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)

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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.
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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	
	
                                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   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


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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           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).

     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       in    the     District     Court.        The    Plaintiffs-

Appellants        oppose        dismissal,       urging        us    to        reconsider

Hageman      in   light     of     the     Supreme        Court’s         decision       in


                                           3	
	
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                            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.
																																																																		
	
                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	
	
       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     years         later         we    again        considered        the

appealability       of    an     order    dismissing         a    complaint      in   a
                                          5	
	
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

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.

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Based Financial Instruments Antitrust Litigation, Nos. 13-

3565, 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	
	
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	
	
explicitly          declined    to     express     an    opinion       on    the

appealability of a dismissal of one of multiple cases in

such     a    consolidation,     Gelboim      does      not   oblige    us    to

reconsider      the    continuing      validity    of    Hageman.      Applying

Hageman,       we    see   nothing     in    the   Plaintiffs-Appellants’

papers       that   overcomes    the    “strong    presumption      that     the

judgment is not appealable.” Hageman, 851 F.2d at 71.

       Accordingly, the motion to dismiss the appeals in 16-

1231 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.




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