Aaacon Auto Transport, Inc. v. Medlin, 76-2601

• Decision Date: 26 June 1978
• Docket Number: No. 76-2601,76-2601
• Citation: 575 F.2d 1102
• Parties: AAACON AUTO TRANSPORT, INC., Plaintiff-Appellant, v. Anson D. MEDLIN et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1102

575 F.2d 1102

57 A.L.R.Fed. 543

AAACON AUTO TRANSPORT, INC., Plaintiff-Appellant, v. Anson D. MEDLIN et al., Defendants-Appellees.

No. 76-2601.

United States Court of Appeals, Fifth Circuit.

June 26, 1978.

Michael G. Ames, Ralph J. Zola, New York City, for plaintiff-appellant.

Richard B. Austin, Miami, Fla., for Medlin et al.

Appeal from the United States District Court for the Southern District of Florida.

Before CLARK and GEE, Circuit Judges, and LYNNE, ^* District Judge.

GEE, Circuit Judge:

This is a private enforcement action brought under section 222(b)(2) of the Interstate Commerce Act, 49 U.S.C. § 322(b)(2) (1970), to enjoin the interstate transportation of automobiles and persons without a certificate of public convenience and necessity. Plaintiff, Aaacon Auto Transport, is a common carrier licensed by the ICC; it operates an automobile drive-away service, arranging for the transportation of cars through so-called "casual drivers," who wish to defray travel expenses by driving someone else's car to their destinations. The principal defendant is Anson Medlin, ¹ who buys and sells used cars in Miami, Florida. Medlin is accused of encroaching upon Aaacon's business by using casual drivers to ship automobiles for two used car dealerships, one in Virginia and the other in California. The court below granted defendants' motion for summary judgment, finding no violations of federal transportation law. Aaacon appeals.

A private action under section 222(b)(2) can be brought to enjoin only "clear and patent" violations of the Act. As the legislative history and case law make clear, this requirement is a standard of jurisdiction rather than a burden of proof. Conf.Rep. No. 810, 89th Cong., 1st Sess. 7, reprinted in (1965) U.S.Code Cong & Admin.News p. 2943; S.Rep. No. 387, 89th Cong., 1st Sess. 7 (1965); H.R.Rep. No. 253, 89th Cong., 1st Sess. 12, reprinted in (1965) U.S.Code Cong. & Admin.News pp. 2930-31; Tri-State Motor Transit Co. v. International Transport, Inc., 479 F.2d 171, 174-75 (8th Cir. 1973). See Merchants Fast Motor Lines, Inc. v. ICC, 528 F.2d 1042, 1045 (5th Cir. 1976); Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086, 1093 (5th Cir. 1973). To satisfy this jurisdictional requisite, a private complaint must allege on its face a violation that is "openly and obviously unlawful," S.Rep. No. 387, supra; H.R.Rep. No. 253, supra; and to do so it must set out the pertinent facts with a greater degree of specificity than customary notice pleading requires. Browning Freight Lines, Inc. v. Warberg Brothers Co., 393 F.Supp. 127, 129 (D.Idaho 1975). In the instant case, the trial court might well have dismissed Aaacon's complaint with leave to amend, for the complaint contains only the summary allegations that defendants have engaged in the interstate drive-away business and have acted as common carriers in transporting vehicles and persons across state lines. Given the posture of the case, however, we decline to remand on such a procedural point and consider the propriety of the trial court's grant of summary judgment. ²

Most of the facts presented to the trial court on the summary judgment motion are contained in Medlin's own deposition. Since Aaacon primarily argues on appeal that these facts establish several clear and patent violations of the Interstate Commerce Act, our main task is to review the correctness of the trial court's contrary conclusion of law. Nonetheless, Aaacon does argue the existence of a few issues of fact, and we shall deal with them in due course.

The first possible violation of the Interstate Commerce Act made out by the facts in this case concerns Medlin's employment with King Dodge, a used car company owned by the Medlin family and located in Portsmouth, Virginia. For a number of years Medlin has served as a buyer for this company, purchasing cars for its account in Miami and shipping them to Portsmouth by means of casual drivers, solicited through advertisements placed in the classified section of the Miami Herald. Since 1973 Medlin has shipped only five cars to Virginia, four of which were driven either by his son or wife and the remaining one by a casual driver. This last car was personally owned by Medlin and was to be delivered either to Medlin's house in Arlington ³ or to his brother's residence.

The above evidence provides no support for Aaacon's claim of a clear and patent violation of the Interstate Commerce Act. In moving his own car, Medlin was not required to obtain an ICC certificate because he was acting as an exempted "private carrier," ⁴ which section 203(a)(17) defines as one who "transports in interstate or foreign commerce by motor vehicle property of which such person is the owner . . . when such transportation is for the purpose of sale, lease, rent, or bailment, or in the furtherance of any commercial enterprise." 49 U.S.C. § 303(a)(17) (1970). As to Medlin's shipping of cars for King Dodge, we think private carriage is again a fair description of his activities, since Medlin is a part owner of King Dodge and was acting as its agent in purchasing and transporting the cars. We find support for this view in the ICC's failure in Studna v. United States, 225 F.Supp. 973 (W.D.Mo.1964) to challenge an automobile dealer's use of casual drivers to transport the cars that he sold.

The second possible violation in this case arises out of Medlin's association with Dan Katsaros, a used car dealer in Sacramento, who frequently purchases automobiles in Miami and has them driven to California by casual drivers. Medlin has known Katsaros for several years and on two occasions agreed to screen drivers for him. The first set of driver interviews took place in either April or May of 1974, and the second in January and February of 1975, during which time Medlin screened approximately forty applicants. These prospective drivers were solicited through advertisements placed by Medlin in the classified section of the Miami Herald. Medlin gave each of the applicants whom he selected an owner-driver agreement, which Katsaros had prepared. Each driver made a $50 security deposit, out of which Medlin was to pay advertising costs, any excess to be kept by Medlin for his trouble. The casual drivers were paid by Katsaros at Sacramento and were returned their deposits. ⁵

If we were to focus narrowly on the services that Medlin performed for Katsaros, we might agree that Aaacon has shown a clear and patent violation. In the earlier mentioned Studna case, the district court upheld the Commission's determination that the car dealer had to get a certificate in order to transport in interstate commerce cars belonging to other dealers. Moreover, a certificate was required in ICC v. AAA Con Drivers Exchange, Inc., 340 F.2d 820 (2d Cir.) (affirming ICC ruling, cert. denied, 381 U.S. 911, 85 S.Ct. 1533, 14 L.Ed.2d 433 (1965), in which case a business, the present plaintiff in fact, was held to have acted as a common carrier in offering to screen and obtain casual drivers for anyone desiring drive-away services. If, however, we view Medlin's activities in the context of Katsaros' business, a different picture emerges. Katsaros purchases many automobiles in Miami each year. To ship these cars he continually advertises for casual drivers in the Miami Herald; he has even drawn up a form contract containing the terms of the agreement between himself and the persons selected to drive his cars. It is clear, then, that Katsaros is the one engaged in transporting cars from Miami to Sacramento, while Medlin merely provided temporary assistance to a continuing operation. The facts of this case thus differ greatly from those in Studna and AAA Con, which involved persons who solicited customers in the drive-away market, who initiated the transportation activities, who set the terms of the owner-driver relationship, and who actively made the necessary transportation arrangements. By contrast, Medlin simply acted as Katsaros' agent, assisting a transportation operation that amounted to nothing more than an automobile dealer's private carriage of his own cars, wholly analogous to the previously discussed transportation activities of King Dodge.

It is also quite likely that Medlin's assistance to Katsaros comes within the exemption of section 203(b)(9) of the Act, which covers "the casual, occasional, or reciprocal transportation of passengers or property by motor vehicle in interstate or foreign commerce for compensation by any person not engaged in transportation by motor vehicle as a regular occupation or business." 49 U.S.C. § 303(b)(9) (1970). There is no evidence that Medlin was engaged in transportation as a regular occupation, and Medlin's screening of drivers for Katsaros was occasional. Moreover, according to Medlin's deposition, he helped Katsaros secure casual drivers as a favor for an old business acquaintance, a claim that is corroborated by the casual manner in which Medlin was paid.

On the facts already set forth, Aaacon makes the further argument that, even if Medlin was not required to obtain a certificate for transporting cars, he did violate the Interstate Commerce Act by engaging in the unlicensed transportation of passengers. If this argument were accepted, of course, there could be no private carriage by means of casual drivers because those drivers would always be considered passengers. Certainly the Studna case supports no such rule; in it the ICC conceded that the use of casual drivers to transport one's own automobiles constituted private carriage. Nor, on this point, does Aaacon receive support from ICC v. Davidson, 20 F.Supp. 832 (D.Neb.1937), a case decided before the widespread use of casual drivers, in which a used car dealer was held to have violated the Act by the unlicensed transportation of additional passengers in his own cars, which were themselves driven by casual drivers. The car dealer in that case specifically solicited passengers for...