City of Inglewood v. City of Los Angeles

• Decision Date: 18 January 1972
• Docket Number: No. 26081.,26081.
• Citation: 451 F.2d 948
• Parties: The CITY OF INGLEWOOD and Robert H. Collins on Behalf of Themselves, Citizens, Residents, and Owners of Property Within the City of Inglewood, and Those Similarly Situated, Appellants, v. CITY OF LOS ANGELES, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

451 F.2d 948 (1972)

The CITY OF INGLEWOOD and Robert H. Collins on Behalf of Themselves, Citizens, Residents, and Owners of Property Within the City of Inglewood, and Those Similarly Situated, Appellants, v. CITY OF LOS ANGELES, Appellee.

No. 26081.

United States Court of Appeals, Ninth Circuit.

November 12, 1971.

Rehearing Denied January 18, 1972.

COPYRIGHT MATERIAL OMITTED

Michael M. Berger (argued), of Fadem & Kanner, Los Angeles, Cal., Donald E. Olson, City Atty., Inglewood, Cal., for appellants.

Milton M. Sherman, Asst. City Atty. (argued), Roger Arnebergh, City Atty., James H. Pearson, Deputy City Atty., Los Angeles, Cal., for appellee.

Before BARNES, DUNIWAY and WRIGHT, Circuit Judges.

BARNES, Circuit Judge:

This is an appeal brought by plaintiffs following an order of the District Court for the Central District of California dismissing the plaintiff's complaint without leave to amend. The suit was filed by the City of Inglewood and Robert Collins on behalf of themselves, citizens, residents, and owners of property within the City of Inglewood and those similarly situated hereinafter referred to as Inglewood. The plaintiffs allege that the defendant City of Los Angeles, through its ownership and operation of the Los Angeles International Airport, is causing the plaintiffs various forms of personal injuries and property damage.

I. Pleadings

Inglewood's original one count complaint was filed on April 21, 1969, seeking damages, declaratory relief and injunctive relief. Inglewood filed a motion for a preliminary injunction. Before filing an answer, Los Angeles moved to dismiss the complaint. The district court granted Los Angeles' motion, dismissing the complaint with leave to amend for failure to comply with Rule 10(b) of the Federal Rules of Civil Procedure (Separate Statements of Claims). A First Amended Complaint in six counts was filed on June 28, 1969. It was dismissed by the district court with leave to amend on the grounds that "* * * plaintiffs have failed to state a substantial federal question within the jurisdiction of the Court and for failure to show that plaintiffs have standing for relief." C.T., 298

A Second Amended Complaint, consisting of six counts, followed on September 29, 1969. C.T., 300 This complaint was dismissed on January 9, 1970. C.T., 367 The first count alleging that the operation of the airport was causing injuries to persons and property, was dismissed with leave to amend for failure to state a single claim within the jurisdictional limits of 28 U.S.C. sec. 1331(a). Count Two which alleged violations of 49 U.S.C. sec. 1108(d) (3) subsequently amended to 49 U.S.C. sec. 1716(c) (3) and 49 U.S.C. sec. 1110(4) subsequently amended to 49 U.S.C. sec. 1718(4), was dismissed without leave to amend on the grounds that plaintiffs could not enforce grant agreements made between Los Angeles and the Federal Aviation Administration. Count Three (alleging violations of zoning laws); Count Four (alleging that the airport constitutes an abatable nuisance); and Count Six (alleging negligency in the operation of the airport) were all dismissed without leave to amend for the reason that they were state claims in nature. Count Five, which alleged that various modifications in the operation of the airport would diminish much of the damage suffered by the plaintiffs, was dismissed with leave to amend for failure to state any substantial federal question.

A Third Amended Complaint was filed on February 9, 1970, and contained only Counts One and Five. C.T., 374 This complaint was dismissed without leave to amend on the grounds that the court believed it "* * * unlikely that any plaintiff will recover the amount of $10,000.00 or greater, and consequently there is a failure to satisfy requisite monetary jurisdiction." C.T., 521, 524 This appeal followed.

Inglewood attempted to base the jurisdiction of the district court on a variety of grounds.¹ The jurisdiction of this Court arises under 28 U.S.C. sec. 1291. In the district court, Inglewood also sought a variety of relief.²

II. Procedure.

Before turning to the merits of the claims presented by the plaintiffs, the Court is required to discuss a procedural matter not raised by either party, either in the district court or on appeal. It was for this reason that this Court requested simultaneous post-argument briefs, which have now been filed.

This suit is being maintained under Rule 23 of the Federal Rules of Civil Procedure as a class action. Section (c) (1) of that rule provides that "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." We find no indication that such a determination was made by the district court, though the suit was before the court for over a year. In a difficult and complex case such as this one, it might have been appropriate for the district court to have resolved this matter before the case had reached the appeal stage.

However, we recognize that the requirement such determination is to be made "as soon as practicable" leaves much room for discretion. "It will obviously vary from case to case." Frankel, Some Preliminary Observations Concerning Civil Rule 23 (D.C. 1968) 43 F.R.D. 39, 41-42.

"* * * whatever uncertainties exist as to the precise status of an action brought as a class action, during the interim between filing and the 23(c) (1) determination by the court, it must be assumed to be a class action for purposes of dismissal or compromise under 23(e) unless and until a contrary determination is made under 23(c) (1)." Emphasis added

Philadelphia Electric Co. v. Anaconda American Brass Co., (E.D. Pa., 1967) 42 F.R.D. 324, 326.³

We hold therefore, it was proper for the district court to assume the suit was a class action in order to determine if it had jurisdiction, without first making the finding required by 23(c) (1); and that this court must likewise assume this was a class action until a contrary determination is made.

It will hereafter appear we have determined a portion of this case must be remanded to the district court. Upon remand it should be one of the district court's first tasks to make the determination required by Rule 23 with all deliberate speed, if the proceeding reach the stage where such determination is required.⁴

III. Jurisdictional Amount in Dispute

Turning to the issues raised by the parties on this appeal, we find that the primary source of dispute is whether or not Inglewood has satisfied the jurisdictional amount requirements of 28 U.S.C. sec. 1331(a).⁵ The existence of a substantial federal question under the due process clause of the Fourteenth Amendment for any claim of loss of real property value is not disputed on this appeal. The question is well settled by the case law. Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962); Mosher v. City of Phoenix, 287 U.S. 29, 53 S.Ct. 67, 77 L.Ed. 148 (1932); Lowe v. Manhattan Beach City School District, 222 F.2d 258 (9th Cir. 1955).

In determining whether or not the plaintiffs have met their burden of satisfying the jurisdictional amount requirements, it is important to note some of the unchallenged conclusions reached by the district court. First, the district court decided that this class action is "spurious" in nature (the claims of each class member being separate from the claims of the rest of the class);⁶ that the claims of the class members cannot be aggregated to establish the $10,000 amount in controversy standard;⁷ and that the 1966 amendment to Rule 23 did not alter this requirement.⁸ C.T., p. 370

"Proper practice requires that where each of several plaintiffs is bound to establish the jurisdictional amount with respect to his own claim, the suit should be dismissed as to those who fail to show that the requisite amount is involved." Clark v. Paul Gray, Inc., 306 U.S. at 590, 59 S.Ct. at 749. This rule holds true even though one or more members of a class can establish for themselves the jurisdictional requirements. Clark v. Paul Gray, Inc., supra; Alvarez v. Pan American Life Insurance Company, 375 F.2d 992, 997 (5th Cir. 1967).

We find that in this case, we have a situation in which some plaintiffs probably can meet the jurisdictional requirements, and some probably cannot. The district court found that "* * * it is highly unlikely that any plaintiff will recover the amount of $10,000 or greater." C.T., p. 524 (Emphasis added.) We believe that the district court erroneously applied the law in making that determination.

"It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. * * * But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed." Footnotes omitted and emphasis added. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). In the face of plaintiff's allegations,⁹ we cannot say to a legal certainty that no plaintiff can state a claim with reasonable certainty entitling him to recover over $10,000. We do not agree that plaintiffs can aggregate damages for claimed personal injuries and damages for loss in value of their property on the theory of inverse condemnation in considering whether the particular plaintiffs have shown the necessary jurisdictional amount in the cause of action for taking of their property. The court should confine its consideration to diminution in value of the particular plaintiff's real property and not include any claim for personal injuries to the same plaintiff. See City of Boulder v. Snyder, 10 Cir., 1968, 396 F.2d 853, 856....