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' ...