Together, But Independent – Finality Under Rule 42(a) Consolidation

Appellate & Trial Support   |   Litigation and Trials   |   April 6, 2018
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The United States Supreme Court recently clarified that cases consolidated under Rule 42(a) of the Federal Rules of Civil Procedure retain their independent identities “at least to the extent that a final decision in one is immediately appealable by the losing party.”

In Hall v. Hall, 584 U. S. ____ (2018), a lawyer managed his mother’s real estate holdings. The mother, individually and in her capacity as trustee of her inter vivos trust, sued the son and his law firm. After the mother died, her daughter took over as a successor trustee, and the son filed counterclaims against his sister, individually and as the successor trustee. Because the sister was not a party in the first suit, however, the counterclaims against her individually were dismissed, and the son filed a separate suit against his sister in her individual capacity.

The cases were consolidated and tried together before a jury. A verdict was returned for the son in both. The district court entered judgment for the son in the representative case, but granted the sister a new trial in the case against her individually. She then filed a notice of appeal in the first case. The Third Circuit held that case was not immediately appealable, as there were still claims pending in the individual suit.

The Supreme Court granted certiorari and in a unanimous decision reversed. Chief Justice Roberts wrote that the meaning of “consolidate” had not changed since the first federal consolidation statute, enacted in 1813, on which Rule 42(a) was based. Cases are consolidated, he explained, to enable more efficient case management while preserving “the distinct identities of the cases and the rights of the separate parties in them.” Indeed, “[f]orcing an aggrieved party to wait for other cases to conclude would substantially impair his ability to appeal from a final decision fully resolving his own case — a ‘matter of right.’”

Practice Tip

Federal district courts can consolidate cases for “all purposes” in appropriate circumstances. Nevertheless, those cases retain their separate identities for purposes of determining whether a final decision in one is immediately appealable. In Hall, Chief Justice Roberts did not address whether an appellant must immediately appeal when a final judgment is entered in only one of multiple consolidated cases, but his analysis strongly suggests that is the case. Should you encounter that situation, do not wait to appeal, or you will likely give up your right to do so.

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