Russ McCullough v. World Wrestling Entertainment

Filing

OPINION, the motion to dismiss the appeals in 16-1231 and 16-1237 is granted, without prejudice to removal of these appeals upon entry of a final judgment in the District Court disposing of all the cases with which the McCullough and Haynes cases have been consolidated, by JON, RKW, RR, FILED.[1871352] [16-1231, 16-1237]

Case 16-1231, Document 67-1, 09/27/2016, 1871352, Page1 of 9

16-1231-cv
McCullough v. World Wrestling Entertainment

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2016
Submitted:

August 30, 2016

Decided: September 27, 2016

Docket Nos. 16-1231(L), 16-1237(Con)
- - - - - - - - - - - - - - - - - - - - - Russ McCullough, Ryan Sakoda, and Matthew Robert Wiese,
individually and on behalf of all others similarly
situated; William Albert Haynes, III,
Plaintiffs-Appellants,
v.
World Wrestling Entertainment, Incorporated,1
Movant-Defendant-Appellee.
- - - - - - - - - - - - - - - - - - - - - Before:

NEWMAN, WINTER, and RAGGI, Circuit Judges.

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).
Motion granted.

1

This caption, altered for purposes of this opinion, does
not change the official caption.
1

Case 16-1231, Document 67-1, 09/27/2016, 1871352, Page2 of 9

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.
JON O. NEWMAN, Circuit Judge:
The
brief

pending

opinion

motion

to

to

clarify

dismiss
the

two

appeals

circumstances

merits

under

a

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
2

Case 16-1231, Document 67-1, 09/27/2016, 1871352, Page3 of 9

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

Entertainment,

Defendant-Appellee

Inc.

(“WWE”).

See

World

McCullough

Wrestling
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
dismiss,

the

District

Court

later

WWE’s motion to

entered

an

order

dismissing two of the cases, one brought by PlaintiffsAppellants 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

Appellants
Hageman

in

oppose
light

in

the

District

dismissal,
of

the

urging

Supreme
3

Court.
us

The

Plaintiffs-

to

reconsider

Court’s

decision

in

Case 16-1231, Document 67-1, 09/27/2016, 1871352, Page4 of 9

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

“coordinated

or

authorized

28

by

Litigation

consolidated
U.S.C.

¶

1407.

Panel

(“MDL”)

pretrial
The

for

proceedings”

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.

2

A recent example of that procedure is Doscher v. Sea Port
Group Securities, LLC, No. 15-2814, 2016 WL 4245427, at *4-5 &
*5 n.9 (2d Cir. Aug. 11, 2016) (circulation to active judges
prior to filing opinion that considered effect of intervening
Supreme Court decision).
4

Case 16-1231, Document 67-1, 09/27/2016, 1871352, Page5 of 9

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
appealability

years

later

of

order

an

we

dismissing
5

again

considered
a

complaint

the
in

a

Case 16-1231, Document 67-1, 09/27/2016, 1871352, Page6 of 9

consolidated

action.

The

consolidation

involved

a

large

group of cases transferred by the MDL Panel to the Southern
District
pretrial

of

New

York

“for

proceedings.”

Instruments

Antitrust

coordinated

In

re:

Litigation,

or

consolidated

Libor-Based
No.

Financial

1:11-md-02262-NRB

(S.D.N.Y.) (“Libor I”) Dkt. No. 1 (Aug. 12, 2011), reported
at 802 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

3

The District Court dismissed the Gelboim-Zacher complaint
in an order entered March 29, 2013. See Libor I, Dkt. No. 286.
The Plaintiffs-Appellants’ timely notice of appeal (“NOA”) from
that order states that they “believe” a judgment was later
“entered on or about August 26, 2013 by operation of Federal
Rule of Civil Procedure 58(c)(2)(B). Id. Dkt. No. 409 at 2 n.1
(Sept. 17, 2013). That subsection of Rule 58 provides that
judgment “is entered” for rulings that are required to be set
forth in a separate document when the ruling is so set forth or
”150 days have run from the entry in the civil docket.”
Presumably, this subsection means that a judgment is deemed to
be entered 150 days after entry of the ruling in the civil
docket. See Mora v. United States, 323 F. App’x 18, 19-20 (2d
Cir. 2009) (“If a separate judgment is not entered, it is deemed
to have been entered 150 days after entry of the dispositive
order.”). The docket in Libor I does not reflect a judgment
dismissing the Gelboim-Zacher complaint.
6

Case 16-1231, Document 67-1, 09/27/2016, 1871352, Page7 of 9

Based Financial Instruments Antitrust Litigation, Nos. 133565, 13-3636, 2013 WL 9557843 (2d Cir. Oct. 30, 2013)
(“Libor II”).4 Libor II did not cite Hageman, but did cite
Houbigant, Inc. v. IMG Fragrance Brands, LLC, 627 F.3d 497
(2d

Cir.

2010),

see

2013

WL

9557843,

at

*1,

which

had

relied on Hageman, see Houbigant, 627 F.3d at 498.
The Supreme Court reversed this Court’s decision in
Libor II. Gelboim v. Bank of America Corp., 135 S. Ct. 897
(2015).5 The Court, citing Hageman, noted that our Court
“does not differentiate between all-purpose consolidations
.

.

.

and

.

.

.

§

1407

consolidations

for

pretrial

proceedings only.” Id. at 904 n.2. The Court ruled that the
Gelboim-Zacher

appeal

should

not

have

been

dismissed

4

This Court’s dismissal order refers to “appeals” and bears
two docket numbers, Nos. 13-3565 and 13-3636. No. 13-3565 is the
appeal brought by Ellen Gelboim and Linda Zacher. No. 13-3636 is
an appeal brought by several Charles Schwab entities whose case
was included in the consolidated MDL action. Those two appeals
were administratively consolidated by our Clerk’s Office, an
action implicitly reflected by Dkt. No. 11 in No. 13-3565.
5

The Supreme Court understood this Court to have dismissed
only “the appeal filed by Gelboim and Zacher,” Gelboim, 135 S.
Ct. at 902, see also id. at 904, although our order had
dismissed both the Gelboim-Zacher appeal and the appeal of the
Schwab entities. See footnote 4, supra. Only Gelboim and Zacher
filed a petition for certiorari seeking review of our Court’s
order. Petition for Writ of Certiorari, id. (No. 13-1174) (Mar.
26, 2014). The Supreme Court granted their petition. 134 S. Ct.
2876 (2014). The Schwab entities did not file a petition for
certiorari.
7

Case 16-1231, Document 67-1, 09/27/2016, 1871352, Page8 of 9

because it was an appeal from a judgment dismissing one
case that had been consolidated only for MDL purposes. As
the Court explained:
Cases consolidated for MDL pretrial proceedings
ordinarily retain their separate identities, so an
order disposing of one of the discrete cases in
its entirety should qualify under § 1291 as an
appealable final decision.
Id. at 904 (footnote omitted).
Relevant to the pending matter, the Court added, “We
express no opinion on whether an order deciding one of
multiple

cases

combined

in

an

all-purpose

consolidation

qualifies under § 1291 as a final decision appealable of
right.” Id. at 904 n.4. Because the McCullough and Haynes
cases,

the

subjects

of

the

pending

motion,

were

consolidated with other cases in the District Court for all
purposes,6

and

because

the

Supreme

Court

in

Gelboim

6

The Plaintiffs-Appellants dispute that the cases were
consolidated for all purposes. See Plaintiffs’ Memorandum of Law
in Opposition to Motion to Dismiss 3. They call our attention to
Katz v. Realty Equities Corp., 521 F.2d 1354 (2d Cir. 1975), and
Greenberg v. Giannini, 140 F.2d 550 (2d Cir. 1944). In Katz, the
district court explicitly consolidated cases “for all pretrial
purposes.” 521 F.2d at 1356. In Greenberg, the consolidation
“was only a convenience, accomplishing no more than to obviate
the duplication of papers and the like.” 140 F.2d at 552. The
consolidation orders in the pending cases give no indication
that consolidation was accomplished for anything less than all
purposes. See Fed. R. Civ. P. 42(a)(2).
8

Case 16-1231, Document 67-1, 09/27/2016, 1871352, Page9 of 9

explicitly

declined

to

express

an

opinion

on

the

appealability of a dismissal of one of multiple cases in
such

a

consolidation,

reconsider
Hageman,
papers

the
we

that

Gelboim

continuing

see

nothing

overcomes

the

does

not

oblige

to

validity

of

in

Plaintiffs-Appellants’

the

“strong

Hageman.

us

presumption

Applying

that

the

judgment is not appealable.” Hageman, 851 F.2d at 71.
Accordingly, the motion to dismiss the appeals in 161231 and 16-1237 is granted, without prejudice to renewal
of these appeals upon entry of a final judgment in the
District Court disposing of all the cases with which the
McCullough and Haynes cases have been consolidated.

9