NOTES TO RULE 42
HISTORY: (Amended July 1, 1966)
Notes of Advisory Committee on Rules.
Subdivision (a) is based upon USC, Title 28, former § 734 (Orders to save costs, consolidation of causes of like nature) but insofar as the statute differs from this rule, it is modified.
For comparable statutes dealing with consolidation see Ark Dig Stat (Crawford & Moses, 1921) § 1081; Calif Code Civ Proc (Deering, 1937) § 1048; NM Stat Ann (Courtright, 1929) § 105-828; NYCPA (1937) §§ 96, 96a, and 97; American Judicature Society, Bulletin XIV (1919) Art 26.
For severance or separate trials see Calif Code Civ Proc (Deering, 1937) § 1048; NYCPA (1937) § 96; American Judicature Society, Bulletin XIV (1919) Art 3, § 2 and Art 10, § 10. See also the third sentence of Equity Rule 29 (Defenses--How Presented) providing for discretionary separate hearing and disposition before trial of pleas in bar or abatement, and see also Rule 12(d) of these rules for preliminary hearings of defenses and objections.
For the entry of separate judgments, see Rule 54(b) (Judgment at Various Stages).
Notes of Advisory Committee on 1966 Amendments to Rules.
In certain suits in admiralty separation for trial of the issues of liability and damages (or of the extent of liability other than damages, such as salvage and general average) has been conducive to expedition and economy, especially because of the statutory right to interlocutory appeal in admiralty cases (which is of course preserved by these Rules). While separation of issues for trial is not to be routinely ordered, it is important that it be encouraged where experience has demonstrated its worth. Cf. Weinstein, Routine Bifurcation of Negligence Trials, 14 V and L Rev 831 (1961).
In cases (including some cases within the admiralty and maritime jurisdiction) in which the parties have a constitutional or statutory right of trial by jury, separation of issues may give rise to problems. See e.g., United Air Lines, Inc. v Wiener, 286 F2d 302 (9th Cir 1961). Accordingly, the proposed change in Rule 42 reiterates the mandate of Rule 38 respecting preservation of the right to jury trial.