the . . . regulation discriminates against interstate commerce or creates an impermissible risk of inconsistent regulation by different states." Id. at 596.
Mississippi ex rel. Patterson v. Pure Vac Dairy Products Corp., 251 Miss. 457, 170 So. 2d 274 (Miss. 1964), also indicates that more facts are needed before this Court can resolve Tuscan's F.O.B. issue. In Pure Vac, which entailed circumstances similar to those in Schwegmann and concerned the same Tennessee manufacturer, the Mississippi Supreme Court found constitutional Mississippi's regulation of the price at which the Tennessee manufacturer, Pure Vac, could sell milk products in Mississippi, although Pure Vac claimed that the milk was sold F.O.B. its docks in Memphis. The delivery of the milk products into Mississippi was controlled by Pure Vac, but Pure Vac argued that "title passed at the dock at Memphis and the products were delivered from Pure Vac, the manufacturer, to Pure Vac, as hauler." Id. at 276. After scrutinizing the facts surrounding the transaction, the court concluded that this was a "fiction of duality" and that possession was in fact delivered in Mississippi. Thus, regulation of the price at which the milk products could be sold was a proper exercise of Mississippi's police power. Id. at 278; cf. Schwegmann, 365 F. Supp. at 1155 ("Louisiana has unduly burdened interstate commerce insofar as it attempts to" regulate the price paid to Pure-Vac on sales of ice milk in Tennessee "with shipment by Pure-Vac into Louisiana under the circumstances described above" (emphasis added)).
The record before the Court contains few facts concerning New York's interest in regulating the price of the F.O.B. milk and the relative burden on interstate commerce of Tuscan's paying to Dairylea the New York minimum price for New York milk. Only minimal facts regarding the transaction itself are provided. Under either tier of the Commerce Clause analysis, this Court must examine the overall effect of the challenged requirement on both local and interstate activity. Brown-Forman, 476 U.S. at 579. A more complete record is needed before the Court can make a fair and reasoned decision as to whether New York's price regulation of the F.O.B. milk unconstitutionally burdens interstate commerce. Since Tuscan's § 1983 claim as to the F.O.B. milk hinges on a determination that New York's regulation of the price of such milk violates the Commerce Clause, summary judgment as to that claim is also denied.
For the foregoing reasons, Plaintiffs' motions for summary judgment for declaratory relief are granted with respect to interim orders Parts 22 and 23, insofar as those orders require dealers of non-New York milk to make compensatory payments which would ultimately benefit New York farmers. Plaintiffs' request for injunctive relief is denied. Plaintiffs are entitled to costs, and to attorneys fees pursuant to 42 U.S.C. § 1988. Plaintiffs are to file an application for attorneys fees and costs, serving a copy on Defendant, within 20 days. Defendant's counterclaims as to the compensatory payments are dismissed. Summary judgment on the claim that New York cannot regulate the price paid for New York milk sold F.O.B. destinations in other states is denied. Counsel are to attend a conference on April 21, 1992 at 9:00 a.m. in courtroom 302.
IT IS SO ORDERED.
Dated: New York, New York
April 14, 1992
Robert P. Patterson, Jr.