De La Fuente v. ICC

Decision Date05 June 1978
Docket NumberNo. 77 C 4100.,77 C 4100.
PartiesPedro De La FUENTE, for himself and on behalf of his minor son, Oscar De La Fuente, Emilio De Leon, Manuel Garza, Anselmo Solis, Individually and on behalf of all others similarly situated, Plaintiffs, v. INTERSTATE COMMERCE COMMISSION of the United States, Daniel O'Neal, as Chairman of the Interstate Commerce Commission, Alfred E. Rathert, as Regional Managing Director of Region IV of the Interstate Commerce Commission, United States Department of Transportation, Brock Adams, as United States Secretary of Transportation, John Cyrocki, as Acting Regional Representative of the United States Secretary of Transportation for Region V, United States Department of Labor, F. Ray Marshall, as United States Secretary of Labor, Gerald Mitchell, as Regional Administrator of the United States Employment Standards Administration for Region V, Stokely-Van Camp, Inc., a Foreign Corporation, Albert Solis, and Marcelino Vasquez, Defendants.
CourtU.S. District Court — Northern District of Illinois

Kristine Poplawski, Bruce L. Goldsmith, Ill. Migrant Legal Assistance Project, Chicago, Ill., for plaintiffs.

Thomas P. Sullivan, U. S. Atty., Patricia A. Brandin, Pope, Ballard, Shepard & Fowle, Chicago, Ill., for defendants.

MEMORANDUM

LEIGHTON, District Judge.

This is a suit for declaratory, injunctive, and monetary relief brought by four migrant agricultural workers on behalf of themselves and all others similarly situated against three private defendants, three federal agencies, and various federal officials for alleged violations of the Farm Labor Contractor Registration Act, 7 U.S.C. §§ 2041, et seq. ("FLCRA"); the Wagner-Peyser Act, 29 U.S.C. §§ 49, et seq.; the Interstate Commerce Act, 49 U.S.C. §§ 301, et seq. ("ICA"); the Department of Transportation Act, 49 U.S.C. §§ 1651, et seq. ("DOTA"); and attendant regulations promulgated under the Acts. Plaintiffs are United States citizens residing in Mexico and Texas, and lawfully admitted permanent United States residents residing in Texas. The private defendants are Stokely-Van Camp, Inc., a foreign corporation licensed to do business in Illinois, two of its employees who reside in Texas: Marcelino Vasquez, a registered farm labor contractor, and Albert Solis, an unregistered farm labor recruiter. The federal defendants are the Interstate Commerce Commission, its chairman, and local regional managing director; the Department of Transportation, its secretary, and local acting regional representative; and the Department of Labor, its secretary, and local regional administrator. The four-count complaint alleges the following facts.

In April, 1977, plaintiffs learned of employment opportunities with Stokely-Van Camp through advertisements in Texas which referred potential job applicants to Vasquez. Plaintiffs contacted Vasquez, who told them that they would be transported by bus about 90 miles to work each day; that they would be paid $2.30 per hour for the time spent commuting daily; and that defendants would pay plaintiffs' transportation costs from Texas to Illinois. Vasquez referred plaintiffs to defendant Solis who, in the presence of representatives of the Texas Employment Commission, gave them copies of Clearance Job Order V-Ill.-7, and repeated Vasquez's representations, which were not contained in the order. Relying on these various statements, allegedly made with Stokely-Van Camp's knowledge and on its behalf, plaintiffs entered into employment contracts with Stokely-Van Camp. Plaintiffs De La Fuente and Solis and their families were given transportation money by defendant Solis and traveled to Illinois in their own vehicles. Plaintiff Garza and his family were transported to Illinois by an employee of Vasquez who was not authorized by the Department of Labor or the Interstate Commerce Commission to transport migrant agricultural workers. Upon arrival in Hoopeston, Illinois, plaintiffs were housed and began work hand-picking asparagus in Indiana. The promises made to them in Texas were broken in that they were transported to work daily in unsafe trucks, rather than busses, driven by unauthorized employees of Vasquez; they were not paid for daily commuting time; and the costs of their transportation from Texas were deducted from their wages. Anonymous complaints by plaintiffs to Stokely-Van Camp and the Illinois State Employment Service resulted in threats by Vasquez to "blacklist" plaintiffs from future employment by defendants.

Count I charges that these acts by the three private defendants constitute continuing violations of rights secured plaintiffs by the FLCRA. Count II charges violations of plaintiffs' rights under the Wagner-Peyser Act by defendant Stokely-Van Camp through these acts. Count III, which is aimed at Vasquez, alleges that the unsafe, unauthorized transportation provided plaintiffs by Vasquez and his employees from Texas to Hoopeston and daily from Hoopeston to Indiana violates Part II of the ICA and its attendant regulations, as well as safety requirements imposed by 49 C.F.R. § 398 (1976), and regulations promulgated under DOTA. Count IV seeks declaratory and injunctive relief against the federal defendants for failure to enforce the FLCRA, ICA, DOTA, and various regulations promulgated pursuant to each act so as to protect migrant farm workers from being transported in unsafe vehicles driven by unauthorized and incompetent personnel. Jurisdiction is invoked under 7 U.S.C. § 2050a(a); 28 U.S.C. §§ 1331, 1337, 1361, 2201-02; and 49 U.S.C. § 322(b)(2).

The cause is before the court on the motion of the three private defendants under Rule 12(b)(3), Fed.R.Civ.P., to dismiss Counts I and III for improper venue or, in the alternative, transfer the cause to the United States District Court for the Eastern District of Illinois where the claims arose and where defendants allegedly "operated."1 28 U.S.C. § 1391(b); 49 U.S.C. § 322(b)(2). They also argue that, since the cause of action arose in the Eastern District, the convenience of the parties and witnesses and the interest of justice would be best served by a 28 U.S.C. § 1404(a) transfer. Additionally, Stokely-Van Camp has moved under Rule 12(b)(6), Fed.R. Civ.P., to dismiss Count II for failure to state a claim on which relief can be granted. Stokely-Van Camp argues that no adequate allegation has been made that it failed to provide employment in accordance with the terms and conditions of its Clearance Job Order V-Ill.-7 and hence, no Wagner-Peyser Act claim has been alleged.

I. Venue

The parties indicate, and this court agrees, that venue of this action as to the private defendants2 is governed by 28 U.S.C. § 1391(b), which provides:

A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.

These venue alternatives deliberately place venue in those judicial districts which ordinarily would be most convenient to the defendant. Jones v. United States, 407 F.Supp. 873, 876 (N.D.Tex.1976). And unless a defendant has consented to be sued in a district in which venue is improper, he has a right to invoke the protection of the statute.

The requirement of venue is specific and unambiguous; it is not one of those vague principles which, in the interest of some overriding policy, is to be given a "liberal" construction. Olberding v. Illinois Central R. Co., 346 U.S. 338, 340, 74 S.Ct. 83, 85, 98 L.Ed. 39 (1953); Schnell v. Peter Eckrich & Sons, 365 U.S. 260, 264, 81 S.Ct. 557, 5 L.Ed.2d 546 (1961).

Stokely-Van Camp does not, nor can it, raise any objection to venue. As a foreign corporation which is licensed to do business state-wide it is amenable to suit in any district in that state. 28 U.S.C. § 1391(c); Richards v. Upjohn Co., 406 F.Supp. 405 (E.D.Mich.1976); Garbe v. Humiston-Keeling & Company, 143 F.Supp. 776, 778-79 (E.D.Ill.1956) rev'd on other grounds, 242 F.2d 923 (7th Cir.), cert. denied, 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55 (1957).

Defendants Solis and Vasquez are alleged and admitted to be residents of Texas. Under § 1391(b), this action may be brought against them only in the district where they reside in Texas or in the Eastern District of Illinois where the claims arose. Plaintiffs argue that this court may exercise "pendent venue" over the claims against Solis and Vasquez because these claims are factually related to the claims against Stokely-Van Camp and the federal defendants. This is not true. The fact that Solis' and Vasquez's co-defendants are suable in this district does not deprive Solis and Vasquez of their personal venue rights. Camp v. Gress, 250 U.S. 308, 311-16, 39 S.Ct. 478, 63 L.Ed. 997 (1919); Dibble v. Cresse, 271 F.2d 426 (5th Cir. 1959); see Olberding v. Illinois Central R. Co., supra. Moreover, the cases cited by plaintiffs do not support their argument, for in each case, plaintiff sought to bring two factually-related claims with different venue requirements against one defendant. And, in each case, the court held that so long as venue was proper for the primary claim against the defendant, the defendant could not raise the issue of venue as to the ancillary claim.3 In this case, however, there are multiple defendants as well as multiple claims. As to two of those defendants, Solis and Vasquez, there is no proper venue on any claim, not merely proper venue as to one claim against them but not as to another, ancillary claim. Plaintiffs cannot rely on the residence of one defendant, Stokely-Van Camp, to bring suit against multiple defendants in this district, where one but not all of them reside. See 15 Wright & Miller, Federal Practice and Procedure: Civil § 3807 at 37 (1976).

However, the fact that venue is improper as to some of the defendants does not require dismissal of the entire suit for improper venue. Defendant Stokely-Van Camp has joined in...

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