
1, 2013, the Horry County Department of Airports required
Skydive Myrtle Beach to sign "a space use permit"
or to vacate the Airport property. Id. This was
intended to be a temporary measure until Horry County created
new leases for all tenants. Id.
September 13, 2013, the Airport and the Horry County
Department of Airports notified Skydive Myrtle Beach that
they were "interested in bringing in a bigger aircraft,
in order to start to increase business." Id. at
6-7. On that day, Skydive Myrtle Beach asked when it would
receive a new lease from Horry County and was told that it
would take several more weeks. Id. at 7. According
to Plaintiffs, a campaign of harassment began around this
time. For example, on October 2013, Plaintiffs discovered
that their business mail was not being forwarded from the
front desk at the Airport and that there were lost parcels of
mail and packages that were returned to sender. Id.
Over the next few weeks, Plaintiffs were unilaterally told to
relocate their landing zone to a smaller and less safe area,
received no assistance in procuring permits and logistical
support for skydiving activities, and obtained no resolution
for their mail difficulties. Id.
harassment continued, as the Horry County Department of
Airports enlisted the support of a police officer to place
restrictions on Plaintiffs' activities and accuse
Plaintiffs of violating various Airport policies.
Id. at 8. In January 2014, Skydive Myrtle Beach was
fined by the Fire Marshall for a defective circuit panel,
which Skydive Myrtle Beach had been asking the Horry County
Department of Airports to fix. Id. at 9.
Additionally, Plaintiff Aaron Holly began receiving emails
from the Airport about jumpers landing outside of the
approved landing area. Id. However, Plaintiffs did
not receive any official communications from the FAA, and
there was no official investigation by any federal
authorities. Id. On top of these harassing
communications, the Airport's tower began placing holds
on Skydive Myrtle Beach while skydivers were in the air.
Id. This cost Plaintiffs "a huge amount of
money due to fuel and hours on the airplane."
February 5, 2014, Plaintiff Holly caught an Airport employee
breaking into Plaintiffs' hangar with two unauthorized
contractors. Id. This caused Skydive Myrtle Beach to
shut down for two days to inspect its plane and equipment.
Id. In response, Plaintiff Holly requested a meeting
to clear the air with the Airport and FAA. Id. This
meeting took place on February 7, 2014 but was unproductive.
Id. After this meeting, Plaintiffs determined that
the Airport was seeking to shut down Skydive Myrtle Beach.
Id. While this harassment continued, Plaintiffs'
"received a letter from Horry County attorney Randolph
Haldi of allegations of violations, and a 72-hour notice to
vacate" unless Skydive Myrtle Beach signed a new lease
giving the Airport 24% of its gross profits. Id. at
months of confusion related to determining what rules and
regulations the Airport expected Skydive Myrtle Beach to
comply with, the tension between the parties escalated.
Id. at 12. On September 1, 2015, the FAA wrote a
letter to the Horry County Department of Airports stating
that 91 violations were reported by the Airport. Id.
at 13. As it turns out, the Horry County Department of
Airports "and Robinson Aviation employees filed some 112
'safety violations' against the Plaintiff(s) during
the period of March 29, 2013 and September 27, 2015"
which were not investigated by the FAA. Id. On
October 15, 2015, Plaintiffs received an email giving them 24
hours to vacate the hangar. Id. Plaintiffs complied
with the request in order to avoid criminal charges.
contend that the alleged violations were unfounded, including
some alleged violations that were said to have taken place on
dates that Plaintiffs did not conduct jumps. In 2014,
Plaintiffs filed a Complaint with the FAA in what is known as
a Part 16 proceeding. The Complaint states that Horry
County's "actions, including attempts to restrict
the landing area (Drop Zone or DZ) and reporting violations
as 'safety concerns,' are unreasonably restrictive
and discriminatory as applied to an FAA-recognized
aeronautical activity-skydiving." See Skydive Myrtle
Beach, Inc. v. Horry Cty. Dep't of Airports, FAA
Docket No. 16-14-05, Director's Determination at 1 (Oct.
7, 2015). Randall S. Fiertz, Director of Airport Compliance
and Management Analysis for the FAA, issued a Determination
on October 7, 2015, which found that Horry County was not
engaged in economic discrimination against Skydive Myrtle
Beach and that "[u]nless immediate steps are taken, up
to and including closure of the DZ, [Horry] County will be
considered to be in violation of [a federal
grant]." Id. at 66.
then filed an administrative appeal with the FAA, and the FAA
issued a Final Agency Decision affirming the Director's
Determination on August 4, 2016. Skydive Myrtle Beach,
Inc. v. Horry Cty. Dep't of Airports, FAA Docket No.
16-14-05, Final Agency Decision (Aug. 4, 2016). The Final
Agency Decision advised Plaintiffs that they could petition
for judicial review "in the United States Court of
Appeals for the District of Columbia Circuit or in the Court
of Appeals of the United States for the Circuit in which the
[Plaintiffs reside] or [have their] principal place of
business." Id. at 9. Plaintiffs filed an appeal
of the Part 16 Determination in the Fourth Circuit; however,
the appeal was untimely and denied by the Court. Skydive
Myrtle Beach, Inc. v. Horry Cty. Dep't of Airports,
735 Fed.Appx. 810 (4th Cir. 2018).
each Plaintiff filed factually identical cases pro se, naming
a large group of Defendants in each lawsuit. ECF No. 199
(citing initial pro se cases). The Court "considered
consolidating the matters for pre-trial handling and trial
but concluded that because each of the [P]laintiffs was pro
se, consolidation would be problematic." ECF No. 199.
Indeed, while Plaintiffs' cases proceeded individually
and pro se, there were a large number of dispositive motions
filed, leading to extensive briefing, many rulings by the
Court, and several Amended Complaints.
10, 2018, nearly a year and a half after this federal
litigation began, attorney Robert Bratton Varnado filed a
Notice of Appearance on behalf of all Plaintiffs. ECF No.
191. The following day, Plaintiffs' counsel filed a
Motion to Consolidate the individual cases and sought an
extension of time to reply to the various pending dispositive
motions. ECF No. 194. Generally, Defendants opposed
consolidation, claiming defects in Plaintiffs' pleadings,
failure to serve those pleadings or ...