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Park v. Marquis Jet Partners, Inc.

United States District Court, D. Kansas

May 14, 2018

DEREK PARK, Plaintiff,
v.
MARQUIS JET PARTNERS, INC. and NETJETS, INC., Defendants.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES UNITED STATES DISTRICT JUDGE.

         This case comes before the court on Defendants' motion to dismiss for failure to state a claim. (Doc. 6). The motion has been fully briefed and is ripe for decision. (Docs. 7, 9, 10). Defendants' motion is GRANTED for the reasons set forth herein.[1]

         I. Motion to Dismiss Standards

         The standards this court must utilize upon a motion to dismiss are well known. To withstand a motion to dismiss for failure to state a claim, a complaint must contain enough allegations of fact to state a claim to relief that is plausible on its face. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007)). All well-pleaded facts and the reasonable inferences derived from those facts are viewed in the light most favorable to Plaintiff. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations, however, have no bearing upon this court's consideration. Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007). In the end, the issue is not whether Plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claims. Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005).

         II. Facts Alleged in Complaint[2]

         On or about March 11, 2008, Plaintiff purchased a “Marquis Jet Card” (the “Card”). The Card is allegedly offered by Marquis and the flights are provided by NetJets. Upon purchasing the Card, a “purchaser receives access to the NetJets fleet of private jets for 25 hours of flying time over the course of a year.” (Complaint at 2). The cost of a Card ranges from $125, 000 to $150, 000. Plaintiff's Card “covered the period from March 11, 2008 to March 13, 2009.” Id. On March 8, 2009, a balance of 16.5 hours remained on Plaintiff's Card. Plaintiff did not take any additional flights from March 8 to March 13, 2008.

         On or about January 5, 2010, Plaintiff took a flight with a duration of 1.8 hours. Plaintiff was later billed for a fuel fee charge of $1, 399.41, which Plaintiff paid. The invoice indicated that Plaintiff had an account balance of 14.7 hours of flight time. Id. Plaintiff continued to receive monthly statements from Defendant Marquis indicating a remaining balance of 14.7 hours of flight time. Plaintiff received such statements until October 2012. At some point in October 2012, Plaintiff attempted to use flight hours on his Card. Marquis “refused to allow Plaintiff to access the remaining hours on his card unless Plaintiff purchased a subsequent card.” (Id. at 3).

         Plaintiff filed this action alleging a breach of contract. Plaintiff alleges that the initial one-year period on the Card was extended due to Defendants' actions in allowing the January 2010 flight. Defendants now move to dismiss.

         III. Analysis

         Defendants assert three separate arguments in their motion. First, Defendants argue that Plaintiff's complaint should be dismissed because it is barred by the Statute of Frauds. Second, Defendants contend that the complaint fails to allege consideration for an extension of the original contract. Finally, Defendants argue that their actions in allowing the January 2010 flight do not constitute mutual assent.

         A. Statute of Frauds

         Defendants contend that any contract modification must be in writing because the original contract fell under the Statute of Frauds as its term was longer than one year. Pursuant to K.S.A. § 33-106, an agreement must be in writing if it is “not to be performed within the space of one year from the making thereof.…” While Defendants have correctly pointed out that the alleged contract had a term of more than one year, section 33-106 does not automatically apply.

[C]ontracts that cannot be performed within 1 year must be in writing to be enforceable. K.S.A. 33-106. Kansas courts have consistently understood this aspect of the statute of frauds to apply only when it is impossible to perform the contract within 1 year. See Nutt v. Knutson, 245 Kan. 162, 164, 795 P.2d 30 (1989); In re Estate of Brecheisen, No. 111745, 2015 WL 3632335, at *3 (Kan. App. 2015) (unpublished opinion); Murray on Contracts § 72 (4th ed. 2001).

Ed DeWitte Ins. Agency, Inc. v. Fin. Assocs. Midwest, Inc., 53 Kan.App.2d 238, 248, 388 P.3d 156, 165 (2016), review granted (Aug. 28, ...


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