LAYTON, District Judge.
This case seeks to recover damages against defendant for alleged unfair competition. The plaintiffs set out in the complaint that they hold a certificate of public convenience from the I.C.C. authorizing them to operate in interstate commerce as a common carrier; that defendant has no such certificate; but that, nevertheless, defendant, without I.C.C. authority, has been competing against plaintiffs by carrying passengers over this same route, to the damage of the plaintiffs.
Motions to dismiss have been filed on the ground of lack of jurisdiction and because the complaint fails to state a cause of action upon which relief can be granted.
As to jurisdiction, a consideration of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 indicates the reluctance with which federal courts are apt to grant such motions where causes of action, superficially at least, appear to be grounded on federal law or the Constitution.
However, the motion to dismiss on the ground that the complaint fails to state a cause of action rests on firmer ground. The nature of the complaint seems to be that the Motor Carrier Act of 1935 embodies the right of an individual to bring a private suit for damages based on the common-law action for unfair competition against a defendant guilty of violating the Act. However, Riss & Company v. Association of American Railroads, 178 F.Supp. 438 (D.C. D.C.), a well-reasoned opinion, holds just to the contrary. There the same type of action as the case at bar was embodied in a counterclaim. The Court concluded at page 446:
See also Consolidated Freightways v. United Truck Lines, 9th Cir., 216 F.2d 543 (547).
The motion to dismiss for lack of jurisdiction is denied. The motion to dismiss for failure to state a claim