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2 ELR 20111 | Environmental Law Reporter | copyright © 1972 | All rights reserved Heart Disease Research Foundation v. General Motors Corp.71 Civ. 1667 HRT (S.D.N.Y. February 7, 1972)Suit for $375 trillion damages allegedly incurred by plaintiffs and 125 million Americans living in urban areas as a result of defendants' conspiracy to suppress the development of antipollution devices for automobiles in violation of federal anti-trust laws is dismissed for failure to state a claim upon which relief can be granted. Likewise plaintiffs' reliance upon the general welfare clause of the U.S. Constitution and the Environmental Quality Improvement Act of 1970 is illfounded. Counsel for Plaintiffs Counsel for Defendant General Motors Corp. Counsel for Defendant Chrysler Corp. Counsel for Defendant Ford Motor Corp. Counsel for Defendant American Motor Sales Corp. TYLER, D.J. For the second time, defendants have moved to strike the complaint in this action for non-compliance with the strictures of Rule 118 F.R. Civ. P. and failure to state claims upon which relief can be granted. Rule 12(b)(6), F.R. Civ. P. The motion of the defendants is granted, and plaintiffs' cross motion to designate this a class action is denied. Shortly after this suit was filed, defendants moved to strike the complaint which was initially brought in the name of plaintiff Heart Disease Research Foundation ("the Foundation"). Seized at least momentarily with wisdom and common sense, the Foundation and its attorneys consented to amend their complaint rather than oppose the original motion of defendants to dismiss. The amended complaint purports to addtwo directors of the Foundation as individual plaintiffs and two new "courts" or claims. In the view of the undersigned, these "amendments" have done nothing to improve plaintiffs' position as a legal or practical matter. The amended complaint describes the Foundation and the two added individual plaintiffs. The latter are said to be members of the Foundation's Board of Trustees who "have suffered physical disease and reduction of their life expectancy" because of air pollution in the metropolitan New York region. Plaintiffs purport to bring a class action on behalf of the "population of the United States residing in the metropolitan areas of the United States, amounting to approximately 125,000,000 persons". In legal theory, count 1 is said to be based upon the anti-trust laws of the United States, in particular 15 U.S.C. §§ 1, 2 and 15. This count goes on to allege that the defendants have conspired to suppress the development of pollution control devices "upon automobiles", that they are not diligently developing pollution control devices for automobiles and that automobiles are "responsible for approximately 75% of the air pollution present in the United States." In count 2, the allegations of count 1 are repeated. It is then asserted that plaintiffs and all similarly situated residents of metropolitan areas of the United States have become "sick, lame, sore, and disabled;" indeed, it is concluded that these persons will "have their life span shortened in the future" because of air pollution. Count 2 is said to be grounded upon the general welfare provisions of the Constitution.1 In count 3, after again repeating the allegations of count 1, plaintiffs add that the United States Government is "significantly involved in the production, manufacture, and distribution of motor vehicles." It is then asserted that these vehicles do not have adequate pollution control equipment and thus are adversely affecting the environment of the United States. Jurisdiction of this count is said to be bottomed upon the "Environmental Quality Act."2 The United States, of course, is not a party to this case. Finally, in their ad domnum clauses, plaintiffs demand that the court issue an injunction barring the defendants from manufacturing automobiles using the internal combustion engine. Plaintiffs also pray for damages in the sum of $375,000,000,000,000.00, coupled with a comparatively modest request for attorneys fees of $3,000,000.00. It would be interesting to ruminate upon all the ironies and absurdities, intended or unintended, of this amended pleading prepared over the signature of a member of a New York law firm. For present purposes, a few random examples will suffice. Doubtless correct in their assertion that the automobile contributes to pollution in America, plaintiffs and their counsel apparently have not reflected that if the defendants were to respond in damages of one-quarter of the amount demanded, it is probable that their production efforts to raise such a large sum would exponentially increase the amount of pollution here complained about. Perhaps plaintiffs and their counsel have failed to realize that the damages sought are some 300 times more than the annual gross national product of the United States. Plaintiffs seem to be oblivious to the obvious fact that the Foundation, not being a physical being but rather a charitable enterprise, cannot have suffered physically or emotionally from any pollution. Finally, the belated addition of two of the directors as plaintiffs is a sham and, as such, no cure for the aforementioned incapacity of the Foundation as a proper class representative. The two individuals are said to suffer an unidentified "physical disease", from which the court is asked to infer that all 125,000,000 members of the putative class share the same mysterious malady. If for no other reason, tact compels me to turn quickly to the legal theories underpinning or said to underpin the three claims. Count 1 falls far short of the mark of showing any state of facts in violation of the anti-trust laws. As to count 2, there is no known authority for the proposition that the general welfare clause of the [2 ELR 20112] Constitution provides these plaintiffs with the private remedy which they here seek. As defendants point out with remarkable restraint, it is Congress — happily not the plaintiffs — who are charged with the duty and power to provide for our general welfare. In respect to count 3, I have already assumed that plaintiffs refer to the Environmental Quality Improvement Act of 1970. That statute, as I understand it, does not confer subject matter jurisdiction upon federal courts or provide judicial remedies to private litigants. It simply declares certain matters of national policy and establishes an Office of Environmental Quality. Plaintiffs claim no affiliation with or authority from that office; thus, they cannot invoke this statute for any civil relief. The complaint, therefore, should be dismissed for failure to state any claims for which relief can be granted in a federal court. Having so ruled, it may be redundant for me to note that defendants may be correct in relying upon Rule 11 as an alternative ground to dismiss. That Rule, it is true, is seldom invoked by parties in federal civil actions. Yet, as the Rule at the very least implies, the signature of an attorney or law firm on a federal civil pleading amounts to a certificate by that signer that there are good grounds to support the pleading. As has been held by this court before, Rule 11 casts an affirmative obligation upon counsel who signs a pleading to represent his honest belief that there are facts and law to support the claims asserted in that pleading. To put it kindly, the signing attorney on this amended complaint can make no such representations here. See Freeman v. Kirby, 27 F.R.D. 395 (SDNY, 1961). It is true, of course, that the federal courts are open to plaintiffs if they have just colorable controversies to litigate. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620 at 627 (1944). This case, however, is a mockery of the rather generous policy and procedures in the fedeal courts in regard to pleadings. Indeed, this is not a law suit; it is a parody of that device, perhaps designed to obtain public attention or to join other pending suits relating to the subject of air pollution. See, e.g. United States v. Automobile Manufacturers Association, Inc. et al., Civil Action #69-75, Central District of California and other cases by private litigants consolidated by the Judicial Panel on Multi-District Litigation (Docket #31). Indeed, as these motions were being noticed, plaintiffs moved before the Panel for consolidation and transfer of this suit to the Central District of California. That application is being held pending the decision of this court on these motions to dismiss. In my opinion, it would be a travesty to add this case to that combination of litigations in the Central District of California. The motion to dismiss is granted in all respects with the direction that no further pleadings of any kind are to be filed herein. It is clear that plaintiffs, with two opportunities squandered, have not and cannot state any cognizable claims. Necessarily, then, plaintiffs' cross-motion for an order designating this as a class action must fail. 1. Article I, Section 8. 2. As defendants suggest, plaintiffs must mean the Environmental Quality Improvement Act of 1970, 42 U.S.C. §§ 4371 et seq. 2 ELR 20111 | Environmental Law Reporter | copyright © 1972 | All rights reserved |