City of El Paso v. AUTOBUSES INTERNACIONALES, ETC., EP-79-CA-176.

• Decision Date: 20 August 1980
• Docket Number: No. EP-79-CA-176.,EP-79-CA-176.
• Citation: 526 F. Supp. 5
• Parties: CITY OF EL PASO, Plaintiff, v. AUTOBUSES INTERNACIONALES S. de R. L., Defendant.
• Court: U.S. District Court — Western District of Texas

526 F. Supp. 5

CITY OF EL PASO, Plaintiff, v. AUTOBUSES INTERNACIONALES S. de R. L., Defendant.

No. EP-79-CA-176.

United States District Court, W. D. Texas, El Paso Division.

August 20, 1980.

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John A. Langford, El Paso, Tex., for plaintiff.

Sanford C. Cox, Jr., El Paso, Tex., Edwin E. Piper, Jr., Albuquerque, N. M., for defendant.

MEMORANDUM OPINION AND ORDER

HUDSPETH, District Judge.

This case presents unusual questions concerning the authority of the Interstate Commerce Commission versus that of a municipality to regulate the operations of a passenger bus service in a border city. The Plaintiff, City of El Paso ("City"), originally brought this action in the State District Court, but Defendant removed it to Federal Court. Jurisdiction is based upon 28 U.S.C. §§ 1337 and 1441. At a non-jury trial, the following facts were adduced:

The Defendant, Autobuses Internacionales S. de R. L. (hereinafter called "Autobuses"), is a Mexican corporation which is engaged in the business of operating passenger bus service between Juarez, Mexico, and various points in the States of Texas and New Mexico. It bases its authority to operate its various routes upon several permits issued by the ICC over a period of years. Its routes pass through the city limits of the Plaintiff, City of El Paso, where the buses are popularly known as the "Red Buses."

The first permit was issued in September 1959, when Defendant acquired an ICC Certificate of Convenience and Necessity, authorizing the transportation of passengers and baggage

"Between El Paso, Texas, and the boundary of the United States and Mexico at or near Puente Libre Road, serving all intermediate points, from El Paso over Paisano Drive to the boundary of the United States and Mexico, and return over the same route."

This authority was for the United States portion of an international route from downtown El Paso to Juarez via the Cordova Bridge or "Free Bridge" (now renamed the "Bridge of the Americas"). After Defendant obtained its ICC permit, the El Paso City Attorney questioned the jurisdiction of the ICC over this particular route. As a consequence, the following month the City and Autobuses entered into a written contract providing for the operation of this "Puente Libre" route. The contract acknowledged the authority of Plaintiff to enforce its traffic laws, to restrict the number and locations of stops, and to require Defendant to pay a two percent (2%) "street rental" for the use of its streets.

In 1960, Autobuses applied to the ICC for a second certificate to serve the downtown El Paso and downtown Juarez areas over the Santa Fe and Stanton Street bridges (the "downtown" bridges). The ICC denied the permit, commenting that the application was unnecessary, because the contemplated service was solely between "contiguous municipalities" and exempt from ICC regulation. The red buses did not operate over this route until 1974, when the City and Autobuses agreed to an addendum to their 1959 contract allowing Autobuses to operate the downtown service over a discontinued street car route between El Paso and Juarez.

Over the next few years, Defendant acquired additional ICC permits authorizing services between Mexico and various points in Texas and New Mexico outside the El Paso City limits.¹ During the same period of time, the Plaintiff acquired three privately-owned bus lines and created the Sun City Area Transit system (SCAT), a municipal bus service offering intracity transportation over routes frequently overlapping those of the Defendant. Further, although Autobuses is strictly limited by its grants of authority to transporting passengers between Mexico and United States points, the City learned that intracity passengers were utilizing the red buses, raising concerns about loss of revenue to the SCAT system. The Plaintiff also claimed that Defendant's buses were deviating from their assigned routes, and using SCAT bus stops to pick up and release passengers. The president of Autobuses, Dr. M. Garcia-Godoy, attended a City Council meeting on August 22, 1978, at which a vigorous argument arose over these allegations. The City Council informed Dr. Garcia-Godoy that the 1959 contract and 1974 addendum would be cancelled. Dr. Garcia-Godoy acquiesced in this action, understanding the cancellation to be effective immediately. The City, however, considered the contract and addendum still in effect until March 27, 1979, when it was formally terminated by the City Council. In any event, Defendant has continued to provide its bus service without interruption, contending that its ICC permits furnished authority regardless of City Council action.

Plaintiff then brought this suit for injunctive relief, requesting that Defendant be enjoined from deviating from the routes designated in its ICC certificates; that it be enjoined from operating certain routes without first obtaining a franchise from the Plaintiff; that it be enjoined from picking up and discharging intra-city passengers, and from making stops other than at specific stops and stands designated by the City Traffic Engineer. Further, Plaintiff seeks to require Defendant to pay a street rental of two percent of gross receipts on all operations on its streets not covered by ICC certificates; to require an accounting of all revenues obtained by Autobuses under the 1959 contract between August 1978 and March 1979; and to enjoin operation of any intra-city charters by the Defendant without a franchise from Plaintiff.

Defendant denies that Plaintiff is entitled to any of the relief sought, and by way of counterclaim, contends that Plaintiff is interfering in a federally preempted area of commerce. Defendant seeks injunctive and declaratory relief against any continued interference.

A. Is Defendant Deviating from Its ICC Assigned Routes?

Plaintiff contends that Defendant's buses do not use the routes designated in its ICC certificates, but wander at will through the streets of El Paso, picking up and discharging passengers. The evidence at trial supports this claim.² Defendant admits that its buses travel circuitous routes before arriving at the designated streets and highways. Furthermore, its president, Dr. Garcia-Godoy, testified emphatically that it was his position that Autobuses could use any El Paso street which the company deemed appropriate to best serve its customers. Defendant's position is based upon its broad interpretation of the phrase, "over city streets," which appears in the certificates issued to it by the ICC. Further, it asserts that this court lacks jurisdiction to decide the issue. The jurisdictional question will be discussed first.

Private enforcement, as opposed to ICC enforcement, is authorized under 49 U.S.C. § 11708. Autobuses alleges two defects in Plaintiff's action under the provisions of this statute: (1) Lack of full compliance with § 11708(b), which requires that a copy of the complaint be served upon the ICC and that a certificate of service appear in the court-filed complaint; and (2) Lack of a sufficiently "clear and patent violation" to invoke this Court's jurisdiction under § 11708(a).

The use of the terms such as "shall" and "must" indicate the mandatory nature of the requirements of § 11708(b). The statute evidences Congress' intent to provide the ICC with notice of and opportunity to intervene in actions involving interpretations of ICC regulations and certificates. The ICC was notified of this action in February 1980, by Plaintiff's counsel in a letter which included a copy of Plaintiff's complaint. (Plaintiff's Exhibit No. 28). The letter was mailed to the Regional Counsel of the ICC in Fort Worth, Texas, after this Court's jurisdiction had been invoked by the Defendant by removal from State Court. The ICC has taken no action with regard to this suit, and there is no indication of any desire on its part to do so. Although not a strict observance of the service required in Rule 4, F.R.Civ.P., the letter was sufficient to provide the agency with actual notice, and it substantially complied with the statutory requirement of § 11708(b). As for the failure to include a certificate of service, this defect could easily be cured by allowing an amendment to the complaint under Rule 4(h), F.R.Civ.P. However, in the interest of serving one of the more crucial purposes of § 11708—the elimination of delay and the provision of "prompt and effective" relief, Baggett Transportation Co. v. Hughes Transportation, Inc., 393 F.2d 710, 715 (8th Cir. 1968), cert. denied 393 U.S. 936, 89 S.Ct. 297, 21 L.Ed.2d 272—this Court will accept the notice already provided as sufficient to satisfy § 11708(b), and will not require an amendment of the complaint.

Section 11708(a) requires that a "clear violation" of the Interstate Commerce Act provisions be shown. Courts have interpreted this as a jurisdictional requirement rather than a burden of proof. AAACon Auto Transport, Inc. v. Medlin, 575 F.2d 1102, 1103-04 (5th Cir. 1978). Plaintiff's complaint contains only summary allegations stating that Autobuses holds certain permits from the ICC and that its buses fail to follow the routes specified therein. Normally, these allegations would be insufficient and, as the court in AAACon noted, dismissal of the complaint with leave to amend may have been proper at an earlier point in the proceedings. Id. at 1104. However, Defendant never raised this issue until the beginning of the trial, and the Court has now heard all the relevant evidence pertaining to it. Considering the current posture of the case, this Court will consider whether the facts presented at trial were sufficient to confer jurisdiction under the "clear and patent" standard.

The City's deviation claim, as previously noted, stems from a difference in interpretation of the phrase "over city streets." Autobuses contends that "over city streets" in each certificate permits its use of any...