Petition — Stover v. Rau

*

In THE

Supreme Court of the Anited States

Oro TERM, 1982

SHIRLEY Stover, et al.,

Petitioners

V.

MELANIE HANSON JOHNSON,

GERARD STANLEY JOHNSON, et al., and

JACQUELINE N. Rau,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

IRVING YOUNGER *

PauL MartTIN WOLFF *

NANCY F. Pass

WiuiaMs & CONNOLLY

The Hill Building

839 17th Street, N.W.

Washington, D.C. 20006

(202) 331-5000

Attorneys for Petitioners, the

Representative Plaintiff and

the Class

* Counsel of Record

[Additional List of Counsel Continued on Inside Cover]

WiILson - Eras Printine Co., inc. - 789-0096 - WasHINGTON. D.C. 20001

;

*

;

ARTHUR H. Stour

Stroup, THOMPSON & WOHLNER

950 Home Savings Building

1006 Grand Avenue

Kansas City, Missouri 64106

es

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1. Does an order entered by a federal district court

certifying a mandatory class action under Fed. R. Civ.

P. 23 (b) (1) enjoin potential or pending state court suits

and thus qualify as an injunction appealable immediately

under 28 U.S.C. § 1292(a) (1)?

2. Does the Anti-Injunction Act, 28 U.S.C. § 2283,

take away a federal district court’s power to certify a

mandatory class action once a member of the class has

filed an individual suit in state court, even if a class

action is necessary to ensure fairness among all class

members?

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* Party to No. 82-1207, Appeal of Jacqueline N. Rau.

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TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

STATUTES AND RULES INVOLVED ooo

STATEMENT

REASOMS FOR GRANTING THE WRIT ................

I. Orders Certifying Mandatory Class Actions Do

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able As of Right

II. eee

Court Cannot Strip A Federal Court Of The

A. The Panel’s Decision Eviscerates Federal

Rule of Civil Procedure 28

B. The Certification of A Mandatory Class Ac-

tion To Protect a Limited Fund Is Necessary

In Aid Of The Federal Court’s Jurisdiction..

CONCLUSION ..... Fa Ave aan cs. RR

APPENDIX A

Opinion of the Court of Appeals for the Eighth

Circuit and dissent of Judge Heaney, June 7, 1982..

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APPENDIX C *

ö Order of the Court of Appeals for the Eighth |

Cireuit, denying petitioners’ motion ri 3

of the mandate, July 28, 1982 39a 9

APPENDIX D i

Memorandum and Order of the District Court for 4

the Western District of Missouri, In Re Federal 4

Skywalk Cases, 98 F.R.D. 415, January 25, 1982. 40 .

APPENDIX E |

Federal Rule of Civil Procedure 28 62a

-

*

TABLE OF AUTHORITIES

Cases Page

Atlantic Coast Line Railroad Co. v. Brotherhood

of Locomotive Engineers, 398 U.S. 281 (1970) 18

Capital Service, Inc. v. NLRB, 347 US. 501

(1954) ........... 18

Coburn v. 4-R Corp., 7 F.R.D. 43 (ED. Ky.

1977), petition for mandamus denied, 588 F. 2d

548 (6th Cir. 1978), cert. dismissed, 448 U.S.

RE NS REEL ET eee 11

Coopers & Lybrand v. Livesay, 487 US. 468

„( 9

Gardner v. Westinghouse Broadcasting Co., 487

eee SR ES oe 8,9

In re Cessna Aircraft Distributorship Antitrust

Litigation, 518 F.2d 218 (8th Cir.) , cert. denied,

BE Tee NE CD . 4

In re Glen W. Turner Enterprises Litigation, 521

re —

Ia re Northern District of California “Dalkon

Shield” IUD Products Liability Litigation, 521

F. Supp. 1188 (N.D. Cal. 1981), vacated, Nos.

81-4648 et al., slip op. (9th Cir., June 18, 1982) .. 12

Jefferson Standard Life Insurance Co. v. Smith,

161 F. Supp. 679 (E.D.S.C. 1966) 14

Pan American Fire & Casualty Co. v. Revere, 188

F. Supp. 474 (E. D. La. 1960 14

Switzerland Cheese Asen., Ine. F. Horne’s

Market, Inc., 886 US. 28 (19666 5

Teras v. Florida, 306 U.S. 898 (19899) 14

United States v. Major Oil Corp., 588 F.2d 1162

(10th Cir. 1978) 14

Statutes :

28 U.S.C. § 1254(1) 2

| 28 U.S.C. § 1292 (a) (1) 2, 6, 8,9

N rr 2. 10, 18

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V

MELANIE HANSON JOHNSON,

JACQUELINE N. Rau,

WRIT

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THE EIG

Stover

business

Hotel disaster

certiorari issue to

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STATUTES AND RULES INVOLVED

1. 28 U.S.C. § 1292(a) (1) provides:

(a) The courts of appeals shall have jurisdiction of

appeals from:

22 100

1

(1) Interlocutory orders of the 11

nited

Zone,

Court of

granting,

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3. Federal Rule of Civil Procedure 23, respecting class

is reproduced in its entirety us Appendix E.

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-W-3 (W. D. Mo.); Savage et al v. Crown Center Redevel-

opment Corp. et al., No. CV81-15245 (C. Ct. Jackson Cty., Mo.);

Wilita,

1 Moberg, et al. v. Crown Center Redevelopment Corp. et al., No.

v. Crown Center Redevelopment Corp. et al., No. CV81-

Corp. v. Occidental Fire & Casualty Co. of North Carolina et al.,

. * Petition for Declaratory Judgment and Incidental Relief, Hyatt

No. CV81-22009 C. Ct. Jackson Cty, Mo., Oct. 2, 1981), at 9.

* See, ¢.g., Answers of Hallmark Cards, Inc. and Crown Center

Alcala v. Crown Center Redevelopment Corp. et al., No. 81-0606-

CV W-4 (W.D. Mo.); Rhodes v. Crown Center Redevelopment Corp.

Redevelopment Corp., October 8, 1981.

15244 (C. Ct. Jackson Cty., Mo.)

et ai No. CV81-16810 (C. Ct. Jackson Cty., Mo.)

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On January 25, 1982,

plied

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court ruled that the

SS cid Maes mio Gon Gn teres tak

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5 For example, Gillum-Colaco, the structural engineer responsible

for the skywalks, reported a negative net worth.

* References cited as “A.” refer to the pages of the Appendices

bound with this Petition.

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think that’s even going to come up.” Transcript of Dec. 10,

1981, Hearing Before the Honorable Scott O. Wright at 76.

1 The quotation is from a state court order of June 3, 1982 (p. 1),

which noted that the last pleading on this subject was filed on Feb-

ruary 24, 1982.

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an interlocutory appeal and, in the alternative, a

for mandamus, requesting the same relief. The

were consolidated by the Eighth Circuit. Petiti

here, the represertative plaintiff and the class,

the petitions and the appeal.

The federal panel rendered its decision

1982. (A. la) The panel held (2-1) that

tification order constituted an injunction appealable

right under 28 U.S.C. § 1292(a)(1) and barred by

Anti-Injunction Act. (A. 2a-l6a) Without question-

ing the need for a class action, the majority ruled that

the Anti-Injunction Act bars mandatory class actions un-

less they are certified before any class member files an in-

dividual suit in state court. Id.

Judge Heaney dissented. In a 22-page opinion, he em-

phasized that the approach adopted by the majority . . .

broadly forecloses mandatory class actions whenever a

class member has commenced state court proceedings.”

(A. 37a) He disagreed squarely with the majority’s

view of the Anti-Injunction Act. Relying upon the excep-

tion for injunctions “necessary in aid of” jurisdiction,

Judge Heaney remarked that “it seems self-evident that

an injunction to protect the ordinary scope of a manda-

tory class action is ‘necessary in aid of’ the federal juris-

class”

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On July 9, 1982, by an equally divided vote (3-3), the

Eighth Circuit denied petitioners’ petitions for rehearing

and rehearing en banc.“ (A. 38a)

REASONS FOR GRANTING THE WRIT

This case presents issues that will have a signifi-

cant impact on two portant areas of federal procedure.

First: Interlocutory Appellate Review. The effect of

the Eighin Cireuit's opinion is to render virtually all

lowed to stand, this unprecedented ruling would create a

allowed to stand, the majority’s novel ruling would, for all

I. ORDERS CERTIFYING MANDATORY CLASS AC-

TIONS DO NOT CONSTITUTE INJUNCTIONS AND

ARE NOT APPEALABLE AS OF RIGHT.

Review by this Court is appropriate to examine the

panel’s unprecedented holding that the certification of a

mandatory class action, standing alone, constitutes an in-

12 Chief Judge Lay, Judge Heaney and Judge Bright voted to

grant rehearing en banc. Judge John R. Gibson did not participate

in the consideration of the petition.

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junction and is therefore appealable as of right under

28 U.S.C. § 1292(a) (1).

No injunction issued here. “{NJo plaintiff has, as yet,

been enjoined from pursuing any state court action.”

(A. 84a) (Heaney, J., dissenting) And nothing in Rule

23 states that certification of a mandatory class action

constitutes an injunction. The Rule provides only that

the judgment in such a class action will include all

class members. See Fed. R. Civ. P. 28(c) (8). As

& Miller opine, this does not necersarily mean that it

will bind all the persons named as class members. See

C. Wright & A. Miller, Federal Practice & Procedure

§ 1789 at 176 (1972). A class member is free to pursue

the state proceedings. See In re Glen W. Turner Enter-

prises Litigation, 521 F.2d 775 (8d Cir. 1975).

Certification simply does not constitute an order pro-

hibiting the class member from proceeding with his own

action. The priority between a state court judgment and

any judgment entered in the federal class action would

be determined by the doctrine of res judicata.

Obviously, once a mandatory class action has been certi-

fied, it may make little sense for class members to pro-

ceed with individual suits, or for the courts in which

those suits are pending to permit them to do so. But that

does not mean that the initial certification of @ class ac-

tion constitutes an injunction.

We are not aware of any case, and the panel decision

cites none, in which certification of a mandat..y class ac-

tion has been treated as an injunction appealable as of

right under 28 U.S.C. § 1292(a)(1). Furthermore, the

Gardner v. Westinghouse Broadcasting Co., 487 U.S. 478,

482 (1978), this Court emphasized that § 1292(a) (1)

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COURT OF THE POWER TO TRY A MANDATORY

CLASS ACTION.

Il. THE PENDENCY OF AN INDIVIDUAL SUIT IN

STATE COURT CANNOT STRIP A FEDERAL

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by numerous persons against a fund insufficient to satisfy

all claims.” Advisory Committee’s Note to Federal Rule

of Civil Procedure 23, 89 F.R.D. 98, 101 (1966) .“

Here, the panel set aside a class certification even

though it in no way questioned the District Court’s con-

clusion that such a proceeding was needed to prevent “the

sacrifice of one aggrieved party’s claim for the sole bene-

fit of another ag,rieved party,” (A. 58a) The majority

noted the District Court’s concern for the efficient

management of mass tort litigation and commended “his

creative efforts in attempting to achieve a fair, efficient

and economical trial for the victims of the Hyatt Regency

disaster.” (A. 18a) Judge Heaney, in his dissent,

echoed similar praise.

“In sum, the district court’s class action satisfies all

the requirements of Rule 28, and the state and fed-

% The district court in the “Dalkon Shield” litigation, for just

81-4648 et al., slip op. (9th Cir. June 18, 1982). None of the

reasons for the reversal are applicable to the Hyatt Hotel

disaster litigation. The Ninth Circuit held that: (1) no testi-

court held a hearing where it received this information plus addi-

tional data. (2) The punitive damage standards of fifty different

jurisdictions were applicable. There, only the standard in Missouri

applies. (3) There was no representative

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designated lead counsel resigned and the availability

lead counsel remained an open question. Experienced lead counsel

are handling this case. (5) The conduct of the defendant differed in

time, quality and quantity with regard to each class member. All

class members here suffered as a result of a common disaster, on one

date, whose cause is identical for every claimant. (6) There were

discrete affirmative defenses which may or may not have applied

to the class members. Here, none exist with respect to the Hyatt

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