JAMES W. TRENZ, trustee, [Note 1] vs. FAMILY DOLLAR STORES OF MASSACHUSETTS, INC.

GREEN, J. When separately commenced cases are consolidated by court order, is a judgment entered in fewer than all of the consolidated cases appealable without a certification under Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974)? For the reasons explained below, we answer the question in the negative and dismiss the plaintiff's appeal.

Background. The plaintiff is the defendant's landlord under a long-term commercial lease. Claiming that the tenant was in default, the landlord commenced a summary process action in the District Court (herein, the summary process action). The tenant filed a separate action in the Superior Court, alleging (among other claims) breach of contract and a violation of G. L. c. 93A, and seeking a declaration of the parties' respective rights and obligations under the lease (herein, the breach of contract action). The parties thereafter jointly moved for the summary process action

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to be transferred to the Superior Court and consolidated with the breach of contract action, pursuant to Trial Court Rule XII, Requests for Interdepartmental Judicial Assignments (1996), and G. L. c. 223, § 2B. That motion was allowed. The parties then filed cross motions for summary judgment. After hearing, a judge of the Superior Court denied the landlord's motion and allowed the tenant's motion as to the summary process action and as to count II (the breach of contract count) of the tenant's complaint, but not otherwise. [Note 2] Judgment then entered on the docket of the summary process action dismissing the complaint in that matter. However, no certification was sought or was entered under Mass.R.Civ.P. 54(b). The landlord filed a notice of appeal, and the appeal thereafter entered on our docket.

Discussion. No Massachusetts appellate case has decided the question posed in the introductory paragraph. [Note 3] The question implicates Mass.R.Civ.P. 42(a), as amended, 423 Mass. 1402 (1996), and rule 54(b). [Note 4], [Note 5] Since both rules are substantially identical

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to their Federal counterparts, we look for guidance to cases interpreting the cognate Federal rules. See Rollins Envtl. Servs., Inc. v. Superior Ct., 368 Mass. 174 , 179-180 (1975).

In the present context, that guidance is decidedly mixed. The thirteen Federal circuits divide roughly into three camps. Three circuits require certification under Fed.R.Civ.P. 54(b) before a judgment in one or more, but fewer than all, consolidated cases may be appealed. See Huene v. United States, 743 F.2d 703, 705 (9th Cir. 1984); Trinity Bdcst. Corp. v. Eller, 827 F.2d 673, 675 (10th Cir. 1987), cert. denied sub nom. Morrel v. Trinity Bdcst. Corp., 487 U.S. 1223 (1988); Spraytex, Inc. v. DJS&T, 96 F.3d 1377, 1382 (Fed. Cir. 1996). Eight circuits have adopted a flexible approach, with the requirement for certification dependent on the nature and scope of the consolidation order. See Ringwald v. Harris, 675 F.2d 768, 771 (5th Cir. 1982); Ivanov-McPhee v. Washington Natl. Ins. Co., 719 F.2d 927, 930 (7th Cir. 1983); Bank S. Leasing, Inc. v. Williams, 769 F.2d 1497, 1500 n.1, vacated on other grounds, 778 F.2d 704 (11th Cir. 1985); Hageman v. City Investing Co., 851 F.2d 69, 71 (2d Cir. 1988); Bergman v. Atlantic City, 860 F.2d 560, 567 (3d Cir. 1988); Phillips v. Heine, 984 F.2d 489, 490 (D.C. Cir.), cert. denied, 510 U.S. 905 (1993); Eggers v. Clinchfield Coal Co., 11 F.3d 35, 39 (4th Cir. 1993); Tri-State Hotels, Inc. v. Federal Deposit Ins. Corp., 79 F.3d 707, 711-712 (8th Cir. 1996). [Note 6] The First and Sixth Circuits have concluded that certification under rule 54(b) is unnecessary as a prerequisite to appeal from a judgment entered in one of two or more cases consolidated under a rule 42(a) order. See In re Massachusetts Helicopter Airlines, Inc., 469 F.2d 439, 441-442 (1st Cir. 1972); Kraft, Inc.

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v. Local Union 327, Teamsters, Chauffeurs, Helpers & Taxicab Drivers, 683 F.2d 131, 133 (6th Cir. 1982). [Note 7]

We are persuaded by the reasoning in the cases requiring certification under rule 54(b) as a prerequisite to appellate review of any judgment entered in consolidated cases while other cases included in the order of consolidation remain pending. Inherent in both rules 42(a) and 54(b) is the goal of efficient management of claims and actions in the over-all interest of judicial economy. Rule 42(a) authorizes consolidation of "actions involving a common question of law or fact," and such further procedural orders "as may tend to avoid unnecessary costs or delay." Balanced against the concern for efficiency is the potential for prejudice to the parties. See Smith & Zobel, Rules Practice § 42.2 (1977); 9A Wright & Miller, Federal Practice and Procedure § 2383 (3d ed. 2008). Actions such as the present case, involving claims between the same parties that arise out of the same contractual relationship and which could have been raised as claims and counterclaims in a single action, are particularly suitable for consolidation. See Holmes Realty Trust v. Granite City Storage Co., 25 Mass. App. Ct. 272 , 279 (1988).

Rule 54(b) similarly is directed toward efficient use of judicial resources, "balancing the need for immediate review, based on the likelihood of injustice or hardship to the parties of a delay in entering a final judgment as to part of the case, against the appellate courts' 'traditional abhorrence of piecemeal appellate review,' . . . as a matter of sound judicial administration." Long v. Wickett, 50 Mass. App. Ct. 380 , 387 (2000), quoting from Atkinson's Inc. v. Alcoholic Bevs. Control Commn., 15 Mass. App. Ct. 325 , 327 (1983). Accordingly, when unresolved claims are closely related to others resolved by an interlocutory order, certification under rule 54(b) is to be avoided "except in 'unusual and compelling circumstances.' " Long v. Wickett, supra at 389, quoting from Spiegel v. Trustees of Tufts College, 843 F.2d 38, 45 (1st Cir. 1988).

In addition to their common purpose of judicial economy,

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rules 42(a) and 54(b) apply to similar subjects; both attempt to manage multiple claims or parties linked together in some way. In the case of rule 42(a), the rule is the means by which separate claims or parties are brought together, while rule 54(b) is the vehicle by which decisions resolving one or more claims, already linked in a single action, may be separated out for appellate review. [Note 8] Absent such separation, however, "any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties." Mass.R.Civ.P. 54(b).

It is the commonality of subject matter and purpose of the two rules that persuades us that rule 54(b) should be the vehicle through which the appealability of an adjudication in any case, while other cases consolidated with that case remain pending, is considered. "An appeal prior to the conclusion of the entire [consolidated] action could well frustrate the purpose for which the cases were originally consolidated. Not only could it complicate matters in the [trial] court but it also could cause an unnecessary duplication of efforts in the appellate court." Huene v. United States, 743 F.2d at 704. "[A]ny other rule would lead to the same piecemeal review Rule 54(b) seeks to prevent." Trinity Bdcst. Corp. v. Eller, 827 F.2d at 675. Moreover, it would be anomalous for an adjudication of one of several related claims to be treated as final and appealable while related claims remain pending (if initiated under separate complaints and then consolidated), but interlocutory and not appealable without a rule 54(b) certification (if brought in a single complaint, or by way of counterclaim in answer to the complaint). [Note 9]

We also reject the proposition that a flexible case-by-case approach

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is necessary to accommodate the variety of circumstances that may underlie consolidation orders. The question is not whether the treatment of varying circumstances should be afforded flexibility; instead it is whether the appropriate vehicle through which such flexibility should be administered is rule 54(b) or review by an appellate court in the first instance. Rule 54(b) offers the benefit of well-developed procedural and substantive standards for considering the question whether the adjudication of one claim warrants appellate review while other related claims remain pending. A rule 54(b) certification also offers certainty to litigants on the question when a notice of appeal must be filed. [Note 10] Moreover, at least in the first instance, the trial court is at least as well equipped as the appellate court (if not better) to assess the relationship between an adjudicated claim and any claims that remain pending, and to assess whether an adjudicated claim should be certified for appellate review under rule 54(b).

Conversely, a rule leaving the question of appealability for determination by the appellate court creates unnecessary uncertainty, requiring litigants to file a notice of appeal upon adjudication of a case that has been consolidated with other cases in order to avoid losing their right of appeal if the case is thereafter determined to have been one in which the adjudication should be treated as final. [Note 11] And directing such inquiries to the appellate court is at odds with the purpose of rule 54(b) itself, creating its own separate category of appellate litigation.

Because the judgment in the summary process action was not certified for appellate review under rule 54(b), the appeal must be dismissed as premature.

So ordered.