NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 15

- 1564

_____________ ELSA HALL, As Personal Representative of the Estate of Ethlyn Louise Hall and as Successor Trustee of the Ethlyn Louise Hall Family Trust, Appellant

v. SAMUEL HALL; HALL & GRIFFITH, PC

_______________ On Appeal from the District Court of the Virgin Islands (D.C. Nos. 3

- 11

- cv
- 00 054 and 3

- 13

- cv
- 0 00 95) District Judge: Hon. Curtis V. Gomez

_______________ Ar gued December 12, 2016 Before: CHAGARES, JORDAN and HARDIMAN, Circuit Judges

.

(Filed: February 10, 2 0 17 )

_______________ Andrew C. Simpson [ARGUED] Andrew C. Simpson Law Offices 2191 Church St reet, S uite 5 Christiansted, VI 008 2 0 Couns el for Appellant2

Marie E. Thomas

- Griffith [ARGUED] Hall & Griffith No. 91B Solberg P.O. Box 305587 St. Thomas, VI 00803 Cou nsel for Appellees

_______________ OPINION *

_______________ JORDAN, Circuit Judge

. We are asked to intercede in a feud over the inevitable

– death and taxes. Ethlyn
Hall , an elderly landowner in the Virgin Islands , filed suit against her son when she g rew dissatisfied with his actions as her attorney . After Ethlyn passed away, one of her daughter s, Elsa Hall , served as personal representative of the e state (the “Estate”) and continued to press Ethlyn ’ s claims against Samuel. Samuel brought claims of his own against Elsa in a separate proceeding . He argued t hat Elsa had poisoned his relationship with his mother , which caused him serious
emotional distress. The Estate ’ s claims and Samuel ’ s claims were consolidated and trie d together. A jury rejected the Estate ’ s claims and rendered a two million dollar verdict in
Samuel ’ s favor. The District Court entered separate judgments on both aspects of the jury’s decision.

* This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.3

Not surprisingly, t he Estate has appealed the judgment with respect to its claims.
It did not, however, appeal the judgment in favor of Samuel because the District Court granted a post

- trial motion vacating the jury verdict

. Samuel ’ s claims are still awaiting
retrial

. He therefore argues that we do not have juri sdiction over this appeal while his claims are still pending in the District Court

. We agree and will dismiss the appeal.
I . B ACKGROUND 1 Ethlyn Hall had once been close to her son Samuel, and he had provided many hours of free legal work for her

. The two had a falling

- out, howev er, over his efforts to develop one of the parcels of land that she owned on St. John. Ethlyn claimed that
Samuel h ad taken advantage of her trust and the power of attorney she had granted him when he renegotiated a lease and receive d a large cash payment in connection with the

co nstruction of a home she had allegedly agreed to fund for him

. After learning of that transaction , and t he associated tax consequences, Ethlyn cut off contact with her son. As her health deteriorated, she moved to Florida to l ive with
Elsa. She altered her trust to designate Elsa as the sole successor trustee and two of her grandchildren as the sole beneficiaries. Ethlyn then filed suit aga inst Samuel, in both her individual capacity and as trustee of her inter vivos trust

. 2

1 The facts in this case are hotly contested and complex. Because we conclude that we lack jurisdiction, we focus on the procedural history necessary for understanding that conclusion and only touch on the underlying facts as needed for clarity.

2 The Amended Co mplaint alleged that Samuel had 1) breached his fiduciary duties as Ethlyn’s attorney; 2) breached his fiduciary duties by abusing his power of attorney; 3) committed legal malpractice; 4) improperly converted Ethlyn’s property for4

Ethlyn ’ s claims were in su s pense for some time pending the resolution of a n ultimately unsuccessful motion to dismiss in the District Court

. Before that motion was
resolved , Ethlyn died and Elsa took over as the personal representative of the E state and
the trust’s sole trustee. Samuel then filed a separate suit against her in her individual capacity

. He argued that she had harmed him by turning his mother against him, surreptitiously taking Ethlyn away from the Virgin Islands without informing other
f amily members, and keeping her hidden from loved ones until her death. 3
Samuel’s claims against Elsa were consolidated for all purposes with the Estate’s claims against him

. 4 The Estate moved to sever , arguing that consolidation would confuse the jury and be prejudicial to the Estate, 5 but t he District Court did not respond
to the motion to sever or explain its decision to try the claims together

. Most of the claims brought by both parties were dismissed before trial on a variety of grounds. As a result, the only claims that went to the jury were the Estate’s

his own benef

it; 5) refused to return to Ethlyn her legal files (conversion); 6) committed fraud by deceiving Ethlyn about the lease renegotiation; and 7) been unjustly enriched through the proceeds of the lease renegotiation. Ethlyn also demanded an accounting, a con structive trust, and an equitable lien on Samuel’s property.

3 His legal claims included intentional infliction of emotional distress, undue influence, breach of fiduciary duty, fraud, tortious interference, and conversion.

4 W hen the cases were firs t consolidated, Samuel had counterclaims and third party claims in the Estate’s suit that substantially overlapped with the claims in his separate proceeding against Elsa. Those claims were dismissed before the case went before the jury.

5 Samuel opp osed the motion to sever by pointing out that the claims had been consolidated for over a year without complaint and arguing that there were common witnesses and issues.5

fraud, unjust enrichment , and breach of fiduciary duty c laims , and Samuel’s intentional
infliction of emotional distress claim

. The jury rejected all of the Estate ’s claims. It also
found El sa liable for intentional infliction of emotional distress and awarded Samuel $500,000 in compensatory damages and $1,500,000 in punitive damages. The Distr ict Court entered separate judg ments on the two sets of claims , and t he Estate immediate ly
filed th is appeal concerning its claims against Samuel

. With regard to Samuel’s claims, Elsa filed a motion for a directed verdict or , in the
alternative , a new trial

. The C ourt concluded that the jury might have relied on a legally untenable basis for finding intentional i nfliction of emotional distress, so it ordered a new
trial. Samuel filed a motion for reconsideration , wh ich remains pending

. He asked the
District Court to either allow for additional argument s or to certify the determinative legal question to the Virgin Islands Supreme Court. We stayed review of the Estate ’ s appeal pending the resolution of Elsa ’ s post

- trial
motions. That stay was automatically lifted once the District Court ordered a new trial , and we declined to further stay the appe al pending the resolution of Samuel’s motion for
reconsideration.
I I . J URISDICTION 6
Samuel has filed a motion to dismiss this appeal on jurisdictional grounds. 7 He claims that we lack jurisdiction since there are outstanding motions before the District

6 The District Court had diversity jurisdiction under 28 U.S.C. § 1332. For the re asons set forth herein, we lack jurisdiction.6

Court concerning his claims against Elsa. The Estate responds that , because the District Court entered separate final judgments , the two cases should no longer be seen as consolidated for purposes of appeal. We think Samuel has the better of this partic ular argument.
The case is in a n unusual procedural posture. The C lerk of the District Court

enter ed what is styled as a final judgment with regard to the Estate’ s claims , and

o rdinarily such a judgment would , of course, be appealable. 8 The problem is th at
Samuel ’ s claims against Elsa remain outstanding, a nd t he District Court never entered an order severing the cases, n or did t he Estate obtain a Rule 5 4(b) certification and
determination that there was no just reason for delay. See Ellio t t v. Archdioces e of N.Y. , 682 F.3d 213, 229 (3d Cir. 2012) (discussing the requirement s for Rule 54(b) certification)

. When two cases have been consolidated for all purposes, a final decision on one set of claims is generally not appealable while the second set remai ns pending. Bergman v. City of Atl. City , 860 F.2d 560, 563 (3d Cir. 1988); see also Morton Int ’ l , Inc. v. A.E. Staley Mfg. Co. , 460 F.3d 470, 476 (3d Cir. 2006) ( noting that appeal is generally not

7 Samuel also filed a motion to strike the Estate’s brief and appendix. Because we are dismissing for lack of jurisdiction, we do not consider that motion.

8 The only pending motion involving the Estate’s claim concerns attorney’s fees, and that would not typically bar us from hearing an appeal, Budinich v. Becton Dickinson & Co. , 486 U.S. 196, 202

- 03 (1988), n or would the fact that the District Court did not issue an explanation for some of its rulings

. S ee 3d Cir. L

. A

. R

. 3.1 (2011) (allowing, but not requiring, the trial judge to provide a written opinion or amplification up to 30 days after the docketing of a notice of appeal).7

available from an order terminating fewer than all claim s against all parties). However,

w e do not employ a bright line rule and instead consider on a case

- by

- case basis whether

a less

- than

- complete judgment is appealable. Bergman , 860 F.2d at 566. To make that
determination , we consider “ the overlap among t he claims, the relationship of the various parties, and the likelihood of the claims being tried together

. ” United States. v. $8,221,877.16 in U.S. Currency , 330 F.3d 141, 146 (3d. Cir. 2003); see also Bergman , 860 F.2d at 566 ; Hall v. Wilkerson , 926 F.2d 311, 314 (3d Cir. 1991). Considering those
factors , as well as the underlying question of whether “justice would be best served and judicial economy not compromised if separate appeals were permitted,” Bergman , 860 F.2d at 566, we conclude that the Estat e’s appeal is not properly before us at this time

. Both parties’ claims have already been heard together. Our cases allowing for separate appeals have typica lly involved claims that either were not consolidated for trial,
Hall , 926 F.2d at 314; Bogosian v Gulf Oil Corp. , 561 F.2d 434, 441 (3d Cir. 1977), or
had been consolidated for trial but ha d 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 tog ether and tried before a single jury. That counsels in favor of keeping the claims together on appeal. 9

9 The Estate wants us to analogize to a recent Supreme Court decision affirmi ng the appealability of final judgment in a case that was part of a multi

- district l itigation. Gelboim v. Bank of Am. Corp. , __ U.S. __, 135 S. Ct. 897, 905

- 06 (2015). But Gelboim is inapplicable because, with an MDL, consolidation is only for pretrial m atters. 28 U.S.C. § 1407.8

Moreover, the trial record illustrates some overlap of evidence among the claims

. W itnesses such as Samuel and Elsa would inevitably testify in a s uit involving either set
of claims , and both sets of claims may turn on how Ethlyn reacted to learning about Samuel’s lease renegotiation and who or what was influencing her thinking at th e time. Considering that the District C ourt decided that justice an d judicial economy were best served by consolidation in the first place, we will not second guess that judgment now by allowing piecemeal appeals. 10 T here will also likely be overlapping issues on appeal

on ce Samuel’ s claims become appealable, so waiting s eems the better course

. 11
III. C ONCLUSION
For the foregoing reasons, we will dismiss the Estate’s appeal for lack of jurisdiction.

10 Because we lack jurisdiction, we do not consider the Estate’s claim that due to the consolidation, it was prejudiced in presenting its case to the jury

. Our opinion here does not foreclose a subsequent challenge on that point

.

11 In addition, we note that the Estate could have sought Rule 54(b) certification and yet chose not to do so. Indeed, at oral argument, the Estate’s counsel conceded that nothing prevented him from seeking a Rule 54(b) motion even as the appeal was pe nding before us. T he Rules of Civil Procedure provide that mechanism to certify appeals when finality is either lacking or in doubt.