Ex Parte State Mutual Ins. Co.

"No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to electPage 210which he will prosecute, if commenced simultaneously, and the pendency of the former is agood defenseto the latter if commenced at different times."

"While undoubtedly certification of a . . . Rule 23(b)(2) class may preventsubsequentactions filedafterdate of certification, it cannot and should not defeat the rights of persons such as the movants who have filed their actionprior to themotion to certifythe class and the order certifying the class. To hold otherwise would allow the class representatives and defendant to usurp or negate actions filed prior to class certification thereby defeating movants' constitutional rights."

"This matter is before the court on a motion by several individuals seeking limited intervention and an order excluding them from a Rule 23(b)(2) class previously certified.

"In brief, the instant class action was filed August 3, 1995, and on February 15, 1996, a Marengo County Circuit Court case with virtually identical claims against [State Mutual] was transferred and consolidated herewith. On January [24], 1996, movants filed a consolidated but individual complaint in the [Hale] County Circuit Court against [State Mutual] and asserted claims similar to those presented here. On February [21], 1996, this court certified a Rule 23(b)(2) mandatory non-opt-out class in this action which, by definition, included movants.

"Movants argue they should be excluded from the class because their [Hale] County action was pendingbefore class certification occurred in thisaction.They cite no case law to support their position and maintain this is an issue of first impression.

"The [other] parties to this action disagree and insist movants are locked into the certified class and invited the court to review . . .Ex parteFirst National Bank of Jasper[,675 So.2d 348(Ala. 1995)]. That case is inapplicable.

"In [First National Bank of Jasper,] supra, the same lawyer filed identical, competing, class action lawsuits in three separate counties on the same day against the same defendants. A bank defendant argued that under those circumstances it should not be required to defend against six simultaneous class actions, and [that]Page 211all the actions should be abated except the one filed first.

"The Court denied the relief requested by the bank on the ground that class certification had not yet occurred in [any] of the cases. . . .

" 'Once a certification occurs in any court, that certification abates all other pending actions andthe named plaintiffsin [the] other action[s] would then become members of the certified class in the court in which the certification has occurred.' (Emphasis added [by Judge Hardaway]).

"The above quoted language clearly speaks to competing class actions; otherwise, the phrase, 'named plaintiffs,' is meaningless. In addition, the facts before that court involved six competing class actions. The facts here do not involve competing class actions.

"Nevertheless, [First National Bank of Jasper,] supra, made clear that prior to certification no basis for abatement of similar actions exists. Movant hadindividualcases pending in a sister circuitat the time certification was granted inthis case.This court sees no basis for creating a thicket of due process and constitutional issues by subsuming those individual cases through a subsequent certification by this court.

"The motion for limited intervention is granted and movants are excluded from the certified class."

"[W]here two actions are pending against the same defendantby different named plaintiffs, regardless of whether the action sought to be abated contains class allegations, 'until a certification occur[s]somewhere, it [is] premature to consider the application of §6-5-440.' The logic of this conclusion is, of course, that until a class is certified that would include the plaintiffs who are pursuingindividualclaims in a separate action, the plaintiffs bringing their claimsindividuallyare not plaintiffs in the class action, any more than the named plaintiffs in the potential class action are parties to the other action. Therefore, until a certification occurs, the plaintiffs suing individually are not parties in the potential class action and are not within the purview of §6-5-440.

"Judge Hardaway correctly concluded that it is thecertificationthat triggers the application of §6-5-440, not the mere filing of the action. In other words, actions commencedafterthe certification are subject to §6-5-440, but those filedbeforethe certification are not. It is to an action filedafterthecertificationof a pending class action that the §6-5-440phrase 'the pendency of the former' refers. At the time of certification, the pendency of the class action becomes 'a good defense to the latter,' that is, to any action commencedafterthe certification."

"[A] plaintiff could file a purported class action in Jefferson County, Alabama, and spend 12 months preparing the case for a class action hearing, but prior to the conduct of that hearing, another plaintiff could file an action in another Alabama county copying the exact same Jefferson County complaint, but substituting in a new named plaintiff and getting a different Alabama Circuit Court to certify the newly filed action as a class action. Under this Court's [April 4, 1997,] holding in the instant case, the certification in the second filed action would abate the previously filed action and negate 12 months' work that had been done toward preparing for the class certification hearing."

"The abatement statute [§6-5-440]is controlling, but it must be interpreted in the light of the class action procedures outlined in Rule 23 . . . .

"Once a certification occurs in any court, thatcertification abates all other pending actionsand the named plaintiffs in the other actions would then become members of the certified class in the court in which the certification has occurred."

"The doctrine is thus stated in 1 Bac. Ab. 28, M.: 'The law abhors multiplicity of actions; and, therefore, whenever it appears on record, that the plaintiff has sued out two writs against the same defendant, for the same thing, the second writ shall abate; for if it were allowed that a man should be twice arrested, or twice attached by his goods for the same thing, by the same reason he might suffer in infinitum; and it is not necessary that both should be pending at the time of the defendant's pleading in abatement; for if there was a writ in being at the time of suing out the second, it is plain the second was vexatious and ill ab initio.' "

"(i) all players who have been, are now, or will be under contract to play professional football for an NFL club at any time from August 31, 1987 to the date of final approval of the settlement . . . and the determination of any appeal therefrom, and (ii) all college and other football players who, as of August 31, 1987, through the date of final approval of the settlement . . . and the determination of any appeals therefrom, have been, are now, or will be eligible to play football as a rookie for an NFL team."

"All members of the plaintiff class in the present action are permanently enjoined from further pursuit or prosecution of the above listed actions,or any other actions now pendingthat purport to challenge the same player practices at issue here, or challenge the Stipulation and Settlement Agreement in this action. In addition, all members of the plaintiff class arepermanentlyenjoined from initiating any such actions in thefuture.The court shall also retain jurisdiction over this action to effectuate and enforce the terms of the injunctions and Stipulation and Settlement Agreement . . . ."

"The court further concludes that it has jurisdiction, pursuant to the All-Writs Act,28 U.S.C. § 1651,^fn*to enjoin the various lawsuits subject to defendants' motions.See, e.g., KerotestMfg. Co. v. C-0-Two Fire Equip. Co.,342 U.S. 180,183-84,72 S.Ct. 219,221,96 L.Ed. 200(1952) (federal courts have 'an ample degree of discretion' in determining how best to administer 'multiple litigation in the federal judicial system', and such discretion includes the power to stay pending federal court actions); . . .Robertson v. National Basketball Ass'n,413 F. Supp. 88,90(S.D.N.Y. 1976) (enjoining separate federal lawsuit filed by an individual class member in order to protect 'the jurisdiction of this court to determine this action, either by trial or by court-approved settlement'). Under the Act, thecourt may also enjoin actions that were filed, orallegedly filed, before the present action. SeeKerotest,342 U.S. at 183,72 S.Ct. at 221(federal courts are not bound by rigid doctrines, such as the 'first to file' rule because '[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation, does not counsel rigid mechanical solution of such problems'). The court concludes that it has jurisdiction to enjoin those lawsuits pursuant to the All-Writs Act.

"In fact, there is ample authority for the proposition that the court has jurisdiction to enjoin other actions even if the parties were not members of theWhiteclass.See e.g., United Statesv. New York Tel. Co.,434 U.S. 159,174,98 S.Ct. 364,373,54 L.Ed.2d 376(1977) ('the power conferred by the [All-Writs] Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order');In reBaldwin-United Corp.,770 F.2d 328,338(2d Cir. 1985) ('[a]n important feature of the All-Writs Act is its grant of authority to enjoin and bind nonparties to an action when needed to preserve the court's ability to reach and enforce its decision in a case over which it has proper jurisdiction') (citations omitted). Accordingly, the court rejects any claim that the motions to enjoin must be denied because it lacks personal jurisdiction over any party.

"[T]he court enjoins the various other pending actions, relying on the following factors:

"(1) the long history of related litigation in this court;

"(2) to properly effectuate the terms of the proposed settlement, which the court finds to be fair, reasonable and adequate to class members, and to which class members received adequate notice and opportunity to object;

"(4) to properly protect the court's jurisdiction over theWhiteclass action, and to enforce and effectuate its judgment;

"(5) to eliminate the risk of inconsistent or varying adjudications which may subjectPage 219defendants to incompatible standards of conduct;

"(6) to prevent the prosecution of other actions that would frustrate the court's efforts to craft a class action settlement in the present case;

"(7) to eliminate the risk of inconsistent or varying judgment[s] that may affect the rights of class members and impair their ability to protect their interests; and

"(8) in light of the court's determination that theWhiteclass was properly certified, to utilize the class action mechanism, which is ideally suited for resolving the claims at issue, to settle this massive litigation."

"Nevertheless, [FNB of Jasper I,] supra, made clear that prior to certificationno basis forabatement of similar actions exist[s]. Movant hadindividualcases pending in a sister circuitat thetime certification was granted in this case.This court sees no basis for creating a thicket of due process and constitutional issues by subsuming those individual cases through a subsequent certification by this court."

"The objectors also argue that the trial court's certification of the class without an opt-out provision violates their right to trial by jury under § 11 of the Alabama Constitution, i.e., that the objectors were deprived of their day in court because the settlement agreement did not provide them a means of opting out of the class in order to pursue their own lawsuits.

"In support of their argument, the objectors citeMoore v. Mobile Infirmary Ass'n,592 So.2d 156(Ala. 1991), andHenderson v. Alabama Power Co.,627 So.2d 878(Ala. 1993). InMooreandHenderson, this Court struck down legislative limits or 'caps' on compensatory and punitive damages, respectively, as violating the right to trial by jury. The objectors contend that in this case the violation of the right to trial by jury is more egregious than those violations inMooreandHenderson, where mere limits were placed on the amount a jury could award, in comparison with this case where the right to a jury trial has been eliminated.

"We disagree with the objectors' contention that a class action that does not have an opt-out provision is a violation of the right to trial by jury. As stated earlier, a class action is a device created solely for the purposes of litigation. The class action was created to enable a lawsuit to proceed where the number of those interested was too great to permit joinder.Phillips Petroleum Co. v. Shutts,472 U.S. 797,808,105 S.Ct. 2965,2972-73,86 L.Ed.2d 628(1985). The modern class action follows the same goal, allowing an action when there are common claims and too many parties for proper joinder.

"Only those chosen as class representatives will actually be in the courtroom; however, all class members are 'having their day in court' through the representative[s]. Those class members who are absent from the courtroom are bound by the judgment, so long as the absent members wereadequately represented by the classrepresentatives, represented by a qualifiedattorney, provided with adequate notice of theproposed settlement, and given an opportunity toobject to the settlement. The trial judge must thenapprove the settlement after analyzing the factsand the applicable law and considering anyobjections to the settlement. So long as theseprocedures are followed, courts hold that theabsent class members have had their day in court.Therefore, we hold that a class action without an opt-out provision does not violate the Alabama Constitution."