Court of Appeals of Washington,

Division 1.

ALL STAR TRUCKING LLC, Appellant,

v.

RYDER VEHICLE SALES, LLC, a Washington Limited Liability Company, Respondent.

No. 75352–5–I

|

FILED: July 24, 2017

Appeal from King County Superior Court, 15–2–12083–2, Honorable Beth M. Andrus, Judge

Attorneys and Law Firms

Daniel Ross Fjelstad, Daniel R. Fjelstad, PLLC, Seattle, WA, for Appellant.

Dan’L Wayne Bridges, McGaughey Bridges Dunlap PLLC, Seattle, WA, for Respondent.

 

 

UNPUBLISHED OPINION

Leach, J.

*1 All Star Trucking LLC appeals the summary judgment dismissal of its lawsuit against Ryder Vehicle Sales LLC. Because All Star failed to establish a genuine issue of material fact as to any of its claims, we affirm.

 

 

FACTS

Gurminder Singh moved to the United States from India in 2013. He formed All Star, his own long-haul trucking business, the next year.

 

On June 25, 2014, Singh visited Ryder’s truck dealership in Des Moines to purchase a Freightliner Columbia tractor truck. Singh had driven this model before and was confident he wanted to buy it. Though Singh spoke limited English, he knew that Ryder’s sales manager, Muddasir Mirza, spoke both Punjabi and Hindi. Singh also brought an English-speaking friend to help him.

 

Mirza told Singh that Ryder had two Freightliner Columbia trucks for sale. Singh sat in the driver’s seat of one of them, which had 764,881 miles on it. He turned on the engine and examined the gauges. However, he did not drive the truck because “[i]t’s no use test-driving if there is no load in it.” According to Singh, Mirza told him that the truck had been “fully inspected and repaired by Ryder before it reached the lot” and that it was “fine.”

 

Satisfied, Singh returned to the Ryder dealership two days later, on June 27, 2014, and purchased the truck for $29,149. Singh admitted that he had not looked at or considering buying any other trucks because “I had heard Ryder’s a good company, they take care of their trucks, and the company is good and their trucks are good.” Ryder provided Singh with a nine-page inspection report. It said that the truck had been inspected two months earlier and that all components had passed inspection. The report noted only that the tail lights, visor light, and license plate lights were dim or burned out.

 

Ryder provided a limited express warranty for the truck. Singh signed and initialed it. The warranty stated,

Ryder Truck Rental, Inc. (“Ryder”) hereby warrants all covered components of the Vehicle identified herein against defects in material and workmanship for the first 30 days or 10,000 miles/16,000 kilometers from the Date of Sale, whichever comes first.

The warranty identified the covered components as the engine, the transmission, and the rear axle. The warranty specifically excluded carburetors, spark plugs, water pumps, hoses, belts, thermostats, engine electronic systems, charge air coolers, fuel pump seals and electronics, and external cylinder head gasket oil and water leaks. The warranty also excluded “ordinary wear and tear.” Finally, the warranty stated, in bold print and capital letters:

THIS LIMITED WARRANTY IS IN LIEU OF ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, AND RYDER EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

PURCHASER ACKNOWLEDGES THAT THE VEHICLE HAS BEEN PREVIOUSLY OWNED, IS USED AND NOT NEW AND, EXCEPT FOR THE LIMITED WARRANTY IS PURCHASED “AS IS.”

But Singh claims that Mirza told him, “Anything goes wrong, Ryder will fix it.”

 

Mirza also offered to sell Singh an extended service warranty. It covered repairs to the engine or transmission for up to a year and cost an additional $5,000. Singh declined the extended warranty. He stated that he could not afford it. Singh signed a form stating,

*2 I hereby decline to purchase the Ryder Road Ready PLUS Service Contract Agreement. I understand that I relinquish all right and provisions including any future service repair reimbursement that may occur outside the 30 day Ryder Used Vehicle Limited Warranty certificate agreement.

 

Singh testified that he understood that he would be bound by the terms of the documents he signed. However, he admitted that he did not read them or have his friend translate them for him.

 

Singh drove the truck to his home the day he purchased it. There, he noticed leakage from the front axle. Ryder instructed Singh to take it to a repair shop and paid the cost of the repair. Ryder also gave Singh a postpurchase inspection form to identify any other problems with the truck. Singh did not identify any other problems.

 

Singh testified that he made six or seven trips hauling cargo to California and consistently had problems with the truck. The record contains references to repairs performed by Sacramento Truck Center on July 28, 2014, by Valley Freightliner on August 19, 2014, and by Pacific Power Products on September 8, 2014. Mirza stated that while the express warranty did not cover any of these repairs, Ryder paid for the August and September repairs because Singh “his wife, and others on his behalf called and emailed persistently to the point it was a material distraction to running the dealership.”

 

In exchange for the August and September repairs, Singh signed releases waiving Ryder’s further responsibility for the truck. The releases said,

… You understand that Ryder is agreeing to make this payment as a one-time business accommodation for you and not because it is obligated to do so under the terms of the warranty or otherwise.

By accepting these terms from Ryder and signing below, you agree to waive and release Ryder (and all of its affiliated companies and persons) from all further responsibility of any kind with respect to the Vehicle and from and against any claims you may have with respect to it, whether those claims are now known by you or hereafter discovered. You further acknowledge that this waiver and release is unconditional, that Ryder has relied upon it in making this accommodation, and that your signature below acknowledges your agreement and authority to make this agreement.

 

On a trip home from California in late September or early October, the truck began vibrating. According to Singh, Pacific Power Products told him “that the engine needed to be rebuilt to finally solve all of the truck’s problems.” Pacific Power Products gave Singh an estimate of approximately $21,000 to rebuild the engine. Singh has not driven the truck since that time, believing it was not safe to drive.

 

On May 15, 2015, All Star sued Ryder, alleging breach of express warranty, breach of the implied warranties of merchantability and fitness for a particular purpose, and violation of the Consumer Protection Act (CPA), chapter 19.86 RCW.1 Ryder moved for summary judgment. The trial court granted Ryder’s motion and dismissed All Star’s lawsuit. All Star appeals.

 

 

STANDARD OF REVIEW

We review an order granting summary judgment de novo.2 We will affirm summary judgment when the record shows no genuine issue about any material fact and the moving party is entitled to judgment as a matter of law.3 “A material fact is one upon which the outcome of the litigation depends.”4 When reviewing a summary judgment order, we engage in the same inquiry as the trial court, considering the facts and all reasonable inferences from the facts in the light most favorable to the nonmoving party.5 We may affirm a trial court’s grant of summary judgment on any basis supported by the record.6

 

 

ANALYSIS

*3 All Star contends that summary judgment was inappropriate because a reasonable trier of fact could have concluded that the limited express warranty’s disclaimer was unconscionable.

 

RCW 62A.2–316 allows a seller to limit or exclude warranties. “Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is,’ ‘with all faults,’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.”7 And

[w]hen the buyer before entering into the contract has examined the goods or the sample or model as fully as he or she desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him or her.[8]

 

Washington courts have adopted a totality of the circumstances approach for deciding the enforceability of a warranty disclaimer in a commercial setting.9 The nonexclusive factors considered when making this decision include (1) the conspicuousness of the disclaimer in the agreement, (2) the presence or absence of negotiation about the disclaimer, (3) the custom and usage of the trade, and (4) any policy developed between the parties during the course of dealing.10 To specifically disclaim the implied warranty of merchantability or fitness, the Uniform Commercial Code also requires that the disclaimer be in writing and conspicuous.11 Under the totality of the circumstances approach, we presume the disclaimer is conscionable unless the party challenging it shows otherwise.12

 

Here, All Star fails to raise a genuine issue of material fact about the effectiveness of the limited warranty to disclaim Ryder’s liability. First, the disclaimer is in writing and conspicuous. The limited warranty was printed on a single page. The disclaimer is written in bold type and all capital letters at the very top of the page. And the disclaimer expressly mentions both the implied warranties of merchantability and fitness. Second, Singh had a reasonable opportunity to understand and discuss the terms of the disclaimer. Singh had bought trucks before and knew that documents he signed were binding on him. Though Singh read and spoke limited English, he brought an English-speaking friend to assist him. And Ryder’s sales manager spoke Singh’s native languages. Moreover, Singh had the option to purchase additional coverage, which he declined. The record contains no information about industry custom, and All Star had no prior course of dealing with Ryder. Thus, the totality of the circumstances supports the conscionability and enforceability of the warranty disclaimer.

 

*4 All Star contends that a court can never grant summary judgment when a party has raised a claim of unconscionability. He cites RCW 62A.2–302(2), which provides, “When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.” But a summary judgment hearing gives a party the reasonable opportunity to present evidence contemplated by this statute.13 And “unconscionability may be determined on summary judgment if there is no possibility, or no threshold showing, of unconscionability.”14

 

Quoting Cox v. Lewiston Grain Growers, Inc.,15 All Star contends that even if the warranty disclaimer is conscionable, it is unenforceable if it “ ‘fails its essential purpose.’ ” “A limitation of remedies fails its essential purpose when the defect is latent and non-discoverable upon reasonable inspection.”16 But Cox involved wheat seed that failed to germinate adequately because it had been treated with pesticides. The court found that the warranty disclaimer was not enforceable because the buyer could not have discovered the defect until he planted the seed.17 Here, however, All Star fails to establish that any alleged problems in the truck could not have been discovered with reasonable inspection.18

 

Finally, All Star asserts the trial court erred in dismissing its CPA claim. To prevail on a CPA claim, a plaintiff must show (1) an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) a public interest impact, (4) injury to the plaintiff in his or her business or property, and (5) a causal link between the unfair or deceptive act and the injury.19 “[W]hether a particular action gives rise to a Consumer Protection Act violation is reviewable as a question of law.”20

 

All Star asserts only that “[a] reasonable jury could find that Ryder’s course of dealing with All Star from the time of the truck’s sale through the parties’ last interaction in October, 2014 was oppressive and heavy-handed, and amounted to unfair or deceptive acts or practices in trade or commerce.” But this general statement does not prove, nor does the record support, any claim for unfair or deceptive practices here. “Absent adequate, cogent argument and briefing, we decline to wander through the complexities of the Consumer Protection Act.”21

 

We affirm the summary judgment dismissal of All Star’s lawsuit.

 

WE CONCUR:

Schindler J.

Becker J.

All Citations

Not Reported in P.3d, 2017 WL 3142421

 

 

Footnotes

1

All Star also alleged claims for revocation of acceptance and unjust enrichment, which are not at issue in this appeal.

2

Owen v. Burlington N. Santa Fe R.R. Co., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005).

3

Owen, 153 Wn.2d at 787.

4

Balise v. Underwood, 62 Wn.2d 195, 199, 381 P.2d 966 (1963).

5

Right–Price Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370, 381, 46 P.3d 789 (2002).

6

Steinbock v. Ferry County Pub. Util. Dist. No. 1, 165 Wn. App. 479, 485, 269 P.3d 275 (2011).

7

RCW 62A.2–316(3)(a).

8

RCW 62A.2–316(3)(b).

9

Puget Sound Fin., LLC v. Unisearch, Inc., 146 Wn.2d 428, 439, 47 P.3d 940 (2002). This contrasts with the two-prong approach applied to warranty disclaimers in a consumer transaction, which must be both (1) explicitly negotiated and (2) set forth with particularity. See, e.g., Berg v. Stromme, 79 Wn.2d 184, 196, 484 P.2d 380 (1971).

10

Puget Sound, 146 Wn.2d at 439 (citing Schroeder v. Fageol Motors, Inc., 86 Wn.2d 256, 259–61, 544 P.2d 20 (1975)).

11

RCW 62A.2–316(2).

12

Puget Sound, 146 Wn.2d at 439 (citing Schroeder, 86 Wn.2d at 262).

13

RCW 62A.2–302(1); M.A. Mortenson Co. v. Timberline Software Corp., 93 Wn. App. 819, 835, 970 P.2d 803 (1999).

14

M.A. Mortenson Co., 93 Wn. App. at 835.

15

86 Wn. App. 357, 370, 936 P.2d 1191 (1997).

16

Cox, 86 Wn. App. at 370.

17

Cox, 86 Wn. App. at 370.

18

Because All Star fails to establish that Ryder was obligated pursuant to express or implied warranties to pay for the repairs, we need not address his claim that the releases were unenforceable for lack of consideration.

19

Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986).

20

Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 150, 930 P.2d 288 (1997).

21

Saunders v. Lloyd’s of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989); see also Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996) (“Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.”).

 

 

United States Court of Appeals,

Eighth Circuit.

Ronald CALZONE, Plaintiff-Appellant,

v.

Josh HAWLEY, in his official capacity as Attorney General for the State of Missouri; Sandra K. Karsten, in her official capacity as Superintendent of the Missouri State Highway Patrol; Eric Greitens, in his official capacity as Governor of the State of Missouri,1 Defendants-Appellees.

Before COLLOTON and BENTON, Circuit Judges, and GERRARD,2 District Judge.

Opinion

COLLOTON, Circuit Judge.

 

*1 Ronald Calzone sued three state officials to challenge provisions of Missouri law that authorize roving stops of certain vehicles for inspection without suspicion. The district court held that the statutes were not unconstitutional on their face. The court also ruled that Calzone’s as-applied challenge was not adequately pleaded, because the defendants could not be sued in their official capacities under 42 U.S.C. § 1983. We affirm the court’s conclusion that the statutes are not facially unconstitutional, but we conclude that the as-applied challenge against the superintendent should have been considered on the merits, so we remand for further proceedings.

 

 

I.

In June 2013, Missouri state highway patrol corporal J.L. Keathley stopped Calzone while he was driving his dump truck on United States Highway 63 in Phelps County, Missouri. Keathley asked Calzone if he could inspect the truck, but Calzone refused. Keathley then explained that Mo. Rev. Stat. § 304.230 authorized him to stop commercial vehicles and inspect them whether or not he had probable cause. Keathley warned Calzone that if he did not submit to an inspection, then Keathley would issue him a citation. Calzone still refused, so Keathley issued him a citation for failure to submit to a commercial vehicle inspection. The Phelps County prosecutor later abandoned the action against Calzone.

 

Calzone then sued the governor of Missouri, the Missouri attorney general, and the superintendent of the Missouri state highway patrol under 42 U.S.C. § 1983. He sought a declaratory judgment that Mo. Rev. Stat. § 304.230.1, . 2, and .7 are unconstitutional on their face and as applied to him. He asked for a permanent injunction against the enforcement of these provisions, for one dollar in nominal damages, and for costs and attorney’s fees.

 

The district court granted summary judgment for the officials on Calzone’s facial challenge and granted judgment on the pleadings for the officials on the as-applied challenge. The court concluded that the challenged provisions were not facially unconstitutional, because they could be applied constitutionally to participants in the closely regulated commercial trucking industry. The court concluded that Calzone’s as-applied challenge failed because he could not sue the governor, the attorney general, or the superintendent under § 1983. The court reasoned that state officials acting in their official capacities are not “persons” subject to suit under the statute. We review the district court’s rulings de novo.

 

 

II.

[1]A threshold question is whether there is jurisdiction over Calzone’s action against each of the defendants—the governor, the attorney general, and the superintendent. Calzone adequately alleges that he was injured by a seizure and is likely to be injured in the future. But Article III standing to sue each defendant also requires a showing that each defendant caused his injury and that an order of the court against each defendant could redress the injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

 

*2 [2] [3]Because the defendants are state officials, Calzone also must show that the action is not barred by state sovereign immunity arising from the Eleventh Amendment. A suit for injunctive or declaratory relief avoids this immunity if the official has some connection to the enforcement of the challenged laws. See Ex parte Young, 209 U.S. 123, 157, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In a case like this one, the two inquiries are similar: “[W]hen a plaintiff brings a pre-enforcement challenge to the constitutionality of a particular statutory provision, the causation element of standing requires the named defendants to possess authority to enforce the complained-of provision.” Dig. Recognition Network v. Hutchinson, 803 F.3d 952, 957-58 (8th Cir. 2015) (alteration in original) (quotation omitted).

 

[4]Calzone plainly has standing to sue the superintendent. For purposes of the Eleventh Amendment and Ex parte Young, a state official’s requisite connection with the enforcement of a statute may arise out of “the general law” or be “specially created by the act itself.” 209 U.S. at 157, 28 S.Ct. 441. Section 304.230.1 specifically authorizes the superintendent to “promulgate rules and regulations relating to the implementation of the provisions” of § 304.230, so she is subject to suit on claims for injunctive and declaratory relief. Her directions that patrol officers should implement the statute by conducting vehicle inspections cause Calzone’s injury, and an order directing her to cease and desist would redress the injury.

 

[5]Calzone’s claims against the governor, on the other hand, do not present a case or controversy. No provision in Chapter 304 or the statutes defining his executive authority specifically authorizes the governor to enforce the vehicle inspection statutes. See Mo. Rev. Stat. § 26.010-.225. The Missouri Constitution confers upon the governor the duty to “take care that the laws are distributed and faithfully executed,” Mo. Const. art. IV, § 2, but such a general executive responsibility is an insufficient connection to the enforcement of a statute to avoid the Eleventh Amendment. See Fitts v. McGhee, 172 U.S. 516, 530, 19 S.Ct. 269, 43 L.Ed. 535 (1899). For similar reasons, the governor has not caused any injury to Calzone, and there is no Article III case or controversy between Calzone and the governor.

 

[6]The third defendant, the attorney general, has certain law enforcement authority, but his relationship to vehicle inspections is also tangential. The attorney general is authorized to aid prosecutors in the discharge of their duties when so directed by the governor and to sign indictments when so directed by a trial court. Mo. Rev. Stat. § 27.030. Calzone has pointed to no authority, however, suggesting that the attorney general has any role in causing vehicle inspections by the highway patrol. Calzone seeks to enjoin state officials from seizing him and his vehicle for inspection pursuant to Chapter 304 of the Revised Statutes. If the superintendent is enjoined from implementing rules that cause patrol officers to conduct the disputed seizures, then the seizures will end, and Calzone’s injury will be redressed. Calzone does not seek to enjoin a statute that subjects him to imminent prosecution by the attorney general, see Ex parte Young, 209 U.S. at 155-56, 28 S.Ct. 441, but rather to prevent imminent inspections by officers of the highway patrol at the superintendent’s direction. There is thus no case or controversy between Calzone and the attorney general.

 

For these reasons, Calzone has standing to sue the superintendent, and his claims against her for injunctive and declaratory relief are not barred by the Eleventh Amendment. The claims against the governor and the attorney general were properly dismissed, because there is no case or controversy between Calzone and those officials.

 

 

III.

*3 [7]On the merits, Calzone argues that Mo. Rev. Stat. § 304.230.1, .2, and .7 are facially unconstitutional, because they authorize roving stops of vehicles even if the stops are not supported by probable cause. To establish that these statutes are unconstitutional on their face, Calzone must show that there is no set of circumstances under which the laws would be valid. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).

 

[8]The challenged subsections of Mo. Rev. Stat. § 304.230 authorize certain law enforcement officers to stop and inspect commercial motor vehicles for certain delineated purposes. Subsection 304.230.1 provides that members of the Missouri state highway patrol “shall have the authority, with or without probable cause to believe that the size or weight is in excess of that permitted by sections 304.170 to 304.230, to require the driver … to stop, drive, or otherwise move to a location to determine compliance with [those] sections.” Subsection 304.230.2 authorizes “any highway patrol officer … to stop any [commercial motor vehicle] upon the public highway for the purpose of determining whether such vehicle is loaded in excess of the provisions of sections 304.170 to 304.230.” Subsection 304.230.7 gives the superintendent of the Missouri state highway patrol the power to “appoint members of the patrol who are certified under the commercial vehicle safety alliance with the power” to stop operators in order “to conduct commercial motor vehicle and driver inspections … to determine compliance with commercial vehicle laws, rules, and regulations.” As relevant, Missouri defines a commercial motor vehicle as “a motor vehicle designed or regularly used for carrying freight and merchandise.” Mo. Rev. Stat. § 301.010(7).

 

In New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), the Supreme Court held that a warrantless search of property in certain “closely regulated industries” is constitutional if three criteria are met: (1) the regulatory scheme advances a substantial government interest; (2) warrantless inspections are necessary to further the regulatory scheme; and (3) the rules governing the inspections must be a constitutionally adequate substitute for a warrant, i.e. the rules must provide notice that property may be searched for a specific purpose and must limit the discretion of the inspecting officers. Id. at 702-03, 107 S.Ct. 2636.

 

This court has held that commercial trucking is a closely regulated industry within the meaning of Burger. United States v. Ruiz, 569 F.3d 355, 356-57 (8th Cir. 2009); United States v. Mendoza-Gonzalez, 363 F.3d 788, 794 (8th Cir. 2004). Ruiz applied Burger to uphold an Arkansas statute that authorized warrantless inspections of commercial trucks. The court determined that “warrantless inspections of commercial trucks advance a substantial governmental interest and are necessary” to further the regulatory scheme. 569 F.3d at 357. The court also concluded that the statute provides a permissible substitute for a warrant. Id.

 

A similar analysis shows that the Missouri statutes are constitutional on their face. Missouri’s definition of “commercial motor vehicle” covers commercial trucks. Missouri has a substantial interest in ensuring the safety of the motorists on its highways and in minimizing damage to the highways from overweight vehicles. Ruiz, 569 F.3d at 357 (citing cases); State v. Rodriguez, 877 S.W.2d 106, 109 (Mo. 1994). Given the transitory nature of commercial trucks, United States v. Fort, 248 F.3d 475, 481 (5th Cir. 2001), and the difficulty of detecting violations of the regulatory scheme by routine observation, effective enforcement would be nearly impossible without impromptu, warrantless searches. United States v. Maldonado, 356 F.3d 130, 136 (1st Cir. 2004). The challenged subsections are also a permissible substitute for a warrant. They provide notice to commercial truck drivers of the possibility of roadside inspection by a designated law enforcement officer, and they limit the scope of the officer’s inspections to an examination solely for regulatory compliance. See Ruiz, 569 F.3d at 357. We therefore conclude that Mo. Rev. Stat. § 304.230.1, .2, and .7 can be applied constitutionally to participants in the commercial trucking industry under Burger, and the provisions are not unconstitutional on their face.

 

*4 [9] [10]Calzone also contends that the challenged subsections are unconstitutional as applied to him, because he is not a member of the commercial trucking industry. The district court concluded that Calzone could not bring an as-applied claim against the superintendent, because this official is not a “person” under § 1983. That conclusion is correct as to Calzone’s claim for damages. A suit for damages against a state official in his official capacity is a suit against the State, and the State is not a person under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). But Calzone can sue the superintendent in her official capacity for declaratory and injunctive relief, because those claims are treated as an action against the official personally and not against the State. See id. at 71 n.10, 109 S.Ct. 2304; Ex parte Young, 209 U.S. at 159-60, 28 S.Ct. 441. Therefore, it was error for the court to dismiss Calzone’s as-applied claims against the superintendent for declaratory and injunctive relief based on the meaning of “person” under § 1983.

 

The merits of Calzone’s as-applied challenge were not well developed in the briefs on appeal, and they are best addressed by the district court in the first instance. Calzone contends that he is not subject to all of the Federal Motor Carrier Safety Regulations, 49 C.F.R. pts. 390-97, because his dump truck is a “covered farm vehicle” under federal law. See 49 C.F.R. § 390.5. The State, at oral argument, replied that Calzone is indeed involved in the closely regulated commercial trucking industry, because Missouri law incorporates the federal regulations for trucks of a certain weight. See Mo. Rev. Stat. § 307.400.1(2), .5. The parties have not addressed, however, whether Missouri’s incorporation of the federal regulations also incorporates the exceptions for farm vehicles that are contained within those federal regulations, or whether Missouri’s own exceptions at § 307.400.1(2) and .5 are exclusive. Nor have the parties discussed whether a partial exemption from the federal regulations removes an operator from the realm of the closely regulated commercial trucking industry. The district court may need to consider these questions and others to resolve Calzone’s as-applied challenge.

 

* * *

 

For the foregoing reasons, we affirm the district court’s dismissal of Calzone’s facial challenge to Mo. Rev. Stat. § 304.230. We affirm the dismissal of Calzone’s as-applied claims against the governor and the attorney general and the dismissal of his claim for damages against the superintendent. We reverse the dismissal of Calzone’s as-applied claim against the superintendent for declaratory and injunctive relief and remand for further proceedings.

 

All Citations

— F.3d —-, 2017 WL 3366519

 

 

Footnotes

1

Attorney General Hawley, Superintendent Karsten, and Governor Greitens are automatically substituted for their predecessors under Federal Rule of Appellate Procedure 43(c)(2).

2

The Honorable John M. Gerrard, United States District Judge for the District of Nebraska, sitting by designation.