Vincent v. Hughes Air West, Inc.

• Decision Date: 16 June 1977
• Docket Number: 75-1629,Nos. 74-3283,75-1599,s. 74-3283
• Citation: 557 F.2d 759
• Parties: Jewel VINCENT, Claimant-Appellant, v. HUGHES AIR WEST, INC., a corporation, United States of America, Defendant- Appellee. Howard BRAND et al., Plaintiffs-Appellants, v. HUGHES AIR WEST, INC., a corporation, Defendant-Appellee. Norene E. FORGY et al., Plaintiffs-Appellants, v. HUGHES AIR WEST, INC., a corporation, Defendant-Appellee. Cynthia KALBFLEISCH et al., Plaintiffs-Appellants, v. HUGHES AIR CORP., a corporation, d/b/a Air West, Inc., etc., et al., United States of America, Defendants-Appellees. Daniel SUBIC and Alice Elder, Plaintiffs-Appellants, v. HUGHES AIR WEST, INC., a corporation, and United States of America, Defendants-Appellees. Norene E. FORGY et al., Plaintiffs-Appellants, v. The UNITED STATES of America et al., Defendants-Appellees. Howard BRAND et al., Plaintiffs-Appellants, v. The UNITED STATES of America et al., Defendants-Appellees. James A. THOMAS, Plaintiff-Appellant, v. HUGHES AIR CORPORATION, etc., et al., Defendants-Appellees. James A. THOMAS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Kathryn J. THOMAS et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. James A. THOMAS, Plaintiff-Appellant, v. HUGHES AIR CORPORATION, etc., Defendant-Appellee. Kathryn J. THOMAS et al., Plaintiffs-Appellants, v. HUGHES AIR CORPORATION, etc., Defendant-Appellee. Apolinar ESPITIA et al., Plaintiffs-Appellants, v. HUGHES AIR WEST, INC., etc., et al., Defendants-Appellees. Cheryl Johnson DEVEAU et al., Plaintiffs-Appellants, v. HUGHES AIR WEST, INC., etc., et al., Defendants-Appellees. Guillermo RANGEL et al., Plaintiffs-Appellants, v. HUGHES AIR WEST, INC., a corporation, Defendant-Appellee. Ana Rosa RANGEL et al., Plaintiffs-Appellants, v. HUGHES AIR WEST, INC., a corporation, Defendant-Appellee. Daniel SUBIC and Alice Elder, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. Cheryl Johnson DEVEAU et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. Apolina
• Court: U.S. Court of Appeals — Ninth Circuit

Page 759

557 F.2d 759

42 A.L.R.Fed. 108

Jewel VINCENT, Claimant-Appellant, v. HUGHES AIR WEST, INC., a corporation, United States of

America, Defendant- Appellee.

Howard BRAND et al., Plaintiffs-Appellants, v. HUGHES AIR WEST, INC., a corporation, Defendant-Appellee.

Norene E. FORGY et al., Plaintiffs-Appellants, v. HUGHES AIR WEST, INC., a corporation, Defendant-Appellee.

Cynthia KALBFLEISCH et al., Plaintiffs-Appellants, v. HUGHES AIR CORP., a corporation, d/b/a Air West, Inc., etc., et al., United States of America, Defendants-Appellees.

Daniel SUBIC and Alice Elder, Plaintiffs-Appellants, v. HUGHES AIR WEST, INC., a corporation, and United States of

America, Defendants-Appellees.

Norene E. FORGY et al., Plaintiffs-Appellants, v. The UNITED STATES of America et al., Defendants-Appellees.

Howard BRAND et al., Plaintiffs-Appellants, v. The UNITED STATES of America et al., Defendants-Appellees.

James A. THOMAS, Plaintiff-Appellant, v. HUGHES AIR CORPORATION, etc., et al., Defendants-Appellees.

James A. THOMAS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

Kathryn J. THOMAS et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

James A. THOMAS, Plaintiff-Appellant, v. HUGHES AIR CORPORATION, etc., Defendant-Appellee.

Kathryn J. THOMAS et al., Plaintiffs-Appellants, v. HUGHES AIR CORPORATION, etc., Defendant-Appellee.

Apolinar ESPITIA et al., Plaintiffs-Appellants, v. HUGHES AIR WEST, INC., etc., et al., Defendants-Appellees.

Cheryl Johnson DEVEAU et al., Plaintiffs-Appellants, v. HUGHES AIR WEST, INC., etc., et al., Defendants-Appellees.

Guillermo RANGEL et al., Plaintiffs-Appellants, v. HUGHES AIR WEST, INC., a corporation, Defendant-Appellee.

Ana Rosa RANGEL et al., Plaintiffs-Appellants, v. HUGHES AIR WEST, INC., a corporation, Defendant-Appellee.

Daniel SUBIC and Alice Elder, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

Cheryl Johnson DEVEAU et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

Apolinar ESPITIA et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

Guillermo RANGEL et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

Ana Rosa RANGEL et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

Steven BIRD, Plaintiff-Appellant, v. HUGHES AIR WEST, INC., et al., Defendants-Appellees.

Leland A. HARWARD and Phyllis Harward, Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees.

Margaret M. REEVES et al., Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee.

Steven BIRD, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

HARTFORD ACCIDENT AND INDEMNITY COMPANY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

Nos. 74-3283, 75-1599, 75-1629 to 75-1642, 75-1653 to 75-1661

United States Court of Appeals, Ninth Circuit.

June 16, 1977.

Ned Good, Los Angeles, Cal., Floyd A. Demanes, Burlingame, Cal., Myron D. Gabbert, Jr., Moffatt, Thomas, Barrett & Blanton, Boise, Idaho, Charles D. Sneathern, Daniel C. Cathcart, Los Angeles, Cal., argued on behalf of all appellants.

Ben Margolis, Margolis, McTernan, Scope & Sacks, Los Angeles, Cal., John D. Miller, Miller, Bronn & Brummett, Long Beach, Cal., argued on behalf of appellees.

Appeal from the United States District Court for the Central District of California.

Before CARTER and WALLACE, Circuit Judges, and KING, ^* District Judge.

WALLACE, Circuit Judge:

In consolidated cases arising out of a 1971 air crash disaster, the district court awarded attorneys' fees to four law firms that had comprised a plaintiffs' "committee of lead counsel" for discovery and other purposes. The award was to be paid out of the various settlements negotiated between the defendants, Hughes Air West, Inc. (Hughes) and the United States, and the next-of-kin of the crash victims. Some of the next-of-kin and their attorneys appeal, contending either that the district court had no authority to make the award or that the court erred in computing the award and designating the recipients. We affirm all the district court's orders except those which apply to Jewel Vincent and the individuals represented by attorney Demanes; as to those we reverse.

I

On June 6, 1971, a Marine Corps jet fighter and a Hughes Air West DC-9 collided in mid-air over Duarte, California. All 49 occupants of the commercial airliner were killed, as was the pilot of the military jet. The radar man, or navigator, of the military jet parachuted to safety. Ten days later the family of Keith A. Gabel, one of the Air West passengers, filed a petition in the Central District of California to perpetuate testimony. In this petition, which contained some "class" allegations, the Gabel family (Gabel) was represented by the law firm of Miller, Bronn, Brummett & Porter (Miller firm).

On the same day that the Gabel family filed its petition, and in the following weeks, the next-of-kin of various crash victims commenced actions against Hughes and other defendants. ¹ These actions, eventually to total more than 60, were brought in state and federal courts in Washington, Utah and California. More than 30 of these actions were filed in the Central District of California, all of which were assigned to the same district judge.

On June 18, 1971, the district judge ordered Hughes to file in camera a sealed list containing the names and addresses of all crash victims and their survivors. On July 8 Hughes complied and on July 30 the district court sent notice to next-of-kin advising them, among other things, that various actions involving the air crash had already been commenced in that court, that all actions arising out of the crash might involve common questions of law and fact on the issue of liability, that "common discovery proceedings" would be beneficial, and that the recipient of the notice should contact counsel. Also in July, the court granted the Gabel petition to perpetuate testimony. Thereafter, the Miller firm and different law firms representing various other plaintiffs commenced discovery against both Hughes and the United States.

In January 1972, the Miller firm filed a complaint on behalf of Gabel against the United States. This complaint, in addition to the individual claims, contained class allegations and sought on behalf of the entire class a declaratory judgment on the issue of liability. The complaint was accompanied by a request that this newly-commenced action be consolidated with an earlier Gabel action against Hughes and the initial petition to perpetuate testimony. After the district court granted the consolidation request, Gabel moved for an order certifying the class. Both the United States and various plaintiffs including the plaintiffs represented on this appeal by Magana & Cathcart (Cathcart), Oliver, Sloan, Shaffer & Lindvig (Oliver), Ned Good and Floyd Demanes opposed the motion.

The district court did not act on this motion immediately. It did, however, in April 1972, send notice to all survivors on the in camera list that Hughes and the United States had reached an agreement regarding their respective contribution to any eventual settlement or adverse judgment.

In July 1972, the Judicial Panel on Multidistrict Litigation, pursuant to 28 U.S.C. § 1407, transferred to the Central District of California 11 cases arising out of the crash and then pending in other districts. Nine came from the District of Utah; two from the Western District of Washington. In re Air Crash Disaster at Duarte, California, 346 F.Supp. 529 (Jud.Pan.Mult.Lit. 1972); see also In re Duarte, California Air Crash Disaster, 354 F.Supp. 278 (Jud.Pan.Mult.Lit. 1973). Soon thereafter, the district judge ordered all of the air crash cases consolidated for the sole purpose of determining liability. On the same day, August 30, ² he appointed John D. Miller of the Miller firm "liaison counsel between plaintiffs' counsel" and directed Miller to call a meeting of plaintiffs' counsel

for the purpose of agreeing upon lead counsel or a committee of lead counsel, with Mr. Miller as Chairman, for all plaintiffs, to conduct all further discovery on liability and to try the case on liability, if that becomes necessary, and to voluntarily agree upon the contribution by non-members of such committee to a fund to be deposited with the Clerk from moneys paid by defendants resulting from the above-numbered lawsuits, to reimburse said committee members for such additional work as may result from the activities of said committee, and for compensation of fees to the members of said committee for work performed for the benefit of all plaintiffs. The members of the committee will keep accurate account of their time and expenditures as members of and for said committee.

At the ordered meeting of plaintiffs' counsel, a majority of those present selected four law firms to serve as a committee of lead counsel: the Miller firm; Ray, Quinney & Nebeker of Salt Lake City; Margolis, McTernan, Scope & Sacks of Los Angeles; and Prince, Yeates, Ward, Miller & Geldzahler of Salt Lake City. (These firms are the real appellees as they have the total stake in the present appeal.) A majority of those present also agreed to let the district court determine the method and amount of payment to lead counsel for their work. Some objected to this plan.

The proceedings of this meeting were presented to the district judge and on December 11, 1972, he confirmed the appointment of the committee of lead counsel. In support of his action, the judge noted that "there has been some unnecessary duplication of effort among plaintiffs' counsel" regarding pretrial motions and discovery and pointed to his authority under Rule 43, Fed.R.Civ.P., to "make such orders . . . as may tend to avoid unnecessary costs and delay." The court then outlined both the responsibilities of lead counsel "to conduct all further...