Federal Skywalk Cases, In re

• Citation: 680 F.2d 1175
• Decision Date: 07 June 1982
• Docket Number: Nos. 82-1181,82-1207,s. 82-1181
• Parties: In re FEDERAL SKYWALK CASES. In re Melanie Hanson JOHNSON and Gerard Stanley Johnson, et al., Petitioners. In re FEDERAL SKYWALK CASES. In re Jacqueline N. RAU, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1175

680 F.2d 1175

In re FEDERAL SKYWALK CASES In re Melanie Hanson JOHNSON and Gerard Stanley Johnson, et al., Petitioners In re FEDERAL SKYWALK CASES In re Jacqueline N. RAU, Appellant.

Nos. 82-1181, 82-1207.

United States Court of Appeals Eighth Circuit.

Submitted March 12, 1982.

Decided June 7, 1982.

Thomas P. Sullivan, Richard T. Franch, Charles L. Barker, Michael A. Stick, Paul A. Rogers, Chicago, Ill., for appellant Jacqueline N. Rau; Jenner & Block, Chicago, Ill., Shook, Hardy & Bacon, Kansas City, Mo., of counsel.

Jerome G. Shapiro, John M. Townsend, Ronald A. Stern, Hughes Hubbard & Reed, New York City, Robert L. Driscoll, Lawrence M. Berkowitz, Stinson, Mag & Fizzell, Judith C. Whittaker, Kansas City, Mo., for respondents Crown Center Redevelopment Corp. and Hallmark Cards, Inc.

Michael E. Waldeck, Niewald, Risjord & Waldeck, Thomas E. Deacy, Jr., Deacy & Deacy, Kansas City, Mo., Don H. Reuben, Michael A. Kahn, Charles C. Post, Reuben & Proctor, Chicago, Ill., for Hyatt Corp.

Williams & Connolly, Irving Younger, Paul Martin Wolff, Paul Mogin, Washington, D.C., Anderson, Granger, Nagels, Lastelic & Gordon, Kenton C. Granger, Robert C. Gordon, Overland Park, Kan., Grier, Swartzman & Weiner, Richard L. Routman, Charles M. Thomas, Stoup, Thompson & Wohlner, Arthur H. Stoup, Kansas City, Mo., Robert L. Collins, Collins & Steinburg, Houston, Tex., William P. Whitaker, Kansas City, Mo., with respect to all matters pertaining to class certification, Arthur R. Miller, Harvard Law School, Cambridge, Mass., for representative plaintiff and the class.

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

Thomas J. Leittem, Suzanne K. Loseke, of Shughart, Thomson & Kilroy, A Professional Corp., Kansas City, Mo., for respondent PBNDML Inc.

Bill E. Fabian, James R. Goheen, McAnany, Van Cleave & Phillips, P. A., Kansas City, Kan., for respondent Eldridge & Son Const. Co., Inc.

Gordon N. Myerson, Laurence R. Tucker, Morris, Larson, King, Stamper & Bold, Kansas City, Mo., for Smith & Boucher, Inc.

Lantz Welch, Max W. Foust, Patrick McLarney, Kansas City, Mo., John E. Shamberg, Shawnee Mission, Kan., B. Kent Snapp, Clayton A. Chittim, Kansas City, Mo., S. Preston Williams, North Kansas City, Mo., for Skywalk Liaison Committee.

Donald L. James, Lawrence B. Grebel, Brown, James, Rabbitt, Whaley, McMullin & Pitzer, St. Louis, Mo., for respondent, Gillum-Colaco Consulting Structural Engineers, Inc.

Patrick McLarney, David R. Morris, John F. Murphy, Timothy J. Kennedy, Andrew See, Shook, Hardy & Bacon, Kansas City, Mo., John E. Shamberg, Lynn R. Johnson, Schnider, Shamberg & May, Shawnee Mission, Kan., Max W. Foust, Morris & Foust, Kansas City, Mo., Duke W. Ponick, Jr., Kansas City, Mo., for petitioners.

Before HEANEY, McMILLIAN and ARNOLD, Circuit Judges.

McMILLIAN, Circuit Judge.

This action challenges the validity of a mandatory class certification order rendered by the United States District Court ¹ for the Western District of Missouri during the course of litigation arising out of the collapse of two skywalks at the Hyatt Regency Hotel in Kansas City, Missouri in July, 1981. ² The class was certified on the issues of liability for compensatory and punitive damages and amount of punitive damages, and includes all business invitees at the hotel during the disaster.

Two objecting plaintiffs (objectors) now petition this court to vacate the order and disqualify the federal district judge asserting jurisdiction under 28 U.S.C. § 1292(a)(1), or alternatively, under mandamus. ³ In response the class representative argues that the order is interlocutory thereby precluding appellate review. Alternatively, the class representative argues that the federal district judge did not abuse his discretion in certifying the class and further that the class is appropriate. ⁴ For the reasons discussed below, we conclude that we do have jurisdiction under 28 U.S.C. § 1292(a)(1) and further that the order must be vacated because it violates the Anti-Injunction Act, 28 U.S.C. § 2283. We also conclude that 28 U.S.C. § 455(a) does not require the disqualification of the federal district judge.

On July 17, 1981, two skywalks in the central lobby of the Hyatt Regency Hotel in Kansas City, Missouri, collapsed killing 114 persons and injuring hundreds of others. Following the disaster numerous individual lawsuits were filed in both the Circuit Court for Jackson County, Missouri (state court), and the United States District Court for the Western District of Missouri (district court). ⁵ The federal district court jurisdiction was based on 28 U.S.C. § 1332, diversity of citizenship.

The state court cases were consolidated and assigned to Judge Timothy O'Leary. The federal cases were also consolidated and assigned to Judge Scott O. Wright. Shortly after the first cases were filed, the state and district court consolidated their respective cases for discovery. Each court appointed a Plaintiffs' Liaison Committee to aid in discovery and other matters. In addition, the two courts appointed a joint state-federal Plaintiffs' Liaison Committee to aid in the consolidated discovery. ⁶ Each court held pretrial conferences and issued pretrial orders concerning the scheduling of discovery.

Prior to the class certification, the Plaintiffs' Liaison Committee accomplished substantial discovery and trial preparation on behalf of all plaintiffs. The accomplishments included nearly completing the interrogatory phase of discovery and serving requests for production upon the defendants. In addition, the committee collected approximately 300,000 documents pertaining to the litigation and had arranged for a document depository available to all plaintiffs' counsel. The committee had also arranged for the testing of the skywalk materials by the National Bureau of Standards. Brief In re Melanie Hanson Johnson, Appendix I "Affidavit of Patrick McLarney."

On October 27, 1981, Molly Riley, a district court plaintiff, filed a motion for class certification. The motion sought class certification under Fed.R.Civ.P. 23(b)(1)(B), or in the alternative under 23(b)(3), as to the issues of liability for compensatory and punitive damages and the amount of punitive damages. ⁷ The basis for requesting class certification was Riley's concern that there would be inadequate funds available to pay all claims for compensatory and punitive damages. Riley also moved that her counsel be appointed as lead counsel for the class.

Several federal and state court plaintiffs filed pleadings in opposition to Riley's motion. The objecting plaintiffs challenged Riley's and her attorney's qualifications to represent the class. They also challenged the need for and desirability of class action treatment arguing that there was no evidence of insufficient funds to satisfy all claims. A hearing was held before Judge Wright on December 10, 1981.

Prior to issuing the class certification order now on appeal, Judge Wright became aware that Riley could not serve as class representative because she was not of diverse citizenship from all defendants. Judge Wright then reviewed the complaints on file and determined that plaintiffs Stover, Johnson, Vrabel, Grigsby and Abernathy were diverse to all defendants.

Thereafter, Judge Wright placed two telephone calls to Robert Collins, Stover's attorney, and inquired whether Stover would serve as class representative if a class was certified. ⁸ Judge Wright also stated that if Stover would agree to be class representative he would appoint Collins as assistant class counsel to Riley's attorney if a class was certified. Judge Wright and Collins agreed to speak again after Collins consulted with Stover. Collins thereupon called defense counsel and unsuccessfully attempted to settle Stover's claim. Stover then agreed to be class representative.

On January 19, 1982, counsel for the objecting plaintiffs moved, pursuant to 28 U.S.C. § 455(a), to disqualify Judge Wright based on his communications with Collins.

On January 25, 1982, Judge Wright entered the order appealed from in which he (1) denied Riley's motion for class certification because her citizenship was not diverse from all defendants, (2) certified a class action under Rule 23(b) (1)(A) on the issues of liability for compensatory and punitive damages, (3) certified a class action under Rule 23(b)(1)(B) on the issues of liability for punitive damages and the amount of punitive damages, (4) selected plaintiffs Stover, Vrabel, Grigsby and Abernathy as class representatives, ⁹ (5) selected Riley's counsel as lead counsel, and counsel for the class representatives as assistant class counsel, (6) denied the motion to disqualify himself under § 455(a), explaining that he called Collins as a matter of courtesy and had intended to call the lawyers for Johnson, Vrabel, Grigsby and Abernathy but did not do so because the motion to disqualify was filed, and further that he had not decided to certify the class until the order was drafted and entered, and (7) denied objectors' request to certify an interlocutory appeal under 28 U.S.C. § 1292(b). In re Federal Skywalk Cases, 93 F.R.D. 415 (W.D.Mo.1982).

In support of its order the district court found that the general prerequisites for class actions prescribed by Rule 23(a) were satisfied, id. at 420-22, and that the specific requirements of Rule 23(b)(1) were also satisfied. The court stressed that the "interests of all parties concerned" would best be served by "the avoidance of wasteful, repetitive litigation," and that such litigation could be avoided by "trying the issues of liability for compensatory damages, liability for punitive damages and amount of punitive damages only once." Id. at 423.

In support of the Rule 23(b)(1)(A) class the court found that individual suits on the issues of liability for compensatory and...