Appeal pursuant to a 28 U.S.C. § 1292(b) certification. In a consolidated proceeding to determine only the liability of defendant-appellant, judgments against defendant were entered in the United States District Court for the Eastern District of New York, Henry Bramwell, J., following the District Court's grant of plaintiffs' motions for summary judgment and judgment on the pleading. Judgments reversed, and causes remanded to the District Court for further proceedings.
Before Waterman, Moore and Mansfield, Circuit Judges.
Eastern Air Lines, Inc. (Eastern), in a proceeding limited to the issue of liability only, appeals judgments entered against it in 16 cases in the United States District Court for the Eastern District of New York, Bramwell, J. The district court had granted motions for summary judgment and judgment on the pleadings, Windbourne v. Eastern Air Lines, Inc., 479 F. Supp. 1130 (E.D.N.Y. 1979); and a request by Eastern for a 28 U.S.C. § 1292(b) certification to this court, permitting appeal before entry of final judgments, was granted. As to some of these judgments, Eastern contends that reversal is mandated because they were entered without compliance with the provisions of Rule 56(c) of the Federal Rules of Civil Procedure (Fed.R.Civ.P.). As to the remainder of these judgments, Eastern raises a more fundamental objection, an objection which is equally applicable to all the judgments entered in alleged violation of Fed.R.Civ.P. 56(c). Eastern maintains that because its pleadings asserted several affirmative defenses, which, if proved, would have precluded any of the named plaintiffs from obtaining a plaintiff's judgment, the District Court committed clear error when it granted plaintiffs' motions for entry of judgments against Eastern. For the reasons set forth below, we reverse the judgments entered against Eastern by the court below, and remand all sixteen cases to that court for further proceedings there.
We first set forth a detailed summary of the proceedings below, which we believe to be necessary for an adequate understanding of the extent of, and the reasons for, our rulings in these cases. The sixteen cases, all involving decedents who were foreign nationals, arise out of the crash of an Eastern aircraft at John F. Kennedy International Airport on June 24, 1975. As a result of this air crash disaster a number of actions were commenced against Eastern in different federal district courts throughout the country, all of which eventually were transferred by the Judicial Panel on Multi-district Litigation to the United States District Court for the Eastern District of New York for consolidated pre-trial proceedings pursuant to 28 U.S.C. § 1407(a). In re Air Crash Disaster at John F. Kennedy International Airport on June 24, 1975, 407 F. Supp. 244 (Jud.Pan.Mult.Lit. 1976).
After completion of pre-trial discovery, the transferee court, pursuant to 28 U.S.C. § 1404(a), transferred to itself all sixteen actions, and ordered a trial against defendants Eastern and the United States of America to commence on September 11, 1978, limited to the liability of the defendants. On the date set for trial, the United States, although not admitting any negligence, announced that it would consent to the entry of liability judgments against it in all passenger cases. Accordingly, the district court severed the plaintiffs' cases against the United States, and on September 15, 1978, ordered the trial to go forward as to Eastern's liability for the crash.
Also on September 15, 1978, by notice of motion, Tierney A. O'Rourke, Public Administrator of Queens County, the plaintiff in eleven of the sixteen cases, the Abbate, Alexandridis, Behar (Gabay), E. Bigio, R. Bigio, Hadzis, P. Hansen, W. Hansen, Manias, Merkouris and Priniotakis cases,*fn1 moved for summary judgment and judgment on the pleadings based upon the contention that these cases were governed by the Warsaw Convention and Montreal Agreement (Warsaw/Montreal), and therefore these plaintiffs were entitled to a liability judgment as a matter of law.
Eastern, although not contesting that all of the above cited cases were controlled by Warsaw/Montreal, noted that it had pleaded as an affirmative defense in each of these cases that the plaintiff(s) lacked capacity to sue. Additionally, in all of the above cited cases except Behar, Eastern had also pleaded as an affirmative defense that each suit had been commenced without the proper authorization of the decedent's next of kin and personal representative. Finally, in all of the above cited cases, Eastern had pleaded the possible application of laws of diverse foreign jurisdictions.
Nevertheless, later that day, the district court granted plaintiffs' motions in the Abbate, Behar, E. Bigio and R. Bigio cases, without resolving the issues of fact raised by Eastern's affirmative defenses, and without affording Eastern an opportunity to submit written papers in opposition to the plaintiffs' motions. However, the district court denied plaintiffs' motions in the remaining seven cases on the ground that there were disputes between the named representatives and next of kin of the decedents as to the proper party to prosecute these actions.
On September 18, 1978, at the commencement of the liability trial against Eastern, the plaintiffs in the remaining cases, the non-disputed representative cases, made similar oral motions for summary judgment and judgment on the pleadings based on Warsaw/Montreal. Although Eastern interposed the same objections it had made to the earlier motions, the district court granted plaintiffs' motions that same day. Eastern, interpreting certain language in the orders and judgments implementing the district court's decision in the non-disputed representative cases as a Fed.R.Civ.P. 54(b) certification, appealed to this Court. A consolidated appeal was docketed in this Court on November 13, 1978, under the caption of Winbourne v. Eastern Air Lines, Inc., Docket No. 78-6178.
While the Winbourne appeal was pending before this Court, the district court consolidated the disputed representative cases for all purposes, again considered the plaintiffs' motions for summary judgment and for judgment on the pleadings in those cases, and granted these motions on December 1, 1978. On the same day, December 1, 1978, the district court issued a decision pertaining to the cases docketed under the Winbourne appeal, which provided that the alleged Rule 54(b) language should be deleted from the judgments entered in those cases because the insertion of this language had been a clerical error, and at the same time ordered the transfer of four cases, the Bright, Domangue, Hickey and Winbourne cases, to a Louisiana federal district court for damage trials.
On January 16, 1979, this Court granted a stay of the cases ordered transferred to Louisiana, but, finding ourselves to be without jurisdiction to review the entry of judgments in the non-disputed representative cases, suggested that Judge Bramwell consider the certification of these cases for appeal pursuant to 28 U.S.C. § 1292(b). Eastern thereafter applied to the district court for a 28 U.S.C. § 1292(b) certification of the judgments entered on September 28, 1978 (the non-disputed representative cases involved in the Winbourne appeal). And, as the judgments entered in the disputedrepresentative cases on December 18 and 19, 1978 were premised on the same legal theory as the judgments in the Winbourne appeal cases, Eastern also sought 28 U.S.C. § 1292(b) certification of the judgments entered in the disputed representative cases as well.
On May 11, 1979, the district court issued a lengthy opinion in which it granted Eastern's request for 28 U.S.C. § 1292(b) certification of the judgments entered in both the disputed and non-disputed representative cases, recognizing that the manner in which the Warsaw/Montreal motions were instituted and granted presented a controlling question of law as to which there was substantial ground for difference of opinion. In addition to granting certification, the district court granted plaintiffs' motions to amend the terms of the judgments that had been entered in the non-disputed representative cases to make clear that Eastern retained its right to litigate its affirmative defenses to these actions.*fn2 The district court also ruled that the plaintiff Public Administrator in the Abbate, Behar, E. Bigio and R. Bigio suits had the capacity to sue as a matter of law, and further reaffirmed the granting of summary judgment and judgment on the pleadings in all of the cases herein. Windbourne v. Eastern Air Lines, Inc., 479 F. Supp. 1130 (E.D.N.Y. 1979).
In a separate opinion entered on the same date, the district court vacated Eastern's deposition notices in the Alexandridis, E. Bigio, R. Bigio, Hadzis, P. Hansen, W. Hansen, Manias, Merkouris and Priniotakis cases by which Eastern sought additional discovery on matters relating to its pleaded defenses. Eastern thereupon petitioned this Court for permission to appeal all ...