Miner v. Commerce Oil Refining Corporation, Civ. A. No. 2721.

• Citation: 198 F. Supp. 887
• Decision Date: 06 September 1961
• Docket Number: Civ. A. No. 2721.
• Parties: William W. MINER et al. v. COMMERCE OIL REFINING CORPORATION.
• Court: U.S. District Court — District of Rhode Island

198 F. Supp. 887

William W. MINER et al. v. COMMERCE OIL REFINING CORPORATION.

Civ. A. No. 2721.

United States District Court D. Rhode Island.

September 6, 1961.

COPYRIGHT MATERIAL OMITTED

Cornelius C. Moore, Newport, R. I., James A. Higgins, William C. Dorgan, Providence, R. I., Salvatore L. Virgadamo and Francis J. Boyle, Newport, R. I., of counsel, for plaintiffs.

Letts & Quinn, Providence, R. I., Daniel J. Murray, Providence, R. I., of counsel, for defendant.

DAY, District Judge.

This is an action wherein the seventeen plaintiffs seek to recover damages from the defendant for the alleged violation by the defendant of their civil rights and for the alleged malicious use of process and alleged abuse of process. It is the outgrowth of an action instituted by the defendant against the plaintiffs in this Court in February 1957, which action was entitled Commerce Oil Refining Corporation v. Miner et al., C.A. No. 2113, D.C.1959, 170 F.Supp. 396.

Plaintiffs' complaint contains three counts. The pertinent allegations of Count I may be summarized as follows: that all of the plaintiffs, with the exception of Burgess Lunsford, are citizens of the State of Rhode Island; that the latter is a citizen of the State of Florida; that the defendant is a corporation organized under the laws of the State of Delaware and has its principal place of business in the State of New York; that the plaintiffs' cause of action arises under the provisions of 42 U.S.C.A. § 1983, and that this Court has jurisdiction to hear and determine said action under 28 U.S. C.A. § 1343; that on the 27th day of September, 1956, the Town Council of the Town of Jamestown, in the State of Rhode Island, adopted amendments to the building and zoning ordinances of said town, and a licensing ordinance, and granted a license to confer upon defendant a color of lawful authority to construct and operate an oil refinery in said town; that thereafter, on February 11, 1957, the defendant under color of said license, the ordinance authorizing the same, and said amendments, brought a civil action in this Court entitled Commerce Oil Refining Corporation v. Miner et al., C.A. No. 2113, D.C., 198 F.Supp. 895, wherein it charged that the plaintiffs herein were guilty of an unlawful combination and conspiracy pursuant to which they unlawfully and maliciously resorted to unlawful means to deprive defendant of its alleged rights "under color of said ordinance, said amended ordinances, and the statutes of the State of Rhode Island" to construct and operate a petroleum refinery in said Town, and sought therein damages in the sum of $2,000,000 and, in addition, punitive damages; that on March 11, 1958, when said action was reached for trial, the defendant by its counsel stated it would not offer evidence in support of the allegations of its complaint, and thereupon said complaint, upon motion by plaintiffs, was dismissed with prejudice; that at the time said action was commenced, the defendant knew each of the plaintiffs to be incapable of responding to even a small portion of the damages sought therein; that in fact the defendant had not sustained any damages; that defendant's purpose in bringing said action was not in fact to obtain satisfaction for alleged damages, but that its purpose was wilfully and maliciously, under color of said license, ordinance and amendments to said ordinances, by invoking the process of this Court to "stifle, to limit and to subject plaintiffs to a deprivation of a full exercise by plaintiffs of their rights guaranteed by the First and Fourteenth Amendments to the Constitution of the United States" to express their own opinions concerning defendant's proposal to locate and operate a petroleum refinery at Jamestown, Rhode Island, and to associate together peaceably for the purpose of more effectively expressing said opinions and to urge other persons to concur with their opinions; that under color of said license, etc., defendant caused plaintiffs to curtail and limit their rights of freedom of speech, held them up to ridicule, scorn and contempt, damaged their good names and standing in the community, caused them humiliation, etc., and obligated them to incur large expense to make their defenses to said action, for all of which each of said plaintiffs seeks judgment against the defendant in the sum of $100,000, and punitive damages as well.

In Count II, which purports to state a claim for malicious use of process, jurisdiction of this Court to hear and determine said claim is alleged to be based upon the jurisdiction of this Court over the cause of action alleged in Count I, its jurisdiction over said prior action, said Civil Action No. 2113, and under the provisions of 28 U.S.C.A. § 1332. The allegations contained in Count I are repeated in this Count and, in addition, the plaintiffs allege that defendant in instituting said prior civil action maliciously used the process of this Court without probable cause. Damages similar to those sought in Count I are sought in Count II.

Count III is claimed by plaintiffs to state a claim for abuse of process. The allegations as to jurisdiction asserted in Count II are re-asserted in Count III as are the allegations of Count I. In addition, it is alleged therein that said prior action was commenced without a reasonable belief by the defendant at the time that said action could have validity, was commenced without probable cause, and that the defendant has maliciously abused the process of this Court. Damages of a like amount and nature to those sought in Counts I and II are sought in Count III.

The defendant has moved to dismiss the entire complaint on the following grounds, viz.:

(1) This Court lacks jurisdiction over the subject matter alleged in Count I.

(2) That Count I fails to state a claim upon which relief can be granted.

(3) That this Court lacks jurisdiction over the defendant.

(4) That Count II fails to state a claim upon which relief can be granted.

(5) That Count III fails to state a claim upon which relief can be granted.

(6) That the claims asserted in Counts I, II and III are barred by the provisions of Rule 13(a) of the Federal Rules of Civil Procedure.

(7) That the cause of action alleged in each of said counts is barred by the provisions of 2 General Laws of Rhode Island 1956, Sec. 9-1-14.

(8) That as to all counts as to the plaintiff, Burgess Lunsford, this Court lacks jurisdiction over said plaintiff and the defendant.

At the outset, it is to be noted that a complaint or any count thereof should not be dismissed for failure to state a claim upon which relief can be granted unless it appears with certainty that the plaintiff would not be entitled to relief under any set of facts which conceivably could be proved in support of the claim or claims stated therein. Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; Manosky v. Bethlehem-Hingham Shipyard, Inc., 1 Cir., 1949, 177 F.2d 529; Fitch v. Firestone, D.C. R.I.1959, 173 F.Supp. 131. And for the purpose of a motion to dismiss, the allegations of the complaint must be construed in the light most favorable to the plaintiff. Callaway v. Hamilton National Bank of Washington, 1952, 90 U.S.App. D.C. 228, 195 F.2d 556.

As hereinbefore pointed out, Count I alleges a cause of action under the Civil Rights Act of 1871, 42 U.S.C.A. § 1983¹ for alleged deprivation of rights protected by the Fourteenth Amendment to the Constitution.

It is well settled that the right of free speech under the First Amendment is a constitutional right guaranteed by the Fourteenth Amendment. Douglas v. City of Jeannette, 1943, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324; Jamison v. State of Texas, 1943, 318 U.S. 413, 63 S. Ct. 669, 87 L.Ed. 869; Schneider v. State, 1939, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155. The Civil Rights Act was originally enacted to enforce the Fourteenth Amendment. Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed. 2d 492; Williams v. Yellow Cab Co. of Pittsburgh, Pa., 3 Cir., 1952, 200 F.2d 302, certiorari denied Dargan v. Yellow Cab Co. of Pittsburgh, Pa., 346 U.S. 840, 74 S.Ct. 52, 98 L.Ed. 361. And it is equally well settled that the action inhibited by that Amendment is only such action as may fairly be said to be action of the States. Said Amendment erects no shield against private conduct, no matter how wrongful or discriminatory it may be. Collins v. Hardyman, 1951, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253; Shelley v. Kraemer, 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Civil Rights Cases, 1883, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. In order that any action may be fairly said to be State action, such action must be taken by an agent or instrumentality of the State under authority of State law. Screws v. United States, 1945, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495; United States v. Classic, 1941, 313 U.S. 299, 61 S.Ct. 1031, 85 L. Ed. 1368; Ex parte State of Virginia, 1879, 100 U.S. 339, 25 L.Ed. 676. It is obvious that the defendant is not an agent or instrumentality of the State of Rhode Island. The fact that it held a license to construct and operate an oil refinery, issued by said Town of Jamestown pursuant to State law, did not make it an agency of the State and does not render its action, purportedly taken to protect its rights under said license, State action within the provisions of the Fourteenth Amendment and 42 U.S.C.A. § 1983. Williams v. Yellow Cab Co. of Pittsburgh, Pa., supra; Moffett v. Commerce Trust Co., 8 Cir., 1951, 187 F.2d 242; Watkins v. Oaklawn Jockey Club, 8 Cir., 1950, 183 F.2d 440. In my judgment the action by the defendant as alleged in Count I was not State action within the meaning of said 42 U.S.C.A. § 1983, and accordingly Count I fails to state a claim for relief under said statute. Defendant's motion to dismiss Count I is granted.

Count II purports to state a claim for malicious use of process. In my opinion the allegations of Count II, as hereinbefore...