Renato Pistolesi, Alltow, Inc. v. Calabrese

RENATO PISTOLESI, ALLTOW, INC., andACTION AUTOMOTIVE COLLISION AND MECHANICAL, INC., Plaintiffs, v. CARL CALABRESE, individually, et al., Defendants.

7:11 Civ. 5598 (MEA)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

April 9, 2015

MEMORANDUM AND OPINION

MARVIN E. ASPEN, United States District Judge:

This case is currently scheduled to go to trial on May 4, 2015,¹ but first we must address the parties' cross-motions regarding Plaintiff Action Automotive Collision and Mechanical, Inc.'s ("Action") second claim, which alleges federal preemption of three local towing laws. On January 7, 2015, Judge Seibel issued an oral ruling on Defendants' motion for summary judgment, leaving only claims two and four remaining in the case. (1/7/15 Hr'g Tr.) Judge Seibel noted that claim two appeared to be a legal issue inappropriate for trial, but neither party had moved for summary judgment on the claim. (Id. at 39.) She ordered the parties to file letter briefs explaining what should be done with claim two by January 26, 2015. (Id. at 41.) In the requested briefs, Defendants argue that claim two should be dismissed entirely, while Plaintiffs ask the Court to enter judgment in favor of Action. The case was reassigned to this Court on January 13, 2015. For the reasons discussed below, claim two is dismissed as to two of the three challenged regulations, and judgment is entered in favor of Action as to the third.

BACKGROUND

Plaintiffs Alltow, Inc. ("Alltow") and Action originally filed a six-count complaint against Defendants, alleging various Constitutional and statutory claims. After Judge Seibel decided Defendants' motion to dismiss and motion for summary judgment, the only claims remaining are two and four. Claim two is brought by Action against the Village of Wappingers Falls ("the Village"), the Village's Mayor, Matthew Alexander ("Alexander"), and three members of the Village Board of Trustees ("the Board"), Paul Italiano ("Italiano"), Alan Weitlich ("Weitlich"), and John Visentin ("Visentin"). Claim four, which is a statutory retaliation claim not directly relevant to the issues here, is brought by Alltow against the Village and the Village's Police Commissioner, Carl Calabrese ("Calabrese").

Action and Alltow are both towing and auto repair companies owned or partly-owned by Renato Pistolesi ("Pistolesi").² (Pls' Br. at 2; Defs' SOF ¶ 1, Dkt. 118.) The companies are located on the same property, which is within the Village boundaries. (Pls' Br. at 2.) The parties agree that Alltow was placed on the Village Police Department's Rotational Tow List ("the Tow List") in 2007 and Action was added to the list in 2008. (Pls' Br. at 2; Defs' SOF ¶ 5, 7-8.) The Tow List is maintained by the Village Police Department as a way to distribute work to registered tow companies when there is an accident or when the police need to impound a car. (Pls' Br. at 2.) The Police Department rotates through the companies on the Tow List, calling each once before starting over. On August, 13, 2008, after a fairly short tenure on the Tow List, the Board voted to remove Action from the list. (Pls' Br. at 2; Defs' SOF ¶ 9.)

Defendants contend that the Board removed Action from the Tow List because it was unfair that Pistolesi owned two companies on the list while other owners only owned one.(Defs' Br. at 6-7.) In support of Defendants' summary judgment motion, Visentin, who attended the August 2008 board meeting, stated in an affidavit that he believed it was unfair for Pistolesi to have two companies on the list, and that Action was removed as "a matter of fairness, common sense, and the best interests of the Village." (Aff. of John Visentin, Dkt. 110-15; see also Aff. of Louis Viglotti, Esq., Dkt. 110-14.) Likewise, the then Police Chief Commissioner Charles Ferry ("Ferry") testified that he and the Board members believed it was unfair for both Action and Alltow to be on the Tow List at the same time, and that he thought it was contrary to the best administration of the list. (Charles Ferry Dep. at 41-44, Dkt. 110-9.)

At some point shortly after Action was removed, the Board authorized Ferry to issue new requirements for acceptance to the Tow List. (Pls' SOF ¶ 16, Dkt. 116; Defs' SOF ¶¶ 10-11.) Three of those requirements are relevant here:

1. The business and storage area must be at an actual business located in the Village. Storage area must be adequately secured to protect vehicles. [("Requirement 1")]

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3. Trucks used for the rotational list must be garaged and dispatched from no further than 2 roadway miles from the Village of Wappingers Falls as indicated by a GPS device placed at the closest access point to the business from the village. [("Requirement 3")]

4. Applicants shall not qualify if they maintain a business on the very same premises or real property owned or operated by another Tow Rotation Service. [("Requirement 4")]

(Old Tow List Requirements, Dkt. 114-12.) Ferry testified that Requirement 4 was enacted in response to Action being placed on the Tow List. (Ferry Dep. at 33-34; Viglotti Aff. ¶ 4.) Requirements 1 and 3 appear to have targeted two other tow companies that were on the list at the time—Marty's Towing and Dutchess Towing. (See Ferry Dep. at 35-36, 39; Defs' SOF ¶ 16.) The parties seem to agree that Action and Alltow satisfy Requirements 1 and 3.

DISCUSSION

In claim two, Action alleges that Requirements 1, 3 and 4 are preempted by 49 U.S.C. § 14501(c)(1). (Compl. ¶ 21-23.) In their brief to the Court, Plaintiffs asked us to grant injunctive relief and enter declaratory judgment finding that the Requirements are preempted by federal law.³ Defendants ask that we dismiss the claim, arguing that: (1) Plaintiffs do not have standing with respect to Requirements 1 and 3; (2) Requirement 4 is not preempted by 49 U.S.C. § 14501(c)(1); and (3) if Requirement 4 is preempted, it should be severed from the rest of the Tow List Requirements.

I. Standing

Defendants argue that Action does not have standing to bring its preemption claim with respect to Requirements 1 and 3 because those laws have not caused Action any actual or imminent injury-in-fact. (Defs' Br. at 3-4.) A plaintiff's standing to sue is a prerequisite to our subject matter jurisdiction under Article III of the United States Constitution. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992); In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 725 F.3d 65, 104 (2d Cir. 2013). Parties may move to dismiss a claim for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and even absent a party motion, Rule 12(h)(3) requires us to dismiss claims where we lack subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1), 12(h)(3).

To establish Article III standing, a plaintiff must show: "(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorabledecision." Pac. Capital Bank, N.A. v. Connecticut, 542 F.3d 341, 350 (2d Cir. 2008) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S. Ct. 693, 704 (2000)); see Liberty Mut. Ins. Co. v. Donegan, 746 F.3d 497, 502 (2d Cir. 2014).

To establish an injury in fact, the plaintiff must allege an injury that is personal to him, and he cannot bring claims related exclusively to injuries suffered by other entities or individuals. L.A.M. Recovery, Inc. v. Dep't of Consumer Affairs, 184 F. App'x 85, 88 (2d Cir. 2006) ("[A plaintiff] generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 2205 (1975))); see Vermont Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000). When a plaintiff seeks to challenge a statute or regulation, he must, at a minimum, establish "an actual and well-founded fear that the law will be enforced against" him. Vermont, 221 F.3d at 382 (quoting Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 393, 108 S. Ct. 636, 643 (1988)); see also Donegan, 746 F.3d at 502 (finding plaintiff had standing to bring preemption claim where it would suffer an injury-in-fact from defendant's regulation); Exec. Transp. Sys. LLC v. Louisville Reg'l Airport Auth., 678 F. Supp. 2d 498, 508 (W.D. Ky. 2010) (finding plaintiff did not have standing to bring preemption challenge under 49 U.S.C. § 14501(c)(1) where there was little evidence that the local regulation prevented him from engaging in the federally regulated activity). Whether a plaintiff has standing to sue is a question of law. In re Methyl, 725 F.3d at 105.

In Plaintiffs' complaint, Action alleges that Requirements 1, 3 and 4 targeted Plaintiffs "as well as tow companies outside the area," and that Requirement 4 was specifically directed at Action and Alltow. (Compl. ¶ 22). It is undisputed that Requirement 4 precludes Action and Alltow from participating in the Tow List simultaneously, and thus Action has standing tochallenge the enforcement of that requirement. Conversely, Action has not alleged that Requirements 1 or 3 harmed the company, or will harm the company, in any way. (See 1/7/15 Hr'g Tr. at 24-25.) Indeed, since Action appears to be in compliance with Requirements 1 and 3—neither party has argued otherwise—the company could not plausibly claim a fear that the Village would enforce those Requirements against it in the future. Vermont, 221 F.3d at 382. To the extent Action seeks to challenge Requirements 1 and 3 on behalf of other towing companies, it cannot do so since individual plaintiffs have standing to assert only their own legal rights and interests. L.A.M. Recovery, 184 F. App'x at 88. Action has not...