Legal Memorandum: Denial of a Motion to Bifurcate

Issue: Under what conditions may a motion to bifurcate under Fed. R. Civ. P. 42(b) be denied?

A motion to bifurcate under Fed. R. Civ. P. 42(b) may be denied if the court determines that the motion is premature, such as when it is brought before discovery has closed and before dispositive motions have been filed.  See, e.g., Kreuger v. N.Y. Tel. Co., 163 F.R.D. 446 (S.D.N.Y. 1995) (discovery still open); Contini v. Hyundai Motor Co., 149 F.R.D. 41 (S.D.N.Y. 1993) (no dispositive motion).  A motion to bifurcate is better decided closer to trial, after all the pretrial procedures are completed and the issues for trial have been narrowed and brought into focus.  See Gothar Allgemeine Versicherung A.G. v. A/S Santa Martha, 210 N.Y.S.2d 610, 610-11 (App. Div. 1961).

Motions to bifurcate claims and issues for trial are governed by Rule 42(b), which provides: “[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, cross-claims, counterclaims, or third-party claims. . . .”  Fed. R. Civ. P. 42(b).  Whether a motion should be granted or denied is left to the discretion of the trial court.  Eastridge Dev. Co. v. Halpert Assocs., Inc., 853 F.2d 772, 781 (10th Cir. 1988) (court acted within its discretion when it denied professional-malpractice defendants’ motion to bifurcate without a hearing). 

Bifurcation is not warranted in a typical case, Sensitron, Inc. v. Wallace, 504 F. Supp. 2d 1180, 1186 (D. Utah 2007), and it is the exception, not the rule.  Svege v. Mercedes-Benz […]