Windbourne v. Eastern Air Lines, Inc., No. 76 C 237

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Writing for the Court: William A. Jennings, San Jose, Cal., for Manias and Merkouris plaintiffs
• Citation: 479 F. Supp. 1130
• Parties: WINDBOURNE, Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. DOMANGUE, Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. MAHFOUD, Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. O'ROURKE (Behar), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. O'ROURKE (Abbate), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. O'ROURKE (Alzozo), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. O'ROURKE (Daha), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. BRIGHT, Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. HICKEY, Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. O'ROURKE (R. Bigio), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants (two cases). O'ROURKE (P. Hansen), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. Mary HANSEN (P. Hansen), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. O'ROURKE (W. Hansen), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. Karin M. HANSEN (W. Hansen), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. O'ROURKE (Merkouris), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. JENNINGS (Merkouris), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. O'ROURKE (Priniotakis), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. CAPPIELLO (Priniotakis), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. O'ROURKE (Alexandridis), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. CAPPIELLO (Alexandridis), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. O'ROURKE (Manias), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. JENNINGS (Manias), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. O'ROURKE (Hadzis), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants. CAPPIELLO (Hadzis), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants.
• Decision Date: 11 May 1979
• Docket Number: 76 C 256,76 C 572,76 C 260,No. 76 C 237,76 C 255,76 C 457,76 C 1022 and 76 C 1025.,76 C 1024,76 C 258,76 C 573,76 C 265,76 C 250—76 C 253,76 C 1023,76 C 241

479 F. Supp. 1130

WINDBOURNE, Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
DOMANGUE, Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
MAHFOUD, Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
O'ROURKE (Behar), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
O'ROURKE (Abbate), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
O'ROURKE (Alzozo), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
O'ROURKE (Daha), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
BRIGHT, Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
HICKEY, Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
O'ROURKE (R. Bigio), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants (two cases).
O'ROURKE (P. Hansen), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
Mary HANSEN (P. Hansen), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
O'ROURKE (W. Hansen), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
Karin M. HANSEN (W. Hansen), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
O'ROURKE (Merkouris), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
JENNINGS (Merkouris), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
O'ROURKE (Priniotakis), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
CAPPIELLO (Priniotakis), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
O'ROURKE (Alexandridis), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
CAPPIELLO (Alexandridis), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
O'ROURKE (Manias), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
JENNINGS (Manias), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
O'ROURKE (Hadzis), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.
CAPPIELLO (Hadzis), Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants.

Nos. 76 C 237, 76 C 241, 76 C 457, 76 C 250—76 C 253, 76 C 572, 76 C 573, 76 C 1023, 76 C 1024, 76 C 255, 76 C 256, 76 C 258, 76 C 260, 76 C 265, 76 C 1022 and 76 C 1025.

United States District Court, E. D. New York.

May 11, 1979.

479 F. Supp. 1132

COPYRIGHT MATERIAL OMITTED

479 F. Supp. 1133

COPYRIGHT MATERIAL OMITTED

479 F. Supp. 1134

COPYRIGHT MATERIAL OMITTED

479 F. Supp. 1135

William F. C. Geoghan, Geoghan, Tutrone & Grossman, New York City, for Hansen plaintiffs

William A. Jennings, San Jose, Cal., for Manias and Merkouris plaintiffs.

Edward M. Katz, Phillips & Cappiello, New York City, for Priniotakis, Alexandridis and Hadzis plaintiffs.

George E. Farrell, Healey & Farrell, Washington, D. C., for Mahfoud plaintiff.

Milton G. Sincoff, Kreindler & Kreindler, New York City, Frank H. Granito, Jr., Speiser & Krause, New York City, Jack C.

479 F. Supp. 1136

Benjamin, Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, La., Tony B. Jobe, New Orleans, La., for plaintiffs

Walter E. Rutherford, Haight, Gardner, Poor & Havens, New York City, for defendant Eastern Air Lines.

Michael J. Pangia, Asst. Director, Torts Branch Civ. Div., U.S. Dept. of Justice, Washington, D. C., for defendant United States.

MEMORANDUM OF DECISIONS AND ORDERS

BRAMWELL, District Judge.

The motions and cross motions before the Court today comprise but another phase in the complicated legal motif emanating from the unwinding arabesque of MDL 227. While the first motion interposed by Eastern Air Lines appeared simple enough, its complexity grew with the stream of further motions, cross motions, reply affidavits and further reply affidavits that poured in quickly thereafter. Indeed, this litigation, which arises out of the tragic air crash of Eastern's flight 66 at Kennedy Airport on June 24, 1975,¹ is like writing the first sentence of a book that may never be completed. Like Hydra who grew back two heads to replace the one that had been severed, the resolution of one problem in this case appears to breed at least two additional new ones. And the Court not being Hercules, this regeneration continues.

The origin of the plaintiffs' motions and cross motions and Eastern's motions and cross motions in the non-disputed representative cases² may be traced back to certain pre-trial events which transpired in the fall of 1978. To retreat to an earlier phase of this litigation, on September 15, 1978, the plaintiffs in these non-disputed cases approached the bench for the severance of their actions from the impending damage trial and for the entry of judgments on liability against Eastern Air Lines on the basis of the Warsaw Convention as supplemented by the Montreal Agreement. In each of these cases, Eastern Air Lines had interposed in its answer as a first affirmative defense that

the travel of plaintiffs' decedent involved international transportation subject to all terms and conditions of the Warsaw Convention (49 Stat. 3000 et seq.), as amended by the Hague Protocol thereto (if applicable), and as supplemented by the Montreal Agreement of May 4, 1966 (if applicable), and defendant Eastern Airlines, Inc. therefore claims exemption from and limitation of liability in

479 F. Supp. 1137

accordance with the terms and conditions of the said Warsaw Convention and/or Hague Protocol and/or Montreal Agreement.

After hearing argument on this matter, and for reasons hereinafter discussed in section I, infra, the Court granted the plaintiffs' motions from the bench over the objection of Eastern Air Lines. Thereafter, orders to this effect were drafted by Eastern Air Lines and signed by the Court on September 22, 1978.

The autumn of 1978 was prolific regarding legal matters, for the motions in the disputed representative cases also possess this time as a common genesis. As more fully explained in section II, infra, on September 15, 1978, Tierney O'Rourke, one of the plaintiff-representatives in each of these cases, appealed to this Court to enter liability judgments, predicated on the Warsaw/Montreal system, against Eastern Air Lines on behalf of the plaintiffs in these suits. In doing so, he noted that the above quoted defense was interposed by Eastern Air Lines in the disputed as well as the non-disputed representative actions. However, troubled by the visibly awkward posture of the plaintiffs in the disputed cases as they then stood at bar, Mr. O'Rourke's motions were not granted at that time. Some time later, however, after formal motions had been made and argument had been heard, on December 15, 1978 said motions were conditionally granted. See section II, infra.

Adhering to its hydra-headed nature, said rulings inspired the birth of the numerous motions before the Court today. In order to achieve some utility of insight into said motions, rather than setting forth the substance of each motion at this time, they have been divided into separate categories and will be discussed accordingly.

I

PLAINTIFFS' REQUESTS FOR A RULE 54(b) AMENDMENT OF THE WARSAW/MONTREAL JUDGMENTS IN THE NON-DISPUTED REPRESENTATIVE CASES.

A

Background

The plaintiffs in the Behar, Abbate, Daha, Bright, Hickey, Edmund Bigio, Raphael Bigio and Alzozo cases³ move and the plaintiffs in the Windbourne, Domangue and Mahfoud cases crossmove for an order pursuant to Rule 54(b) of the Federal Rules of Civil Procedure amending their liability judgments entered against Eastern Air Lines on the basis of the Warsaw Convention as supplemented by the Montreal Agreement. Specifically, they ask that said judgments be amended to reflect that Eastern is not precluded thereby from raising any defenses it may have against them. Further relief is sought by the plaintiffs in the form of a request that this Court also reaffirm the grant of the motions which sired the disputed judgments.

Adhering to its litigious nature, Eastern Air Lines vigorously opposes the grant of the instant motions. In doing so, it initially argues that Rule 54(b) provides neither the method nor the requirements for the amendment of a judgment. Accordingly, Eastern concludes that Rule 60 of the Federal Rules of Civil Procedure applies to the instant request, not Rule 54(b). Eastern also directly attacks the propriety of a Rule 54(b) amendment, noting that the plaintiffs have cited no authority supporting any such action.

Additionally, Eastern maintains that this Court erred in granting the plaintiffs' Warsaw/Montreal

479 F. Supp. 1138

motions in that it should have reviewed the individual facts and pleadings of each case, determined the applicable law, and then decided whether the actions could continue to be prosecuted. Considering that this Court did not adopt this approach, Eastern concludes that these issues cannot be resolved now. Rather, Eastern contends that they are to be resolved by the Second Circuit unless, of course, this Court vacates the Warsaw/Montreal judgments sua sponte and sets the plaintiffs' motions down for a hearing on the merits. It bolsters its argument further by stating that, by virtue of the requested amendment, the plaintiffs are only trying to cure or mitigate the lack of due process which occurred when their motions were granted from the bench

The plaintiffs, on the other hand, note at the outset the significant absence of any claim by Eastern that the Warsaw/Montreal system is not applicable to and thus does not govern their cases. And even if Eastern was denied procedural due process at the time said motions were granted, the plaintiffs contend that their instant noticed motions have served the function of affording it due process now.

B

Discussion of Rule 54(b)

In light of Eastern's allegation that this Court may not amend the disputed judgments pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, a discussion of the propriety of granting the plaintiffs' motions must necessarily start with an examination of Rule 54(b) itself:

When more than one claim for relief is presented in an action, . . . the court may direct the entry of a final judgment as to one or more but fewer than

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