Shump v. Balka
| Decision Date | 12 May 1978 |
| Docket Number | No. 76-2048,76-2048 |
| Citation | 574 F.2d 1341 |
| Parties | Ramona SHUMP et al., Plaintiffs-Appellees, v. Lana BALKA et al., Defendants-Appellees, and Wanda Jones et al., Intervenors-Objectors Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Roger L. McCollister, Legal Aid Society of Topeka, Inc., Topeka, Kan., for plaintiffs-appellees Shump, et al.
Richard E. Jones, Asst. City Atty., Topeka, Kan., for defendants-appellees Balka, et al.
Fred W. Phelps, Topeka, Kan. (Adler, Barish, Daniels, Levin & Creskoff, Philadelphia, Pa., of counsel), for intervenors-objectors appellants Jones, et al.
E. Edward Johnson, U. S. Atty., and Richard L. Meyer, Asst. U. S. Atty., Topeka, Kan., for appellee Secretary of Housing and Urban Development.
Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.
Intervenors-objectors (Appellants) seek review of the district court's denial of their motion to intervene.
Ramona Shump, et al., (Plaintiffs) petitioned the district court on June 6, 1975 for an order declaring the maintenance fees collected by the Topeka Housing Authority (THA), from September 1, 1971 to August 1, 1974, to be in violation of 42 U.S.C.A. §§ 1402 and 1437, under which rental payments of public housing tenants may not exceed 25% of a family's adjusted income. Plaintiffs sought a class action certification and an order directing repayment of the maintenance fees. An identical action was filed in state court. Both actions were captioned Shump v. Balka.
On June 24, 1975 Appellants filed a civil rights action, captioned Rogers v. Barnes, alleging that the collection of the maintenance fees was in violation of 42 U.S.C.A. §§ 1983 and 1985(3). Appellants sought repayment of the fees and actual and punitive damages.
On July 15, 1975 Plaintiffs' state court action was removed to the federal district court. Thereafter, on May 4, 1976, Plaintiffs' two actions were consolidated. On May 24, 1976, Appellants' motion to consolidate their action, Rogers v. Barnes, with Plaintiffs' consolidated actions was denied.
On June 7, 1976, Plaintiffs' consolidated actions were certified as class actions. On the same date, and within the order certifying Plaintiffs' action as a class action, the district court commented as follows on its refusal to consolidate Appellants' action with those of Plaintiffs:
At a joint hearing regarding the two Shump v. Balka actions and the Rogers v. Barnes action, the court granted the motion to consolidate the two Shump cases but denied the motion to consolidate all three actions primarily because the Rogers v. Barnes action was being maintained against the officers of THA in their individual capacities and sought, in addition to a return of the maintenance fees, punitive damages and attorneys' fees.
On July 22, 1976, a settlement agreement was reached in Plaintiffs' consolidated actions. The basic settlement conditions/covenants provided, inter alia : all maintenance fees were to be refunded; refunded maintenance fees were to be reduced by delinquent rentals due together with costs of repairs for damages caused by class members; immediate and direct payments were to be made to all class members then residing in THA without requiring them to submit a written or oral claim; non-residents of THA entitled to a refund were to receive a refund after submitting a written application therefor; failure of a non-resident to file for a refund within 90 days was to constitute a waiver of the right to refund; and that actual and constructive notice of the settlement was to be published.
On August 27, 1976, Appellants filed their "Motion to Intervene and Notice of Intention to be Represented by Separate Counsel," wherein they alleged that they were not satisfied with counsel representing the class in that (a) full recovery was not being sought, and (b) the proposed settlement imposed "an undue burden on the class, discriminates between resident and non-resident tenants, is fraught with collusion between Shump-McCollister 1 and the Defendants, denies the class due process in the matter of setoffs and counterclaims, and is inadequate compensation and recovery for the class as a matter of fact and law."
On September 9, 1976, Appellants filed a supplemental motion to intervene alleging, inter alia : inadequate representation by Plaintiffs' counsel; inadequate allegations of damages and losses sustained; the proposed settlement was fraught with collusion; and that the recovery should not only include the refund of the maintenance fees but also interest and damages. Thereafter, both Plaintiffs and Defendants filed detailed memoranda supportive of the settlement and in opposition to Appellants' intervention.
On September 3, 29, and 30 and October 8, 1976, the court heard detailed and extensive testimony on Appellants' motion to intervene and on the settlement issue. On October 8, 1976, at the conclusion of the hearing, the district court made "some general statements about the case," including: intervention would delay or prejudice the rights of the original parties; intervention could delay a settlement many months; permissive intervention is not warranted; the settlement should proceed when, as here, the United States Government is furnishing the money to refund the maintenance fees, even though there is a possibility it is not obligated to do so; THA does not have the necessary funds to repay the fees and "has no way at this time to secure such funds"; the intervenors are a small number of the class who wish to litigate, whereas a much larger number of the class wish to proceed with the settlement and to receive refunds immediately; there is no evidence of collusion between the parties; denial of intervention keeps separate the Shump v. Balka action for the return of the maintenance fees and the Rogers v. Barnes action wherein the Plaintiffs seek additional relief, including punitive damages; if any class member is aggrieved by the setoff for rent due or damages to the unit the setoff can be reviewed by a grievance committee and by the court; there is no evidence whatsoever of "fraud or collusion in regard to the proposed settlement or in regard to any other aspect of the case"; the "settlement agreement itself is fair, just, and equitable"; the settlement will be confirmed as drafted if the parties agree it can be modified by (1) disallowing setoffs for tenant obligations which arose prior to September 1, 1971 and, (2) requiring all tenants to file a claim for a refund; the notices of the settlement given by mail and publication are reasonable and in accord with due process; and that the parties make a diligent and continuing effort to locate all those prior tenants of THA entitled to a refund but who have left without leaving forwarding addresses. Thereafter, on October 13, 1976, the court incorporated these findings in a brief order denying Appellants' motion to intervene and approving the settlement as modified.
On appeal, Appellants contend that the trial court erred in: (1) finding it had subject matter jurisdiction necessary to approve that portion of the settlement which provided for the allowance of setoffs; (2) finding that the setoff could be allowed against non-participating class members; (3) approving the settlement without making adequate provision for judicial supervision and review of the claimed setoffs; (4) finding that notice to the class as originally given was adequate to satisfy requirements of due process; (5) denying their motion to intervene; (6) refusing to consolidate Shump v. Balka and Rogers v. Barnes ; and (7) requiring the individual members of the class to file claims with the Clerk of Court in order to participate in the recovery. Because of their dispositive nature, we will first consider issues (6) and (5).
Appellants contend that the court erred and abused its discretion in denying their motion for consolidation. They argue that consolidation was proper under Fed.Rules Civ.Proc. rule 42(a), 28 U.S.C.A. which provides:
When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all of the matters in issue in the action, it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
Plaintiffs argue that the court properly denied consolidation because their action was solely for a refund of the fees, whereas Appellants sought a refund of the fees, together with actual and punitive damages, and attorneys' fees. Plaintiffs also argue that Appellants have failed to meet their burden to establish that consolidation would promote trial convenience and economy in administration or that they have suffered any injury as a result of the trial court's refusal to consolidate. We agree. We hold that the trial court's refusal to consolidate the Shump v. Balka actions with the Rogers v. Barnes action was proper in all respects.
In American Employer's Insurance Company v. King Resources Co., 545 F.2d 1265 (10th Cir. 1976), we set forth the general rule relating to consolidations which we reiterate here:
The court's denial of the motion to consolidate finds further support in the rule that such a determination is discretionary and will not be reversed on appeal absent clear error or exigent circumstances, neither of which is present here.
We will not hold that the court erred in refusing to consolidate Appellants' action with Plaintiffs' actions, when, as here, the relief sought varied substantially, the named Defendants were being sued in different capacities, and Appellants have completely failed to establish that which would be gained by consolidation or that they would suffer injury by failure to consolidate.
Appellants contend that the trial court erred in denying their motion to intervene. The...
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Brown v. Patel
...collusion between the party purporting to represent the position of another and those on the other side of the suit. Shump v. Balka, 574 F.2d 1341, 1345 (10th Cir.1978). 23. Section 2024(A)(2) does not use "is or may be bound," but rather that the disposition of the action "may as a practic......
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C.T. v. Liberal School Dist.
...42(a). The decision whether to consolidate such actions is left to the sound discretion of the trial court. Shump v. Balka, 574 F.2d 1341, 1344 (10th Cir.1978). In exercising its discretion, the court should take into consideration whether judicial efficiency is best served by consolidation......
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In re Reed
...clearly abused its discretion." U.S. E.P.A. v. City of Green Forest, Ark., 921 F.2d 1394, 1402 (8th Cir. 1990) (citing Shump v. Balka, 574 F.2d 1341, 1344 (10th Cir. 1978); Gentry v. Smith, 487 F.2d 571, 581 (5th Cir. 1973); 9 Wright & Miller, Federal Practice and Procedure § 2383 (1971)). ......
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In re Reed
...clearly abused its discretion." U.S. E.P.A. v. City of Green Forest, Ark., 921 F.2d 1394, 1402 (8th Cir. 1990) (citing Shump v. Balka, 574 F.2d 1341, 1344 (10th Cir. 1978); Gentry v. Smith, 487 F.2d 571, 581 (5th Cir. 1973); 9 Wright & Miller, Federal Practice and Procedure § 2383 (1971)). ......