Filed: Jul. 30, 1999
Latest Update: Feb. 21, 2020
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS ELEVENTH CIRCUIT _ 07/30/99 THOMAS K. KAHN CLERK Nos. 98-4229, 98-5561 _ D. C. Docket No. 97-6766-Cv-WDF LAKER AIRWAYS, INC., Plaintiff-Appellant, versus BRITISH AIRWAYS, PLC, Defendant-Appellee. _ Appeals from the United States District Court for the Southern District of Florida _ (July 30, 1999) Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge. _ *Honorable Richard Mills,
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS ELEVENTH CIRCUIT _ 07/30/99 THOMAS K. KAHN CLERK Nos. 98-4229, 98-5561 _ D. C. Docket No. 97-6766-Cv-WDF LAKER AIRWAYS, INC., Plaintiff-Appellant, versus BRITISH AIRWAYS, PLC, Defendant-Appellee. _ Appeals from the United States District Court for the Southern District of Florida _ (July 30, 1999) Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge. _ *Honorable Richard Mills, ..
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_______________ 07/30/99
THOMAS K. KAHN
CLERK
Nos. 98-4229, 98-5561
_______________
D. C. Docket No. 97-6766-Cv-WDF
LAKER AIRWAYS, INC.,
Plaintiff-Appellant,
versus
BRITISH AIRWAYS, PLC,
Defendant-Appellee.
______________________________
Appeals from the United States District Court
for the Southern District of Florida
______________________________
(July 30, 1999)
Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge.
_________________
*Honorable Richard Mills, Senior U.S. District Judge for the Central District of
Illinois, sitting by designation.
BIRCH, Circuit Judge:
Laker Airways, Inc. (“Laker”) appeals the district court's order dismissing its
antitrust action against British Airways PLC (“BA”) pursuant to Federal Rule of
Civil Procedure 19 and the “act of state” doctrine. For the reasons that follow, we
affirm in part, reverse in part, and remand for further proceedings.
I. BACKGROUND
Laker sued BA under federal and Florida state antitrust laws alleging that
BA combined and conspired to restrain and monopolize scheduled passenger air
service between Miami, Florida and London, England. Laker named as co-
conspirators certain individuals and Airport Coordination Ltd. (“ACL”), a private
English corporation appointed by the government of the United Kingdom to
coordinate requests for landing and take-off times (“slots”) at British airports. As
relief, Laker sought treble damages and a permanent injunction requiring BA to (1)
cease violating antitrust laws, (2) transfer to Laker a single daily arrival and
departure slot at London's Gatwick Airport, and (3) enter into an interline ticketing
and baggage agreement with Laker.1
1
Although Laker sought a transfer of slots at the time this case was before the district
court, because the airline no longer operates in the transatlantic market, Laker now asserts that it
seeks only monetary relief. Because the specific form of relief does not change our analysis, we
need not further address this issue.
2
The district court dismissed Laker's complaint because Laker failed to join
ACL, an indispensable party within the meaning of Rule 19, and further concluded
that even had ACL been joined, the act of state doctrine barred Laker's suit. Laker
then filed a motion for relief from the judgment pursuant to Federal Rule of Civil
Procedure 60(b)(3), which the district court denied.
On appeal, Laker argues that the district court improperly applied Federal
Rule of Civil Procedure 19 because it did not consider whether in equity and good
conscience Laker's suit should be allowed to proceed in the absence of ACL.
Laker also contends that the district court should not have applied the act of state
doctrine to the actions of ACL because the government of the United Kingdom has
no role in slot allocation.
II. DISCUSSION
A. Slot Allocation Process
The transatlantic airline industry is a highly regulated business controlled, to
a great extent, through negotiations among national governments.2 The
governments of the United States and the United Kingdom have signed two
bilateral treaties which control many aspects of the transatlantic industry, including
2
Although in the past decade there has been an increased push to deregulate the
international air transportation business in order to increase competitiveness, national
governments remain highly involved.
3
factors such as the number of carriers, fares, capacity, and route designations.3 As
a result of these international agreements, a backdrop of national sovereignty
pervades discussions about transatlantic air transport issues.
While bilateral treaties control the number of entrants into the Miami-
London market and designate the U.S. airlines given access to London's Heathrow
Airport, forcing Laker to land at London's Gatwick Airport, the gravamen of
Laker's complaint is that BA conspired with ACL to prevent Laker from being
allocated desirable landing and take-off slots at Gatwick.4 We must first consider,
then, the United Kingdom's procedure for slot allocation. On January 18, 1993, the
Council of the European Communities issued a regulation setting forth the
common rules for the allocation of slots at Community airports. See Council
Regulation 95/93, 1993 O.J. (L 14). This regulation required Member States to
“ensure the appointment of a natural or legal person” to act as airport coordinator,
after consultations with the air carriers regularly using the airport facilities. Id., art.
3
Agreement Between the Government of the United States of America and the
Government of the United Kingdom of Great Britain Relating to Air Services Between Their
Respective Territories, Feb. 11, 1946. U.S.-U.K., 60 Stat. 1499 [Bermuda I], and 23 July 1977,
28 U.S.T. 5367, T.I.A.S. No. 8641 [Bermuda II].
4
Although Laker receive slots at Gatwick Airport for the summer 1997 season, it
contends that BA and ACL acted in tandem to prevent Laker from obtaining time slots that are
more commercially advantageous. Laker asserts that slots allowing for arrival in London in the
early morning hours and departures between 10:00am and 1:00pm local time are the most
commercially desirable because they allow for convenient connections to other flights and
enable passengers to reach Miami before dark.
4
4(1). The coordinator is then responsible for the allocation of slots. Id., art. 4(5).
The regulations further provide that the Member State “shall ensure that the
coordinator carries out his duties . . . in an independent manner.”
Id., art. 4(2).
The coordinator is to act in “a neutral, non-discriminatory and transparent way.”
Id., art. 4(3). Finally, the regulations provide that “[s]lots may be freely exchanged
between air carriers or transferred by an air carrier from one route, or type of
service, to another, by mutual agreement or as a result of a total or partial takeover
or unilaterally. Any such exchanges or transfers shall be transparent and subject to
confirmation of feasibility.”
Id., art. 8(4).
To implement the European Community regulation, the Parliament of the
United Kingdom enacted The Airports Slot Allocation Regulations 1993, S.I.
1993, No. 1067 (”ASAR”). This legislation provides that the appointment of any
person as a coordinator must be approved by the Secretary of State for Transport,
the Minister designated for the purpose of monitoring, among other things, the
allocation of slots. The Secretary may withdraw approval of a coordinator if he
has not performed in an independent manner. ASAR, ¶ 4(3). ACL is the
designated slot allocation coordinator for London's Gatwick Airport. ACL is
composed of a representative of all United Kingdom airlines who wish to
participate. Each member of ACL may designate a representative to the Board of
5
ACL. Each representative, or director, has an equal, single vote in the actions of
the organization. Laker alleges that by virtue of its size and importance in the
airline business, BA has been able to control the decisions of ACL.
B. Rule 19 Dismissal – Slot Allocation
We review dismissal for failure to join an indispensable party for abuse of
discretion. Mann v. City of Albany, 883 F.2d 999, 1003 (11th Cir. 1989). Federal
Rule of Civil Procedure 195 sets forth a two-part analysis. First, the court must
determine whether the person in question should be joined. If the person should be
5
Rule 19 provides:
(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose
joinder will not deprive the court of jurisdiction over the subject matter of the action shall be
joined as a party in the action if (1) in the person's absence complete relief cannot be accorded
among those already parties, or (2) the person claims an interest relating to the subject of the
action and is so situated that the disposition of the action in the person's absence may (i) as a
practical matter impair or impede the person's ability to protect that interest or (ii) leave any of
the persons already parties subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of the claimed interest. If the person has not been
so joined, the court shall order that the person be made a party. If the person
should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a
proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that
party would render the venue of the action improper, that party shall be dismissed from the
action.
(b) Determination by Court Whenever Joinder not Feasible. If a person as described in
subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity
and good conscience the action should proceed among the parties before it, or should be
dismissed, the absent person being thus regarded as indispensable. The factors to be considered
by the court include: first, to what extent a judgment rendered in the person's absence might be
prejudicial to the person or those already parties; second, the extent to which, by protective
provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be
lessened or avoided; third, whether a judgment rendered in the person's absence will be
adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed
for nonjoinder.
6
joined, but for some reason cannot be, the court must analyze the factors outlined
in Rule 19(b) to determine whether “in equity and good conscience the action
should proceed among the parties before it, or should be dismissed, the absent
person thus regarded as indispensable.” Fed. R. Civ. P. 19(b). See also Wymbs v.
Republican State Executive Comm., 719 F.2d 1072, 1079 (11th Cir. 1983)
(applying Rule 19(a) & (b)).
A. Necessary Party
A party is considered “necessary” to the action if the court determines either
that complete relief cannot be granted with the present parties or the absent party
has an interest in the disposition of the current proceedings. Id. Laker argues that
ACL need not be joined in the suit because (1) it seeks now only monetary
damages, which BA can provide without ACL and (2) even if Laker were still
pursuing slots, BA could transfer a slot to Laker without the involvement of ACL.
Laker is correct in arguing that courts have held that joint tortfeasors need not all
be joined in one lawsuit. See Temple v. Synthes Corp.,
498 U.S. 5, 7,
111 S. Ct.
315, 316,
112 L. Ed. 2d 263 (1990) (“It has long been the rule that it is not
necessary for all joint tortfeasors to be named as defendants in a single lawsuit. . . .
The Advisory Committee Notes to Rule 19(a) explicitly state that a tortfeasor with
7
the usual 331 F. Supp.
92, 105-06 (C.D. Cal. 1971) (while under Rule 19 there are some cases which state
that antitrust co-conspirators need not be joined, here, joint tortfeasor still had
interests covered by Rule 19(a) and therefore had to be joined), aff'd,
461 F.2d
1261 (9th Cir. 1972). In order to prove its antitrust claims, Laker would be
required to show that ACL acted in other “than an independent manner.” Such a
ruling would surely implicate the interests of ACL because the United Kingdom's
enabling legislation, ASAR, requires that the Secretary of State for Transport
withdraw its approval of an appointed coordinator if its behavior is not neutral.
ASAR, ¶ 4(3). Likewise, in Boles v. Greeneville Housing Authority,
468 F.2d 476
(6th Cir. 1972), the Sixth Circuit determined that the Department of Housing and
Urban Development (HUD) was an “indispensable party” when plaintiffs
8
“indirectly attacked” HUD's approval of a development plan. Id. at 479.6 See also
Doty v. St. Mary Parish Land Co.,
598 F.2d 885, 887 (5th Cir. 1979) (“A district
court may refuse to proceed with the action if prejudice would result to either the
absent party or to parties already joined.”).
Furthermore, we held in Haas v. Jefferson National Bank, 442 F.2d 394 (5th
Cir. 1971), that a joint tortfeasor will be considered a necessary party when the
absent party “emerges as an active participant” in the allegations made in the
complaint that are “critical to the disposition of the important issues in the
litigation.”
Id. at 398. Here, Laker is alleging that BA conspired with ACL to
favor BA in the slot allocation process. According to Laker's complaint, ACL
would certainly be considered an active participant in the allegations. ACL is the
only entity that can allocate slots at Gatwick Airport. Without ACL, BA would not
be able to manipulate, as Laker suggests, the slot allocation process. ACL, then,
has significant interest in the resolution of the allegations surrounding the slot
allocation process because the resolution will inevitably comment upon the
6
We applied the Boles analysis with approval in Ranger Insurance Co. v. United Housing,
488 F.2d 682, 683 (5th Cir. 1974). In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir.
1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to October 1, 1981.
9
neutrality and independence of the process. We determine, therefore, that ACL is a
necessary party and should be joined, if feasible.7
2. Analysis Under Rule 19(b)
If a necessary party cannot be joined, the court must then proceed to Rule
19(b) and consider whether in “equity and good conscience,” the suit should
proceed without the necessary party. The court balances four factors in this
analysis: (1) how prejudicial a judgment would be to the nonjoined and joined
parties, (2) whether the prejudice could be lessened depending on the relief
fashioned, (3) whether the judgment without joinder would be adequate, and (4)
whether the plaintiff would have any alternative remedies were the case dismissed
for nonjoinder. See Wymbs, 719 F.2d at 1079.
The primary factor weighing in favor of dismissal of this action is the
prejudice that would accrue to the interest of ACL, the nonjoined party, if the case
were to proceed. In a broad sense, the United Kingdom has the ultimate
responsibility for ensuring that the designated airport coordinator acts in a neutral
and independent manner. As a result, Laker's suit is, in essence, a challenge to the
7
The record is devoid of any explanation for why Laker declined to name ACL as a
defendant, except for a brief reference during oral argument to “service of process” problems.
Nonetheless, we assume it is not feasible to join ACL and proceed with an analysis of Rule 19(b)
to determine whether the suit should proceed in the absence of ACL.
10
United Kingdom's implementation of EC Regulation 95/93 and ACL's slot
allocation process under that Regulation and ASAR.
Because slots are a limited resource, see Eastern Airlines v. FAA, 772 F.2d
1508, 1510 (11th Cir. 1985) (“At high density airports, slots are scarce and, hence,
quite valuable.”), the process of allocating slots has been the source of many
disputes among air carriers and their representative countries.8 EC Regulation
95/93 itself anticipates the possibility of international difficulties caused by the slot
allocation process and provides for “appropriate action” to be taken against a state
that violates the non-discrimination provisions of the regulation.
Id., art. 12. See
also Air Canada v. United States Dep't of Transportation,
843 F.2d 1483, 1485-86
(D.C. Cir. 1988) (discussing “long-running controversy between Canada and the
United States over landing rights at LaGuardia Airport”). The government of the
United Kingdom maintains control over the number of slots that can be issued at
each airport. See R1-5-4 (“U.K. Air Traffic Control has established the number of
landings and take-offs (called 11 F.3d 1341, 1348
(6th Cir. 1993) (where administrative agency was authorized to address plaintiffs'
complaint, plaintiffs had an adequate remedy under fourth factor of Rule 19(b)).10
We therefore determine that Laker has available other viable avenues of redress.
In sum, we find that each of the four factors outlined in Rule 19(b) argues in
favor of dismissal of the portion of Laker's complaint concerning the slot allocation
process at London's Gatwick Airport. As a result, we hold that the district court
did not abuse its discretion in dismissing that portion of Laker's suit.11
C. Rule 19 Dismissal – Interline Agreements
9
Pursuant to the International Air Transportation Fair Competitive Practices Act of 1974,
codified at 49 U.S.C. § 41310, the United States has deemed that foreign governments are held
responsible when slots are not distributed properly at airports within their borders
10
In light of the difficult history of air transport relations in the international community,
the fact that the United States has adopted administrative procedures to address alleged partiality
in the slot allocation process further emphasizes the interest of ACL, and indirectly, the United
Kingdom.
11
Since we affirm the district court's conclusion that under Federal Rule of Civil
Procedure 19 ACL is a necessary party that cannot be joined for reasons other than the act of
state doctrine, thereby requiring dismissal of the suit, we need not address the district court's
application of the act of state doctrine.
13
To the extent, however, that Laker complains that BA has improperly
refused to enter into interline ticketing and baggage agreements with Laker, the
interests of ACL are not implicated. Interline agreements allow passengers to have
their baggage automatically transferred between airlines on one baggage check
ticket. Laker alleges that interline agreements with BA are necessary in order to
compete effectively in the Miami-London market. An interline agreement, in
contrast to slot allocation, is simply a contract between airline carriers and involves
no other authorizing parties. As a result, no interests of ACL are implicated by
interline agreements.
In addition, we conclude that ACL cannot be considered a necessary party to
Laker's interline agreements claim under the “complete relief” prong of Rule 19(a)
because it is solely the airlines themselves that determine whether to enter into
these agreements. As a result, the district court abused its discretion in dismissing
the interline agreements portion of Laker's complaint on Rule 19 grounds. See Jota
v. Texaco, Inc., 157 F.3d 153, 161-62 (2d Cir. 1998) (in suit by residents of
Ecuador against Texaco for environmental and personal injuries allegedly incurred
as a result of Texaco's oil fields in Ecuador, court affirmed Rule 19 dismissal of
claims where complete relief could not be accorded by Texaco, but allowed claims
not related to the actions of the government of Ecuador); Peregrine Myanmar Ltd
14
v. Segal, 89 F.3d 41, 48-49 (2d Cir. 1996) (“complete relief” can be accorded
where nothing in the district court's statements or final judgment requires the
Myanmar Ministry of Fisheries to do anything or change any of its positions). We
imply no view about whether the interline agreements portion of the complaint
may be subject to dismissal on grounds other than Rule 19.
D. Laker's Rule 60(b)(3) Motion
Following the district court's dismissal of Laker's suit, pursuant to Rule 19
and the act of state doctrine, the district court also rejected Laker's Rule 60(b)(3)
motion for relief from judgment. Laker argued that the district court should
reevaluate its act of state decision in light of a Diplomatic Note entered by the
Government of the United Kingdom in another case concerning slot allocation.
Laker contends the Note provides evidence that ACL is not acting on behalf of the
government of the United Kingdom when it allocates slots. Since we hold, without
ruling upon the act of state doctrine, that the district court was correct in dismissing
this case under Rule 19(b), Laker's appeal concerning the denial of its Rule
60(b)(3) motion is moot.
III. CONCLUSION
We affirm the judgment of the district court dismissing Laker's suit against BA
concerning the slot allocation process at Gatwick Airport because ACL is an
15
indispensable party under Federal Rule of Civil Procedure 19. We reverse the district
court's dismissal of Laker's claim concerning BA's refusal to enter into certain
interline agreements with Laker because ACL is not a necessary party to that claim
under Rule 19(a) and remand that claim to the district court for further proceedings
in light of this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
16
