Interpace Corporation v. City of Philadelphia, and Honorable John Morgan Davis, Judge, United States District Court, Nominal

ADAMS, Circuit Judge (dissenting).

The central question presented by this petition for mandamus is whether a dis *405 trict court must make findings to support an order that a case be maintained as a class action under Fed.R.Civ.P. 23(b) (3). The majority finds this question answered simply by reference to the last sentence of Rule 52(a). I believe the matter to be somewhat more complex, and in any event wrongly decided by the majority.

The last sentence of Rule 52(a) was added in the 1946 Amendments to the Federal Rules of Civil Procedure. That sentence provides:

“Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).”

Even apart from its application to Rule 23, this sentence of Rule 52(a) has caused disquiet among commentators when questions of fact are required to be resolved in the determination of motions. 1 From its inception, Rule 52(a) has provided that “in all actions tried upon the facts” to the court, the judge must make findings of fact. Professor Moore indicates that the 1946 amendment was bottomed generally on the theory that in the disposition of motions directed to the pleadings or for summary judgment the facts are often not in dispute, and indeed in a motion for summary judgment must not be in dispute. When, however, factual issues must be resolved in ruling on a motion, Professor Moore maintains that the opinion expressed before the amendment of Rule 52(a) in King v. Wall & Beaver Street Corp., 76 U.S.App.D.C. 234 , 145 F.2d 377, 381 (1944) (issues of fact raised in motion to dismiss for improper venue require findings of fact in their disposition) should be carried forward. His treatise comments are as follows: 2

“Although the literal language of the 1946 amendment stating that findings are unnecessary on decisions of motions under Rule 12 may obviate the [decision in the King case, swpra], we do not believe that it should for two reasons. The 1946 amendment should be read in conjunction and harmonized with the earlier provisions of the Rule requiring findings in all actions ‘tried upon the facts’; and the reasons for findings of fact are equally pertinent to this proceeding.”

Even assuming that the above view is not accepted with its full vigor, the language of Rule 23 itself implies that findings of fact must be made. Rule 23, as amended in 1966, twenty years after the amendment to Rule 52(a), provides in pertinent part:

“(b) An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition * * * (3) the court finds that questions of law or* fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include * * * ” (emphasis added).

Use of the terms “finds” and “findings” by the drafters in the later and more specific rule may hardly be considered accidental. The Advisory Committee’s notes echo these terms, stating, for example, that “[t]he court is required to find, as a condition of holding that a class action may be maintained under this subdivision, that the questions common to the class predominate over the questions affecting individual members.” Further, “[f]actors (A) — (D) are listed, non-exhaustively, as pertinent to the findings.” 3 So also various commentators have noted that the “find *406 ings” language distinguishes a Rule 23(b) (3) class action from one qualifying under 23(b) (1) or (2). 4 A primary reason for such extra requirements is that Rule 23(b) (3) now makes binding on all class members a decision which formerly — under the designation of a “spurious” class action — might bind only the actual litigants. 5 The possibilities under the Rule for extremely broad geographical, temporal and substantive actions make imperative a more stringent definition of “class,” and justify placing a greater responsibility on the trial court than existed prior to 1966. 6 Nor can we disregard the expanding use of the class action device in important litigation matters affecting substantial portions of our citizenry. Because of the dangers for abuse, therefore, courts of appeals should insist that the requirements of Rule 23(b) (3) be met in each case.

The majority opinion invokes Rules 32(a) (3), 37(a) (4), 37(e) (all revised in 1970) and 39(a) in order to characterize the use of the words “finds” and “findings” in Rule 23 as being merely “casual,” and in any event not designed to require an “express, objective articulation” for the district court’s determination. However, none of these rules uses the term “findings” as does Rule 23(b) (3). Moreover, under Rules 32 (a) (3), 37(a) and (c), the judicial determinations are likely to involve fewer disputed questions of fact than those required by Rule 23(b) (3). And the denial of a jury trial under Rule 39(a) is even more clearly a legal question which ordinarily would not call for findings of fact. It may be noteworthy that such denial is unquestionably reviewable by the writ of mandamus. Jewell v. Ohio River Co., 431 F.2d 691 (3rd Cir. 1970).

In each of the above situations, I believe the district court is required at least to state in the language of the particular rule that it “finds” a witness is dead or lives more than 100 miles from the place of trial (Rule 32(a) (3)); or that a deponent's opposition to a motion to compel an answer is “substantially justified” (Rule 37(a) (4)); or that a party is not entitled for one or more of the four specified reasons in the rule to receive the costs of proving a matter the other party refused to admit (Rule 37(c)); or that a right to a jury trial does not exist “under the Constitution or statutes of the United States” (Rule 39(a)). In this case, the District Court did not even preface its order with a conclusory statement concerning compliance with Rule 23(b) (3) — which apparently the majority would require —but only tracked the language of the plaintiffs’ complaints in defining the classes which could be maintained, 7 leaving us to presume that he had found the requirements of Rule 23 to be satisfied. That presumption is of little aid to an appellate court when it must review Rule 23 determinations. It is not without significance that the District Court made its naked determination some months after itself requesting and re *407 ceiving proposed findings on the Rule 23 motions.

That the language of Rule 23(b) (3) requires findings by a trial judge is also supported by Rule 23(c) (1): “As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” That is, a class action determination need not be made pursuant to a motion at all, but may be made by the courts sua sponte. 8 In that situation, the first sentence of Rule 52(a) (“In all actions tried upon the facts without a jury * * * the court shall find the facts specially * * * ”) itself would seem to require that findings be made. In any event, the last sentence in Rule 52(a) would not then be the universal bar to the necessity for findings which the majority holds it to be. The requirement of specific findings in Rule 23(b) (3) should not turn on whether the court performs its duty at the instance of a party’s motion rather than upon some other prompting.

The preferable 9 manner for this Court to consider substantial questions regarding the operation of Rule 23 is through the certification procedure for interlocutory appeals provided in 28 U. S.C. § 1292(b). That method was sought here by the petitioners, but the District Court refused to certify the matter.

Assuming the District Court had a non-discretionary duty under the Federal Rules of Civil Procedure to make findings in class action determinations, an arbitrary refusal to perform that duty may be remedied by this Court through the writ of mandamus authorized by 28 U.S.C. § 1651 . 10 See e. g„ Beacon Theatres, Inc. v. Westover, 359 U.S. 500 , 79 S.Ct. 948 , 3 L.Ed.2d 988 (1959); La Buy v. Howes Leather Co., 352 U.S. 249 , 77 S.Ct. 309 , 1 L.Ed.2d 290 (1957); McDonnell Douglas Corp. v. Po-lín, 429 F.2d 30 (3rd Cir. 1970). Cf. Rapp v. Van Dusen, 350 F.2d 806, 811, 813 (3rd Cir. 1965) (en banc); Chicken Delight, Inc. v. Harris, 412 F.2d 830 (9th Cir. 1969). Functionally, such use of mandamus would not violate the strong and generally salutary policy against interlocutory appeals. Rather, the writ is an appropriate tool for use by this Court in dealing effectively with the occasional, or indeed rare, failures by a district court to comply with the Federal Rules — the very cases in which a § 1292(b) certification is least likely to be granted by the trial judge. To require that remedial action in such limited situations await the end of the litigation would conceivably enable the judge to insulate his erroneous action for a length of time unfair or intolerable to the wronged party. Especially in class action matters such delay may be improperly prejudicial to the litigants.

. See generally, 5 J. Moore, Federal Practice 1f 52.08 (2d Ed. 1970), cited hereinafter as “Moore.”

. 5 Moore f[ 52.08 at 2738-2739. But compare B.J. Semel Associates, Inc. v. United Fireworks Mfg. Co., 122 U.S.App.D.C. 402 , 355 F.2d 827, 830 (1965).

. 3 B Moore If 23.01 [10.-3] (emphasis added).

. Professor Kaplan, reporter to the Advisory Committee on Civil Rules from 1960 to July 1, I960 and thereafter a member of the Committee, states: “The new provision invites a close look at the case before it is accepted as a class action and even then requires that it be specially treated. After any necessary hearings, the court must have made an express finding that common questions not only exist but ‘predominate’ over questions touching only individual members of the class * * The court must also have found expressly that a class action is ‘superior’ to other means of disposing of the particular set of quarrels.” B. Kaplan, Continuing Work of the Civil Committee: 1960 Amendments of the Federal Rules of Civil Procedure (I). 81 Harv.L.Rev. 356, 390 (1967) ; see also 3 B Moore ¶ 23.45 [4].

. See generally Kaplan, supra note 4 at pages 394-400; 3 B Moore fl 23.45 [4-5].

. See generally Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968) ; Kaplan, supra note 4 at 395.

. Cf. Roberts v. Ross, 344 F.2d 747, 751-752 (3rd Cir. 1965).

. See e. g., Johnson v. City of Baton Rouge, 50 F.R.D. 295, 298 (E.D.La.1970).

. See Kaplan, supra note 4 at 390, footnote 131. In Rapp v. Van Dusen, 350 F.2d 806, 813 (3rd Cir. 1965), this Court sitting en banc announced the rule for this circuit that petitions for mandamus “should allege that an unsuccessful request was made for certification under § 1292(b), or why such an application was inapprojn'iate in the circumstances.”

. I am in full accord with the majority’s disposition of petitioner's requests that we substitute our judgment on the merits of the various questions involved in the class action determination for that of the District Court. Such matters are not a proper subject for the writ of mandamus.