Zone Five, LLC et al v. Textron, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ZONE FIVE, LLC, et al.,
Plaintiffs,
v.
TEXTRON AVIATION, INC.,
Defendant.
Case No. 20-1059-DDC-RES
BELLWETHER 1
MEMORANDUM AND ORDER
Plaintiffs’1 airplanes have cracks around—and, sometimes, through—their windows.
Highly summarized, plaintiffs alleged the cracking made the aircraft unsafe, defendant hid this
defect, and defendant broke its promise to repair the cracking under warranty. They sued
defendants on a variety of theories: breach of express warranty, breach of implied warranty,
statutory consumer-protection violations, fraud, and negligent misrepresentation. Defendant
filed a Motion for Summary Judgment (Doc. 339) against these claims.
Plaintiffs have abandoned the accusation that the cracking renders their aircraft unsafe.
Instead, they focus solely on defendant’s breach of its promises to repair the cracking and pay for
the repair. Plaintiffs also have grounded several of their legal theories, leaving only three claims
for summary judgment: breach of express warranty, fraud, and negligent misrepresentation.
These three claims just won’t fly. The express warranties for the aircraft have expired, and
1 	This Memorandum and Order addresses only the nine bellwether plaintiffs: Bogdan Cocosel;
Loki Operations, LLC; Adam Hafez; Apsis Aviation, LLC; Ben Eater; Jon-Michael Johnson; Matera
Management, LLC; Alan Groves; and Farm Boys Investments, LLC. Doc. 337 at 1 (PTO).
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defendant didn’t waive its right to enforce the warranties’ time limitations. Plaintiffs try to
conjure a new express warranty, but they have adduced no admissible evidence of the terms of
that warranty. For their other claims, plaintiffs have nothing to support key elements. They cite
no evidence or legal authority about their reliance on defendant’s misrepresentations. Nor have
they adduced any evidence or authority supporting the view that defendant had a duty to disclose
information to them.
The court explains these conclusions below. It begins with the relevant facts governing
summary judgment.
I. 	Factual Background 2
Before it gets into the facts, the court must address plaintiffs’ attempt to blame defendant
for their lack of evidence. As will become clear, several of defendant’s summary-judgment
2 	Plaintiffs assert an admissibility objection to documents defendant cites in its facts section.
Plaintiffs train their focus on the following defense exhibits: 1–16, 18–26, and 28–30. They assert that
defendant has failed to provide any “testimony, affidavit, or request for judicial notice demonstrating that
those documents are admissible[.]” Doc. 362 at 28. Plaintiffs argue that defendant, as proponent of these
documents, must “thoroughly explain the admissible form” in which defendant will introduce that
document at trial. Id. This is a nearly frivolous argument.
Plaintiffs cite no authority for the requirement that an evidence’s proponent must chart an
admissibility course at summary judgment. And plaintiffs seem to have forgotten that they stipulated to
the admissibility of 18 of the exhibits about which they complain. See Doc. 337 at 7–10 (PTO ¶ 2.b.)
(stipulating to admissibility of defense exhibits 5, 6, 7, 8, 13, 14, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29,
and 30). Plaintiffs thus have waived any admissibility objection to these exhibits. See United States v.
Aptt, 354 F.3d 1269, 1281 (10th Cir. 2004) (“We think a stipulation, which by its very nature signals the
intentional relinquishment of any and all rights to challenge the admissibility of the stipulated evidence, is
a clear example of waiver if anything is.”). What’s more, plaintiffs rely on several of these exhibits in
their own summary-judgment response. Doc. 362 at 12 (citing defense exhibits 6, 8, 14, 15, 18, 20–26);
id. at 15 (citing defense exhibit 15); id. at 20 (citing defense exhibits 1, 2, 9, and 28); id. at 21 (citing
plaintiffs’ exhibit 28, which is identical to defense exhibit 4). So, the court declines to exclude these
exhibits. See Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 1000 (10th Cir. 2019) ([D]efendants
waived any objections to the admissibility of the reports by offering them themselves.” (quotation cleaned
up)).
And in any event, the court does “not require an affidavit to authenticate every document
submitted for consideration at summary judgment.” L. Co. v. Mohawk Constr. & Supply Co., 577 F.3d
1164, 1170 (10th Cir. 2009). True, defendant couldn’t admit these documents at trial—on their own. But
there are ways for defendant to make these documents admissible. That’s all Rule 56(c)(2) requires at the
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arguments assert that plaintiffs have failed to prove something—i.e., proof of a warranty.
Plaintiffs assert that they tried to conduct discovery on these issues and defendant is “the sole
holder of the relevant information[.]” Doc. 362 at 30. But, plaintiffs complain, defendant denied
them discovery on these critical topics. So, plaintiffs ask the court to preclude defendant from
“rely[ing] on arguments for which opposition would depend on the discovery Plaintiffs were
denied.” Id. at 32.
At this juncture in this nearly six-year-old case, it’s time to fish or cut bait. Our court
requires parties to file all discovery-related motions within 30 days of the deficient discovery
response. D. Kan. Rule 37.1(c). If plaintiffs had genuine issues with defendant’s discovery
responses, they should’ve filed a timely motion to compel. Escalante v. LifePoint Hosp. Inc.,
No. 17-2035-HLT, 2019 WL 2743910, at *4 (D. Kan. July 1, 2019) (“Defendant did not move to
compel and cannot now ambush Plaintiffs at the summary judgment stage without having raised
these issues earlier.” (footnote omitted)). Summary judgment certainly isn’t the time to raise it.
Plaintiffs halfheartedly invoked Fed. R. Civ. P. 56(d) with a stray cite. See Doc. 362 at 31.
That’s the rule allowing courts to help summary-judgment nonmovants when “a nonmovant
shows by affidavit of declaration that, for specified reasons, it cannot present facts essential to
justify its opposition[.]” Fed. R. Civ. P. 56(d). Plaintiffs haven’t proffered the required affidavit,
nor specified their discovery woes. Nor have plaintiffs offered any other authority supporting
the relief they seek. The court thus declines to act on plaintiffs’ untimely discovery complaints.
On to the facts.
Corporate History
summary-judgment stage. Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005) (“At the
summary judgment stage, the parties need not submit evidence in a form admissible at trial; however, the
content or the substance of the evidence must be admissible.”).
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In the 1990s, a company called Lancair manufactured the single-engine, four-seat aircraft
at issue in the lawsuit: the LC40 and LC41. See Doc. 337 at 5 (PTO ¶ 2.a.i.). In 2005, Lancair
rebranded to Columbia Aircraft Manufacturing Corporation. Id. (PTO ¶ 2.a.ii.). In 2007,
Columbia declared bankruptcy. Id. (PTO ¶ 2.a.iii.). Cessna Aircraft Company, a wholly owned
subsidiary of Textron Inc, purchased Columbia’s assets out of that bankruptcy. Id. (PTO
¶ 2.a.iv.). In 2014, Cessna eventually became part of defendant Textron Aviation, Inc. So,
depending on the year, the court may refer to the relevant actor as Lancair, Columbia, Cessna, or
defendant.
Warranties
When a buyer purchased an aircraft from Lancair or Columbia, they received either (1)
the Lancair Limited Warranty, or (2) the Columbia Aircraft Manufacturing Corporation Limited
Warranty (CAM Warranty). The Lancair Warranty covered defects for a period of years—either
three years, Doc. 340-4 at 1 (Def. Ex. 4), or five years, Doc. 340-5 at 1 (Def. Ex. 5)—or 900
flight hours, whichever accrued first. Similarly, the CAM Warranty covered defects for three
years or 900 flights hours, whichever accrued first. Doc. 340-10 at 1 (Def. Ex. 10).
Both warranties provided that the exclusive remedy was repair or replacement. Doc.
340-2 at 1 (Def. Ex. 2); Doc. 340-10 at 1 (Def. Ex. 10). Both warranties disclaimed all other
express or implied warranties. Doc. 340-5 at 2 (Def. Ex. 5); Doc. 340-10 at 2 (Def. Ex. 10).
Both warranties extended only to the original owner, and the original owner could transfer the
warranty to another party only with written approval by either Lancair or Columbia. Doc. 340-5
at 2 (Def. Ex. 5); Doc. 340-10 at 1 (Def. Ex. 10). Both warranties also required owners to bring
any warranty actions within a specified time. The Lancair Warranty required owners to bring a
claim “within the time and term of duration specified for th[e] warranty”—i.e., three or five
years. Doc. 340-2 at 2 (Def. Ex. 2) (quotation cleaned up); Doc. 340-5 at 2 (Def. Ex. 5)
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(quotation cleaned up). The CAM Warranty required owners to commence an action “within
one year after a breach of this warranty has been or reasonably should have been discovered.”
Doc. 340-10 at 1 (Def. Ex. 10) (quotation cleaned up). And both warranties stated that no agent,
employee, or representative of Lancair or Columbia could change the warranty. Doc. 340-5 at 2
(Def. Ex. 5); Doc. 340-10 at 2 (Def. Ex. 10).
Cracking & Repairs
As early as 2002, Lancair received reports of cracking around the perimeter of the
aircraft’s windows and windscreens. See Doc. 363-48 at 2 (Pl. Ex. 48). In 2006, Columbia
began issuing service letters titled “Window Cosmetics” that explained how to repair the paint
cracking around the windows. See, e.g., Doc. 340-6 at 1 (Def. Ex. 6); Doc. 340-8 at 1 (Def. Ex.
8).3 These service letters explained that the cracks were cosmetic, and compliance was optional.
See, e.g., Doc. 340-6 at 1 (Def. Ex. 6); Doc. 340-8 at 1 (Def. Ex. 8); Doc. 320-23 at 1 (Def. Ex.
23).
Columbia Bankruptcy
Columbia filed for bankruptcy in 2007. Doc. 337 at 5 (PTO ¶ 2.a.iii.). In October 2007,
Cessna, defendant’s subsidiary, entered into a Purchase and Sale Agreement to purchase
Columbia’s assets. Doc. 340-17 at 2–3 (Def. Ex. 17). Cessna knew about the window-cracking
3 	To the extent plaintiffs contend that all service publications suggest “the repairs were covered by
a credit program / under warranty” the court rejects such a suggestion. Doc. 362 at 11–12. The April
2006 service bulletin, No. SL-06-009, says no such thing. See Doc. 340-6 (Def. Ex. 6). The same goes
for service bulletin SL-06-012 from June 2006—it doesn’t mention coverage under a credit program or
warranty. See Doc. 340-8 (Def. Ex. 8). A June 2007 service letter, SL-06-012A, doesn’t say anything
about warranty coverage. See Doc. 340-14 at 1 (Def. Ex. 14). A December 2007 service bulletin, No.
SL-06-009A, revised the April 2006 service bulletin merely to reflect the company name change to
Cessna. See Doc. 340-18 at 1 (Def. Ex. 18). Also, a January 2008 updated Service Letter, SL-06-12B,
merely updated the company name to Cessna. See Doc. 340-20 at 1 (Def. Ex. 20). Same for the February
2008 Service Letter SL-06-012C; it merely revised the company name. Doc. 340-21 at 1 (Def. Ex. 21).
None of these documents supports plaintiffs’ assertion.
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issue when they purchased Columbia.4 Doc. 363-7 at 57 (Ake Dep. 55:5–19). In November
2007, the bankruptcy court issued a Sale Order approving Cessna’s purchase of Columbia’s
assets. See generally Doc. 340-17 (Ex. 17).
Under the Sale Order, Columbia sold its assets to Cessna, and Cessna purchased those
assets “free and clear of all [i]nterests, except the Assumed Liabilities.” Id. at 9. Before the final
sale, Cessna told owners that Assumed Liabilities included “liability for the amount of aggregate
potential warranty claims arising from Products sold by [Columbia] prior to the Closing Date”—
December 4, 2007. Doc. 340-15 at 4 (Def. Ex. 15).5 Cessna also informed owners that it didn’t
assume any liability to pay “claims for rescission of purchase agreements for aircraft purchased
from [Columbia] prior to the sale closing date . . . including but not limited to claims against
[Columbia] for return or repurchase of aircraft previously sold by [Columbia.]” Id. at 2.
4 	Plaintiffs assert that defendant “confirmed that, at the time Cessna purchased CAM in
bankruptcy, it was in the process of trying to fix the window perimeter cracking issue.” Doc. 362 at 12.
The cited deposition testimony doesn’t support plaintiffs’ assertion. First of all, plaintiffs cite page 208 of
Richard Ake’s deposition, but that page doesn’t exist—or plaintiffs failed to include it in their exhibit.
See generally Doc. 363-7 (Ake Dep.). And, on the other three cited pages, Ake doesn’t say anything
about Cessna working on a fix at the time of Columbia bankruptcy. See id. at 57 (Ake Dep. 55:1–25)
(discussing Cessna’s knowledge of the cracking issue before the bankruptcy); id. at 60 (Ake Dep. 58:1–
25) (testifying about awareness of other perimeter cracks, particularly window-transparency fractures); id.
at 100 (Ake Dep. 98:1–25) (discussing Ake’s review of unspecified service letter following approval and
distribution).
5 	Plaintiffs object that the court documents from the bankruptcy “cannot be presented in an
admissible form[.]” Doc. 362 at 29. Defendant responds that the court may take judicial notice of these
documents. Doc. 369 at 31. Courts may take judicial notice of a fact “that is not subject to reasonable
dispute because it: . . . can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b). The bankruptcy documents satisfy this standard.
“[F]ederal courts, in appropriate circumstances, may take notice of proceedings in other courts,
both within and without the federal judicial system, if those proceedings have a direct relation to matters
at issue.” St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979). The Columbia
bankruptcy proceedings relate directly to this case—plaintiffs base their claims on those bankruptcy
proceedings. In a last-ditch effort, plaintiffs claim that these documents are the subject of a factual
dispute. Doc. 362 at 30. That’s just not the case. Plaintiffs don’t dispute that the documents and audio
recording from the bankruptcy case are, in fact, the documents and audio recording from the bankruptcy
case. And defendant offers these exhibits properly “to show their contents, not to prove the truth of
matters asserted therein.” Johnson v. Spencer, 950 F.3d 680, 705 (10th Cir. 2020) (quotation cleaned up).
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Defendant asserts that the Sale Order limited Cessna’s liability to any claim “under existing
warranties arising from aircraft sold prior to December 4, 2007.” Doc. 340 at 14. Plaintiffs
dispute this. Doc. 362 at 4. More about this dispute, later.
Back to the Sale Order. Paragraph six of the Sale Order required Cessna to “send to all
known owners who are currently covered by a warranty from [Columbia] (collectively, an
“Unexpired Warranty”), a standard Certificate of Warranty from Cessna good for the remaining
term of the Unexpired Warranty from [Columbia].” Doc. 340-17 at 10 (Def. Ex. 17). This “new
Cessna Warranty” replaced “the Unexpired Warranty in its entirety, unless an existing Unexpired
Warranty held by an owner provide[d] greater rights to such owner, in which case the existing
Unexpired Warranty shall apply.” Id. Plaintiffs’ legal theories here rely heavily on this new
Certificate of Warranty. The Sale Order further provided that for “all persons and entities who
received actual notice of the Motion or the Sale, [Cessna] shall have no liability or responsibility
for any liability or other obligation of [Columbia] arising under or related to the Assets other
than as expressly set forth in the Agreement.” Id. at 11.
Plaintiffs have submitted declarations from two aircraft owners—Steve Masters and
Richard Page—who attended a 2007 bankruptcy hearing about Cessna’s purchase of Columbia.
See Doc. 363-30 at 2 (Masters Decl. ¶ 3); Doc. 363-53 at 2 (Page Decl. ¶ 4). Masters attested
that “during the bankruptcy hearing, a representative of Cessna, Jack Pelton, President of Cessna
Aircraft Company, acknowledged the known defect that was referred to as ‘cosmetic window
perimeter cracking[.]’” Doc. 363-30 at 3 (Masters Decl. ¶ 4). Masters recalled the owner
representatives—the Cessna Advanced Aircraft Club’s (the Club) 6 president and the Club’s
6 	Plaintiffs call the Club “a large owners’ group dedicated to education and support for TTx
owners.” Doc. 337 at 17 (PTO). Despite its name, the Club doesn’t appear connected formally to
Cessna.
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attorney—testifying during the bankruptcy hearing about concerns over the window cracking
“and Cessna’s intent to resolve the issue under warranty.” Id. (Masters Decl. ¶ 5). According to
Masters, Cessna’s president told the court that Cessna “would resolve the ‘cosmetic window
perimeter cracking’ problem for all affected aircraft. All aircraft currently under warranty at the
time of the acquisition of Columbia Aircraft assets by Cessna would be covered and have the
defect repaired at no cost to the owner by Cessna.” Id. (Masters Decl. ¶ 6). Page attested to
something similar. Page asserted that during the bankruptcy hearing, the Club’s attorney “and
the Cessna representative reached an agreement that this issue would be considered warranty and
therefore would be covered under the existing warranty agreement.” Doc. 363-53 at 2–3 (Page
Decl. ¶ 5).
Cessna’s 2008 Communications
In January 2008, Cessna sent customers a letter after it had purchased Columbia in the
bankruptcy proceedings. See Doc. 363-3 at 2–4 (Pl. Ex. 3). This letter provides that, as “a part
of the acquisition, Cessna agreed to provide warranty coverage for the current aircraft fleet that
are still within their original warranty period.” Id. at 4. Cessna “also agreed to consider claims
that were on file with Columbia prior to Cessna ownership.” Id. Cessna told customers to file
all warranty claims within 30 days of completing of a repair. Id.
At some point in 2008, shortly after the bankruptcy proceedings, Cessna held a “fly-in”
meeting with aircraft owners at Cessna’s Wichita facility. Doc. 363-52 at 2 (Stewart Decl. ¶ 4).
Plaintiffs have submitted a declaration from Dale Stewart, who attended this meeting. Id.
According to Stewart, during this Wichita meeting, the owners asked Rebecca Williams, a
Cessna employee, about the window cracking. Doc. 363-46 at 3 (Pl. Ex. 46). Stewart claimed
that Williams “replied, basically, how many times and ways do we have to tell you that we are
going to take care of it?” Id. Stewart attested that, over the course of the Wichita meeting, the
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window cracking was discussed several more times “and each time we were reassured that
Cessna was committed to providing the repair, and to providing the repair under warranty.” Doc.
363-52 at 3 (Stewart Decl. ¶ 7).
In July 2008, Steve Masters wrote to Peter Wilkinson, a Cessna employee, about the
window-cracking problem. Doc. 363-16 at 3 (Pl. Ex. 16). Wilkinson sent Masters the active
service letter. Id. Wilkinson also told Masters that Cessna was working on a new service letter.
Id. Wilkinson mentioned that Cessna was studying how long the fix would take. Id. Masters
mentioned that prior service letters, issued by Columbia, had “a common problem . . . where
their work estimates were just nuts.” Id. at 2. Wilkinson responded that the new service letter
would “be the ‘new improved’ Cessna version with an actual time study completed . . . now if
you ask me ‘will this solve the problem’ . . . I will take a long time to respond . . .” Id. (ellipses
in original).
In November 2008, Wilkinson emailed Masters about the cracking issue, based on
conversations about the window cracking on the Club’s website:
Doc. 363-17 at 3 (Pl. Ex. 17). In a later email on the chain, Wilkinson told Masters:
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Id. at 2.
Also in November 2008, a Club member named Dale Stewart posted on the Club’s
website that he’d “been told by the southwest rep, the Cessna folks at the factory fly-in, and my
local dealer that if the cracks are documented you can wait for the new fix and they will still be
covered[.]” Doc. 363-49 at 3 (Pl. Ex. 49).
Cessna’s Fix: SB08-56-01
A month later, in December 2008, Cessna issued a “Service Bulletin” numbered SB08-
56-01, which provided additional instructions for repairing the cracks. Doc. 363-14 (Pl. Ex. 14).
Plaintiffs emphasize the “Credit Information” section of the Service Bulletin. It provides:
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Doc. 363-14 at 13 (Pl. Ex. 14).
Service Bulletin SB08-56-01 was not long for this world. A few months later, in
February 2009, Cessna suspended compliance with SB08-56-01. Doc. 340-26 at 1 (Def. Ex. 26).
This February 2009 service bulletin included the same “Credit Information” from SB08-56-01,
depicted above. Id. at 4.
Also in February 2009, Cessna sent letters, updating its customers on the status of the
window-cracking repairs. See, e.g., Doc. 363-13 at 2 (Pl. Ex. 13). None of the letters are
addressed to any plaintiffs at issue in this Order. See id. at 2–7. In the letters, Cessna advised
owners that the aircraft on which Cessna had tested the repair had “cracks showing after 6
months of service.” Id. at 2. Those letters promised to revise service bulletin SB08-56-01 and
SL-06-012C to “provide a more reliable repair of the cosmetic cracks[.]” Id. The letter closed
with, “As we have promised in the past, warranty coverage will be available for repairs covered
by this service bulletin.” Id. Defendant didn’t release that revised repair for more than 15 years.
The Lost Years7
7 	Plaintiffs maintain that defendant has represented to its customers “from 2008 onward that it
would repair the window perimeter cracking under warranty, regardless of ownership.” Doc. 362 at 24.
To support this fact, plaintiffs cited Ake’s deposition at pages 148 through 159. But the deposition
excerpt plaintiffs submitted doesn’t include these pages. See Doc. 363-7 (Pl. Ex. 7). The court’s
recounting describes facts supplied by the other exhibits plaintiffs cite about defendant’s representations.
Speaking of missing exhibits, plaintiffs also assert that one of defendant’s employees, Barry
Wells made statements in 2009 about service bulletin and service letter credit programs. Doc. 362 at 16.
But plaintiffs’ citations for this assertion do not include any such statement by Wells. Plaintiffs first cite
their Exhibit 57—Well’s deposition—at page six. Page six contains a conversation between the attorney
and the videographer; there’s no statement from Wells. Doc. 363-57 at 8 (Wells Dep. 6:1–25). Plaintiffs
next cite their Exhibit 56 at pages 26, 27, and 122 through 134. Doc. 362 at 16. The problem: Exhibit 56
ends at page 11. See generally Doc. 363-56 (Pl. Ex. 56). Because plaintiffs’ assertion about Wells’s
2009 statement is unsupported by the cited evidence, the court disregards it.
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Plaintiffs make much of defendant’s statements after defendant pulled SB08-56-01. The
court summarizes plaintiffs’ cited statements, below. Note that no plaintiff at issue here received
any of these statements.
In 2010, Richard Ake, a member of Cessna’s customer-service team, handled a complaint
from a caller, Andrea Hudson, about cosmetic window cracks on an aircraft. Doc. 363-8 at 2 (Pl.
Ex. 8). Ake told Hudson that the paint cracking was “a known condition” and that “a service
bulletin is being developed by Cessna for corrective action.” Id. at 3. Ake also wrote, “the credit
program will be applicable when the bulletin is released.”8 Id.
In August 2010, Steve Charles, Cessna’s Director of Field Operations, wrote a letter to
aircraft owner Steve Masters. Doc. 363-20 at 2 (Pl. Ex. 20). The letter confirmed that once
Cessna had “a proven method for long term repair; Cessna will pay for materials and labor to
repair cracking including paint touch up. This credit will apply to any aircraft that was in
warranty at the time of Cessna’s purchase of Columbia.” Id.
In October 2011, a Cessna employee named Dave Meyer told a maintenance director at
an aviation company that an “owner changing will not affect the warrantable window cosmetic
cracking issue.” Doc. 363-40 at 5 (Pl. Ex. 40).
8 	Plaintiffs assert that “Ake confirmed that ‘credit program’ meant the cost would be paid for in
accordance with a service bulletin.” Doc. 362 at 16. But the deposition testimony cited by plaintiffs
doesn’t support this assertion. Two of the cited excerpts merely describe Ake’s role within Cessna’s so-
called core team assigned to deal with this aircraft. See Doc. 363-7 at 34–43 (Ake Dep. 32:1–41:25); id.
at 53–55 (Ake Dep. 51:1–53:25). The other pages cited by plaintiffs—pages 193–96—aren’t included in
plaintiffs’ Exhibit 7. See generally Doc. 363-7 (Pl. Ex. 7). The court declines to forage through the
record in search of record support for this assertion. See Cross v. Home Depot, 390 F.3d 1283, 1290
(10th Cir. 2004) (explaining that “it is the responding party’s burden to ensure that the factual dispute is
portrayed with particularity, without depending on the trial court to conduct its own search of the record”
(quotation cleaned up)). So, plaintiffs have failed to support their asserted fact with their cited summary-
judgment evidence, and the court won’t consider it at summary judgment.
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In November 2011, a Cessna employee named Craig Cuthbertson emailed Michael
Simmons, an aircraft owner, after Simmons reported window cracking. Doc. 363-29 at 2 (Pl. Ex.
29). Cuthbertson told Simmons that Cessna was evaluating materials and, once it approved new
materials, it would issue a service bulletin. Id. After Cessna issued the bulletin, Cuthbertson
said, Cessna would “correct these cosmetic cracks . . . regardless of ownership.” Id.
Also in November 2011, Terry Shriner—who worked as Cessna’s business leader for the
aircraft—posted on the Club’s online forum. Doc. 363-54 at 2–3 (Pl. Ex. 54). Shriner addressed
online frustration about the window cracking. Id. at 4–6. Shriner updated the group about some
failed testing: “With the latest released Service Bulletin, we repaired a field aircraft and after 6
months it started to develop paint cracks in the same manner as has been exhibited by other
aircraft.” Id. at 4. Shriner reported that he didn’t have a schedule but was trying to get results.
Id.
In April 2012, some Cessna employees, including Shriner, had an internal discussion
about a fix for the cracking. Doc. 363-51 at 2 (Pl. Ex. 51). Shriner warned that the Club
“periodically drops comments about a class action activity to force the issue. Cessna I think
made a commitment during the purchase proceedings of Columbia to address the issue under
warranty for aircraft that were still covered at the time of purchase.” Id.
In September 2012, Cessna employee Barry Wells sent a letter to A.J. Wittman about the
window cracking on Wittman’s aircraft. Doc. 363-21 at 2 (Pl. Ex. 21). In the letter, Wells told
Wittman that it was testing a new repair. Id. Wells suggested Cessna would issue a service
bulletin if the new repair completed testing. Id. And, Wells wrote, if Cessna issued the bulletin,
then it would “correct these cosmetic cracks . . . regardless of ownership.” Id.
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In 2014, one of defendant’s employees, Richard Ake, sent a letter to Jonathan Sackier
about window cracking on his aircraft. Doc. 363-22 at 2 (Pl. Ex. 22). Ake told Sackier that
Cessna was evaluating new materials and processes and, once approved, Cessna would issue a
service bulletin to correct the condition. Id. Ake also told Sackier that after Cessna issued the
bulletin, it would “correct these cosmetic cracks . . . regardless of ownership.” Id.
Motion to Reopen Columbia Bankruptcy
In 2016, the Club moved to reopen the Columbia bankruptcy. See Doc. 285-6 at 2
(Compl. Ex. F). In their operative Complaint, plaintiffs allege that Cessna, during the Club’s
bankruptcy-reopening litigation, had represented to the bankruptcy court “that the defect would
be corrected, and the cracks would be repaid no matter when the defect developed.” Doc. 285 at
148 (Compl. ¶ 665). That’s not quite what Cessna’s filing says. In the relevant filing, Cessna
asserted, “[I]t is undisputed that Cessna undertook certain warranty obligations to owners of
certain aircraft[.]” Doc. 340-47 at 3 (Def. Ex. 47).
Plaintiffs also claim that, during the hearing on the motion to reopen, defendant’s
representative “acknowledged that the window perimeter cracking issue applied to 500–600
aircraft, that Defendant was continuing to—and committed to—resolving the issue, and that
Defendant was not denying the warranty which it intended to honor.” Doc. 362 at 15. Plaintiffs
don’t cite a specific time stamp in the hearing when defendant’s attorney made this statement.
As best the court can tell, plaintiffs are citing the portion where defendant’s attorney said,
“Cessna isn’t denying the warranty. If you look at . . . a warranty, it covers all sorts of things.
And Cessna, even as late as about five months, has continued to try and resolve this issue.” Doc.
340-27 (Def. Ex. 27) at 5:53–6:08.
Defendant’s attorney goes on to assert that the issue is a cosmetic one: paint cracking
around windows on 500 or 600 aircraft. Id. at 6:11–6:27. The attorney recited paragraph six of
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the Sale Order, which required Cessna to send, within 60 days, a Certificate of Warranty “to all
known owners who are currently covered by a warranty from” Columbia. Id. at 7:46–7:57
(quoting Doc. 340-17 at 10 (Def. Ex. 17)). And, as the attorney recited, that Certificate of
Warranty was “good for the remaining term of the Unexpired Warranty from” Columbia. Id.
(quoting Doc. 340-17 at 10 (Def. Ex. 17)). Later, defendant’s attorney points out:
It would be a matter of state law in terms of whether or not there’s been a breach
of the warranty . . . 	There’s a huge issue on that particular point. 	There’s also
several issues that I’m sure would arise in terms of the factual differences between
all 	of 	these 	claims 	because 	some 	of 	these 	planes 	don’t 	exhibit 	these
problems. . . . Cessna continues to try and . . . resolve the issue, which is cosmetic
. . . . 	But they still are trying because they want the goodwill of these owners.
. . . But there are many factual issues that would come in—which warranty applies,
whether it’s expired, whether they made claims. And what you really have here is
somebody trying to circumvent all those issues[.]
Id. at 9:40–10:35.9
The bankruptcy court denied the Club’s motion to reopen for lack of jurisdiction. Id. at
15:49–15:56.
The New Service Bulletin
In 2024, defendant published a new service bulletin, SEB-53-03, to address the window
cracking. See Doc. 363-18 at 2 (Pl. Ex. 18). This was the first approved repair available since
defendant suspended SB08-56-01 in 2009. SEB-53-03 differs from SB08-056-01 in one major
way: it doesn’t include a credit program. See generally id. Put simply, the new service bulletin
doesn’t contain warranty coverage. Doc. 363-11 at 212 (Nieman Dep. 211:3–10).
9 	Plaintiffs assert that, during “the 2016 hearing to reopen the bankruptcy proceedings, Defendant
does not state that it only undertook certain warranty obligations to owners of certain aircraft.
Defendant’s representations do not exclude other obligations.” Doc. 362 at 15. In support of this
assertion, plaintiffs cite an exhibit: the 2007 Notice of Intent to Sell. See Doc. 340-15 (Def. Ex. 15). The
court can’t tell why this exhibit is relevant to a hearing that occurred in 2016. And plaintiffs don’t cite a
specific page of the 81-page exhibit. See Doc. 362 at 15. The court thus disregards this assertion. See
Unal v. Los Alamos Pub. Schs., 638 F. App’x 729, 742 (10th Cir. 2016) (explaining that district courts are
“under no obligation to parse through the record to find . . . uncited materials”).
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Against this backdrop, the court next recites the relevant facts for each plaintiff at issue
on the current motion.
Plaintiff Ben Eater
In November 2007, Columbia sold a Columbia 400—serial number 411009—to third
party Frank McDowell. Doc. 340-16 at 1 (Def. Ex. 16). The sale included the three-yar CAM
warranty. Id. at 5. At some point, a different third party named Van Bortel Aircraft, Inc. bought
the aircraft. See Doc. 340-29 at 1 (Def. Ex. 29). In February 2021, plaintiff Ben Eater purchased
the aircraft. Id. Eater bought the aircraft as-is. Id. And the purchase agreement doesn’t transfer
the original CAM warranty to Eater. See generally id.
When Eater bought the aircraft, it already had cracks around the windows. Doc. 340-34
at 2 (Def. Ex. 34). In an interrogatory response, Eater claimed that the seller, Van Bortel, told
him that the cracking was common and merely cosmetic.10 Id. Van Bortel also told Eater that
the manufacturer was working on a fix and would provide a repair in the future. Id. At his
deposition, Eater confirmed that he heard all of this from a Van Bortel employee, who didn’t
represent that he spoke on defendants’ behalf. Doc. 340-43 at 14 (Eater Dep. 44:25–45:4, 46:7–
16); see also Doc. 363-37 at 14 (Eater Dep. 40:2–41:17). Eater testified that the Van Bortel
employee “was just relaying what he had heard.” Doc. 340-43 at 14 (Eater Dep. 46:7–16). Eater
also testified that he knew about the lawsuit when he bought the aircraft. Id. at 4–5 (Eater Dep.
7:24–8:11).
10 	Defendant objects to Eater’s recounting of Van Bortel’s statement on hearsay grounds. Doc. 369
at 9. But the court can see an admissibility path for this statement: Plaintiffs don’t offer this statement
for its truth. Rather, plaintiffs could offer this statement for effect that this statement had on Eater.
Defendant makes similar objections to other plaintiffs’ recounting of third-party statements, id., and the
court overrules those objections, too, and for the same reason.
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In another interrogatory response, Eater claimed that Cessna had “put out to the
community including through [the Club] that these cracks are only cosmetic and it would repair
them.” Doc. 340-34 at 4 (Def. Ex. 34). At his deposition, Eater said he “may have” seen a post
on the Club’s online forum but couldn’t recall if he saw a post before or after he purchased the
aircraft. Doc. 340-43 at 5 (Eater Dep. 9:12–19). Eater also testified that no one from defendant
had ever made any promises to him personally about any kind of cracking. Id. at 17 (Eater Dep.
58:22–59:16).
A different interrogatory asked Eater to identify warranties that defendant made to him.
Doc. 340-39 at 1 (Def. Ex. 39). Eater responded by citing, among other things, SB08-56-01—
the December 2008 service bulletin issued by Cessna—and the subsequent revocation of that
bulletin in early 2009. Id. at 2–3. Cessna issued SB08-56-01 (and revoked it) before Eater
bought his aircraft. Eater also cited other letters and the attorney statements in the 2016
bankruptcy reopening proceedings. Id. at 3. All predated Eater purchasing his aircraft. And, at
his deposition, Eater testified that he never had communicated with defendant or any of
defendant’s representatives. Doc. 340-43 at 11 (Eater Dep. 33:9–20).
After Eater bought his aircraft, it sustained a crack through one pane of a window, a
phenomenon the parties call a “through-crack.” Id. at 15 (Eater Dep. 49:19–22). On his
mechanic’s advice that it was safe, Eater flew the aircraft—through-crack and all—from San
Carlos, California, to Monterey, California, to have it repaired. Id. at 15–16 (Eater Dep. 50:17–
52:8). Eater testified that his insurance had reimbursed him for the through-crack repair, and he
wasn’t seeking reimbursement unless his insurer reopened the already-paid claim. Id. at 18
(Eater Dep. 62:17–63:3).
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Eater flies his plane monthly with friends or family. Id. at 17–18 (Eater Dep. 59:22–
60:3). He testified that he wouldn’t fly with these passengers—or fly the plane at all—if it were
unsafe. Id. at 18 (Eater Dep. 60:4–7). Excluding the through-cracking, everyone Eater has
talked to has described the cracking as cosmetic. Id. (Eater Dep. 60:18–22). The FAA requires a
yearly inspection of Eater’s aircraft by a certified mechanic, and none of these inspections ever
has deemed the aircraft unsafe or not airworthy. Doc. 340-39 at 6 (Def. Ex. 39).
Plaintiff Adam Hafez/APSIS
In 2001, Lancair manufactured an aircraft with serial number 40027 and sold it to third
party Lantis Consulting. Doc. 340-1 at 1 (Def. Ex. 1). The aircraft came with the five-year
Lancair Warranty. Id. at 2. In 2006, after a lease-back agreement, defendant sold the aircraft
again and issued a three-year CAM warranty. Doc. 363-27 at 2 (Def. Ex. 27). The aircraft
changed owners several times until, in 2019, plaintiff APSIS Aviation LLC bought it from Brian
and Ruth Preston. Doc. 340-28 (Def. Ex. 28). Plaintiff Adam Hafez is the sole member of
APSIS Aviation, Doc. 340-42 at 8 (Hafez Dep. 20:24–21:8), so the court will refer to these
plaintiffs collectively as Hafez.
In the purchase agreement between Hafez and the Prestons, Hafez agreed to accept the
aircraft as is. Doc. 340-28 (Def. Ex. 28). The purchase agreement doesn’t purport to transfer the
original Lancair Warranty to Hafez. See id. When Hafez bought the aircraft, there wasn’t any
visible cracking. Doc. 340-42 at 15 (Hafez Dep. 50:16–51:5). Hafez believes that the Prestons
had the aircraft painted to conceal the cracking. Id. at 16 (Hafez Dep. 55:4–25). The cracks
appeared on Hafez’s aircraft shortly after he bought it. Id. at 15 (Hafez Dep. 50:25–51:5).
After he bought the aircraft in 2019, a fellow Columbia owner told Hafez that the aircraft
had cosmetic cracking around the windows and Cessna was working on a fix. Id. at 9 (Hafez
Dep. 24:8–25). Others—another plane owner and a friend—told Hafez that all of these aircraft
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had window cracking and Cessna was working to “fix the fleet so the cracking is no longer an
issue.” Id. at 19 (Hafez Def. 65:5–22). When asked to identify defendant’s misrepresentations,
Hafez, like Eater, responded in an interrogatory that Cessna had “put out to the community
including through [the Club] that these cracks are only cosmetic and that they would repair
them.” Doc. 340-35 at 2 (Def. Ex. 35). But, in a separate interrogatory response, Hafez couldn’t
recall any specific posts on the Club’s website, the date of any posts, or the authors of those
posts. Doc. 340-38 at 7 (Def. Ex. 38). Hafez also alleges that defendant relayed that it would
repair the window cracking through statements in the bankruptcy proceeding; letters sent to
owners; service publications sent to owners; and communications to individual owners and
maintenance facilities. Doc. 340-35 at 2 (Def. Ex. 35).
Hafez testified that he’s never communicated with defendant. Doc. 340-42 at 12 (Hafez
Dep. 38:10–39:18). Hafez also testified that no one from defendant or Cessna had made any
promises to him, personally, about the aircraft. Id. at 14 (Hafez Dep. 46:1–47:6).
Hafez flies the aircraft weekly. Id. at 7 (Hafez Dep. 17:11–13). He flies with his friends
and family. Id. at 17–18 (Hafez Dep. 59:21–60:6). Hafez testified that he wouldn’t fly with his
friends and family if he felt the aircraft was unsafe. Id. at 18 (Hafez Dep. 60:7–10). Nor would
he ever pilot a plane that he believed wasn’t airworthy. Id. (Hafez Dep. 60:11–13). Hafez hasn’t
had any emergencies in the aircraft. Id. at 8 (Hafez Dep. 20:12–14). And Hafez never has had to
ground the aircraft for maintenance or repairs for the cracks. Doc. 340-35 at 2 (Def. Ex. 35).
Hafez testified that he’d understood for quite a while that the cracking issue is a cosmetic one,
with no safety implications, but he’d heard of passenger-window failures possibly related to the
window cracking. Doc. 340-42 at 17 (Hafez Dep. 58:20–59:8).
Plaintiff Jon-Michael Johnson/Matera
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In 2005, Lancair manufactured an aircraft with serial number 41521 and sold it to third
party PS Air, Inc. Doc. 340-3 (Def. Ex. 3). This aircraft came with a three-year Lancair
Warranty. Later, an entity called Konsor Enterprises Inc. bought the aircraft. See Doc. 340-30 at
1 (Def. Ex. 30). In September 2008, Konsor reported the cracking to Cessna. Doc. 363-32 at 2
(Pl. Ex. 32). Cessna’s notes indicate that Konsor previously had the cosmetic window cracks
repaired under prior service letter SL-06-012C, but the cracking had occurred again. Id. Konsor
sought to fix the cracking “before [the] warranty expires next month.” Id. The aircraft
underwent repairs for cracking in January 2009—while SB08-56-01 was in effect. Doc. 363-50
at 2 (Pl. Ex. 50). Despite this second repair, the cracking returned.
In 2021, Konsor sold the aircraft to plaintiff Matera Management, LLC. Doc. 340-30 at 1
(Def. Ex. 30). Plaintiff Jon-Michael Johnson is the managing member of Matera Management,
LLC, Doc. 340-45 at 12 (Johnson Dep. 36:16–24), so the court refers to these plaintiffs together
as Johnson.
Johnson noticed cracks around the windows of the plane before he bought it. Id. at 7
(Johnson Dep. 13:14–23). Before Johnson made his purchase, Konsor told him about this
lawsuit. Id. at 6 (Johnson Dep. 12:11–21). Konsor suggested that Johnson join the lawsuit to get
the cracking repaired. Id. at 22–23 (Johnson Dep. 76:12–77:2). And, before the purchase,
Johnson spoke with an independent broker about the cracking. Id. at 7 (Johnson Dep. 13:1–23).
The broker told Johnson that the cracking “was not an airworthiness issue.” Id. (Johnson Dep.
13:24–14:2).
In the purchase agreement, Johnson agreed to accept the aircraft’s cosmetic wear and
tear. Id. at 13 (Johnson Dep. 39:7–40:1); see also Doc. 340-30 at 2 (Def. Ex. 30). The purchase
agreement doesn’t purport to transfer the Lancair Warranty to Johnson. See generally Doc. 340-
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30 (Def. Ex. 30). Despite the cracking and the lawsuit, Johnson bought the aircraft. Doc. 340-45
at 13 (Johnson Dep. 39:7–40:1). Defendant wasn’t involved in the purchase in any way. Id. at
14 (Johnson Dep. 42:7–10).
Like the other plaintiffs, Johnson claims that Cessna represented on the Club’s website
that it would repair the cracks on his aircraft. Doc. 340-33 at 2 (Def. Ex. 33). At his deposition,
Johnson testified that he never had communicated with defendant. Doc. 340-45 at 14 (Johnson
Dep. 42:11–18). Johnson further testified that he did not believe that defendant had lied to him.
Id. at 23 (Johnson Dep. 79:17–80:8).
Since Johnson has owned the aircraft, no one ever has deemed it not airworthy. Id. at 19
(Johnson Dep. 64:2–17). Indeed, the aircraft undergoes the required FAA inspections, and no
inspector has declared the aircraft unsafe. Id. Despite the cracks, Johnson believes his aircraft is
airworthy and safe to fly. Id. at 20 (Johnson Dep. 65:3–5, 67:9–11). No one has told Johnson
that the cracks are a safety of flight issue. Id. at 23 (Johnson Dep. 78:20–24). Johnson never has
grounded the plane due to this issue and never has lost use of it because of the cracking. Id. at 20
(Johnson Dep. 65:6–23). Johnson flies for business and personal reasons, sometimes with his
wife or other passengers. Id. at 23 (Johnson Dep. 77:12–78:5). He testified that he wouldn’t
fly—with or without passengers—if he felt the aircraft was unsafe. Id. Johnson maintains that
he’s not satisfied with the cracks. He testified that even if it’s “airworthy, nobody wants to
. . . bring a shiny airplane home to show their friends and family something that has a bunch of
cracks in it.” Id. at 22 (Johnson Dep. 76:6–11).
Plaintiff Alan Groves/Farm Boys
In 2005, Lancair manufactured an aircraft with serial number 41510 and sold it to a third
party. Doc. 337 at 7 (PTO ¶ 2.a.xxv–vi.). In March 2007, Columbia repurchased the aircraft and
sold it to Alaris Aviation. Doc. 340-11 at 1 (Def. Ex. 11). The purchase agreement transferred
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some sort of warranty to Alaris. The agreement provided that the “balance of Factory and
Component Manufacturing Warranties pertaining to this Aircraft will be transferred to [Alaris]
provided [Alaris], per [Columbia’s] Limited Warranty attached here to, contacts CAM’s
Customer Care group with appropriate and required ownership information.” Id. Plaintiffs
assert that the March 2007 sale to Alaris created a new, five-year manufacturer’s warranty.
Defendant disputes this proposition, asserting that Columbia sold the aircraft to Alaris with only
the remaining balance of the CAM Limited Warranty. Defendant has the better-supported view:
any reasonable factfinder only could conclude that the warranty on this plane expired in
September 2008. Doc. 363-34 at 2 (Pl. Ex. 34).
In April 2007, Alaris sold the aircraft to plaintiff Farm Boys Investments LLC. Doc.
340-13 at 1 (Def. Ex. 13). Plaintiff Alan Groves is the sole member of Farm Boys Investments
LLC, Doc. 340-44 at 9 (Groves Dep. 27:15–19), so the court refers to these plaintiffs collectively
as Groves.
In the purchase agreement, Groves agreed to purchase the aircraft as is. Doc. 340-13 at 2
(Def. Ex. 13). The purchase agreement doesn’t purport to transfer the Lancair Warranty to
Groves. See generally id. Yet Groves testified that he believed, when he purchased the aircraft,
the manufacturer warranty still would apply. Doc. 340-44 at 15 (Groves Dep. 50:2–10). Groves
testified that Columbia paid for a strut issue identified at his purchase-related inspection. Id. at
17 (Groves Dep. 56:7–57:6). Columbia also replaced a radio. Id. at 20 (Groves Dep. 69:25–
70:17). Columbia covered both the strut and the radio under a warranty. Id. These covered
repairs led Groves to understand that he purchased the aircraft under some kind of warranty. Id.
(Groves Dep. 69:25–71:12). Yet Groves never received any paperwork transferring the factory
warranty to him. Id. (Groves Dep. 71:1–4). Groves explained that the “practice was that they
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actually performed warranty repairs. So I assumed that it worked, . . . that the warranty was in
place.” Id. (Groves Dep. 71:6–9). But he didn’t have any paperwork. Id. (Groves Dep. 71:1–4).
And Groves never filed a warranty claim with defendant about the cracking. Id. (Groves Dep.
71:10–12).
Groves testified that defendant and Columbia weren’t involved in his purchase of the
aircraft. Id. at 17 (Groves Dep. 59:9–20). Groves never communicated with Columbia before he
bought the aircraft. Id. (Groves Dep. 59:13–15). And he hasn’t communicated with defendant
since the purchase. Id. (Groves Dep. 59:16–20). In October 2007, Groves received notice of the
Sale Order in the Columbia bankruptcy. Doc. 340-15 at 1, 33 (Def. Ex. 15).
Groves’s aircraft has very fine cracking around all windows. Doc. 340-44 at 18 (Groves
Dep. 62:12–63:21). Groves couldn’t recall when the cracking started. Id. at 19 (Groves Dep.
66:9–18). After he discovered the cracking, Groves spoke with a maintenance facility about
them. Doc. 340-32 at 2 (Def. Ex. 32). The facility’s director of maintenance talked to Cessna,
and Cessna told the director not to worry. Doc. 340-44 at 19 (Groves Dep. 67:10–22). Cessna
said it had issued a repair bulletin, but the repair didn’t work, so Cessna was working on the
issue and would “get back to you.” Id.
An interrogatory asked Groves to identify defendant’s misrepresentations. Doc. 340-32
at 2 (Def. Ex. 32). Like the other plaintiffs, Groves responded that “Cessna ha[d] put out to the
community including through [the Club] that these cracks are only cosmetic and that they would
repair them.” Id. At his deposition, Groves claimed to have seen posts on the Club’s website.
Doc. 340-44 at 20 (Groves Dep. 68:11–15). Groves described seeing on the website an “ongoing
discussion about the attempt to come up with a repair and that it didn’t work.” Id. (Groves Dep.
68:11–22). Groves also testified that he never saw any posts from Cessna or defendant’s
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representative. Id. (Groves Dep. 68:23–69:8). And he testified that he’d never spoken with
anyone at Cessna. Id. (Groves Dep. 69:21–24). Put simply, no one at defendant or Cessna ever
made any promises to Groves to fix the cracking on his aircraft. Id. at 23 (Groves Dep. 82:16–
20).
No one has ever deemed Grove’s aircraft not airworthy due to the cracking around the
windows, annual inspections included. Id. at 22 (Groves Dep. 78:20–22, 79:9–12). Groves
never has grounded the aircraft for maintenance due to the cracking. Id. (Groves Dep. 79:13–
15). No one has ever told Groves that the cosmetic cracking presents a safety issue. Id. at 23
(Groves Dep. 82:4–7). Despite the Complaint’s allegations that the cracking goes into the
structure of the aircraft, Groves testified, “There’s no way it goes into the structure.” Id. at 19
(Groves Dep. 65:20–66:1). Groves flies with passengers often—i.e., his wife, friends, and flight
instructor. Id. at 22–23 (Groves Dep. 79:16–80:6). His flight instructor also flies the aircraft and
takes his family with him. Id. at 23 (Groves Dep. 80:10–22). And Groves testified that he
wouldn’t let someone else fly in the aircraft if he didn’t believe it was airworthy. Id. at 23
(Groves Dep. 81:7–10).
Plaintiff Bogdan Cocosel/Loki Operations
In 2006, Columbia manufactured an aircraft with serial number 41683 and sold it directly
to plaintiff Loki Enterprises LLC. Doc. 340-7 at 1–2 (Def. Ex. 7). The aircraft came with a
three-year CAM Warranty. Id. at 6. Loki Enterprises since has become Loki Operations LLC.
Doc. 340-46 at 19 (Cocosel Dep. 58:7–21). Plaintiff Bogdan Cocosel is a member of Loki
Operations, LLC, which exists primarily to own this aircraft. Id. (Cocosel Dep. 58:19–21,
59:20–23). The court will refer to these two plaintiffs, collectively, as Cocosel.
When Cocosel picked up the aircraft at Columbia’s factory in 2006, it had hairline cracks.
Id. at 32 (Cocosel Dep. 113:2–8). Columbia fixed the cracking at the factory. Id. (Cocosel Dep.
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113:15–25). In 2007, Cocosel noticed cracking again. Id. at 34 (Cocosel Dep. 119:3–13).
Cocosel told his shop about the issue. Id. at 34–35 (Cocosel Dep. 121:15–122:7). The shop
contacted Columbia, and eventually Cocosel flew the plane back to Columbia’s factory. Id. at 35
(Cocosel Dep. 122:8–123:4). Columbia repaired Cocosel’s aircraft a second time, while the
aircraft was under warranty. Id. (Cocosel Dep. 124:25–125:20). A few months later, in 2008,
Cocosel noticed “incredibly fine” paint cracks yet again. Id. at 38 (Cocosel Dep. 135:2–13).
Cocosel reported the cracking issue—among other, higher priority issues—to Columbia. Id.
(Cocosel Dep. 136:16–137:11). Meanwhile, Columbia had declared bankruptcy. Id. (Cocosel
Dep. 137:10–13). After Cessna took over, Cocosel had the aircraft repaired at his shop. Id. at
38–39 (Cocosel Dep. 137:23–138:9). This 2008 repair also was covered under the warranty. Id.
at 40 (Cocosel Dep. 144:19–24). Following this 2008 repair, Cocosel didn’t notice any cracking
for two-and-a-half years. Id. at 41 (Cocosel Dep. 146:6–11).
Cocosel testified that Cessna repaired the paint cracks “under warranty” with “the normal
repairs until the warranty hit this real limit.” Id. at 44 (Cocosel Dep. 158:3–19). After the
warranty hit that limit, “they no longer paid for anything.” Id. (Cocosel Dep. 158:14–24).
Cocosel maintains that “the paint cracks was carried over because they didn’t have a fix.” Id.
Throughout all of the repairs, Cocosel testified that he never contacted Cessna; all
communications with Cessna went through his service center. Id. at 40 (Cocosel Dep. 145:16–
22).
Cocosel complained of broken promises. When asked who made these promises,
Cocosel said, “If you want names, I can dig them out basically from message boards and from
the emails. I don’t remember the exact names of the persons. I guess executives at Cessna.” Id.
at 45–46 (Cocosel Dep. 165:23–166:4). Later, when asked which executives made promises to
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him, Cocosel testified, “Again, I can dig them up for you, if you want actually these exact names.
But it was the CEO of the company at the time in . . . 2008. I forgot his name.” Id. at 48
(Cocosel Dep. 174:7–13). But Cocosel then clarified that he “didn’t talk to him personally” and
the communication from the CEO occurring “during [the] bankruptcy.” Id. (Cocosel Dep.
174:16–20). Cocosel said, “there were four or five owner representatives that were in contact
with Cessna at the time and they were relaying basically what was being discussed and what
promises were being made[.]” Id. (Cocosel Dep. 174:25–175:5). Cocosel specifically
mentioned promises made during Columbia’s bankruptcy proceedings. Id. at 46 (Cocosel Dep.
166:5–23). And Cocosel mentioned that he’d attended an owner’s meeting where Cessna said
not to worry, Cessna would comply with the warranty. Id. (Cocosel Dep. 167:15–168:1).
Cocosel flies the aircraft regularly, primarily with his wife. Id. at 26 (Cocosel Dep.
86:10–23). When asked if he was concerned about safety with the cracking, Cocosel responded,
“Concerned about the safety? It’s a paint crack.” Id. (Cocosel Dep. 87:19–23). Cocosel
emphasized that he isn’t concerned about the cracking: “Had I been concerned, I would not have
flown it for 19 years.” Id. (Cocosel Dep. 88:19–24). Instead, Cocosel is “mainly concerned
about . . . the aesthetic value[.]” Id. (Cocosel Dep. 88:24–89:2).
II. 	Legal Standard
Summary judgment is appropriate where the moving party demonstrates there is “no
genuine dispute” about “any material fact” and that the movant is “entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). This standard dictates that the court “view the evidence
and make inferences in the light most favorable to the non-movant.” Nahno-Lopez v. Houser,
625 F.3d 1279, 1283 (10th Cir. 2010) (citing Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243,
1245–46 (10th Cir. 2010)).
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“An issue of fact is ‘genuine’ ‘if the evidence is such that a reasonable jury could return a
verdict for the non-moving party’ on the issue.” Id. (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). “An issue of fact is ‘material’ ‘if under the substantive law it is
essential to the proper disposition of the claim’ or defense.” Id. (quoting Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
The moving party bears “‘both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter of
law.’” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor v.
Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To carry this burden, the
moving party “‘need not negate the non-movant’s claim, but need only point to an absence of
evidence to support the non-movant’s claim.’” Id. (quoting Sigmon v. CommunityCare HMO,
Inc., 234 F.3d 1121, 1125 (10th Cir. 2000)). Even if the non-moving party fails to respond
adequately, “the district court may not grant the motion without first examining the moving
party’s submission to determine if it has met its initial burden of demonstrating that no material
issues of fact remain for trial and the moving party is entitled to judgment as a matter of law.”
Reed v. Bennett, 312 F.3d 1190, 1194–95 (10th Cir. 2002).
If the moving party satisfies its initial burden, the non-moving party “‘may not rest on its
pleadings, but must bring forward specific facts showing a genuine issue for trial [on] those
dispositive matters for which it carries the burden of proof.’” Kannady, 590 F.3d at 1169
(quoting Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996)); see also Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986); Anderson, 477 U.S. at 248–49. The specific “facts must be identified
by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”
Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007) (citing Adler, 144
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F.3d at 671). Affidavits and testimony “must be based upon personal knowledge and set forth
facts that would be admissible in evidence; conclusory and self-serving affidavits are not
sufficient.” Tucker v. Faith Bible Chapel Int’l, 36 F.4th 1021, 1030–31 (10th Cir. 2022)
(quotation cleaned up).
Federal courts don’t view summary judgment as a “disfavored procedural shortcut.”
Celotex, 477 U.S. at 327. Instead, it represents an important procedure “designed ‘to secure the
just, speedy and inexpensive determination of every action.’” Id. (quoting Fed. R. Civ. P. 1).
III. 	Analysis11
As mentioned earlier, plaintiffs have waived their implied-warranty and deceptive-trade-
practices claims. Doc. 362 at 7. That leaves three claims: breach of express warranty, fraud,
11 	A federal district court sitting in diversity—as here—must apply the choice-of-law rules of the
state where the court is located. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). The
court thus applies Kansas choice-of-law principles.
Plaintiffs bring one contract-based claim: breach of express warranty. Kansas choice-of-law
rules divide contract claims into two categories: (1) disputes that go “to the substance of the obligation”;
and (2) questions that go “to the manner and method of performance[.]” Moses v. Halstead, 581 F.3d
1248, 1252 (10th Cir. 2009) (applying Kansas choice-of-law rules). This case belongs in the latter
category. See id. at 1253 (“In general, fulfillment of a contractual obligation goes to the manner and
method of performance by the party charged with the obligation.”). So, the law of the place of
performance applies to plaintiffs’ express-warranty claim. Id. at 1252. “‘The place of performance is the
state where, either by specific provision or by interpretation of the language of the promise, the promise is
to be performed.’” ARY Jewelers, L.L.C. v. Krigel, 85 P.3d 1151, 1162 (Kan. 2004) (quoting Restatement
(First) of Conflict of Laws § 355 (A.L.I. 1934)). The individual plaintiffs—California citizens, see Doc.
337 at 2–3 (PTO ¶ 1.b.)—maintain that defendant should pay for the window cracking on their planes.
Because that payment would go to California citizens, the court concludes that California law applies to
plaintiffs’ express-warranty claims. In the Pretrial Order, the parties agreed that Oregon law governs
plaintiff Cocosel’s claims, id. at 4, but they never explain this conclusion. And the court declines to go
hunting through the summary-judgment record for an explanation of this anomaly. Fortunately, the
parties briefed both Oregon and California law, so this decision won’t cause any prejudice.
Plaintiffs also bring tort claims. Under Kansas choice-of-law principles, in tort cases “the law of
the state where the tort occurred—lex loci delicti—should apply.” Ling v. Jan’s Liquors, 703 P.2d 731,
735 (Kan. 1985). Under “the doctrine of lex loci delicti, the situs of the injury determines the governing
law.” Id. Because the plaintiffs are California citizens, they felt the injury from defendant’s alleged fraud
in California. The court notes that plaintiff Apsis Aviation, LLC is an Oregon limited liability company,
but its sole member, plaintiff Adam Hafez, is a California citizen. So, even Apsis Aviation LLC felt—
experienced—its injury in California. The court thus applies California law to plaintiffs’ tort claims.
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and negligent misrepresentation. Id. The court begins its analysis with the express-warranty
claim. It then analyzes the fraud and negligent misrepresentation claims together.
A. 	Express Warranty
The express-warranty analysis differs for plaintiff Cocosel (who bought his aircraft
directly from defendant) and the rest of the plaintiffs, who bought their aircraft from a third
party. The court begins with Cocosel.
1. 	Cocosel
Plaintiff Cocosel is the only direct purchaser. Cocosel bought his aircraft in 2006, and it
came with a three-year CAM warranty. Doc. 340-7 at 1–2, 6 (Def. Ex. 7). Cocosel had the
cracking repaired under this warranty a few times. The last repair occurred in 2008, and Cessna
covered the repair under warranty. Doc. 340-46 at 40 (Cocosel Dep. 144:19–24). After that
2008 repair, Cocosel didn’t notice any cracking for two-and-a-half years. Id. at 41 (Cocosel
Dep. 146:6–11). Based on these events, plaintiffs advance two theories of express-warranty
breach.
Plaintiffs first claim that defendant breached Cocosel’s express warranty because the
warranty repair didn’t remedy the issue. Plaintiffs don’t cite any authority for this proposition.
See Doc. 362 at 35. That’s likely because there isn’t any. “Under California law, a plaintiff
cannot maintain a breach of warranty claim for a product that is repaired within the warranty
period and fails again months after the warranty has expired.” Frenzel v. AliphCom, 76 F. Supp.
3d 999, 1019 (N.D. Cal. 2014) (quotation cleaned up) (collecting cases); see also Baranco v.
Ford Motor Co., 294 F. Supp. 3d 950, 973–74 (N.D. Cal. 2018) (dismissing plaintiffs’ breach-of-
express-warranty claim based on theory that repair during warranty period “was not a true
repair” because—even though repair didn’t prevent reoccurrence after warranty’s expiration—
defendant’s initial repair complied with warranty). This is so because the “general rule is that an
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express warranty does not cover repairs made after the applicable time or mileage periods have
elapsed.” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1023 (9th Cir. 2008) (quotation
cleaned up) (applying California law). This first theory of breach won’t work for plaintiffs.
Plaintiffs have a second theory of breach of Cocosel’s express warranty: defendant
waived the warranty’s limitation period by pledging “to develop an effective repair” and doing
“nothing for 16 years until the December 2024 service bulletin.” Doc. 362 at 35. In support of
this theory, plaintiffs cite the following evidence.
Plaintiffs cite Steve Masters’s Declaration, in which Masters attested that he attended a
bankruptcy hearing. Doc. 363-30 at 2 (Masters Decl. ¶ 3). According to Masters, at the
bankruptcy hearing, Cessna’s president acknowledged the window cracking and said that Cessna
would resolve the issue for all affected aircraft. Id. (Masters Decl. ¶¶ 4–6). Masters attested that
Cessna’s president represented that all aircraft under warranty at the time of Cessna’s acquisition
“would be covered and have the defect repaired at no cost to the owner by Cessna.” Id. (Masters
Decl. ¶ 6). Based on this evidence, plaintiffs argue that these statements “effectively voided /
mooted any time limitation provision because Defendant accepted that all aircraft had this defect
and were (or would become) in need of repair.” Doc. 362 at 33. But plaintiffs cite no legal
authority to support this proposition.
Plaintiffs also emphasize Cocosel’s deposition. Cocosel testified that, after the
bankruptcy, he attended a meeting in Bend. Doc. 340-46 at 46 (Cocosel Dep. 167:4–16). He
claims that, during this meeting, someone—he couldn’t remember who—said not to worry,
Cessna would stand behind all promises and comply with the warranty. Id. (Cocosel Dep.
167:23–168:2).
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Plaintiffs also make much of service bulletin SB08-56-01 and its subsequent revocation.
When defendant revoked SB08-56-01, they sent letters to customers promising a future repair
and promising that “warranty coverage will be available for repairs covered by this service
bulletin.” Doc. 363-13 at 2 (Pl. Ex. 13). None of these letters went to Cocosel or any other
plaintiff at issue on this motion. See generally id. Plaintiffs also cite Cessna’s employee,
Richard Ake, telling a customer, Andrea Hudson, in November 2010 that a “credit program will
be applicable when the bulletin is released.” Doc. 363-8 at 2–3 (Pl. Ex. 8). Again, this
communication went to Andrea Hudson—not Cocosel or any other plaintiff here.
Relying on this collection of evidence, plaintiffs claim waiver of the warranty’s time
limitation. “The burden is on the party claiming a waiver of a right to prove it by clear and
convincing evidence that does not leave the matter to speculation, and doubtful cases will be
decided against a waiver.” Stephens & Stephens XII, LLC v. Fireman’s Fund Ins. Co., 180 Cal.
Rptr. 3d 683, 698 (Cal. Ct. App. 2014) (quotation cleaned up). A party can waive a right
expressly, “based on the words of the waiving party,” or implicitly, “based on conduct indicating
an intent to relinquish the right.” Id. (quotation cleaned up). “California courts will find waiver
when a party intentionally relinquishes a right or when that party’s acts are so inconsistent with
an intent to enforce the right as to induce a reasonable belief that such right has been
relinquished.” Waller v. Truck Ins. Exch., Inc., 900 P.2d 619, 637 (Cal. 1995) (quotation cleaned
up).
Plaintiffs here haven’t shouldered their burden on this waiver theory. Indeed, plaintiffs
don’t bother to cite any caselaw supporting their waiver argument—much less characterize the
waiver as explicit or implicit. See Doc. 362 at 32–37. On the explicit front, plaintiffs have
adduced evidence of only one statement that defendant made to Cocosel: “Cessna stands behind
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all promises. We will comply with warranty.” Doc. 340-46 at 46 (Cocosel Dep. 167:23–168:2).
No reasonable factfinder could find that defendant, by making this statement, intentionally and
expressly relinquished its right to declare a warranty claim untimely. This statement is vague; it
doesn’t reference any specific promises. And this statement says nothing about time limitations
or expiration. To the contrary, the statement refers to the warranty—which contains a time
limitation. This statement thus falls far short of “clear and convincing evidence that does not
leave the matter to speculation[.]” Stephens, 180 Cal. Rptr. 3d at 698.
Nor have plaintiffs adduced evidence of implicit waiver. Plaintiffs have assembled no
evidence that Cocosel knew about the rest of defendant’s conduct—i.e., the bankruptcy
statements; the letters to customers about SB08-56-01’s revocation; the statement to Hudson.
Without Cocosel knowing about these specific acts, these acts can’t “induce a reasonable belief”
that defendant relinquished its right to declare Cocosel’s warranty expired. Waller, 900 P.2d at
637 (quotation cleaned up); see also Dones v. Life Ins. Co. of N. Am., 269 Cal. Rptr. 3d 626, 636
(Cal. Ct. App. 2020) (explaining equitable roots of waiver require plaintiff to have relied on
defendant’s conduct that caused his injury); see below § III.B.1 (explaining lack of evidence of
Cocosel’s reliance on defendant’s statements). Cocosel’s impression was based largely on vibes
and rumors: unspecified statements from message boards, emails, and meetings. Doc. 362 at 34.
No reasonable factfinder could find waiver here without speculating—and California law forbids
such speculation. Stephens, 180 Cal. Rptr. 3d at 698.
The court thus concludes that Cocosel’s express-warranty claim can’t survive summary
judgment.
2. 	Other Plaintiffs
The plaintiffs who bought their aircraft from someone other than defendant—plaintiffs
Groves, Eater, Hafez, and Johnson—face heavy crosswinds on their express-warranty claims.
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These plaintiffs didn’t buy their aircraft from defendant, so they lack privity of contract. Under
California law, “‘privity of contract is required in an action for breach of either express or
implied warranty and . . . there is no privity between the original seller and a subsequent
purchaser who is in no way a party to the original sale.’” Watkins v. MGA Ent., Inc., 574 F.
Supp. 3d 747, 754 (N.D. Cal. 2021) (quoting Burr v. Sherwin Williams Co., 268 P.2d 1041, 1048
(Cal. 1954)).
These secondary-purchaser plaintiffs also have a transfer problem. The original
warranties prohibited the original buyers from transferring the warranty without defendant’s
consent. Doc. 340-5 at 1–2 (Def. Ex. 5); Doc. 340-10 at 1–2 (Def. Ex. 10). These plaintiffs have
adduced no evidence that they secured defendant’s consent for the warranty’s transfer. And
plaintiffs would have nothing to transfer anyway; the original warranties expired well before
they bought their aircraft. Only Groves bought the aircraft during the original warranty’s
existing life. Groves thought the manufacturer warranty still would apply. But he admitted that
he had no paperwork transferring the warranty to him; he merely assumed the transfer because
Columbia had covered other repairs under warranty. Doc. 340-44 at 15, 20 (Groves Dep. 50:2–
10, 71:1–9). Even if Groves had transferred the warranty successfully, it expired in 2010. 12
So, the secondary-purchaser plaintiffs’ express-warranty claims can’t survive the
undisputed timeline or the plane’s purchase history. Searching for friendlier skies, plaintiffs try
to spin up a new express warranty based on the Columbia bankruptcy. Recall that the
bankruptcy Sale Order required Cessna to “send to all known owners who are currently covered
by a warranty from [Columbia] (collectively, an “Unexpired Warranty”), a standard Certificate
12 	Plaintiffs argue that defendant waived the warranties’ provision that prevents transfer. But, even
if that’s true, plaintiffs have failed to show by clear-and-convincing evidence that defendant waived the
warranties’ time limitation. So, even if plaintiffs transferred the warranties, those warranties have expired.
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of Warranty from Cessna good for the remaining term of the Unexpired Warranty from
[Columbia].” Doc. 340-17 at 10 (Def. Ex. 17). This “new Cessna Warranty” replaced “the
Unexpired Warranty in its entirety, unless an existing Unexpired Warranty held by an owner
provide[d] greater rights to such owner, in which case the existing Unexpired Warranty shall
apply.” Id. And the secondary purchasers’ aircraft were under warranty at the time of the
bankruptcy. Plaintiffs thus conclude that defendant issued Certificates of Warranty to their
aircrafts’ previous owners and those Certificates of Warranty provided new express warranties.
Doc. 362 at 36–37. This matters for their express-warranty claims, plaintiffs assert, because
there “is no evidence of a time limitation—particularly concerning the window cracking issue, in
those Certificates, nor is there evidence that those certificates precluded transferability.” Id. at
32.
But there’s the problem for plaintiffs: no evidence. “Under California law a claim for
breach of express warranty requires a showing of the exact terms of the warranty.” Hastings v.
Ford Motor Co., No. 19-02217-BAS-MDD, 2022 WL 848330, at *13 (S.D. Cal. Mar. 22, 2022)
(quotation cleaned up); see also Williams v. Beechnut Nutrition Corp., 229 Cal. Rptr. 605, 608
(Cal. Ct. App. 1986) (requiring plaintiffs to “allege the exact terms of the warranty” for express-
warranty claims). Because the plaintiffs at issue here haven’t adduced any evidence of the terms
of the Certificates of Warranty, their express-warranty claims based on the Certificates of
Warranty fail as a matter of law. See Hastings, 2022 WL 848330, at *13 (granting summary
judgment against express-warranty claim where plaintiff failed to establish exact terms of
extended service plan); May v. KCS Int’l Inc., No. 09-01336 DOC (MLGx), 2011 WL 13268067,
at *3 (C.D. Cal. June 7, 2011) (granting summary judgment against express warranty claim
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because plaintiff had “not met his burden of providing the Court with the terms of the Brunswick
express warranty”).
Sensing these headwinds, plaintiffs complain that defendant failed to produce copies of
the Certificates of Warranty. Doc. 362 at 32. As already stated, on summary judgment
following the close of discovery is far too late to complain about discovery issues. Without any
copies of the Certificates of Warranty issued for their planes, plaintiffs have proffered an
example Certificate of Warranty. See Doc. 363-25 at 2 (Pl. Ex. 25). Even assuming that this
example suffices to shoulder plaintiffs’ summary-judgment burden, plaintiffs still face a
dispositive problem: the example Certificate of Warranty explicitly states that the warranty is
good “for the remaining period of the Columbia OEM airframe warranty[.]” Id. (emphasis
omitted). So, even if Cessna created new warranties with the Certificates of Warranty—based on
the sole example of a Certificate of Warranty contained in the summary-judgment record—those
new warranties expired when the original warranties expired.
The secondary-purchaser plaintiffs also advance a waiver argument. Doc. 362 at 37.
Again, they cite no legal authority and never bother to characterize the waiver as express or
implicit. And this waiver argument is even weaker than Cocosel’s. It’s undisputed that
defendant never made any statements directly to these secondary purchasers, so express waiver is
out. Instead, these secondary purchasers are speculating about defendant’s intent to relinquish its
rights under the warranty based on defendant’s various statements. For example, the secondary
purchasers cite rumors created by statements defendant’s attorney made during a bankruptcy
hearing—that none of these secondary-purchaser plaintiffs attended. See id. Plaintiffs have
failed to adduce clear and convincing evidence that defendant waived its right to declare their
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warranty claims untimely. No reasonable factfinder could conclude otherwise without
speculating, which runs afoul of California law. Stephens, 180 Cal. Rptr. 3d at 698.
In sum, the court grants defendant summary judgment against the secondary purchasers’
express-warranty claims.
B. 	Fraud and Negligent Misrepresentation
This leaves two overlapping claims: one claiming fraud and one claiming negligent
misrepresentation. Doc. 337 at 59–67 (PTO ¶ 4.a.iii–iv.). And, within the fraud claim, plaintiffs
invoke two theories of fraud: intentional misrepresentation and fraudulent concealment.
Because the elements of an intentional-misrepresentation fraud claim and those of a negligent-
misrepresentation claim overlap so heavily, the court addresses them together.
1. 	Intentional and Negligent Misrepresentation
“The essential elements of a count for intentional misrepresentation are (1) a
misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and
justifiable reliance, and (5) resulting damage.” Chapman v. Skype Inc., 162 Cal. Rptr. 3d 864,
875 (Cal. Ct. App. 2013). A negligent misrepresentation has four of the same elements—only
the knowledge element differs. Negligent misrepresentation “does not require knowledge of
falsity but instead requires a misrepresentation of fact by a person who has no reasonable
grounds for believing it to be true.” Id. Defendant makes a variety of arguments about these
elements, but the court need only reach one of them: reliance.
“Actual reliance occurs when a misrepresentation is an immediate cause of a plaintiff’s
conduct, which alters his legal relations, and when, absent such representation, he would not, in
all reasonable probability, have entered into the contract or other transaction.” Engalla v.
Permanente Med. Grp., Inc., 938 P.2d 903, 919 (Cal. 1997) (quotation cleaned up). A fraud
plaintiff needn’t show that his “reliance upon the truth of the fraudulent misrepresentation be the
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sole or even the predominant or decisive factor in influencing his conduct.” Id. (quotation
cleaned up). Instead, a fraud plaintiff need only show “that the representation has played a
substantial part, and so has been a substantial factor, in influencing his decision.” Id. (quotation
cleaned up).
Plaintiffs’ theory of fraud here goes something like this: Defendant knew about the
window cracking when it bought Columbia out of its bankruptcy. After this purchase, defendant
issued SB08-56-01 to repair the cracking. Defendant suspended SB08-56-01 a mere 72 days
later. Following this suspension, defendant told other owners—never any plaintiffs directly,
mind you—that it would revise the service bulletin and provide warranty coverage under the new
service bulletin. See, e.g., Doc. 363-13 at 2 (Pl. Ex. 13). But defendant didn’t develop a revised
service bulletin until 2022. And this revised service bulletin didn’t include a credit program like
the one in SB08-56-01. See generally Doc. 363-18 (Pl. Ex. 18). In plaintiffs’ view, defendant
falsely represented that it would develop an effective repair and cover that repair under warranty.
Instead, defendant “dragged its feet” for years, during which no repair ever was authorized. Doc.
362 at 42. Meanwhile, the warranties expired.
Plaintiffs, when arguing their misrepresentation claims, hardly mention reliance. They
merely claim that these “representations harmed Plaintiffs who relied on them in purchasing their
aircraft with the belief that Textron intended to honor its promises.” Id. at 41. Plaintiffs cite no
law and no facts for this proposition. They don’t bother to connect any of these statements to
any plaintiff’s purchase. This just won’t do. E.g., United States v. Moya, 5 F.4th 1168, 1192
(10th Cir. 2021) (explaining that litigants waive arguments “when they are inadequately
presented” (quotation cleaned up)); Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020)
(“This briefing-waiver rule applies equally to arguments that are . . . presented only in a
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perfunctory manner.” (quotation cleaned up)). The court thus grants defendant’s summary-
judgment motion against these misrepresentation claims because plaintiffs have waived any
argument that they relied on any misrepresentations with their perfunctory briefing.
Waiver aside, once defendant’s summary-judgment motion challenged plaintiffs’ ability
to prove an element of their misrepresentation claims, the summary-judgment burden shifted to
plaintiffs. Kannady, 590 F.3d at 1169. This shift required plaintiffs—who would have the
burden to prove reliance at trial—to identify evidence from which a reasonable jury could find
that they relied on defendant’s misrepresentations. They failed that burden, failing “to set forth
specific facts . . . from which a rational trier of fact could find for” them on the reliance element.
Schulenberg v. BNSF Ry. Co., 911 F.3d 1276, 1286 (10th Cir. 2018) (quotation cleaned up).
Defendant thus deserves summary judgment against plaintiffs’ misrepresentation claims.
And even if the court could do plaintiffs’ job for them and comb through the evidence, it
still would grant defendant summary judgment on these claims. No plaintiff attended the
bankruptcy hearing. No plaintiff has testified that they relied on the credit program provided in
SB08-56-01 when purchasing their aircraft. No plaintiff has testified that they knew about the
letters defendant sent to other owners promising a credit program in the revised service bulletin.
To the contrary, plaintiffs Cocosel and Groves bought their aircraft before the bankruptcy and
subsequent events, so they couldn’t have relied on any of the above when making their
purchases. In plaintiff Hafez’s case, the cracking on his aircraft appeared after he bought it.
Doc. 340-42 at 15 (Hafez Dep. 50:25–51:5). Only after he made his purchase did fellow owners
tell Hafez that defendant was working on a fix. Id. at 9, 19 (Hafez Dep. 24:8–25, 65:5–22).
Hafez never attested that he relied on a promised fix when he made his purchase. In short, no
reasonable factfinder could conclude that plaintiffs Cocosel, Groves, or Hafez relied on any
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misrepresentations when purchasing their aircraft. This leaves merely plaintiffs Eater and
Johnson.
Eater and Johnson both noticed cracking before their purchases. Doc. 340-34 at 2 (Def.
Ex. 34); Doc. 340-45 at 7 (Johnson Dep. 13:14–23). In Eater’s case, the seller told him that the
cracking was merely cosmetic, the manufacturer was working on a fix, and the manufacturer
would provide a future fix. Doc. 340-34 at 2 (Def. Ex. 34). Johnson’s seller told him about this
lawsuit and suggested that he join the suit to get the cracking repaired. Doc. 340-45 at 6, 22–23
(Johnson Dep. 12:11–21, 76:12–77:2).
These statements by the people who sold Eater and Johnson their airplanes—that
defendant would fix the cracking—came from third parties. And it’s simply not clear how these
third-party sellers came to conclude that defendant would fix the cracking. For example, as best
the court can tell, when Johnson’s seller told him that defendant was working on a fix, the seller
based that impression on this very lawsuit. Id. at 7 (Johnson Dep. 15:25–16:2). There’s simply
no evidence that the seller ever had seen one of the misrepresentations plaintiffs complain now
about—i.e., SB08-56-01, letters to owners, or statements made in the bankruptcy proceedings.
That’s a problem. California law requires a plaintiff “to establish a complete causal relationship
between the alleged misrepresentations and the harm claimed to have resulted therefrom.”
Mirkin v. Wasserman, 858 P.2d 568, 573 (Cal. 1993) (quotation cleaned up). Plaintiffs here fail
this requirement because they’ve made no effort to connect the (a) the misrepresentations
complained of to (b) Eater and Johnson’s purchases.
This failure spells doom for Eater and Johnson because they must show “that the
representation has played a substantial part, and so has been a substantial factor, in influencing
his decision.” Engalla, 938 P.2d at 919 (quotation cleaned up). And, under California law,
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proof “of causation cannot be based on speculation and conjecture, and evidence establishing a
mere possibility of causation is insufficient.” Saldano v. United States, No. 01-5462 LJO, 2007
WL 2789595, at *4 (E.D. Cal. Sept. 20, 2007) (collecting cases), aff’d, 318 F. App’x 599 (9th
Cir. 2009). Because plaintiffs have failed to establish a complete causal relationship between the
misrepresentations complained of and Eater and Johnson’s purchases of their aircraft, a
reasonable factfinder could only speculate. That’s not enough.
In sum, plaintiffs have failed to shoulder their burden to demonstrate a triable issue of
reliance. Their failure entitles defendant to summary judgment against their intentional-
misrepresentation fraud claim and negligent-misrepresentation claim.
2. 	Fraudulent Concealment
Under California law, a claim for fraudulent concealment has five elements:
(1) the defendant must have concealed or suppressed a material fact,
(2) the defendant must have been under a duty to disclose the fact to the plaintiff,
(3) the defendant must have intentionally concealed or suppressed the fact with the
intent to defraud the plaintiff,
(4) the plaintiff must have been unaware of the fact and would not have acted as he
did if he had known of the concealed or suppressed fact, and
(5) as a result of the concealment or suppression of the fact, the plaintiff must have
sustained damage.
Kaldenbach v. Mut. of Omaha Life Ins. Co., 100 Cal. Rptr. 3d 637, 652 (Cal. Ct. App. 2009)
(quotation cleaned up). The court trains its focus on the second element: duty.
“Whether a duty exists is a question of law to be resolved by the court.” Rattagan v.
Uber Techs., Inc., 553 P.3d 1213, 1229 (Cal. 2024) (quotation cleaned up). Helpfully,
California’s Supreme Court has identified five scenarios where a duty to disclose arises:
(1) it is imposed by statute;
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(2) the defendant is acting as plaintiff's fiduciary or is in some other confidential
relationship 	with 	plaintiff 	that 	imposes 	a 	disclosure 	duty 	under 	the
circumstances;
(3) the material facts are known or accessible only to defendant, and defendant
knows those facts are not known or reasonably discoverable by plaintiff (i.e.,
exclusive knowledge);
(4) the defendant makes representations but fails to disclose other facts that
materially qualify the facts disclosed or render the disclosure misleading (i.e.,
partial concealment); or
(5) defendant actively conceals discovery of material fact from plaintiff (i.e., active
concealment).
Id. at 1238. Plaintiffs never assert that a statute imposes a duty. And they expressly disclaim a
fiduciary relationship. See Doc. 362 at 39. So, the first two options are out.
Instead, plaintiffs argue that, as “the manufacturer and Type Certificate holder of the TTx
aircraft, Defendant had a duty to disclose facts concerning this aircraft to these five plaintiffs.”
Id. at 40. Plaintiffs cite zero legal authority for this proposition. See id. As best the court can
tell, plaintiffs are trying to utilize the final three circumstances: exclusive knowledge, partial
concealment, and active concealment. But these three circumstances “presuppose a preexisting
relationship between the parties, such as between seller and buyer, employer and prospective
employee, doctor and patient, or parties entering into any kind of contractual agreement.”
Rattagan, 553 P.3d at 1238 (quotation cleaned up). Plaintiffs have not explained how their
relationships with defendant resembles any of these circumstances.
As best the court can tell, plaintiffs aspire to invoke a manufacturer-consumer
relationship. But “California courts have generally rejected a broad obligation to disclose[.]”
Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1141 (9th Cir. 2012). And “a manufacturer’s
duty to consumers is limited to its warranty obligations absent either an affirmative
misrepresentation or a safety issue.” Opperman v. Path, Inc., 87 F. Supp. 3d 1018, 1052 (N.D.
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Cal. 2014) (quotation cleaned up) (applying California law). Plaintiffs’ affirmative-
misrepresentation claims, as just discussed, fail. And they’ve abandoned their theory that the
cracking presents a safety issue. So, no duty exists here based solely on defendant’s status as a
manufacturer of these aircraft.
Only one plaintiff has any other kind of relationship with defendant: Cocosel. He bought
his aircraft from defendant. The other four plaintiffs have no preexisting relationship with
defendant so their fraudulent-concealment claims fail for lack of duty. See Hoffman v. 162 N.
Wolfe LLC, 175 Cal. Rptr. 3d 820, 827–32 (Cal. Ct. App. 2014) (surveying California law on
fraudulent concealment when plaintiff has no relationship with defendant and concluding that
California courts “have rejected fraud claims founded on nondisclosure where there was an
absence of a relationship between the plaintiff and the defendant.”); see also LiMandri v.
Judkins, 60 Cal. Rptr. 2d 539, 543 (Cal. Ct. App. 1997) (“As a matter of common sense, such a
relationship can only come into being as a result of some sort of transaction between the
parties.” (emphasis in original)). That just leaves Cocosel.
Even assuming that defendant owed Cocosel some kind of duty based on their buyer-
seller relationship, that duty applied only to the sale itself. LiMandri, 60 Cal. Rptr. 2d at 543–44
(explaining that duty created by transaction is “a duty to disclose facts material to the
transaction”). That is, the “transaction about which parties have a duty to disclose material facts
is the transaction giving rise to the relationship.” Radus Tek Servs., Inc. v. IDC Techs. Inc., 767
F. Supp. 3d 972, 982 (N.D. Cal. 2025) (applying California law). So, defendant had a duty to
disclose material facts to Cocosel in the context of the sale. Plaintiffs don’t cite—and the court
couldn’t locate—any authority suggesting that the buyer-seller relationship creates an ongoing,
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post-sale duty for the seller to disclose all facts about the item the seller previously sold to the
buyer.
In sum, the court concludes that plaintiffs’ fraud claim based on fraudulent concealment
fails as a matter of law.
IV. 	Conclusion
Defendant is entitled to summary judgment against plaintiffs’ claims for breach of
express warranty, fraud, and negligent misrepresentation. This conclusion disposes of all claims
preserved for trial by these nine plaintiffs.13
IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s Motion for
Summary Judgment (Doc. 339) is granted.
IT IS FURTHER ORDERED THAT defendant’s Motion to Strike (Doc. 367) is
denied.
IT IS SO ORDERED.
Dated this 30th day of March, 2026, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
13 	Because the court resolves defendant’s summary-judgment motion on the grounds articulated
above, it needn’t consider defendant’s other arguments for summary judgment. Of particular importance:
the court needn’t consider defendant’s argument about plaintiffs’ damages issues. Defendant has filed a
Motion to Strike (Doc. 367) plaintiffs’ untimely damages evidence. Because the court grants summary
judgment without reaching these timeliness issues, defendant’s Motion to Strike is moot, and the court
denies it. See Doc. 379 at 2, 10, 11 (suggesting, in reply to motion to strike, that granting summary
judgment on any grounds other than damages ground would render the motion to strike moot).
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