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June 25, 1971


The opinion of the court was delivered by: Marovitz, District Judge.


Defendants' Motion to Dismiss

This is, ostensibly, a class action products liability case. Plaintiff, City of Chicago (City), is an Illinois municipal corporation. City is bringing this action on its own behalf and on behalf of all Illinois citizens who are residents of the municipality. Defendants are nine out-of-state corporations, each of which is primarily engaged in the business of designing, developing, manufacturing and selling motor vehicles and related component parts and accessories. Jurisdiction is grounded in diversity of citizenship, 28 U.S.C. § 1332.

The Complaint charges that defendants' motor vehicles, which were knowingly intended for use in Chicago (Complaint, ¶¶ 8-9), "substantially contribute to air pollution within Chicago by their emission of dangerous contaminants, including, but not limited to carbon monoxide, hydrocarbons, oxides of nitrogen and particulate matter" (Complaint, ¶ 10), that in normal use they "create a hazard to the health and welfare of the residents and cause other injuries" (Complaint, ¶ 14), and that in normal use they are, consequently, unreasonably and inherently dangerous (Complaint, ¶¶ 15-16). Allegedly, the harmful emissions result from and refusal to install effective anti-pollution or emission control devices or to employ existing technology to alleviate the alleged danger. (Complaint, ¶ 16; Count II, ¶ 18. Although references have been made only to those paragraphs dealing with defendant General Motors Corporation, similar allegations have been lodged against each defendant.) Plaintiff seeks an order enjoining the sale of defendants' motor vehicles unless they are equipped with "tamperproof emission control devices" which meet certain proposed standards, the furnishing, without charge, of control devices to any plaintiff purchaser of any motor vehicle of any defendant between 1960 and 1970, and other relief.

Defendants have moved to dismiss the class action under Rule 23(a), F.R.Civ. P., asserting that City is not a member of the class it purports to represent. Defendants have also moved to dismiss the Complaint for failure to properly allege the jurisdictional amount, because of the statute of limitations, because of laches, because of a failure to state a claim under products liability law or for improper design, and because the requested relief would be improper and inappropriate for the Court to grant.

With respect to the class action objection, we note that Rule 23(a) provides that:

  "One or more members of a class may sue or be
  sued as representative parties on behalf of all
  only if * * * (3) the claims * * * of the
  representative parties are typical of the
  claims * * * of the class, and (4) the
  representative parties will fairly and adequately
  protect the interests of the class."

Essentially, this rule establishes adequacy of representation as a prerequisite to the bringing of a class action and requires that "the interest of the representative party must be coextensive with the interests of the other members of the class, and that there be a lack of adverse interests between the representative party and other members of the class." 3B Moore's Federal Practice, ¶ 23.06-2, at 23-325 (1969).

We do not believe that plaintiff City adequately represents the class it purports to represent. Although plaintiff and its class exist in a common atmospheric condition, we do not think this action could be said to be in the interests of all Chicago corporate and individual residents. There are many motor vehicle dealerships, repair and service stations, and gasoline outlets that would be adversely affected by some of the relief plaintiff seeks. Obviously, some unemployment would result if plaintiff successfully persuaded this Court to issue an order banning the sale of certain motor vehicles. At least these local residents and citizens have an interest adverse to that of City. Moreover, we doubt whether the plaintiff, charged with a community health problem, adequately represents those residents and citizens who are strongly attached to the motor vehicle as a recreational or luxury item and would not want their individual activities curtailed or made more expensive. In fact, given the great number of motor vehicles involved in the local air pollution problem, and the plaintiff's lack of control over them, we doubt that it can reasonably claim that all class members have "exercised due care in the operation and use" of defendants' vehicles. (Complaint, ¶ 21.)

Essentially, we think that the situation about which plaintiff complains is so complex that plaintiff cannot fairly be said to represent "all Illinois citizens who are residents of the City of Chicago." While our independent research has revealed a few cases in which one governmental agency has been allowed to bring a class action on behalf of other such agencies, see, e. g., City of Philadelphia v. Emhart Corp., 50 F.R.D. 232 (E.D.Pa. 1970); State of Minnesota v. United States Steel Corp., 44 F.R.D. 559 (D.Minn. 1968), we know of no case and plaintiff has suggested none that allows a municipality to bring a class action on behalf of all of its individual and corporate citizens. See Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp., 309 F. Supp. 1057, 1062-1063 (E.D.Pa. 1969). Consequently, whether or not City is a member of the class it purports to represent, an issue on which we make no finding, we find that its interests are not co-extensive with nor representative of that gigantic and extraordinarily diverse class. The class action aspects of the Complaint are, therefore, dismissed.

We turn, then, to a consideration of defendants' contentions that plaintiff has not adequately alleged the requisite jurisdictional amount under 28 U.S.C. § 1332. Since the class aspects of the controversy have been eliminated, no discussion need be made of the value of the claims of the class members.

Plaintiff has alleged that the "amount in controversy is in excess of $10,000," the jurisdictional amount, and that it "has spent and will be required to spend large sums in the mitigation of the damaging effects of * * * exhaust emissions * * *." (Complaint, ¶¶ 6, 20.) We do not think that it is a legal certainty that plaintiff would not recover in excess of that $10,000 amount, if successful. In fact, we think that plaintiff's right not to be harmed by dangerous motor vehicle emissions and defendants' converse right to unfettered manufacturing are both in excess of that amount. Compare Biechele v. Norfolk & Western Railway Co., 309 F. Supp. 354, 355 (N.D.Ohio 1969). Since plaintiff's claim is in apparent good faith, and there is a probability of the value being in excess of the jurisdictional amount, the cause will not be dismissed for failure to adequately plead that amount. Jeffries v. Silvercup Bakers, Inc., 434 F.2d 310, 311-312 (7th Cir. 1970).

The last two procedural points raised in defendants' motion to dismiss concerned the statute of limitations and laches. Neither of the points was discussed in defendants' ...

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