BROWN BROTHERS EQUIPMENT CO. v. State of Michigan

• Decision Date: 07 April 1967
• Docket Number: Civ. A. No. 5567.
• Citation: 266 F. Supp. 506
• Parties: BROWN BROTHERS EQUIPMENT COMPANY, a Michigan corporation, Plaintiff, v. STATE OF MICHIGAN and Michigan State Highway Commission, Defendants.
• Court: U.S. District Court — Western District of Michigan

266 F. Supp. 506

BROWN BROTHERS EQUIPMENT COMPANY, a Michigan corporation, Plaintiff, v. STATE OF MICHIGAN and Michigan State Highway Commission, Defendants.

Civ. A. No. 5567.

United States District Court W. D. Michigan, S. D.

April 7, 1967.

Glassen, Parr, Rhead & McLean, Lansing, Mich., Roland F. Rhead, Lansing, Mich., of counsel, for plaintiff.

Frank J. Kelley, Atty. Gen., by Robert J. Taube, Asst. Atty. Gen., Lansing, Mich., for defendants.

OPINION ON MOTION TO DISMISS

FOX, District Judge.

Plaintiff, a Michigan corporation, claims an agreement between it and the State of Michigan and the Michigan State Highway Commission. It seeks equitable relief from this court against the soverign State of Michigan.

Article XI of the United States Constitution prohibits a suit against a sovereign state in federal courts by either foreign citizens or citizens of other states of the Union. Hans v. State of Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842; State of North Carolina v. Temple, 134 U.S. 22, 10 S.Ct. 509, 33 L.Ed. 849; State of California v. Southern Pacific Co., 157 U.S. 229, 15 S.Ct. 591, 39 L.Ed. 683; Fitts v. McGhee, 172 U.S. 516, 524, 19 S.Ct. 269, 43 L.Ed. 535; Kennecott Copper Corp. v. State Tax Commission, 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862.

In Duhne v. State of New Jersey, 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280, and Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299, 72 S.Ct. 321, 96 L.Ed. 335, the United States Supreme Court has ruled that Article XI also denies federal courts jurisdiction to hear suits brought against a state by a citizen who is a resident of that state. These cases are authority for the proposition that only where the state expressly consents to the action will the federal courts have jurisdiction to hear such matters. The State of Michigan has not consented to the bringing of this action in federal court, nor is there any basis for implied consent.

The Sixth Circuit Court of Appeals in Copper S. S. Co. v. State of Michigan, 194 F.2d 465, considered Public Act 135 of 1939, as amended, M.S.A. 27A.6401 et seq. (C.L.S. '61, § 600.6401 et seq.), which created the Court of Claims. Section 600.6419(1) (a) confers the power and jurisdiction upon the Court of Claims:

"To hear and determine all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms or agencies."

The Sixth Circuit Court of Appeals held in the Copper case, supra, that the Court of Claims Act does not by its terms consent to suits against the State of Michigan by a private citizen in federal courts. At Page 468 of its opinion, the Court said:

"* * * there was no intention in creating the Court of Claims to enlarge or extend the existing jurisdiction of the federal court over the State or any of its departments, commissions or agencies. * * *"

This court is without jurisdiction to hear and consider the claim of the plaintiff and to grant the relief the plaintiff seeks, since the Michigan State Highway Commission and the State of Michigan have not consented to its jurisdiction.

Brown Brothers Equipment Company's complaint does not plead jurisdiction. Since jurisdiction of a federal court is not presumed, the complaint must, as against a motion to dismiss for want of jurisdiction, allege facts showing jurisdiction. Miller v. Brown Shipbuilding Co., 5 Cir., 165 F.2d 956.

Under Rule 8(a) of the Federal Rules of Civil Procedure, 28 U.S.C., a plaintiff suing in a United States district court, must show affirmatively the existence of whatever is essential to jurisdiction, and if he does not do so, the court on discovering the defect must dismiss the case, unless it is cured by amendment. Smith v. McCullough, 1926, 270 U.S. 456, 46 S.Ct. 338, 70 L.Ed. 682; Gibbs v. Buck, 1939, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111; Miller v. Brown Shipbuilding Co., 5 Cir., 1948, 165 F.2d 956; Underwood v. Maloney, 256 F.2d 334, at 338 (C.A.3, 1958).

The complaint cannot withstand a motion to dismiss.

This court reaches its decision based upon the complaint filed by the plaintiff, defendants' motion to dismiss, and the brief in support of their motion to dismiss.

Rule 6 of the Local Court Rules for the United States District Court for the Western District of Michigan provides that a moving party...