132 F.Supp. 798 (S.D.N.Y. 1955), Fitzgerald v. Pan Am World Airways

Citation:132 F.Supp. 798
Party Name:Ella FITZGERALD, John Lewis, Georgiana Henry and Norman Granz, Plaintiffs, v. PAN AMERICAN WORLD AIRWAYS, Inc., Defendant.
Case Date:July 08, 1955
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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Page 798

132 F.Supp. 798 (S.D.N.Y. 1955)

Ella FITZGERALD, John Lewis, Georgiana Henry and Norman Granz, Plaintiffs,

v.

PAN AMERICAN WORLD AIRWAYS, Inc., Defendant.

United States District Court, S.D. New York

July 8, 1955

Page 799

Bergerman & Hourwich, New York City, for plaintiffs.

Haight, Deming, Gardner, Poor & Havens, New York City, for defendant.

BICKS, District Judge.

Plaintiffs claim to have sustained damages because they were denied permission to travel as passengers on one of defendant's airplanes on a flight from Honolulu to Sidney, Australia, and bring this suit to obtain redress. Three of the plaintiffs had flown from San Francisco to Honolulu on said plane and all of them held reservations through to Sidney.

The complaint alleges 1 that defendant's conduct was violative of Section 404(b) of the Civil Aeronautics Act of 1938, 49 U.S.C.A. § 484(b), in that it was 'willful and malicious and was motivated by prejudice against the plaintiffs, Fitzgerald, Lewis and Henry because of their race and color, and * * * subjected plaintiffs to unjust discrimination and undue and unreasonable prejudice and disadvantage', and that the action arises under said Act. It alleges also that 'The said conduct of the defendant constituted a breach of its duty as a common carrier and an air carrier to the plaintiffs and a breach of the contracts for air transportation respectively held by the plaintiffs * * *.'

Defendant has moved to dismiss the complaint. While not so stated in the moving papers, the grounds of the application are that whatever cause of action may be stated in the complaint, it is not one upon which relief can be granted under the Civil Aeronautics Act of 1938 and, diversity of citizenship being absent, this Court does not have jurisdiction of the suit. The grounds of the motion have been restated by the Court with a view to avoiding the confusion between the question of jurisdiction and the merits of the suit which is reflected in the briefs. A complaint which sets forth a substantial claim under a federal statute presents a case within the jurisdiction

Page 800

of a federal court, even though it fails to state a cause of action good on the merits. 2 Whether the complaint states a claim upon which relief can be granted is a question which must be decided after, and not before the Court has assumed jurisdiction over the controversy.

Our query in this case is twofold: (1) Was it the pleader's purpose to make violation of the Civil Aeronautics Act of 1938 the basis of the suit? An affirmative answer would take us to the second query, i.e., whether the complaint states a claim upon which relief can be granted under the Civil Aeronautics Act.

Addressing ourselves to the first query, while the allegations with respect to the defendant's breach of contract and its duties as a common air carrier would be appropriate in a suit founded upon the common law, and the complaint would state a claim upon which relief could be granted under the common law if all reference to the Civil Aeronautics Act were deleted therefrom, the liberal rules for pleading permit of construing the complaint as claiming a right under the...

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