Hartland v. Alaska Airlines, s. 72-2531
| Decision Date | 02 April 1976 |
| Docket Number | Nos. 72-2531,73-3621 and 74-1945,s. 72-2531 |
| Citation | 544 F.2d 992 |
| Parties | Juanita HARTLAND, Plaintiff-Appellee, v. ALASKA AIRLINES, a corporation, and the Boeing Company, a corporation, Defendants-Appellants, and United States of America, et al., Third-Party Defendants-Appellants. Juanita HARTLAND et al., Plaintiffs, v. ALASKA AIRLINES, INC., et al., Defendants, Ely, Guess & Rudd, as Attorneys for Carol Stendingh, personal representative and administratrix of the Estate of Mabel Sampson, Decedent, Appellants. Martha Susan GOLUB, Executrix of the Estate of Harvey Golub, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David H. Bundy (argued), of Ely, Guess & Rudd, Anchorage, Alaska, for appellants in No. 73-3621.
Seymour L. Ellison (appeared), San Francisco, Cal., for appellees in No. 73-3621.
Edward M. Digardi (argued), of Nichols, Williams, Morgan & Digardi, Oakland, Cal., Gregg, Fraties, Petersen & Page, Anchorage, Alaska, for plaintiff-appellant in No. 74-1945.
James B. Bradley (argued), Juneau, Alaska, for defendant-appellee in No. 74-1945.
Before DUNIWAY and WALLACE, Circuit Judges, and MURPHY, * District Judge.
In No. 72-2531 the United States is the appellant. It has moved for voluntary dismissal of the appeal. No party to the proceedings in the District Court has objected, although all have been served. Accordingly, we dismiss the appeal.
In No. 73-3621 the Alaskan law firm, Ely, Guess & Rudd, Inc., representing the administratrix of the Estate of Mabel Sampson, and in No. 74-1945 Martha Susan Golub, executrix of the Estate of Harvey Golub, each appeal from separate orders of the United States District Court for the Northern District of California.
The captions, or titles, or labels in each case, as used by the District Court and by this Court, are misleading and inaccurate, recalling to our mind the observation that Mr. Justice Cardozo made in a different context, viz., "A fertile source of perversion in constitutional theory is the tyranny of labels." Snyder v. Massachusetts, 291 U.S. 97, 114, 54 S.Ct. 330, 335, 78 L.Ed. 674, 682 (1934).
A review of some of the facts antedating each of these orders is necessary to bring into focus the manner in which inaccurate On September 4, 1971, an Alaska Airlines plane crashed near Juneau, Alaska, causing the death of all 111 persons aboard. Two of the persons killed were Mabel Sampson and Harvey Golub, both residents of Alaska. The law firm of Ely, Guess & Rudd, Inc., representing the Sampson Estate, filed no lawsuit in any State or Federal court. The Golub executrix, on the other hand, brought suit against Alaska Airlines in the Superior Court of the State of Alaska, First Judicial District, and a separate suit under the Federal Tort Claims Act (28 U.S.C. § 2671 et seq.) against the United States in the United States District Court, District of Alaska.
captions came about. It is our conclusion that the effect in each case was to create the illusory appearance of jurisdiction in the District Court.
More than a year after the fateful crash, the Judicial Panel on Multidistrict Litigation entered an order on November 15, 1972, "that the actions listed on the attached Schedule A be, and the same hereby are, transferred to the Northern District of California and, with the consent of that court, are hereby assigned to the Honorable Peirson Hall for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407" (emphasis ours) In re Air Crash Disaster at Juneau, Alaska on September 4, 1971, 350 F.Supp. 1163, 1164 (Jud.Pan.Mult.Lit.1972). Schedule A reads:
"SCHEDULE A DOCKET NO. 107
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Northern District of California
-------------------------------
Ali Aunalla, etc. v. Alaska Civil Action
Airlines, et al. No. C-71-2363-PMH
William A. Parsons, etc. v. Civil Action
Alaska Airlines No. C-72-546-PMH
Larry A. Peak v. Alaska Civil Action
Airlines No. C-71-1918-PMH
Juanita Hartland v. Alaska Civil Action
Airlines, et al. No. C-71-1730-PMH
Patricia Hartland v. Alaska Civil Action
Airlines, et al. No. C-71-1729-PMH
Tracy Christine Hartland v. Civil Action
Alaska Airlines, et al. No. C-71-1861-PMH
District of Alaska
------------------
Robert E. Rothberger, Sr., etc. Civil Action
v. Alaska Airlines, Inc., et al. No. J-4-72
Western District of Washington
------------------------------
Cheryl Ellen Null v. United Civil Action
States of America No. 390-72C2"
The eight actions so transferred obviously did not include the Sampson "claim" or the Golub actions. It should be noted, too, that the order made pursuant to 28 U.S.C. § 1407, using the language of that statute, transferred the cases "for coordinated or consolidated pretrial proceedings" (28 U.S.C. § 1407). Section 1407 further provides that: "Each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated * * *."
It is of interest also to note that the opinion of the Multidistrict Litigation Panel stated: "More than 30 other actions arising from the accident are pending in the state courts of Washington and Alaska." (Emphasis ours.) The opinion also recites the following at pages 1163-64:
"The six California actions are assigned to Judge Peirson Hall.1 Judge Hall held a pretrial conference in February 1972, after notice to representatives of all decedents, to consider methods of disposing of all claims arising from the crash. Counsel for all parties in the federal actions as well as many state court counsel attended this conference and a stipulation to expedite consolidated discovery for all cases was discussed. At subsequent conferences a Plaintiffs' Discovery Committee was appointed to represent all state and federal plaintiffs and a stipulation concerning the use of consolidated discovery was approved by the court and later circulated to all plaintiffs and potential plaintiffs with the recommendation of Plaintiffs' Discovery Committee that it be executed.
1. Judge Hall has also been assigned to the other districts in which actions are pending by the Chief Judge of the United States Court of Appeals for the Ninth Circuit.
"The stipulation provides that discovery on the liability issue will occur in the Northern District of California or the district designated transferee district by the Panel under 28 U.S.C. § 1407. Discovery obtained by this manner may be
used by a party to the stipulation in any forum. Discovery in other actions is stayed by agreement and those who do not sign the stipulation cannot get the benefit of the consolidated discovery effort. This stipulation has been signed by all defendants except the United States, by all federal plaintiffs and by a number of state court plaintiffs.
On February 23, 1973, Judge Hall made an order in six cases originally assigned to him while sitting by general designation in the Northern District of California pursuant to 28 U.S.C. § 292(b) which are the same six California cases transferred to him pursuant to the Multidistrict Litigation Panel pursuant to 28 U.S.C. § 1407 for "coordinated or consolidated pretrial proceedings." In such order he related what has been described above in the Multidistrict Panel opinion.
Attached to the order is the stipulation; and it bears the signatures of a number of people, but not including anyone signing for the United States or Golub or Sampson.
In paragraph 2 of such stipulation it is stated:
He then mistakenly paraphrased the order of the Multidistrict Litigation Panel as follows:
"On November 15, 1972 the Judicial Panel on Multidistrict Litigation, pursuant to 28 U.S.C. § 1407, entered its decision and order (Docket No. 107) consolidating all cases arising out of the above mentioned crash and transferring them to the Northern District of California and appointed Peirson M. Hall, Senior Judge, as the transferee judge." (Emphasis ours.)
Judge Hall, in his order of February 23, 1973, stated that there were now 35 cases pending in his court under their respective individual docket numbers and under Multidistrict Litigation Panel docket number 107. Then, as transferee judge, he appointed a Committee of lawyers to conduct discovery and "to represent all plaintiffs signing said stipulation and not otherwise represented at all pretrial conferences." More significantly, he ordered:
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