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Life Flight Network, LLC v. Metro Aviation, Inc.

United States District Court, D. Oregon, Portland Division

August 8, 2017

LIFE FLIGHT NETWORK, LLC, an Oregon Limited Liability Corporation Plaintiff,
METRO AVIATION, INC., a Louisiana Corporation Defendant.




         Life Flight Network, LLC (“Life Flight”), brings this lawsuit against Metro Aviation, Inc. (“Metro”), alleging: 1) breach of contract; and 2) breach of the duty of good faith and fair dealing. Currently before the court is Metro's motion (ECF No.47) to strike Life Flight's request for attorney fees contained in its amended complaint. Metro claims Life Flight's assertion that attorney fees should be awarded is immaterial under Rule 12(f). In the alternative, Metro asks the court to dismiss the claim for attorney fees under Rule 12(b)(6). Metro's motion to strike is granted.[1] Because Metro's motion to strike is granted, this court need not consider the alternative motion to dismiss.


         Life Flight is a provider of emergency medical transport services in the Pacific Northwest. (Am. Compl. (ECF No. 46) ¶ 1.) Metro is a corporation dealing in aircraft operation services. (Id. at ¶ 2.) On or about September 1, 2016, Life Flight became a successor in interest to, and assignee of, Inland Health Services with respect to the Aircraft Operating Agreement with Metro (“the Agreement”). (Am. Compl. ¶ 8.) Pursuant to the terms of the Agreement, Life Flight agreed to: 1) provide medical equipment, services, and personnel; 2) maintain the aircraft facilities; and 3) maintain 24-hour communication centers to coordinate flight missions with Metro. (Stanberry Decl. (ECF No. 51.) Ex. 1at 6.17) Metro agreed to: 1) provide service and maintenance of the aircraft by licensed and qualified pilots and mechanics; 2) keep the interior and exterior of the aircraft in clean condition; 3) adhere to federal and state law while maintaining and operating the aircraft; 4) adhere with manufacturer requirements and airworthiness directives; 5) maintain complete and accurate flight time records; and, 6) either restore aircraft components to fifty percent, or compensate Life Flight for the difference, at the expiration of the Agreement. (Am. Compl. ¶ 9.)

         The Agreement contained an arbitration, found at Section 14.07, which provided:

14.07 Should a dispute arising out of or relate to this Agreement occur, the parties hereto shall in good faith attempt to settle the dispute informally. If the dispute cannot be so resolved, it shall be submitted to arbitration pursuant to the following procedure:
(a) Either of the parties may demand such arbitration by forwarding to the other party a written demand setting forth a statement of the matter in controversy and the name of the arbitrator appointed by the party demanding arbitration.
(b) Within 15 days after receipt of such demand, the other party shall name its arbitrator, and the two arbitrators so selected shall within 15 days of the appointment of the latter of them name a third arbitrator, who shall be a person having substantial experience in the field of emergency medical programs.
(c) The arbitration hearing shall be held at Spokane, Washington, and the law of the evidence of the state whose substantive laws are applicable to this Agreement shall govern the presentation of evidence therein. An award shall be made within 30 days after the close of submission of evidence. An award rendered by a majority of the arbitrators appointed pursuant hereto shall be final and binding on all parties to the proceeding, and judgment upon the award shall be entered in any court of law. Such award shall be reviewable only for errors of law.
(d) The prevailing party, as determined by the arbitrator(s), shall be entitled to recover the cost of such action so incurred, including without limitation reasonable attorney's fees and arbitrators' fees.
(e) Except to the extent inconsistent with the other provisions of this Section, the arbitration shall be conducted in accordance with the rules of the American Arbitration Association.

(Stanberry Decl. Ex. 1 § 14.07).

         Additionally, Section 14.03 of the Agreement provides:

14.03 Except as expressly provided to the contrary in this Agreement, failure or delay on the part of either party to exercise any right, remedy, power or privilege hereunder shall not constitute a waiver thereof. A waiver, to be effective, must be in writing and must be signed by the party making the waiver. A written waiver of default shall not ...

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