Opinion
Nos. 01 MDL 1428, 01 Civ. 6554 (SAS), 01 Civ. 7242 (SAS), 04 Civ. 1402 (SAS).
June 27, 2005
Robert A. Swift, Esq., Kohn, Swift Graf, P.C., Philadelphia, Pennsylvania, for Plaintiffs.
Jay J. Rice, Esq., Nagel Rice Mazie, LLP, Roseland, New Jersey, for Plaintiffs' Liaison Counsel.
Brant W. Bishop, Esq., Kirkland Ellis LLP, Washington, D.C., for Defendant Siemens Austria.
Charles G. Moerdler, Esq., Stoock Stroock Lavan LLP, New York, New York, for Defendant AHP.
Daniel V. Gsovski, Esq., Herzfeld Rubin, P.C., New York, New York, for Defendant Beton.
Paul Rooney, Esq., Reed Smith LLP, New York, New York, for Defendants' Liaison Counsel.
MEMORANDUM OPINION ORDER
This litigation arises from a disaster that occurred on November 11, 2000, in which a ski train in Kaprun, Austria caught fire, killing 155 people. Plaintiffs, the relatives of eight Americans who lost their lives, brought a number of lawsuits against numerous defendants alleging negligence and strict liability. The Judicial Panel on Multidistrict Litigation ("JPML") assigned these actions to this Court for coordinated or consolidated pretrial proceedings. The plaintiffs now request that this Court certify four of its rulings to the Second Circuit pursuant to Rule 54(b) of the Federal Rule of Civil Procedure:
See In re Ski Train Fire in Kaprun, Austria on November 11, 2000, 175 F. Supp. 2d 1379 (J.P.M.L. 2001).
(1) an Opinion and Order dated September 19, 2002, granting defendant Siemens AG Osterreich's ("Siemens Austria") motion to dismiss for lack of personal jurisdiction ("Siemens Ruling 1");
(2) an Opinion and Order dated May 5, 2004, denying plaintiffs' motion: (a) to sever Siemens Austria from the action against its parent company, Siemens AG; (b) to amend the complaint as to Siemens Austria; and (c) to transfer the action against Siemens Austria to the Northern District of California ("Siemens Ruling 2");
(3) an Opinion and Order dated April 4, 2003, granting defendant Verbund-Austrian Hydro Power's ("AHP") motion to dismiss for lack of personal jurisdiction ("AHP Ruling"); and
(4) an Opinion and Order dated November 23, 2004, granting the motion of defendant Beton-und-Monierbau, G.m.b.H. ("Beton"), to dismiss for lack of personal jurisdiction ("Beton Ruling").
See In re Ski Train Fire in Kaprun, Austria on November 11, 2000, 230 F. Supp. 2d 403, 404 (S.D.N.Y. 2002).
See In re Ski Train Fire in Kaprun, Austria on November 11, 2000, 224 F.R.D. 543, 544 (S.D.N.Y. 2004).
See In re Ski Train Fire in Kaprun, Austria on November 11, 2000, MDL 1428, No. 01 Civ. 7242, 2003 WL 1807148, at *1 (S.D.N.Y. Apr. 4, 2003).
See In re Ski Train Fire in Kaprun, Austria on November 11, 2000, MDL 1428, No. 04 Civ. 1402, 2004 WL 2674644, at *1 (S.D.N.Y. Nov. 23, 2004).
For the following reasons, plaintiffs' motion is denied in its entirety.
I. BACKGROUND
A. Siemens Austria
On July 19, 2001, plaintiffs John and Suzanne Habblett, Rudolf and Angela Kern, and Carol and Dick Baker brought suit in the Southern District of New York against a number of defendants, including Siemens Austria and its parent corporation, Siemens AG. In March 2002, Siemens AG and Siemens Corporation, its New York subsidiary, moved to dismiss the action against them; the Court denied this motion. However, on September 19, 2002, the Court's Siemens Ruling 1 granted Siemens Austria's motion to dismiss for lack of personal jurisdiction. In October 2003, plaintiffs sought to cure the jurisdictional defect by moving: (1) to sever Siemens Austria from the action against the other Siemens defendants; (2) for leave to file an amended complaint alleging jurisdictional facts relating to Siemens Austria's presence in California; and (3) to transfer the action against Siemens Austria to the Northern District of California. The Court's Siemens Ruling 2, which is dated May 5, 2004, noted that the dismissal of Siemens Austria in Siemens Ruling I had not been made final under Rule 54(b), but nonetheless denied the plaintiffs' motion in its entirety.
Plaintiff Clair Goodridge brought his own action in the Southern District of New York in August 2001. Plaintiff Karen Filkil brought her own actions in the Eastern District of Texas (June 2003), the Eastern District of Michigan (November 2003), and the Southern District of New York (November 2003). In addition, on December 12, 2001, plaintiffs filed a Consolidated and Amended Complaint ("Class Complaint") in this multidistrict litigation ("MDL") naming John Habblett as a proposed class representative. Class certification was denied on December 20, 2004. See Kern v. Siemens Corp., 393 F.3d 120, 122 (2d Cir. 2004), cert. denied, 125 S. Ct. 2272 (2005).
See Siemens Ruling 2 at 544. The Court denied plaintiffs' motion on two grounds: (1) the plaintiffs had failed to overcome the law-of-the-case barrier to a court's reconsidering a prior ruling; and (2) the plaintiffs had not established that transfer would be in the "interest of justice" as required under both 28 U.S.C. §§ 1410(a) and 1406(a). See id. at 548-50. In regard to the second ground, the court found that "plaintiffs' transfer request is based, at best, on weak evidence that Siemens Austria is actually subject to personal jurisdiction in Northern California." Id. at 549.
B. AHP
On August 3, 2001, plaintiffs John and Suzanne Habblett, Rudolf and Angela Kern, and Carol and Dick Baker filed suit in the Southern District of New York against AHP, Tauren Touristik GmbH ("TTG"), and "John Doe" defendants. The plaintiffs voluntarily discontinued the action against TTG. The AHP Ruling, issued on April 4, 2003, granted AHP's motion to dismiss for lack of personal jurisdiction. The Clerk of the Court was directed to dismiss the case against AHP, the sole remaining named defendant. The Clerk did not enter a separate judgment closing the action, Habblett v. Verbund-Austrian Hydro Power AG, nor was the AHP Ruling entered in that action's docket. Nevertheless, on September 15, 2003, the Clerk entered the notation "Case closed" in the docket at the Court's instruction.
This action was assigned civil docket number 01 Civ. 7242. AHP was also named as a defendant in the Class Complaint.
See AHP Ruling at *1 n. 1.
See id. at *8.
Due to a typographical error, the AHP Ruling bore an incorrect docket number: 01 Civ. 7342. The AHP Ruling was entered in the MDL docket.
See Civil Docket for Case No. 01 Civ. 7242 (SAS), Ex. D. to 3/30/05 Letter of Alan M. Klinger, Counsel to AHP, to the Court, at 3.
C. Beton
On November 4, 2003, plaintiffs John and Suzanne Habblett and Rudolf and Angela Kern filed a class action complaint in the District of Massachusetts against Beton. In February 2004, this action was transferred to this Court as a tag-along action. Beton, the only defendant in that action, moved to dismiss for lack of personal jurisdiction; on November 23, 2004, the Court granted Beton's motion. The Clerk of the Court was directed to dismiss the suit against Beton, and the Clerk entered a separate judgment dismissing the action and closing the case.
Plaintiffs had previously filed suit against Beton in the District of Connecticut, and the MDL Panel transferred the Connecticut action to this Court. See In re Ski Train Fire in Kaprun, Austria on November 11, 2000, 257 F. Supp. 2d 648 (S.D.N.Y. 2003). On March 19, 2003, this Court dismissed the Connecticut action for lack of personal jurisdiction, but granted leave for plaintiffs to refile their complaint in an appropriate jurisdiction. See id. at 651.
See Beton Ruling at *1 n. 1. The action was assigned civil docket number 04 Civ. 1402. Beton was also named as a defendant in the Class Complaint.
See id. at *1.
See id. at *5.
See Judgment dated November 29, 2004, Ex. A to 3/28/05 Letter of Daniel V. Gsovski, Counsel to Beton.
II. DISCUSSION
A. Rule 54(b)
Rule 54(b) states, in relevant part:
When more than one claim for relief is presented in an action . . . or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.
The Second Circuit has provided the following guidance in deciding whether to certify a final judgment under Rule 54(b):
Generally, a district court may properly make a finding that there is no just reason for delay only when there exists some danger or hardship or injustice through delay which would be alleviated by immediate appeal, for example, where a plaintiff might be prejudiced by a delay in recovering a monetary award, or where an expensive and duplicative trial could be avoided if, without delaying the prosecution of the surviving claims, a dismissed claim were reversed in time to be tried with the other claims. The district court's explanation as to why a disposition should be appealable immediately is entitled to substantial deference, and we thus review it for abuse of discretion. As a general matter, however, we have emphasized that, in light of the historic federal policy against piecemeal appeals, the court's power under Rule 54(b) to enter a final judgment before an entire case is concluded should be exercised sparingly.
Advanced Magnetics, Inc. v. Rayfront Partners, Inc., 106 F.3d 11, 16 (2d Cir. 1997). See also Ginnett v. Computer Task Group, Inc., 962 F.2d 1085, 1095 (2d Cir. 1992) ("The proper guiding star . . . is the interest of sound judicial administration.") (quotation marks omitted).
B. Siemens Austria
Principles of sound judicial administration do not favor the entry of a final judgment as to Siemens Austria under Rule 54(b). While the possibility of a duplicative trial exists, in the event that the dismissal for lack of personal jurisdiction in New York is reversed, plaintiffs' own trial strategy indicates that this possibility is too slight to overcome the Second Circuit's admonition that Rule 54(b) certification should be exercised sparingly. Rather than seek certification immediately following Siemens Ruling 1, the plaintiffs instead sought to convince the Court that jurisdiction over Siemens Austria existed in California. Indeed, as explained above, the plaintiffs moved to sever Siemens Austria from the action against the other Siemens defendants in the Southern District of New York and to transfer the severed action to the Northern District of California. Thus, it appears that the plaintiffs believe there is a stronger case for jurisdiction over Siemens Austria in California than in New York. If the plaintiffs in fact succeed on appeal in having the action against Siemens Austria transferred to California, a separate trial would be required, regardless of when the appeal on the jurisdiction question is heard. Given that the plaintiffs have actively pursued separate trials, their contention that they now face the hardship of duplicative litigation without 54(b) certification carries very little weight.
See Siemens Ruling 2 at 545.
It is important to note that if Siemens Ruling 2 were reversed, the action against Siemens Austria would ultimately go to trial in the Northern District of California. Consequently, there is no advantage to immediate appellate review of that decision.
Plaintiffs also contend that the dismissal of Siemens Austria from the case "enables Siemens AG to prevent plaintiffs from uncovering the full scope of the joint participation of both [companies] in the disaster." Because plaintiffs have not explained why they cannot obtain third-party discovery from Siemens Austria, they have failed to point to a sufficient hardship or injustice, in the absence of an immediate appeal, to warrant 54(b) certification.
4/8/05 Letter of Robert A. Swift, Counsel to Plaintiffs, to the Court, at 5.
C. AHP and Beton
Rule 54(b) does not have any bearing on the finality of the AHP and Beton Rulings. As the Second Circuit has observed, "[t]he Rule has no application to an order that finally disposes of the last remaining issue in the case and that is expressly intended by the court to close the case." With respect to Beton, a separate judgment was entered in the docket at the Court's direction dismissing the action and closing the case. In addition, the docket itself was marked "closed." The Beton Ruling thus became immediately appealable. With regard to AHP, while no separate judgment was entered, the Court made clear that it intended the AHP Ruling to be a final judgment when it directed the Clerk of the Court to indicate in the docket that the case was closed. Leaving aside the question of whether the plaintiffs' time to appeal has run, it is nonetheless clear that the AHP Ruling was an appealable final judgment, without any need for a Rule 54(b) certification.
Ellender v. Schweiker, 781 F.2d 314, 318 (2d Cir. 1986).
Cf. Vona v. County of Niagara, 119 F.3d 201, 206 (2d Cir. 1997) ("[W]e conclude that there was a final judgment in the present case, for the purposes of appealability under 28 U.S.C. § 1291, because the case was marked "closed," presumably on order of the district court.").
See Silvanch v. Celebrity Cruises, Inc., 333 F.3d 355, 364 (2d Cir. 2003).
Plaintiffs' contention that these decisions did not constitute final judgments because the actions against AHP and Beton were "consolidated" in the MDL is unavailing. Plaintiffs cite Hageman v. City Investing Co., in which the Second Circuit held that there is a strong presumption that a judgment in a consolidated action that does not dispose of all the consolidated claims is not appealable absent Rule 54(b) certification. This rule is inapplicable to the AHP and Beton Rulings because an MDL is not a consolidated action. The JPML assigned the actions arising from the Kaprun disaster to this Court solely "for coordinated or consolidated pretrial proceedings." Consequently, these actions retained their individual identity. Rule 54(b) certification is, therefore, unnecessary when a decision disposes of all claims in one of the actions within the MDL.
851 F.2d 69 (2d Cir. 1988).
See id. at 71.
See In re Ski Train, 175 F. Supp. 2d at 1380. See also 28 U.S.C. § 1407(a) ("When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings.").
See Brown v. United States, 976 F.2d 1104, 1107 (7th Cir. 1992) (holding that an individual action within an MDL retains its separate identity for the purposes of Rule 54(b)). It should be noted that the Class Complaint is irrelevant to the individual identity issue because the Second Circuit denied certification of the class.
See id.
III. CONCLUSION
For the foregoing reasons, the plaintiffs' motion is denied in its entirety.
SO ORDERED.