as important to defendant's operation as is the disposition of complaints by making money settlements.
The Philadelphia office's handling of complaints is an essential business activity which is in addition to, and beyond the scope of, defendant's solicitation activities. This additional activity is not distinguishable in character from the local agent's limited handling of the claim involved in the Alexander case. The instant case, therefore, is controlled by the Alexander case.
The recent trend in a few circuits is that, notwithstanding the holding of the Green case, mere solicitation, without more, constitutes doing business within a district in the jurisdictional sense when the solicitation is a regular, continuous and substantial course of business.
However, the Green case still retains some vitality in this district.
Both Judge Kirkpatrick and Judge Bard of this court have recently dismissed complaints on the authority of the Green case. Murray v. Great Northern Ry. Co., D.C.E.D. Pa. 1946, 67 F.Supp. 944; Fiorella v. Baltimore & O.R. Co., D.C.E.D. Pa. 1950, 89 F.Supp. 850. However, the additional activities described above, which carry the instant case beyond the Green case and bring it within the 'solicitation plus' rule, were not present in the Murray and Fiorella cases, where the foreign railroad corporations' local agents engaged in 'mere solicitation'.
I conclude that Atlantic Coast Line is 'doing business' in this district, has been served with process in a proper manner, and is therefore subject to the jurisdiction of this court. Furthermore, the venue of the present action is properly laid in this district as to Atlantic Coast Line, since it is 'doing business' here. 28 U.S.C. § 1391(a, c).
Atlantic Coast Line's further contention that the maintenance of this suit would impose an undue burden on interstate commerce is without merit. It is well settled that where a defendant is doing business within a district to an extent to make it subject to service of process and where the plaintiff is a citizen and resident of the district, a trial within that district places no undue burden on interstate commerce.
The Complaint fails to state under what specific statutes the jurisdiction of this court is invoked over the federal cause of action. It contains the general allegation, however, that defendants' acts 'were in direct violation of the Constitution and laws of the United States and of the regulations of the Interstate Commerce Commission.'
By indirection plaintiff attempts to bring the case under the coverage of the Civil Rights Act
by stating the conclusion of law that defendants' actions 'were committed under color of the laws of the State of South Carolina.' However, there are no factual allegations that defendants, which are privately owned railroad corporations, or their agents or employees, acted or purported to act as state officials or, possibly, in conspiracy with state officials
in the incident complained of in the present case. Therefore, the Complaint, as I see it, does not state a cause of action under the Civil Rights Act.
Plaintiff also contends that he has stated a cause of action under the Interstate Commerce Act. Under the provisions of Section 3(1) of the Interstate Commerce Act 49 U.S.C.A. § 3(1)
carriers subject to the Act are prohibited from giving undue preference or advantage to any person or from subjecting any person to 'undue or unreasonable prejudice or disadvantage in any respect whatsoever'.
Section 8 of the Interstate Commerce Act, 49 U.S.C.A. § 8,
establishes liability on the part of a common carrier to persons injured by reason of the carrier's violation of the Act, and Section 9, 49 U.S.C.A. § 9, provides that a person having a cause of action under Section 8 'may either make complaint to the commission * * * or may bring suit * * * for the recovery of * * * damages * * * in any district court of the United States of competent jurisdiction * * *.'
Defendants concede that plaintiff has a right of action under Section 8 of the Interstate Commerce Act for the alleged violation of rights granted by Section 3(1) of the Act, but they contend that this federal action should be dismissed because exclusive primary jurisdiction over its subject matter rests with the Interstate Commerce Commission.
Defendants' reasoning may be summarized as follows: The acts complained of were done pursuant to Atlantic Coast Line's regulations providing for the segregation of white and Negro coach passengers. A determination of whether the application of these regulations subjected plaintiff to unequal treatment, in violation of Section 3(1), requires a preliminary inquiry into the reasonableness of these regulations. The Interstate Commerce Commission has exclusive jurisdiction to make a primary determination as to the reasonableness and validity of these regulations (indeed, of any regulations or practices of common carriers). Therefore, they contend, this Court lacks jurisdiction over the subject matter of the action brought under the Interstate Commerce Act.
In Texas & Pac. Ry. v. Abilene Cotton Oil Co.,
the Supreme Court laid down the 'primary jurisdiction' doctrine, which may be broadly stated as follows: In an action where a railroad rate, rule, regulation, or practice is attacked as unreasonable or as unjustly discriminatory, there can be no recovery of damages for unjust discrimination under the Interstate Commerce Act unless and until the Interstate Commerce Commission has made a primary determination that the challenged rate, rule, regulation, or practice is unreasonable or unjustly discriminatory.
The reasons behind the 'primary jurisdiction' doctrine and, by implication, the limits of its applicability have been well expressed by Mr. Justice Brandeis, as follows: '* * * Preliminary resort to the Commission * * * is required because the inquiry is essentially one of fact and of discretion in technical matters; and uniformity can be secured only if its determination is left to the Commission. Moreover, that determination is reached ordinarily upon voluminous and conflicting evidence, for the adequate appreciation of which acquaintance with many intricate facts of transportation is indispensable, and such acquaintance is commonly to be found only in a body of experts. * * *'
In the present case the inquiry into the reasonableness of Atlantic Coast Line's segregation regulations, pursuant to which the acts complained of were performed, is not 'essentially one of fact and of discretion in technical matters' requiring 'acquaintance with many intricate facts of transportation' which is 'commonly to be found only in a body of experts.' The determination of whether these regulations and their enforcement subjected plaintiff to unequal and undignified treatment is a non-technical matter which a court is fully, and indeed especially, competent to make. Such a determination does not call for 'technical knowledge pertaining to transportation (which) must first be passed upon by the Interstate Commerce Commission before a court can be invoked.'
Therefore, the 'primary jurisdiction' doctrine is clearly not applicable in the instant case, and suit may be brought in this court even though the Interstate Commerce Commission has not been called upon to consider the reasonableness of the regulations involved in the case.
In the instant case the Complaint contains no allegation that the accommodations in CH3, the coach restricted to Negro passengers to which plaintiff allegedly was forced to move, were in any respect inferior to the accommodations in the coaches restricted to white passengers. However, plaintiff does allege that he was treated unequally and discriminatorily, in violation of Section 3(1) of the Act, by reason of his being forced to move from one car to another in an allegedly tortious and humiliating manner. Therefore, plaintiff has stated a cause of action under Section 8 of the Interstate Commerce Act.
Since there is no diversity of citizenship between plaintiff and defendant Pennsylvania Railroad, both being citizens of Pennsylvania, this court is without jurisdiction over plaintiff's common law action against Pennsylvania Railroad. Nevertheless, the Complaint, having stated a federal cause of action under the Interstate Commerce Act against both defendants, cannot be dismissed as to Pennsylvania Railroad.
To summarize: (1) Atlantic Coast Line is subject to the jurisdiction of this court. (2) Venue is properly laid in this district as to Atlantic Coast Line. (3) Maintenance of the suit in this district does not impose a burden on interstate commerce. (4) The Complaint states a federal cause of action under the Interstate Commerce Act and also states several common law causes of action. (5) This court has jurisdiction over the diversity or common law action against Atlantic Coast Line. (6) This court is without jurisdiction over the diversity action against Pennsylvania Railroad. (7) This court has jurisdiction over the federal action under the Interstate Commerce Act against both defendants.
And now, June 26, 1951, in accordance with the foregoing opinion, it is ordered that Atlantic Coast Line Railroad Company's Motion to Dismiss the Complaint as to it be and it is hereby denied, and that The Pennsylvania Railroad Company's Motion to Dismiss the Complaint as to it be and it is hereby denied.