Berbiglia, Inc. v. Cheney
| Decision Date | 30 December 1965 |
| Docket Number | No. 15237-D.,15237-D. |
| Citation | 249 F. Supp. 258 |
| Parties | BERBIGLIA, INC., a corporation, Plaintiff, v. J. R. CHENEY, Director of State of Kansas Alcoholic Beverage Control, Roy Dyer, Chief Enforcement Officer, Henry M. Levi, Frank J. Muraski, and all unknown officers, agents, servants and employees of State of Kansas Alcoholic Beverage Control, Each Here named John Doe, Defendants, Denzil B. McPherson, Intervenor. |
| Court | U.S. District Court — Western District of Missouri |
COPYRIGHT MATERIAL OMITTED
George L. Gisler, Kansas City, Mo., for plaintiff.
William M. Ferguson, Atty. Gen., of Kansas, Topeka, Kan., Gordon, Adams, Niewald & Risjord, Kansas City, Mo., for defendants.
William F. Milligan, Kansas City, Mo., and Payne, Jones, Anderson & Payne, Olathe, Kan., for intervenor.
Plaintiff, a Missouri corporation, instituted this suit in the Circuit Court of Jackson County, Missouri, against the defendants, all of whom are residents and citizens of the State of Kansas, and removed to this court by said non-resident defendants.
In its Amended Complaint, plaintiff alleges that it has been engaged in the sale of packaged liquor in Kansas City, Missouri, over a period of 25 years and has 14 stores located in various areas throughout said city.
From the addresses given in the Complaint it is clear that a number of said stores are located within a comparatively short distance from the line dividing the states of Missouri and Kansas and the populous areas adjacent thereto.
Plaintiff alleges that it has developed a large trade in its merchandise not only among Missouri residents, but among residents of the State of Kansas as a result of its substantially lower prices and greater variety.
The defendant J. R. Cheney is the Director of the Alcoholic Beverage Control with offices in Topeka, Kansas; the defendant Roy Dyer is Chief Enforcement Officer thereof, and the defendants Levi, Muraski and John Doe are agents and employees of the Director of the Alcoholic Beverage Control.
Plaintiff further alleges that defendants had entered into a conspiracy to damage the business enjoyed by the plaintiff, and in furtherance of the conspiracy, the defendants Levi, Muraski and Doe came into the State of Missouri every day and stationed themselves in their automobiles at locations at or near one or more of plaintiff's stores, with the purpose to and did harass, intimidate and frighten plaintiff's customers who are residents of the State of Kansas, by following said customers from plaintiff's stores in their automobiles over the streets and highways of the State of Missouri into the State of Kansas, where the defendants then and there unlawfully and illegally searched the automobiles of such customers, seized the property of plaintiff's customers and arrested and forced them to undergo humiliation and expense of trial in a justice of the peace or magistrate court in the State of Kansas, under the wholly illegal, unlawful and unconstitutional claims that persons entering the State of Kansas with liquor in their possession for their own personal use purchased in places other than the State of Kansas, must have revenue stamps of the State of Kansas stamped on the containers of such liquor at the time of such entry.
It is further alleged that such persons were offered no opportunity to pay the tax or to purchase stamps; that neither the Kansas State Liquor Control Act nor the regulations issued thereunder made any provision for any means whereby any person other than a manufacturer or distributor could purchase or pay said tax, and that the agents of the Kansas Alcoholic Beverage Control are instructed to refuse to accept or permit payment of the tax by persons purchasing liquor outside the State of Kansas, and that persons arrested by the said agents were deprived of their liberty, and upon confiscation of their liquor, are dispossessed of their property, without due process of law, in violation of the 14th Amendment to the Constitution of the United States.
It is further alleged that while spying on persons entering plaintiff's stores in Missouri, the defendant officers used their two-way radios to communicate with other agents in Missouri or Kansas, for the purpose of obtaining their assistance in apprehending and searching such persons as soon as they crossed the state line into Kansas.
It is further alleged that the acts of the defendants were undertaken only on complaint of retail liquor dealers in the State of Kansas, and constitute a conspiracy to coerce and intimidate residents of Kansas so that said residents will not trade or conduct business with retail stores in Missouri, but will be forced to purchase only from Kansas retailers.
It is further alleged that the defendants, in surreptitiously secreting themselves in positions in automobiles near the retail stores operated by plaintiff and in exercising police powers through surveillance and spying on customers of plaintiff who are or were residents of Kansas, and who were lawfully making purchases of plaintiff's merchandise, were wrongful, malicious, unlawful, illegal and in violation of the constitutional rights of plaintiff and of plaintiff's customers in that:
On December 14, 1964, Denzil B. McPherson, was granted leave to intervene as a plaintiff. He alleges that as a result of the lawful purchase of liquor in the State of Missouri for his own personal consumption at his residence in Kansas, he was followed by agents of the Kansas Alcoholic Beverage Control into the State of Kansas, where he was arrested by the agents of said Alcoholic Beverage Control, charged with and convicted of possessing alcoholic liquor which did not bear the Kansas Revenue stamp or mark.
He alleges that the action of the authorities was without due process of law and in violation of his constitutional rights, and asks that the defendants be enjoined from any further action on their part which would deprive the intervenor and others similarly situated of their liberty without due process of law and in violation of the orders of this court.
McPherson was permitted to intervene on the ground that his claim presented a question of law and fact common to the pending litigation. However, in view of the fact that the said intervenor is a resident of Kansas, to permit him to intervene as a plaintiff would destroy the jurisdiction of this court. The action would no longer be wholly between residents of different states and this court would be without jurisdiction.
The order of this court permitting the intervenor to intervene as a plaintiff is therefore hereby set aside and his petition is hereby dismissed. See 4 Moore's Federal Practice 24.18(3), p. 139.
Defendants have filed Motion to Dismiss alleging that plaintiff's complaint fails to state a cause of action. The parties have filed extensive briefs in support of and in opposition to said motion; depositions have been taken of the defendants; all of which are before this court for consideration in connection with the motion. For the purpose of ruling on this motion, all of the allegations of the complaint will be accepted as true.
§ 41-501(2) (a) of the Kansas Liquor Control Act provides:
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Babcock & Wilcox Company v. Parsons Corporation
...be supported by independent jurisdictional grounds. Hunt Tool Co. v. Moore, Inc., 212 F.2d 685 (5th Cir. 1954); Berbiglia, Inc. v. Cheney, 249 F.Supp. 258 (W.D. Mo. 1965); Olivieri v. Adams, 280 F.Supp. 428 (E.D. Pa. 1968). Wright, Federal Courts § 75, p. 331 (2d ed. 1970); 3B Moore's Feder......
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McGee v. Hester
...724 F.2d at 92. We distinguished this case from an earlier district court case dealing with out-of-state surveillance, Berbiglia v. Cheney, 249 F.Supp. 258 (W.D.Mo.1965), because in Bergilia there was no contact with customers nor any attempt to deter them from making purchases. The factual......
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CELLARMASTER WINES OF MISSOURI v. Kennedy
...Western District of Missouri that a similarly situated plaintiff had no standing to challenge this same Act. In Berbiglia, Inc. v. Cheney, 249 F.Supp. 258, 262 (W.D. Mo.1965), that court commented as First, we think that the plaintiff has no standing to raise the question of the constitutio......
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McGee v. Hester, 82-2326
...we feel that the appellees' conduct must be intentional and substantial if McGee is to succeed on the merits. In Berbiglia v. Cheney, 249 F.Supp. 258, 266 (W.D.Mo.1965), a case which also dealt with out-of-state surveillance by liquor agents, the court specifically stated that liability cou......