fact common to all of them will arise in the action.'
Notwithstanding our decision on the said motion, the action against the Charter Coach Corporation must be dismissed because of the Court's lack of jurisdiction. The complaint alleges that the action is one arising under 'a law regulating interstate and foreign commerce.' This general allegation will not sustain the asserted jurisdiction in the court.
It clearly appears from the specific allegations of the complaint that this is the ordinary tort action in which the local law is determinative of both the rights of the plaintiffs and the liability of the defendant. The Motor Carrier Act of 1935, 49 U.S.C.A. § 301 et seq., Part II of the Interstate Commerce Act, upon which the plaintiffs predicate the jurisdictional allegation, vests no right of action in plaintiffs and imposes no liability upon the defendant, except the usual obligation to comply with its provisions and the regulations promulgated thereunder. This is, therefore, not an action arising under either a law of the United States or a law regulating commerce. Gully v. First National Bank, 299 U.S. 109, 57 S. Ct. 96, 81 L. Ed. 70; Hull v. Burr, 234 U.S. 712, 34 S. Ct. 892, 58 L. Ed. 1587; Shulthis v. McDougal, 225 U.S. 561, 32 S. Ct. 704, 56 L. Ed. 1205; Toledo, P. & W. R.R. v. Brotherhood of R. R. Trainmen, etc., 7 Cir., 132 F.2d 265; Viles v. Symes, 10 Cir., 129 F.2d 828; Gardner v. Schaffer, 8 Cir., 120 F.2d 840; Isaac Kubie Co. v. Lehigh Valley R. Co., D.C., 261 F. 806.
The jurisdiction of the Court is not challenged by the individual defendant, but it is the duty of the Court to enforce the jurisdictional requirements where, as here, the defect is apparent on the record. 28 U.S.C.A. § 80; Kvos, Inc. v. Associated Press, 299 U.S. 269, 57 S. Ct. 197, 81 L. Ed. 183; McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S. Ct. 780, 80 L. Ed. 1135; Zicos v. Dickmann, 8 Cir., 98 F.2d 347; American United Life Ins. Co. v. Franklin, 8 Cir., 97 F.2d 76.
The third, fourth, fifth, and sixth counts of the complaint are dismissed.
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