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Massachusetts Civil Procedure Rule 42: Consolidation: Separate Trials

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(a) Courts Other Than District Court: Consolidation. When actions involving a common question of law or fact are pending before the court, in the same county or different counties, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

(b) Courts Other Than District Court: Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial in the county where the action is pending or in a different county of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the constitution of this Commonwealth or as set forth in a statute.

(c) District Court: Joinder for Trial; Consolidation. When actions involving a common question of law or fact are pending before a single District Court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary cost or delay.

A party who moves for the consolidation and trial together of cross actions between the same parties or two or more actions, including other court proceedings, arising out of or connected with the same accident, event or transaction, pending in more than one District Court, shall file the original copy of the motion in any such court. The party making such motion shall send notices thereof forthwith, together with a copy of the motion, to interested parties and to the clerk(s) of the other court(s) involved in the requested consolidation. The party making such motion shall annex thereto a certificate stating the time and place of filing such motion, the names and addresses of all interested parties, and showing that the party has given such notices and the time and manner of giving the same. The said motion and certificate shall then be forwarded forthwith by the clerk to the presiding justice of the Appellate Division District of the said court and it shall be marked for hearing and all parties so notified. The clerk shall note upon the motion and docket the day and hour of the filing of same. All notices received by a clerk of the filing of a motion for consolidation in another court shall be docketed by the clerk in the proper case.

Upon allowance of any such motion, the presiding justice or some justice designated by the presiding justice shall make an order providing for the consolidated trial of the actions involved, and copies of such order shall be forwarded to the clerks of the courts involved in the requested consolidation. The clerk of the court in which the consolidated actions will be heard shall notify all interested parties of the order to consolidate. All papers filed in the case, all bonds, and a certified copy of the docket entries shall be forwarded by the clerk(s) of the court(s) of origin to the court where such actions or proceedings are consolidated, and such actions or proceedings shall thereafter proceed in the court to which they are thus transferred as though originally entered there.

If all the parties to any such actions agree upon consolidation and trial together, the order therefor shall be signed by the presiding justice or some justice designated by the presiding justice.

Whenever in this rule any reference is made to the presiding justice, in the Municipal Court of the City of Boston it shall be deemed to refer to the Chief Justice of that court.

(d) District Court: Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the constitution of this Commonwealth or as set forth in a statute.

Amended May 3, 1996, effective July 1, 1996; November 28, 2007, effective March 1, 2008.

Reporter's Notes (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 States 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.