McCormick v. First National Bank of Miami, No. 70-1785-Civ.

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
• Writing for the Court: MEHRTENS
• Citation: 322 F. Supp. 604
• Parties: Howard J. McCORMICK and Alfreinday McCormick, Plaintiffs, v. The FIRST NATIONAL BANK OF MIAMI and Biscayne Dodge, Inc., Defendants.
• Docket Number: No. 70-1785-Civ.
• Decision Date: 05 February 1971

322 F. Supp. 604

Howard J. McCORMICK and Alfreinday McCormick, Plaintiffs,
v.
The FIRST NATIONAL BANK OF MIAMI and Biscayne Dodge, Inc., Defendants.

No. 70-1785-Civ.

United States District Court, S. D. Florida.

February 5, 1971.

B. R. Patterson, Belle Glade, Fla., for plaintiffs.

McCarthy, Steel, Hector & Davis, Miami, Fla., for defendant, First Nat. Bank of Miami.

High, Stack, Davis & Lazenby, Miami, Fla., for defendant Biscayne Dodge, Inc.

ORDER OF DISMISSAL

MEHRTENS, District Judge.

This cause came before this Court pursuant to motions of the defendant, The First National Bank of Miami, to

322 F. Supp. 605

dismiss the Complaint, and to strike those portions of the Complaint which refer to the cause as a class action. The defendant, Biscayne Dodge, Inc., joined in and adopted these motions. The Court has considered the arguments of the parties and the Memoranda filed in support of their respective positions, and being otherwise advised, has determined that this cause should be dismissed for the reasons set forth below

This cause arises out of the repossession by the defendant, The First National Bank of Miami, of an automobile the plaintiffs had purchased from the defendant, Biscayne Dodge, Inc., and financed by a written agreement entitled Security Agreement—Retain Title Contract, which Biscayne Dodge assigned to the Bank.

In their Complaint, plaintiffs allege that the Bank "believed that the plaintiffs were in default in their payments under the contract" and, without notice to the plaintiffs, had the automobile repossessed. An agent of the Bank repossessed the automobile peacefully at a time when the plaintiff, Howard J. McCormick, was at work.

Thereafter the Bank notified the plaintiffs that the automobile would be sold if they did not redeem it by paying off the balance of the indebtedness. The Bank sold the automobile and is suing the plaintiffs for a deficiency.

Plaintiffs now seek the jurisdiction of this Court alleging that a cause of action arises under the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States. They claim that an automobile is a specialized type of property and that by repossessing it without first offering them an opportunity to be heard, the Bank took their property without due process under the color of Florida Statute 679.9-503, F.S. A. (Section 9-503 of the Uniform Commercial Code).

They further allege violations of search and seizure and equal protection provisions of the Constitution and seek injunctive relief. They have styled this cause as a class action and have requested that a three-judge court hear the case.

The plaintiffs have alleged that this Court has jurisdiction of this cause under 28 U.S.Code §§ 1343(3) and (4), 2201, 2281 and 2284. Section 1343 is the portion of the U.S.Code which gives the United States District Courts original jurisdiction of actions which can generally be described as civil rights actions.

It is clear that § 1343(4) is inapplicable in this case as it pertains to actions based on Acts of Congress providing for the protection of civil rights including the right to vote. Plaintiffs have grounded their action on Title 42, U.S. Code § 1983 and thus the precise jurisdictional statute is Title 28, § 1343(3). The Court finds that § 1343(3) does not give it jurisdiction to consider this cause for two fundamental reasons, either of which standing alone would be sufficient grounds for dismissal.

First, as stated, this case concerns the repossession of an automobile. An automobile is no more than a piece of property and § 1343(3) does not confer jurisdiction on this Court for alleged deprivation of property rights. As set forth in Gray v. Morgan, 371 F.2d 172 (7th Cir. 1956) at 175:

"* * * it is quite clear that the courts have generally treated this statute (§ 1343(3)) as applicable to personal liberty rather than a property or monetary claim."

See also Eisen v. Eastman, 421 F.2d 560 (2nd Cir. 1969); Bussie v. Long, 383 F.2d 766 (5th Cir. 1967); Carter v. County Board of Education of Richmond County, Georgia, 393 F.2d 487 (5th Cir. 1968); and most recently, Judge Brown's opinion in Hall v. Garson, 430 F.2d 430 (5th Cir. 1970).

In the Bussie case, Judge Bell relied on Justice Stone's opinion in Hague v. CIO, 307 U.S. 496, 83 L.Ed. 1423, 59 S. Ct. 954 (1938) in stating that 28 U.S.C. A. § 1343 confers federal jurisdiction without regard to jurisdictional amount

322 F. Supp. 606

in those cases where the right asserted is inherently incapable of pecuniary valuation. The Bussie case recognizes that an earlier Fifth Circuit case, McGuire v. Sadler, 337 F.2d 902 (5th Cir. 1964) apparently supports the proposition that property rights can be litigated under § 1343 but Bussie distinguishes McGuire because the court in that case also had jurisdiction under the federal question status (Title 28 U.S.C. § 1331). The Carter case is a per curiam affirmation of dismissal by a District Judge for lack of jurisdiction under § 1343 as plaintiffs had alleged the deprivation of property rights. The opinion cited Gray, supra, and Bussie as the sole authority for this dismissal

In Hall v. Garson, Judge Brown recognizes the property rights...