GREGORY C. STRAESSLE
AIR LINE PILOTS’ ASSOCIATION,
April 18, 1997
Record No. 961529
GREGORY C. STRAESSLE
AIR LINE PILOTS’ ASSOCIATION,
Robert W. Wooldridge, Jr., Judge
Present: All the Justices
OPINION BY JUSTICE LEROY R. HASSELL, SR.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
In this appeal, we consider whether the plaintiff’s alleged
cause of action is barred by the doctrine of res judicata.
Plaintiff, Gregory C. Straessle, filed an amended motion for
judgment against the Air Line Pilots’ Association, International
(ALPA), alleging the following facts. Straessle was an airline
pilot employed by Eastern Airlines in 1989. A labor strike
occurred and Eastern Airlines attempted to continue flight
operations utilizing management pilots and non-striking pilots.
Straessle initially participated in the strike, but later decided
to return to work.
ALPA established and maintained a "SCAB List" which
identified the pilots, including Straessle, who worked during the
strike. Once the strike terminated, ALPA allegedly distributed
50,000 copies of the "SCAB List," and "took steps
to block the future employment of the pilots listed on the
. . . SCAB List" by: distributing the list to
"key officials at all airlines [and] air freight
carriers"; "sending ALPA officials to meet with key
management and union officials at all airlines and freight
carriers to discuss the ramifications of hiring any of the pilots
named on the . . . SCAB List"; "threatening
carriers, including small, non-union carriers with reprisals
. . . if they hired any pilots listed on the SCAB
List"; "monitoring . . . pilot interview
schedules at the major airlines to ensure that pilots listed on
the SCAB List were not hired"; and distributing
"computer disks containing a database listing of the
pertinent information on the pilots on the SCAB List."
As a result of the actions of ALPA, Straessle was
"blacklist[ed]" and rejected for employment at numerous
airlines. He alleged that ALPA’s conduct constituted
"intentional and improper interference with [his] prospective contractual relationships in the airline
industry," and he sought compensatory and punitive damages.
ALPA filed a motion to stay Straessle’s amended motion for
judgment. Straessle was one of numerous plaintiffs in an action
pending in the United States District Court for the Southern
District of Florida, Dunn v. Air Line Pilots’
Association, Case No. 91-2679. The plaintiffs in the federal
action alleged that ALPA had: "compiled and printed a list
of persons who allegedly continued, resumed or made themselves
available for employment by [Eastern Airlines] at various times
between March 4, 1989 and November 23, 1989"; "caused
the [b]lacklist to be published and distributed to the management
and employees of domestic and foreign commercial passenger and
cargo air carriers . . . and persons involved in the
aviation industry to prevent Plaintiffs from being employed in
any position associated with the aviation industry." The
plaintiffs in the federal action alleged that the publication and
distribution of the "blacklist" constituted the tort of
libel and sought damages from ALPA.
The federal district court entered an order directing certain
plaintiffs in that litigation, including Straessle, to respond to
certain discovery requests. That order states in relevant part:
. . . . ORDERED AND ADJUDGED as follows:
1. The plaintiffs listed on Schedule A attached hereto [which
included Straessle], by no later than thirty (30) days from the
date stamped on this Order, shall either: (a) respond to ALPA’s
Questionnaire To Each Plaintiff and ALPA’s Document Requests To
Each Plaintiff, or (b) enter into a mutual release of all claims
with ALPA and the other defendants to this action. Failure by any
plaintiff listed on Schedule A to do either of the above within
thirty (30) days from the date stamped on this Order shall cause,
without any further Order from the Court, such plaintiff’s claims
against ALPA to be automatically dismissed with prejudice and
ALPA’s counterclaims against such plaintiff, if any, to be
dismissed without prejudice."
Straessle failed to respond to the discovery requests in the
federal litigation within the 30-day period specified in the
order, and his claim was "automatically dismissed with
After the federal district court dismissed Straessle’s claim,
ALPA withdrew its motion to stay the action pending in the
circuit court in Virginia and filed a motion for summary
judgment, asserting that Straessle’s action is barred by the
doctrine of res judicata. The trial court granted
that motion and Straessle appeals.
Relying upon Bates v. Devers, 214 Va. 667, 202
S.E.2d 917 (1974), Straessle asserts that a judgment must be
valid and final on the merits before a defendant may assert the
doctrine of res judicata to bar a plaintiff’s cause
of action. Continuing, Straessle asserts that the federal
district court’s "omnibus order" does not constitute a
final judgment within the meaning of Fed. R. Civ. P. Rule 54(b)
and, therefore, the trial court erred by dismissing his amended
ALPA responds that Straessle did not challenge the finality of
the federal court order below and, therefore, this claim cannot
be considered on appeal. Additionally, ALPA asserts that the Full
Faith and Credit Clause of the U.S. Constitution, Art. IV,1, as
well as Code ‘ 8.01-389(B),
require that this Court give the federal district court order the
same preclusive effect it would have been given in the federal
courts and that this Court must apply federal law which requires
that we affirm the trial court’s judgment.
In Bates v. Devers, we stated:
"Res judicata-bar, is the particular
preclusive effect commonly meant by use of the term ‘res judicata‘.
A valid, personal judgment on the merits in favor of defendant
bars relitigation of the same cause of action,
or any part thereof which could have been litigated, between the
same parties and their privies."
Id. at 670-71, 202 S.E.2d at 920-21 (footnote omitted).
A defendant who asserts the bar of res judicata
must prove by a preponderance of the evidence that the defendant
has obtained a valid final judgment in his favor. Id. at
671, 202 S.E.2d at 921. See Portsmouth v. Chesapeake,
205 Va. 259, 270, 136 S.E.2d 817, 826 (1964).
Thus, we must initially determine whether the federal district
court’s order, referenced in part above, constitutes a final
order within the meaning of Fed. R. Civ. P. Rule 54(b), which
states in relevant part:
"[W]hen multiple parties are involved, the court may
direct the entry of a final judgment as to one or more but fewer
than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon an
express direction for the entry of judgment. In the absence
of such determination and direction, any order or other form of
decision, however designated, which adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the
parties shall not terminate the action as to any of the claims or
parties, and the order or other form of decision is subject to
revision at any time before the entry of judgment adjudicating
all the claims and the rights and liabilities of all the
parties." (Emphasis added.)
Federal circuit courts of appeal which have applied Fed. R.
Civ. P. Rule 54(b) have uniformly held that a district court
order, entered in an action with multiple parties, does not
constitute a final judgment unless the district court complies
with the requirements specified in the rule. The district court
must make an express determination that "there is no just
reason for delay," and the federal district court’s order
must have "an express direction for the entry of
judgment." See Spiegel v. Trustees of Tufts
College, 843 F.2d 38, 43 (1st Cir. 1988); Bullock v. Baptist
Memorial Hospital, 817 F.2d 58, 59 (8th Cir. 1987); Robinson
v. Parke-Davis and Co., 685 F.2d 912, 913 (4th Cir. 1982);
Smith v. Fairfax County School Bd., 497 F.2d 899,
899 (4th Cir. 1974); United States v. Peerless
Insurance Co., 374 F.2d 942, 944 (4th Cir. 1967).
Additionally, federal appellate courts have held that they are
"duty bound" to consider, sua sponte,
whether a district court order is a final judgment within the
meaning of Fed. R. Civ. P. Rule 54(b). Credit Francais Int’l,
S.A. v. Bio-Vita, Ltd., 78 F.3d 698, 706 (1st Cir.
1996); Braswell Shipyards, Inc. v. Beazer East, Inc.,
2 F.3d 1331, 1335 (4th Cir. 1993); Spiegel, 843 F.2d at
43; United States General, Inc. v. Albert, 792 F.2d
678, 680 (7th Cir. 1986); Landry v. G.B.A., 762
F.2d 462, 463-64 (5th Cir. 1985).
Applying Fed. R. Civ. P. Rule 54(b) here, it is clear that the
federal district court order which dismissed Straessle’s claim is
not a final judgment. The district court’s order does not contain
an express determination that there is no just reason for delay,
nor does the order contain an express direction for the entry of
It is true, as ALPA asserts and Straessle concedes, that
Straessle failed to argue in the trial court that the federal
district court order is not a final judgment. We are of opinion,
however, that Rule 5:25 does not bar this Court from adjudicating
that issue. As we previously stated, federal courts of
appeals are "duty bound" to determine, sua sponte,
whether a district court’s order is final because the order
affects the federal appellate court’s jurisdiction. Likewise, we
are duty bound to consider the finality of the federal district
court’s order because we must determine if that order shall be
granted full faith and credit.
The procedural bar of Rule 5:25 cannot be used to grant full
faith and credit to an order which is not final. It would indeed
be an anomaly if this Court were to treat as a final judgment a
federal district court’s order which is subject to revision
"at any time before the entry of judgment adjudicating all
the claims and the rights and liabilities of all the
parties" in litigation which is currently pending in the
federal district court. Furthermore, we will not grant full faith
and credit to a federal district court order that has no res
judicata effect in any federal proceedings. See Republic
of China v. American Express Co., 190 F.2d 334 (2nd
Cir. 1951); 10 Charles A. Wright, Arthur R. Miller & Mary K.
Kane, Federal Practice and Procedure: ‘ 2661 (2d ed.
For the foregoing reasons, we will reverse the judgment of the
trial court and remand this case for further proceedings.
Reversed and remanded.
‘ 8.01-389(B) states:
"Every court of this Commonwealth shall give such records of
courts not of this Commonwealth the full faith and credit given
to them in the courts of the jurisdiction from whence they
5:25 states in relevant part:
"Error will not be sustained to any ruling of the trial
court . . . before which the case was initially tried
unless the objection was stated with reasonable certainty at the
time of the ruling, except for good cause shown or to enable this
Court to attain the ends of justice."