Rule 40.2. Related Cases

(a) Directly Related Cases.
(1) In General. If a party is aware of the existence of any directly related case(s), the party must file a Notice of Directly Related Case(s).
(2) Definition. For the purpose of this rule, cases are directly related when:
(A) they involve the same parties and are based on the same or similar claims; or
(B) they involve the same contract, property, or patent.
(3) Notice.
(A) Contents. The Notice of Directly Related Case(s):
(i) must identify the title and docket number of all directly related cases;
(ii) must explain why the cases qualify for treatment as directly related cases under RCFC 40.2(a)(2);
(iii) must state whether assigning the cases to a single judge can be expected to conserve judicial resources and promote the efficient administration of justice; and
(iv) if filed after the case has been assigned, may be accompanied by a motion to transfer pursuant to RCFC 40.1 or for consolidation pursuant to RCFC 42.1.
(B) Filing. A party must file the Notice of Directly Related Case(s):
(i) along with the complaint in a newly filed case; or
(ii) in the earliest-filed related case if the existence of directly related cases becomes apparent only after initial assignment. Counsel may appear in the earliest-filed case solely for purposes of filing the notice. The clerk must file copies of the notice in all of the directly related cases.
(C) Service. A party must serve the Notice of Directly Related Case(s) on all parties in the related cases.
(4) Treatment of Directly Related Cases.
(A) When a Notice of Directly Related Case(s) is filed with a complaint, the clerk will assign the case to the judge to whom the earliest-filed case is assigned. If the judge determines that the case is not in fact directly related to the earliestfiled case, the judge will return the case to the clerk for random reassignment.
(B) When a Notice of Directly Related Case(s) is filed after a case has been assigned and is accompanied by a motion to transfer or for consolidation, the judge in the earliest-filed case, after consultation with the judge(s) in the later-filed case(s), will grant or deny the motion to transfer or for consolidation.
(b) Indirectly Related Cases.
(1) In General. If a party is aware of the existence of any indirectly related case(s), the party may file a Notice of Indirectly Related Case(s).
(2) Definition. For the purpose of this rule, cases are indirectly related when:
(A) they present common issues of fact; and
(B) their consolidation for purposes of coordinated discovery can be expected significantly to promote the efficient administration of justice.
(3) Notice.
(A) Contents. The Notice of Indirectly Related Case(s):
(i) must identify the title and docket number of all indirectly related cases; and
(ii) must explain why the cases qualify for treatment as indirectly related cases under RCFC 40.2(b)(2).
(B) Filing. A party must file the Notice of Indirectly Related Case(s) in the earliest-filed related case. Counsel may appear in the earliest-filed case solely for purposes of filing the notice or responding to the notice under RCFC 40.2 (b)(3)(C). The clerk must file copies of the notice in all of the indirectly related cases and must provide a courtesy copy of the notice to the chief judge.
(C) Service. A party must serve the Notice of Indirectly Related Case(s) on all parties in the related cases.
(D) Responding. Any response to the notice must be filed in the earliestfiled case within 21 days after service of the notice and must be served on all parties in the related cases. The clerk must file copies of the response in all of the related cases and must provide a courtesy copy of the response to the chief judge.
(4) Treatment of Indirectly Related Cases. When a Notice of Indirectly Related Case(s) is filed, the judge in the earliestfiled case will call a meeting of all of the assigned judges to determine what action, if any, is appropriate. All parties in the related cases will be notified of the determination reached.
(As revised and reissued May 1, 2002; as amended Nov. 3, 2008.)

Rules Committee Notes
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.

2008 Amendment

The language of RCFC 40.2 has been
amended to conform to the general restyling of the FRCP.
In addition, the text of subdivision (a) has been modified to clarify that it is the clerk’s responsibility to file a notice of directly related cases in all related cases. The change thus adopts the same notice procedure that is prescribed for indirectly related cases under subdivision (b) of this rule.