Katz v. Realty Equities Corp./Concurrence Friendly
FRIENDLY, Circuit Judge concurring:

If asked to provide an example of an order that was not a "final decision" appealable under 28 U.S.C. § 1291, one could hardly do better than to pick the order review of which is here sought. The order does not compel or deny anything; it merely provides that consolidated pretrial discovery, which all agree to be proper, shall be conducted under a single consolidated complaint rather than separate complaints. Of course, it is not within light years of being a final disposition  [p1363]  of the litigation. Neither is it within the "collateral order" doctrine of Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.C.t. 1221, 93 L. Ed. 1528 (1949). The opinion establishing that principle excluded even "fully consummated decisions, where they are but steps towards final judgment in which they will merge", 337 U.S. at 546; the Cohen principle includes only orders which cannot be effectively reviewed on appeal from a judgment final in the ordinary sense of that term, so that the rights asserted to be harmed by the order will be irreparably lost, and not even all of those orders, 337 U.S. at 547. If appellants should ever be able to show prejudice from Judge Pollack's order, they clearly can have relief on an appeal from any final judgment against them, if such judgment there should be. Dupont v. Southern Pacific Co., 366 F.2d 193, 196 (5 Cir. 1966), cert. denied, 386 U.S. 958, 87 S.C.t. 1027, 18 L. Ed. 2d 106 (1967); Atkinson v. Roth, 297 F.2d 570, 575 (3 Cir. 1961); 9 Wright & Miller, Federal Practice and Procedure § 2386, at 276 (1971). The order here involves "only an exercise of discretion . . ., a matter . . . subject to reconsideration from time to time . . . ." Cohen v. Beneficial Loan Corp., supra, 373 U.S. at 547.

It is therefore not surprising that other circuits have uniformly ruled that orders granting or denying consolidation - even for trial as distinguished from mere pre-trial discovery - were non-appealable except by the procedure for appeals from interlocutory orders authorized by 28 U.S.C. § 1292(b), Skirvin v. Mesta, 141 F.2d 668, 671 (10 Cir. 1944); Nolfi v. Chrysler Corp., 324 F.2d 373 (3 Cir. 1963) (per curiam); United States v. Chelsea Towers, Inc., 404 F.2d 329, 330 (3 Cir. 1968) (per curiam); National Ass'n. for Advancement of Colored People of Louisiana v. Michot, 480 F.2d 547, 548 (5 Cir. 1973) (per curiam). Cf. Travelers Indemnity Co. v. Miller Mfg. Co., 276 F.2d 955 (6 Cir. 1960) (per curiam). The commentators endorse this position. 9 Moore, Federal Practice para. 110.13[8], at 183 (2d ed. 1973) (footnote omitted) ("An order granting or denying consolidation, or granting or denying separate trials, is an ordinary, non-appealable interlocutory order."); 9 Wright & Miller, Federal Practice and Procedure § 2386, at 275 (1971).

This circuit seems to stand alone in having taken a different view. We upheld the appealability of an order denying pre-trial consolidation in MacAlister v. Guterma, 263 F.2d 65 (2 Cir. 1958), and followed that precedent in the case of an order granting such consolidation in Garber v. Randell, 477 F.2d 711 (2 Cir. 1973). However, under this court's doctrine not all such orders are appealable; they are "final" and appealable only under "exceptional circumstances" or when they raise "basic issues", Levine v. American Export Industries, 473 F.2d 1008, 1009 (2 Cir. 1973) (per curiam), whatever that may mean. While this attempt to limit our original error may be commendable, it invites further jurisdictional argument that ought to be avoided.

The majority holds out some hope that the time may come when we will bring ourselves in line with our sister circuits with respect to the appealability of consolidation orders. I can think of no better time than now, when appellate dockets have swollen to the breaking point. Holding such orders - more accurately, some such orders - to be appealable violates the principles underlying the final judgment rule. It brings an appellate court into complex litigation, which may well be ended by settlement, before the issues are formulated and when the parties are only beginning to develop the evidence. Unlike the issue in Cohen, where an appellate decision "will settle a point once and for all", Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc., 455 F.2d 770, 773 (2 Cir. 1972), see also Donlon Industries, Inc. v. Forte, 402 F.2d 935, 937 (2 Cir. 1968), the propriety of orders granting or denying consolidation depends on the  [p1364]  particular facts of each case and entertaining appeals from them "will open the way for a flood of appeals concerning the propriety of a district court's ruling on the facts of a particular suit." Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc., supra, 455 F.2d at 773. The district judge is properly accorded wide discretion and "since review would be limited to 'abuse' of discretion, the likelihood of reversal is too negligible to justify the delay and expense incident to an appeal and the consequent burden on hard-pressed appellate courts, " Donlon Industries, Inc. v. Forte, supra, 402 F.2d at 937 - a point well illustrated by the year's delay created by the instant appeal. As recognized in Levine v. American Export Industries and in Garber v. Randell, this court has consistently rejected attempts to broaden Cohen, in instances far more appealing than this, lest the exception "swallow the salutary 'final judgment' rule", Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc., supra, 455 F.2d at 773. MacAlister, decided when Cohen was still in its youth, stands alone, both among our own cases (except for Garber which was decided under its authority) and among those of other circuits. This court surely would not decide the point as it did seventeen years ago if the issue were now presented for the first time, since it is now apparent, as Professor Moore has warned us, that "to extend the Cohen rule to this area is to invite frustration and delay." 9 Moore, Federal Practice para. 110.13[8], at 184 (2d ed. 1973).

Since I detect no enthusiasm for en banc reconsideration of MacAlister at this time, I must address the merits. Judge Waterman has labored mightily to distinguish Garber v. Randell, and Judge Gurfein thinks he has succeeded. I am not so sure; at best the distinction is paper thin. But since the result is to endorse the ruling of the district judge, whose experience in the handling of litigation of this sort at the trial level and whose knowledge of the problems of this case so far outrun my own, I am not disposed to cavil. Informing the bar that we will not upset an order of pretrial consolidation unless the case is a Chinese copy of Garber v. Randell is a good way of discouraging appeals from such orders until we take the proper step of holding the orders to be unappealable.