MINER, Circuit Judge:
The interlocutory appeals subject of the motion before us arise from conjoined multi-party actions in the United States District Court for the Southern District of New York (Preska, C.J.). The actions arise from a March 8, 2005, maritime disaster (the "Casualty"), during which the M/V Rickmers Genoa vessel (the "Rickmers" or "Rickmers Genoa") collided with another vessel, the M/V Sun Cross, in the Yellow Sea. The Rickmers Genoa sustained flooding in one of her cargo holds, and a few hours later, an explosion and a fire occurred in the No. 1 cargo hold of the Rickmers Genoa, resulting in the loss of cargo and a life.
Owners and subrogated insurers of certain cargoes (the "Cargo Interests") that had been destroyed during the Rickmers Genoa incident filed four individual admiralty actions in the Southern District, seeking to recover for damage to the cargo in addition to amounts that were paid in salvage, against, inter alia, the (1) entities that owned and chartered the Rickmers Genoa on the date of the maritime casualty, defendants and third-party-plaintiffs appellants, Genoa Schiffahrtsges mbH & Cie. KG, Genoa Navigation Company Ltd., and Rickmers-Linie GmbH & Cie. KG (the "Rickmers Interests"); (2) Rickmers Genoa; and (3) defendants-third-party-defendants-cross defendants-cross claimants-counter claimants-appellees ESM Group Inc. ("ESM Group") and ESM (Tianjin) Co., Ltd. ("ESMT") (collectively, the "ESM Parties"). The ESM Parties were sued in their capacities as the manufacturer, shipper, and/or owner of the cargo (the "ESM Group Cargo") that is believed to have caused the explosion in the No. 1 cargo hold. Among the Cargo Interests were plaintiffs-appellants Chem One, Ltd., et al. (the "Chem One Plaintiffs" or "Chem One"),
In turn, the Rickmers Interests filed a third-party action asserting liability on the part of the ESM Parties as manufacturer, shipper and/or owner of the ESM Group Cargo. The Rickmers Interests predicated their claims on theories that included strict liability failure to warn; negligent failure to warn; breach of contract; breach of warranty; negligent misrepresentation; indemnity; and detrimental reliance. They sought to recover damages in compensation for their losses, along with costs and disbursements, in the total amount of $40 million.
On November 8, 2007, the ESM Group filed a motion for summary judgment "seeking the dismissal of all claims asserted against it in the[] con[joined] maritime actions arising from the collision between the vessels Rickmers Genoa and the Sun Cross in the Yellow Sea on March 8, 2005." By Order dated March 31, 2009, the District Court denied in part and granted in part the ESM Group's motion for summary judgment, dismissing some of the direct claims against it to the extent that they were predicated on theories of (1) common law negligence; (2) common law strict liability; (3) COGSA; and (4) breach of contract. In re M/V Rickmers Genoa Litig., 622 F.Supp.2d 56, 77 (S.D.N.Y. 2009). The court denied the ESM Group's motion for summary judgment insofar as dismissal was sought of claims brought against the ESM Group for the alleged actions and omissions of ESMT, a wholly-owned subsidiary of ESM Group, under agency and veil piercing theories of liability. Id.
On April 16, 2010, the ESM Parties filed a motion for summary judgment seeking dismissal of all remaining direct claims and third-party claims alleged against them. By Order dated November 4, 2010, the District Court granted in its entirety the motion for summary judgment and dismissed the remaining claims to the extent that they were predicated on theories of (1) strict liability; (2) negligent failure to warn; (3) breach of contract; and (4) detrimental reliance on a letter of indemnity. In re M/V Rickmers Genoa Litig., 752 F.Supp.2d 379 (S.D.N.Y.2010). In addition, because the court dismissed all claims against ESMT, the court accordingly dismissed the remaining causes of action, which had sought to hold ESM Group accountable for ESMT's actions and which the court had originally allowed to proceed in its March 31, 2009, Order. Id. at 393 n. 12.
The Chem One Plaintiffs' Notice of Appeal, filed December 6, 2010, in the District Court, appealed both from the District Court's March 31, 2009, Order and the court's November 4, 2010, Order. In their capacity as third-party plaintiffs-appellants, the Rickmers Interests filed Notices of Appeal appealing from the Order entered November 4, 2010.
In the motion before us, dated January 4, 2011, the ESM Parties moved to dismiss all of the captioned interlocutory appeals as premature, or, in the alternative, to consolidate the captioned appeals. The ESM Parties argue that the March 31, 2009, and November 4, 2010, decisions of the District Court, which form the basis of these interlocutory appeals, do not dispose of all the claims in the underlying multi-party litigation and therefore are not eligible for appeal pursuant to Federal Rule of Civil Procedure 54(b). The ESM Parties
For the reasons that follow, we deny the ESM Parties' motion to dismiss the captioned appeals and grant the motion insofar as it seeks to consolidate the captioned appeals.
The following account of the facts is derived from the District Court's descriptions as set forth in its decisions of March 31, 2009, and November 4, 2010. In re M/V Rickmers Genoa Litig., 622 F.Supp.2d 56, 59-63 (S.D.N.Y.2009); see also In re M/V Rickmers Genoa Litig., 752 F.Supp.2d 379, 381-84 (S.D.N.Y.2010). The District Court's recitation of the facts was derived from affidavits, Rule 56.1 Statements, testimony, and exhibits, with "all reasonable inferences ... drawn in favor of the Non-Moving Parties." In re M/V Rickmers Genoa Litig., 622 F.Supp.2d at 59-60.
Defendant-appellee ESM Group is a limited liability corporation organized under the laws of Delaware and registered to do business in the State of New York. Id. at 60. Prior to 2005, ESM Group was affiliated with a group of related companies consisting of ESM II Inc., ESM II L.P., and ESM Manufacturing, L.P.
SS-89 is "[u]sed as a desulphurizing reagent in steelmaking ... [and] is designed to be injected into molten iron ore to remove sulphur and make the steel less brittle. Because it removes sulphur and consists of approximately 89% magnesium, it is regularly identified under the English language trade name `Super-Sul Mg-89.'" Id. Magnesium-based products liberate hydrogen gas when they come into contact with water, especially sea or salt water. Id. Hydrogen gas is flammable and susceptible to exploding. "According to a Material Safety Data Sheet (`MSDS') prepared by ESM Manufacturing L.P., SS-89 poses unusual fire and explosion hazards and should be kept dry and away from water and moisture." Id. (internal quotation marks omitted).
In 1996, ESM Group formed a wholly-owned subsidiary, defendant-appellee ESM (Tianjin) Co., Ltd. ("ESMT") in Tianjin, China. ESMT is a limited liability corporation organized under the laws of the People's Republic of China. ESM Group allegedly formed ESMT to save production costs, obtain lower prices for materials previously imported by ESM Group, and avoid United States' anti-dumping regulations concerning the manufacture of SS-89. ESM Group established the ESMT plant, trained ESMT personnel,
When ESM Group desired a shipment of a magnesium desulphurization reagent, such as SS-89, from ESMT, ESM Group would send ESMT a Purchased Material Service Specification outlining the chemical and physical make-up of the desired product. Aside from these purchase orders, ESM Group and the related United States companies corresponded with ESMT managers about conforming the chemical composition of SS-89 to ESM Group's requirements. Id.
Sometime in 2000, ESM Group created and provided ESMT with a draft MSDS for the SS-89 product. Although ESM Group alleges that it "did not get involved in providing recommendations to [ESMT] regarding safety measures in the production, storage or transportation of products which [ESMT] produces," ESM Group, acting through its predecessor ESM II, directed ESMT to include its own MSDS for shipments of SS-89 and requested test data on the product from ESMT before shipments were to be made. Id. ESMT created its own MSDS for magnesium granules but apparently never created an MSDS for SS-89. ESMT's plant manager acknowledged that ESMT would have distributed an MSDS for SS-89 upon ESM Group's instruction to do so. Id.
In 2005, all of ESMT's production of SS-89 was sold to ESM Group, and ESM Group did not allow ESMT to sell SS-89 to other buyers. Of the other products that ESMT produced, only half were sold to buyers other than ESM Group. As such, 85% of ESMT total production was sold or supplied to ESM Group. ESMT's net profits in 2004 and 2005 were $10,000 and $45,000, respectively. ESMT did not report the payments ESM Group made to ESMT's raw material suppliers as taxable income. Id.
On or about January 25, 2005, ESM Group sent ESMT a purchase order for 900 metric tons of SS-89, "C.I.F. Baltimore."
On or about March 3, 2005, Pudong issued ESMT a bill of lading
On or about March 2, 2005, ESMT placed 600 metric tons of SS-89, of the 900 total metric tons of SS-89 ordered, into sacks. ESMT tested the sacks to ensure that they complied with U.S. Hazardous Material Regulations "dangerous when wet" criteria. Based on fresh-water testing, the results were normal and within United States regulatory standards. Id. ESMT placed the packages into containers. Then, Pudong picked up the containers and delivered them to the Xingang port that same day. On or about March 3, 2005, the containers were loaded aboard the Rickmers into Hold No. 1. Id.
On March 8, 2005, after having departed from the Xingang port and apparently stopping at other Chinese ports, the Rickmers collided with the M/V Sun Cross in foggy weather in the Yellow Sea. Id. The Rickmers suffered damage to her forward double-hull plating, and flooding occurred in Hold No. 1, where the SS-89 was being stored. Approximately four hours after the collision, an explosion occurred in Hold No. 1, and a fire ensued. The containers of SS-89 were completely destroyed. Id. The Chief Officer of the Rickmers died in the explosion. In re M/V Rickmers Genoa Litig., 752 F.Supp.2d at 381. The Rickmers's Captain had not been aware, until the fire broke out, that the SS-89 was "some kind of a mixture with magnesium." Id. at 384 (internal quotation marks omitted).
In the wake of the disaster, the Cargo Interests—i.e., the owners and subrogated insurers of cargoes, other than the ESM Group Cargo, that had been destroyed during the Rickmers Casualty—filed four individual admiralty actions in the District Court, pursuant to Rule 9(h) of the Federal Rules of Civil Procedure, seeking damages for their losses. Specifically, (1) the Chem One Plaintiffs; (2) plaintiff Shandong Industrial, Inc.;
On February 17, 2006, the ESM Group filed (1) counterclaims and cross-claims against the Rickmers Interests for failing properly to handle and carry the ESM Group Cargo and for breaching their duty of care and thereby allegedly causing the destruction of that cargo; (2) cross-claims against Pudong Trans USA for breaching its duty of care as the common carrier of the cargo; and (3) counterclaims against the Chem One Plaintiffs for failing to warn the parties about the "dangerous" nature of unspecified chemicals contained in the Chem One Plaintiffs' cargo onboard the Rickmers vessel. See Counterclaims and Cross-Claims of ESM Group Inc., Chem One, Ltd. v. M/V Rickmers Genoa et al., No. 05-cv-4261 (LAP) (S.D.N.Y. Feb. 17, 2006), ECF No. 19.
On April 25, 2006, the Rickmers Interests filed an amended third-party complaint against (1) the ESM Group and ESMT; (2) Pudong Trans USA; and (3) U.S. Shipping.
On November 22, 2006, ESMT counterclaimed against the Chem One Plaintiffs to recover for the loss of the ESM Group Cargo onboard the Rickmers Genoa. In the counterclaims, ESMT also sought contribution or indemnity from the Chem One Plaintiffs to the extent that ESMT might be liable for any judgment against it. See generally In re M/V Rickmers Genoa Litig., Nos. 05-civ4261 (LAP); 05-civ-6226 (LAP); 05-civ-8841 (LAP); 05-civ-9472 (LAP), 2011 WL 2118743, at *1-2 (S.D.N.Y. May 26, 2011) (Amended Memorandum and Order) (explaining that the "Rickmers Interests also sued ESM Group and ESMT, as consignee and shipper, respectively, in a third-party action, alleging that they were liable because magnesium can explode when put in contact with water. Cross-claims and counterclaims abounded."); In re M/V Rickmers Genoa Litig., 622 F.Supp.2d 56, 59 n. 1 (S.D.N.Y. 2009) ("[A]dditional cross-claims and counter-claims are asserted against other cargo interests whose cargo may have caused or contributed to the explosion and fire aboard the RICKMERS. So far, no party other than ESM Group has made a dispositive motion in this litigation.").
In a separate filing, also on November 22, 2006, ESMT alleged cross-claims against (1) defendants-third party plaintiffs Rickmers Interests for contribution, indemnity, and/or recoupment "for all or part of any liability or judgment against [ESMT], and/or any related payment by [ESMT] in relation to claims arising from the Casualty"; and (2) defendant-third-party defendant Pudong Trans USA, as NVOCC, for contribution, indemnity, and/or recoupment from "for all or part of any liability or judgment against [ESMT], and/or any related payment by ESM Group in relation to the claims arising from the Casualty." Cross-Claims of ESM Tianjin Against the Rickmers Interests and Pudong Trans USA, Chem One, Ltd. v. M/V Rickmers Genoa et al., No. 05-cv-4261 (LAP) (S.D.N.Y. Nov. 22, 2006), ECF No. 63.
A year later, in November 2007, the ESM Group moved for summary judgment,
The District Court permitted the claims against ESM Group to proceed to the extent that the ESM Group might be liable for the acts of ESMT. Id. at 73. Specifically, the court found, with respect to the claims predicated on theories of federal maritime common law of agency and veil piercing, that the evidence was "sufficient to create a triable issue as to whether veil piercing is warranted," id. at 76, i.e., whether "ESM Group and ESMT were sufficiently related to hold each liable for the other's torts, contracts, and statutory obligations," id. at 73. The court found that the "evidence tend[ed] to show that ESMT was transacting ESM Group's business rather than its own business. Taking this evidence as a whole, it is sufficient to create a triable issue as to whether veil piercing is warranted in this case." Id. at 76.
On April 16, 2010, the ESM Parties collectively moved for summary judgment to dismiss all the remaining claims alleged against them. On November 4, 2010, the District Court granted the ESM Parties' motion for summary judgment and dismissed all remaining claims alleged against them by the Rickmers Interests and Cargo Interests. The court started its analysis with the four claims alleged by third-party plaintiffs Rickmers Interests. First, the court rejected the strict liability claims, alleged pursuant to § 4(6) of COGSA, 46 U.S.C. § 30701 Note § 4(6) (2006), against the ESM Parties because the Rickmers Interests "either actually or constructively knew that the SS-89 cargo had certain dangerous propensities and nevertheless exposed the cargo to the condition that activates those dangerous propensities." See In re M/V Rickmers Genoa Litig., 752 F.Supp.2d 379, 386 (S.D.N.Y.2010) (citing and discussing In re M/V DG Harmony, 533 F.3d 83 (2d Cir.2008); Contship Containerlines, Ltd. v. PPG Indus., Inc., 442 F.3d 74, 78 (2d Cir.2006)). Second, the
Third, as to the Rickmers Interests' claim that ESMT breached both (1) a bill of lading issued by Rickmers to Pudong Trans USA and (2) a bill of lading issued by Pudong Trans USA to ESMT, the court dismissed the breach of contract claim because (1) ESMT was generally "not bound by the Rickmers-Pudong bill of lading ... [as] Pudong Trans [USA] was the shipper and Rickmers was the carrier," id., and (2) the Rickmers Interests had "no standing to enforce" the Pudong-ESMT bill of lading, to which the Rickmers Interests were non-parties, id. at 392. Fourth, the court rejected the Rickmers Interests' claim of detrimental reliance based on a February 22, 2005, letter of indemnity drafted by ESMT, because the court found that the Rickmers Interests were unable to establish that they had relied to their detriment on any "letter[] of indemnity when [they] accepted the SS-89" on the Rickmers Genoa. Id. at 393.
The District Court next addressed the strict liability and negligent-failure-to-warn claims alleged by the Cargo Interests against the ESM Parties, including ESMT, and ultimately dismissed those claims. In re M/V Rickmers Genoa Litig., 752 F.Supp.2d at 393-95. The court determined that these claims should be dismissed because the evidence revealed that the Cargo Interests knew or should have known of the hazardous nature and dangerous propensities of the ESM Group Cargo and that this knowledge or constructive knowledge therefore barred the claims. See In re M/V Rickmers Genoa Litig., 752 F.Supp.2d at 386-391, 395. Finally, because the District Court dismissed all claims against ESMT, the court dismissed the remaining causes of action that had sought to hold ESM Group accountable for ESMT's actions and that the court had originally allowed to proceed in its March 31, 2009 Order. Id. at 393 n. 12. The court directed that "[t]he remaining parties sh[ould] confer and inform the [c]ourt by [mid-November 2010] how they propose to proceed." Id. at 395.
On December 3, 2010, the Rickmers Interests filed timely notices of appeal from the District Court's interlocutory November 4, 2010, Order, resulting in the opening of docket numbers 10-4934-cv, 10-4938-cv, and 10-4961-cv in this Court. On December 6, 2010, the Chem One Plaintiffs filed a timely notice of appeal from both the District Court's November 4, 2010, and March 31, 2009, decisions,
As to the remaining claims for loss of cargo asserted against them, the Rickmers Interests, on February 18, 2011, moved for partial summary judgment with respect to the interpretation of the terms in their bill of lading concerning the issue of the limitation of liability of a carrier engaged to transport goods. The Rickmers Interests contended that under their bill of lading and COGSA, a package limit of $500 per
On March 4, 2011, the ESM Group filed a memorandum of law in opposition to the Rickmers Interests' February 18, 2011, motion for partial summary judgment and in support of ESM Group's cross-motion for summary judgment as to its counterclaims and cross-claims against the Rickmers Interests. In its opposition and cross-motion for partial summary judgment, the ESM Group opposed the Rickmers Interests' motion seeking to limit the Rickmers Interests' liability to $500 per package and sought to pursue their claims in full. The ESM Group argued that under the plain language of the Rickmers Interests' bill of lading, German law should be applied, and, therefore, with regard to ESM Group's counterclaims and cross-claims against the Rickmers Interests, that the ESM Group should be entitled to recover its actual loss of the ESM Group Cargo and that it was not limited to the $500 per package cap under COGSA.
By Order, dated May 26, 2011, the District Court granted ESM Group's cross-motion for summary judgment and denied the Rickmers Interests' motion for partial summary judgment, thereby allowing the ESM Group to proceed with their counterclaims and cross-claims against the Rickmers Interests. In re M/V Rickmers Genoa Litig., Docket Nos. 05-civ-4261 (LAP); 05-civ-6226 (LAP); 05-civ-8841 (LAP); 05-civ-9472 (LAP), 2011 WL 2118743 (S.D.N.Y. May 26, 2011). The court determined that the international Hague-Visby Rules, which were amendments to the Hague Rules of 1924, International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (Brussels Aug. 25, 1924)—and not COGSA—governed the Rickmers Interests' limitation of liability of the claims for loss or damage of cargo. Id. at *6; see also id. at *1 (noting that COGSA, 46 App.U.S.C. § 1304(5), "provides for a lower limitation of liability than does German law, which applies the amendments to the Hague Rules of 1924" and that "[t]he parties hope that the resolution of this legal issue will have a domino effect as they try to settle").
On June 9, 2011, the Rickmers Interests moved the District Court for reconsideration of its May 26, 2011, Order, and the ESM Group opposed that motion by filing a Memorandum of Law in support of that opposition on June 23, 2011. On July 8, 2011, the District Court denied the Rickmers Interests' motion for reconsideration, finding that they "rehash[ed] the arguments made in the summary judgment papers." Order Denying Motion for Reconsideration, In re M/V Rickmers Genoa Litig., No. 05-cv-4261 (S.D.N.Y. July 8, 2011), ECF No. 222. The court also denied the Rickmers Interests' request for certification of an interlocutory appeal from the May 26, 2011, Order. Id.
By motion dated January 4, 2011, the ESM Parties moved to dismiss all appeals in this Court for lack of jurisdiction on the grounds that the appealed-from orders are non-final and this Court lacks jurisdiction under the admiralty interlocutory provision set forth in 28 U.S.C. § 1292(a)(3) because claims remain in the District Court. In their motion, the ESM Parties also moved this Court to consolidate the
"As a general rule, we lack jurisdiction to hear an appeal `unless the decision is, or is embodied in, an order or judgment that is "final" within the meaning of 28 U.S.C. § 1291.'" Swede v. Rochester Carpenters Pension Fund, 467 F.3d 216, 219 (2d Cir.2006) (quoting Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 171 (2d Cir.2002)). Under an exception to the final judgment rule, which is relevant to these appeals, we review "[i]nterlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed." 28 U.S.C. § 1292(a)(3) (2006).
"The Section 1292(a)(3) exception to the final judgment rule has its origins in the once common admiralty practice of referring the determination of damages to a master or commissioner after resolving the issue of liability." Becker, 356 F.3d at 387 (citing Roco Carriers, Ltd. v. M/V Nurnberg Express, 899 F.2d 1292, 1297 (2d Cir.1990)). "It provides appellate `jurisdiction... when the court below, as is customary in admiralty, has entered an interlocutory decree deciding the merits of the controversy between the parties, but has left unsettled the assessment of damages or other details required to be determined prior to entry of a final decree.'" Id. (quoting Thypin Steel, 215 F.3d at 280). "[T]he crucial inquiry for purposes of Section 1292(a)(3) is whether the [district court's] judgment has determined the rights and liabilities of the parties, which... means `deciding the merits of the controversies between them.'" Id. at 387-88 (quoting In re Wills Lines Inc., 227 F.2d 509, 510 (2d Cir.1955)).
It is undisputed that the present appeals arose under the District Court's
In Thypin Steel, we noted and seemingly rejected the Eleventh Circuit's conclusion in Bradford Marine, Inc. v. M/V Sea Falcon, 64 F.3d 585, 587-88 (11th Cir. 1995), that "[a]ll the rights and liabilities of all the parties do not need to be determined before such an order is appealable." Bradford Marine, 64 F.3d at 588 (citing Nichols v. Barwick, 792 F.2d 1520, 1522 (11th Cir.1986)); see also Aparicio v. Swan Lake, 643 F.2d 1109, 1113 n. 6 (5th Cir.1981). We stated in Thypin Steel "that a narrow construction of [Section] 1292(a)(3) better comports with the historical origin of the exception and this Circuit's precedent." Thypin Steel, 215 F.3d at 280. In this connection, we opined that appellate jurisdiction exists over an interlocutory admiralty appeal where a district court "has entered an interlocutory decree deciding the merits of the controversy between the parties, but has left unsettled the assessment of damages or other details required to be determined prior to entry of a final decree." Id. at 279-80 (internal quotation marks omitted). We also recognized that "a noted commentator has suggested [that] `arguments for expansive interpretation of [Section] 1292(a)(3) are offset by the availability of ... Rule... 54(b) and the more recent adoption of [Section] 1292(b), which allows interlocutory appeals on permission of the trial court and appellate court in admiralty cases as well as in other cases.'" Id. at 280 (quoting 16 Charles Alan Wright et al., Federal Practice and Procedure § 3927 (2d ed. 1996)). But see 16 Wright et al., supra, § 3927 ("Only Congress can decide whether these alternative means of appeal, not available in 1926 when [Section] 1292(a)(3) was adopted, justify repeal of [Section] 1292(a)(3). And no doubt it is too late to limit the statute so as to permit interlocutory appeal only from orders that dispose of all the rights and liabilities asserted among all the parties." (footnote omitted)).
Notwithstanding the foregoing, interpretation of the scope of Section 1292(a)(3) was not necessary in Thypin Steel because in that case, we ultimately held that there was no appellate jurisdiction under Section 1292(a)(3) over a cross-appeal seeking interlocutory review of a district court's dismissal of one defendant for lack of personal jurisdiction, reasoning that the dismissal "only affected how and where [the defendant]'s rights would be determined
Accordingly, we reject the contention of the ESM Parties that language in Thypin Steel somehow limits Section 1292(a)(3) to interlocutory appeals only from orders that dispose of all of the rights and liabilities asserted among all of the parties. Thypin Steel's discussion of the scope of Section 1292(a)(3) was dictum. It was not necessary in that case to suggest that Section 1292(a)(3) might be limited to dispositions of all the rights and all of the liabilities asserted among all the parties when the cross-appeal at issue in Thypin Steel did not fully resolve the liabilities of even a single party. See Alsol v. Mukasey, 548 F.3d 207, 218-19 (2d Cir. 2008) (rejecting the discussion of an issue in a prior case because it "was not necessary to [the Court's] holding and [therefore] dictum" (citing Cal. Pub. Employees' Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 106 n. 19 (2d Cir.2004); Pierre N. Leval, Judging Under the Constitution: Dicta about Dicta, 81 N.Y.U. L.Rev. 1249, 1257 (2006))); United States v. Garcia, 413 F.3d 201, 232 n. 2 (2d Cir.2005) (Calabresi, J., concurring) (noting that discussing a legal issue that is "not necessary to decide the case" is mere dicta and should not be treated as binding on future panels).
In our view Thypin Steel's dictum is at odds with the plain language of Section 1292(a)(3), which "does not say that all rights and liabilities of [all] the parties must be decided before an appeal can be taken," Deering v. Nat'l Maint. & Repair, Inc., 627 F.3d 1039, 1042 (7th Cir. 2010) (emphasis in original). Our sister Circuits support this interpretation. See, e.g., In re Compl. of PMD Enter., Inc., 301 F.3d 147, 149 (3d Cir.2002) ("Our case law on interlocutory appeals in admiralty establishes that the language of [Section] 1292(a)(3) regarding a final determination of rights and liabilities applies to situations such as the dismissal of parties from the litigation, grants of summary judgment (even if not to all parties), and other cases where a claim has somehow been terminated."); Underwriters at Interest on Cover Note JHB92M10582079 v. Nautronix, Ltd., 79 F.3d 480, 483 (5th Cir. 1996) ("In an admiralty case, it is not necessary for the order appealed from to have determined all the rights and liabilities of all the parties before such an order is appealable under [Section] 1292(a)(3)."); Martha's
The fact that the ESM Parties have their own counterclaims and cross-claims pending in the District Court does not affect whether we may exercise appellate jurisdiction under Section 1292(a)(3). In Becker v. Poling Transportation Co., we held that we had jurisdiction under Section 1292(a)(3) over an appeal from a magistrate judge's determination that the jury had found a purchaser vicariously liable for injuries sustained by two seamen, even though the purchaser's cross-claim for contribution against a third-party defendant remained pending, "because its liability to [the seamen] ... ha[d] been determined and [was] unaffected by the cross-claim or the indemnification clause in [a] ... settlement." 356 F.3d at 388. In Becker, we noted that the Eleventh Circuit had held that in Nichols v. Barwick, 792 F.2d 1520, 1522 (11th Cir.1986), that it had jurisdiction under Section 1292(a)(3) even though no final decision had been entered on the defendants' third-party complaints for indemnity and contribution. Becker, 356 F.3d at 388 (citing Nichols, 792 F.2d at 1522 ("Not all the rights and liabilities of all the parties need be determined before such an order is appealable.")).
In this case, the District Court's adjudication of liability as to the ESM Parties was resolved in the court's decisions of March 31, 2009, and November 4, 2010, in which the court dismissed all direct and third-party claims against the ESM Parties.
The ESM Parties' contention that an interlocutory appeal "would likely result in disruptive appellate review" simply has no basis in the record or fact. The parties cannot dispute that "there is nothing left to litigate at the District Court level with respect to the claims ... against ESM Group and ESM Tianjin." Thus, given that the District Court has determined conclusively all of the claims against the ESM Parties, and that decision is unaffected by any remaining claims, we properly may exercise appellate jurisdiction over the present appeals under Section 1292(a)(3). Delaying appeal merely because a "final judgment" as to all of the claims against all of the parties has not been issued would defeat the interlocutory nature of Section 1292(a)(3) and effectively render the statute a nullity in the modern era of litigation in which admiralty suits frequently involve multiple parties and claims.
"When the parties have filed separate timely notices of appeal, the appeals may be joined or consolidated by" this Court. Fed. R.App. P. 3(b)(2). We have explained that, "[i]n assessing whether consolidation is appropriate in given circumstances," a court "should consider both equity and judicial economy." Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir.1999) (reviewing a district court's decision not to consolidate cases). However, "efficiency cannot be permitted to prevail at the expense of justice—consolidation should be considered when savings of expense and gains of efficiency can be accomplished without sacrifice of justice." Id. (emphasis in original) (internal quotation marks omitted). Accordingly, we grant the motion brought by the ESM Parties insofar as they seek consolidation because the appeals arise from the same conjoined multiparty litigation in the District Court, and consolidation would be both efficient and equitable for the disposition of the appeals. Moreover, consolidation is unopposed.
Upon due consideration, it is hereby
