The Commission refund order, therefore, was valid and
binding after judgment was entered against the carriers for a
period of one month and twenty days (from February 4, 1971
until the order was again suspended on March 24, 1971).
Accordingly, at the time this latter stay was entered on March
24, 1971, the Commission refund order had been effective for
a total period of nine months and thirteen days (seven months
and twenty-three days plus one month and twenty days). This
stay ended by its own terms, and the statute of limitations as
set forth by § 16(3)(f) began running again, on December 27,
1971, when the United States Court of Appeals for the Tenth
Circuit entered an order granting the carriers' motion to
dismiss their separate appeal from the Denver court, the
Supreme Court having affirmed the district court on October 12,
1971. Accordingly, the statute of limitations for enforcement
suits on the June 5, August 29, and October 27, 1969 Commission
orders did not terminate until approximately two months and
seventeen days after the expiration on December 27, 1971, of
the Denver court's final stay of the effectiveness of the
Commission refund order. As the plaintiffs herein filed their
suit on October 12, 1971 (as opposed to the carriers'
contention that it was filed on October 21, 1971), they clearly
fell within the one year statute of limitations as set forth by
§ 16(3)(f) of the Interstate Commerce Act and that statute is
no bar to their suit.
In addition to alleging their valid § 16(2) claim against the
carriers, the plaintiffs also allege a cause of action based
upon a theory of restitution. As we stated in the first
Aluminum Company case, the issue of whether a carrier would be
entitled to a refund based upon a common law theory of
restitution is a most difficult issue involving the subtle
implications of T. I. M. E., Inc. v. United States,
359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952 (1959) upon 49 U.S.C. § 316(j),
which states that the Interstate Commerce Act does not
extinguish any remedy or right of action not inconsistent
thereto.*fn14 However, as was also the situation in the first
Aluminum Company case, the cause of action based upon a theory
of restitution would arise outside of the Interstate Commerce
Act and would apparently be a standard diversity action and the
Court would possess no jurisdiction over such a common law
cause of action because of both lack of diversity between all
plaintiffs and all defendants and lack of the necessary
jurisdictional amount in controversy between the parties.
Furthermore, neither diversity of citizenship nor
jurisdictional amount are even pleaded in the plaintiffs'
In summary, the defendant motor carriers' motion to dismiss
the complaint must be denied because we conclude that the
Court does possess jurisdiction to hear the plaintiffs' claim
under 49 U.S.C. § 16(2), that the § 16(2) claim is a claim upon
which relief can be granted, and that the statute of
limitations of § 16(3)(f) is no bar to this suit. The motion to
dismiss is granted, however, insofar as the plaintiffs attempt
to state a cause of action for common law restitution.
Although it is clear that the complaint states a cause of
action, we nevertheless may not grant plaintiffs' motion for
summary judgment at this time. Not only is there no evidence
or record of any sort in this proceeding to date, but the
complaint is not even verified and the essential affidavits
are wholly missing. Because the defendants have only filed a
motion to dismiss, they have not filed an answer in this cause
and the Court has no way of knowing what facts alleged in the
complaint will be admitted or denied. Thus, there is no proof
herein that any or all of the defendants
are members of the Middlewest Motor Freight Bureau, Inc., and
that any of the plaintiffs shipped goods over any of the
defendant carriers. The plaintiffs have not even technically
referred to or incorporated into their complaint the August 29
and October 27, 1969 orders of the Commission. Accordingly,
the plaintiffs' motion for summary judgment must be denied at
An appropriate order will enter denying the defendants'
motion to dismiss the complaint and denying the plaintiffs'
motion for summary judgment.