`
`No. 16-1150
`================================================================
`
`In The
`Supreme Court of the United States
`--------------------------------- ---------------------------------
`
`ELSA HALL, As personal representative of the
`Estate of Ethlyn Louise Hall and as Successor
`Trustee of the Ethlyn Louise Hall Family Trust,
`
`Petitioner,
`
`v.
`
`SAMUEL H. HALL, JR. and HALL & GRIFFITH, P.C.,
`
`Respondents.
`
`--------------------------------- ---------------------------------
`
`On Petition For Writ Of Certiorari
`To The United States Court Of Appeals
`For The Third Circuit
`
`--------------------------------- ---------------------------------
`
`OPPOSITION TO
`PETITION FOR WRIT OF CERTIORARI
`
`--------------------------------- ---------------------------------
`
`MARIE E. THOMAS GRIFFITH
`HALL & GRIFFITH, P.C.
`No. 91B Estate Solberg
`Post Office Box 305587
`St. Thomas, U.S. Virgin Islands
` 00803
`Telephone: (340) 715-2945
`Email: marie@hallgriffith.com
`
`Counsel of Record
`
`for Respondents
`
`================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`i
`
`QUESTION PRESENTED
`
`
`The Third Circuit Court of Appeals determined
`
`that the case before it is not separately appealable ab-
`sent certification under Federal Rule of Civil Proce-
`dure 54(b) because it had been consolidated for trial
`and pre-trial administration with a related case. The
`question presented by the petition is:
`
`Should the Court grant certiorari to consider,
`absent certification pursuant to Federal Rule
`of Civil Procedure 54(b), whether cases sched-
`uled and tried together should be appealable
`separately?
`
`
`
`
`
`
`
`ii
`
`CORPORATE DISCLOSURE STATEMENT
`
`
`There is no parent or publicly held corporation
`
`owning 10% or more of the stock of Respondent, Hall
`& Griffith, P.C. which is a professional corporation
`
`
`
`
`
`
`
`iii
`
`TABLE OF CONTENTS
`
`1
`1
`1
`4
`
`Page
`QUESTION PRESENTED .....................................
`i
`CORPORATE DISCLOSURE STATEMENT ........
`ii
`TABLE OF CONTENTS ........................................
`iii
`TABLE OF AUTHORITIES ...................................
`iv
`RESPONDENTS’ OPPOSITION TO PETITION
`FOR CERTIORARI .............................................
`INTRODUCTION ...................................................
`STATEMENT OF THE CASE ................................
`REASONS FOR DENYING THE WRIT ................
`
`I. There Is Unanimity Among The Circuits
`Regarding The Lack Of Jurisdiction Over A
`Separate Appeal Of A Case Consolidated,
`Scheduled And Tried Together With An-
`other .............................................................
` First and Sixth Circuits ............................
` Federal, Ninth, and Tenth Circuits ...........
` Second Circuit ...........................................
` Third, Fourth, Fifth, Seventh, Eighth and
`Eleventh Circuits .......................................
` II. There Is Unanimity Among All Circuit
`Courts That Rule 54(b) Certification Satis-
`fies The Jurisdictional Prerequisite For Ap-
`8
`peal ...............................................................
`CONCLUSION ....................................................... 10
`
`
`5
`5
`6
`7
`
`7
`
`
`
`
`
`
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Beil v. Lakewood Eng’g & Mfg. Co., 15 F.3d 546
`(6th Cir. 1994) ............................................................ 5
`Elliott v. Archdiocese of N.Y., 682 F.3d 213 (3d
`Cir. 2012) ............................................................. 8, 10
`FDIC v. Caledonia Inv. Corp., 862 F.2d 378 (1st
`Cir. 1988) ................................................................... 5
`Hall v. Wilkerson, 926 F.2d 311 (3d Cir. 1991) ......... 7, 9
`
`RULE
`Fed. R. Civ. P. 54(b) ............................................. passim
`S. Ct. Rule 10 ................................................................ 4
`
`
`
`
`
`1
`
`RESPONDENTS’ OPPOSITION
`TO PETITION FOR CERTIORARI
`INTRODUCTION
`Petitioner raises a question about the right of a
`
`party to appeal one of two separate but related cases
`in a consolidated case that has been consolidated for
`all purposes, including trial. Even if the question Peti-
`tioner raises were properly presented, there is no im-
`portant conflict among the circuit courts of appeals.
`Further, even if there were, Rule 54(b) provides an ad-
`equate remedy.
`
`--------------------------------- ---------------------------------
`
`STATEMENT OF THE CASE
`In April 2011, Samuel H. Hall, Jr. (“Samuel”) along
`
`with his niece, Yassin Hall (“Yassin”), sought the ap-
`pointment of a guardian for his mentally and physi-
`cally declining 94-year-old mother (“Mrs. Hall”). In
`avoidance of this, his sister, Elsa Hall (“Elsa”) took
`his mother from the Virgin Islands to an undisclosed
`location in Florida to live, all without Samuel’s and
`Yassin’s knowledge. Elsa also procured a lawyer to file
`suit against her brother as she sought to exploit her
`mother’s retirement income and assets. On May 9,
`2011, the lawyer Elsa procured filed suit on behalf of
`Mrs. Hall against her son, Samuel and his law firm,
`Hall and Griffith, P.C. (collectively “Respondents”),
`for breach of fiduciary duty, conversion, malpractice,
`and fraud. The focus of the lawsuit was to hold Re-
`spondents liable for an amount equal to the gifts Mrs.
`
`
`
`
`
`2
`
`Hall memorialized in writing that she had given be-
`tween 2003 to 2007 to Samuel and his sister Phyllis
`and Mrs. Hall’s granddaughter, Yassin, but not to Elsa,
`in order to assist them with the construction of homes
`on property Mrs. Hall gifted to them in 2002.
`
` While Samuel and Yassin prosecuted the guardi-
`anship action in the Virgin Islands Superior Court over
`the opposition of Elsa, Mrs. Hall died. Elsa was ap-
`pointed the administrator of Mrs. Hall’s estate and be-
`came the sole trustee of her trust. As such, Elsa
`amended the complaint filed in Civil No. 11-54 (“11-
`54”) and Respondents answered the amended com-
`plaint. Samuel also asserted a counterclaim against
`Elsa in both her individual and representative capaci-
`ties. He also sued Elsa in a separate action in her indi-
`vidual capacity in (Case No. 3:13-cv-95) (“13-95”). That
`lawsuit made essentially the same allegations against
`Elsa in her individual capacity that Samuel made
`against her in both her representative and individual
`capacities in the counterclaim in 11-54. Samuel then
`moved, in both actions, to consolidate the two cases.
`
`On February 14, 2014, the district court consoli-
`
`dated both actions for all purposes. The consolidation
`orders did not limit consolidation to pre-trial admin-
`istration. The two cases were then tried together de-
`spite a motion to sever the cases filed on the eve of trial
`by Petitioner. Throughout the litigation, including the
`trial, separate counsel represented Elsa in her two sep-
`arate capacities.
`
`
`
`
`
`3
`
`Prior to the start of the consolidated trial, and dur-
`
`ing the trial, the district court rejected substantial por-
`tions of Petitioner’s claims and substantial portions of
`Samuel’s claims. The jury returned a verdict in favor
`of Respondents, finding no liability on their part, and
`against Elsa in her representative capacity. The jury
`also returned a verdict in favor of Samuel and against
`Elsa in her individual capacity, awarding Samuel
`$500,000 in compensatory damages and $1.5 million in
`punitive damages.
`
`On February 4, 2015, the district court clerk en-
`
`tered separate judgments in each separate case. How-
`ever, on March 4, 2015, Elsa filed a motion for a new
`trial in the case against her in 13-95. Also, on March 5,
`2015, Elsa in her representative capacities filed an ap-
`peal in the Third Circuit in Civil No. 11-54 even though
`the district court did not enter an order separating
`11-54 from the consolidated case and Petitioner did
`not seek Federal Rule of Civil Procedure 54(b) (“Rule
`54(b)”) certification and a determination that there
`was no just cause for delay.
`
`Respondents moved to dismiss the appeal, assert-
`
`ing that the judgment entered in 11-54 was not final
`because there was not yet a final ruling in 13-95. On
`March 30, 2016, the district court granted the motion
`for new trial in 13-95 and vacated the verdict against
`Elsa individually.
`
`The Third Circuit asked the parties to brief the is-
`
`sue of jurisdiction in their appellate briefs. The issue
`was briefed and after oral argument on December 12,
`
`
`
`
`
`4
`
`2016, the Third Circuit issued an opinion determining
`it lacked jurisdiction over 11-54. On February 10, 2017,
`the Third Circuit dismissed Petitioner’s appeal for lack
`of appellate jurisdiction. Thereafter, on April 4, 2017,
`Civil No. 13-95 was retried in the lower court. On April
`6, 2017, the jury returned a verdict in favor of Samuel
`and against Elsa in the amount of $3,384,000 in com-
`pensatory damages and $6,618,000 in punitive dam-
`ages.
`
`A motion for a directed verdict and for a mistrial
`
`are pending in the case.
`
`--------------------------------- ---------------------------------
`
`REASONS FOR DENYING THE WRIT
`The Third Circuit Court of Appeals determined
`
`that Civil No. 11-54 is not separately appealable ab-
`sent certification under Rule 54(b) because it had been
`consolidated for trial and pre-trial administration with
`a related case. There does not appear to be an im-
`portant split among the federal circuit courts regard-
`ing whether cases scheduled and tried together may be
`appealed separately. None of the cases cited by Peti-
`tioner indicate an important split among the circuits
`within S. Ct. Rule 10. Second, Petitioner seeks to oc-
`cupy this Court with an issue that is addressable con-
`sistently in all circuits by the application of Rule 54(b).
`There does not appear to be any split among the cir-
`cuits regarding the effect of such a certification where
`there is no just cause for delay.
`
`
`
`
`
`
`
`
`5
`
`I. There Is Unanimity Among The Circuits Re-
`garding The Lack Of Jurisdiction Over A
`Separate Appeal Of A Case Consolidated,
`Scheduled And Tried Together With Another
`This case involves the narrow situation where two
`
`related cases were consolidated for all purposes, that
`is, for case management and for trial, and Petitioner
`sought a separate appeal of one of the individual cases.
`While Petitioner has cited to precedent in various cir-
`cuits seeking review by this Court, the cases cited by
`Petitioner do not indicate a split among the circuits re-
`garding the jurisdictional prerequisite of an appeal of
`an individual case that was part of a consolidated case
`where the individual cases that were consolidated
`were scheduled and tried together.
`
`
` First and Sixth Circuits
`
`The First and Sixth Circuit cases cited by Peti-
`
`tioner, FDIC v. Caledonia Inv. Corp., 862 F.2d 378 (1st
`Cir. 1988) and Beil v. Lakewood Eng’g & Mfg. Co., 15
`F.3d 546, 551 (6th Cir. 1994) do not address the issue
`of the appealability of an individual case that was con-
`solidated and then scheduled and tried together before
`a single jury to final judgment with another case. Ra-
`ther, those cases involve consolidated cases where an
`appeal was allowed of an individual case where sum-
`mary judgment has been granted in one of them. That
`is not this case. Thus, there is no indication in the First
`
`
`
`
`
`6
`
`and Sixth Circuit cases cited by Petitioner that the in-
`stant case would have been decided differently in those
`circuits than it was by the Third Circuit.1
`
`
` Federal, Ninth, and Tenth Circuits
`
`Petitioner concedes that the Federal, Ninth, and
`
`Tenth Circuits would rule on appeal the same way in
`connection with the instant case as the Third Circuit
`did and hold that “the dismissal of one of several con-
`solidated cases is not immediately appealable as of
`right.” Petitioner’s Brief at 7. As Petitioner concedes
`those circuits would refuse to accept jurisdiction:
`
`See Spraytex, 96 F.3d at 1381 (ruling that
`“there may be no appeal of a judgment dispos-
`ing of fewer than all aspects of a consolidated
`case”); Trinity, 827 F.2d at 675 (adopting “the
`rule that a judgment in a consolidated action
`that does not dispose of all claims shall not
`operate as a final, appealable judgment under
`28 U.S.C. § 1291”); Huene, 743 F.2d at 705
`(holding that “the best approach is to permit
`the appeal only when there is a final judg-
`ment that resolves all of the consolidated ac-
`tions”). Petitioner’s Brief at 7.
`
`Thus, there is no split among those circuits and the
`Third Circuit.
`
`
`
`1 The two circuits alternatively could have deemed consoli-
`dated cases involving summary judgment of one of the separate
`cases as Rule 54(b) compliant and achieved the same result. In
`essence the two circuits treat a final judgment by summary judg-
`ment as akin to Rule 54(b) certification.
`
`
`
`
`
`7
`
` Second Circuit
`
`Petitioner also acknowledges that “The Second
`
`Circuit would also decline jurisdiction over Petitioner’s
`appeal” Petitioner’s Brief at 7. Petitioner just does not
`like the way the Second Circuit expresses its decision.
`However, the fact that the Second Circuit reaches the
`same result as other circuits via a different rationale
`does not constitute or create a split among the circuits.
`Circuits are not split where they have different verbal
`formulations of the same underlying legal rule.
`
`
`
`
`Third, Fourth, Fifth, Seventh, Eighth, and
`Eleventh Circuits
`The Third Circuit held in the instant case, citing
`
`Hall v. Wilkerson, 926 F.2d 311, 314 (3d Cir. 1991) that
`it lacked jurisdiction to decide on appeal Petitioner’s
`individual case because the “dispositive” factor is “whether
`the cases were consolidated for trial or simply for pre-
`trial administration.” The instant case was consoli-
`dated for both. Petitioner virtually concedes that the
`Petitioner’s appeal “would have suffered a similar fate
`in the D.C., Fourth, Fifth, Seventh, Eighth, and Elev-
`enth Circuits” as it did in the Third Circuit. Petitioner’s
`Brief at 8. Thus, in no instance has the Petitioner iden-
`tified a case in which an appeal was allowed of an in-
`dividual case, absent Rule 54(b) certification, where it
`had been consolidated with another case for all pur-
`poses. The conclusion is inescapable that there is no
`split among the circuits concerning whether they have
`
`
`
`
`
`8
`
`jurisdiction over the appeal of an individual case that
`was consolidated for all purposes with another.
`
`
`II. There Is Unanimity Among All Circuit Courts
`That Rule 54(b) Certification Satisfies The
`Jurisdictional Prerequisite For Appeal
`Petitioner seeks to occupy this Court with an issue
`
`that is addressable consistently and tolerably in all cir-
`cuits by the application of Rule 54(b). National uni-
`formity among the circuits concerning the appeal of an
`individual case constituting part of a consolidated case
`is not essential where Rule 54(b) provides a national
`remedy that addresses the issue about which Peti-
`tioner complains.
`
`After the jury verdict in the instant consolidated
`
`case, Petitioner never sought Rule 54(b) certification of
`Petitioner’s individual action despite the eventual pas-
`sage of two years since the jury verdict was rendered
`and judgment entered thereon. Rule 54(b) is inter-
`preted in all circuit courts of appeals as allowing for an
`appeal of an individual case where there was no just
`reason for delay. See, e.g., Elliott v. Archdiocese of N.Y.,
`682 F.3d 213, 229 (3d Cir. 2012). Not only was Rule
`54(b) certification not sought by Petitioner at the out-
`set of this case, no supplemental order that otherwise
`satisfies this jurisdictional prerequisite was ever ob-
`tained. Had 54(b) certification been obtained, an ap-
`peal would have been allowed in all of the circuit courts
`of appeals. As far as Respondent is able to determine,
`there is no split among the circuits in interpreting
`
`
`
`
`
`9
`
`whether they have jurisdiction over a case that has
`been certified for appeal by a lower court.
`
`Petitioner’s failure to invoke 54(b) was noted
`
`pointedly by the Third Circuit in determining it had no
`jurisdiction to hear the appeal of Petitioner. Its ruling
`was also consistent with Third Circuit precedent that,
`absent 54(b) certification, cases scheduled and tried to-
`gether remain consolidated on appeal. Said the Third
`Circuit in Hall v. Wilkerson, 926 F.2d at 314:
`
`Among the criteria we considered in deciding
`whether the orders in Bergman and Bogosian
`were appealable were whether the cases were
`in the same forum with the same judge;
`whether the complaints and defendants were
`identical; whether plaintiffs had the same coun-
`sel in both actions; and, as noted, whether the
`cases were consolidated for trial or simply for
`pre-trial administration. Both Bogosian and
`Bergman found the latter consideration dis-
`positive. In Bogosian, we emphasized that the
`two cases had not been consolidated for trial,
`whereas in Bergman, they were. Moreover, in
`Bergman both the complaints were “substan-
`tially similar” in the two actions.
`
`Similarly, in connection with the instant case, the
`
`Third Circuit noted:
`
`Both parties’ claims have already been heard
`together. Our cases allowing for separate ap-
`peals have typically involved claims that ei-
`ther were not consolidated for trial, Hall, 926
`F.2d at 314; Bogosian v. Gulf Oil Corp., 561
`
`
`
`
`
`10
`
`F.2d 434, 441 (3d Cir. 1977), or had been con-
`solidated for trial but had not yet been tried.
`Bergman, 860 F.2d at 566; $8,221,877.16 in
`U.S. Currency, 330 F.3d at 146. By contrast,
`here, all of the claims were in fact scheduled
`together and tried before a single jury. That
`counsels in favor of keeping the claims to-
`gether on appeal.
`
`Hall v. Hall, Case No. 15-1564, Slip Op. at 8 (3d Cir.
`Feb. 10, 2017).
`
`Petitioner laments the fact that “After a two-year
`
`delay, briefing on the merits, and oral argument, the
`Third Circuit refused to accept jurisdiction over Pe-
`titioner’s appeal.” Petitioner’s Brief at 8. But after
`the jury verdict and final judgment, Petitioner never
`sought an order severing the cases, nor sought Rule
`54(b) certification and a determination that there was
`no just reason for delay. Elliott v. Archdiocese of N.Y.,
`682 F.3d 213, 229 (3d Cir. 2012). The fault then lies not
`in the circuits but with Petitioner. Whether Petitioner
`will continue to wait on a final order in 13-95 or decide
`to seek Rule 54(b) certification of an individual case
`remains to be seen.
`
`--------------------------------- ---------------------------------
`
`CONCLUSION
`Petitioner has presented no evidence of conflict
`
`among the circuits concerning appellate jurisdiction
`over cases consolidated for all purposes including trial
`before a single jury. Nor is there evidence of any con-
`flict among the circuits regarding the opportunity for
`
`
`
`
`
`11
`
`appellate jurisdiction where there is Rule 54(b) certifi-
`cation. The petition for certiorari should be denied.
`
`DATED: June 14, 2017
`Respectfully submitted,
`MARIE E. THOMAS GRIFFITH
`HALL & GRIFFITH, P.C.
`No. 91B Estate Solberg
`Post Office Box 305587
`St. Thomas, U.S. Virgin Islands
` 00803
`Telephone: (340) 715-2945
`Email: marie@hallgriffith.com
`Counsel of Record
`for Respondents
`
`
`
`
`
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