MEMORANDUM AND ORDER RE CLASS ACTION
PEIRSON M. HALL, District Judge.
On February 23, 1972 the plaintiffs filed a motion that the above three actions, which had been severed as to damages and consolidated on the issue of liability alone, be maintained as class actions, the class to consist of all persons having a right to be compensated in damages as a result of any passenger killed in the June 6, 1971 collision between an Air West DC-9 jet liner, Flight 706, out of Los Angeles and a United States military jet near Duarte, California.
All the passengers, 44, of Air West plane and all the crew, 5, were killed as well as the pilot of the military jet, for
a total of 50 deaths. The co-pilot of the military jet parachuted to safety and is a defendant with the United States in case No. 72-1. 71-1595 is a suit against Air West to which is filed a motion to dismiss. Concurrently herewith a Memorandum and Order is filed denying the motion to dismiss.
Each of the complaints in the three above actions was filed as a class action. No. 71-1431 was a petition to preserve testimony filed on June 16, 1971 and it was granted. Discovery began by way of depositions, inspection and deposit of documents and things, and continued except for an interruption alluded to in the Order filed October 5, 1972, a copy of which is set forth in the margin.
As other suits were filed in this court each was severed as to liability only under F.R.Civ.P. 42(b), and consolidated on that issue with the above cases and with each other under F.R.Civ.P. 42(a). In passing it is noted that F.R.Civ.P. 23 by subdivision (c) (4) (A) provides for class actions to be maintained as to par
tieular issues. In the second
Weiner
case (United Air Lines, Inc. v. Weiner, 9 Cir. 1964, 335 F.2d 379), the Court adopted as its opinion the opinion of the trial court granting summary judgments on the question of liability (United States v. United Air Lines, D.C., 1962 216 F.Supp. 709-718-732), and holding it proper to try damages to a jury separate from liability; thus, in effect, overruling that Court’s previous holding in the first
Weiner
case (286 F.2d 302, 9 Cir. 1961) to the effect that liability
and damages
could not be tried separately.
The case has in fact been conducted as a class action on the issue of liability. Since the filing of the first above-numbered case, notice has been given by plaintiffs’ counsel and the Clerk by sending copies of all pleadings, motions and documents, orders of the Court, notices of depositions and continuances thereof filed in the above three cases to all of the decedents’ heirs and next of kin as contained on a list furnished by Air West and to the counsel for each of them where the identity of counsel was known. 66 suits have been filed, and there are 31 sets of plaintiffs’ lawyers appearing.
The Court, mistakenly, deferred decision on the question of class action in the hope that settlements would be promptly made at least as to all passengers, thus saving the tremendous burden of time, money and energy of those unfortunate enough to be the heirs or next of kin of the decedent passengers, which would leave to Air West and the United States the burden of litigating between them the cause of the crash and which one of the two should pay not only damages, if any, for the deaths occurring, but the property loss involved in the destruction of the planes. But that has not happened. And, moreover, the discovery has become particularly onerous and lengthy because of the obfuscating resistance of the United States to every motion and testimony of Government employees which the petitioners herein have made, or caused to be made, to effectuate discovery. The Ninth Circuit in City of Inglewood, et al. v. City of Los Angeles, 451 F.2d 948 (1972), approved the holding in Phila. Elec. Co. v. Anaconda, et al., 42 F.R.D. 324, at 326 (E.D.Pa.1967), that an action filed as a class action must be assumed to be one for the purposes of dismissal or compromise, until a contrary holding is made under 23(c)(1). There is no reason why such assumption should not be made for all purposes. The orders of consolidation on the issue of liability and complete notices to all were made as extra precautions to preserve due process to all litigants. The parties are entitled to a determination under F.R.Civ.P. 23(c) (1) without further delay.
The Court is of the view that, notwithstanding some cases to the contrary and notwithstanding the suggestion in the notes of the advisory committee that class actions should not be used in Tort cases, the plain language of F.R.Civ.P. 23 was devised for just such a situation as this. If that rule was not intended to cover Tort actions or death actions in crash cases, or any kind of a mass Tort, it would have been simple enough to have said so in the text of the rule. But the rule is very broad in its language so as to permit the courts to eliminate repetitive and burdensome litigation and to eliminate in mass Tort cases the situation which existed for so many years in patent cases, for instance, where suits were filed in as many as 10 Districts for infringement, even after the patent had been held invalid after trial, affirmation on appeal and denial of certiorari by the Supreme Court.
DECLARATORY RELIEF
One count of the complaint against the United States seeks relief under the Declaratory Judgment Act requiring consideration before further discussion of the class action.
“ § 2201.
Creation of remedy
In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
“ § 2202.
Further relief
Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.”
There are cases denying declara;*tory relief in Tort actions, but they overlook the broad sweep of the language of two sections. No plainer language could be designed for the situation existing here. 50 people were killed. One unitary set of facts will determine the cause of the crash and the extent of the liability therefor of the United States and of the carrier Air West and of the defendant Schiess. Of course, different sets of facts will determine the amount of damages to each plaintiff in the actions. When liability is adjudicated, damages will be determined by the U.S. District Courts sitting in the different states where the suits have been filed, 9 in Utah, 2 in Washington state, 1 in Idaho, and 1 in the District of Columbia. But the
right
of each member of the class of passengers’ survivors to recover will be established by a common set of facts as opposed to a peculiar and different set of facts applicable to amount of damages of each different plaintiff in the class.
By its plain language the Act was intended to permit the declaration of the “rights and other legal relations of any interested party.” It cannot be denied that the plaintiffs are “interested” parties; nor can it be denied that the determination of liability would be a determination of the “rights and legal relations” between the plaintiffs and the defendants, the United States, Air West, and Schiess; nor can it be denied that one “nucleus of operative facts” will determine those rights and legal relations.
The sole question to be determined under the Declaratory Relief statute is the matter of whether or not liability exists. Plainly the language of the statute contemplates that if such liability is declared, then “further necessary or proper relief * * * may be granted”; that is to say, damages.
There is but one “common nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S. 715-725, 86 S.Ct. 1130, 16 L.Ed.2d 218. There was a single wrongful invasion of a single primary right of the plaintiffs. Whether the acts constituting such invasion were one or many, simple or complex, is immaterial. See also Astor-Honor, Inc. v. Grosset & Dunlap, Inc. (2 Cir. 1971), 441 F.2d 627, and Hipp v. United States (E.D.N.Y.1970), 313 F.Supp. 1152. The commonality of proof required makes the suit against Air West and the Unitr ed States but one constitutional “case.” And joinder of parties is not to be treated differently than joinder of issues.
United Mine Workers, supra,
and
Hibbs, supra.
While the court in Penn. R. R. Co. v. United States (Dist. of N.J.1953), 111 F.Supp. 80, in the exercise of its discretion declined declaratory relief, nevertheless the court said, and I adopt its reasoning, as follows:
“Here, because of the unusual nature of the circumstances, the plaintiff has seen fit to request initially a judgment declaring ‘the rights and other legal relations of the parties to this suit, as well as all persons, firms and corporations who suffered damages as a result of the explosion at South Am-boy on May 19, 1950, as between themselves and each other.’ If successful against the United States, the plaintiff intends to assert its right to whatever money damages it believes it is entitled, 28 U.S.C. § 2202; Texasteel Mfg. Co. v. Seaboard Surety Co., 5 Cir., 1946, 158 F.2d 90, certiorari denied, 1947, 331 U.S. 828, 67 S.Ct. 1350, 91 L.Ed. 1843. Such a course is within the scope of the waiver of immunity of the Tort Claims Act, for the government is in no different position from that in which it would be placed were the plaintiff to seek damages immediately, without prior resort to a declaratory judgment as to it.”
In view of the fact that permitting declaratory relief is discretionary, and that the suits arising from this crash are pending in 4 different jurisdictions besides this one with possible different results, it would be an abuse of discretion not to permit this action to go to judgment on the count of declaratory relief. The transfer to this district under the Multidistrict Litigation Act, 28 U.S.C. § 1407, it must be remembered, is
only
for discovery,
not adjudication on the merits.
That transfer under 1407 of Title 28 contemplates freedom to determine the class action question, is demonstrated by paragraph 1.0 (k) of the Manual for Complex and Multidistrict Litigation.
CLASS ACTION
The 4 prerequisites to a class action are present here.
1. There were 44 deaths of passengers. Those claiming to be entitled to recover because of said deaths number in excess of 100 according to the complaints on file; there are more than 30 sets of lawyers representing the plaintiffs, each considering himself competent. While by consolidating cases on the issue of liability as they were filed and designating a lead counsel, and requiring notice to all other counsel, and permission to all other counsel to participate in discovery, progress has been made, it is nevertheless impracticable to try this case on the issue of liability with that many counsel participating in a consolidated trial.
2. That the questions of law and fact as to liability are common to each of the 44 passengers cannot be gainsaid.
3. Nor can the fact that the claims as to liability are typical of the claims
of all of the plaintiffs, and likewise the 'defenses of the United States and of Schiess and of Air West are typical as 'each must rely upon the same set of operative facts.
4. The representative parties and their counsel will fairly and adequately represent the class. That they have done so to date is demonstrated not only by the diligence, but the thoroughness with which they have so far pursued and conducted discovery, the effect of which is further demonstrated by the offers of settlement which have been made.
That the fair and adequate representation of the class will continue in the future on the question of liability is assured by the exercise of this Court’s power under F.R.Civ.P. 23(d), and the meetings of some of counsel for plaintiffs to select a representative committee of lawyers to actively conduct further proceedings.
Having found that the prerequisites of F.R.Civ.P. 23(a) are satisfied, the Court now finds in addition thereto that the prosecution of separate actions by the individual plaintiffs would create a risk of (1) inconsistent or varying adjudications on the question of liability, in which event there would be established incompatible standards of conduct for the defendants; (2) moreover, it is possible that adjudications with respect to individual suits by individual members of the class would, in ease judgment went against that plaintiff, as a practical matter, be dispositive of the rights of other members of the class not party to the individual adjudication, so as to substantially impair or impede the ability of other members to protect their interests, by the application of the doctrine of res
judicata.
Adjudications exonerating any one of the defendants would as a practical matter certainly impair or impede the ability of the other plaintiffs to recover against the defendant who might be exonerated. In fact, if the doctrine of
res judicata
were strictly applied in such an instance, it would not only impede or impair that ability, but deny it entirely.
Moreover, the United States has failed and refused to act on the claims of the plaintiffs filed under 28 U.S.C. § 2675 within the six months’ period; and the Court, taking judicial notice of its own files and records in the other eases filed in this court arising from that air-crash, finds that there has been a similar failure or refusal by the United States to act on any of the claims for death in said crash in the pending cases where claims were filed under that section prior to suit. Such inaction makes it “appropriate (for) * * * corresponding
declaratory
relief with respect to the class as a whole.”
Thus the requirements of F.R.Civ.P. 23(a) and 23(b)(1)(A), (B) and 23(b)(2) are satisfied.
The Court hereby determines and Orders that the within actions shall be maintained as class actions for declaratory relief, as to liability only, on behalf of all of those persons having a compensable interest as a result of the death of any passenger on the plane of Air West Flight 706 which crashed on June 6, 1971 near Duarte, California.
This will include those passengers, if there are any, who have filed a claim under 28 U.S.C. § 2675 and have not yet filed suit against the United States, as well as those who have not yet filed any claim against the United States under 28 U.S.C. § 2675.
It must be kept in mind that the six months’ requirement is
only
if a claim is made for
money damages,
and that the cause of action here declared to be a class action is for declaratory relief as to liability only. 28 U.S.C. § 2201. The maintenance of a declaratory relief action contemplates “whether or not further relief is or could be sought.” And
28 U.S.C. § 2202 specifically provides that “further necessary or proper relief * * * may be granted,” based on a declaratory judgment.
The Court pointed out in Philadelphia Electric Co. v. Anaconda (E.D.Pa., 1967), 42 F.R.D. 324, the use of the word “maintained” in 23(c)(1) is “some indication that the court is expected to determine what the lawsuit has always been, not what it is about to become.” That is what this court is doing now. The conduct of the cases and the complete noticing of all procedures and motions and orders would have been no more than it has been if the determination was made on the day the suits were filed.
Those having a compensable interest as the result of death of the crew of the Air West plane may desire to be designated as a sub-class, as well as those having compensable interest as a result of the death of the pilot of the military jet. But no motion is before the Court to do so.
APPENDIX A
(Listed in alphabetical order)
Alameda Oil Co. v. Ideal Basic Industries, Inc., 326 F.Supp. 98 (D.Colo. 1971);
Almenares v. Wyman, 453 F.2d 1075 (2 Cir. 1971);
American Trading & Prod. Co. v. Fischback & Moore, Inc., 47 F.R.D. 155 (N.D.Ill.1969);
Arkansas Ed. Assn. v. Board of Education, Portland, Ark. School Dist., 446 F.2d 763 (8 Cir. 1971);
Berman v. Narragansett Racing Assn., 414 F.2d 311 (1 Cir. 1969);
Burney v. North American Rockwell, 302 F.Supp. 86 (C.D.Cal.1969);
Cacares v. Int’l Air Transport Assn., 46 F.R.D. 89 (S.D.N.Y.1969);
City of Inglewood v. City of Los Angeles, 451 F.2d 948 (9 Cir. 1972);
Cortright v. Resor, 325 F.Supp. 797 (E.D.N.Y.1971); 447 F.2d 245 (2 Cir. 1971);
Cypress v. Newport News General & Nonsectarian Hospital Assn., 375 F.2d 648 (4 Cir. 1967);
Demarco v. Edens, 390 F.2d 836 (2 Cir. 1968);
Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2 Cir. 1968);
Feder v. Harrington, 52 F.R.D. 178 (S.D.N.Y.1970);
Gatling v. Butler, 52 F.R.D. 389 (D.Conn.1971);
Gerstle v. Continental Airlines, Inc., 50 F.R.D. 213 (D.Colo.1970);
Haiduk v. Atlantic, etc. (D.C.Pa.1952), 31 F.R.D. 241;
Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909 (9 Cir. 1964);
Hobbs v. Northeast Airlines, Inc., 50 F.R.D. 76 (E.D.Pa.1970);
Hohmann v. Packard Instrument Co., 399 F.2d 711 (7 Cir. 1968);
Management T. V. Systems v. National Football League, 52 F.R.D. 162 (E.D. Pa.1971);
Manning v. General Motors Corp., 14 F.R.Serv.2d 1083 (N.D.Ohio 1971);
Oatis v. Crown Zellerbaeh, 398 F.2d 496 (5 Cir. 1968);
Phillips v. Sherman, 197 F.Supp. 866 (N.D.N.Y.1961);
Rhodes v. Jones, 351 F.2d 884 (8 Cir. 1965);
Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970);
Robinson v. Lorillard, 444 F.2d 791 (4 Cir. 1971);
Sherwood v. United States, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941);
Siegel v. Chicken Delight, 271 F.Supp. 722 (N.D.Cal.1967);
Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969);
State of Maryland v. Capital Airlines, 267 F.Supp. 298 (D.C.Md.1967);
State of Utah v. American Pipe and Construction Co., 49 F.R.D. 17 (C.D. Cal.1969);
Towle v. Boeing Airplane Co., 364 F.2d 590 (8 Cir. 1966);
United States v. Cantrell, 307 F.Supp. 259 (E.D.La.1969);
United States v. United Air Lines, 216 F.Supp. 709 (D.Nev.1962);
Van Gemert v. Boeing Co., 259 F.Supp. 125 (S.D.N.Y.1966);
Vernon J. Rockier and Co. v. Graphic Enterprises, Inc., 52 F.R.D. 335 (D.Minn.1971);
Weingartner v. Union Oil Co. of Cal., 431 F.2d 26 (9 Cir. 1970);
Zachary v. Chase Manhattan Bank, 52 F.R.D. 532 (S.D.N.Y.1971).