Tow Operators v. City of Kansas City, Mo., 02-2876.

• Decision Date: 04 August 2003
• Docket Number: No. 02-2876.,02-2876.
• Parties: TOW OPERATORS WORKING TO PROTECT THEIR RIGHT TO OPERATE ON THE STREETS OF KANSAS CITY, et al., Plaintiffs-Appellants, v. CITY OF KANSAS CITY, MISSOURI, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

338 F.3d 873

TOW OPERATORS WORKING TO PROTECT THEIR RIGHT TO OPERATE ON THE STREETS OF KANSAS CITY, et al., Plaintiffs-Appellants, v. CITY OF KANSAS CITY, MISSOURI, et al., Defendants-Appellees.

No. 02-2876.

United States Court of Appeals, Eighth Circuit.

Submitted: February 13, 2003.

Filed: August 4, 2003.

Michael P. McGovern, argued, Knoxville, TN, for appellants.

Douglas M. McMillian, argued, Kansas City, MO, for appellees.

Before LOKEN,^* RILEY, and SMITH, Circuit Judges.

LOKEN, Chief Judge.

In the FAA Authorization Act of 1994, Congress sought to equalize competition between air carriers and motor carriers in the transportation of property by uniformly preempting state economic regulation of their activities, but not state safety regulation. The motor carrier provisions are codified at 49 U.S.C. § 14501(c). The statute provides that (i) States and their political subdivisions may not enforce a law "related to a price, route, or service of any motor private carrier ... with respect to the transportation of property," but (ii) this preemptive prohibition "shall not restrict the safety regulatory authority of a State with respect to motor vehicles." §§ 14501(c)(1), (2)(A). The legislative history of the safety exception includes a significant caveat: "The conferees do not intend the regulatory authority which the States may continue to exercise ... to be used as a guise for continued economic regulation as it relates to prices, routes or services." H.R. CONF. REP. No. 103-677, at 84, reprinted in 1994 U.S.C.C.A.N. 1715, 1756.

In February 2000, Kansas City joined a number of other cities in moving to stop the practice known as "wreck chasing," in which multiple tow truck operators proceed to the scene of an accident to solicit towing business from the unfortunate vehicle owners and drivers. The Kansas City ordinance declared that it is "unlawful for the owner or operator of a tow vehicle to... [s]top at or proceed to the scene of an accident unless called to the scene, requested to stop, or flagged down by the owner or operator of a vehicle involved in an accident or requested to perform the service by a law enforcement officer...." KANSAS CITY, MO., CODE OF ORDINANCES § 76-287(2) ("the Ordinance"). In addition to passing the Ordinance, Kansas City undertook to design a system in which the Kansas City police will dispatch approved towing contractors to accident scenes on a rotating basis.

An association of Kansas City tow truck operators and its members then filed this action, seeking a declaration that the Ordinance is unlawful on numerous grounds and an injunction barring its enforcement. Like the parties and the district court,¹ we will refer to plaintiffs collectively as "Tow Pros." Tow Pros' complaint did not challenge whatever rotational system Kansas City proposed to adopt. Indeed, the details of that system are not part of the record. Instead, Tow Pros based their claim on the theory that the safety exception in § 14501(c)(2)(A) is limited to a State's safety laws and regulations, and does not apply to local government ordinances, as the Eleventh Circuit held in R. Mayer of Atlanta, Inc. v. City of Atlanta, 158 F.3d 538, 545-48 (11th Cir.1998), cert. denied, 526 U.S. 1038, 119 S.Ct. 1334, 143 L.Ed.2d 498 (1999). The district court granted summary judgment and dismissed the complaint. Two Pros appeal only the dismissal of their claim that the Ordinance is preempted by 49 U.S.C. § 14501(c)(1). We affirm.

Tow Pros filed a motion for a preliminary injunction along with the complaint. Because the Ordinance is not state law, Tow Pros argued that it is preempted by § 14501(c) "even assuming arguendo that the Ordinance has a legitimate basis in safety and is not merely economic protectionism." In support of their claim of irreparable injury, Tow Pros submitted some thirty affidavits, nearly identical in form, in which individual tow operators averred that they do not "qualify for the rotation towing system presently being proposed" and would be injured if prohibited "from soliciting towing ... from vehicle owners at the scene of motor vehicle accidents."

The district court denied Tow Pros' motion for a preliminary injunction. Addressing the circuit conflict over whether the safety exception applies to local ordinances, the court agreed with the Second Circuit that the exception applies so long as the State has properly delegated its safety regulatory authority, as Missouri has done in granting Kansas City chartercity authority. See Ace Auto Body & Towing, Ltd. v. City of New York, 171 F.3d 765, 775 (2d Cir.1999), cert. denied, 528 U.S. 868, 120 S.Ct. 166, 145 L.Ed.2d 140 (1999). The court went on to conclude that the Ordinance is safety-oriented and not economic regulation because it "undisputedly is intended to eliminate the practice and results" of wreck-chasing as described in other cases.²

Defendants then moved for summary judgment on the basis of the court's preliminary injunction ruling. In opposition, Tow Pros urged the court to reconsider its conclusion that the safety exception applies to local ordinances "in light of the growing federal circuit court authority ... contrary to the Ace Auto Body decision upon which this court relied." Tow Pros submitted no evidence countering the court's ruling that the Ordinance is safety-oriented legislation. Tow Pros simply incorporated by reference the affidavits submitted in support of their preliminary injunction motion. The district court granted summary judgment dismissing the complaint "for the reasons set forth" in its preliminary injunction ruling.

Tow Pros then appealed the court's preemption ruling. While the appeal was pending, the Supreme Court ended the circuit conflict regarding the scope of the safety exception, agreeing with the Second Circuit and the district court that the safety exception applies to a local government's exercise of the State's properly delegated safety regulatory authority. City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002). Stripped of their theory for the lawsuit, Tow Pros now argue there is insufficient evidence to support the district court's ruling that the Ordinance falls within the safety exception in § 14501(c)(2)(A). Tow Pros argue that summary judgment was premature on this issue because defendants submitted no evidence establishing...