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Mellon v. The International Group for Historic Aircraft Recovery

United States District Court, D. Wyoming

July 25, 2014

TIMOTHY MELLON, a Wyoming resident, Plaintiff,
v.
THE INTERNATIONAL GROUP FOR HISTORIC AIRCRAFT RECOVERY, a Delaware non-profit corporation, and RICHARD E. GILLESPIE, Defendants.

ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT

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:

BACKGROUND

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. ΒΆ 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 ROY 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, [1] "very little man-made material was identified and none was immediately identifiable as airplane debris." (Niku VI Expedition Report at 8.) Nevertheless, TIGHAR believed the information collected during the expedition supported the hypothesis that the wreckage is located in the area. Id at 9. The Discovery Channel used the video segment showing the rope and "wire" in its documentary about TIGHAR's quest to solve the "Earhart Mystery" which was later also available on YouTube.[2] (Gillespie Dep. 123:10-44; 200:7-24.)

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:

Object 11: Probably whip coral
Object 4: Possibly a broken shell
Object 9: This image is too indistinct to support interpretation.
Object 10: Rope with a splice.
Object 5: Possibly a rod. Another possibility is that it could be a taught cable.
Object 3: Insufficient context to support ...

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