SCOTT W. SKAVDAHL, District Judge.
This matter comes before the Court on Defendants' Motions for Summary Judgment as to Plaintiff's Claims for Negligent Misrepresentation and Fraud (ECF Nos. 46, 48). The Court, having considered the briefs and materials submitted in support of the motions and Plaintiff's opposition thereto, having heard oral argument of counsel, and being otherwise fully advised, FINDS and ORDERS as follows:
This action arises out of an expedition to investigate the disappearance of Amelia Earhart and search for the wreckage of the aircraft (a Lockheed Electra Model 10E) she was flying when she disappeared in 1937. Defendant The International Group for Historic Aircraft Recovery ("TIGHAR"), formed in 1985, is an organization that, in part, performs investigations, aviation archeology and historic preservation of rare and historic aircraft. Defendant Richard Gillespie is, and has always been, TIGHAR's Executive Director. To help fund its efforts to investigate aircraft wreckage and accidents around the world, TIGHAR engages in fundraising through corporate sponsorships and private donors. Among the most prominent of its activities is TIGHAR's ongoing investigation into the disappearance of Amelia Earhart and her navigator Fred Noonan in the South Pacific. Operating on the hypothesis that Earhart and Noonan landed and perished on the island of Nikumaroro in the Republic of Kiribati, TIGHAR has launched a number of expeditions to the island and conducted numerous detailed surveys and searches of the island and its surrounding waters. Beginning with its first expedition in 1989, TIGHAR has made eleven trips to Nikumaroro. It is TIGHAR's long-standing policy that it will only announce the discovery of Earhart wreckage or its belief that the mystery of the disappearance has been solved when it finds and positively identifies "conclusive, indisputable proof that recovered wreckage is that of the plane or DNA of Ms. Earhart or Mr. Noonan." (Gillespie Aff. ¶ 8) (ECF No. 45-1).
In May 2010, TIGHAR embarked on its tenth expedition to Nikumaroro island (known as "NIKU VI"). The stated objectives of the expedition included an underwater search of the reef slope along the island's western shoreline, using a remote operated vehicle ("ROV") equipped with both high definition and standard definition video cameras, to test the hypothesis that the area holds wreckage from the Earhart aircraft, as well as terrestrial archaeological exploration of the island. (Pl.'s Ex. 2) ("Niku VI Expedition Report") (ECF No. 54-1); (Gillespie Dep. 160:4-17) (ECF No. 54-3). During the expedition, the ROV filmed some manmade objects, specifically a rope and what "kind of looks like a wire." (Gillespie Dep. 122:15-123:22.) Members of the ROV crew determined the piece that looked like wire was actually whip coral. (Rodocker Dep. 46:4-22) (ECF No. 54-4). Still, Gillespie wanted to investigate further so the ROV tried to return to the area the next day to recover the object. (Gillespie Dep. 123:16-124:19, 126:2-16.) However, after spending a few hours looking, the area could not be relocated due to technical problems. (Id. 124:20-126:1; Rodocker Dep. 47:17-48:14.)
Following the NIKU VI expedition, TIGHAR reported, focusing initially on the high definition video footage,
In April of 2011, Gillespie realized additional underwater video from the standard definition video camera was available and forwarded the footage to certain individuals for further analysis, including Jeff Glickman who has forensic imaging experience and expertise. (Pl.'s Ex. 5.) Gillespie had previously sent e-mails noting Glickman found "suspicious objects" in other video clips and the "need to look closely at all of this stuff." (Pl.'s Ex. 22.) Glickman's review yielded the following interpretations of certain objects:
(Pl.'s Ex. 3) (emphasis added). Discovery of the rope generated discussion at TIGHAR about its possible connection to the Earhart plane, prompting one member to note the video of the rope "is something that would warrant the full brunt of TIGHAR curiosity." (Pl.'s Ex. 6.) Gillespie had earlier cautioned Glickman about publicizing his findings because "news like this is so good that it could prompt some hotshot millionaire glory hunter to decide to beat us to the `treasure.'"
In early 2012, TIGHAR received assistance from the U.S. Government in reviewing and interpreting the "Bevington object."
On March 20, 2012 TIGHAR, Secretary of State Clinton and U.S. Transportation Secretary Ray LaHood held a press conference extolling TIGHAR's efforts and promoting its next trip to Nikumaroro. (Gillespie Dep. 109.) During that event, Gillespie acknowledged TIGHAR has "compelling evidence" to support its theory about Earhart's disappearance and the location of the wreckage. (http://www. youtube.com/watch?v+WGbYeZAvTYk.) Gillespie further characterized the evidence as "strong but circumstantial" and stated that finding the airplane would make it conclusive. Id. 21:50-22:15. Gillespie noted all they can do is make their best effort to search and see what they can find; "it is the searching that is important." Id. 28:15-30. Gillespie admits these types of publicity events and press releases are part of their fundraising philosophy: "We build the expedition we feel needs to be done, and then we figure out how much that's going to cost, and then we make known to the public what we want to do, how we want to do it, and how much it's going to cost, and we're not going to be able to do it if we don't raise the money. And then we usually stand by and let people come to us." (Gillespie Dep. 144:4-18.)
Following that press conference, the Casper [Wyoming] Star Tribune printed a story discussing the "new clue" revealed by enhanced analysis of the Bevington photo. (Pl.'s Ex. 20.) The article reported TIGHAR's intention to return to the island that summer "in the hope of finding the wreckage of Earhart's plane and perhaps even the remains of the pilot and her navigator, Fred Noonan." Id. The article further reported Gillespie's acknowledgement that they had "circumstantial" but "strong" evidence of the plane's location. After reading the Tribune article, on March 22, 2012, Plaintiff contacted TIGHAR via e-mail expressing his interest in talking to Gillespie "about funding opportunities for [TIGHAR's] Amelia Earhart and other projects." (Pl.'s Ex. 11; Mellon Dep. 17:5-18.) Within days Plaintiff and Gillespie spoke by phone (at Plaintiff's request) and discussed Plaintiff's interest in the Earhart project, both in funding and participation. (Gillespie Dep. 109-110; Mellon Dep. 21.) Plaintiff offered to fund nearly half of the cost of the 2012 expedition, or around one million dollars.
The NIKU VII expedition departed Hawaii on July 3, 2012, accompanied by Plaintiff as well as a documentary crew from the Discovery Channel and other supporters.
Central to his case, Plaintiff has since become convinced (over the course of time and countless viewings) that the footage taken during the 2010 NIKU VI expedition reveals the wreckage of the Lockheed Electra flown by Amelia Earhart when she disappeared and various objects associated therewith,
Summary judgment is appropriate where a movant shows "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a) (2010) (emphasis added). "A dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue either way. A fact is material if under the substantive law it is essential to the proper disposition of the claim." Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir.2011) (internal quotations and citations omitted). "If a reasonable trier of fact could not return a verdict for the nonmoving party, summary judgment is proper." White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995).
In reviewing a motion for summary judgment, the Court is to determine whether there is evidence to support a party's factual claim, Jarvis v. Potter, 500 F.3d 1113,
In support of their summary judgment motions, Defendants contend both of Plaintiff's remaining claims fail for lack of any evidence, other than Plaintiffs own speculation and opinion, of any false representation made or information provided to Plaintiff prior to making his 2012 donation. In response, Plaintiff contends ample evidence exists to demonstrate TIGHAR knew, or should have known, of the presence of the Earhart wreckage from the 2010 expedition footage prior to discussing financial contributions with Plaintiff, yet Defendants misrepresented that the purpose of the 2012 expedition was to locate the wreckage they had already found.
"Under Wyoming law, the elements of negligent misrepresentation are as follows: (1) defendant gave plaintiff false information in a transaction in which defendant had a pecuniary interest; (2) defendant gave the false information to plaintiff for the guidance of plaintiff in plaintiff's business transactions; (3) defendant failed to use reasonable care in obtaining or communicating the information; (4) plaintiff justifiably relied on the false information supplied by defendant; and (5) as a result of plaintiff's reliance, plaintiff suffered economic damages." Wyo. Sugar Growers, LCC v. Spreckels Sugar Co., Inc., 925 F.Supp.2d 1225, 1228 n. 2 (D.Wyo.2012) (citing Birt v. Wells Fargo Home Mortg., Inc., 75 P.3d 640, 656 (Wyo. 2003)).
Foremost and fatal here, Plaintiff must provide evidence that the information given by the Defendants was false. What was affirmatively communicated to Plaintiff is that TIGHAR was planning another expedition in search of the Earhart plane. Certainly, on its face, this representation was and is not false, nor does Plaintiff assert the materials provided to him by Defendants prior to his donation contained false information. Rather, Plaintiff contends the representation is false because it suggests the Earhart plane had not already been found. In support of his assertion that Defendants had found the Earhart wreckage during the NIKU VI expedition in 2010, Plaintiff cites to Glickman's April 2011 interpretations following his analysis of the standard definition video later discovered by Gillespie. (Pl.'s Ex. 3.) However, Glickman's observations of rods (or maybe cable) and rope, excepting the "rope with a splice," are couched in probabilities and possibilities — hardly conclusive evidence of the Earhart plane. Defendants believed these findings warranted further investigation and provided additional support for their hypothesis, but are not the kind of proof they are searching for.
Following enhanced analysis of the Bevington object by the U.S. Government,
To be sure, there is dispute about what can be seen in the 2010 expedition footage and the source of any man-made objects identified.
Neither has Plaintiff submitted evidence to support a finding that Defendants failed to exercise reasonable care or competence in obtaining, reviewing or communicating the information. Despite acknowledging the need for utilizing a scientific methodology, none of Plaintiff's experts opine about the standard of care Defendants should have used when viewing and analyzing the 2010 expedition footage or reaching conclusions therefrom.
Finally, the Court has doubts about whether Plaintiff's reliance on the alleged misrepresentation was justified. Footage from the 2010 expedition was publicly available, as was the Bevington photo, many months prior to Plaintiff's contribution to Defendants. Further, it was no secret Defendants believed they had strong evidence that the Earhart wreckage was located in the waters off the island of Nikumaroro and intended to return to the island in the hopes of finding the airplane. There is simply no evidence Defendants misrepresented their mission or the status of the search for the Earhart wreckage. The Court finds, based upon the evidence presented, Plaintiff cannot establish the necessary elements of a negligent misrepresentation claim. "Unsupported allegations without any significant probative evidence tending to support the [claim] are insufficient ... as are conclusory assertions that factual disputes exist." Shively v. Rock, No. 09-cv-826, 2011 WL 1060305, *3 (D.Colo. Feb. 18, 2011) (quoting Southway v. Central Bank of Nigeria, 149 F.Supp.2d 1268, 1273 (D.Colo.2001)) (internal quotations omitted).
The lack of evidence establishing the falsity of Defendants' representation is similarly fatal to Plaintiffs fraud claim. In order to prevail on a claim for intentional misrepresentation or fraud under Wyoming law, a plaintiff must show: "(1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (3) the plaintiff relied on the false representation and suffered damages." Excel Constr., Inc. v. HKM Eng'g, Inc., 228 P.3d 40, 48 (Wyo.2010) (citing Birt, 75 P.3d at 656). "In order to prove intentional misrepresentation, the plaintiff must show that the misrepresentation was made intentionally, with knowledge of its falsity, or that the maker of the misrepresentation was at least aware that he did not have a basis for making the statement." Id. at
As discussed above, Plaintiff has failed to offer evidence which would show, by even a preponderance of the evidence, that Defendants' representation they had not yet found the Earhart plane was false. Moreover, even accepting Plaintiff's experts' non-definitive conclusion that the objects depicted in the 2010 expedition footage are from Earhart's plane, Plaintiff must show Defendants had actual knowledge they had found the Earhart wreckage and intentionally misrepresented that fact to Plaintiff. "[O]ne cannot be guilty of fraudulently or intentionally concealing or misrepresenting facts of which he is not aware." Throckmartin v. Century 21 Top Realty, 226 P.3d 793, 809 (Wyo.2010).
There is absolutely no evidence Defendants knew the 2010 footage depicted anything more than rods (or maybe cables) and a rope in the area where they believe the Earhart wreckage to be. At best, Defendants knew they had strong evidence in support of their hypothesis which warranted further investigation. "When a party accused of fraud has presented facts, in support of a motion for summary judgment, that refute the allegations of fraud, the party relying upon the fraud claims then must demonstrate the existence of genuine issues of material fact by clear, unequivocal and convincing evidence." Phillips v. Toner, 133 P.3d 987, 996 (Wyo.2006). The record is completely devoid of such evidence here. Plaintiff has no more than theories and opinions that Earhart's plane, or parts of it, are depicted in the 2010 footage. Defendants disagree. As stated previously, expressions of opinion are not representations of fact and, therefore, cannot form the basis of a fraud claim. See Birt, 75 P.3d at 658; Davis v. Schiess, 417 P.2d 19, 21 (Wyo.1966) ("a statement which is but an expression of opinion is generally not held to be the representation of a fact" supporting fraud). There is no proof in the record that the objects Plaintiff and his experts observe in the 2010 NIKU VI footage are from Earhart's plane. If a genuine dispute of fact exists as to whether Defendants found the Earhart wreckage in 2010, there can be no finding Defendants falsely represented they had not found it (absent evidence Defendants indeed believed they had). The Court finds Plaintiff's claim lacks the requisite evidentiary support.
Defendants represented to Plaintiff they were planning another expedition in their continued quest to find the wreckage of Amelia Earhart's airplane. Upon reading about Defendants' efforts, Plaintiff contacted Defendants and expressed his interest in supporting the expedition with a monetary contribution. That's exactly what the parties then did. No false representations were made. The lost had not been found ... or maybe it had. Regardless, no rational trier of fact could find Defendants falsely represented they had not found Earhart's plane by embarking on another expedition in hopes of finding conclusive evidence to prove it. No matter how convinced or sincere Plaintiff is in his subjective belief and opinion that Amelia Earhart's airplane was or should have been discovered prior to the making of his donation, that belief and opinion is insufficient to create a genuine dispute of material fact. See Rice v. U.S., 166 F.3d 1088, 1092 (10th Cir.1999). The Court finds no genuine dispute of material fact and Defendants are entitled to judgment as a
ORDERED that Defendants' Motions for Summary Judgment as to Plaintiff's Claims for Negligent Misrepresentation and Fraud (ECF Nos. 46, 48) are GRANTED.
