USAir East West NIC Award Resolution? Very soon!

[Turtle21]

You can't escape the fact that it's now officially in writing that USAPA was created to evade the Nicolau list which is NOT a legitimate union purpose..

Even if it is proven that USAPA's establishment was not for a legitimate union purpose, that is not the same thing as saying that USAPA cannot negotiate in good faith with the company to reach a legitimate union purpose. Ie. The 9th made it very clear that a resolution to your DFR claim was not the same thing as a resolution to the internal union dispute.

A DFR claim won't be addressed until after ratification of a JCBA. The courts have made it very clear they will not interfere with a union as it bargains with the company. The only way forward is a JCBA.

 

[TWA Dude]

Even if it is proven that USAPA's establishment was not for a legitimate union purpose, that is not the same thing as saying that USAPA cannot negotiate in good faith with the company to reach a legitimate union purpose.

Remember the movie "My Cousin Vinny"? There's a great scene in court where the judge tells Joe Pesci "That is a lucid, intelligent, well thought-out objection. Overruled!"
You cannot separate USAPA's proven malevolence towards the West pilots from future actions. The burden of proof of good faith is effectively so high it's insurmountable. Any non-Nic seniority list advantages the East at the West's expense. You can't escape that by applying your own selfish definition of legitimate union purpose.

A DFR claim won't be addressed until after ratification of a JCBA.

Right. The papers for an injunction halting implementation of that JCBA will be filed immediately thereafter. Given past history do you really feel so lucky that it won't be granted?

And in any case, Dug has made it clear we will never get to that point if he thinks an injunction is forthcoming. In light of Silver's ruling I don't know how you can conclude the company is willing to negotiate away from the Nicolau list.

 

[Deadalus]

Even if it is proven that USAPA's establishment was not for a legitimate union purpose, that is not the same thing as saying that USAPA cannot negotiate in good faith with the company to reach a legitimate union purpose. Ie. The 9th made it very clear that a resolution to your DFR claim was not the same thing as a resolution to the internal union dispute.

A DFR claim won't be addressed until after ratification of a JCBA. The courts have made it very clear they will not interfere with a union as it bargains with the company. The only way forward is a JCBA.

Well you and your joke of a union might be dumb enough to do something that will get you/it in trouble, but the company isn't. You go right ahead there Einstein and present that DOH list to Parker, we all need a good laugh.

http://youtu.be/RBMdsSwNZ9M

C'mon do it.

 

[becket]

You are a hoot..

The phrase "wide range of reasonableness" is the words of the SCOTUS as quoted by the 9th circuit, the court that threw our the findings of the jury that was hamstrung by Judge Wake who forced a biased decision. Not only did Wake get embarrassed for manipulating the jury, he was completely dismissed for using his courtroom to interfere in negotiations between the company and the union.

You pretend that "wide range of reasonableness" is an age old strategy of USAPA but the reality is it is a NEW gift of guidance from the SCOTUS (and confirmed by Silver) that USAPA and the company wouldn't even have accept for the $2M that Leospanker spent!

Shocking how little you understand your situation. I haven't the time or the inclination to tutor you on the details.....aside from just cutting to the chase...

USAPA is Fk'ed.

sweet dreams.

 

[Turtle21]

Shocking how little you understand your situation. I haven't the time or the inclination to tutor you on the details.....aside from just cutting to the chase...

USAPA is Fk'ed.

sweet dreams.

You are a hoot. I just took the time to tutor you on your misunderstanding/misrepresentation/misuse and MISATTRIBUTION... yes, MISATTRIBUTION of the term "wide range of reasonableness" and you walk off mumbling about being shocked. A hoot I say, a hoot.

 

[pave driver]

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

Case 2:10-cv-01570-ROS Document 196 Filed 10/18/12 Page 2 of 6

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.

Case 2:10-cv-01570-ROS Document 196 Filed 10/18/12 Page 3 of 6

3 MEM. ISO MOT. TO CORRECT JUDGMENT
NO. 2-10-CV-1570-PHX-ROS
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).

Case 2:10-cv-01570-ROS Document 196 Filed 10/18/12 Page 4 of 6

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.

Case 2:10-cv-01570-ROS Document 196 Filed 10/18/12 Page 5 of 6

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

Case 2:10-cv-01570-ROS Document 196 Filed 10/18/12 Page 6 of 6

 

[Bringupthebird]

190 numbers. You'll be a block holder on the e190. What does that pay? Sign me up! Dangerous Ground, repeat it to yourself, dangerous ground ~Silver

Would those Dangerous Grounds have some Monetary Damages associated with them? Would those damages be the responsibility of those USAPA members who were not on the America West Seniority as of September 20, 2005?

I like the way this wind-up for a fastball is looking.

 

[Turtle21]

MEMO In Support of Motion TO CORRECT JUDGMENT

...the case was maintained as a class action through the date of judgment, but the judgment does not describe the class bound by the judgment, as required...

The Court’s intent here was clear – to have its judgment bind the West Pilots class.

For the foregoing reasons, US Airways respectfully requests that the Court grant its
motion [to clarify the judgement is against the West Pilot Class, and not just the six named West pilots].

 

[Bringupthebird]

Yes, it's important to retain the West class so that any future damages are paid to the class rather than merely the named pilots.

 

[Turtle21]

Yes, it's important to retain the West class so that any future damages are paid to the class rather than merely the named pilots.

Funny, Silver forgot to use the term "damages" in her judgement.. And worse the company, in their memo requesting a correct to the judgement, forgot to ask Silver to add the term "damages", but instead used the term "binding".

How unfortunate no one is discussing "damages" and are moving forward without memorializing it.

 

[Jaffo]

hey turtle, it sounds as though you have it all figured out, so let those elected know so we can get this merger complete. As long as your correct we don't have anything to worry about going to court over so," just do it" get it done. it has only been seven plus years. if you see no danger and have a clear shot just take it.

 

[Bringupthebird]

Funny, Silver forgot to use the term "damages" in her judgement.. And worse the company, in their memo requesting a correct to the judgement, forgot to ask Silver to add the term "damages", but instead used the term "binding".

How unfortunate no one is discussing "damages" and are moving forward without memorializing it.

When the contract is ratified (with ink still wet) and Judge Wake has it in front of him, he will make sure you don't miss the part about damages. And it will be eye-watering to say the least.

Did Cleary tell you the east would get away with this without paying dearly? C'mon, did he?

 

[flygirlqt]

Delusions of grandeur

 

[The Drizzle]

Delusions of grandeur

I'll show you what's grand, my huge LOA93 paycheck!

 

[Turtle21]

When the contract is ratified...

I'm impressed... You are getting better.. After the contract is ratified, indeed.

 

[Flybywire44]

US Airways is posturing to have the West class listed as one group so that they will have to their "damages" assessed as a group and not as individuals.

A merger will bring substantial pay raises, work rules and defined contribution improvements... these improvements for the West pilot group may have to be evenly considered along with a new pilot seniority list.

Flame on.

 

[Turtle21]

US Airways is posturing to have the West class listed as one group so that they will have to their "damages" assessed as a group and not as individuals.

A merger will bring substantial pay raises, work rules and defined contribution improvements... these improvements for the West pilot group may have to be evenly considered along with a new pilot seniority list.

Flame on.

Doug expects $1Billion per year profits. The West fantasy of damages won't ever see the light of day under the onslaught of lawyers that Doug's petty cash fund will generate.

 

[Flybywire44]

I see East/West/Third-list and APA all benefiting tremendously from this merger.

Nic Award or not, there will be tremendous movement and no one should lose any career expectation with so many retirements.

 

[TWA Dude]

US Airways is posturing to have the West class listed as one group so that they will have to their "damages" assessed as a group and not as individuals.

You're not reading or understanding the filing correctly. There's no litigation pending where damages are even contemplated. The West was already certified as a class at the beginning of the declaratory judgment litigation. Silver's order apparently missed required language to de-certify the class at the conclusion and the company lawyers apparently care.

 

[Bringupthebird]

No, there isn't presently, but damages will be sought against USAPA without question. The certification of the class will exempt the west pilots from being assessed any damages to pay themselves. The east will shoulder the burden of justice on their own.