Laker Airways v. British Airways

LAKER AIRWAYS, INC., Plaintiff-Appellant,

v.

BRITISH AIRWAYS, PLC, Defendant-Appellee.

Nos. 98-4229, 98-5561.

United States Court of Appeals,

Eleventh Circuit.

July 30, 1999.

Appeals from the United States District Court for the Southern District of Florida. (No. 97-6766-CV-WDF),
Wilkie D. Ferguson, Jr., Judge.

Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge.

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

*
Honorable Richard Mills, Senior U.S. District Judge for the Central District of Illinois, sitting by
designation.
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
 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 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

relief. Because the specific form of relief does not change our analysis, we need not further address this
issue.
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
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].
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. 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 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.

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.
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 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)).

1. 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

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.
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 the usual 'joint-and-several' liability is merely a permissive party to an action against

another with like liability.") (citations and quotations omitted).

The interests of ACL under the circumstances presented here, however, are more significant than

those of a routine joint tortfeasor. Although the relief Laker presently seeks may not directly implicate ACL

because there would be no order directed at ACL, Laker's antitrust claims necessarily require that a court

evaluate ACL's conduct in relation to Laker, thereby substantially implicating ACL's interests. See

Occidental Petroleum Corp. v. Buttes Gas & Oil Co., 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 "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.").

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.
 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 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 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 Air Lines v. FAA, 772 F.2d 1508, 1510 (11th

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.
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 'slots') that will be permitted in any hour at

Gatwick."). ACL, as the United Kingdom's designated slot coordinator at Gatwick Airport, has the

responsibility of ensuring the slots are allocated in accordance with Regulation 95/93 and ASAR in an

independent and neutral manner. If ACL does not fulfill this responsibility, the Secretary of State for

Transport may withdraw its approval of ACL as airport coordinator. ACL, then, would be prejudiced by not

being able to participate in a proceeding which would, at the very least, comment upon ACL's allocation of

slots.

In considering the second and third factors of Rule 19(b), Laker argues that relief could be fashioned

so as not to prejudice ACL because Laker now exclusively seeks money damages from BA. As previously

discussed, we acknowledge that Laker no longer asks the court to order ACL directly to undertake or cease

specific conduct. Nevertheless, in order to establish an antitrust claim against BA, Laker necessarily would

have to demonstrate that ACL failed to follow EC and UK legislative directives. The adjusted relief Laker

seeks does not sufficiently diminish or eliminate the prejudice that would inure to ACL as a nonjoined party

if a court were to determine that ACL acted improperly.

Finally, we note that our consideration of the fourth factor applicable to our analysis of Rule

19(b)—whether the plaintiff would have an alternative remedy were the case dismissed for nonjoinder—also

8
In the United States, the U.S. Department of Transportation is designated to perform the task of
assigning slots at U.S. airports. 14 C.F.R. §§ 93.121-93.133, 93.211-93.251 (1996).
suggests that dismissal is appropriate. As observed by BA, Laker may still: (1) raise a complaint with the

United Kingdom's Secretary of State for Transport that ACL is not allocating slots in an independent and

neutral manner or (2) petition the United States Department of Transportation and the Federal Aviation

Administration to restrict slots provided to the United Kingdom because of the alleged unfair slot allocation

at Gatwick Airport.9 See Keweenaw Bay Indian Community v. Michigan, 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

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.

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.
 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. 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 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.