§42.4 Comparison with Federal Rule

• Jurisdiction: Washington

§42.4COMPARISON WITH FEDERAL RULE

CR 42 is identical to Fed. R. Civ. P. 42, except that the federal rule identifies the Seventh Amendment and statutes of the United States as the sources of the right to a jury trial in civil cases in United States District Courts. Federal decisions under Fed. R. Civ. P. 42 are more numerous than ones under the Washington rule and are consistent with state court decisions, which reflect the appellate courts' reluctance to find error in trial court decisions regarding consolidation and separation.

Washington law differs from federal law on consolidation in one important respect. Asubstantial number of federal courts still follow the U.S. Supreme Court's rule on consolidation that predates the adoption of Fed. R. Civ. P. 42(a): "[Consolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another." Johnson v. Manhattan Ry., 289 U.S. 479, 496-97, 53 S. Ct. 721, 77 L. Ed. 1331 (1933); Cella v. Togum Constructeur Ensembleier en Industrie Alimentaire, 173 F.3d 909, 912 (3d Cir. 1999). See 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §2382, at 10 n.9 (3d ed. 2008 & Supp. 2013) for federal cases following this rule. Under Washington decisions, an order for consolidation creates a single new action and discontinues the former separate lawsuits, even if the court enters separate judgments at the conclusion of the consolidated action. First Nat'l Bank ofWenatchee v. Fowler, 51 Wash. 638, 99 P. 1034 (1909); Marcuson v. Nixon, 152 Wash. 437, 440-41, 278 P. 157 (1929); Jeffery v. Weintraub, 32 Wn.App. 536, 547, 648P.2d914 (1982) (citing First Nat'l Bank ofWenatchee, 51 Wash. 638).

However, Division II of the Washington Court of Appeals has held that in a consolidated action for tort and dissolution, the trial...