Combined Aircraft Ownership, LLC v. Learjet, Inc., doing business as Bombardier Aircraft Services

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-2692
___________________________
Combined Aircraft Ownership, LLC
Plaintiff - Appellant
v.
Learjet, Inc., doing business as Bombardier Aircraft Services
Defendant - Appellee
____________
Appeal from United States District Court
for the District of North Dakota - Eastern
____________
Submitted: March 12, 2024
Filed: June 4, 2024
[Unpublished]
____________
Before GRUENDER, SHEPHERD, and GRASZ, Circuit Judges.
____________
PER CURIAM.
This case concerns a business dispute between Combined Aircraft Ownership,
LLC (“CAO”) and Learjet, Inc. (“Learjet”). CAO appeals the district court’s1 order
1 The Honorable Peter D. Welte, Chief Judge, United States District Court for
the District of North Dakota.

-- 1 of 5 --

-2-
dismissing its complaint under Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted.
We accept all well-pleaded allegations in the complaint as true and construe
them in CAO’s favor. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). CAO
owns a multiengine aircraft manufactured by Learjet. CAO and Learjet entered into
a contract whereby Learjet would inspect and complete maintenance work on the
aircraft. After Learjet completed some work on the aircraft, a dispute arose as to the
amount of money owed by CAO. CAO refused to pay the full amount sought by
Learjet. Learjet refused to return the aircraft to CAO without full payment. To
obtain the aircraft, CAO filed suit against Learjet in the United States District Court
for the District of Arizona. See Combined Aircraft Ownership, LLC v. Learjet Inc.,
No. 4:20-cv-00330 (D. Ariz. Nov. 19, 2020). The parties eventually settled the
matter, and Learjet returned the aircraft to CAO.
CAO requires a steady supply of replacement aircraft parts to maintain the
airworthiness of the aircraft. After the settlement, CAO attempted to obtain
replacement aircraft parts from Learjet. Learjet told CAO in an email that it had
“restrict[ed]” CAO’s account as well as the accounts of “any of [CAO’s] associates
involved with the aircraft.” Learjet also stated that “[i]f [CAO] sold the aircraft to
an unrelated [third] party and was no longer involved with the aircraft, [Learjet]
could reconsider providing parts and service support.” CAO alleges that, without
parts from Learjet, CAO cannot service the aircraft to maintain its airworthiness.
CAO filed suit against Learjet for (1) breach of contract, (2) breach of
warranty, (3) promissory/equitable estoppel, (4) consumer fraud, and (5) tortious
interference with business relationships. Learjet filed a Rule 12(b)(6) motion to
dismiss the complaint for failure to state a claim upon which relief could be granted.
In its response to Learjet’s motion, CAO abandoned its claims for breach of contract
and breach of warranty. The district court granted Learjet’s Rule 12(b)(6) motion
and dismissed the remaining claims without prejudice.

-- 2 of 5 --

-3-
After the dismissal, CAO filed a motion seeking leave to amend the original
complaint. Before the district court could rule on the motion, CAO filed a notice of
appeal. Due to the notice of appeal, the district court refused to allow CAO to amend
the original complaint. The filing of a notice of appeal had divested the district court
of jurisdiction over the matter. See Griggs v. Provident Consumer Disc. Co., 459
U.S. 56, 58 (1982).
On appeal, CAO contends that the district court erroneously (1) dismissed its
claim for tortious interference with business relationships and (2) refused to allow it
to amend the original complaint. CAO does not appeal the district court’s dismissal
of its claims for promissory/equitable estoppel and consumer fraud.
We first address CAO’s challenge to the district court’s dismissal of its claim
for tortious interference with business relationships. We review de novo the district
court’s decision to dismiss the claim pursuant to Rule 12(b)(6). See Sorenson v.
Sorenson, 64 F.4th 969, 975 (8th Cir. 2023). To survive a Rule 12(b)(6) motion, a
complaint must contain sufficient factual matter, which, when accepted as true and
viewed in the light most favorable to the nonmoving party, states “a claim to relief
that is plausible on its face.” Ashcroft, 556 U.S. at 678. A claim is plausible on its
face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“[A] formulaic recitation of the elements of a cause of action will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
To prevail on a claim for tortious interference with business relationships
under North Dakota law, a plaintiff must prove (1) the existence of a valid business
relationship or expectancy, (2) knowledge by the interferer of the relationship or
expectancy, (3) an independently tortious or otherwise unlawful act of interference
by the interferer, (4) that the interference caused the harm sustained, and (5) actual
damages to the party whose relationship or expectancy was disrupted. N. Bottling
Co. v. Pepsico, Inc., 5 F.4th 917, 925 (8th Cir. 2021). An act is independently
tortious when a defendant’s conduct is actionable under a recognized tort. Trade ‘N

-- 3 of 5 --

-4-
Post, L.L.C. v. World Duty Free Americas, Inc., 628 N.W.2d 707, 720 (N.D. 2001).
“Conduct that is merely ‘sharp’ or unfair is not actionable . . . .” Id.
CAO alleges that Learjet “deliberately interfered with the business
relationships between CAO and the third-party suppliers by refusing to sell essential
replacement parts to any company doing business with CAO.” However, CAO fails
to identify in its complaint the particular third-party contracts at issue, the identities
of these third-party suppliers, or any particular act taken by Learjet that amounted to
an independently tortious or otherwise unlawful act of interference. CAO references
repeatedly in its complaint that Learjet engaged in acts that were “tortious” and
“unlawful,” but such general references to “tortious” and “unlawful” acts are mere
conclusory recitations of the third element of the cause of action. Without further
supporting facts, we cannot determine any basis under which Learjet could be held
liable to CAO. Learjet’s general refusal to engage in business with CAO and any of
CAO’s associates is not in and of itself an independently tortious or otherwise
unlawful act sufficient to give rise to a plausible claim for relief. See id. (“[A]
plaintiff could recover for tortious interference by showing an illegal boycott,
although a plaintiff could not recover against a defendant whose persuasion of others
not to deal with the plaintiff was lawful.”). Therefore, we affirm the district court’s
dismissal of CAO’s claim for tortious interference with business relationships.2
CAO’s second contention on appeal is that the district court erroneously
refused to allow it to amend the original complaint. When the district court
dismissed CAO’s complaint without prejudice, CAO had the option to either stand
on its complaint and appeal its dismissal or to file a new action correcting the
2 On appeal, CAO attempts to restyle its claim for tortious interference with
business relationships as a claim for tortious interference with contract. Because
CAO did not plead tortious interference with contract in its complaint, we do not
address this claim. See Jacam Chem. Co. 2013, LLC v. Shepard Jr., --- F.4th ----,
2024 WL 2232299, at *7 (8th Cir. May 17, 2024) (declining to address a plaintiff’s
“new theory of tortious interference” where the plaintiff “did not articulate this
theory of interference in its amended complaint [and did not] present this theory to
the district court”).

-- 4 of 5 --

-5-
deficiencies in the first action. See Missouri ex rel. Nixon v. Prudential Health Care
Plan, Inc., 259 F.3d 949, 956 (8th Cir. 2001). CAO could “not select both courses
of action, for that approach begets the type of duplicative litigation that we reject.”
Id. Having made the “tactical decision” to stand on the complaint and appeal its
dismissal, CAO could not also elect to file a new action or otherwise amend its
original complaint. Ash v. Anderson Merchandisers, LLC, 799 F.3d 957, 964 n.3
(8th Cir. 2015). Thus, the district court did not err in refusing to allow CAO to
amend the original complaint, and we modify the dismissal of the complaint to be
with prejudice. See 28 U.S.C. § 2106 (stating that an appellate court may modify
any judgment of a court brought before it for review).
Accordingly, we affirm the judgment of the district court but modify the
dismissal to be with prejudice.
______________________________

-- 5 of 5 --