Rule 40.2 Related Cases

(a) Directly Related Cases.
(1) At the time a complaint is filed, the
filing attorney (or pro se plaintiff) shall file
and serve on all parties who have appeared a
Notice of Directly Related Case(s). Cases are
deemed directly related when an earlier-filed
case and the action being filed:
(A) involve the same parties and are
based on the same or similar claims; or
(B) involve the same contract,
property, or patent.
(2) Where a Notice of Directly Related
Case(s) is filed along with a new complaint,
the clerk shall assign the case to the judge to
whom the earliest-filed directly related case is
assigned. If the judge to whom the related
case is assigned determines that the case in
question is not in fact directly related, the
judge will return the case to the clerk for
random assignment.
(3) Where the existence of directly
related cases becomes apparent only after
initial assignment, the Notice of Directly
Related Case(s) shall be filed in all related
cases, captioned in the name of the earliestfiled
case. Solely for the purpose of filing this
notice, counsel in the later-filed case may
appear in the earlier-filed case. The notice
may be accompanied by a motion to transfer
and a suggestion for consolidation under
RCFC 42.1. The assigned judge in the
earliest-filed case, after consultation with the
judge in the later-filed case, will grant or deny
the motion to transfer.
(4) Content of the Notice of Directly
Related Case(s). The notice shall contain the
title and case number of the related case, a
brief statement of the relationship of the actions according to the criteria set forth in
subdivision (a), and a statement addressing
whether assignment to a single judge or other
action, including consolidation, is or is not
likely to conserve judicial resources and
promote an efficient determination of the
actions.
(b) Indirectly Related Cases.
(1) Whenever it appears to a party that
there are two or more cases before the court
that present common issues of fact and that
transfer, consolidation, or the adoption of a
coordinated discovery schedule would
significantly promote the efficient
administration of justice, the party may file a
Notice of Indirectly Related Case(s). The
notice shall be captioned in the name of the
earliest-filed case. Solely for purposes of
filing the notice, counsel may appear in an
earlier-filed case.
(2) The notice shall list the name and
docket number of all indirectly related cases
and shall detail the reasons supporting the
proposed action. Counsel shall serve all
parties in the related cases. The clerk shall
file the notice in those cases and furnish a
courtesy copy of the notice to the chief judge.
Solely for the purpose of responding to the
notice, counsel in the related cases may
appear in the earliest-filed case to file a
response to the notice. The response shall be
filed within 21 days after service and
captioned in the name of the earliest-filed
case. Responses shall be served on counsel in
all cases. The clerk shall file copies of the
responses in each of the cases and shall
furnish courtesy copies to the chief judge.
(3) The assigned judge of the earliestfiled
case shall call a meeting of all of the
assigned judges to determine what, if any,
action is appropriate. The parties to each
action shall be notified of any resulting
decision.
(As revised and reissued May 1, 2002.)
Rules Committee Note
2002 Revision
RCFC 40.2 has no FRCP counterpart. The
subject of the rule—Related Cases—previously
appeared in these rules as RCFC 77(f) (as revised
by General Order No. 36). The renumbering of the
rule reflects its more logical placement in the
structure of the court’s rules.
Unlike the predecessor rule, RCFC 40.2
recognizes two types of related cases: directly
related cases and indirectly related cases. Directly
related cases retain the definition that applied
under former RCFC 77(f). Thus, cases that
“involve the same parties and are based on the
same or similar claims” or “involve the same
contract, property, or patent” are deemed to be
directly related. Cases that are directly related
share an identity of parties and/or subject matter
that, for the sake of consistency in outcome,
warrant their assignment to a single judge.
Indirectly related cases, by contrast, share only
“common issues of fact.” In the interests of
efficiency and the conservation of resources, such
cases may warrant consolidated management
during the pretrial stage.
In addition to recognizing two forms of related
cases, RCFC 40.2 also prescribes the notice
procedures that are to be followed for the
identification of such cases to the court and
interested counsel.