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Ivanov-Mcphee v. Washington National Insurance Co.

decided: October 26, 1983.

SHARON M. IVANOV-MCPHEE, PLAINTIFF-APPELLANT,
v.
WASHINGTON NATIONAL INSURANCE COMPANY, AND HERBERT GEIST, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78 C 2948 -- James B. Moran, Judge.

Pell and Cudahy, Circuit Judges, and Gibson, Senior Circuit Judge.*fn*

Author: Cudahy

CUDAHY, Circuit Judge.

Appellant, Sharon M. Ivanov-McPhee, brought a total of ten lawsuits alleging employment discrimination; four of these suits named the appellee, Washington National Insurance Company ("Washington National") as a defendant. The ten cases were consolidated on motion of the plaintiff for purposes of discovery and trial, and a multiple-count complaint was filed. The district court dismissed Washington National from the case, and Ms. Ivanov-McPhee appealed. We dismiss the appeal for lack of jurisdiction.

I

In 1978 Sharon M. Ivanov-McPhee brought an action pro se (docketed as No. 78 C 2948) alleging that Washington National had discharged her in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq. Between 1978 and 1980, Ms. Ivanov-McPhee filed nine additional pro se lawsuits against a number of other defendants, alleging discrimination and retaliation. Three of these additional lawsuits named Washington National as a defendant. In No. 79 C 4697, Ms. Ivanov-McPhee sued Washington National and the Metropolitan Life Insurance Company, alleging that Metropolitan had discriminatorily refused to hire her and that Washington National had retaliated against her for having filed discrimination charges, by giving out false adverse information about her to potential employers; if proven, such retaliation may constitute a violation of Title VII, see 42 U.S.C. § 2000e-3. In No. 79 C 4933, Washington National was sued as a co-defendant with Victor Mascula and Sun Life Insurance Company for acts of retaliation involving the circulation of bad references; in No. 79 C 4936, Washington National was sued, along with Equifax Services, Inc., on similar grounds. The six other pro se actions filed in 1978 and 1979 did not name Washington National but focused primarily upon allegations of discrimination by various potential employers against Ms. Ivanov-McPhee resulting from her filed charges under Title VII.

After the district court appointed counsel for the plaintiff, Ms. Ivanov-McPhee moved in 1980 to consolidate all ten actions for discovery and trial and to file one amended complaint with respect to them all. The court granted this motion; and ultimately a thirteen-count Second Amended Complaint was filed, setting forth the plaintiff's claims against all of the defendants in the ten consolidated cases. In an order dated October 12, 1982, the district court dismissed several of the counts alleged in the amended complaint, including the three counts which involved Washington National; however, other counts and other defendants named in the counts against Washington National remain below.

On November 4, 1982, the plaintiff filed a notice of appeal "from the judgment and order entered against her dismissing her Second Amended Complaint as against defendant Washington National Insurance Co. . ." The appellant's brief limited itself to discussion of the issues raised by dismissal of Case No. 78 C 2948, the original discriminatory discharge suit against Washington National; and appellant continues to insist that it is only that action which is before us on appeal.

On May 9, 1983, oral argument was held in this case. At that time this court raised sua sponte the question of jurisdiction, since the discharge claim against Washington National was only one segment of the multi-party action below, and no certification under Federal Rule of Civil Procedure 54(b) had been obtained from the district court. Upon order of the court, supplemental briefs on this question were subsequently filed by both parties. In them, Ms. Ivanov-McPhee argues that her original action against Washington National, although part of a consolidated case, has retained its separate identity. Since the October 12th order disposed of that case in its entirety, she contends that the judgment is a final order as to No. 78 C 2948 and appealable without Rule 54(b) certification. Washington National, on the other hand, maintains that the ten separate actions were merged into one lawsuit by the consolidation and filing of the amended complaint and that, absent Rule 54(b) certification, this court does not have jurisdiction over what is an appeal from an order dismissing some but not all of the parties from a multi-party action.

II

We are faced with an apparent collision between two rules of law. This court, of course, has jurisdiction only over appeals as to which a final judgment has been entered by the district court. 28 U.S.C. § 1291. In a case involving multiple claims or multiple parties, the district court may direct the entry of a final judgment as to fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. FED. R. CIV. P. 54(b). The policy underlying both the finality rule and the requirement of Rule 54(b) certification is to prohibit "piecemeal" appeals except under certain limited circumstances. See FED. R. CIV. P. 54(b) advisory committee note.

On the other hand, another rule as generally articulated indicates that actions which have been consolidated do not lose their separate identity. See, e.g., 9 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2382, at 255 (1971); Johnson v. Manhattan Railway Co., 289 U.S. 479, 496-97, 77 L. Ed. 1331, 53 S. Ct. 721 (1933).*fn1 This supposed separate existence has led some courts to conclude that Rule 54(b) certification is not a prerequisite to appeal when the district court enters an order finally determining an individual action which has been consolidated with others. See, e.g., In re Massachusetts Helicopter Airlines, Inc., 469 F.2d 439, 441 (1st Cir. 1972). We note, however, that the cases which have so held have primarily involved multiple plaintiffs, see id.; Jones v. Den Norske Amerikalinje A/S, 451 F.2d 985 (3d Cir. 1971), and have therefore implicated the concern that individual litigants retain control over the conduct of their own litigation. See Massachusetts Helicopter, 469 F.2d at 441; 15 C. WRIGHT, A. MILLER, & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3914, at 544 (1976). The case before us, on the other hand, involves a single plaintiff who has obtained consolidation of a number of lawsuits upon her own motion.

This difference illustrates that there are many different types of consolidation -- of plaintiffs, of multiple defendants, of both plaintiffs and defendants, of claims -- and the consolidation may be for more or less limited purposes. Wright and Miller speak of three different types of consolidation, including ones:

(2) Where several actions are combined into one, lose their separate identity, and become a single action in which a single judgment is rendered. An illustration of this is the situation in which several actions are pending between the same parties stating claims that ...


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