Brooks v. Flagg Brothers, Inc.
Decision Date | 07 July 1975 |
Docket Number | No. 73 Civ. 4050 (HFW).,73 Civ. 4050 (HFW). |
Parties | Shirley Herriott BROOKS and Gloria Jones, Individually and on behalf of all others similarly situated, Plaintiffs, v. FLAGG BROTHERS, INC., Individually and as representative of a class of all others similarly situated, et al., Defendants. |
Court | U.S. District Court — Southern District of New York |
The Legal Aid Society of Westchester County, by Martin A. Schwartz, White Plains, N. Y., for plaintiffs.
Louis J. Lefkowitz, Atty. Gen., pro se by A. Seth Greenwald, Asst. Atty. Gen., of counsel.
Brodsky, Linett & Altman, New York City by Alvin Altman, New York City, of counsel, for Flagg Brothers.
Werner & Weiss, New York City by Norman Weiss, New York City, of counsel, for intervenor American Warehouse.
Jaffe, Shaw & Rosenberg, New York City, by Arnold Shaw, New York City, of counsel, for Warehouseman Ass'n and Cold Storage Ass'n.
Plaintiffs Brooks and Jones are residents of Westchester County whose property was stored by defendant Flagg Brothers, Inc. following their evictions by the Mount Vernon Marshal in 1973.1 On their own behalf and that of a proposed class of "persons whose property is stored in a warehouse located in the State of New York and whose property has been encumbered by a lien pursuant to New York Uniform Commercial Code § 209 and subject to sale pursuant to New York Uniform Commercial Code § 210 because of warehouse fees allegedly due,"2 they challenge the constitutionality of those two statutes pursuant to 42 U.S.C. § 1983.3 They allege deprivation of due process guaranteed by the Fourteenth Amendment of the United States Constitution, and seek declaratory and injunctive relief as well as money damages. Their proposed class of defendants includes "all . . . warehousemen doing business in the State of New York and who impose liens and subject goods to sale pursuant to New York Uniform Commercial Code §§ 209, 210 without affording the owner of the goods a prior opportunity to be heard."4
Section 7-209 grants a warehouseman a lien on goods stored, and/or transported, for fees allegedly owed by the customer.5 Section 7-210 gives a warehouseman the authority to enforce such a lien by public or private sale upon proper notification to the customer and adherence to commercially reasonable sale procedures.6
Plaintiffs have moved for class action certification of both a plaintiff and a defendant class, and for summary judgment on the question of the statutes' constitutionality. Defendants have cross-moved to dismiss for failure to state a cause of action and for lack of subject matter jurisdiction on the ground that the challenged conduct does not constitute state action within the meaning of the Fourteenth Amendment, and was not performed "under color of" state law within the meaning of § 1983.7 Upon careful consideration of the facts in this case and the following analysis of relevant Second Circuit and Supreme Court decisions, the court finds that defendants are indeed correct. Plaintiffs' action is consequently dismissed for lack of jurisdiction.
Plaintiffs have advanced four arguments in support of their assertion that state action is present in the challenged activity. Their first argument is that the Second Circuit's decision in Hernandez v. European Auto Collision, Inc., 487 F.2d 378 (2d Cir. 1973) compels a finding of state action in this case. State action, however, was never discussed in that opinion. In Hernandez plaintiff challenged the garageman's lien provisions of the New York Lien Law which allow a garageman to detain an automobile until alleged storage and repair charges are paid, and to foreclose his lien by selling the auto upon proper notification to the bailor.8 The district court judge dismissed the complaint, noting:
Id. at 382-83. Neither the court's opinion nor the concurring opinion10 in Hernandez mentioned or discussed the issue of state action.
Plaintiffs argue that a "finding" of state action is implicit in both Hernandez opinions. However, because District Judge Costantino had merely assumed the presence of state action in order to consider and dismiss the Hernandez constitutional claim on its merits, the state action issue was not properly before the Court of Appeals; the sole issue on appeal was whether, assuming state action, plaintiff had stated a claim. Furthermore, even if a finding of state action were implicit in the Second Circuit's decision, this court would not be bound by such a sub silentio ruling. United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 38, 73 S.Ct. 67, 97 L.Ed. 54 (1952). This court therefore concludes that the Second Circuit's decision in Hernandez is not dispositive of the state action issue in this case.
Plaintiffs, in their remaining argument, would have the court find state action because:
The question of whether state action exists usually arises with respect to private conduct upon an allegation that the conduct is "so entwined with governmental policies or so impregnated with a governmental character as to become subject to the . . . limitations placed upon state action." Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 488, 15 L.Ed.2d 373 (1966). However, as the Supreme Court noted in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1972). "while the principle is easily stated, the question of whether particular discriminatory conduct is private, on the one hand, or amounts to `state action,' on the other hand, frequently admits of no easy answer." The answers, particularly in recent months, have varied from circuit to circuit, and even within the Second Circuit have produced division and disagreement among panels.11
In Jackson v. Statler Foundation, 496 F.2d 623 (2d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975), Judge Smith enumerated five factors culled from a review of state action case law which the court found to be "particularly important to a determination of `state action'":12
Id. at 629-34 (emphasis added). Plaintiffs' second argument for state action, that in enforcing his own lien a warehouseman is performing a public function, finds support in Judge Smith's list above. Their rationale is that at common law a warehouseman could enforce his lien only by obtaining a court judgment and having the sheriff execute on it; thus, by allowing a warehouseman to enforce his lien without resort to the courts and the sheriff, § 7-210 enables him to perform an "inherently" public function. Plaintiffs rely for this theory upon Blye v. Globe-Wernicke Realty Co., 33 N.Y.2d 15, 20, 347 N.Y.S.2d 170, 175, 300 N.E.2d 710, 715 (1973) in which the New York Court of Appeals found that an innkeeper's execution of his own lien amounts to the exercise of a public function: "The execution of a lien, be it a conventional security interest, (cite), a writ of attachment (cite), or a judgment lien (cite), traditionally has been the function of the Sheriff."
The liens referred to by the Blye court, however, all involve satisfaction of a debt having no particular relation to the goods executed upon. While such liens historically belong to the sheriff for execution, execution on goods lawfully in a warehouseman's possession, to satisfy charges arising out of such possession, is not traditionally a function of the sheriff; traditionally the sheriff was called upon for execution on goods only after the warehouseman had obtained a judgment lien.13 Melara v. Kennedy, 74 Civ. 1535, N.D.Cal., August 21, 1974. Accord, ...
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