All American Airways v. Elderd
| Decision Date | 04 January 1954 |
| Docket Number | No. 124,Docket 22889.,124 |
| Citation | 209 F.2d 247 |
| Parties | ALL AMERICAN AIRWAYS, Inc., et al. v. ELDERD, Mayor, et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Emerson A. Swartz, Garden City, N. Y. (James G. Moore, Garden City, N. Y., on the brief), for defendants-appellants.
Fowler Hamilton, New York City (Lyman M. Tondel, Jr., and Watt H. Denison, Jr., New York City, on the brief), for plaintiffs-appellees All American Airways, Inc., and others.
Daniel B. Goldberg, New York City (Sidney Goldstein, Nathaniel Fensterstock, Joseph Lesser, and Ralph W. Felsten, New York City, on the brief), for plaintiff-appellee The Port of New York Authority.
Before CLARK, FRANK, and HINCKS, Circuit Judges.
This is another round in the controversy between ten major commercial lines, the Port of New York Authority and others, and the Village and officials of Cedarhurst as to the legality of low flying from the near-by New York International Airport at Idlewild Field. In the original action the plaintiffs sought to have declared illegal and enjoined a village ordinance prohibiting low flying over the village, naming the village itself and its mayor and certain other officials as defendants. In their answer the individual defendants, in addition to defenses asserting the validity of the ordinance and the illegality of the plaintiffs' acts, set forth two counterclaims, one against the Port of New York Authority for declaratory relief and one against the plaintiff air lines for an injunction against the low flying as trespasses, and the operation of a particular offending runway at the field as a nuisance. The counterclaims were asserted on behalf of these defendants individually as property owners in the village and on behalf of all other property owners and citizens of the village similarly situated. A year ago in sustaining the grant, D.C.E.D.N.Y., 106 F.Supp. 521, of an injunction pendente lite against enforcement of the ordinance, we took note of this counterdemand on behalf of property owners and its bearing as raising important questions under the doctrine of United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, affording private property owners relief against the menace of continuously low-flying aircraft. We stated therefore that we should not then take the position taken below "of declaring the ordinance clearly invalid at this preliminary stage of the proceedings," but "In view of the importance of the interests involved and the potentially far-reaching effects of a decision, the case — including the counterclaim — should proceed to trial as rapidly as possible and decision should rest upon a complete record." All American Airways v. Village of Cedarhurst, 2 Cir., 201 F.2d 273, 276, 277.
Our attempt to spur the parties into prompt and definitive action has not proven to be a complete success. An initial move by intervening plaintiffs — the Civil Aeronautics Board and the Administrator of Civil Aeronautics — for dismissal of a like counterclaim was denied by District Judge Byers particularly in the light of our suggestion quoted above. All American Airways v. Village of Cedarhurst, D.C.E.D.N.Y., 111 F. Supp. 677. The plaintiffs, however, have here persuaded another district judge to enter an order granting their motions to dismiss the counterclaims as to the so-called "related defendants" and ordering the answer amended accordingly, i. e., by the elimination of all allegations of a class suit. The defendants have appealed and the plaintiffs first attack and deny the appealability of the order. We agree with the plaintiffs' objection; although the plaintiffs actually win little, if anything, by the highly refined procedural shadow-boxing here indulged in, certainly nothing of the dignity of an appealable order, the defendants will win nothing by this purely interlocutory appeal. To paraphrase a famous saying, never have so many achieved so little in so much time.
In justice to the litigants it must be admitted that there still seems considerable confusion as to the meaning and effect of the third group of class actions authorized by F.R. 23(a), 28 U.S.C.A., a confusion not lessened by the load it bears in its popular legal cognomen of "spurious class action." There is perhaps something anomalous in apparent legal participation in a lawsuit by persons unnamed and unidentified as individuals who, unless they show themselves by intervening, remain legally unaffected by any action taken in the case. The legal rationale lags behind the practical utilities found in the device and its "psychological value" (3 Moore's Federal Practice 3445, 2d Ed.1948) on courts and potential litigants. It stands as an invitation to others affected to join in the battle and an admonition to the court to proceed with proper circumspection in creating a precedent which may actually affect non-parties, even if not legally res judicata as to them.1 Beyond this, as we in common with other courts have pointed out, it cannot make the case of the claimed representatives stronger, or give them rights they would not have of their own strength, or affect legally the rights or...
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Miller v. Steinbach
...or liabilities of any person not a party thereto. Lipsett v. United States, 359 F.2d 956, 959 (2d Cir. 1966); All American Airways v. Elderd, 209 F.2d 247, 249 (2d Cir. 1954); California Apparel Creators v. Wieder of California, Inc., 162 F.2d 893, 895, 174 A.L.R. 481 (2d Cir.), cert. denie......
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...which would determine the interests of each member of the class in the particular property. 14 See, e.g., All Amer. Airways, Inc. v. Elderd, 209 F.2d 247 (C.A.2d Cir. 1954). Thus, under the prior Rule, the 'spurious' class action was in effect little more than a permissive joinder device. T......
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...own strength, or affect legally the rights or obligations of those who do not intervene." (Footnote omitted.) All-American Airways v. Elderd, 209 F.2d 247, 248 (2 Cir. 1954). 3 Moore, Federal Practice ¶ 23.10 (1) and (3). At the present time, nobody is attempting to intervene; until somebod......
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...Bascom Launder Corp. v. Telecoin Corp., 2 Cir., 204 F.2d 331, 336; Nagler v. Admiral Corp., 2 Cir., 248 F.2d 319, 327; All American Airways v. Elderd, 2 Cir., 209 F.2d 247; Speed v. Transamerica Corp., D.C., 100 F.Supp. 461, 463; Tolliver v. Cudahy Packing Co., D.C., 39 F.Supp. 337, 339; Al......
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...a "spurious" class suit as "little more than an invitation to non-parties closely interested to intervene"); All Am. Airways v. Elderd, 209 F.2d 247, 248 (2d Cir. 1954) (acknowledging that while precedent set by a court in a "spurious" suit may affect later litigation by parties who chose n......
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28 APPENDIX U.S.C. § 23 Class Actions
...cf. Dickinson v. Burnham, 197 F.2d 973, 979 (2d Cir. 1952), and studies cited at 979 n. 4; see also All American Airways, Inc. v. Elderd, 209 F.2d 247, 249 (2d Cir. 1954); Gart v. Cole, 263 F.2d 244, 248-49 (2d Cir. 1959), cert. denied, 359 U.S. 978 (1959).Notice to members of the class, wh......