United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE.
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
Motion to Dismiss Standards
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
Facts Alleged in Complaint
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.
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).
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.
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.
Statute of Frauds
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
[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, ...