School Asbestos Litigation, In re
| Decision Date | 19 September 1990 |
| Docket Number | 90-1126,Nos. 90-1125,No. 45,90-1185 and 90-1199,S,90-1126 and 90-1185,R,45,s. 90-1125 |
| Parties | , 18 Fed.R.Serv.3d 399 In re SCHOOL ASBESTOS LITIGATION. KAISER GYPSUM COMPANY, INC., Petitioner, v. The Honorable James McGirr KELLY, Nominal Respondent, and Barnwell School Districtespondent. In re SCHOOL ASBESTOS LITIGATION. UNITED STATES GYPSUM COMPANY, Petitioner, v. The Honorable James McGirr KELLY, Nominal Respondent, and Barnwell School Districtchool District of Lancaster, Manheim Township School District, Lampeter-Strasburg School District, Board of Education of the Memphis City Schools, and a Conditionally Certified Class, Respondents. In re SCHOOL ASBESTOS LITIGATION. FIBREBOARD CORPORATION, Petitioner, v. The Honorable James McGirr KELLY, Nominal Respondent, and Barnwell School Districtchool District of Lancaster, Manheim Township School District, Lampeter-Strasburg School District, Board of Education of the Memphis City Schools, and a Conditionally Certified Class, Respondents. In re SCHOOL ASBESTOS LITIGATION. W.R. GRACE & CO., Petitioner, v. The Honorable James McGirr KELLY, Nominal Respondent, and Barnwell School Districtchool District of Lancaster, Manheim Township School District, Lampeter-Strasburg School District, Board of Education of the Memphis City Schools, and a Conditionally Certified Class, Respondents. |
| Court | U.S. Court of Appeals — Third Circuit |
Daniel J. Ryan, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa., Patrick J. Hagan, Kincaid, Gianunzio, Caudle & Hubert, Oakland, Cal., for petitioner, Kaiser Gypsum Co. Inc.
Joseph B.G. Fay (argued), J. Gordon Cooney, Jr., John H. Lewis, Jr., Andrew D. Leipold, Morgan, Lewis & Bockius, Philadelphia, Pa., for petitioner U.S. Gypsum Co.
Walter R. Milbourne, Timothy W. Callahan, II., Frank M. D'Amore, Saul, Ewing, Remick & Saul, Philadelphia, Pa., for petitioner, Fibreboard Corp.
Denis McInerney, Allen S. Joslyn, Cahill, Gordon & Reidel, New York City, for petitioner, W.R. Grace & Co.
David Berger (argued), Harold Berger, Warren D. Mulloy, Thomas F. Hughes, Berger & Montague, Philadelphia, Pa., Daniel A. Speights, Speights & Runyan, Hampton, S.C., Herbert B. Newberg, Harvey Kronfeld, Gerald E. Wallerstein, Sandra L. Duggan, Philadelphia, Pa., for respondents, Barnwell School Dist. No. 45, School District of Lancaster, Manheim Tp. School Dist., Lampeter-Strasburg School Dist., Bd. of Educ. of the Memphis City Schools, and a Conditionally Certified Class; Charles Alan Wright, Austin, Tex., of counsel.
Before SCIRICA, COWEN and ALDISERT, Circuit Judges.
These proceedings arise out of an on-going federal diversity class action, In re Asbestos School Litig., 104 F.R.D. 422 (E.D.Pa.1984), aff'd, 789 F.2d 996 (3d Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986), and require us to decide whether to grant the petitioners' requests for a writ of mandamus or prohibition directing the district court to dismiss the class action complaints for lack of subject matter jurisdiction. Because we conclude that the petitioners have not met their burden of showing a "clear and indisputable" lack of subject matter jurisdiction over the class, we will deny the consolidated petitions for a writ of mandamus in Nos. 90-1125 and 90-1185, and the petition for a writ of prohibition in No. 90-1126. We also consolidate with these petitions W.R. Grace & Co.'s petition for a writ of prohibition in No. 90-1199, and will deny it as well.
On January 17, 1983, the class action giving rise to these petitions was filed in the district court on behalf of a national class consisting of all public and private elementary and secondary schools throughout the country. The complaints alleged claims against approximately fifty manufacturers and producers of asbestos-containing materials, which purportedly were used in the construction of some of the class plaintiffs' school buildings. On September 28, 1984, the district court certified the class action pursuant to F.R.Civ.P. 23(b)(3), and we affirmed the class certification on May 1, 1986. In re Asbestos School Litig., 104 F.R.D. 422 (E.D.Pa.1984), aff'd, 789 F.2d 996 (3d Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986). In 1989, several defendant manufacturers requested the dismissal of the federal class action of certain unnamed members on the basis that (1) not every class member has a claim in excess of the $10,000 jurisdictional amount; (2) complete diversity of citizenship between all absent class members and all defendants is required in a diversity-based class action; and (3) asbestos property damage claims are "local actions" involving real estate and may only be brought in the state where the real estate is located. After briefing and oral argument, the district court issued Pretrial Order No. 191 on May 1, 1989, 1989 WL 47035, directing the class plaintiffs to amend their complaints to conform with 28 U.S.C. Sec. 1332(a). The plaintiffs accordingly amended their complaints to allege an amount in controversy of $10,000 for each plaintiff class member except a hypothetical small number of school districts, not yet identifiable, that only have asbestos inspection costs under $10,000. The complaints also averred that the citizenship of each named class representative was diverse from that of each defendant manufacturer.
On November 15, 1989, after several defendants had filed challenges to the amended complaints, the district court issued Pretrial Order No. 197, 1989 WL 138835, in which it declined to dismiss the class action for lack of subject matter jurisdiction. In its memorandum and order, the district court observed that Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), requires dismissal of only those class members who fail to meet jurisdictional amount requirements. Because those plaintiffs could not be readily determined, the district court concluded that "[a]ny potential jurisdictional problems raised in this case can be cured at trial by entering final judgment at the damages stage of the trial only against those plaintiffs that have sustained the burden of proving damages in excess of $10,000." App. at 2-3. The district court also determined that complete diversity between all class members and all defendants is not required, and that the "local action" doctrine is inapplicable to the asbestos property damages claims in this class action. App. at 4-6.
After the district court refused to certify Order No. 197 for interlocutory review under 28 U.S.C. Sec. 1292(b), two defendant manufacturers, Kaiser Gypsum Company, Inc. (No. 90-1125) and Fibreboard Corporation (No. 90-1185), filed petitions for a writ of mandamus directing the district court to dismiss the pending complaints and to refrain from any adjudication on the merits until the plaintiffs have cured all jurisdictional defects. A third defendant, United States Gypsum Company, filed a petition for writ of prohibition (No. 90-1126), in which W.R. Grace & Co. joined (No. 90-1199), seeking similar relief. These are the four petitions consolidated before us.
Federal courts have the power to issue writs of mandamus or prohibition under the All Writs Act, 28 U.S.C. Sec. 1651(a), which provides that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." That two petitioners in this case have requested a writ of mandamus and two have requested a writ of prohibition is unimportant; it does not affect the relief requested. Although a writ of mandamus may appear more appropriate when the request is for an order mandating action, and a writ of prohibition may be more accurate when the request is to prohibit action, modern courts have shown little concern for the technical and historic differences between the two writs. 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure: Jurisdiction Sec. 3932 (1977 & Supp.1990); see Ex parte Simons, 247 U.S. 231, 239-40, 38 S.Ct. 497, 497-98, 62 L.Ed. 1094 (1918); Jenkins v. Weinshienk, 670 F.2d 915, 917 n. 1 (10th Cir.1982). Under the All Writs Act, the form is less important "than the substantive question [of] whether an extraordinary remedy is available." In re Davis, 730 F.2d 176, 181 & n. 10 (5th Cir.1984).
The Supreme Court admonishes federal appellate courts to exercise their writ power with caution. Kerr v. United States Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976); see DeMasi v. Weiss, 669 F.2d 114, 116-17 (3d Cir.1982). Because the remedy is so extreme, courts should invoke it only "in extraordinary situations." Kerr, 426 U.S. at 402, 96 S.Ct. at 2123. Traditionally, federal courts have used the power "only to confine inferior courts to their lawful jurisdiction or to compel them to exercise authority when they have a duty to do so." DeMasi, 669 F.2d at 117 (citing Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967)). In defining "jurisdiction," the Supreme Court has avoided a "narrow and technical" construction, directing that "only exceptional circumstances amounting to a judicial 'usurpation of power' will justify the invocation of this extraordinary remedy." Will, 389 U.S. at 95, 88 S.Ct. at 273 (quoting DeBeers Consolidated Mines, Ltd. v. United States 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566 (1945)).
Two important policy considerations support the concept that writs of mandamus or prohibition should be granted only sparingly. First, mandamus actions " 'have the unfortunate...
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