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GREYHOUND LINES, INC. v. MONROE BUS CORP.

March 26, 2004.

GREYHOUND LINES, INC., Plaintiff,
v.
MONROE BUS CORP. and GITTY UNGAR d/b/a/ WASHINGTON DELUXE BUS CO. Defendants



The opinion of the court was delivered by: ROYCE LAMBERTH, District Judge

MEMORANDUM OPINION AND ORDER

Before the Court is the defendants' Motion for Summary Judgment, requesting judgment in their favor and dismissal of the plaintiff's complaint pursuant to Fed.R.Civ.P. 56(b).

Upon consideration of the defendants' motion, the applicable law and the record in this case, the Court finds there are genuine issues of material fact that are in dispute. Therefore, the Court will deny the defendants' Motion for Summary Judgment.

  BACKGROUND

  On October 15, 2002, the plaintiff, Greyhound Lines, Inc., filed the instant action against the defendants, Monroe Bus Corp. and Gitty Ungar, alleging that the defendants conducted unauthorized scheduled, regular-route motor carrier operations between New York and Washington, D.C. in violation of 49 U.S.C. § 13901, 14704(a)(2) and 14707(a), thereby, injuring plaintiff Greyhound by diverting passengers and revenue. At some point after this suit was instituted, defendant Monroe Bus Corp. applied for and received registration to conduct a Page 2 scheduled, regular-route motor carrier operation pursuant to § 13901. Defendant Ungar has not attempted to procure § 13901 registration, and continues to engage in the allegedly violative behavior. Therefore, plaintiff Greyhound seeks only compensatory and punitive damages from defendant Monroe Bus Corp. for the revenue loss that it suffered during the period in which defendant Monroe Bus Corp. operated without a § 13901 registration certificate, as well as attorneys' fees. Plaintiff Greyhound still seeks injunctive relief against defendant Ungar and compensatory and punitive damages for the revenue loss it suffered, and continues to suffer, as a result of her violation of the § 13901 registration requirement, as well as attorneys' fees.

  The defendants moved for summary judgment on the action in its entirety pursuant to Fed.R.Civ.P. 56(b). Plaintiff Greyhound did not cross-move for summary judgment.

 I. Undisputed Facts

  Plaintiff Greyhound is a scheduled, regular-route motor carrier passenger service in interstate commerce, pursuant to authority granted by the Federal Motor Carrier Safety Administration of the United States Department of Transportation ("FMCSA").*fn1 Plaintiff Greyhound is incorporated in Delaware and conducts business between New York and Washington, D.C. from a terminal located at 1005 1st Street, NE, Washington, D.C.

  The defendants became involved in the operation of scheduled, regular-route motor carrier passenger services in interstate commerce on or about July 1, 2002. Defendant Monroe Bus Corp. did not obtain registration from the FMCSA pursuant to § 13901 until sometime after the instant action was filed, and defendant Ungar is still not registered with the FMCSA pursuant to § 13901. Defendant Monroe Bus Corp. is incorporated in New York, conducts business in Page 3 New York from offices located in Monroe County, New York and Brooklyn, New York, and is engaged in the operation of a scheduled, regular-route motor carrier passenger service between New York and Washington, D.C. Defendant Ungar does business as Washington Be Luxe Bus Co., is a resident of New York, has a business office located in Brooklyn, New York, and also engages in the operation of a scheduled, regular-route motor carrier passenger service between New York and Washington, D.C.

 II. Parties' Arguments

  Plaintiff Greyhound maintains that on or about July 1, 2002 the defendants began unlawfully holding themselves out as scheduled, regular-route motor carrier passenger services between locations in New York and Washington, B.C. Plaintiff Greyhound maintains that defendant Ungar began conducting unauthorized scheduled, regular-route motor carrier operations between New York and Washington, D.C under the name "Washington Be Luxe Bus Co." In support of this contention, plaintiff Greyhound notes that defendant Ungar advertised and solicited business for Washington Be Luxe Bus Co. by printing and distributing flyers, running ads in New York and Washington, B.C. area newspapers, and setting up a web page with schedules and toll-free and direct telephone numbers. Plaintiff Greyhound also points to a Washington Post article, based on an interview of defendant Ungar, that identifies defendant Ungar as the owner of Washington Be Luxe Bus Co., and lists phone numbers ascribed to defendant Ungar and one of her addresses. Plaintiff Greyhound maintains that Washington Be Luxe Bus Co. transported passengers between New York and Washington, B.C., and that the passengers usually paid the bus driver at boarding time. Plaintiff Greyhound also contends that the defendants engaged in deception in contravention of § 13901 by displaying signs for Page 4 "Washington De Luxe Bus Co." before departure, but replacing those signs with ones displaying the name of "Monroe Bus Corp." upon departure.

  Defendant Monroe Bus Corp. counters that it merely "leased its buses with drivers to Sharmash [Bus Corp.] through daily charter arrangements for part of Sharmash's New York-Washington transportation," and, therefore, was not required to obtain a § 13901 registration certificate from the FMCSA in order to lawfully conduct its business. See Defendants' Motion, p. 15-16. Defendant Monroe Bus Corp. further maintains that its lease with Sharmash was "for Sharmash common carrier bus service between Brooklyn, N.Y. and Washington, D.C.," and that a conspicuous service placard stating that the motor carrier service was being operated by Sharmash, not Monroe Bus Corp., was displayed under Sharmash's FMCSA-issued registration certificate. Defendant Monroe Bus Corp. also notes that it is not the only lessor of Sharmash for this particular type of service. Moreover, defendant Monroe Bus Corp. maintains that its later application for and receipt of an FMCSA-issued § 13901 registration certificate was for the purpose of mitigating litigation expenses in connection with this action, not because it was required to do so by law.

  Defendant Ungar maintains that she has no lease agreement with Sharmash, and does not hold herself out as the conductor of a scheduled, regular-route motor carrier passenger service between locations in New York and Washington, D.C. Rather, defendant Ungar maintains that she is merely a sales agent for Sharmash, and only handles reservations and ticket distribution. Defendant Ungar also contends that the Washington De Luxe Bus Co. brochures clearly indicate that the bus service is operated by Sharmash under an FMCSA § 13901 registration certificate issued to Sharmash. Page 5

  Moreover, both defendants, while conceding diversity jurisdiction, dispute that the amount in controversy exceeds $75, 000, maintaining that the alleged injury could not meet the $75, 000 threshold requirement because defendant Monroe Bus Corp.'s single-trip daily Sharmash Brooklyn, N.Y. — Washington, D.C. service is non-competitive and minuscule in view of plaintiff Greyhound's combined arrangement with Peter Pan Bus Lines. The defendants also dispute the Court's jurisdiction under 28 U.S.C. § 1332(a)(1) or 1331, and maintain ...


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