The Effects of Case Consolidation on the Procedural Rights of Litigants: What They are, What They Might Be Part II: Non-Jurisdictional Matters

102 Pages Posted: 23 Jun 2011

See all articles by Joan E. Steinman

Joan E. Steinman

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: 1995


Because of the increasing importance of case consolidation and the growing number of litigants whose cases will be consolidated with others, this is a fitting time not only to refine the circumstances under which cases should be consolidated, but also to examine the effects of consolidation on the procedural rights of litigants. It is essential for courts, lawyers, and litigants to understand the implications for litigants' procedural rights, before consolidation is ordered, so that all can weigh the pros and cons of consolidation and so that, when appropriate, courts may alter some of the ordinary procedural consequences of consolidation. If the parties and the courts do not understand the ordinary consequences from the outset, they may discover that consequences they neither foresaw nor intended have attached. This Article begins the examination of the consequences that the law has attached to case consolidation, in the context of the federal court system. It evaluates these consequences individually and in the aggregate. In addition, it offers a perspective on what effects consolidation ought to have on the procedural rights of litigants.

Part I of the Article looks, first, at whether consolidation affects, or should affect, compliance with Article III's requirements for a justiciable case or controversy (standing, mootness, and ripeness). Part I then examines whether consolidation alters, or should alter, the application of the requirements for subject-matter jurisdiction (including the claims that may be heard and their procedural posture), personal jurisdiction, and venue. Third, Part I asks whether consolidation changes, or should change, the analysis as to whether plaintiffs have failed to join an indispensable party. Finally, it considers the various respects in which consolidation may alter the timing, scope, location, and parties to an appeal.

Part I finds that consolidation often does alter standing determinations, because many courts permit consolidated cases to go forward so long as any plaintiff from among the consolidated cases has standing to pursue the claims. Consolidation has not altered the analysis or outcome of mootness or ripeness issues, however. By and large, case consolidation also has not altered application of the requirements for subject-matter jurisdiction, personal jurisdiction, or venue, and has not changed the analysis determining whether plaintiffs have failed to join an indispensable party. But there are cases that represent exceptions to these general rules: cases in which the courts have bent, or made exceptions to, the general rule that subject-matter jurisdiction must be determined by considering each component action independently of the others; in which courts have indicated that consolidation could cure the problems caused by the absence of a party to be joined if feasible; in which courts have held the activities of a party in one component of a consolidation to be relevant to the court's right to assert personal jurisdiction over him in another component; and in which the courts have broadly construed venue statutes to keep a set of consolidated cases together.

Consolidation has had more widespread and obvious effects on the timing, scope, and location of and the parties to an appeal. In most circuits, “all purpose” consolidation of cases results in the surrender of the right to an immediate appeal by the losing parties in any single component. Either as an across-the-board common law rule or as a matter determined case-by-case, in most circuits losing litigants have to await the resolution of all claims among all parties to the consolidation before they can appeal, absent a Rule 54(b) certification from the trial judge. In addition, because courts regard the parties to consolidated cases as parties to a civil case within the meaning of the various subparts of Federal Rule of Appellate Procedure 4, consolidation often alters the time a litigant has to file a notice of appeal when all the consolidated cases have been resolved in the trial court. Litigants may benefit from an extension of time that otherwise would be unavailable to them, but they have suffered from their notices of appeal being rendered premature and ineffective. Under the statutes that govern the Court of Appeals for the Federal Circuit, litigants may even find that consolidation has altered which court of appeals has jurisdiction over their case.

At a normative level, Part I of this work argues that a procedural system that is fair, generates more accurate expectations, and is more efficient, would result from a shift in the paradigm from the long parroted view that consolidations do not merge lawsuits, change the rights of the parties, or make the parties in one suit parties in another. It concludes that when a court considers consolidating cases, it should take the view that consolidating cases for all purposes or for trial will create a single civil action, change the rights of the parties, and make them parties to an action that encompasses all components of the consolidation. If that is not what the court wants to do, then it should take lesser steps: order only multicase briefing or discovery, or limited-scope joint pretrial hearings, as appropriate. Creating an all-encompassing civil action would be constitutional under Article III when each of the consolidated cases is jurisdictionally self-sufficient or when any claims that are not so self-sufficient arise out of a common nucleus of operative fact with claims that are. An all-encompassing civil action also would be compatible with the statutes that confer jurisdiction over specified “civil actions” and would be consistent with the federal rules of civil and appellate procedure, or could be made consistent with minimal amendments to those rules. This approach would enable federal courts to hear additional claims that can efficiently be heard together, without compelling them to do so. It would facilitate the federal courts' adjudication of transactionally related claims by enabling the federal courts to assert supplemental jurisdiction and personal jurisdiction in situations where they otherwise might not be able to do so. It also would eliminate uncertainties concerning litigants' rights and obligations with respect to appeals that currently result in inadvertent waivers of rights and in the expenditure of trial and appellate resources now devoted to resolving those uncertainties.

Part II tests whether the hypothesis of Part I, that a better procedural system would result from a shift in the paradigm (from that in which each component of a consolidation retains a separate identity to one in which consolidating cases for all purposes or for trial would create a single, all-encompassing civil action), holds up with respect to nonjurisdictional matters.

Part II proceeds more or less chronologically through the course of a lawsuit, looking both at rights based in the Federal Rules of Civil Procedure and at procedural rights grounded elsewhere. It explores effects on the posture and framing of claims, the attorney-client relationship, the availability of particular discovery devices and other aspects of discovery, the right to voluntarily dismiss a suit, choice of law, the scope of a jury demand and the range of issues on which courts will, in their discretion, allow determination by a jury, the circumstances under which judges should recuse themselves, the number of peremptory challenges to which litigants are entitled, “law of the case” and preclusion doctrines, and the award of costs and attorneys' fees. While not necessarily exhaustive, this survey conveys the range and significance of the procedural rights that consolidation may alter.

Keywords: consolidation of actions

JEL Classification: K10

Suggested Citation

Steinman, Joan E., The Effects of Case Consolidation on the Procedural Rights of Litigants: What They are, What They Might Be Part II: Non-Jurisdictional Matters (1995). UCLA Law Review, Vol. 42, p. 957, 1995, Available at SSRN:

Joan E. Steinman (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

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