Greyhound Lines, Inc. v. United States
| Citation | 301 F. Supp. 356 |
| Decision Date | 27 June 1969 |
| Docket Number | No. 69 C 1148.,69 C 1148. |
| Parties | GREYHOUND LINES, INC., and the Greyhound Corporation, Plaintiffs, v. UNITED STATES of America, and Interstate Commerce Commission, Defendants, the Public Utility Commissioner of Oregon, Intervening defendant, Mt. Hood Stages, Inc., Intervening Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Amos M. Mathews, Robert J. Bernard, Chicago, Ill., for plaintiffs.
Thomas A. Foran, U. S. Atty., Chicago, Ill., for The United States and I. C. C.
Masuda, Spivack & Funai, Chicago, Ill., and Thomas Y. Higashi, Asst. Atty. Gen., State of Oregon, Salem, Or., for The Public Utility Commissioner of Oregon.
Eugene L. Cohn, Chicago, Ill., and Donald A. Schafer, Portland, Or., for Mt. Hood Stages, Inc.
The plaintiffs have moved for a temporary restraining order. For the reasons set forth below, this court is of the opinion that the motion should be denied at this time.
The plaintiffs, Greyhound Lines, Inc. and The Greyhound Corporation (Greyhound), have acquired over the last several years, eight bus companies operating in the Pacific Northwest. These eight companies "virtually encircle" the route run by the intervenor Mt. Hood Stages, Inc. (Mt. Hood) from Klamath Falls to Biggs, Oregon, a distance of about 278 miles. Greyhound had an agreement with Mt. Hood from 1949 to 1964, to use Mt. Hood's route to and from Klamath Falls as a through bus. In 1964, Mt. Hood suspended operations because of a strike. Greyhound rerouted its buses on an all-Greyhound route through Portland, Oregon, a distance of about 390 miles, or over 110 miles and three hours longer than the Mt. Hood route.
When the strike was over at Mt. Hood, Greyhound notified Mt. Hood that it was exercising its 60-day cancellation option and would operate its own all-Greyhound Portland route. In December, 1964, Mt. Hood filed its first petition before the Interstate Commerce Commission, which ultimately formed the basis of the instant suit. At all stages of the proceedings before the I. C.C., Greyhound's contentions that the I.C.C. had no jurisdiction under 49 U.S. C. § 5(9) were overruled, twice by the entire Commission, acting unanimously.
The I.C.C. based its rulings that Greyhound should reinstitute the Mt. Hood through-bus service on certain representations Greyhound made in the prior eight acquisition proceedings. Greyhound represented that it would, inter alia, retain the Mt. Hood service and continue to quote Mt. Hood rates, times, etc., to Greyhound passengers. In its reply brief on this motion, Greyhound argues that they should not be bound by those representations (which it admits were made), since the representations "were stated in the present tense and plainly were not meant to apply inflexibly to situations that might arise years later." Reply Brief, at 3. However, one of the grounds of the present decision of the I.C.C. was that the public interest would be served by the continued existence of the Mt. Hood through-bus service with Greyhound. The presence of the Intervenor Public Utility Commissioner of Oregon and his opposition to this motion are further evidence of the public interest involved here.
In order for this court to grant a temporary restraining order under 28 U.S.C. § 2284(3), it must find that without the order there will be "irreparable damage" to the movant. The order, according to the statute "shall contain a specific finding, based upon evidence submitted to such judge and identified by reference thereto, that specified irreparable damage will result if the order is not granted." Several cases have added to this requirement of irreparable harm, a requirement that the movant show that it has a "reasonable possibility" of prevailing on the merits. E. g., Tennessee Public Service Commission v. United States, 275 F.Supp. 87, 90 (W. D.Tenn.1967). However, without a showing of irreparable harm, no matter how reasonable the possibility that the movant might prevail on the merits, a temporary restraining order should not issue. 28 U.S.C. § 2284(3).
Assuming for the purposes of argument that Greyhound has met this light burden of proof of showing that it has a reasonable possibility of prevailing on the merits, this court must first and foremost investigate Greyhound's claims of irreparable injury. The affidavit of Weldon M. Beeler, vice president for traffic in the Greyhound organization, shows that the average passenger load per bus on the Mt. Hood line (before 1964) was approximately 21 to 23 passengers per bus. In 1965, on the Portland route of the Greyhound, the passenger load was 29.2; in 1966, 30.0; in 1967, 27.9; and, in 1968, 24.5; for an average of 28.0 passengers per Portland bus during the years 1965-1968, the years immediately following Greyhound's cancellation of the Mt. Hood contract. Mr. Beeler asserts that this route through Portland is more profitable than the Mt. Hood route, and that there is not enough traffic to support two routes. Compliance with the I.C.C. order, continues the affidavit, would mean that Greyhound would either have to abandon its Portland route, or operate the Portland route in competition with the Mt. Hood route. All these factors, contends Greyhound, constitute irreparable injury.
But Greyhound has not presented any figures showing how and in what manner they will suffer "specified irreparable damage," as demanded by Section 2284(3). It appears clear that Greyhound will not show a loss by reinstituting the Mt. Hood through-bus. All that might happen is that Greyhound might make a somewhat smaller, though completely unspecified amount of profit. But this is contested by the data set forth by Mt. Hood, and by the court's own calculations.
Greyhound's average cost on its routes is about 70 cents per bus mile. If we multiply this figure by the distance on the Portland route (390 miles), we arrive at an estimated operating cost on this run of about $265. Multiplying this figure by the 28-passenger figure per bus averaged over the last four years, we reach a revenue figure (assuming three cents per mile per passenger) of $315, or about $40 over cost. If the more relevant figure of 24.5 passengers per bus is used, the average for 1968, Greyhound's revenue is cut to only about $286, or only $21 over cost.
If we compare these cost figures with the Mt. Hood route, there are some surprising results. Mt. Hood previously paid Greyhound about 20 cents per bus mile as a fee for leasing the buses. Since the distance over the Mt. Hood route is about 278 miles, this means an added $55.60 in revenue to the Greyhound. Add to this the...
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Palmigiano v. Travisono
...restraining order will issue only when the party seeking it is likely to succeed on the merits. See, e. g., Greyhound Lines, Inc. v. United States, 301 F.Supp. 356 (N.D.Ill.1969). This court thinks that the better-reasoned view, however, is that the likelihood of success on the merits shoul......