The opinion of the court was delivered by: ELFVIN
Plaintiff is the president of an automobile dealership, Main Chrysler Plymouth, Inc. ("Main"), which fell upon hard times in 1974. On December 3, 1974, pursuant to a security agreement between it and Main, Marine Midland Bank-Western ("Marine") exercised its option under New York's Uniform Commercial Code § 9-503 and physically took over the operation of Main through Marine's agents, William Taylor, Richard Diana and Charles Schumacher. Marine then proceeded to dispose of Main's collateral under section 9-504. Plaintiff strenuously objected to such procedures.
Prior to the filing of the instant complaint plaintiff, with his wife and Main joined as additional parties plaintiff, brought an action in New York State Supreme Court, Erie County, solely against Marine. Such action is pending undetermined in the state court. Therein such plaintiffs seek monetary damages for harm allegedly resulting from various claimed wrongful acts of Marine in the course of its taking possession of the inventory and other security at the automobile dealership. In particular, it is alleged in the state complaint:
"That the acts of the defendant consisted of among other things the following:
"b. Seizing all the property of the defendant (sic), MAIN CHRYSLER PLYMOUTH, INC., including the mail."
Six days after the institution of the state action, Robert S. Sciolino, as the sole plaintiff, filed in this court the instant complaint naming Marine and its three said agents as defendants. The federal complaint basically alleges that defendants intercepted, opened and retained the sealed first-class letters deposited in the United States mails and addressed to plaintiff and to Main and seeks declaratory relief and money damages.
Defendants have moved this court for a dismissal of the federal complaint or, in the alternative, for a stay of this federal action pending disposition of the state action, on the grounds that the prior state action seeks the same relief as is sought in the federal complaint and that plaintiff has wrongfully split his alleged cause of action. At the argument of the motion, defendants' attorney orally additionally moved this court to dismiss the federal complaint for its failure to state a cause of action upon which relief can be granted.
Before considering defendants' motions this court must consider the sufficiency of plaintiff's allegations of jurisdiction (even though the complaint is subject to being stricken for non-compliance with rule 11 of the Federal Rules of Civil Procedure to which the attention of plaintiff's attorneys is hereby invited). Plaintiff alleges that jurisdiction of this court rests upon 28 U.S.C. §§ 1331(a), 1339 and 1343 and 5 U.S.C. § 702. This shotgun approach indicates a justified uncertainty in plaintiff's mind as to jurisdiction and, as often occurs with the shotgun, its scattered pellets miss the target.
The claim of jurisdiction under 5 U.S.C. § 702 can be dismissed out of hand. Such section applies only to a governmental agency's action and the jurisdiction of district courts to review such action. Nothing in the federal complaint speaks of agency action and no review of any such action is sought.
Similarly, the claim of jurisdiction under 28 U.S.C. § 1339 must also be dismissed. That section states:
"The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to the postal service."
The section bestows special jurisdiction and must be strictly construed. A civil claim arising out of an alleged violation of penal statutes relating to the mails i. e., 18 U.S.C. §§ 1701, 1702, 1703, 1708 and 1709
is not the type of action envisioned under this section. Schiaffo v. Helstoski, 492 F.2d 413 (3rd Cir. 1974), Adams v. Ellis, 197 F.2d 483 (5th Cir. 1952), and Paton v. La Prade, 382 F. Supp. 1118 (D.N.J.1974), Vacated and remanded, 524 F.2d 862 (3rd Cir. 1975), are not to the contrary.
When a claim is alleged to arise under the Constitution or laws of the United States and the matter in controversy exceeds the sum or value of $ 10,000, a district court has jurisdiction under 28 U.S.C. § 1331(a) except (possibly) when the alleged claim appears to be immaterial and made solely for purpose of obtaining jurisdiction or where it is wholly insubstantial and frivolous. See Bell v. Hood, 327 U.S. 678, 682-83, 66 S. Ct. 773, 776, 90 L. Ed. 939 (1946).
Plaintiff's complaint contains claims under the First, Fourth, Fifth and Ninth Amendments for violations of his rights to privacy and security. His action is against private individuals and a corporation. The first ten amendments to the Constitution limit the powers of the federal government and do not so by themselves expand individual causes of action against other individuals which were unknown to the common law. Therefore, inasmuch as no federal official or agent or action is involved, there is no federal question jurisdiction arising directly under the specified amendments. Bell v. Hood, 71 F. Supp. 813, 816 (S.D.Cal.1947) (approved by the Second Circuit Court of Appeals in Bivens v. Six Unknown Named Agents of Fed. Bur. of Nar., 409 F.2d 718, 724 (1969); although the Bivens decision was reversed by the United States Supreme Court, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), there was no derogation of such approval). See, also, New York City Jaycees, Inc. v. United States Jaycees, Inc., 512 F.2d 856, 858 (2d Cir. 1975).
Plaintiff also seeks to support federal question jurisdiction by claiming that defendants violated 18 U.S.C. §§ 1702 and 1703(b).
These sections are penal in nature. Violation of a penal statute does not alone support an allegation of federal question civil jurisdiction. Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975); Nashville Milk Co. v. Carnation Company, 355 U.S. 373, 78 S. Ct. 352, 2 L. Ed. 2d 340 Reh. denied, 355 U.S. 967, 78 S. Ct. 530, 2 L. Ed. 2d 542 (1958); Napper v. Anderson, Henley, Shields, Bradford & P., 500 F.2d 634, 636 (5th Cir. 1974), Reh. denied, 507 F.2d 723 (5th Cir.), Cert. denied, 423 U.S. 837, 96 S. Ct. 65, 46 L. Ed. 2d 56 (1975); Fagundez v. Oakland Raiders Professional Football Club, 498 F.2d 1394 (Em.App. 1974); Chavez v. Freshpict Foods, Inc., 456 F.2d 890, 893-94 (10th Cir.), Cert. denied, 409 U.S. 1042, 93 S. Ct. 535, 34 L. Ed. 2d 492 (1972); Oppenheim v. Sterling, 368 F.2d 516, 518-19 (10th Cir. 1966), Cert. denied, 386 U.S. 1011, 87 S. Ct. 1357, 18 L. Ed. 2d 441, Reh. denied, 388 U.S. 925, 87 S. Ct. 2127, 18 L. Ed. 2d 1380 (1967) and 389 U.S. 1059, 88 S. Ct. 757, 19 L. Ed. 2d 861 (1968); Note, Implying Civil Remedies from Federal Regulatory Statutes, 77 Harv.L.Rev. 285 (1963-4). Cf., Odell v. Humble Oil & Refining Co., 201 F.2d 123, 126-27 (10th Cir.), Cert. denied, 345 U.S. 941, 73 S. Ct. 833, 97 L. Ed. 1367 (1953). Cort v. Ash, supra, presented as its principal issue "whether a private cause of action for damages against corporate directors is to be implied in favor of a corporate stockholder under 18 ...