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McCullough v. World Wrestling Entertainment, Inc.

United States Court of Appeals, Second Circuit

September 27, 2016

Russ McCullough, Ryan Sakoda, and Matthew Robert Wiese, individually and on behalf of all others similarly situated; William Albert Haynes, III, Plaintiffs-Appellants,
World Wrestling Entertainment, Incorporated, [1] Movant-Defendant-Appellee.

          Submitted: August 30, 2016

         Motion to dismiss appeals of orders dismissing two of several cases consolidated in the District Court for the District of Connecticut (Vanessa L. Bryant, District Judge).

          David R. Fine, K&L Gates LLP, Harrisburg, PA (Jerry S. McDevitt, Curtis B. Krasik, K&L Gates LLP, Pittsburgh, PA, Jeffrey Mueller, Day Pitney LLP, Hartford, CT, on the motion), for Movant-Defendant-Appellee World Wrestling Entertainment, Incorporated.

          William M. Bloss, Koskoff, Koskoff & Bieder, P.C., Bridgeport, CT (Konstantine W. Kyros, Kyros Law Offices, Hingham, MA, Charles J. LaDuca, Cuneo Gilbert & LaDuca, LLP, Bethesda, MD, Michael J. Flannery, Cuneo Gilbert & LaDuca, LLP, St. Louis, MO, Robert K. Shelquist, Scott Moriarity, Lockridge Grindal Nauen P.L.L.P., Minneapolis, MN, Harris L. Pogust, Pogust Braslow & Millrood, LLC, Conshohocken, PA, Erica Mirabella, Mirabella Law, LLC, Boston, MA, on the memorandum in opposition), for Plaintiffs-Appellants Russ McCullough, Ryan Sakoda, Matthew Robert Wiese, and William Albert Haynes, III.

          Before: NEWMAN, WINTER, and RAGGI, Circuit Judges.


         The pending motion to dismiss two appeals merits a brief opinion to clarify the circumstances under which judgments entered in some, but not all, cases that have been consolidated are final for purposes of appellate jurisdiction. Clarification is needed in the aftermath of the Supreme Court's decision in Gelboim v. Bank of America Corp., 135 S.Ct. 897 (2015).

         The appeals arise from cases in the District Court for the District of Connecticut. That Court (Vanessa L. Bryant, District Judge) consolidated six cases, five of which were brought against Defendant-Appellee World Wrestling Entertainment, Inc. ("WWE"). See McCullough v. WWE, No. 3:15-cv-01074-VLB (D. Conn.), Dkt. Nos. 41 (July 23, 2015), 49 (Aug. 4, 2015), 79 (Oct. 5, 2015). On WWE's motion to dismiss, the District Court later entered an order dismissing two of the cases, one brought by Plaintiffs-Appellants Russ McCullough and others, and one brought by Plaintiff-Appellant William Albert Haynes III. Id. Dkt. No. 116 (Mar. 21, 2016). From the order entered in favor of WWE in these two cases, Plaintiffs-Appellants filed timely notices of appeal. Id. Dkt. Nos. 123, 124 (Apr. 20, 2016).

         WWE, relying on our decision in Hageman v. City Investing Co., 851 F.2d 69 (2d Cir. 1988), moved to dismiss these appeals on the ground that other consolidated cases remained pending in the District Court. The Plaintiffs-Appellants oppose dismissal, urging us to reconsider Hageman in light of the Supreme Court's decision in Gelboim. Although only an in banc court can reject a prior decision of this Court, see United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004), a panel that believes an intervening Supreme Court decision has abrogated a prior decision can present that view to the active judges, and, in the absence of objection, disregard the prior decision.[2]We therefore proceed to consider the effect, if any, of Gelboim on Hageman.

         Hageman concerned two employment discrimination cases that a district court had consolidated. Like the consolidation in the pending matter, this was a district court consolidation for all purposes, not a consolidation by the Multi-District Litigation Panel ("MDL") for "coordinated or consolidated pretrial proceedings" authorized by 28 U.S.C. ¶ 1407. The district court in Hageman dismissed the sole claim in one of the consolidated cases. The plaintiff appealed the order of dismissal, and the defendants moved to dismiss the appeal because claims in the other consolidated case remained pending.

         The opinion in Hageman identified three possible approaches to the issue presented by the motion to dismiss the appeal: (1) a judgment disposing of any claim in a consolidated action could be appealed, (2) an "absolute rule" that a judgment in a consolidated action could be appealed only if it disposed of all claims, and (3) "a flexible approach, examining the type of consolidation and the relationship between the consolidated actions in order to determine whether the actions could be appealed separately absent Rule 54(b) certification." Hageman, 851 F.2d at 71. Hageman adopted a variant of the flexible approach. We stated:

[T]he best way to weigh these competing benefits of an absolute rule and a more flexible approach is to hold that when there is a judgment in a consolidated case that does not dispose of all claims which have been consolidated, there is a strong presumption that the judgment is not appealable absent Rule 54(b) certification. In highly unusual circumstances, a litigant may be able to overcome this presumption and convince us that we should consider the merits of the appeal immediately, rather than waiting for a final judgment.

Id. Concluding that the presumption had not been overcome, we dismissed the appeal.

         Several years later we again considered the appealability of an order dismissing a complaint in a consolidated action. The consolidation involved a large group of cases transferred by the MDL Panel to the Southern District of New York "for coordinated or consolidated pretrial proceedings." In re: Libor-Based Financial Instruments Antitrust Litigation, No. 1:11-md-02262-NRB (S.D.N.Y.) ("Libor I") Dkt. No. 1 (Aug. 12, 2011), reported at802 F.Supp.2d 1380, 1381 (J.P.M.L. 2011). The District Court entered an order dismissing the complaint of Ellen Gelboim and Linda Zacher, which had made one claim, an antitrust violation. Libor I, 935 F.Supp.2d 666, 738 (S.D.N.Y. 2013).[3] On appeal from that order, this Court dismissed "the appeals" because all claims in the consolidated action had not been dismissed. In re Libor-Based Financial Instruments Antitrust Litigation, Nos. 13-3565, 13-3636, 2013 WL 9557843 (2d Cir. Oct. 30, 2013) ("Libor II"). ...

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