MEM. ISO MOT. TO CORRECT JUDGMENT
NO. 2-10-CV-1570-PHX-ROS
Attorneys for Plaintiff
US Airways, Inc.
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
US Airways, Inc., a Delaware
Corporation,
Plaintiff,
v.
Don Addington, an individual; John
Bostic, an individual; Mark Burman, an
individual; Afshin Iranpour, an
individual; Roger Velez, an individual;
and Steve Wargocki, an individual, on
behalf of themselves and all other
similarly-situated individuals,
and
US Airline Pilots Association, an
unincorporated association,
Defendants.
Case No. 2-10-cv-1570-PHX-ROS
MEMORANDUM OF LAW IN
SUPPORT OF PLAINTIFF US
AIRWAYS, INC.’S MOTION TO
CORRECT JUDGMENT PURSUANT
TO FEDERAL RULE OF CIVIL
PROCEDURE 60(a)
Case 2:10-cv-01570-ROS Document 196 Filed 10/18/12 Page 1 of 6
MEM. ISO MOT. TO CORRECT JUDGMENT
NO. 2-10-CV-1570-PHX-ROS
INTRODUCTION
Pursuant to Rule 60(a) of the Federal Rules of Civil Procedure, plaintiff US
Airways, Inc. (“US Airways”) moves the Court to correct the judgment in the abovereferenced
class action case. Correction of the judgment is necessary in order to conform
to the technical requirements of Rule 23(c)(3) of the Federal Rules of Civil Procedure,
which governs judgments in class actions.
On October 11, 2012, judgment was entered in this case. (See Doc. No. 194.)
Although the Court had previously certified a class in this case pursuant to Federal Rule
of Civil Procedure 23(b)(1) (see Doc. No. 125), and the case was maintained as a class
action through the date of judgment, the judgment does not describe the class bound by
the judgment, as required by Rule 23(c)(3).
ARGUMENT
I. THE JUDGMENT IS NOT IN CONFORMANCE WITH THE
REQUIREMENTS OF RULE 23(c)(3)
Federal Rule of Civil Procedure 23(c)(3) provides that the judgment in a class
action must, “for any class certified under Rule 23(b)(1) . . . , include and describe those
whom the court finds to be class members.” Fed. R. Civ. P. 23(c)(3)(A); see also
Harmsen v. Smith, 693 F.2d 932, 942 (9th Cir. 1982) (remanding to district court to enter
judgment in accordance with Rule 23(c)(3) for a class certified under Rule 23(b)(3)). The
Rules Advisory Committee Notes for Rule 23(c)(3) explain that “[t]he judgment in a class
action maintained as such to the end will embrace the class,” and the judgment in a
Rule 23(b)(1) class action should “‘describe[]’ the members of the class.” Adv. Comm.
Note, 39 F.R.D. 69, 105 (Feb. 28, 1966) (quoting Fed. R. Civ. P. 23(c)(3)(A)).
Here, the judgment does not comply with Rule 23(c)(3), because it does not
“include and describe those whom the court finds to be class members.” Fed. R. Civ.
P. 23(c)(3)(A). Indeed, although the Court certified a class pursuant to Rule 23(b)(1)(A)
(see Doc. No. 125), and maintained this case as a class action through the date of
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2 MEM. ISO MOT. TO CORRECT JUDGMENT
NO. 2-10-CV-1570-PHX-ROS
judgment, there is nothing on the face of the judgment indicating that this case is a class
action. (See Doc. No. 194.)
The exact requirements for a judgment to conform with Rule 23(c)(3) are not
entirely clear.1 At a minimum, the judgment in this case should describe the class by the
class definition in the previously filed class notice. See Fed. R. Civ. P. 23(c)(3) &
23(c)(3)(A); Adv. Comm. Note, 39 F.R.D. at 105. That definition is: “All pilots
employed by US Airways in September 2008 who were on the America West seniority list
on September 20, 2005.” (See Doc. Nos. 141-1, 165.) But given the ambiguous language
and the paucity of case law addressing the requirements of Rule 23(c)(3)(A), the Court
may also wish to include the list of class members who were sent the class notice. The
Court ordered US Airways to distribute a revised class notice, a process that was
completed on January 31, 2012. (See Doc. Nos. 141, 145, and 165.) If the Court wishes
to append the list of class members to its judgment, US Airways can provide the names of
the individuals who were mailed the class notice.
The judgment in this case should be corrected to conform to Rule 23(c)(3) in order
to ensure that it has the binding effect on the class that the Court intended. See, e.g.,
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1789 (3d ed.
2010) (“The obvious implication of Rule 23(c)(3) is that anyone properly listed in the
judgment should be bound by it absent some special reason for not doing so.”) (emphasis
added).
II. RULE 60(a) PERMITS CORRECTION OF THE JUDGMENT
Judgments that do not conform to the technical requirements of Rule 23(c)(3) can
be corrected pursuant to Federal Rule of Civil Procedure 60(a). Rule 60(a) provides that
“[t]he court may correct a clerical mistake or a mistake arising from oversight or omission
1 Rule 23(c)(3)(A) states that a judgment in a class action must “for any class
certified under Rule 23(b)(1) or (b)(2), include and describe those whom the court finds to
be class members.” The case law has not adequately clarified what it means to “include
and describe,” although the Advisory Committee Notes indicate that the judgment must
“‘describe[]’ the members of the class, but need not specify the individual members.”
Adv. Comm. Note, 39 F.R.D at 105.
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3 MEM. ISO MOT. TO CORRECT JUDGMENT
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whenever one is found in a judgment, order, or other part of the record.” Fed. R. Civ.
P. 60(a). Rule 60(a) further provides that “[t]he court may do so on motion or on its own,
with or without notice.” Id. Relief under Rule 60(a) is appropriate when the requested
corrections are necessary to implement the result intended by the Court. Kokomo Tube
Co. v. Dayton Equip. Servs. Co., 123 F.3d 616, 623 (7th Cir. 1997).
Where, as here, a judgment in a case that has been maintained as a class action
does not conform to the requirements of Rule 23(c)(3), Rule 60(a) can be used to correct
this clerical oversight. Vaughter v. E. Air Lines, Inc., 817 F.2d 685, 689 (11th Cir. 1987)
(“[W]here the parties have operated under the understanding that a suit is being
maintained as a class action, the failure of the district court to designate in the judgment
the class thereby bound may be deemed an oversight or omission subject to correction
pursuant to Rule 60(a)”); Newman v. Prior, 518 F.2d 97, 101 (4th Cir. 1975) (remanding
case to district court to amend judgment pursuant to Rule 60(a) where judgment did not
conform to Rule 23(c)(3)), overruled on other grounds by Newcome v. Esrey,
862 F.2d 1099 (4th Cir. 1988); see also Young v. Katz, 447 F.2d 431, 435 (5th Cir. 1971)
(describing judgment’s nonconformance with Rule 23(c)(3) as an “inadvertence,” and
remanding case “for the correction of the[se] omissions”); Wright & Miller, supra, § 1789
(noting that the failure to comply with Rule 23(c)(3) at the time the judgment is entered
“is not a fatal error . . . and the case can be remanded to remedy the defect”).
The Court’s intent here was clear – to have its judgment bind the West Pilots class.
(See, e.g., Doc. No. 193 at 1 n.1 (“The West Pilot Defendants are Don Addington, John
Bostic, Mark Burman, Afshin Iranpour, Roger Velez, and Steve Wargocki, on behalf of
themselves and the certified West Pilot Class.”).) Accordingly, it is appropriate for the
judgment to be corrected pursuant to Rule 60(a) to conform to the technical requirements
for class-action judgments.
CONCLUSION
For the foregoing reasons, US Airways respectfully requests that the Court grant its
motion under Rule 60(a).
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4 MEM. ISO MOT. TO CORRECT JUDGMENT
NO. 2-10-CV-1570-PHX-ROS
Dated: October 18, 2012 O’Melveny & Myers LLP
By: /s/ Robert A. Siegel_________
Robert A. Siegel (pro hac vice)
Chris A. Hollinger (pro hac vice)
400 South Hope Street
Los Angeles, CA 90071-2899
US Airways, Inc.
Karen Gillen, State Bar No. 018008
111 West Rio Salado Parkway
Tempe, AZ 85281
Attorneys for Plaintiff US Airways, Inc.
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5 MEM. ISO MOT. TO CORRECT JUDGMENT
NO. 2-10-CV-1570-PHX-ROS
CERTIFICATE OF SERVICE
I hereby certify that on October 18, 2012, the foregoing document was
electronically transmitted to the United States District Court Clerk’s Office using the
CM/ECF System for filing and transmittal.
/s/ Robert A. Siegel________
Robert A. Siegel
OMM_US:71011753.6
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