The opinion of the court was delivered by: WYATT
This is a motion by defendant Boston and Maine Corporation ("B & M") for an order dismissing the complaint for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1).
Plaintiff Clinchfield Railroad Company ("Clinchfield") is averred to be an unincorporated association existing under the laws of Tennessee. B & M is averred to be a Delaware corporation with a place of business in New York City. Diversity of citizenship is not claimed, however, as a basis for this Court's jurisdiction, presumably because the sum in controversy ($7,737.51) is less than $10,000. 28 U.S.C. § 1332.
Jurisdiction is claimed instead under 28 U.S.C. § 1337. It is alleged that this action is one "arising under" an Act of Congress regulating commerce, namely, the Interstate Commerce Act (49 U.S.C. §§ 1 and following), the "Act"; more specifically, 49 U.S.C. § 1, subsections (4), (10) and (11).
The action is for $7,737.51, plus interest and costs, which is claimed as a sum due and owing Clinchfield because of alleged underpayments by B & M for the use of freight cars belonging to Clinchfield ("per diem" charges) during the period August 1953-December 1963.
Plaintiff's complaint may have been drawn on two theories. The first is one of simple breach of express contract (complaint, paras. 7-10), and if this were the only theory alleged, there being no diversity jurisdiction, this Court would lack jurisdiction over the action. But in a letter dated September 12, 1966, plaintiff expressly states that it does not seek to recover on an express contract cause of action.
The second theory is based on the above cited sections of the Act. Plaintiff claims that the Act requires it to provide defendant with certain freight cars, that the Act by necessary implication requires defendant to pay reasonable compensation for such cars, that plaintiff did in fact provide cars to defendant but that the compensation paid by defendant was not that reasonable compensation contemplated by the Act.
Movant contends that plaintiff is suing on a contract implied at common law to pay reasonable compensation, the familiar quantum meruit. Movant says that the right claimed arises from the common law and not from the Act.
The Act, specifically at 49 U.S.C. § 1(4), imposes a duty on plaintiff here
"to provide and furnish transportation [explained in § 1(3)] upon reasonable request therefor, and to establish reasonable through routes with other such carriers, and just and reasonable rates, fares, charges, and classifications applicable thereto; * * *"
The Act further provides, in subsection (5) of the same section, that:
"All charges made for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or in connection therewith, shall be just and reasonable, and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful."
The Act further provides, in subsection (11) of the same section, that:
"It shall be the duty of every carrier by railroad subject to this chapter to furnish safe and adequate car service [defined in § 1(10)] and to establish, observe, and enforce just and reasonable rules, regulations, and practices with respect to car service; and every unjust and unreasonable rule, regulation, and ...