This morning’s oral argument in Hall v. Hall addressed two related issues. One is the effect of consolidating separate civil actions and whether they become a single action or retain separate identities. The second is how that affects the timing of and obligation to appeal. The justices pushed counsel for both sides and expressed concerns with both positions.

The dispute arose from two lawsuits filed in the District Court of the Virgin Islands. Elsa Hall, as executrix of her mother’s estate, pursued one action against Elsa’s brother Samuel, alleging that Samuel had misused rents collected on their late mother’s property. Samuel pursued a second action against his sister in her individual capacity, for alienation of affection in his relationship with their mother in her final years. The district court consolidated the actions. The jury found for Samuel on the estate’s claim and for Samuel on his individual claim; the court entered separate judgments on each. Elsa moved for a new trial on Samuel’s action, but sought to appeal the judgment in the estate’s action.

Arguments for the petitioner

Andrew Simpson represented Elsa. He began by arguing that consolidation does not merge cases and urging a bright-line rule that when final judgment is entered in an action, including one consolidated with other actions, that final judgment triggers a right to appeal.

Justice Sonia Sotomayor asked how that argument squares with the language of Federal Rule of Civil Procedure 42, which allows courts to “join” for hearing or trial matters or issues in the actions under (a)(1) and to “consolidate” under (a)(2). Simpson replied that (a)(1) allows a court to do things such as hold an omnibus hearing on common issues, while (a)(2) permits consolidation for trial or pretrial processes. But Sotomayor argued that (a)(1) allows the court to take either of those steps, leaving little work for (a)(2). She and Justice Elena Kagan tried to understand the difference in appealability between one case with five claims and five cases with one claim that have been consolidated and whether all consolidated cases must be treated the same. Simpson said there should be no difference and that the key is close case management by the trial court from an early point.

Simpson repeated the argument from the briefs that a party with a final judgment from one part of a consolidated case must appeal, relying on the court of appeals to stay any appeals until the remaining cases reach it at a later point. Chief Justice John Roberts and Justice Anthony Kennedy were concerned that the court of appeals could not know the full scope of the proceedings in the district court upon receiving a single notice of appeal, and that the district court is in a better position to see how the pieces fit together and how appeals should proceed. Kennedy feared a “trap for the unwary.” Simpson argued that the district court’s latitude goes to joinder, not consolidation. It is the alternative rule that presents the trap for the unwary, by not giving a party sufficient notice of when to appeal. And the parties can notify the court of appeals of the case’s full context by stipulating to a stay, although Roberts and Kennedy questioned whether the parties could do that or how it would bind the court of appeals.

Kennedy, along with Justices Samuel Alito and Neil Gorsuch, wondered what the rule should look like and how the Rules Committee might draft it. Alito proposed that all consolidated cases be considered one case for purposes of the final judgment rule. Simpson responded with a suggested amendment to Rule 42(a), providing that consolidated cases become one if they could have been brought as a single action under the joinder rules, but otherwise remain distinct actions. Alito asked why that is better than Federal Rule of Civil Procedure 54(b), which leaves the district court discretion to direct entry of final judgment as to one or more but fewer than all claims or parties.

Ginsburg, Kagan and Gorsuch questioned Simpson about how and when any judgment was entered in these cases and whether entry of judgment could have been delayed. They also questioned the significance of the district court’s refusal to consider a request for attorney’s fees because the request, filed more than 14 days following issuance of the two judgments, was untimely.

Kagan pushed Simpson on the meaning of the word consolidate, pointing to ordinary meaning and Black’s Law Dictionary to support the proposition that it means “[t]wo becomes one.” Justice Ginsburg questioned whether that reading is consistent with the statute governing consolidation that predated the Federal Rules, which had been interpreted not to produce a complete merger. But Kagan suggested that the statute was different than Rule 42 in many respects and that the court has the opportunity to interpret the rule on a “blank slate.”

Arguments for the respondent

Neal Katyal represented Samuel. He began from the premise that the district court consolidated the cases for all purposes, and the attempt to appeal part of the consolidated case ran “headlong into determinations by both Congress and this Court that litigants can only appeal generally from final decisions.”

Sotomayor again began the questioning, asking what conclusion to draw from the district court’s having denied the fee request as untimely. Katyal argued that Elsa had waived that argument by not raising it until her reply brief, even though it challenged the consolidation at the heart of the appeal. On the substance of the fees question, Katyal argued that the court entered a final-and-appealable judgment in response to the verdicts in the two claims, which started the 14-day clock for seeking fees and the 30-day clock for appealing. But Elsa filed a timely Motion for a New Trial on Samuel’s claim, which suspended the otherwise final judgment, but did not restart the 14-day clock for the fee petition.

Roberts and Ginsburg asked why the trial court entered two judgment documents, one in each claim. Katyal replied that this is common practice in the district courts, done for “belts and suspenders reasons,” but that it does not affect the all-purpose consolidation. Gorsuch and Katyal then had an exchange about the terms of the consolidation, which was ambiguous in scope, with Katyal citing the law in several circuits that a consolidation is treated as all-purpose when the consolidation order is silent as to whether it is all-purpose, but everything is merged.

Roberts pointed out that this is a relatively simple case, involving two disputes with the same lawyers and parties. But he worried about a rule for a mass-tort situation with 100 separate cases, when parties might be forced to wait years before being able to appeal. Katyal pointed to three independent safety valves that the court has emphasized in recent cases—Rule 54(b) final judgments on fewer than all claims, interlocutory appeal under 28 U.S.C. § 1292(b), and writ of mandamus. The first two require certification from the district court, leaving power in the expert hands of trial judges who are familiar with the details of each case, as Roberts and Kennedy had suggested is appropriate.

Katyal then returned to Sotomayor’s original question for Simpson, about the different parts of Rule 42(a) and the broader scope of (a)(2) in empowering the district court “to make an all-purpose consolidation, to make two one, like marriage.” Ginsburg and Kagan questioned whether and why consolidation was proper in this case; even if Samuel’s rule for complete consolidation makes sense, perhaps these cases should not have been consolidated. Katyal replied that it is too late to argue the impropriety of consolidation; Elsa could have appealed the consolidation order but did not, and she cannot now challenge consolidation in the guise of seeking to appeal.

Posted in Hall v. Hall, Featured, Merits Cases

Recommended Citation: Howard M. Wasserman, Argument analysis: “Make an all-purpose consolidation, … like marriage” — debating the meaning of consolidation and its effects on finality, SCOTUSblog (Jan. 16, 2018, 9:17 PM),