DeLong Corporation v. Oregon State Highway Commission, 19549.
| Decision Date | 12 April 1965 |
| Docket Number | No. 19549.,19549. |
| Citation | 343 F.2d 911 |
| Parties | DeLONG CORPORATION, a Delaware Corporation, Appellant, v. The OREGON STATE HIGHWAY COMMISSION, composed of Glenn L. Jackson, Kenneth N. Fridley and David B. Simpson, in their capacity as Oregon State Highway Commissioners and Individually, Forrest Cooper and Ivan D. Merchant, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George W. Mead, Portland, Or., Wyatt, Macdonald & Dean, Astoria, Or., Bertram H. Ross, Los Angeles, Cal., Bert Rand, Trammell, Rand & Nathan, Washington, D. C., for appellant.
Robt. Y. Thornton, Atty. Gen. of Or., Salem, Or., G. E. Rohde, Asst. Atty. Gen. and Chief Counsel for Or. State Hwy. Comm., Alan H. Johansen and J. Robt. Patterson, Asst. Attys. Gen. of Or., Salem, Or., for appellees.
Before HAMLEY, MERRILL and KOELSCH, Circuit Judges.
DeLong Corporation brought this action in the district court against The Oregon State Highway Commission and the individual members of the commission. Forrest Cooper and Ivan D. Merchant, state highway engineer appointed by the commission, and bridge engineer assistant to Cooper, respectively, were also named defendants. Asserting that the district court had jurisdiction under 28 U.S.C. § 1331 (1958) (federal question), and 28 U.S.C. § 1332 (1958), (diversity of citizenship), the company sought a declaratory judgment, injunctive relief and recovery of damages after proceedings before a master. On motion of the defendants, the district court dismissed the action for lack of jurisdiction under either statute. DeLong Corporation v. Oregon State Highway Commission, 233 F.Supp. 7. This appeal followed.
The action arises from a controversy in connection with a contract between the company and the State of Oregon, made in the name of the state by and through the commission, for the construction of an interstate bridge over the Columbia River. The bridge is being erected between Astoria, Oregon and Point Ellice, Washington, connecting highways in the two states. Under the contract, the company, which was incorporated in the State of Delaware and has its principal place of business in the State of New York, undertook to erect the foundations for the bridge.
The company alleged that the invitation for bids, issued by the commission on behalf of itself and the Washington State Highway Commission, contained false and misleading representations constituting a breach of contract. The company also alleged that the individual defendants, in their individual capacities, had acted outside their statutory authority and had committed torts against the company, giving rise to a claim for damages. Invoking 28 U.S.C. § 2201 (1958), the company asked for a judicial declaration of its rights with regard to all issues. It also asked for an injunction which would permit continuing performance pending adjudication of its rights. Finally, the company asked that after its rights had been determined, a master be appointed to hear evidence and make a report to the court on the amount of damages to which the company is entitled.
Jurisdiction under the diversity statute, 28 U.S.C. § 1332, was claimed on the theory that the company is a citizen of the States of Delaware and New York, that defendants are citizens of the State of Oregon, and that the amount involved is in excess of the statutory minimum of ten thousand dollars. In its motion to dismiss, defendants challenged the assertion that the commission is a citizen of the State of Oregon. They...
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