we'll hear argument first this morning in case sixteen eleven fifty hall versus hall was to simpson mr chief justice may it please to court ever since the judiciary act of seven hundred eighty nine there has been a right of appeal for a final judgment we that this court support the right of appeal in this case because for three reasons first it comes from a final judgment entered in the case it provides a bright line rule that brooks no exception when a final judgment is entered you have a right of appeal second rule forty two does not merge cases there is a careful architecture in the federal rules from rules thirteen through rule twenty four designed to bring cases that should be tried as one t together rule forty two on the other hand is for the exceptional case that doesn't fall within the catholic categories that fall under rules thirteen through twenty four and there's no reason for merger in those cases please explain to me what the purpose of forty two dividing it up into two sections is search because you don't need the b section under your reading why i used the word consolidate joining for a hearing or trial is designed for the case that the judge wants to keep on separate tracks but has a reason to have c in on the bus hearing whereas forty two a two is for true consolidation whether it's for trial for hearing for pretrial i don't understand the necessity meaning if we had only a one the court could do exactly what you're saying as well it didn't need to accomplish what anyone already it suggests to me that there's a separate purpose to i agree that there is a separate purpose i think that in the footnote for in the ringwald case explains the old consolidation statute actually is embodied in a two and a three is a one that is new so there was consolidation before and a two and a three continue the consolidation what a one does is allow for as i say on the bus hearing where the cases remain on separate tracks and if i can give an example of how that would work suppose there was a mass tort a industrial explosion you have a class of plaintiffs separate actions that are death cases you have some who are terminally ill from this case from this explosion you have some that property damage only the court might decide i'm going to consolidate under a two the death cases and the people who are terminal and the prop and and the eighth and the property damage so we have three separate groups three separate tat traps it makes sense to keep those cases together and consolidate them under eight but there might be for example the initial hearing where the judge says despite that i've got these three groups of consolidated cases separately consolidated i also have overriding administrative business to do and i'm going to do that under a one i'm going to have an on the bus pretrial hearing under a one i'm going to bring everyone together i'm not consolidating these three groups situation if there's a partial entry of judgment on one of the claims you can't appeal how is this different the are you talking about where the plane to us filed separate lawsuits or just one last one lawsuit with multiple claims because that's entirely correct and under rule fourteen if c was reliable to be for something arising out of the a versus speech laws that could be brought as one lawsuit mr simpson i guess i don't understand your answer to justice and my you are justice ginsburg because although this suit does present this different kind of issue i took it that your argument would apply just as well to a suit in which somebody has five claims splits them up into five different lawsuits and you're saying that should be treated the same way that one claim with one suit with those five claims is i don't think that those are well i think if it gets to the point where a final judgment is entered because the case is not that managed so from an early point of the case where in that situation what the courts too is under rule twelve b sects they they say that this is this you have five different lawsuits going on once one is decided you're facing res judicata a and the other four and what they do is they order the  plaintiff to file all of their claims in one case and then they dismissed the other four so that's how that's handled under the architecture of the rules that shouldn't even come up under rule fortunately because the the bigger point that i'm making is that it's you to me tha point out in the briefs that when you have that kind of a case what the court of appeals can do is stable but i actually believe that more importantly the district court should be managing those early audit you should never get to that point when you don't take it it's  correct isn't knew that if you prevails and so that you can appeal you must appeal absolutely and that's why i say that if if that case but justice kagan is descried gets to that point then yes must appeal and then i think the court of appeals has the ability to look at them and say well this case should have been brought as one case and i'm going to state the court can say i will state that but i mean i think yes but i think most people would think that the district court has a greater familiarity with the litigation particularly since the court of appeals mean knew nothing about it until you get a notification and understands how related the two cases are or how not related they are and maybe the ability to consolidate ought to continue to rule i mean to keep from pieces together to the extent appropriate on to remain with the district court rather than suddenly throwing the issue before  appeals that is new to the whole litigation it that's certainly the argument that has been made by the a mickey but i think if you look at the architecture of the rules again rule twenty three f also deals with an appeal coming up  started an account the timing then became a separate thing i think the court can do that i don't think that would be appropriate i don't think that's what the rules and to subpoena if and you know it under rule seventy two if a judgment is entered on the docket after a hundred fifty days is deemed final so i think there's a there's an indication the rules that we want these cases to move along but if there's if these questions indicate there's a whole wide range of possibilities here  and you're saying that the district judge which is the chief justice pointed out is really better situated to decide whether the appeal should be held that has very little authority to do counterclaims rule fourteen third party practice rule nineteen joined of indispensable parties that's where these footnotes seven cases and boy with the cases that should have been filed as one that's where that's supposed to entered after your case is dismissed and a final judgment is entered you can have a situation where you don't know how the court is going to deem it consolidated because if i understand their argument if it's consolidated for trial they agree that it can be appealed i'm not sure what the stipulation would even say i think i think the stipulation that circumstance would be part is an eleven fifty four who have the final judgment would stipulate in the court of appeals to a stack and say we agree that this should remain in the bands and till the rest of the case is decided but that allows the party to protect the right of appeal with the court of appeals will have something to say about that that the courts of appeals don't like to have matters just resting on their docket depending upon matters of years before that district court might get to the other matter certainly but i think if the parties are coming to the court and explaining why they think it should be a state i don't the court of appeals might disagree and that's this rocket for the courts of appeals have preferred the practice of deferring everything until there's a final judgment on the final matter in the district court could they just have a rule local practice of deferring cases along the lines that we've just discussed i think i think if they can have a rule for cases that should have been filed as one going no seven cases i'm talking about for cases just like this if we're in a circuit that prefers as a matter of practice to wait until everything's done is there anything inhibiting them from adopting the rule staying in cases where there's another related matter of still cases are supposed to be administered for the speedy ministration of justice median efficient and i think a blanket rule like that would run counter to that i think if the court exercised its discretion to look at h k yes and say well we think this should be state i think that would  pass muster so because you were arguing this point before the civil rules committee and so on the question would be what is the best procedure what would your argument be why is the procedure you outline a better one than the alternative why it reason is a better one is because it provides this bright line rule you cannot be trapped when you have a final judgment you know you have to appeal there's indicated there's a problem in the double final judgment rule with not having a second final judgment actually entered there's the problem of not knowing why the case was that the court of appeals might disagree with you as to why the co with the alternative not provide a bright line rule so the alternative might be that if a case if cases are consolidated they are considered to be one case for purposes of the final judgment i think i think that's counter to whole a lot of history of this court and counter to the rest of that as we describe in the briefs the various problems with emerging cases a design a rule if you were following justice alito question your address in the rules improve the rules could you design a rule so that the parties or the judge does have an option absolutely it would be rule forty two a four and it would be provide that in cases that should have been brought as one under or could have been brought as one under the rules thirteen through twenty four the district court will have the power to merge them but if they don't fall within that category that is the gullible footnote so why is that better than rule fifty four b then this is what i'm getting at so you when i asked you why would you will be a better rule and part of your answer was there's a lot of history and authority on the other side but i'm asking you to disregard all that and say it's just a policy question why is your will better than a rule that says that when cases are consolidated they are considered to be one case for purposes of the final judgment rule and the district court of course can proceed under rule fifty four b wishes it creates a lot of murky rules for example if a plaintiff has what to play a private party plaintiff the sewing and the government is sewing and those two cases are consolidated wh entered yes and not only that i think there is evidence from not only from that but from the fact that when the motion for attorneys fees was not filed within fourteen days a final judgment the district judge denied the motion for fees for failure file it and timely fashion if that was not a final judgment could you not explain a little bit more how you read in rule fifty eight after of entry of a verdict or and two other occasions the clerk shall enter the judgment and the last of this are judged directs otherwise there's no guidance given to that will be counsel that's what it says i think  won with respect to general verdicts but then b to do with respect to special verdicts doesn't contain any parallel language like that and in fact suggests that that judgment has to be at a promptly what do we do about that i think i think i think it does have to be entered promptly and that i think that's what happened in this case it was i know probably not under fifty two but not under that set as i understood your answer to justice kagan and and justice ginsburg it was one of the reasons we don't need to worry about your proposed rule is that the district court has discretion to delay the entry of judgment and that that is textually found in the one which indeed it is with respect to general verdicts but there's no parallel language that you can rely on with respect to be two and does that diminish your argument by suggesting there the district court doesn't have discretion to delay the entry of judgment i don't i don't think it diminishes the argument at all i think we are advocating for the entry of judgment so whether it's under the water of the two i'm not sure that there's a distinction from our point of view to ask you a different kind of question mr simpson and it just really goes back to the language here we would you agree that you are understanding of what it means to consolidate cases is different from the ordinary meaning of that term i  think i'm not sure what the ordinary meaning of that term is quite frank well suppose i said to you that a company was going to consolidate two offices are they going to have two officers or one office typically i think people would think they would have one office so if you're talking about  the typical layman's understanding yes i think that means what so and it's not just lame and right i mean if you look at black's law dictionary it says a consolidation in civil procedure it defines as the court ordered unification of two or more actions into a single action so that's the black's law decks dictionary definition same thing to becomes  johnson tells us that consolidate for the purpose of that predecessor statute did not mean a complete merger trust so johnson is very much on your side but but johnson was interpret in a statute which although it similarly used the word consolidate was different in other respects and i'm wondering whether now that we're on a kind of blank slate we have a new rule it's different from the statute in a number of ways why we have to keep on giving this quite unusual understanding of the word consolidate why we have to keep on the same track why we can't just say you know what consolidate means consolidate it means two becomes one that that force your you are operating on a blank slate and you could do that but i think when you look at how the courts have interpreted consolidate there are many different understandings of the term and so and i think that's what the the rules have abided over the years there have lots of courts say look we're going to consolidate for some purposes but not all purposes and when a court does that of course it means something else it means just segments of these two lawsuits are going to come together but when the court says we're going to consolidate for all purposes i mean just the usual understanding of that is ok now we have one lawsuit in front of us and that would have consequences as to what we think the final judgment is when it comes and when your appellate rights would kick in yes your honor it but again even there the courts are all over the world on that some courts say all purposes has to i know but where we kind of get to figure out what's right and much wrong that's to all these courts that are all confused that's why we're here but i would submit then that if if that would be the definition then the cases must truly become to one of the climbs at that moment the clerk writes a separate piece of paper and it says final judgment as to that claim right i don't i don't know how it's important because because what i'm going to ask you is is  there is a single piece of paper here is there not yes and it says final judgment in rights case only so i thought perhaps there is a rule somewhere which says when there is a final judgment on a separate piece of paper you can take an appeal but there is no such rule that i can find rather what it says is the appeals courts have jurisdiction over every decision final decision it doesn't say final judgment and so if it says final decision and there is no place where it says you can always appeal from a final judgment then whether this counts as a decision for purposes of appeal is it a final decision is up for grabs and the policy arguments on the old statute and the old case are all relevant now have i got the question right i think so yes i do yes ok so then if we are going to decide if we decided against you and said no final decision does not always mean final judgement and indeed this is a case where the policy reasons they list for example where it doesn't count ok and you what havoc would we work a lot of having and i know you think that but i want to know what for starters there's always been the core going going not even back just to the judiciary act but of paper which says this is a final judgment in respect to claim number one of been there forty two claims in the case that piece of paper is entered is there always an appeal yes or no yes  unless the court of appeals decides that the judge does not apply oh so you will i will be able to find a where that supports this is that right and where is that authority in your brief because i want to the authority is for the proposition for getting consolidation that once a piece of paper under fifty four b is entered says final judgment in respect to some but not all of the case there is always an appeal where is that authority i think that's what rule fifty four b so where is the authority that says that's what rule fifty four b meet i've not sure that the question has come up and that must have come surely somebody has tried to take an appeal sometime from a judgment under fifty four b where there are ninety two parties in a case like b p they have four thousand parties ok and they one of them gets a partial judgment and it's entered under fifty four b once an appeal that's never come up ok you don't have the authority over fifty fo the order is issued it becomes appealable i don't know anyone who would challenge that unless they were claiming that the judge and not about the standard if there are no further questions logged or reserve the balance of my t to thank you mr chief justice and may it please the court the district your entering court entered in order here consolidating for all purposes the cases brought by brother and sister against each other instead of challenging that petitioner wants to appeal part of its claims now that maneuver runs headlong into determinations by both congress and this court that litigants can only appeal generally from final decisions if adopted my friend's rule how you square this with the fact that the district or did not read the motion for attorney's fees because it wasn't filed within within fifteen days of the final judgment absolutely so first of all just so tomorrow this is a late breaking claim in the reply claim that with that is i understand his argument it's that we had this case is not an all purpose consolidation case and i think to make that argument and using the attorney's fees as his rationale for that and i think to make that argument only in the reply brief at the merits stage fifteen that resolved all claims it was at that moment a final judgment and started three different clocks ticking one is the fourteen day attorneys fees clock will one is the rule fifty nine motion for a new trial which is a twenty eight day clock and one is the thirty day notice of appeal clock now the attorney's fees motion was filed actually twenty date days later after the fourteen day clock had expired had the motion been filed within the fourteen days it would have been out of time but the different what happened here is that the motion came in late and all the district court is saying which is the same thing that courts all over the country say is you don't get to start a new attorneys fees clock by filing after the fourteen day period a motion for rule fifty nine new trial more spread all practice says this is essentially a trap in gendered by the two thousand and nine rules that if it's not a final judgment at all which is your p final judgment until both all issues in both cases are resolved how does the fourteen day clock start so just is not a final just to our position is it is a final judgment when the piece of paper was entered on february fourth and what changed it and this is what rule fifty nine the advisory committee notes say is when you file a rule fifty nine motion it suspends what was otherwise a final judgment so we agree my friend could have brought his appeal february fifth absolutely yes we do justice ginsburg there's a few different points to make your number one is an all purpose consolidation cases it's very common to have two pieces of paper to judgments as there are here the gonzales case in the northern district of illinois  tucker case in the eastern district lots of cases say that you have to and you actually are mandated to have two pieces of paper even when you have all purposes consolidation but to go back to justice briar's question there is a no case zero case that says that when you f e to pieces of paper that that somehow changes things rather the court has always looked to the underlying substance is this two becoming one or is it two separate claim as if really it's just if it's if they're consolidated for all purposes why did the district court under separate judgments why didn't he wait and see well there's only going to be one judgment because these are all consolidated for all purposes so i should wait till we're ready to have one judgment because i again i think lots of times courts do it for a suspenders reasons but i don't think that that somehow takes back their all purpose consolidation why not just consolidate why doesn't it that's right get stuck if we have a district court that issues separate judgments i think pretty much any cautious litigator would take that seriously and file a notice of appeal because it's a signal from the district court that it is complete it is finished there is a final decision in this matter doesn't say for all purposes and then we have as the chief justice points out a later order from the same district court which i assume would take you seriously is a consolidation order it being a final judgment and all so h me out with that yes if i could first i'd like to just to use the language of the plain text of this order what the order is so number two is the following case is plural shall be consolidated number eleven fifty four and then thirteen ninety five and then the third piece is all submissions in the consolidated case shall be filed in case number three fifty four so to really does little cases become one kind of like me let's call them interested in the in fifty four i judgment as to some but not to all the parties or claims and once you as a lawyer see that piece of paper that says a final judgment you think i better appeal well i don't hear it now if there is nothing to the contrary there is a strong argument for doing the same thing here because lawyers then know once they see a piece of paper saying a final judgment appeal now sometimes they also have to know that if someone is moved for a new trial and it's granted then of course there is no longer a final judgment but that wouldn't be true in roof fifty nine or fifty what was it fifty dollars fifty four  in respect to a new trial for some of the other parties so that wouldn't affect the judgment on that says final judgment as to smith when jones gets a new trial on other issues and so why wouldn't the lawyer think exactly the same here so it's the same process it's the same thing it is totally consolidated perhaps no more and no less than an ordinary case with thousands of parties and thousands of issues so just barely answer a question then if i could i'd like to return to just the score such as question so the answer to your question is the part of rule fifty four which nobody has read yet and if you turn our read brief it to the appendix page three a reproduces fifty four and i'll just read a part of it to you when an action presents more than one claim for relief with his claim counter claim cross claim or third party claim or when multiple parties are involved the court may direct entry of a final judgment as to one or more but fewer than all now here's the horn language of cents down otherwise any order or othe decision however designated that adjudicates fewer than all the claims or rights and liabilities are fewer than all the parties does not end of the action so the rule fifty four just prior answers the question by saying look if you have a consolidated case and then not all the claims were counter claims all of the rights and parties are adjudicated then you're on notice that your case is not yet final and that's what we're asking you to do which is that rule is a read preferred page fourteen points out every single circuit with the partial exception of the sixth circuit which is introduced contrary things and he wants to switch up the rule massively now justice course that you asked what about this order doesn't it suggest maybe that it wasn't all purpose consolidation as as i said the third circuit is the case comes to the court this is not a petition page for says this was all purpose consolidation at the oral argument they even asked this and said hey it doesn't used the word all purpose but the court relying on the third circuit precedent which is burke's from said if a decision this is the law in many many circuits if a decision doesn't say all purpose consolidation or not but everything is merged together it is treated as all purpose consolidation in that  thing that concerns me this is for all the back and forth the relatively simple case we're talking about two cases same lawyers same parties but consolidation can come up in a situation and often does when there are one hundred separate cases a mass tort situation and there is one waiting for the final judgment can be a very long wait and it could be very prejudicial i mean let's say it's in some sort of mass tort and some of the people have emotional distress damages others physical injury and early on the judge says look i don't think you can recover emotional distress so all the cases that just have emotional distress judgment is entered against them now let's go on to the other thing which is going to take five years doesn't your position make that extremely complicated no mr chief justice i think that this is this is really a bad solution of a friend in search of a problem there is no problem that is in those complicated cases there are three different independen safety valves and as this court in mohawk says they go a long way toward resolving this and for example the multiple claim case so there is rule fifty fourth the district court can can send a case up to the court of appeals there's twelve ninety to be  but there's already a final judgment in this case that for again and i didn't tell him otherwise so does some say just work i'm not aware of any case in the entire federal system that says because i entered a piece of paper with the we use the word final judgment that that alone is enough and to the contrary this goes back to justice briar's question mackey and cold metal processor both cases in which there was the designation of a final judgment but that wasn't enough because if you were solve only some of the claims or you resolve claims only against some of the defendants that's not enough you got to ask for the fifty four or have it sue a sponsor or explain to me you didn't think in your brief that there is a common issue is central to the resolution  son against the daughter the ammunition of a connection what is that what is that common issue central to the resolution of both of those the third circuit found in this is petition appendix pages eight and nine that there was overlap what and the central issues in both turn on the state of mind in the credibility of both the brother and the sister and that is what the and what the third circuit found that's why they were central and look i could imagine they could disagree with that but that's appealing the consol edition order not now going back and saying i want to break apart a chunk of know she should do exactly what the third circuit said ask for a fifty four b judgment or perhaps a twelve ninety two in the differences as the chief justice and justice kennedy were saying to my friend the district court is empowered under fifty four and twelve ninety two and they are the judgment to get it then it's meaning meaning that you had to get a fifty four b because as a same justice ginsburg any lawyer who read rule fifty four be the language i was reading to justice prior it says however you designate it in i'm not even sure use the word final judgment on that form but however you designated the designation alone is not enough that is the rule in circuit after circuit and you know if you adopt microsoft you have a trap for the unwary on the other side you know i think i'm maybe getting this you say look here's what you want us to say once you see your cases consolidated for all relevant purposes i mean there could be exceptions but forget that for all relevant purposes you have what the rules call a case with multiple claims involving multiple parties both and they're for what you do lawyer is if you want a quick appeal you tell the judge to make an express finding that there is no just reason for delay judge you must make that finding or you cannot enter a final judgment or whatever you call it it isn't a final judgment that's because of the otherwise language so you want the consolidation it would be nice if it explicitly but you want us to say it implicitly references fifty four b and that's how we should handle it is that right or wrong that is right and that is exactly what every circuit if the intent of rule forty two was to change that wouldn't that wouldn't the rule drafters have done so clearly but just to use the term consolidation doesn't it is certainly a clear signal that johnson's understanding of consolidation is no longer the one that's embodied in the rules just so you know we quite agree the plaintiffs are in general the masters of complaint but they're not masters of the timing of their appeal that is the whole purpose of the final judgment were all to empower district courts really to make that determination johnson was a partial consolidation case it was not a full purpose consolidation case and here is what the advisory committee notes in one nine hundred thirty seven set about this they said section seven thirty just as guns were we agree with you that sometimes if you adopt our rule it's going to benefit one side or the other i think the point we're making here is the same point that this court made in mohawk which is in general in the  well i think that i think that is the third circuit said yes there's so much overlap between these two that there can i mean if you have that offer treated what a claim against them and now is no wrong because they prevail after the trial and your judgement is well they can certainly appeal from that judgment to get that with this dismissed the claim against the law firm the question is only can i look right to claim against i just want to know is that on is wrapped up so if i understand your question they lost everything they lost in they will they didn't win any claims against us so the law firm has one and the and that the son has one in the trial and those are what those two pieces of paper are and my point to you is anything that the my friend on their side lost they can appeal the only question is the timing and if they are worried about the hardship they can use really fifty four or twelve news to watch on fifty fo more i get tripped up is the word action fifty four speaks of sending up stairs a claim within within an action and the federal rules consistently understand the word action to be the complaint the lawsuit in fact even this rule that we're now interpret ing speaks of actions rule to rule three so it seems to me that your dependance on fifty four runs into a bit of a plain language issue i don't think so i think that this court has always said that rule fifty four should be interpreted practically not technically it does have a kind of unique meaning that goes all the way back to makea and cold metal and the question is even if you have any answer on the text of action that will i think that the text of action is referred means a single judicial unit and duck and the rules empower a court to district court decide what is a single judicial units and this is why every circuit basically with the exception of the six says it is an action for purposes rule fifty four is a all purpose consolidated set of cases which it merged to becomes one that is in action now there are times when the rules use different words to use the same word to have different meanings in  attorneys fees for example are considered costs under any sort i'll say but not in the ones where action is used differently well i think actually you know i don't not sure that you should get into that and for purposes here in righted opinion that says action for all purposes not the world i'm just asking whether you're familiar any other place in the rooms well i don't know that it comes up really in any other rule as our bread brief explains the kind of idea that this is going to have some domino effect on other rules we don't think it's true to the extent it will matter it might matter and you know a couple of rules but if anything is professor stedman's article shows you know that might promote more efficiency but we think you shouldn't get into it there's a long tradition of the court adopting different meanings of words in the federal rules of civil sprit is that the whole point of the federal rules is to empower them is dispatchers to send up those cases the chief justice said pose unique hardships now justice ginsburg you had asked well the nine hundred thirty seven rules is question there are two different parts to rule forty two there's a two and there's a one and a one is to join for hearing any or trial any role matters that issue in the actions but two is broader it's to consolidate the actions and that's got to mean something more than just holding a joint proceeding like my friend on the other side said with this hypothetical that really does refer to and empower the district court to make an all purpose consolidation to make to one like a merica and was that in the prior statute mr cock you know that forty two a one which really does lead you to think about the term consolidation differently right so if i don't believe the prior statute did break apart these two and so i do think to minimize to lay and then separate from that you have this consolidation provision exactly justice kagan and so look i could imagine that you could twist the rule and mean it to be something else and try and get it out of johnson but boy before you did so and go against the plaintext i think you'd have to have a incredibly good reason to depart from the longstanding idea that federal district courts are best empowered as they are because briefed by federal judges as to make these determinations to with that right i mean i think you know you had you had a similar group before you and go boy and i do think that you know look we if we had more time we were i suppose we would've got more judges but we did want to bring to you the perspective i think the judges want to bring to the perspective of you know having of seven individuals i don't know that that represents the perspective of district judges generally it's just one data point but i do think it's a data point that square is very much what this court has said time and again and cold know richardson that district courts and complex cases to use what you were saying earlier mr chief justice are particularly suited to trying to decide whether or not cases are going to be interrelated and to allow piecemeal appeals but you know with the the permission of the district court is really to do something very dangerous to the foot to the circuits what do you think we should do if on the one hand we think your rule makes a lot of sense for can stay says that are consolidated completely for all purposes but on the other hand we're concerned that this case should not have been what should we do with that well i don't think you know that it's way too late to say this case should have been consolidated i mean that's stuff i think but waived it just seems afraid the way many of the questions that have been put to you really do deal with the question of whether consolidation was proper exactly mr brief a page forty three explains look you can appeal it consolidation order you can even do interlocutory basis there are cases that permit that that would have been the proper cause of action but to fight in this is my opening lines to today to fight about that you know through the guise of trying to say well i get to file a right of appeal he's complaining about consolidation let him complain about consolidate you know he should've complained about it and other litigants can in other cases but don't try and twist world fifty four in rule forty two to try and accommodate that that's a very separate thing you that's an argument he could have used to try and oppose consolidation but at this point i use this case comes to the court i don't think that would be appropriate not to the extent we're worried about abuse about consolidation or something like that i think justice alito idea of the national federal rules committee is one to think about this but i don't think it would be good idea to use local rules and have geographic variations circuit to circuit and people having to wonder whether or not they have to found though this is appeal and you know whether there be any right to be clear if it were in the rules rather than in the case law which is currently so split well i don't think it's actually split mind if i go back to reason why we took this case is because there is a split well only with the partial exception of the sixth circuit our brief goes through all of these cases when you deal with all purpose consolidation has split is about partial consolidation in general there's only a three cases we've been able to find in the sixty two of which are unreported that disagree with what every other circuit that we've been able to find that's ruled on this is found so i think all we're is leave the rules where they are to the extent you're concerned about any you know problems with the rules any problems with consolidation i think the national rules committee is the place to be for nothing seems thank you coun l mr simpson four minutes the the characterization of this consolidation changed in the from the opposition to the right for  brief at the read brief at the search area stage it was characterized as we did as a consolidation for trial and that's what it was i think it's important to understand that all of the circuits disagree about even what is consolidation for all purposes the bars in case from the third circuit says a case consolidated for pretrial and trial purposes is for all purposes that's what happened in our case it was consolidated for pre trial and trial and so under the third circuit definition it is all purposes other circuits have a completely different definition and they talk about in the unitary consolidation type of case there is one docket there was one judgment entered not to they call that all purpose consolidation so that's one of the problems we have here the rule fifty four justice core such as you noted refers to a single action there's nothing in the amendments to the early adoption of the  to suggest that the rules committee was planning on overruling a supreme court precedent from the year before that said cases don't merge merge doesn't appear in the federal  to correct one statement in reference to a question asked by justice ginsburg your honor the son's case is still not final so it is not two years we are now three years february will make three years since the entry of the final judgment advisement the verdict then came and and he's never ruled on that and then at the same time they also filed in written one before what's the for the prince your client verdict was against it also in our individual capacity and one just one quick clarification on this case there are two different else as in this case they are not the same parties and her individual capacity is legally distinct from as the trustee of the trust