In re Federal Skywalk Cases

97 F.R.D. 370, 1983 U.S. Dist. LEXIS 20277
CourtDistrict Court, W.D. Missouri
DecidedJanuary 4, 1983
DocketNo. 81-0945-A-CV-W-5
StatusPublished
Cited by9 cases

This text of 97 F.R.D. 370 (In re Federal Skywalk Cases) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Federal Skywalk Cases, 97 F.R.D. 370, 1983 U.S. Dist. LEXIS 20277 (W.D. Mo. 1983).

Opinion

[372]*372ORDER AND MEMORANDUM

SCOTT O. WRIGHT, District Judge.

The plaintiffs have moved this Court for an order adjudicating the defendants in contempt for making unauthorized contact with members of the federal court class action which was certified on October 29, 1982. See In Re Federal Skywalk Cases, 95 F.R.D. 483 (W.D.Mo.1982). They contend that the defendants improperly communicated with absent members of the class, in violation of Rule 23(e) of the Federal Rules of Civil Procedure and of Disciplinary Rule 7—104 of the Missouri Code of Professional Responsibility, through certain activities surrounding the certification of a class action in the Circuit Court of Jackson County, Missouri on December 6, 1982. The plaintiffs seek an order granting the following relief: (1) Declare all post-December 6,1982 opt-outs and releases from the federal class void; order defendants to send a corrective notice at their expense; and require any class member who still seeks to opt out to appear at a hearing so that the Court can determine whether the choice is informatively made; (2) Enter default judgments against the defendants on the issues of compensatory and punitive liability; (3) Disqualify counsel for defendants for violating Disciplinary Rule 7-104; (4) Withhold full faith and credit from any state court judgment that might issue in this matter; and (5) Award costs to the plaintiffs and assess attorneys’ fees against the defendants and their counsel.

A hearing was initially set on this matter for December 21, 1982, but was continued so that the Court might further its own research on plaintiffs’ motion and so that the parties might have additional time to resolve the conflict without the aid of judicial intervention. See In Re Federal Skywalk Cases, No. 81-0945, Slip op. (W.D.Mo. Dec. 20, 1982). The problem was not resolved by the parties. On January 3, 1983, the Court conducted an evidentiary hearing on plaintiffs’ motion. Briefs have been submitted by the plaintiffs and defendants. The plaintiffs who have cases in state court were invited to present arguments in support of or opposition to the motion, but did not. No party has intervened in plaintiffs’ motion. Having considered the evidence, briefs and oral arguments, the Court grants, for the reasons which follow, the plaintiffs’ motion to hold certain defendants in contempt of this Court.

I. FINDINGS OF FACT

1. On January 25, 1982, this Court certified a Rule 23(b)(1), or mandatory, class action in this litigation on the issues of liability for compensatory and punitive damages, and on the amount of punitive damages. See In Re Federal Skywalk Cases, 93 F.R.D. 415 (W.D.Mo.1982). The mandatory class was composed of “all business invitees who were present in the main lobby of the hotel at the moment the two skywalks collapsed” on July 17, 1981. Id. at 421. It was opposed by all defendants and by a group of plaintiffs who had cases filed in the Circuit Court of Jackson County, Missouri. The Eighth Circuit Court of Appeals reviewed the certification order under an interlocutory appeal and, in a split decision, vacated the mandatory certification order on June 7, 1982. See In Re Federal Skywalk Cases, 680 F.2d 1175 (8th Cir.1982).

2. In September of 1982, the plaintiffs moved this Court to certify either a modified mandatory class action or a voluntary class action. The Court denied the motion at that time. See In Re Federal Skywalk Cases, 95 F.R.D. 479 (W.D.Mo.1982).

3. In October of 1982, the plaintiffs moved for only a voluntary class action. All parties, including plaintiffs-intervenors, briefed the motion and presented oral arguments at the certification hearing. On October 29, 1982, this Court certified a Rule 23(b)(3), or voluntary, class action on the issues of compensatory and punitive damage liability, and on the amount of punitive damages, if any, for the collapse of the skywalks. See In Re Federal Skywalk Cases, 95 F.R.D. 483 (W.D.Mo.1982). The voluntary class was composed of “all business invitees, or the representatives of business invitees, who were injured as a result of the collapse of two skywalks at the [373]*373Hyatt Regency Hotel of Kansas City, Missouri on July 17, 1981.” Id. at 485. Two and one-half weeks later, the Court conducted a hearing on the matter of the notice to be sent to class members under Rule 23(c)(2). All parties, including plaintiffs-intervenors, briefed the matter of notice, submitted proposed forms and presented oral arguments. After the hearing, but prior to the issuance of any order approving notice, the plaintiffs-intervenors, without ever seeing any order, moved the Court to certify the order for interlocutory appeal and to stay the order. The Court issued an order approving the form of notice on November 16, 1982. See In Re Federal Skywalk Cases, No. 81-0945, slip op. (W.D.Mo. Nov. 16, 1982). After the November 16, 1982 order issued, the Court treated the plaintiffs-intervenors’ motion for certification of an interlocutory appeal and for a stay as if it had been properly filed after the order issued and denied the motion. See In Re Federal Skywalk Cases, No. 81-0945, slip op. (W.D.Mo. Nov. 17, 1982). The plaintiffs-intervenors and five defendants sought either extraordinary or appellate relief from this Court’s October 29 certification order and the November 16 order approving a form of notice. The relief sought was summarily denied by the appellate court on .November 19, 1982. The plaintiffs-intervenors then sought similar relief from a full panel of the appellate court. That relief was summarily denied on December 22, 1982.

4. On December 6,1982, defendants and the plaintiffs who were formerly designated as plaintiffs-intervenors in this Court jointly moved in state court for the conditional certification of a voluntary class action under Rule 52.08(b)(3), (c)(2) and (3) of the Missouri Rules of Civil Procedure, for approval of a form of notice and for the tentative approval of a class-wide settlement. A brief proceeding was conducted in ■ state court on the morning of December 6, 1982 at which the state court conditionally certified a voluntary class action, approved a form of notice and tentatively approved a class-wide settlement. Though the state court was told that the plaintiffs-interve-nors had met “with all plaintiffs attorneys that have filed cases in state court,” two members of the federal court class counsel team who have cases on file in state court did not meet with plaintiffs-intervenors and were not notified about the state court proceeding. No counsel appointed to represent the federal class was given notice of the state court proceeding. At the December 6, 1982 state court proceeding, the state court set a hearing on the final certification of the class action and on the final approval of the settlement for January 5,1983. A form of notice was ordered to be issued immediately. No formal hearing was conducted on the form of notice and none was scheduled.

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Bluebook (online)
97 F.R.D. 370, 1983 U.S. Dist. LEXIS 20277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-federal-skywalk-cases-mowd-1983.