WILL, District Judge.
The plaintiffs in this action are suing the various defendant motor carriers for refund of freight charges pursuant to orders of the Interstate Commerce Commission dated June 5, August 29, and October 27, 1969.
The first ground asserted by the carriers in support of their motion to dismiss is that this Court lacks jurisdiction to entertain the plaintiffs' suit. The plaintiffs argue that the Court does possess jurisdiction to hear the suit under 28 U.S.C. § 1337
This initial issue of jurisdiction is easily resolved. When a claim is alleged to arise under the Constitution or laws of the United States, the federal district court must entertain the suit except when the alleged claim appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where it is wholly insubstantial and frivolous. A claim must not be dismissed for lack of jurisdiction unless it appears, to a legal certainty, that the claim is wholly insubstantial and frivolous so far as the Constitution and the laws of the United States are concerned. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). A district court has jurisdiction when the right of a plaintiff to recover under his complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another. Wheeldin v. Wheeler, 373 U.S. 647,
Although the carriers make numerous suggestions as to why plaintiffs' complaint does not state a cause of action upon which relief could be granted, their arguments narrow down to a summary of the potential actions the plaintiffs might have and the reasons why such suits are not viable in the instant proceedings. We must, therefore, review each of these potential causes of action.
In an effort to obtain the refunds due them under the I.C.C. orders, shippers throughout the country have brought a multitude of suits against the carriers who have reneged on their agreement to refund certain moneys collected during the pendency of the Commission proceedings which preceded and led up to the involved orders. In bringing these suits, the shippers have sought relief primarily on two theories, that of common law restitution and a statutory right of suit under 49 U.S.C. § 16(2).
In response to the § 16(2) theory of action, the carriers assert that, even assuming the validity of our prior opinions incorporated herein which held such cause of action to be maintainable by shippers via motor carrier, the statute of limitations for such actions is one year as provided by 49 U.S.C. § 16(3) (f)
Section 16(3) (f) of the Interstate Commerce Act sets forth a one year statute of limitations period for suits for enforcement of a Commission order for the payment of money. No doubt exists that this statute is the applicable limitations period. The shippers argue that if a Commission order for
In response to the carriers motion in the Denver case for a temporary restraining order, the court granted the motion, entering an order on June 19, 1970, which stated:
As soon as this Court order was entered, there no longer existed a viable, effective, and pending Commission order for the payment of the moneys involved in this litigation. Although shippers such as plaintiff presumably could have filed suit during the pendency of the Denver action and the carriers appeal from the adverse ruling therein, they certainly were not required to do so because no relief could have been granted to them. As a matter of fact, the few shippers who did file suit of whom the Court is aware were compelled to have all action on their cases stayed (generally at the request of the carriers) pending final resolution of the Denver proceedings and the appeal therefrom. We doubt that Congress intended the statute of limitations to run during the time that no enforceable order existed.
The next issue which we must consider is whether the plaintiffs have met the statute of limitations as above defined. The carriers assert that more than one year elapsed from the Commission order of June 5, 1969 before the Denver court first stayed its effectiveness, that the Denver court's stay expired on January 14, 1971, and that the plaintiffs did not file suit until October 21, 1971. The errors and omissions from this argument are three-fold and the Court has been compelled to secure from the Clerk of the Court for the United States District Court for the District of Colorado a copy of the docket sheet of the Denver case to determine for ourselves the exact date of that court's rulings.
The first error of the carriers is their suggestion that the final Commission order was the order of June 5, 1969. In the order of that date, the Commission first required the carriers to make the refunds of the disapproved increased tariffs which had been collected by the carriers.
As the final Commission order is dated October 27, 1969, and as the Denver court stayed the effectiveness of that order on June 19, 1970, it is clear that only seven months and twenty-three days elapsed prior to that first restraining order which temporarily nullified the Commission's refund requirement.
The carrier's second error results from their affirmative omission of the fact that, after entering judgment for the defendants, the Denver court, on the carriers' insistence, again renewed the injunction against the Commission refund order. After entering judgment against the carriers on February 4, 1971, which had the effect of vacating the original injunction, the Denver court, on March 24, 1971, entered a new stay against the effectiveness of the Commission refund order.
In addition to alleging their valid § 16(2) claim against the carriers, the plaintiffs also allege a cause of action based upon a theory of restitution. As we stated in the first Aluminum Company case, the issue of whether a carrier would be entitled to a refund based upon a common law theory of restitution is a most difficult issue involving the subtle implications of T. I. M. E., Inc. v. United States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952 (1959) upon 49 U.S.C. § 316(j), which states that the Interstate Commerce Act does not extinguish any remedy or right of action not inconsistent thereto.
In summary, the defendant motor carriers' motion to dismiss the complaint must be denied because we conclude that the Court does possess jurisdiction to hear the plaintiffs' claim under 49 U.S.C. § 16(2), that the § 16(2) claim is a claim upon which relief can be granted, and that the statute of limitations of § 16(3) (f) is no bar to this suit. The motion to dismiss is granted, however, insofar as the plaintiffs attempt to state a cause of action for common law restitution.
Although it is clear that the complaint states a cause of action, we nevertheless may not grant plaintiffs' motion for summary judgment at this time. Not only is there no evidence or record of any sort in this proceeding to date, but the complaint is not even verified and the essential affidavits are wholly missing. Because the defendants have only filed a motion to dismiss, they have not filed an answer in this cause and the Court has no way of knowing what facts alleged in the complaint will be admitted or denied. Thus, there is no proof herein that any or all of the defendants
An appropriate order will enter denying the defendants' motion to dismiss the complaint and denying the plaintiffs' motion for summary judgment.
1. That the opinion and order of this Court and the judgment entered thereon on February 4, 1971, be and they hereby are stayed and postponed pending appeal of the within matter.
2. That the operation and effectiveness of that portion of the Interstate Commerce Commission's Order heretofore entered in that Commission's Docket No. 34971, Increased Rates and Charges From, To and Between Middlewest Territory, 335 I.C.C. 397, on June 5, 1969, as supplemented by that Commission's Order of August 29, 1969 upon reconsideration, which requires or authorizes the payment of refunds by the Plaintiffs, be, and it hereby is stayed and its operation postponed pending the completion of appellate proceedings in the Supreme Court of the United States or in the Court of Appeals for the Tenth Circuit, or both.