18-676 Curtiss v. United States of America

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of October, two thousand nineteen.

PRESENT: DENNIS JACOBS, PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges. _____________________________________

Richard C. Curtiss, Plaintiff-Appellant,

v. 18-676

United States of America, United States Department of Agriculture, Tom Vilsack, United States Secretary of Agriculture, Office of the Inspector General, Phyllis K. Fong, United States Department of Agriculture Inspector General, Defendants-Appellees. _____________________________________

FOR PLAINTIFF-APPELLANT: Richard C. Curtiss, pro se, Wayland, N.Y.

FOR DEFENDANTS-APPELLEES: Tiffany H. Lee, United States Attorney’s Office for the Western District of New York, Rochester, N.Y. Appeal from an order of the United States District Court for the Western District of New

York (Larimer, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

Appellant Richard C. Curtiss, proceeding pro se, appeals the district court’s order denying

his motion to consolidate three closed district court actions (W.D.N.Y. 11-cv-6006, 15-cv-6722,

16-mc-6001) and three closed appeals (2d Cir. 11-2577, 16-562, 17-2644). We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

We review a district court’s denial of a consolidation motion for abuse of discretion. Cf.

Johnson v. Celotex Corp.,

(2d Cir. 1990) (“An appellate court will not disturb

a trial court’s decision to consolidate unless a clear abuse of discretion is shown.”); see also Hall

v. Hall,

(2018) (“District courts enjoy substantial discretion in deciding

whether and to what extent to consolidate cases.”). A court may consolidate “actions before the

court [that] involve a common question of law or fact[.]” Fed. R. Civ. P. 42(a) (emphasis added).

The district court properly denied the motion as it related to both the district court actions

and the appeals. The appeals were not before the district court, so under the plain meaning of the

rule, the district court could not grant the motion to consolidate the appeals. And because the

district court actions were closed, they were no longer pending “before the court” and the court

could not consolidate them. See Fed. R. Civ. P. 42(a); see also Devlin v. Transp. Commc’ns Int’l

Union,

, 130 (2d Cir. 1999) (citing former version of Rule 42 and stating that the Rule

applies to actions that are “pending before the court” (internal quotation marks omitted)); Pan Am.

2 World Airways, Inc. v. U.S. Dist. Court for Cent. Dist. of Cal.,

(9th Cir. 1975)

(“Rule 42 may be invoked only to consolidate actions already pending.”). To the extent Curtiss

requests this Court, in his appellate brief, to consolidate his appeals, that request is denied because

the appeals are closed.

We have considered all of Curtiss’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the order of the district court.

FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court

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