In re Massachusetts Helicopter Airlines, Inc.

• Decision Date: 25 October 1972
• Docket Number: No. 72-1256.,72-1256.
• Citation: 469 F.2d 439
• Parties: In re MASSACHUSETTS HELICOPTER AIRLINES, INC., Petitioner.
• Court: U.S. Court of Appeals — First Circuit

469 F.2d 439 (1972)

In re MASSACHUSETTS HELICOPTER AIRLINES, INC., Petitioner.

No. 72-1256.

United States Court of Appeals, First Circuit.

Submitted August 1, 1972.

Decided October 25, 1972.

Edward F. Mahony, Boston, Mass., on petition for petitioner.

Before COFFIN, Chief Judge, and ALDRICH and McENTEE, Circuit Judges.

COFFIN, Chief Judge.

This petition for mandamus raises several questions of federal procedure, stemming from a complex of actions arising out of a helicopter crash seven years ago. A helicopter owned by Massachusetts Helicopter Airlines (Owner) crashed while piloted by one DeLuca (Employee), injuring passengers Marilyn Thomas and her daughter, and killing Mrs. Thomas' husband. The helicopter was manufactured by Bell Aerospace Corp. (Manufacturer). Out of the accident arose ten actions which were consolidated for trial in the District Court for the District of Massachusetts. Three of the ten cases involving the helicopter passengers as plaintiffs, and the Employee as defendant, were voluntarily dismissed by Mrs. Thomas. One case was discontinued as being duplicative of an existing case. Another case was dismissed pursuant to stipulation on the eve of trial as a result of a $400,000 settlement between Mrs. Thomas and the Manufacturer. The five remaining cases were then tried together, first on liability, then on damages. It is the disposition of these five cases which has led to the Petition by Owner for Mandamus.

In three cases, CA 65-738-M, CA 65-739-M, CA 65-740-M, (cases 738, 739, and 740), plaintiff Marilyn Thomas acting on behalf of her daughter, as administratrix of her husband's estate, and individually, respectively, sued Owner in negligence for personal injuries to these three helicopter passengers. In each case Owner filed a third party claim against Manufacturer for negligent design, testing and manufacture of the helicopter part which failed in flight and caused the crash. In a fourth case, CA 66-427-M (case 427), Employee-Pilot DeLuca sued Manufacturer for personal injury also on the ground of negligent design, testing and manufacture. In the last case, CA 66-426-M (case 426), Owner sued Manufacturer for property damage due to alleged breaches of express and implied warranties and for negligent design, testing and manufacture. An attempt to sever 427 was denied on November 10, 1970. Subsequently, all five cases proceeded to trial as consolidated. On June 4, 1971, the jury returned the following special verdict:

1. Was the crash of the helicopter proximately caused by negligence on the part of Massachusetts Helicopter Airlines (Owner)? YES

2. Was the crash of the helicopter proximately caused by negligence on the part of Albert J. DeLuca (Employee) ? NO

3. Was the crash of the helicopter proximately caused by negligence on the part of Bell Aerospace Corp. (Manufacturer) ? NO

4. When the helicopter was delivered to (Owner), by the (Manufacturer), was it then and there, solely by reason of the design of the grip fitting, defective and not reasonably fit to be used for its ordinary purposes? NO

On June 7, 1971 Manufacturer moved for leave to amend its answer in case 426 by adding a counter-claim against Owner for contribution because Manufacturer had settled with Mrs. Thomas in three cases for $400,000.

As a result of these verdicts, the trial court, on September 30, 1971, entered judgments for Marilyn Thomas against Owner in cases 738, 739, 740 and dismissed third-party complaints by Owner against Manufacturer in each of these cases. In case 426 the trial court denied a new trial motion and entered judgment in favor of defendant Manufacturer, dismissing the complaint filed by Owner. In case 427, after judgment was entered for defendant Manufacturer, a motion by plaintiff Employee for a new trial was granted "for the reason that the verdict is against the weight of the evidence and results in a miscarriage of justice."

On June 1, 1972 Owner filed a "motion for certificate in each case under F.R. Civ.P. 54(b) and a stay of enforcement of judgment in each case under F.R.Civ. P. 62(h)" in cases 738, 739, 740, and 426. Owner contended that all of the consolidated cases constitute but one "judicial unit" within "the intent of Rule 54(b)",¹ and the presence of multiple parties required that a certificate be obtained. Marilyn Thomas "consented" to Owner's request for a certificate as to those cases in which she is plaintiff. Manufacturer "concurred" in the motion for a certificate only in case 426 apparently because of the pendency of the unsettled counterclaim of June 7, 1971, and contended that a certificate is not necessary to appeal judgments in cases 738, 739, and 740 since the issues in each of those cases were fully adjudicated and final judgments were entered. Manufacturer contended that Rule 54(b) did not apply at all here because the consolidation order with regard to cases 738, 739, and 740 "did not affect their identity as separate actions".

Apparently accepting Manufacturer's contentions, the district court denied Owner's motions for a 54(b) certificate in 738, 739, and 740 and granted the certificate in 426. Stay of judgment was denied in all of the cases. Subsequently Owner, for reasons best known to it, filed this Petition for Mandamus to forestall review in any of the four cases until 427 is re-tried, alleging that the district court's action amounts to an abuse of discretion.

There are two quite different kinds of questions presented. The first is whether or not the court erred as a matter of law in not treating the consolidated cases as one action, so that, in the absence of a Rule 54(b) determination, the appeals in 738, 739, and 740 are not before us. The second question is whether, even if there is appellate jurisdiction over these three cases, the court abused its discretion in (a) refusing to stay appellate proceedings in these cases until 427 is retried and (b) granting the solitary 54(b) certificate in 426.

Addressing the first question, we note that the essence of Rule 54(b) relates only to multiple claims or multiple parties in one "action". While this appears to be but a narrow procedural question, in actuality its resolution is intertwined with the delicate balance between the public interest in judicial economy and the private interest of every litigant in the conduct of his own litigation as reflected in every court action taken pursuant to Rule 54. When, and if, consolidated actions become one new action may affect issues other than appealability under Rule 54(b).

The Federal Rules of Civil Procedure were intended to define with greater certainty than in the past the term "action". "There shall be one form of action to be known as `civil action'." Rule 2, F.R.Civ.P. "A civil action is commenced by filing a complaint with the court." Rule 3, F.R.Civ.P. In the present case, separate complaints were filed or removals effected of separate state court actions in cases 738, 739, 740, 426, and 427. Except for the consolidation of these cases for convenience of pre-trial and trial procedure, the cases maintained their separate identities throughout the litigation. Separate judgments were entered in each of the five cases. Thus the literal reading of Rule 54(b) in conjunction with Rules 2 and 3 would foreclose any interpretation which mandates certification in all consolidated action settings.

This construction of the Rules is reinforced in the instant case when the theory behind consolidation of actions is examined. "Consolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another." Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-497, 53 S.Ct. 721, 727, 77 L.Ed. 1331 (1933). See also Oikarinen v. Alexian Bros., 342 F.2d 155 (3d Cir. 1965); Zdanok v. Glidden Co., 327 F.2d 944, 950 n. 6 (2d Cir. 1964); Tiernan v. Dunn, 295 F.Supp....