Woolen v. Surtran Taxicabs, Inc.
| Decision Date | 30 August 1982 |
| Docket Number | No. 81-1063,81-1063 |
| Citation | 684 F.2d 324 |
| Parties | 1982-2 Trade Cases 64,912 John WOOLEN, et al., Plaintiffs, Carl Whorton, et al., Intervenors-Appellants, v. SURTRAN TAXICABS, INC., et al., Defendants-Appellees. Ken WHORTON, et al., Plaintiffs, Carl Whorton, et al., Intervenors-Appellants, v. CITY OF DALLAS, TEXAS, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
The Law Offices of John F. Bass, P. C., John F. Bass, Dallas, Tex., for intervenors-appellants.
John E. Kennedy, Dallas, Tex., for other interested parties.
Stan McMurry, Dallas, Tex., for Surtran Taxi-Cab.
Paul C. Isham, Richard E. Henderson, Fort Worth, Tex., for City of Fort Worth.
Kolodey & Thomas, Tom Thomas, Joseph P. Paonessa, Robert F. Maris, Dallas, Tex., for Campisi.
Appeal from the United States District Court for the Northern District of Texas.
Before BROWN, GOLDBERG and POLITZ, Circuit Judges.
This case presents us with both unique facts and issues within the context of an antitrust class action challenging the Dallas/Fort Worth airport's restriction of solicitation of taxicab passengers to limited holders of permits. The controversy surrounding the antitrust claim which forms the merits of this case pales in comparison to this donnybrook between two factions of plaintiffs, the Woolen/Campisi (Campisi) group and the Whorton group. The loser in the first round, the Whorton plaintiffs, sought exclusion from the class suit filed by the Campisi plaintiffs, or intervention in that suit, alleging inadequate representation and imposition of a class attorney antagonistic to their interests. The District Court denied intervention, certified the class as a F.R.Civ.P. 23(b)(2) suit, and thus in practical effect denied exclusion. 1 Unfortunately although too frequently true, a ruling in the District Court made to avoid delay has itself engendered more delay. At the outset we face the threshold question of whether we have jurisdiction to address the Whorton's interlocutory appeal and the intertwined issue of whether a member of a class may intervene as of right. We find that the denial of intervention of right is an appealable order and that a class member may theoretically intervene in a class action. Because the District Court's findings on the issue of intervention are not adequate, we reverse and remand.
The underlying litigation in which the Whorton plaintiffs seek to intervene or from which they seek to be excluded is an antitrust action stemming from the establishment by the cities of Dallas and Fort Worth of the D/FW Surtran System to provide ground transportation for the D/FW airport. Surtran apparently accepted competitive bids for the privilege of picking up passengers at the airport. The winning bid was submitted by Yellow Cab of Dallas, Inc. and Fort Worth Cab and Baggage Company who together formed Surtran Taxicabs, Inc., which contracted with Surtran System to pick up taxicab passengers at the airport for transportation to points in the ten counties surrounding the airport. The contract between Surtran System and Surtran Taxicabs set the rates to be charged, and provided that Surtran System would be paid seventy-five cents per trip plus fifty percent of all profits above a five percent operating profit. Both Dallas and Fort Worth adopted ordinances providing that only holders of permits issued by the airport board may provide ground transportation from the airport. The effect of these ordinances was that only Surtran Taxicabs, as the sole holder of a permit, could pick up taxi passengers at the airport. 2
On May 22, 1978, plaintiffs John Woolen, Jack Stephens, and John D. Campisi, individually and on behalf of a class of taxi drivers filed suit against Surtran Taxicabs, the City of Dallas, City of Fort Worth, and three surrounding cities. 3 The Campisi class action suit alleged that the arrangement between the cities and Surtran Taxicabs violated the Sherman Act by both restraining trade and creating a monopoly, in violation of Sections 1 and 2 of the Act, 15 U.S.C. §§ 1, 2. The initial complaint sought both injunctive relief and treble damages on behalf of taxicab drivers who held permits to operate cabs within the ten-county region surrounding the airport. Two weeks later, on June 6, 1978, the Campisi plaintiffs amended their complaint to add Yellow Cab as a defendant and to add approximately 50 additional named representatives as class members, including the Dallas Taxicab Association. On that same day, the Whorton plaintiffs filed over 200 requests for exclusion from the Campisi suit, alleging that they would not be represented adequately and that the suit would not be prosecuted vigorously since at least two of the three named members of the Woolen class suit were members of the Dallas Taxicab Association, a nonprofit association of taxicab drivers operating in Dallas and formed by Yellow Cab Co., itself a defendant in this lawsuit. Ten days later, the Whorton plaintiffs filed a separate suit naming over 200 individual plaintiffs, but not in the form of a class action, seeking to recover treble damages for the antitrust violations.
On June 29, 1978, the Campisi plaintiffs filed a motion to consolidate their action with the Whorton plaintiffs and to designate the Campisi's attorney, Tom Thomas, as lead counsel. In November 1978, the defendants' subsequent motion to dismiss was denied by the District Court. In December 1978, the Campisi plaintiffs moved for class certification to represent a class of all licensed taxicab drivers in the ten county area, a class estimated to be between 2000 and 2500 persons. The class included Woolen and 50 other named plaintiffs as well as the Dallas Taxicab Association. The motion requested certification under Rule 23(b)(2) and (b)(3). In February 1979, the Campisi and Whorton cases were consolidated for purposes of discovery and a hearing to determine class certification was set for late April and subsequently rescheduled for May 1979. In May 1979 the case was reassigned to another District Judge.
In August 1979, four of the Whorton plaintiffs filed a motion to intervene in the Campisi case under Rule 24(a)(2), alleging that they had an interest in the transaction, were so situated that the disposition of the action might impair or impede their ability to protect that interest, and were not adequately represented by existing parties. 4
In October 1979, the four Whorton plaintiffs seeking to intervene filed "Requested Findings of Fact and Conclusions of Law in Opposition to Class Certification", alleging that the Campisi case should not be certified as a class action. The filing of this opposition is one of the more graphic examples of the antagonism and conflict between the Campisi and Whorton groups. The relations between the Campisi and Whorton plaintiffs continued to deteriorate for the next year as the attorneys for both groups were less than cooperative in discovery attempts.
According to the docket sheet, on October 9, 1979, after a hearing, the motion to intervene was granted. The record does not include a copy of the District Judge's order granting the motion and no reference is made to the granting of this motion in the subsequent December 1980 denial of the motion to intervene. In late October 1979, the District Judge held a hearing on class certification. Fourteen months later, on December 31, 1980, the District Judge filed an order certifying the Campisi suit as a 23(b)(2) class action and finding the Campisi plaintiffs adequate representatives for purposes of the class action. 5 The class was defined as all taxicab operators who held permits to operate taxicabs issued by the municipalities located within the ten county area. Campisi's attorney, Tom Thomas, was appointed lead class action counsel. In addition, the District Judge denied the motion of the four Whorton plaintiffs to intervene. 6 Although the District Judge did not rule on the motion for exclusion from the class suit, filed by the Whorton plaintiffs the practical effect of certification under (b)(2) was to deny the right to opt out to these class members. See note 1, supra. From this December 31, 1980 order the Whorton plaintiffs appeal.
Why, one might wonder, would two groups of taxicab drivers whom one would expect to be aligned against one common set of defendants, instead attempt to keep the other from active participation in the lawsuit? Each set of plaintiffs has tried to inhibit discovery by the other set. The Campisi group has worked to keep the Whorton group from intervening while the Whorton group has been busy trying to defeat the certification of the Campisi group. What we have in the final analysis is two factions of plaintiffs, each seeking to be represented by the attorney of their choice, and each seeking to get through the courtroom door first. While the underlying claim is the same, the Campisi plaintiffs seek injunctive relief as evident from their initial motion for certification. The Whorton group, on the other hand, is concerned primarily with damages.
In this appeal, the Whorton plaintiffs basically argue that the District Judge's order of December 31, 1980 results in their being locked into a class action in which they are not adequately represented, in which their interests are antagonistic to other members of the class, and in which they have no desire to participate unless they are allowed representation by the attorney of their choice. They assert that the class action device has been abused to preempt their claim through a sham class action filed by the Campisi group and that the District Judge's orders have conclusively determined their rights in such a way that review on appeal from a final judgment will be ineffective. Through certification under Rule 23(b)(2), they fear that their...
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New Orleans Public Service, Inc. v. United Gas Pipe Line Co.
...in denying the City officials permissive intervention, and we accordingly dismiss the appeal in that respect. Woolen v. Surtran Taxicabs, Inc., 684 F.2d 324 (5th Cir.1982). CONCLUSION We hold that the City officials are not entitled to intervene as of right under Rule 24(a), and that the di......
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Edwards v. City of Houston
...we must dismiss the appeal for lack of jurisdiction. Stack v. Gamill, 796 F.2d 65, 67 (5th Cir.1986); Woolen v. Surtran Taxicabs, Inc., 684 F.2d 324, 330-31 (5th Cir.1982). On the other hand, if the district court abused its discretion in denying the Rule 24(b) motion, we retain jurisdictio......
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