CURTISS v. (2019)

SUMMARY ORDER

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., 899 F.2d 1281, 1285 (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, ––– U.S. ––––, 138 S. Ct. 1118, 1131, 200 L.Ed.2d 399 (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, 175 F.3d 121, 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. World Airways, Inc. v. U.S. Dist. Court for Cent. Dist. of Cal., 523 F.2d 1073, 1080 (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.