SED, INC. v. City of Dayton
| Decision Date | 11 June 1981 |
| Docket Number | No. C-3-81-193.,C-3-81-193. |
| Citation | 515 F. Supp. 737 |
| Parties | SED, INC., et al., Plaintiffs, v. CITY OF DAYTON, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
William R. McCarty, Fairborn, Ohio, for plaintiffs.
Thomas G. Petkewitz, Dayton, Ohio, for defendant.
DECISION AND ENTRY OVERRULING DEFENDANT'S MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT, SAVE AND EXCEPTING THAT PORTION OF THE MOTION DIRECTED TO PLAINTIFFS' DUE PROCESS ALLEGATIONS WHICH IS SUSTAINED; PLAINTIFFS' MOTION SEEKING LEAVE OF COURT TO AMEND COMPLAINT SUSTAINED; PLAINTIFFS TO AMEND COMPLAINT WITHIN SEVEN (7) DAYS FROM DATE; DECISION AND ENTRY OVERRULING DEFENDANT'S MOTION SEEKING PRELIMINARY INJUNCTION; PLAINTIFFS DIRECTED TO FILE MOTION FOR SUMMARY JUDGMENT ON PREEMPTION ISSUE WITHIN STATED PERIOD OF TIME; BRIEFING SCHEDULE SET FORTH ON MOTION FOR SUMMARY JUDGMENT; ORAL HEARING SET ON MOTION FOR SUMMARY JUDGMENT
The captioned cause came to be heard upon two motions, to wit:
SED operates a chemical warehouse within the Dayton city limits. SED has stored, and continues to store, polychlorinated biphenyls (PCBs) in said warehouse.
On November 19, 1980, the Dayton City Commission enacted sections 97.01 to 97.09 and 97.97 to 97.99 of the Revised Code of General Ordinances. To the extent herein pertinent, said enactment prohibits the storage of PCBs within the Dayton city limits. Civil and criminal penalties are provided for violation of the prohibition. Moreover, the enactment provides that the storage of PCBs within the City shall constitute a public nuisance, and empowers the city attorney to seek an injunction against such storage.
In the amended complaint, Plaintiffs allege that the subject ordinances are invalid on three grounds. First, Plaintiffs claim that the regulation of PCB storage has been expressly preempted by federal law, see Toxic Substances Control Act §§ 6(e), 18, 15 U.S.C. §§ 2605(e), 2617; 40 C.F.R. §§ 761.10(a)(6), 761.42, and that supplemental local legislation on the matter, such as the Dayton ordinances, is, therefore, unconstitutional under the supremacy clause of the federal constitution, U.S.Const. Art. VI, cl. 2. Second, Plaintiffs claim that the Dayton ordinances place "unreasonable, arbitrary, and capricious restraints" upon SED's business, and are, therefore, unconstitutional under the due process clause of the federal constitution, U.S.Const. amend. XIV. Third, Plaintiffs claim that the Ohio legislature has undertaken to exclude municipal regulation of the storage of hazardous wastes, Ohio Rev.Code Ann. § 3734.05, and that the Dayton ordinances are, therefore, invalid under Article XVIII, section 2, of the state constitution.
With respect to the first and second claims, Plaintiffs allege that this Court has subject matter jurisdiction by virtue of the diverse citizenship of the parties, see 28 U.S.C. § 1332, because the claims arise under the federal constitution and federal laws, see 28 U.S.C. § 1331, and (apparently with specific respect to the first claim) because it concerns a matter involving the federal regulation of commerce, see 28 U.S.C. § 1337. Plaintiffs say that this Court may hear the third claim under the doctrine of pendent jurisdiction.
Plaintiffs primarily demand declaratory relief. 28 U.S.C. §§ 2201-2202.
The Defendant's motion to dismiss contains seven branches which will be addressed seriatim.
In Branch I of the motion, the Defendant says that Plaintiffs' attempt to invoke the subject matter jurisdiction of this Court on grounds of diversity of citizenship must fail because the amended complaint cites the wrong jurisdictional statute (i. e., section 1331 of Title 28 is cited rather than section 1332). Defendant says that this error amounts to an insufficient allegation of jurisdiction under Fed.R.Civ.P. 8(a)(1), and that diversity jurisdiction, therefore, does not lie under the amended complaint. In response, Plaintiffs admit to a "typographical error" in the subject citation, and request leave of Court to amend the amended complaint so that it might reflect the appropriate statute. Defendant counters this request with the contention that, under the circumstances, leave to amend can only be granted upon formal motion. Cf. Fed.R. Civ.P. 15(a), 60(a).
The allegation of diversity jurisdiction is sufficient despite the error in citation. Leave to amend in order to cite the correct statute is not required and will not be considered. Fed.R.Civ.P. 8(f) provides that "all pleadings shall be so construed as to do substantial justice." The amended complaint explicitly invokes this Court's jurisdiction because "the matter ... is between citizens of different states." The fact of diverse citizenship is apparent on the face of the pleading. "Substantial justice" requires that this Court recognizes that diversity jurisdiction has been invoked.
Branch I of the motion to dismiss is patently and blatantly without merit and is, therefore, overruled.
In Branch II of the motion, the Defendant says that the bare assertion in the amended complaint that the amount in controversy exceeds $10,000 is insufficient to invoke the Court's federal question jurisdiction under 28 U.S.C. § 1331. Although the amended complaint does allege that the ordinances in question provide penalties up to $25,000, it is not alleged that Plaintiffs are in violation of the ordinances or subject to such penalties. Plaintiffs' response is that reference to the penalties provided by the ordinances at issue is a sufficient allegation of the monetary minimum. Further, Plaintiffs point out that, subsequent to the commencement of this action, the Defendant filed suit in state court against Plaintiffs seeking, inter alia, over two million dollars in damages, and an injunction, for Plaintiffs' violation of the ordinances, on grounds of public nuisance.
The parties have failed to note that section 1331 was amended on December 1, 1980, to delete the requirement of a $10,000 minimum amount in controversy for jurisdiction under that section.
Branch II of the motion to dismiss is without merit and is, therefore, overruled.
The Court does note that the $10,000 minimum amount in controversy remains a requirement for diversity jurisdiction under 28 U.S.C. § 1332 (). To the extent that the Defendant's contentions in Branch II deserve consideration on that basis, the Court concludes that the monetary allegations in the amended complaint are sufficient. Although Plaintiffs do not explicitly allege that they are in violation of the ordinances at issue or subject to the penalties contained, therein, that is the only tenable inference which may be derived when paragraphs 5 and 6 of the amended complaint are construed together.
In Branch III of the motion to dismiss, the Defendant says that jurisdiction under 28 U.S.C. § 1337 has been improperly invoked because there is no allegation in the amended complaint to indicate the manner in which the ordinances at issue might be said to impermissibly regulate interstate commerce. In response, Plaintiffs point out that the amended complaint, fairly construed, alleges that the ordinances at issue intrude into matters exclusively regulated by a federal statute which was enacted pursuant to Congress' constitutional authority to regulate interstate commerce. U.S. Const. Art. I, § 8, cl. 3. Defendant replies with reference to an "item" in the Federal Register, 44 Fed.Reg. 31528 (1979), which indicates that the agency responsible for the administration of the federal statute may have determined that local legislation regarding PCB disposal (if as restrictive or more restrictive than federal regulations) is not preempted by the exercise of federal authority in the area.
It matters not whether the ordinances at issue regulate or infringe upon interstate commerce. The allegation of jurisdiction under section 1337 in the amended complaint is appropriate and sufficient because the claims in that pleading, in substantial part, "arise under" federal legislation which finds substantial authority for its enactment in the commerce clause. Springfield Television, Inc. v. City of Springfield, 428 F.2d 1375, 1378-79 (8th Cir. 1970); Lumberman's Underwriting Alliance v. Hills, 413 F.Supp. 1193, 1197-98 (W.D. Mo.1976). In other words, even if the subject ordinances have no effect on interstate commerce, but cf. Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), it is sufficient for section 1337 jurisdiction that they are alleged to violate an express federal preemption statute, 15 U.S.C. § 2617, which statute is an appropriate part of an exercise of federal authority over interstate commerce. Defendant's reference to the "item" in the Federal Register does not alter the conclusion. Whatever value that item may ultimately be determined to have,1 it would appear to go to the merits of Plaintiffs' claims (or perhaps, more exactly, to the merits of some defense) rather than to the sufficiency of jurisdictional allegations.
Branch III of the motion to dismiss is without merit, and is, therefore, overruled.
In Branch IV of the motion, the Defendant says that the amended complaint should be...
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...may be the ultimate resolution of the federal issues on the merits." Id. at 666-67, 94 S.Ct. at 777; see also SED, Inc. v. City of Dayton, 515 F.Supp. 737, 740-41 (S.D.Ohio 1981) (EPA's position on preemption of ordinance regulating PCBs irrelevant to issue of In this case it is clear that ......
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