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,  Movant-Defendant-Appellee.
Submitted: August 30, 2016
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).
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
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.
NEWMAN, CIRCUIT JUDGE.
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).
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).
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.We therefore proceed to consider the
effect, if any, of Gelboim on 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.
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
Id. Concluding that the presumption had not been
overcome, we dismissed the appeal.
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). 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