Louisville & NR Co. v. United States

• Decision Date: 30 July 1952
• Docket Number: Civ. A. No. 2045.
• Citation: 106 F. Supp. 999
• Parties: LOUISVILLE & N. R. CO. v. UNITED STATES.
• Court: U.S. District Court — Western District of Kentucky

106 F. Supp. 999

LOUISVILLE & N. R. CO. v. UNITED STATES.

Civ. A. No. 2045.

United States District Court W. D. Kentucky.

July 30, 1952.

H. T. Lively, of Louisville, Ky., for Louisville & N. R. Co.

Morton Liftin, Washington, D. C., Charles F. Wood, Asst. U. S. Atty., Louisville, Ky., for the United States.

MARTIN, Circuit Judge (sitting by designation).

Opinion

The defendant, United States of America, has filed and submitted on brief and argument a motion to dismiss this action for lack of jurisdiction, for the alleged reasons that (1) the amount sued for exceeds $10,000, and (2) the Interstate Commerce Commission has jurisdiction in the cause, which was brought in the United States District Court under the asserted authority of the Tucker Act, 28 U.S.C. §§ 1346, 2401(a), and 2402, approved June 25, 1948, effective September 1, 1948, and under Rule 18(a), Federal Rules of Civil Procedure, 28 U.S.C.

Though the complaint was filed by the plaintiff on January 10, 1951, the motion to dismiss was not filed until July 14, 1952, (ten days after all the evidence in the case had been received in a two days' trial), and was argued simultaneously with the oral arguments upon the merits which were heard by special setting for a full day upon the last-mentioned date. The delay in presentation of the motion to dismiss is no bar to its consideration, for, as is well known, a question of jurisdiction may be raised at any time, even in the Supreme Court sua sponte. But such delay does evince less confidence, in the mind of the movant, in the validity of the motion than if it had been promptly filed. Nevertheless, counsel for the Government is commended for directing the attention of the trial judge to the question of jurisdiction, which is, at least, a debatable issue in this case.

(1) In support of his first ground, the Government's astute attorney points to Sutcliffe Storage & Warehouse Co. v. United States, 1 Cir., 162 F.2d 849, 852, in which the Court of Appeals held that the District Court lacked jurisdiction in an action under the Tucker Act where the plaintiff had joined four actions, each for less than $10,000, in the same suit; the total amount sued for being in excess of $10,000. Each of the causes of action was for compensation for the use of the same real estate over different time periods. The Court said: "Ordinarily there is no reason why a plaintiff cannot make all his claims on a running account at one time without piecemeal presentation. The fact that here involved are questions of federal jurisdiction is not a sufficient basis for departing from these usual rules as to the splitting of legal claims. The congressional policy is that all large claims must be presented in the one court in Washington, and in every practical sense there is here presented such a claim. Even though the plaintiff's own convenience might be served by adjudication in its vicinage, the congressional policy seems clearly opposed.

"Nor can we see basis for varying the rule on the grounds urged by the plaintiff. There is no reason why the doctrine against splitting claims, which is thus only one application of the general doctrine of res judicata, should not apply to claims against the Government; and the cases so hold. (Citing cases). The case of Oliver v. United States, 9 Cir., 149 F.2d 727, relied on by the plaintiff, asserts no doctrine to the contrary. There the court held merely that in the case of separate and distinct claims for income tax payments due under differing years the fact of joinder in one action did not violate the jurisdictional restriction against claims in excess of $10,000 each. At least under the new rules, allowing joinder of widely diverse claims, the fact that such claims appear in the same civil action and that their total may exceed $10,000 does not change their separate identity or make them a single `cause.' The court definitely assumed the existence of a separate claim for federal income taxes for each year involved. Compare also Industrial Commissioner of the State of New York v. Schneider, 2 Cir., 162 F.2d 847; United States v. Sullivan, 2 Cir., 98 F.2d 79. Thus the court started with the basic premise which is the subject of dispute in our case, namely, whether there is more than a single claim involved." 162 F.2d 852.

In the Oliver case, supra, the Court of Appeals for the Ninth Circuit reversed the order of the District Court dismissing the claims for want of jurisdiction, where the action was one for refund involving tax claims for separate years, in no one of which the claim for refund exceeded $10,000 but where the aggregate of the claims for the several tax years involved exceeded $10,000. In the case at bar, the amended complaint seeks recovery on 74 separate and distinct claims for freight alleged to be due on separate and independent shipments, each separate claim being for an amount less than $10,000 although the aggregate of the claims involves in the neighborhood of a quarter of a million dollars.

Rule 18(a) of the Federal Rules of Civil Procedure permits a suitor to join, either as independent or as alternate claims, as many claims, either legal or equitable, as he may have against an opposite party. The Federal Rules of Civil Procedure have been held applicable to an action brought under the Tucker Act to recover freight charges payable by the terms of a charter party. Eastern Transportation Co. v. United States of America, 2 Cir., 159 F.2d 349.

Inasmuch as none of the 74 separate claims of the plaintiff in the case at bar involves as much as $10,000, we think the District Court has jurisdiction under the Tucker Act to entertain all the claims, although they are consolidated in one suit. Certainly, it would have been burdensome upon the Court had the plaintiff elected to bring 74 separate suits, one on each claim, which it would have had the right to do. The District Court's jurisdiction should not be defeated as a result of the plaintiff's pursuit of the wise, common-sense course adopted by it. Rule 18(a) would seem to justify the course pursued by the plaintiff in the instant case; and the Tucker Act is not considered to be preventive, inasmuch as no one claim in suit involves as much as $10.000.

(2) The second ground of the motion to dismiss is based upon the proposition that this District Court is without jurisdiction over the subject matter of the litigation until the Interstate Commerce Commission has passed upon the case, because the controversy is alleged to raise a question requiring the exercise of administrative expertness in determining whether the railroads are common carriers of products composed partly of silver. The Government cites the following cases in support of its contention: Texas & Pacific Ry. Co. v. American Tie & Timber Co., 234 U.S. 138, 34 S.Ct. 885, 58 L.Ed. 1255; Great Northern Railway Co. v. Merchants Elevator Co., 259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 943; Baltimore & Ohio R. Co. v. U. S. ex rel. Pitcairn Coal Co., 215 U.S. 481, 30 S.Ct. 164, 54 L.Ed. 292; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 33 S. Ct. 916, 57 L.Ed. 1472; Pennsylvania R. Co. v. International Coal Mining Co., 230 U.S. 184, 33 S.Ct. 893, 57 L.Ed. 1446; Director General v. Viscose Co., 254 U.S. 498, 41 S. Ct. 151, 65 L.Ed. 372; Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 57 L.Ed. 553; St Louis-Brownsville & Mexico Ry. Co. v. Brownsville Navigation District, 304 U.S. 295, 58 S.Ct. 868, 82 L.Ed. 1357; Eastern-Central Motor Carriers Ass'n v. United States, 321 U.S. 194, 64 S.Ct. 499, 88 L.Ed. 668; General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 60 S.Ct. 325, 84 L.Ed. 361; Norge Corporation v. Long Island R. Co., 2 Cir., 77 F.2d 312; Armour & Co. v. Alton R. Co., 7 Cir., 111 F.2d 913; Kelly v. Union Stock Yards, 7 Cir., 190 F.2d 860.

The strongest case cited by the Government in support of its proposition is the first case on the foregoing list. There, the Supreme Court held — thirty-eight years ago — that whether crossties are, or are not, lumber and therefore within the tariffs filed for the latter is a question concerning which there is a great diversity of opinion among experts upon the subject and, therefore, the question should be determined in the first instance by the Interstate Commerce Commission. It was held that the trial court should have sustained the motion to dismiss for want of jurisdiction. Standing alone this authority might well be conclusive in defendant's favor on the question of jurisdiction raised by the Government attorney.

But in a later opinion of the Supreme Court — and yet an old one, promulgated in 1922 — Mr. Justice Brandeis, writing for the unanimous Supreme Court in Great Northern Ry. Co. v. Merchants' Elevator Co., 259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 943, explained and differentiated the American Tie & Timber Co. case for the reason that, in the case before it, as was not the situation in the Tie & Timber Co. case, there were no evidential or ultimate facts in controversy and there was, therefore, no occasion for the exercise of administrative discretion, the task to be performed by the court being merely to determine the meaning of words in a tariff used in their ordinary sense and to apply that meaning to undisputed facts. No preliminary resort to the Interstate Commerce Commission was therefore necessary. At page 295 of 259 U.S., at page 479 of 42 S.Ct., in a characteristically comprehensive footnote, Mr. Justice Brandeis cited a long list of prior decisions of the Supreme Court, as well as decisions of the lower federal courts and the state courts, in which the jurisdiction of a trial court was sustained without preliminary resort to the Interstate Commerce Commission and wherein the question involved was solely one of construction of a tariff, or otherwise a question of law and not of administrative discretion. He cited also prior decisions of the Supreme...