In Re Federal Skywalk Cases. In Re Melanie Hanson Johnson and Gerard Stanley Johnson, in Re Federal Skywalk Cases. In Re Jacqueline N. Rau

petition We reverse denial of the corpus. conviction is

writ of habeas pro- we further

vacated and remand for opinion. with this

ceedings consistent

In re FEDERAL SKYWALK CASES.

In re Melanie Hanson JOHNSON and Johnson, al., Stanley et

Gerard

Petitioners.

In re FEDERAL SKYWALK CASES. Appellant. Jacqueline RAU, N.

In re

Nos. 82-1207. Appeals,

United States Court of

Eighth Circuit. March 1982.

Submitted

Decided June 9,1982.

Rehearing July Denied D.C., Anderson,

ington, Granger, Nagels, Gordon, Granger, Lastelic & Kenton C. Rob- Gordon, Park, Kan., Grier, ert C. Overland Weiner, Routman, & Richard L. Swartzman Thomas, M. Stoup, Thompson Charles & Wohlner, Stoup, Arthur H. City, Kansas Mo., Collins, Robert L. Collins & Steinburg, Houston, Tex., Whitaker, William P. Kan- Mo., City, respect sas with to all matters certification, pertaining to class Arthur R. Miller, School, Harvard Law Cambridge, Mass., representative for plaintiff and the class. Miller,

Richard W. Glynn, Joseph Miller & Sherman, A. Lysaught, Patrick James M. Sherman, C., Yeretsky, Jackson & P. Kan- Mo., City, sas respondents, for Havens Steel Co. Leittem,

Thomas J. Loseke, K. Suzanne Shughart, Kilroy, Thomson & A Profes- Corp., Mo., sional City, Kansas respon- for dent PBNDML Inc. Fabian, Goheen,

Bill E. James R. McAna- ny, A., Van CleavePhillips, P. Kansas Kan., City, for respondent Eldridge & Son Const. Inc. Tucker,

Gordon N. Myerson, Laurence R. Morris, Larson, King, Stamper Bold, & Mo., City, Kansas Boucher, for Smith & Inc. Welch, Lantz Foust, Max W. Patrick McLarney, City, Mo., Kansas Sullivan, John E. Franch, Thomas P. Sham- Richard T. berg, Mission, Kan., Shawnee Barker, B. Kent Stick, Charles L. Michael A. A. Paul Snapp, Clayton Chittim, A. City, Kansas Rogers, Ill., Chicago, appellant for Jacque Mo., Williams, S. Preston North Kansas Rau; Block, line N. Ill., Jenner & Chicago, Mo., City, Skywalk Liaison Committee. Shook, Bacon, Hardy Mo., & City, Kansas counsel. James, Donald L. Grebel, Lawrence B. Brown, James, Rabbitt, Whaley, McMullin Townsend, Jerome Shapiro, G. John M. Pitzer, Louis, & Mo., St. for respondent, Stern, Hughes Reed, Ronald A. Hubbard & Gillum-Colaco Consulting Engi- Structural Driscoll, York City, New Robert L. Law- neers, Inc. Berkowitz, Stinson, Fizzell, rence M. Mag & Whittaker, Mo., Judith City, C. Kansas Patrick McLarney, Morris, David R. John respondents Murphy, Crown Center F. Redevelopment Timothy Kennedy, J. Andrew See, Shook, Corp. Cards, Bacon, Hardy Hallmark Inc. & City, Kansas Mo., John E. Shamberg, Johnson, Lynn R. Waldeck, Niewald, Michael E. Risjord & Schnider, Shamberg May, & Shawnee Mis- Waldeck, Jr., E. Deacy, Deacy Thomas & sion, Kan., Foust, Foust, Max W. Morris & Deacy, Mo., City, Reuben, Kansas Don H. Mo., City, Ponick, Kansas Jr., Duke W. Kahn, Post, Michael A. Charles C. Reuben City, Mo., Kansas petitioners. Proctor, Ill., & Chicago, for Hyatt Corp. Williams Connolly, Irving & Younger, HEANEY, Before McMILLIAN and AR- Wolff, Paul Mogin, NOLD, Martin Paul Wash- Judges. Circuit Following the McMILLIAN, Judge. disaster numerous Circuit lawsuits were filed in both the Circuit challenges validity This action County, (state Court for Jackson Missouri ren- mandatory class certification order court), and the United States District Court District Court1 dered United States (dis- Western District Missouri during Missouri District of for Western court).5 jur- trict The federal district court arising of out of litigation the course isdiction was based on 28 U.S.C. Hyatt § Re- collapse skywalks of two diversity citizenship. City, Missouri gency Hotel Kansas July, The class was certified on 1981.2 The state court cases were consolidated pu- compensatory and liability issues of for assigned and to Judge Timothy O’Leary. damages and amount nitive The federal cases were also consolidated all business invitees damages, and includes assigned and to Judge Scott Wright. O. during disaster. at the hotel Shortly filed, after the first cases were (objectors) objecting plaintiffs now Two state and district court consolidated their to vacate order and petition respective discovery. cases for Each court judge disqualify the federal district assert- a appointed Plaintiffs’ Liaison Committee ing jurisdiction under 28 U.S.C. discovery to aid and other matters. In 1292(a)(1), under alternatively, or manda- § addition, appointed the two joint courts response representative In the class mus.3 state-federal Plaintiffs’ Liaison Committee interlocutory there- argues that the order to aid in the consolidated discovery.6 Each by precluding appellate review. Alterna- pretrial court held conferences and issued argues tively, representative class that pretrial orders concerning scheduling of judge did not abuse his the federal district discovery. certifying discretion in the class further For rea- appropriate.4 certification, that the class is Prior to the class the Plain- below, we we sons discussed conclude that tiffs’ Liaison accomplished Committee sub- jurisdiction do have under U.S.C. discovery stantial preparation and trial on 1292(a)(1) and further the order § plaintiffs. behalf of all accomplish- The because it must be vacated violates nearly ments included completing the inter- Act, 28 We Anti-Injunction 2283. § U.S.C. rogatory phase discovery serving 455(a) also conclude that U.S.C. does requests production upon for the defend- of the require disqualification feder- addition, ants. In the committee collected judge. al district 300,000 approximately pertain- documents to the July 17, arranged and had skywalks On two in the lobby Hyatt depository plain- in document Regency central Hotel available to all Missouri, City, collapsed killing Kansas tiffs’ counsel. committee also had ar- persons injuring hundreds of others. ranged testing for the of the skywalk mate- arising Wright, 1. The Honorable O. United Scott States out of the disaster. How- Judge ever, holding, for the District Mis- District Western in view of our we do not reach souri. arguments. the merits of these Cases, Skywalk In re Federal 2. F.R.D. 415 By January, ap- 5. the end of there were (W.D.Mo.1982). proximately 120 cases filed in state court and eighteen addition, plaintiff designations filed in 3. The individual In re district court. certification, Jacqueline prior N. Rau and In re Melanie Hanson the class 123 claims had addition, Johnson. defendants Cen- Crown been settled a total $18.5 settlement cost Inc., Redevelopment Corp., Cards, ter Hallmark million. Hyatt Corp. and the Plaintiffs’ Liaison Commit- participated tee as amici curiae. All amici curi- 6. The state court Liaison Committee consisted certification, oppose ae but the Plain- attorneys of twelve district and the court com- disqualification tiffs’ Liaison Committee seeks attorneys. mittee consisted five Three com- judge. of the district appointed by mittee members were both courts and served on both committees. representative argues 4. The class that class appropriate certification is an device to handle desirability for and of class action need Bureau of Standards. the National rials Johnson, Ap- was arguing Melanie Hanson there no evi- Brief In re treatment McLarney.” of Patrick I “Affidavit pendix satisfy funds to all dence of insufficient was hearing Judge A held before claims. Molly Riley, dis- On October on December Wright filed motion plaintiff, trict court class cer- sought motion certification. issuing the class certification or- Prior 23(b)(1)(B), under Fed.R.Civ.P. tification Judge Wright der on became appeal, now 23(b)(3), as under in the alternative could serve as class Riley aware pu- issues of she was not of di- representative because damages and the amount nitive citizenship from all defendants. verse requesting damages.7 basis complaints Wright then reviewed the Judge Riley’s concern there was certification and determined that Sto- file to inadequate pay funds available would be ver, Johnson, Vrabel, Grigsby and Aber- and compensatory all claims to all nathy were diverse defendants. Riley that her coun- also moved damages. Thereafter, lead counsel for the appointed Judge Wright placed sel as tel- be two Collins, class. ephone calls to Robert Stover’s at- torney, inquired and whether Stover would state court federal and Several representative serve as class if a class was Riley’s mo- opposition to pleadings filed Wright stated that if Judge certified.8 also challenged objecting tion. representa- agree would to be class Stover attorney’s to Riley’s qualifications and her appoint tive would Collins as assistant They challenged the also he represent class. (3) questions pertinent part: the provides court finds that the of Fed.R.Civ.P. 23 law or fact common to the members of the (a) Prerequisites to a Class Action. One or predominate any questions class over affect- may class sue or be sued more members of a members, only individual and a class only parties representative on behalf of all superior is to other available action for methods joinder (1) class so numerous that of if the adjudication the fair efficient and of the (2) impracticable, are members there all questions (3) controversy. pertinent The matters to the class, to the of or fact common law (A) findings the include: interest of members representa- defenses of the the claims or individually controlling the class in of prosecution the typical parties de- of the claims or tive are actions; separate or defense of class, (4) representative of the and the fenses (B) any litigation the extent and nature protect parties fairly adequately the will and concerning controversy already the com- interests of the class. class; against menced (C) or members of the (b) An action Actions Maintainable. Class desirability undesirability or con- as a action if the be maintained class centrating litigation of the claims satisfied, (a) prerequisites are of subdivision forum; (D) particular likely the difficulties to and in addition: management be encountered in the of a class (1) prosecution separate actions action. members of class or individual 23(b)(3) Class in a to members class free would create risk of while, rule, “opt majority out” under class adjudications (A) varying or inconsistent 23(b)(1)(A) 23(b)(1)(B) in a members or class respect members of the with to individual “opt Reynolds cannot out.” v. Nat’l Foot- incompatible class which would establish League, ball 584 F.2d 280 opposing party standards of for the conduct class, or telephone 8. The content of the conversations (B) adjudications respect to with plaintiff’s disputed. McLarney, a state Patrick prac- as a which would members tical matter the class Foust, attorney, and Max W. torney, stated that Collins had told them that a defendant’s at- dispositive of the interests of be adjudi- parties other to the members Judge Wright certify going had told Collins he was to substantially impede impair or cations or appoint Riley’s and counsel as interests; ability or their lead counsel. In re Melanie Hanson Johnson (2) opposing party class has acted 13, 14, Appendix Volume II Exhibits Affidavits grounds generally appli- McLarney. or refused to on act W. of Max lins, however, Foust and Patrick Col- class, thereby making appropri- Wright Judge cable to states that injunctive corresponding might certify Appen- ate final relief or him that he a class. told dix to damus Exhibit Affidavit of Robert Collins. declaratory respect Opposition with to the class as Brief In relief to Petition for Man- whole; satisfied, Riley’s attorney class counsel to a class id. at specific Judge Wright requirements 23(b)(1) of Rule was certified. Collins were also sat- speak again after Collins isfied. court stressed that agreed consult- the “inter- of all parties ests thereupon ed with Stover. Collins called concerned” would best be attempt- wasteful, served “the unsuccessfully repet- counsel and avoidance of defense litigation,” itive and that such then ed settle Stover’s claim. Stover by “trying could avoided representative. issues of agreed be class liability for compensatory damages, liability ob- January On counsel for the punitive damages puni- and amount of plaintiffs moved, jecting pursuant damages only tive once.” Id. at 423. 455(a), Judge Wright disqualify U.S.C. support 23(b)(1)(A) Rule based on his communications with Collins. the court found that individual suits on the 25, 1982, January Judge Wright On en- liability issues of for compensatory pu- appealed tered the order from in he nitive create risk of incon- (1) Riley’s denied motion for class certifica- sistent results. Id. at 424. her citizenship tion because was not diverse support 23(b)(1)(B) Rule defendants, (2) from all certified a class the court relied on three considerations. 23(b)(1)(A) on the under Rule issues First, the defendants puni- held liable for liability damages might tive lack the funds to pay (3) damages, certified a class action under the full amount of such damages. Id. at 23(b)(1)(B) issues Second, 424. individual suits punitive for punitive damages and the puni- amount of damages would create a risk of unfairness Stover, damages, (4) tive selected to the other claimants because “there is Vrabel, Abernathy Grigsby rep- and as class uncertainty some under Missouri law as to resentatives,9 (5) Riley’s selected counsel a single whether can defendant be liable for counsel, the rep- lead and counsel for class punitive more than one award of dam- counsel, (6) resentatives as assistant ages.” Third, Id. at 424. the court noted disqualify denied the un- motion himself prosecution that the punitive 455(a), explaining der he called Col- § damage actions could create an ethical courtesy lins as a matter of had and intend- problem for representing counsel more than Johnson, Vrabel, ed to the lawyers call one victim in that the counsel would be Abernathy and Grigsby but did not do so forced decide which to bring suit first. filed, to disqualify because motion was Id. at 425. and further he had not decided to certify 9, 1982, the class until the was drafted February order On objectors filed entered, (7) objectors’ and and re- appeal denied their notice of petition for man- quest certify interlocutory appeal an un- damus. 1292(b). Sky-

der 28 U.S.C. In re Federal § inquiry Our initial must be whether the Cases, (W.D.Mo.1982). walk F.R.D. is appealable. order Recognizing that support In of its order the district interlocutory, order is we would neverthe- found that general prerequisites less have appellate jurisdiction under prescribed 23(a) class actions 1292(a)(1) were (1976)11 U.S.C. § that order is 1, 1982, February Grigsby, 1292(a)(1) provides 9. pertinent On 11. 28 Vrabel and U.S.C. § Abernathy representa- part: were deleted as class Grigsby tives because had settled and Vrabel (a) appeals jurisdic- courts shall have Abernathy citizenship were not of diverse appeals tion from: Hyatt Corp. (1) Interlocutory orders of ., granting, courts of the United States continuing, modifying, refusing .. appears underlying It that the main concern dissolving or Judge Wright’s an certification is there is injunctions .... question uncertain of Missouri law as to wheth- plaintiffs may multiple er seek to recover punitive damages arising awards of gle wrongful from a sin- act of defendant. Therefore, forego process acts must the settlement resolu- in character. injunctive punitive the trial of the dam- nature and await depends upon issue tion argue age objectors issues. order. their enjoins prosecuting them from order Cases, (em- Skywalk In re at 428 Federal damages. punitive court actions state added). addition, phasis the substantial the order argues that response the class enjoined state effect of order also injunction does not use an because it pursuing pending state and, impor- terminology more injunction court actions on the issues of objectors from enjoin it does not tantly, punitive damages and characteriz- settling their claims. The class punitive damages. the amount the order as follows: es argument At oral counsel for the class whether the motion concerns [t]he 1292(a)(1) argued that U.S.C. should can use individual defendants apply not be construed to class certifica- to defeat damage settlements as evidence a man- tion because inevitable effect of dam- recovery diminish the injunction is an state datory that issue. in the trial on ages classwide court actions on class issues. We conclude representative plaintiff and argument persuasive on the any sought enjoin never member have us. facts before an entering the class from into individ- parties mandatory It true that to a ual settlement of claim. free to initiate other class are not actions in Representative on Behalf of Brief litigate courts to class certified issues. See (emphasis add- Class at 4 Plaintiff Reynolds v. National League, Football character- ed). agree We do not with that However, juris- have and conclude that we do ization case the com- had 1292(a). under 28 diction U.S.C. § state menced their court actions before the an or The determination of whether motion for class certification had been filed injunction the sub depends upon der is in district court. The state court cases had effect of the than its stantial order rather filed, consolidated, discovery been and had terminology. Metropolitan See Ettelson v. begun.12 injunction pend- It is this against Co., 188, Insurance 63 S.Ct. Life U.S. juris- state court actions that gives us 163, (1942); 87 L.Ed. 176 re Glenn W. 1292(a). diction under 28 U.S.C. See § Enterprises Litigation, Turner F.2d 775 Inc., 1096, Hurley, re W.F. 553 F.2d (3d Cir. (8th 1977); In re Cir. Glenn Turner Enter- prises Litigation, 521 F.2d at 775. case, contrary present In the to the assertion, expressly the district court class’s jurisdiction we have Because over prohibited settling class members appeal injunction and because the is inter- punitive damage their claims: dependent with the ap- remainder of the order, negotiate Legitimate may pealed may claimants and we entire review the settlements defend- as it appealed. execute with those order insofar has been urged Independence who have vociferously Corp., ants this Deckert v. Shares 287, process 282, 229, 232, court to allow the settlement to U.S. 61 S.Ct. 85 L.Ed. 189 (1940) (jurisdiction reviewable); continue. Those claimants who want to Adashunas punishable 600, payment allegedly (7th 1980) exact 626 F.2d Negley, Cir. Judge O’Leary 12. the settle- Prior to the class had had also aided certification 123 cases process by convincing process ment insurers been settled. settlement slowed Cards, Inc., Redevelop- considerably Hallmark down after Crown Center the class certification Corp. Hyatt Corp. ment to commit a because the were not able to release damage $151 $333 minimum of mil- Qf million the total claims. In re Federal Cases, Skywalk coverage lion to the settle- insurance 428. The defendants were Hyatt pursue only Corp. unwilling ment of the claims. v. Occidental Co., (Mo.Cir.Co. Fire & Cas. No. CV81-22009 settlements. 30, 1981), transcript 75-77. Dec. reviewable); origins Emerson Electric (class development issues Co., Manufacturing present Act, v. Black and Decker Co. the statutes which 234, 1979) (venue preceded it, have been amply described in Therefore, decide reviewable). prior we need not our opinions and need not be re- order would have been review- whether the stated here. The most recent of these petition opinions able as a for mandamus. Foster, Mitchum v. 407 U.S. 225, S.Ct. (1972), 32 L.Ed.2d [92 705] enjoins order conclusion Our and Atlantic Coast R. Line Co. v. Locomo- an proceedings necessitates pending state Engineers, tive 398 U.S. S.Ct. [90 of that order propriety inquiry as to 1739, 26 (1970). L.Ed.2d Suffice it to 234] Act, 28 Anti-Injunction U.S.C. under the say that the isAct an prohibition absolute provides Act court 2283. The § “[a] against any injunction state court injunc- may grant United States proceedings, injunction unless the falls proceedings state court stay tion within one of the three specifically except expressly authorized Act of exceptions defined in the Act. The Act’s necessary in of its Congress, or where aid purpose is to forestall the inevitable fric- jurisdiction, or to or effectuate its tion between the state and federal courts judgment.” injunction that ensues from the of state R.R. v. In Atlantic Coast Line Locomotive judicial proceedings by a federal court. 281, 286-87, Engineers, 398 U.S. Packing Oklahoma Co. v. Oklahoma Gas 1739, 1742-43, (1970), 26 L.Ed.2d 234 & Electric S.Ct. [60 Supreme recognized Court that the Act im- 84 L.Ed. Respondents’ 447] poses positive prohibition: flat that, principal contention is as the Court On its face the Act is an abso- held, of Appeals Act, Clayton 16 of the § prohibition enjoining lute state private authorizes a action to re- proceedings, injunction unless the laws, dress violations of the antitrust specifically falls within one of three comes within the “expressly authorized” exceptions. respondents defined exception to here have intimated that the Act proposition We test this mindful of our a “principle comity,” establishes not a admonition that: binding power rule on the federal “[a]ny doubts as propriety to the of a argument implies courts. The injunction federal against state court certain circumstances a federal court proceedings should be resolved favor enjoin proceedings state court even if of permitting the pro- state courts to justified by any action cannot in ceed an orderly fashion to finally the three exceptions. accept We cannot controversy.” determine the Atlantic any such contention. In 1955 this when Co., Coast Line R. [398 U.S.] interpreted statute, Court it stated: 1739 at S.Ct. [90 1748]. conveying “This not a statute a broad approach This cautious is mandated general policy appropriate by ap- ad hoc “explicit wording the Legislative 2283” and the plication. policy ex- here principle system “fundamental a dual pressed prohibition quali- in a clear-cut of courts.” We have Ibid. no occasion only specifically excep- fied defined to broadly: construe the more Amalgamated Clothing tions.” section Workers Bros., 511, 515-516, v. Richman 348 U.S. beyond pro- clear cavil that the “[It is] 452, 455, (1955). S.Ct. L.Ed. [75 600] hibition is away by be whittled judicial improvisation.” Clothing Recently plurality the Court in Ven- Workers v. Richman Bros. 348 U.S. do Co. v. Corp., Lektro-Vend 511, 514, 452, 454, S.Ct. 99 L.Ed. [75 630-31, 2881, 2887, 53 L.Ed.2d 1009 600] (1977), emphasized continuing the force Atlantic Coast Line: U.S. at 2887 .... S.Ct. analogy be- Munoz, proposes The class a second v. Imperial County also n earlier deci- tween the order and several (1980) 66 L.Ed.2d 54,101 S.Ct. U.S. injunction which when an sions allowed an Act). nature absolute (reemphasizing company brought insurance a federal suit be Therefore, injunction is to if the declaratory judgment particu- that a on the basis it must upheld, beneficiary was the policy lar invalid and from one authority derives court’s district subsequently sues in state court to recover the appeal exceptions. On three the the policy. We conclude that under aid of its “necessary in on the relies persuasive. analogy is it first support In exception. jurisdiction” recent we note that most Initially order and a analogy an between draws 1940,long was cited decided case a federal under which interpleader Rule 22 enactment of the current Anti- before the prosecuting enjoin claimants court can note that even Injunction Act.13 We also reasons The class in state court. the class ac- commentator cited situation, here, interpleader as in the knowledges: that the class fund and there is a limited probable that a federal court ... it seems all claimants. necessary action is enjoining not be warranted in disagree. We pending of a state action prosecution [on premise analogy is based on brought during policy], where being required defendants possibility of oppor- period and there is an contestable damage award is one pay up the defense of fraud in tunity to set concept un- limited fund comparable to the .... the state court That interpleader. derlying federal Practice 910.225 at 1A Moore’s Federal H interplead- is erroneous. “Federal premise prop- depends on identifiable jurisdiction er addition, the cited cases are distin- obliga- or erty pecuniary a limited fund they on the basis that involved guishable juris- tion, predicate proper and it is not parties were situations in which identical recover potential mere on the diction mutually exclusive theories con- litigating v. injury.” Murphy pecuniary cerning rights policy in the same 1155,1159 Co.,534 F.2d Travelers Insurance forums. is not case different Such Cannon, 1976), citing Wallach Furthermore, by the here. as conceded (8th Cir. 357 F.2d 557 class, injunctions against the cases involved contrast, subsequent state actions. has an un- present case the class In the injunction case was damages against claim for certain pending state actions. liability. have not conceded defendants who a limited fund qualify The claim does not allowing argues Next the class indi- prerequisite for jurisdictional is a nullify vidual actions in state court will the limited interpleader. Without federal purpose Supreme of the class. The Court interpleader an analogy there is no narrowly interpreted “necessary fund has to treat the class action as jurisdiction” exception, pend- and no reason aid of and a the Anti-In- with the interpleader purposes truly state suit must interfere jurisdiction. objec- federal As the junction Act. court’s today. representative following how decided But cites the those cases would be 13. The class Miller, Keystone Wright, Cooper, support argument: 17 A. E. Federal in of her see C. cases Co., '(1978), Dairy 19 F.2d 68 4222-4223 §§ Co. v. New York Life Ins. Practice Procedure 1927); Anti-Injunction (3d explaining Mutual & Accident Act was not Cir. Ben. Health Teal, F.Supp. (E.D.S.C.1940); against applied prohibition 34 714 en- Ass’n v. as an absolute Co., (7th joining proceedings v. Alliance Ins. 87 F.2d 253 until the Su- Jamerson state court cert, denied, 683, 753, Cir.), Toucey 81 preme 300 U.S. 57 S.Ct. v. New York decision in Court’s (1937) (by implication); 118, 139, Co., Brown v. L.Ed. 886 86 Life Ins. 314 U.S. Co., Pacffic Life Ins. 62 F.2d 711 Cir. Mut. L.Ed. 100 1933) (by implication). not decide We need

1183 out, the plurality compelled a of correctly point to hold despite tors that Judge its Court in Vendo Co. Supreme reaffirmed Wright’s legitimate concern for the effi- per- a in holdings that simultaneous earlier management cient of mass tort litigation, with action does not interfere sonam state the class certification order must be vacat- jurisdiction a federal court in a suit the ed. Mr. Justice Black’s concluding words in involving subject the same matter. Atlantic Line particularly Coast are apt Co., Life Ins. Toueey v. New York here: 134-135, [118], at S.Ct. U.S. [62 This case is easy no means an one. we (1945)], L.Ed. acknowl- arguments in support of the union’s excep- edged the of a historical existence contentions are not insubstantial. But Anti-Injunction Act in cases to the tion whatever doubts we may have are jur- court has obtained the federal where strongly general affected prohibi- res, prior to the state-court over isdiction tion of Any § doubts as “necessary in aid Although action. propriety injunction of a federal exception fairly be of” to § state court proceedings should be re- this historical in incorporating read as in solved favor of permitting the state Wright, exception, see C. Federal rem proceed courts to orderly in an fashion to Courts, (3d 1976), p. ed. § finally determine the controversy. simply federal and state actions here explicit wording is personam. implies in The traditional notion itself § much, personam in actions in federal and as and the principle fundamental proceed concurrently, court may state aof dual system courts leads inevita- court, from either without interference bly to that conclusion. excep- there is evidence no 296-97, 398 U.S. at 90 S.Ct. at 1747-48. tion to 2283 was intended to alter § The foregoing ruling not dispose does parallel We never viewed balance. have appeal entire because the also personam interfering in as actions with the disqualification seek Judge Wright court; jurisdiction of either we 455(a), under 28 provides U.S.C. which § in Burke stated Kline v. Construction judge . that a “. . shall disqualify in himself 79, 67 S.Ct. L.Ed. [43 226] any proceeding his impartiality which (1922): reasonably might questioned.” be The ob- brought enforce [a “[A]n jectors argue Judge Wright’s parte ex liability] personal does not tend to im- with communications Collins raise reasona-

pair jurisdiction defeat questions ble Judge Wright as whether is prior court in action for biased in obliging favor same cause Each class mem- pending. court is proceed We way disagree. free in its own bers. time,

its own without reference to the 455(a) requires 28 U.S.C. § proceedings in the other court. When- judge to judgment disqualify himself ever reasonable rendered one other, person pleaded grounds the courts have factual doubt judgment effect of be deter- the impartiality of the court. Blizard v. application mined of the princi- Frechette, (1st 601 F.2d Id., ples adjudicata of res . . . 1979). The determination for the district (emphasis S.Ct. 79 add- [43 81] judge to make is “his impartiality whether ed). might questioned.” reasonably 28 U.S.C. 433 U.S. at at 2892-93 S.Ct. 455(a). Once that determination has made,

been our role on review is limited to deciding whether the district court’s evalua In the case the federal and state of partiality tion of claim or prejudice, personam actions are in for compen- Therefore, amounted to abuse satory punitive damages. an of discretion. Bli Frechette, based the foregoing principles, on we are zard 601- F.2d ty.” Skywalk Cases, In re note we Federal slip op. we that do not Initially communications at 424-25. Wright’s Judge condone apparent that became with Collins. Once Judge Wright We conclude that certified serve as class could not plaintiff the named solely judgment on his class based practice think the better representative, we such serve the action would best interests judge have been for would addition, of all parties involved. we note potential of all class have called counsel complexity Judge of the issues before held a hearing to deter representatives Wright and commend his creative in efforts of them any mine whether would serve as fair, attempting to achieve efficient and in the event the district representative economical trial the victims of the However, certify a class. judge decided to However, Hyatt Regency disaster.14 as ex- record, of the entire after a review careful plained above, the order cannot stand on Judge Wright we conclude that did not the facts before us. refusing disqualify abuse his discretion The order of the district is vacated. himself. must A claim of bias be evaluated HEANEY, Judge, dissenting. Circuit record, simply light light of full .the narrow, The majority very decision is of an See Walker v. Bish isolated incident. holding mandatory class action cer- op, 408 by tified the court below violates the Anti- Judge Wright present developed case an clear, Injunction Act. It is as the majority he extensive record before made his deci recognizes, that the Act would not be con- certify By sion to the class. order dated by travened opt-out class action. On Judge Wright November directed remand, the district court should consider parties parties all and invited interested whether such an opt-out appropri- any to submit issues relevant briefs on ate. a class. certification of On December dissent, nonetheless, I because I believe 10, 1981, Judge Wright held a hearing on mandatory district court’s time parties the motion at which had action, modified, slightly prop- would be opportunity objections modify er. We should the district court’s During to the court. the course of the punitive order permitting damage claims hearing, Judge Wright decided two to be providing settled and briefing, additional issues needed namely defendants will credit receive such (1) punitive damage whether multiple ver settlements when if there is a class- plain dicts could be obtained successive wide award of damages. Such (2) tiffs based on same conduct and modified would satisfy class action the re- whether law recovery Missouri allows quirements of Fed.R.Civ.P. 23 and would wrongful death ac Anti-Injunction violate the Act. More- tions. These issues were briefed and sub over, it provide fairest way for Wright to Judge mitted before he made his all recovery in the seek manner decision to certify class. in which they through choose—either settle- carefully order itself is reasoned and prompt judicial ment or resolution of their Wright’s Judge stresses concern that “[i]f claims. once, punished defendant can then only get the first puni- claimant to an award [of I. tive damages] is the first and winner. INTRODUCTION. The Court permit is not inclined to sacrifice aggrieved party’s of one claim appeal crucial issue is the aggrieved the sole another effect par- benefit of court’s class certifica- district commentators, propriate disposing litiga- 14. We note that several of mass includ- accident Moore, Miller, Wright Comment, Professors also tion. See Mass Accident Ac- Class tions, particularly ap- maintain actions that class 1616 n.7 Cal.L.Rev. process. procedure. As on the settlement As tion order soon as this result is accom- prevent does not long plished, as a class suit process settlement pro- could so, doing who wish to settle plaintiffs unimpeded ceed by the class lawsuit. deny it will contends that seriously no one secure fair and II. opportunity to

them compensation for their losses— expeditious THE DISTRICT COURT DID NOT by settling promptly proceeding either ABUSE ITS BY DISCRETION CER- however, objectors, urge trial. TIFYING A MANDATORY CLASS are blocked settlements ACTION. plaintiffs court’s order because individual The district court’s order cannot be vacat- claims,1 punitive damage cannot settle and ed unless its certification of the class action general thus cannot execute releases. constitutes an abuse of discretion. E.g., releases, general Without such Rule v. International Association of Bridge, protected claim that the defendants are not Structural & Ornamental Ironworkers, 568 against any further assertion of claims I believe that settling plaintiffs. the district court did not abuse its discre- majority’s I share the belief that those tion; its certification order is supported by plaintiffs who wish to settle all their claims important several considerations. permitted should be to do so. The class action need not be decertified to achieve A. Justifications for Class Certification. goal this result. This accomplished can be The plaintiffs who sustained inju- serious by modifying (1) the district court’s order: ries or seek to recover for the death of expressly permit the settlement puni- family members should not be denied the claims, damage (2) tive provide and opportunity to be promptly compensated. the defendants will receive credit for the Likewise, plaintiffs seeking less substantial punitive they claims settle when and if a actual damages and punitive damages punitive damage class-wide award is or- should not be effectively deprived of their dered. Both the class plaintiffs claims. A class suit provides a device suggested the defendants have methods for which these smaller claims providing aggregat- credit to the can be defendants for ed and they prorated It costs may among settle.2 be that a hear- nu- claimants, merous ing on the issue develop thereby making additional worth- view, while claims my might alternatives. the district court otherwise not be proceed pursued.3 E.g., should directed to without delay Deposit Guaranty National necessary hearings adopt hold the Roper, a Bank v. 100 S.Ct. 1. The district suggest court’s class certification order The defendants expressly prohibits class members from set permitted who pate partici- have settled not be tling punitive damages claims: damage in the trial and that the Legitimate permitted negotiate defendants be of claimants to introduce exe- evidence they jury cute settlements with have those defendants who settlements have reached. The vociferously urged this court to would then damages, allow determine the amount of process any, the settlement among continue. Those if to be divided the non- payment claimants allegedlypunishable settling plaintiffs who want to exact according ap- at trial to the forego proved acts must the set- formula. process tlement and await the trial of the Here, punitive damage [Emphasis impose issues. individual actions would added.] enormous financial burden on individual vic- suggest puni- 2. Class counsel that a class-wide tims because of.the hundreds of thousands of trial, including settling tive and non- involved, importance expert documents settling plaintiffs, be held to determine the total testimony regarding engineering and architec- punitive damages, any, to be awarded. The matters, tural and the numerous defendants among sum awarded would then be allocated disclaiming responsibility pointing each equitable in accordance with an others. court, approved by por- formula with the settling plain- tion of the award earmarked for tiffs credited to the defendants. action, punitive damages the distribution of (1980). 427 See

1166, 63 L.Ed.2d Actions for Comment, of Class in a The Use will be determined succession of indi- L.Rev. Loyola 23 Litigation, event, Mass Accident lawsuits. In that risk vidual Note, Developments in 383, (1977). 384-385 juries will reach in- exists that Actions, 89 Harv.L.Rev. the Law —Class liability and dam- consistent results on Thus, (1976). a class 1318-1322, 1354-1355 Moreover, even if the results age issues. all method for the best provides action consistent, the risk arises that late-su- legitimate to vindicate punitive will have their dam- ing plaintiffs claims. age recoveries reduced or even eliminated punitive liability A class suit on certainly because there is by prior awards effective provides an damage issues also exemplary some limit on the amount of manage the substan- to confine and means damages required will be defendants disas- arising from this mass litigation tial provides A action suit the most pay.5 class Miller, Fed. See, e.g., Wright 7A & ter. perhaps only procedure to effective —and — Civil, 116-117 1783 at Prac. & Proc.: will any recovery ensure that be distributed Note, in the Law— (1972); Developments Roginsky among plaintiffs. all equitably Actions, Harv.L.Rev. at supra, 89 Class Richardson-Merrell, Inc., 832, 378 F.2d Note, 1318-1322,1354-1355; Mass Accident (2d 1967) (dicta); 838-842 In Re North- Actions, passim 60 1615 Class Cal.L.Rev. “Daikon ern District California Shield” judicial (1972). litigant and It conserves Litigation, Liability IUD Products 526 by permitting liability resources 887, (N.D.Cal.1981) (here- F.Supp. 897-900 once, to be tried punitive issues Litigation). after cited as In re Daikon once; avoiding multiplicity a thereby Astiz, Damage Putz & Punitive Claims involving lawsuits on the same issues same facts and the same defendants.4 Opt of Class Members Who Out: Should Moreover, judicial economy promotes ?, They 1, 16 Survive U.San Fran.L.Rev. will focusing this in the court that Note, (1981); Liability 18-40 Mass and Pu- major disputed have to resolve the issues Overkill, Damages Hastings nitive 30 L.J. already case. The defendants have be- (1979); Noté, 1800-1812 Mass Acci- gun court their to file in the federal district Actions, supra, dent Class 60 Cal.L.Rev. at respective lawsuits to determine the liabili- 1624-1639.6 the vari- ty among and contribution issues ous tortfeasors. Objections B. to Class Certification. (cid:127) Moreover, single adjudication a class-wide Despite justifications these class punitive damages every ensures that vic- action, objectors argue just tim will receive his or her share of punitive damage award. Absent court’s order constitutes an abuse of discre- n.7, n.7, If the issue of dam- 649 58 L.Ed.2d 552 basis, ages every was not tried on a class-wide require individual suit would a determination of among damages may relative fault all defendants held liable. 5. Punitive be limited here either prob- law, process, Individual could not avoid this Missouri constitutional due by relying simply lem on earlier because Mis- verdicts the extent of defendant’s assets. See at rejecting 1187-1188, infra, souri law while the old doctrine of for discussion. mutuality estoppel, see Oates v. Safeco Ins. (Mo.1979) (en banc), 583 S.W.2d 6. As the district court said in In re Daikon generally does not allow offensive use of collat- Litigation, F.Supp. (N.D.Cal.1981): estoppel multiple eral claimant tort cases. * * * action, 23(b)(1)(B) class Without a Rule Corp., 88 F.R.D. See Tretter v. Johns-Manville [tjhere priority no basis (E.D.Mo.1980). process Due claimants, damages among the or for award- plaintiff estopping forbid the defendants from damages such to one or more and not to by relying on an earlier in a suit * * verdict others *. class action the best [T]he See, e.g., plaintiff party. which the was not a available device to of all interests Shore, Hosiery Parklane Co. v. parties. [Emphasis added.] they they might contend importantly, Most have resolved this question. tion.7 Parker, 23(b)(1)(B) not authorize a Monsanto Co. v. simply does S.W.2d action in this case. A Thus, (Mo.App.1982). award of 23(b)(1)(B) when a certified under Rule litigant may to the first preclude rights of individuals claim to a number subsequent all plaintiffs. awards to later small to satisfy fund that is too share The harshness poten- and unfairness of this e.g., See, every claim. individual’s full tial result justifies the district court’s class Corp., Occidental Petroleum Green)v. 541 certification. 1*20335, 1976); Co- (9th Cir. 1340 & n.9 multiple Even if punitive damage awards Corp., v. 4-R 43, burn F.R.D. 77 45-46 permissible, the class certification was Note, Develop- See also (E.D.Ky.1977). appropriate because the defendants held lia Actions, supra, ments the Law —Class 89 may ble not capacity have the to satisfy the objectors at 1367. The claim Harv.L.Rev. judgments against them.9 The claims of support the facts here the dis- do not those victims who have filed individual law finding court’s there is a trict limited suits exceed compensatory billion in $1 punitive pay damages fund available to damages and in punitive million $500 dam disagree. I awards.8 ages. The total insurance of all the defend may multiple puni- law preclude Missouri only ants is Moreover, million. $333 damage single wrongful tive awards for record does not reveal how that insurance argument, or omission. act At oral coverage among is divided the defendants representatives objectors and the class both much, and how any, if of it is available to is uncertain conceded state law .and pay punitive damage awards.10 Further there is legitimate and reasonable , more, we cannot determine on the record can argument punished that a defendant before us the worth of net transcending once various only ordinary for conduct largest Court defendants. If the three negligence. Appeals The Missouri defend recently Center, dismissed a case in as moot which ants —Crown Hallmark 23(b)(1) along 7. A liability action certified under Rule with the issues of for and satisfy requirements punitive must 23(a)(l)-(4) both the damages. Rule amount of law, Under Missouri and the relevant subsection to punitive a defendant cannot be liable for (b)(1). p. provi- 1178 n.7 the relevant for damages if he or is not she also liable for of Rule sions compensatory Probst, damages. Probst v. 595 289, (Mo.App.1979). Thus, S.W.2d 292 objectors 8. The also claim that the district prospect dependent of a fund on limited 23(b)(1)(A) court’s certification a Rule liability compensatory, punitive, as well as liability issues of addition, damages. quite apart damages abuse of was an discretion. 23(b)(1)(A), construction of Rule They 23(b)(1)(A) designed contend that Rule avoiding court’s concern for inconsistent re- eliminate the dilemma that confront a through sults individual determinations of the judgments imposing conflicting party if liability proper issues is a consideration in cer- mutually incompatible standards of conduct tifying any types class action authoriz- They argue entered are intended, it. is not ed Rule 23. concluded, as the district apply to a there situation in which 9. Rule 23(b)(1)(B) require proof does not might pay possibility that a have defendant “will,” certainty, as a exhaust the de- to some and not others. I capacity pay. ap- fendant’s agree objector’s Certification is with the construction of Rule propriate significant See, 23(b)(1)(A). there is a e.g., Douglas likelihood that McDonnell Corp. Court, “may” parties affect claims of v. U. S. District 523 individuals not cert, denied, 1975), 23(b)(1)(B) 1086 before the court. See Fed.R.Civ.P. (1976); note; advisory S.Ct. 761 Litiga- 96 Northrup 47 L.Ed.2d Esler v. committee In re Daikon Corp., (W.D.Mo. tion, 897; F.Supp. F.R.D. Coburn v. 4-R 1979); Miller, Wright 7A Corp., & Fed.Prac. & Proc.: (E.D.Ky.1977). 45-46 F.R.D. Civil, (1972). at 9 Although the reliance on district court’s Rule 10. Punitive damages frequently cannot be in- 23(b)(1)(A) misplaced, was its class certifica- against. Roberts, sured See Mallor & Punitive appropriate. tion was nonetheless The issue of Damages: Principled Approach, Toward a compensatory damages could have Hastings L.J. properly 23(b)(1)(B) been Rule certified under contend that next not found liable Hyatt —are Stover, coverage representative, Shirly and assets insurance named class damages, the remaining would become defendants of the “fairly adequately does not they may well indeed because significant required by interests of class” as satisfy exemplary not be sufficient on the fact 23(a)(4). They base their claim large of the judgments in view certification. not move for class that she did plaintiffs. sought by the amounts failure to representative’s While a class Apart from the capacity defendants’ has been found*in move for certification pay punitive damages, surely there is some to be an indication that some circumstances imposed by limit law on amount for represent adequately he or she will they can be single held liable for a class, dispositive such a failure is not act wrongful or course of conduct. Unlim- Indeed, as a issue. a court select multiple punishment ited for the same act who representative a class member did determined in a succession certification, see, e.g., file United States bearing lawsuits and to no relation the de- Geraghty, Parole v. Commission culpability fendants’ injuries or the actual 388, 407, 63 L.Ed.2d by victims, suffered violate the sense (1980), certify it even elect to a of “fundamental that fairness” is essential representative a class even class and select to process. constitutional due Roginsky See See, e.g., a party if no seeks class action. Richardson-Merrell, Inc., supra, 378 F.2d Corp., 838-841; Ford v. U. S. Steel at Litigation, In re Daikon supra, 1981); Litigation, In re Daikon F.Supp. at 900. also Putz See addition, F.Supp. Astiz, supra, 526 at 894.11 Damage Punitive Claims of Class was, course, there no for Stover to Opt Members Who need They Out: Should Sur- vive?, supra, 16 Fran.L.Rev. at in U.San move for class certification this case 29-31; Note, Liability Mass and Punitive Riley had done so. Molly already since Overkill, Damages Hastings supra, L.J. objectors The also argue that the Moreover, juris- at 1797-1800. basic counsel appointed for the prudential class are precepts inadequate that must be- cause they are party come to end and that cannot be tainted with conflicts of interest. I find repeatedly sued on the cause no support same in record for this multiple punish- are violated excessive contention.12 Dam- Astiz, Punitive Putz ment. See objectors next claim that class certi- Opt Who age of Class Members Out: Claims fication improper was because the various Survive?, supra, They 16 U.San Should present individual issues and the in- 29-31; Note, Liability Mass Fran.L.Rev. dividual claimants have a strong interest in Overkill, Damages supra, 30 and Punitive controlling litigation. In particular, Hastings L.J. at 1797-1800. they rely on Advisory Committee Notes Consequently, I that believe the district to the 1966 amendments finding court did not err in to the significant Federal Rules likelihood that the of Civil damage Procedure awards which indicate that may exhaust the culpable defendants’ ca- actions under 23(b)(3) Rule generally pay pacity judgments. are inappropriate in mass accident cases. authority certify The fact that a court error; has although constitute reversible it would sponte action sua a class objec- also refutes the practice have been the better to include all tors that juris- claim district court lacked process. in the selection See Manual only diction to create a class action because the Complex Litigation, 1.90-1.93, §§ Part party class, did that move for certification of a defense, however, 4.53. In the district court’s Molly Riley, was not diverse to all the defend- emphasized objecting plain- must be ants. strongly they tiffs as indicated could that they participating had no interest in in a class complain 12. The the district opt-out action. If an class is certified on re- appointed provid- court class counsel without mand, may provide the district for addi- opportunity partici- a full for all tional class counsel. pate in selection. This conduct did not

H89 apparent It petitioners authority reliance on this concerns First, express under misplaced. prompted the drafters to conclude that class Rule individual control is an terms of suits are not generally appropriate in mass concern for courts to consider articulated applicable accident cases are not here. respect certifying a class under with case, the facts liability relevant to will (b)(1) (b)(3), not subsection subsection meaningfully not differ from one claimant Thus, which the district court here relied. another, and there is little or no likeli- necessarily court was not re- hood of being presented. individual defenses quired to consider the claimants’ interest in issues, compensatory damage course, certifying control before a class will involve differing factual questions, but 23(b)(1).13 Rule under these claims no bar to class certifi- Second, to the extent that the interest in cation because the district court limited the certifying individual control is relevant to class action to the class, 23(b)(1) concern does not permitted issues as by Rule preclude class suit mass accident cases. 23(c)(4). Consequently, the concerns of in- If the drafters of the rule had intended to dividualization of issues and the claimants’ rule, per they create such a se would have Comment, controlling interest simply said so. The Use of their own case Litigation, Actions for Mass Accident Class present no real obstacle to class suits Instead, Loyola L.Rev. at 405. mass accident cases such as the instant one. the drafters said: Moore, E.g., Fed.Prac., 3B J. 123.45[3] resulting injuries A “mass accident” (2d 1948); 811 & n.35 ed. Wright 7A & persons ordinarily appro- numerous Miller, 117; supra, Comment, 1783at The priate for a class action because of the Use of Class Actions for Mass Accident significant questions,

likelihood that not Litigation, 390; supra, Loyola 23 L.Rev. at damages but of and de- Note, Actions, Mass Accident Class supra, liability, present, fenses to would be af- 60 Cal.L.Rev. at 1621. fecting ways. the individuals in different Finally, objectors contend that In these circumstances an action conduct- district court’s deprives class certification nominally ed as a class action would de- generate practice multiple First, in law- them of their rights. into constitutional separately tried. suits they argue that a class-wide award of dam- ages to be among divided class members is 23(b)(3) advisory Fed.R.Civ.P. committee note. a recovery”14 “fluid that denies them their generally petitioners’ Causey will government 13. The Pan be reliance on v. turned over to the Inc., 392, Airways, through American World distributed 66 F.R.D. typically in market — (E.D.Va.1975), 399 lines, and Hobbs v. Northeast Air- the form charge of a reduced for an item that Inc., 76, (E.D.Pa.1979), 50 F.R.D. 79 previously overpriced. Note, defendant De- their claim that the interest in con- velopments individual Actions, the Law —Class 89 supports trol of claims a denial of a Rule 1318, (1976). Harv.L.Rev. 1525 See Eisen v. 23(b)(1) misplaced. class action is Both the Jacquelin, 1005, Carlisle & 479 F.2d 1010-1011 Causey and Hobbs courts relied on that interest (2d 1973), Cir. vacated and remanded on other ground certify 23(b)(3) aas not to a Rule grounds, 156, —not 2140, 417 U.S. 94 S.Ct. 40 L.Ed. 23(b)(1) a action. —class 2d 732 (1974); Bebchick v. Public Utili- Commission, ties recovery” 187, 14. A “fluid has 318 three characteristics: F.2d 203-204 (D.C.Cir. 1963). (1) by Here, puni- amount of incurred entire damage adjudicated trial, tive single class as a whole is in a award would distrib- fund; creating damage (2) uted members; class-member consequently, prove may, claimants who can valid incor- trial, proper claiming after the class rect obtain their share of the district court’s or- fund; (3) provided portion der the unclaimed However, recovery. fluid applied fund is then to the class’s benefit. See class-wide damages, assessments of even with- Comment, recovery, Due out Process and Fluid Class Recov- fluid have challenged also been ery, 225, Malina, (1974); 53 Ore.L.Rev. 227 violative of guarantees the constitutional Recovery Remedy process Fluid Class as a due by jury. Consumer Note, and trial See Cases, 477, (1972). Developments Antitrust 47 Actions, N.Y.L.Rev. 482 in the Law —Ciass It the third creates the characteristic 89 Harv.L.Rev. at 1525. recovery fluid unclaimed funds because 1190 1974). cases, rights process however, to due trial other

constitutional jury. See, been mechanism has utilized. e.g., Commission, v. Bebchick Public Utilities 318 not create an The Constitution does abso- cert, 187, (D.C.Cir.), denied, F.2d 203-204 puni- lute bar to class-wide assessment of 913, 1304, 83 10 373 U.S. S.Ct. L.Ed.2d 414 objectors’ damages. tive Seventh right (1963); Virginia Amendment will be satisfied West Pfizer & Chas. adjudicate opportunity the class-wide 710, aff’d, (S.D.N.Y.), 744 F.Supp. cert, damage jury.15 assessment before a See 1079, (2d Cir.), denied, 1089-1091 Burnham, 973, 197 F.2d 980- Dickinson v. 871, 81, 404 U.S. 30 L.Ed.2d 115 cert, Cir.), denied, (2d (1971). propriety class-wide (1938 (1952) ver- 97 L.Ed.2d 678 S.Ct. assessment, with or without fluid recov- Note, also, De- e.g., sion Rule mechanism, ery should depend on whether Actions, velopments in the su- Law —Class consistent policies with the of the un- 1523-1525; pra, 89 7A Harv.L.Rev. derlying Note, cause Develop- of action. 122; Miller, Wright Ja- & 1784 at supra, § ments in the Actions, Law —Class supra, 89 coby IV Cherasky, & The Effects of Eisen Harv.L.Rev. at 1526-1536. Proposed Amendments Diego (1974); San Com- L.Rev. justifications for imposing punitive ment, Due Process and Fluid Re- Class damages include expressing society’s disap- covery, 53 Ore.L.Rev. (1974); proval conduct, of outrageous deterring Note, Eisen v. Jacquelin— Carlisle & future, such conduct in the and providing Recovery, Fluid Minihearings, and Notice incentives for private civil enforcement. Actions, Ill, Class 54 B.U.L.Rev. Roberts, Mallor & Punitive Damages: To- (1974). 123-124 In the de- absence of Principled Approach, ward Hastings indi- that could be asserted fenses L.J. 647-650 Each of these members, or such individ- other vidual purposes is advanced the district court’s process does re- inquiries, due ualized Thus, class certification here. a class-wide long hearings as as there is quire multiple of punitive calculation damages would be fair mer- one full and determination proper. See, Note, e.g., Developments in the its. Actions, supra, Law —Class 89 Harv.L.Rev. objectors’ The second constitutional claim 1523-1525; Comment, at Due Process and is that the district court denied them due supra, 53 Recovery, Fluid Class Ore.L.Rev. process by permitting not them to be heard 237; Note, Jacque- v. Eisen Carlisle & after its class Specifi- certification order. Minihearings, Recovery, lin —Fluid and No- cally, they object to the order providing: Actions, supra, 54 tice Class B.U.L.Rev. at 123-124. presented No matters to this Court which concerns a member of [sic] In some circumstances courts have not presented by class unless it [sic] permitted the class-wide calculation of dam- designated counsel to handle the class See, e.g., Jacque- ages. Eisen Carlisle & of Court action. Clerk has been 1005, lin, (1973), 479 F.2d 1018 vacated reject any directed to matters that are 156, grounds, 417 remanded on other U.S. being 2140, filed counsel for the class (1974); In re 40 L.Ed.2d 732 Charges, 92 Telephone 500 F.2d counsel defendants. Hotel objectors merely questions claim also class-wide state that of wheth- impermissi- damages punitive damages and, so, of assessment er to award jury. E.g., ble ünder Missouri law because the what amount are for the Potter id.: jury Co., light Manufacturing “must be assessed v. Milbank 489 S.W.2d particular particular (Mo. 1972); Kresge circumstances Wisner v. S. S. Lincoln-Mercury, Hupp (Mo.App.1971). case.” Inc., v. North Hills S.W.2d Just as the (Mo.App.1980). right jury 610 S.W.2d I Seventh Amendment to a trial disagree. impression by adjudicating This issue is one of first satisfied the class-wide objec- single jury, in Missouri. cases relied on assessment before a the state law suits, actions, requirement tors are individual not class is also satisfied. > Corp., v. Riker-Maxson 442 restrict state court proceedings,

In Farber nor would (2d 1971), the Circuit Cir. Second any afford basis upon which the district virtual- upheld an order of the district court might enjoin state court proceedings. to the one here. The Court held ly identical See In Re Glenn Enterprises Turner Litiga- deprive par- that such an order did tion, (3d 1975). F.2d 775 Cir. filing ap- motions “an prohibited ties from holds, The majority however, in the opportunity participate propriate mandatory class action violates the Anti-In- Indeed, litigation.” very at 459. Id. junction Act because some class members requires nature of a class already have proceed- initiated state court and his or her representative, attor- ings and presumably enjoined will be from ney, represent the class and that members pursuing independent such See, actions. cannot continue to file motions of the class 1181,1183. supra, This is a they might in an individual sweeping action. here, Farber, Moreover, as in rule that prohibits certification of an other- court’s order did not bar counsel for class proper wise mandatory class whenever a applying permission from to it for members class member has commenced a state court Accordingly, to file a motion. Id. at 459. view, my action. such a rule is not deny the district court’s order did not supported by the upon cases relied by the process. due and, moreover, majority is simply the wrong rule in light of the necessary dictates Summary. C. mandatory class actions. sum, the district court’s class action A mandatory action, course, has a requirements satisfies all the restrictive effect on related proceedings in and the state and federal constitutions. any other court —state or federal. This is Moreover, certification of a class action because, by definition, members of such a promote judicial economy in a com- pursue independent cannot plex especially case where such concerns are See, e.g., class claims. Reynolds v. Na- significant. It would the interests tional League, Football 584 F.2d by avoiding relitiga- of defendants endless The majority states that a tion inconsistent determinations mandatory class only prohibits members And, liability. pro- their relative it would initiating independent litigation, cit- plaintiffs by ensuring prompt tect de- ing Reynolds v. National liability (thereby League, termination of Football promoting settlements) by guaranteeing for this any proposition. Supra, at 1180. punitive damage fairly award would be al- Reynolds Neither nor other case cited Therefore, plaintiffs. located to all I be- supports Court such a narrow con- lieve that the district court did not abuse its struction of mandatory class actions. In- discretion in certifying the class action. deed, implication of the majority’s view is that mandatory classes are not truly III. mandatory any member who has previous- — ly independent commenced litigation is THE DISTRICT COURT DID NOT VIO- subject somehow not to the ordinary rules LATE THE ANTI-INJUNCTION view, such class my actions. the plain ACT A BY'CERTIFYING MANDATO- meaning of mandatory RY a ACTION. class does not CLASS change merely because some members of majority recognizes an opt-out previously the class have indepen- initiated class, which the district court remains free dent actions. If certification of a mandato- certify, would not violate the Anti-In- ry proper, is, class is clearly as here it junction then Act. Because members of such a ordinary rules of such actions pursue simply would be free to withdraw and court, preclude independently independent litigation claims in state of class such a class action inherently would not in claims state or federal courts. injunction against indepen- that an obvious to whether important is point This Anti-Injunction “necessary litigation of the issue is violates dent action Act, injunction an of state jurisdiction of the class.

Act. Under aid of” the “nec- proper when it is is proceedings court of the man- restrictive effect The second jurisdic- of” the federal court’s essary in aid effect, to, state court stay class is datory self-evi- 2283. It seems 28 U.S.C. § tion. liability the issue of for com- proceedings on injunction protect the ordi- that an dent damages. emphasize I pensatory mandatory class scope of a action nary are free to settle such or to plaintiffs jurisdic- aid of” the “necessary in federal pursue in state court a determination a class. over such tion the class damages, amount such once has, plaintiff that no emphasize I must liability among action determines relative pursuing any state enjoined from been yet, mandatory the defendants.18 The proper, Our review is thus action.16 court protect necessary numerous defend- extent that certification a all,17to the ants from inconsistent results and extreme- necessarily class will restrict mandatory relitigations ly burdensome of their relative state pursuing pending from class members culpability to ensure that serial deter- question then is proceedings. The liability deplete minations of will not “necessary such restrictions whether See, supra, of the defendants. assets jurisdiction. class action aid of” the of the compen- Certification 1187-1188. Here, effects of necessary restrictive liability strictly issue is also neces- satory class action are twofold. mandatory punitive damage sary claim is that class The first restrictive effect because, ordinary joinder under noted above pursue able to members would not be rules, independent on liability independent claim in an punitive necessarily reach both absolutely nec- action. a restriction Such Thus, mandatory if a issues. jurisdiction court’s essary to the district all, must class is to be certified at include applicable class issue due to the over this claim and at least the punitive damages. Although state law on aspect compensatory damages. my agree certainty do not on the parties view, mandatory properly where a class is rule, they agree law do that there the state purposes, enjoining certified for these inde- legitimate and claim that is a reasonable pendent litigation plain- of the class issue is law, only plaintiff Missouri the first under ly “necessary jurisdic- in aid of” the class judgment puni- to achieve a would obtain tion. tive award—all other would be See, majority essentially ignores that it is supra, out. at 1186. When frozen necessary pro- mandatory considering class action we are mandatory class is claim, cite, Anti-Injunction They under the Act. all on this it seems tect injunctions proceedings. injunction express entered below is of state court 16. part generally Enterprises of the district court’s order which In Re Turner Liti- Glenn appears prevent settling (3d gation, class members from 521 F.2d I punitive damage however, recognize, mandatory claims. Such a restric- their tion is unwarranted and should be modified as class ac- in- tions have an inherent restrictive effect on dependent noted, event, at note 2. In it is not a class issues. If this fact necessary part mandatory certifying review, appellate is to serve as the basis for bootstrap action and it is unfair to class this however, narrowly such review should focus part finding of the order to a that the class inherent restrictive effects of the class and Anti-Injunction a whole violates the action as broadly injunctions not assume which should See, supra, 1180. Act. been have not entered. certify any 17. The district court did not issue Thus, mandatory preclude 18. class does not Thus, interlocutory appeal. it would be state court forums for those lieve, who be- review, proper 1292(a), only under section reason, they might for whatever ob- us, express injunction see note before compensatory damages in tain more favorable jurisdiction and to dismiss for lack of court. state the issue of whether the class action will result agree Enterpris- Turner that class actions example, In Re Glenn should not an a vehicle for Litigation, supra, circumventing which held that become es the or- injunction proceedings dinary of state court was relations between state and federal “necessary in aid of” the federal class’s requirements not courts. The for a mandatory action, however, Turner, jurisdiction. quite rigorous how- class are Supra, at 1181. class, ever, opt-out and, nature, an not a man- involved prevent any' will such applied one. The standard in Turn- datory developing. Moreover, trend from there of whether the required er determination unusually strong reasons for certifying given scope action “can be its intended class here, mandatory class a procedure only by stay proceeding.” of a state court which the district court found was essential Litigation, Enterprises In Re Glenn Turner adjudication to fair of all claims. Such supra, 521 F.2d at 781. As the Turner arise; circumstances will yet not often reasoned, the in- properly Court because them, face of the majority adopted has permits scope opt-out tended of an class broadly rule which defeats purpose actions, injunction against an independent mandatory jurisdiction. class action I do pro- “necessary” such actions cannot be agree that such a rule is required by the scope the class. Id. The Turner tect the Anti-Injunction Act, nor by any sensible the issue of man- expressly Court reserved view of the relations between state and actions, id., datory good reason. federal courts.19 scope mandatory of a The intended precludes independent litigation of class

claims, why injunction against which is an independent “necessary” actions is

such scope.

give the class its intended gen- relies majority primarily personam eral doctrine that individual America, Appellee, UNITED STATES of actions, concurrently conducted state and courts, cause interference federal do not v. jurisdiction. Supra, either court’s with LEMM, Appellant. Marisa Anti-Injunc- Thus, under 1182-1183. Act, personam an individual in claim in tion America, Appellee, UNITED STATES of enjoining is not a basis for federal v. pursuing other similar Phyllis STONYS, Appellant. Ellen claims in state court because such an in- junction “necessary is not in aid of” the America, Appellee, UNITED STATES of jurisdiction. federal court’s Id. This rule developed applies indepen- around and dent, claims, MAGHEE, mandatory Appellant. Val Bolton majority actions. The cites to no case in Nos. 80-1836 and 80-1837. general rule has been used to Appeals, United States Court of preempt ordinary application of manda- Eighth Circuit. tory class action rules. Admittedly, relationship between May Submitted 1982. mandatory class actions and the Anti-In- Decided June 1982. junction appears open Act Rehearing 6,1982. Denied July question. approach adopted by the ma- however, jority, broadly forecloses manda-

tory class actions whenever a class member proceedings.

has commenced state court I do, however, agree majority declining disqualify I with the himself from this case Judge Wright 455(a). did not abuse his discretion under 28 U.S.C. §

Case Details

Case Name: In Re Federal Skywalk Cases. In Re Melanie Hanson Johnson and Gerard Stanley Johnson, in Re Federal Skywalk Cases. In Re Jacqueline N. Rau

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 7, 1982

Citation: 680 F.2d 1175

Docket Number: 82-1181, 82-1207

Court Abbreviation: 8th Cir.