Consolidation: Separate trials

(2008) Rule 42(d) has been amended to add language that appears in Rule 42(b) regarding the constitutional right to trial by jury. In light of the 2003 legislation transferring various divisions of the District Court Department located in Suffolk County to the Boston Municipal Court Department and with the creation of divisions in the Boston Municipal Court Department ( G.L. c. 218, § 1 and G.L. c. 218, § 50 ), Rule 42(c) and Rule 42(d) are also applicable in the Boston Municipal Court Department. (1996) The amendments to Rule 42 effective in 1996 add new sections (c) and (d), applicable in the District Court, and retitle the headings to Rule 42(a) and (b). New sections (c) and (d) of Rule 42 correspond respectively to now-repealed Rule 42(a) and (b) of the Dist./Mun.Cts.R.Civ.P. The "Comments" to now-repealed Rule 42(a) of the Dist./ Mun.Cts.R.Civ.P. describe the District Court provisions by noting that under District Court Rule 42(a) (now Mass. R.Civ.P. 42(c)), the first paragraph governs only consolidation of cases pending in a single District Court, while the second paragraph governs consolidation of actions pending in two or more District Courts. The "Comments" to now-repealed Rule 42(b) of the Dist./ Mun.Cts.R.Civ.P. describe the District Court provisions by noting that District Court Rule 42(b) (now Mass.R.Civ.P. 42(d)) does not contain the power of one District Court to separate claims or issues in a case before it and order that any such claims or issues be heard in a different District Court. Such power does exist for other courts governed by the Mass.R.Civ.P. pursuant to section (b) as retitled. The "Comments" finally point out that District Court Rule 42(b) (now Mass.R.Civ.P. 42(d)) does not contain language dealing with trial by jury. (1973) Except for the language pertaining to counties, Rule 42(a) tracks Federal Rule 42(a). By authorizing the court to order a joint trial of any or all the matters in issue in the actions or to order all the actions consolidated, it complements the liberal provisions for permissive joinder of claims ( Rule 18 ) and of parties ( Rule 20 ). Under Rule 42(a) the court's order may apply to separate issues and not necessarily to entire cases. For example, if several plaintiffs are suing the same defendant for injuries arising from the same accident, the court may order a joint trial on the issue of liability, leaving the issue of damages to be determined separately in each case, should the liability issue be determined against the defendant. See Hassett v. Modern Maid Packers, Inc., 23 F.R.D. 661 (D.Md.1959). Where however the issues of liability and damages are significantly related, it has been held error to order a separate trial of the liability issue. United Air Lines, Inc. v. Wiener, 286 F.2d 302 (9th Cir.1961). Rule 42(a) does permit the consolidation of separate actions seeking legal and equitable relief as concomitant of the merger of law and equity effected by Rule 2 . It also changes past practice, Stoneman v. Coakley , 266 Mass. 64, 65-66 (1929), by permitting, in any appropriate situation, consolidation for trial of two cases pending in different counties. Rule 42(b) is necessary primarily because of the liberal joinder provisions of Rules 18 and 20. The authority in the court to order separate trials is necessary in some cases to avoid unwieldy litigation.