Humphreys v. Tann
| Decision Date | 21 November 1973 |
| Docket Number | No. 72-2225.,72-2225. |
| Citation | 487 F.2d 666 |
| Parties | George H. HUMPHREYS, Administrator of the Estate of John S. Humphreys, Deceased, and George H. Humphreys, Individually, Plaintiff-Appellant, v. Herman TANN et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Theodore E. Wolcott, San Francisco, Cal., for plaintiff-appellant.
Walter E. Rutherford, Haight, Gardner, Poor & Havens, New York City, H. Thomas Haacke, Jr., Dayton, Ohio, for defendants-appellees.
Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
John S. Humphreys, a resident of New York, was killed on March 9, 1967 in a mid-air collision between the Trans World Airlines (TWA) jetliner on which he was a passenger and a smaller Beech Baron aircraft owned by The Tann Company (Tann), a partnership. The collision occurred near Urbana, Ohio as the TWA plane was preparing to land at the Dayton, Ohio airport. No occupant of either plane survived. Numerous law suits were filed in various state and federal courts. The personal representative of John S. Humphreys sued Tann in the U.S. District Court for the Eastern District of Michigan, Southern Division, the place of residence of the partners and the place where the partnership was established and carried on its business. The Tann Corporation, a Michigan corporation, was also made a defendant. The complaint charged Tann with a number of acts of negligence and sought damages "under the common law and the statutes of the State of Ohio." Jurisdiction of the court was based on diversity of citizenship.
By an order dated March 23, 1970, the Judicial Panel on Multidistrict Litigation directed that a number of the actions arising out of the air crash be "transferred to the Southern District of Ohio, Dayton Division, . . . for co-ordinated or consolidated pretrial proceedings with the related actions now pending in that court." In re Air Crash Disaster Near Dayton, Ohio, 310 F.Supp. 798 (1970). The action of Humphreys' representative against Tann was not included in the March 23 order, but was transferred as a tag-along case by an order of July 10, 1970. Thereafter counsel for the Humphreys estate participated in pretrial discovery and conferences among the many attorneys involved in the various actions. Two pretrial conferences were held by the district judge. At the pretrial conference held on December 15, 1970, one case, Downey v. TWA and Tann, was set for trial on March 22, 1971. This case had been filed originally in the Southern District of Ohio. None of the transferred cases was consolidated with Downey, nor was there any agreement that it would serve as a test case.
The trial of the Downey case resulted in a verdict for the plaintiff against TWA only. Judgment was entered on the verdict dismissing the actions against Tann by the plaintiff and by TWA on its cross-claim. Thereafter Tann filed a motion for summary judgment in the pending case of Humphreys v. Tann on the ground, "the plaintiffs in the remaining wrongful death actions against Tann are collaterally estopped from proving that the accident in question resulted from any negligence on the part of the Tann Company . . . ." On September 29, 1972 the district court entered an order granting Tann's motion for summary judgment and dismissing the action. In re Air Crash Disaster Near Dayton, Ohio, 350 F.Supp. 757 (S. D.Ohio 1972).
On appeal it is first contended that the District Court for the Southern District of Ohio, as transferee court under an order of the Judicial Panel on Multidistrict Litigation, did not have the authority or power to grant summary judgment. The appellant maintains that his case was transferred from the court in Michigan to one in Ohio for the limited purpose of coordinated or consolidated pretrial proceedings, and that when these proceedings were completed the transferee court lost jurisdiction over the transferred case. This argument seeks to put too narrow a construction on the term, "pretrial proceedings." While discovery by deposition, interrogatories and requests for admissions is a part of pretrial proceedings in the typical case, such proceedings are not limited to these activities. Various motions may properly be made as part of pretrial proceedings, including motions for summary judgment. The statute which permits the transfer of a case in multidistrict litigation provides for the remand of the case to the district from which it was transferred, at or before conclusion of pretrial proceedings, "unless it shall have been previously terminated." 28 U.S.C. § 1407. The termination may result from a voluntary dismissal or from action of the court. We adhere to our opinion in Reidinger v. Trans World Airlines, Inc., 463 F.2d 1017 (6th Cir. 1972), that the judge of a transferee court does have the power to hear and decide motions for summary judgment.
Appellant next contends that the district court improperly applied the doctrine of collateral estoppel in concluding that Tann was entitled to summary judgment. It is conceded that the Humphreys case was not consolidated with the Downey case and that the issue of Tann's liability to the Humphreys estate was not submitted to the jury which found in favor of Tann on the Downey claims. It is argued that since the plaintiff in the transferred Humphreys case was not a party to the action between Downey and Tann it would be a denial of due process of law to deny him his day in court on the basis of the outcome of that case. Thus the question is narrowed to whether there is a requirement of mutuality of parties for application of the doctrine of collateral estoppel.
In his Memorandum Opinion, the district judge stressed the fact that the motion was under consideration in the setting of multidistrict litigation and involved the effect of a prior federal court judgment on pending actions arising out of the same common disaster. In this context he concluded that federal law was controlling and that it permitted the application of collateral estoppel or preclusion to prevent relitigation of "an issue which has been fully and fairly adjudicated." The district judge recognized that the courts of Ohio require mutuality of parties for the application of collateral estoppel, but held that there was "an over-riding federal interest in the effective administration of justice in the federal court system."
While it is clear that Ohio requires mutuality of parties for application of collateral estoppel, Whitehead v. General Telephone Co., 20 Ohio St.2d 108, 116, 254 N.E.2d 10 (1969), it is not clear that there is a body of federal law which holds that mutuality is not required. The brief of the appellee, while arguing persuasively for application of federal rules, fails to establish the existence of such a body of law by authoritative citations. Much is made of the fact that Congress has enacted pervasive laws concerned with the utilization and control of the national airspace. It is also pointed out that the government was a defendant under the Federal Tort Claims Act in many of the passenger suits arising out of the Dayton collision. Furthermore, the very nature of airplane crashes involving scheduled passenger flights leads to numerous separate actions in different courts. Appellee asserts that when these actions are brought together for coordinated and consolidated pretrial proceedings under the Multidistrict Litigation Act, an orderly administration of the federal judicial system requires that federal law apply to all pretrial rulings. Unless there exists a federal rule of collateral estoppel which is different from that of Ohio, however, it is not necessary to decide which law controls.
The first significant judicial move away from the res judicata requirement of strict mutuality of parties occurred in Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d 892 (1942). The California Supreme Court, speaking through Justice Traynor, stated the issue and its determination as follows:
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