ASPEN LIMOUSINE SERV. v. COLORADO MOUNTAIN EXPRESS

• Decision Date: 19 March 1996
• Docket Number: Civil Action No. 95-K-1345.
• Citation: 919 F. Supp. 371
• Parties: ASPEN LIMOUSINE SERVICE, INC., d/b/a Vans to Vail, Inc., Plaintiff, v. COLORADO MOUNTAIN EXPRESS, INC., Defendant.
• Court: U.S. District Court — District of Colorado

919 F. Supp. 371

ASPEN LIMOUSINE SERVICE, INC., d/b/a Vans to Vail, Inc., Plaintiff, v. COLORADO MOUNTAIN EXPRESS, INC., Defendant.

Civil Action No. 95-K-1345.

United States District Court, D. Colorado.

March 19, 1996.

Mark W. Williams, Berryhill, Cage & North, P.C., Denver, CO, for Plaintiff.

Thomas J. Burke, Jr., David E. Driggers, Jones & Keller, P.C., Denver, CO, for Defendant.

MEMORANDUM OPINION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

KANE, Senior District Judge.

Aspen Limousine Service, Inc. d/b/a Vans to Vail, Inc. ("ALS") brought this private enforcement action against Colorado Mountain Express, Inc. ("CME") under the "self-help" provision of the Interstate Commerce Act, 49 U.S.C. § 11708. ALS alleges CME violated 49 U.S.C. § 10922(c)(2)(J), as a result of CME's operations transporting passengers wholly within the state of Colorado.

Both parties have moved for summary judgment. CME seeks dismissal on the ground that ALS cannot show that CME engaged in a "clear violation" of the applicable statutes. In addition, CME asks for an award of attorney fees and costs pursuant to 49 U.S.C. § 11708(c). ALS seeks to enjoin CME permanently from running intrastate routes in Colorado, alleging that CME operations "clearly violate" the applicable statutes because 1) CME lacks actual, regularly scheduled interstate routes and 2) its vehicles do not cross state lines. Generally, ALS' argument focuses on § 10922(c)(2)(B), which authorizes the Interstate Commerce Commission ("ICC") to issue certificates approving intrastate motor carrier services conducted independent of interstate services.¹ In particular, ALS asserts enactment of § 10922(c)(2)(J) makes necessary a new analysis to determine what constitutes interstate services.

I. Background

ALS and CME operate competing services shuttling passengers between Denver International Airport and various mountain locations. CME holds three ICC Certificates of Public Convenience and Necessity that authorize the regular route transportation of passengers, both in interstate and intrastate commerce. CME's intrastate authority under each of the certificates is conditioned on the requirement that the carrier provide "regularly scheduled interstate transportation service on the route."

On June 13, 1995, ALS filed a complaint and motion for a preliminary injunction to enjoin CME from transporting passengers between points in Colorado.² ALS argued CME lacked bona fide interstate operations and had abandoned its ICC certificates by failing to operate scheduled services from certain locations. ALS requested me to enjoin the unlawful use of the certificates, enjoin all operations under the certificates, and revoke CME's Certificates of Public Convenience and Necessity.

I denied the preliminary injunction for two reasons, each stemming from ALS' inability to demonstrate that CME "clearly violated" the statute. First, I lacked jurisdiction: pursuant to 49 U.S.C. § 11708(a) jurisdiction obtains only upon showing a "clear violation" of 49 U.S.C. § 10922. Second, by failing to establish an "openly and obviously unlawful" violation, ALS did not meet the settled criteria for a preliminary injunction. The moving party must, among other requirements, show it has a substantial likelihood of succeeding on the merits. I concluded CME's involvement in the intrastate portion of an interstate trip, pursuant to through ticketing or common arrangements between CME and at least one airline, might be sufficient to satisfy the terms of CME's ICC certificates. Aspen Limousine Serv., Inc. d/b/a Vans to Vail v. Colorado Mountain Express, 891 F.Supp. 1450, 1458 (1995).

II. Statutory Framework

The Interstate Commerce Act contains the following "self-help" provision, under which ALS brings this action:

(a) If a person provides transportation by motor vehicle ... in a clear violation of section 10922 of this title, a person injured by the transportation ... may bring a civil action to enforce any such section.

49 U.S.C. § 11708(a).

Because the "clear violation" criterion is a burden of jurisdiction rather than of proof, it is a threshold requirement. Aaacon Auto Transp., Inc. v. Medlin, 575 F.2d 1102, 1104 (5th Cir.1978); reh'g denied, 580 F.2d 1052 (5th Cir.1978); see also 1965 U.S.C.C.A.N., Vol. 2 at 2931; Quality Exch., Inc. v. Universal Air Freight, Inc., 574 F.Supp. 622, 624 (W.D.N.C.1983).

The ICC has power under 49 U.S.C. § 10922(c)(2)(B) to license motor passenger carriers to conduct regular-route operations, in intrastate commerce, over the same routes used in interstate commerce. 49 U.S.C. § 10922(d)(2)(A)-(I). This pre-emptive power to grant intrastate authority is conditioned upon a use limitation requiring the carrier to conduct regularly scheduled, interstate transportation service on the same route used for the intrastate transportation. 49 U.S.C. § 10922(c)(2)(J). The ICC, as a result, cannot authorize intrastate services that function independently of interstate operations: such services must be authorized by the state public utilities commission.

In clarifying the boundaries of its intrastate authority, the ICC detailed the six components of an intrastate route that fall under ICC jurisdiction:

It is not enough for the carrier merely to offer interstate transportation on the route over which it conducts intrastate service. The interstate service must be active. Moreover, the intrastate service may not operate independently of the interstate service, but instead must be conducted as part of the existing interstate services.... Further, the required interstate transportation must be an actual regularly scheduled service, it must be bona fide and involve service in more than one State, and it must be substantial. However, the interstate and intrastate services need not be identical or provided in the same vehicle.

Funbus Systems, Inc., MC-C-10917, MC-153325 (Sub-No. 2), MC-C-10943 (Aug. 11, 1988) (footnote omitted). Thus, if an ICC-authorized intrastate route fails to meet the six elements, the ICC lacks the power to authorize the route and the carrier illegally operates outside its ICC certificates.

III. Applicable Standard for Motions

Absent a genuine issue regarding any material fact, summary judgment is appropriate. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986), cert. denied, 484 U.S. 1066, 108 S.Ct. 1028, 98 L.Ed.2d 992 (1988). Summary judgment is not appropriate when different inferences may be properly drawn. Fed.R.Civ.P. 56(c); Security Nat'l Bank v. Belleville Livestock Comm'n Co., 619 F.2d 840, 847 (10th Cir.1980). I must ask whether the evidence shows a "sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986).

The governing substantive law determines whether a factual dispute is material. Fed. R.Civ.P. 56(c); Liberty Lobby, 477 U.S. at 249, 106 S.Ct. at 2510. A material fact is genuine when a reasonable jury could return a verdict for the nonmoving party. Fed. R.Civ.P. 56(c); Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. In a light that favors the nonmoving party, the court must make reasonable inferences from the factual record. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 528 (10th Cir.1994).

To succeed on a motion for summary judgment, the moving party must show beyond a reasonable doubt that it is entitled to summary judgment. Baker v. Board of Regents, 991 F.2d 628, 630 (10th Cir.1993). A scintilla of evidence supporting the motion is insufficient — if the evidence is merely colorable or is not significantly probative, the motion may be denied. Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. at 2511-12.

The nonmoving party nevertheless may avoid summary judgment by showing specific facts, as to those elements for which the nonmoving party carries the burden of proof, that demonstrate a genuine issue for trial. Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1075, 127 L.Ed.2d 392 (1994). Such specific facts must go beyond the mere allegations and denials of the pleading. Liberty Lobby, 477 U.S. at 247, 106 S.Ct. at 2509.

These standards do not vary when ruling on cross-motions for summary judgment. Suburban Trust and Sav. Bank v. University of Del., 910 F.Supp. 1009, 1013 (D.Del. 1995). Each must be considered independently. Id.

IV. Merits

Both ALS and CME seek summary judgment. When parties pursue cross-motions, as here, each side contends no issues of material fact exist. International Bhd. of Elec. Workers, Local 1522 v. AT & T Microelec., Inc., 909 F.Supp. 294 (E.D.Pa.1995). ALS and CME agree the facts may not be disputed. (Pl.'s Br.Resp.Mot.Summ.J. & Supp.Cross-Mot. Summ.J. at 10; Def.'s Br. Supp.Mot.Summ.J. at 1.)

ALS raises first an issue of law, arguing, rather than making an initial determination regarding whether CME operates in "clear violation" of the statute, I must determine initially if CME operates interstate. (Pl.'s Resp. & Cross-Mot.Summ.J. at 2.) ALS further avers the plain language of 49 U.S.C. § 10922(d)(2)(J) requires that CME, under ICC-granted authority to conduct intrastate operations, actually provide scheduled transportation of passengers over a route that runs between two states (i.e. that the route either begin or end in another state such as Kansas or Utah). (Id. at 5.)

I previously denied ALS' motion for a preliminary injunction. I determined ALS did not establish CME's "clear violation" of 49 U.S.C. § 10922 and ALS failed to demonstrate its entitlement to injunctive relief pursuant to Federal Rules of Civil Procedure, Rule 65. Aspen Limousine Serv., Inc., 891 F.Supp. at 1458.

While the authorities cited by ALS create some question as to whether CME has acted in violation of its ICC certificates, such violation, if it

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