165 F. Supp. 518 | S.D.N.Y. | 1958
On March 24, 1955 plaintiff, a New York corporation, entered into a contract with Sinclair Refining Co., a Maine corporation, under which plaintiff was to provide emergency service for the repair and towing of automobiles along a portion of the highway on Long Island. Sinclair had been granted a license to provide such service by the Long Island State Park Commission
Attached to the complaint is a copy of a letter from Sinclair with a notation that it was received by the plaintiff “June 27-58 about 2:30 PM,” terminating the agreement between Sinclair and the plaintiff as of midnight, June 29, 1958. The complaint alleges that Sinclair’s termination of the license was “premature and unwarranted and unjustified;” that the license between the Commission, the Authority, and Sinclair provides that Sinclair shall terminate any sublicense after receipt of written notice from the Commission or the Authority that the sublicensee’s services are unsatisfactory; that no such written notice was received by Sinclair; that the Commission and Authority, before giving any such notice to Sinclair, were under a legal obligation to afford plaintiff a hearing on the character of the service it was providing; and that no such hearing was accorded plaintiff.
Sinclair, the Commission, and the Authority have been named as defendants in this action, which seeks an injunction restraining Sinclair, and those acting in participation with it, from permitting anyone other than plaintiff to provide the emergency service, and from cancelling the sublicense. No relief is sought against the Authority or the Commission except to the extent that they might be
Defendants now move for an order dismissing the complaint on the ground that the Court is without jurisdiction over the subject matter. Fed.R.Civ.P. 12(b) (1), 28 U.S.C. The complaint alleges jurisdiction based on diversity of citizenship, 28 U.S.C. § 1332 (1952); and because the action “arises under the Constitution * * * of the United States.” 28 U.S.C. § 1331 (1952).
I turn first to a consideration of whether jurisdiction exists under the latter cited statute. Plaintiff asserts that the actions of the Commission and the Authority violated the “due process” clause of U.S.Const. Amend. XIV. As may be seen from the above summary of the complaint, two allegedly unconstitutional actions may have been asserted against the State agencies. The first is their failure to provide Sinclair with written notice of their determination that plaintiff’s service was unsatisfactory. Assuming (for the complaint does not allege it) that one of the agencies gave oral notice of such a determination to Sinclair, and passing the question of whether plaintiff may complain of such a breach of the contract between Sinclair and the State agencies, failure to comply with the terms of the contract would not amount to a deprivation of “due process.” There is no constitutional requirement that such a determination be made in writing; and it is well established that a breach of contract by a state is not a violation of the Fourteenth Amendment and does not constitute a taking of property without due process of law. E. g., Manila Investment Co. v. Trammell, 1915, 239 U.S. 31, 36 S.Ct. 12, 60 L.Ed. 129.
Secondly, it may be inferred from the complaint that one or both of the State agencies notified Sinclair that plaintiff’s service was unsatisfactory.
Cited in support of this contention are a number of eases which establish the proposition that notice and hearing are required before a state agency may make what has been referred to as a “quasi-judicial” decision, an adjudication of the rights or liabilities of a person. Hecht v. Monaghan, 1954, 307 N.Y. 461, 121 N.E.2d 421 (revocation of license to drive a taxicab);
These cases, and the general proposition for which they stand, have no application here. In notifying Sinclair that plaintiff’s service was not satisfactory the agencies did not adjudicate that question.
Nor is there diversity jurisdiction as between the plaintiff and the State agencies. It is unnecessary to determine whether these agencies are, on the one hand, arms or alter egos of the State, or, on the other hand, public corporations acting as the State’s agents.
If the State agencies were indispensable parties to this action, the-
Accordingly, the motion that the complaint be dismissed is granted to the extent that it is dismissed as against the defendants Commission and Authority. Since there is diversity of citizenship as between plaintiff and Sinclair, the motion is in all other respects denied. Fed. R.Civ.P. 21; Horn v. Lockhart, 1873, 17 Wall. 570, 21 L.Ed. 657.
It is so ordered.
. The Long Island State Park Commission, is a “board of three commissioners” “in the division of parks in the conservation department.” N. Y. Conservation Law, § 770.
. The Jones Beach State Parkway Authority is “a body corporate and politic constituting a public benefit corporation,” consisting “of the commissioners of the Long Island state park commission and their successors.” N. Y. Public Authorities Law, § 152. “A ‘public benefit corporation’ is a corporation organized to construct or operate a public improvement wholly or partly within the state, the profits from which enure to the benefit of this or other states, or to the people thereof.” N. Y. General Corporation Law, § 3, subd. 4.
. The complaint contains no such allegation. Indeed, as noted, supra page 520 of 165 F.Supp., the complaint alleges that no written notice was received by Sinclair. Absent an allegation that the agencies, or one of them, notified (presumably, orally) Sinclair that plaintiff’s service was unsatisfactory, it would appear that no cause of action has been stated against the State agencies. Defendants do not attack the complaint on that ground, and I assume, for the purpose of this motion, that such an allegation is contained in the complaint.
. The State agencies claim that they are immune from suit in this Court under the doctrine of Hans v. State of Louisiana, 1890, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842. If the Fourteenth Amendment requires notice and hearing before the-agencies may advise Sinclair that plaintiff’s service is unsatisfactory, the agencies would not be immune to suit in this Court. Georgia R.R. & Banking Co. v. Redwine, 1952, 342 U.S. 299, 72 S.Ct. 321, 96 L.Ed. 335.
. In an attempt to bring its case within the rule of the Hecht decision, plaintiff
. “A judicial inquiry investigates, declares, and enforces liabilities * * Prentis v. Atlantic Coast Line Co., 1908, 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150. (Emphasis added.)
. “Where the exercise of a statutory power adversely affects property rights” notice and bearing are required. Hecht v. Monaghan, 1954, 307 N.Y. 461, 468, 121 N.E.2d 421, 424. (Emphasis added.)
. The fact that the complaint does not allege unconstitutional acts on the part of the State agencies not only deprives the Court of jurisdiction under 28 U.S.C. § 1331 (1952); it also appears that the State agencies are then immune from suit in this Court. See note 4, supra.
. It may be that the Commission is an alter ego of the State while the Authority is a public corporation which acts as the State’s agent. See notes 1 and 2, supra.
. Since I hold that this Court is without jurisdiction over the subject matter