According to Ms. Sherrod, appeals are generally consolidated if they arise from the same proceeding or district court judgment/order. While acknowledging that the DC Circuit Handbook provides that cases may be consolidated if they involve “similar or related issues,” she argues that this requires the issues to “overlap” or, at a minimum, for common issues to “predominate.” Pivoting off this point, she argues that consolidation is inappropriate because the two appeals “arise from different judges and different orders, and  involve different parties, different facts, different claims, and different procedural histories.”
She also argues that the basis for the district court’s opinions are different, with the 3M case involving only an Erie question while the Sherrod case involves Erie, retroactivity and timeliness. “As a result, three of the issues the Breitbart defendants intend to pursue in their appeal – retroactivity, timeliness and their ‘opinion’ defense – will not be presented in Davis.” Thus, argues Ms. Sherrod, “[t]his Court could affirm the District Court in Breitbart on any of the three straightforward arguments without even reaching the Erie question.”
Finally, argues Ms. Sherrod, consolidation will improperly delay her appeal because her motion to dismiss is fully briefed and ready for decision.