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Tuesday, January 09, 2018

Argument preview: Hall v. Hall (Updated)

I have a SCOTUSBlog preview of next Tuesday's oral argument in Hall v. Hall, addressing when a judgment dismissing one action is final and appealable when multiple actions were consolidated for all purposes under FRCP 42.

On the papers at least, this one has the makings of a rout. The petitioner (who sought to appeal dismissal of one claim while another remained pending and who argues that consolidated cases remain separate for finality purposes) is represented by her trial counsel from the Virgin Islands, who does not appear to have argued before the Court; the respondent (who argues that there is no final judgment until all claims in the consolidated case are resolved) is represented by Neal Katyal. A group of retired federal district judges filed an amicus in support of the respondent.

Worse, the petitioner never engages on the critical issue in the case--how to treat actions consolidated for all purposes compared with actions consolidated for limited purposes, such as discovery or trial. The petitioner insists that consolidated actions retain their separate identities and that the case is controlled by the spare finality language of § 1291. There is no difference in the scope or nature of a consolidation,. But that position may be inconsistent with footnotes in Gelboim v. Bank of America (which involved a discovery-only MDL consolidation) that consolidation may be for all purposes and may require a different rule for finality and appealability. Rule 42(a)(2) contemplates consolidation as distinct from joining some issues for some purposes. And Gelboim seems to contemplate different types of consolidation. The question in Hall is how different types of consolidation affect finality. But the petitioner's lawyer never engages that question.

[Update: The petitioner's reply brief (which was filed after I submitted my piece) points to the trial court issuing separate Judgments in each case as evidence that the consolidation was for trial, not for "all purposes." It therefore does not matter how finality may be affected by consolidation for all purposes, because this consolidation was not for all purposes. As I noted in the preview, the nature of the consolidation is in dispute and something the Court may have to resolve. Given how loosely trial courts label orders as judgments or not, I am not sure this has as much explanatory power as petitioner hopes]

Posted by Howard Wasserman on January 9, 2018 at 11:15 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


Not only does it turn out you were totally wrong on the merits (9-0 reversal today authored by the Chief), but you are also wrong about petitioner's counsel. Andrew Simpson of St. Croix is not just some local trial lawyer, as you imply, but rather an experienced federal appellate practitioner (yes, at the Circuit level) who is President-Elect of the Third Circuit Bar Association.

Posted by: Peter Goldberger | Mar 27, 2018 12:12:04 PM

I don't often agree with Asher but here I do. Howard writes, "As I noted in the preview, the nature of the consolidation is in dispute and something the Court may have to resolve. Given how loosely trial courts label orders as judgments or not, I am not sure this has as much explanatory power as petitioner hopes]"

In the alternative, it may have much much more explanatory power than you think precisely because SCOTUS wants judges to stop the loose language. Which I take to be Asher's point.

Posted by: James | Jan 10, 2018 5:38:26 PM

I have to admit that when I read the question presented, I thought that, given my limited knowledge of the differences between consolidation and joinder, this would be an easy win for the petitioner. You say her lawyer doesn't engage how different types of consolidation affect finality; well, I guess his position simply is that they don't, that consolidated cases always retain their separate identity for purposes of finality no matter what type of consolidation you've got. So I think he engages your question but simply rejects your premise that there are materially different types of consolidation for purposes of finality -- as he probably has to to win his case. Also, his reply brief was only filed today and might address some of your concerns (I can't tell if you already read it).

As for the mismatch between counsel, I don't think that's frequently outcome-determinative, and the petitioner did manage to get the case granted, after all, without a big name (or really any sort of name) on her petition, which suggests some skill, unusual skill even, on the part of her attorney. In any case, even if petitioner's counsel weren't competent, if enough Justices are attracted to his bright-line rule he doesn't have to be. I think inexperienced lawyers mostly run into trouble at the Supreme Court when they can't explain their rule, answer how hypotheticals would come out under it, or distinguish away unattractive consequences of it; this fellow won't have that problem because his rule is so simple.

Posted by: Asher Steinberg | Jan 9, 2018 2:42:18 PM

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