Killoran v. Westhampton Beach School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CHRISTIAN KILLORAN,

on behalf of his son,

AIDEN KILLORAN,

No. 20-CV-4121(JS)(SIL)

Plaintiff,

OMNIBUS ORDER1

(1) DENYING (a)

DEFENDANTS’ MOTION

FOR PRE-MOTION

CONFERENCE, and (b)

PLAINTIFF’S RULE

54(B) MOTION; and

(2) TO SHOW CAUSE re:

CONSOLIDATION

-against-

WESTHAMPTON BEACH SCHOOL

DISTRICT; MICHAEL RADDAY,

as Superintendent;

MARY ANNE AMBROSINI,

as Director of Pupil Personnel;

SUZANNE MENSCH, HALSEY C. STEVENS,

JOYCE DONNESSON, and GEORGE R. KAST,

as Board of Education Members,

Defendants.

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For Plaintiff: Christian Killoran, Esq., Pro Se

132-13 Main Street

Westhampton Beach, New York 11978

For Defendants: Anne C. Leahey, Esq.

Anne Leahey Law, LLC

17 Dumplin Hill Lane

Huntington, New York 11743

SEYBERT, District Judge:

1 The Court incorporates herein the terms of art defined in its

March 22, 2022 Memorandum & Order (see ECF No. 27), familiarity

with which is assumed.

Presently before the Court in this action are:

(A) The Defendants’ request for pre-motion conference (“PMC”)

regarding a proposed Rule 12(b)(6) dismissal motion (see

ECF No. 32); and

(B) Plaintiff’s letter motion pursuant to Rule 54(b) of the

Federal Rules of Civil Procedure seeking certification that

the Court’s March 22, 2022 ruling regarding his IDEA claim

is a “final judgment” (hereafter, the “Rule 54(b) Motion”)

(see ECF No. 33).

In addition, the Court issues an order to show cause why this case

should not be consolidated with other actions commenced by

Plaintiff regarding A.K.’s education during the 2020-2021 academic

year.

PROCEDURAL BACKGROUND2

On March 22, 2022, the Court issued its Memorandum &

Order granting the Defendants’ Dismissal Motion and denying

Plaintiff’s Cross-Motion for Summary Judgment (hereafter, the

“M&O”). (See ECF No. 27.) In its ruling, inter alia, the Court

dismissed with prejudice Plaintiff’s IDEA claim having found the

IDEA’s stay-put provision had not been violated since the School

District had not breached the 2019 Agreement regarding A.K.’s

2 The Court assumes the parties’ familiarity with the facts and

procedural posture of this case to date and, therefore, addresses

only the facts necessary to issue its rulings herein.

pendency placement. (See M&O at 17.) Thereafter, on March 29,

2022, Plaintiff filed a Notice of Interlocutory Appeal regarding

this ruling of his “pendency claim.” (See Appeal Notice, ECF No.

28; see also Rule 54(b) Motion.) On April 4, 2022, he also filed

an Amended Complaint as to those causes of action dismissed without

prejudice, i.e., his ADA, Section 504, and Section 1983 claims.

(See Am. Compl., ECF No. 29.)

On April 11, 2022, Defendants filed their motion for a

PMC regarding a Rule 12(b)(6) dismissal motion they sought to make

against Plaintiff’s Amended Complaint. (See ECF No. 32.)

Plaintiff has not responded to the PMC Motion, and his time to do

so has expired. (See Case Docket, in toto; compare SJ Ind. Rule

III(B)(1) (“The opposing party shall have seven (7) days to submit

a letter response, of not more than three (3) pages, setting forth

its position in opposition.”).)

However, on April 18, 2022, Plaintiff filed a letter

motion, i.e., the Rule 54(b) Motion, “seeking a ‘Decision and/or

Order’ declaring” the Court’s decision on “plaintiff’s ‘pendency’

claim to be declared a ‘final judgment’.” (Rule 54(b) Motion).

Said Motion was prompted by “the defendant school district

“voic[ing] its intention to seek a dismissal of the plaintiff’s

‘Notice of Appeal’ as being ‘interlocutory’.” (Id.) In support

of his Rule 54(b) Motion, Plaintiff “submits that his ‘pendency’

claim warrants expeditious adjudication because [A.K.] is now 19

years old and will be ‘aging out’ of the defendant school district

at age 21,” thereby possibly “los[ing] the ability to secure

appropriate ‘relief’ by way of an award of ‘back-end’ compensatory

education that could be theoretically implemented.” (Id.) In

opposition, the Defendants argue: (1) since “the pending and

adjudicated claims involve similar and overlapping factual

allegations,” permitting Rule 54(b) certification would not

advance the interests of sound judicial administration or

efficiency; and (2) equitable considerations disfavor

certification since “the relaxation of pandemic restrictions has

mooted Plaintiff’s IDEA claim, which was for injunctive relief,

directing the [School] District to educate A.K. in its [h]igh

[s]chool,” and his claim for compensatory damages for the 2020-

2021 academic year . . . is currently pending . . . before this

Court on appeal from the decision of the State Review Officer.”

(Opp’n, ECF No. 34, at 2-3; see also note 3 (identifying Killoran

v. Westhampton Beach Sch. Dist., No. 21-CV-1281 (E.D.N.Y. 2021),

as Plaintiff’s action appealing the SRO’s administrative decision

denying compensatory damages for the 2020-2021 academic year).)

Plaintiff has not replied to the Defendants’ Opposition. (See

Case Docket, in toto.) The Court finds the Defendants’ Opposition

persuasive.

RULE 54(B) CERTIFICATION

Rule 54(B)states, in relevant part:

When an action presents more than one claim

for relief . . . or when multiple parties are

involved, the court may direct entry of a

final judgment as to one or more, but fewer

than all, claims or parties only if the court

expressly determines that there is no just

reason for delay. Otherwise, any order or

other decision, however designated, that

adjudicates fewer than all the claims or the

rights and liabilities of fewer than all the

parties does not end the action as to any of

the claims or parties and may be revised at

any time before the entry of a judgment

adjudicating all the claims and all the

parties’ rights and liabilities.

Fed. R. Civ. P. 54(b). It is a “permissive, not mandatory,

mechanism to be ‘exercised in the interests of sound judicial

administration.’” B.V. v. Allergan, Inc., No. 12-CV-2650, 2016 WL

3390802, at *2 (S.D.N.Y. June 14, 2016) (quoting Curtiss-Wright

Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980)).

Rule 54(b) authorizes a district court to

enter partial final judgment “when three

requirements have been satisfied: (1) there

are multiple claims or parties, (2) at least

one claim or the rights and liabilities of at

least one party has been finally determined,

and (3) the court makes an ‘express[ ]

determin[ation] that there is no just reason

for delay.’”

Linde v. Arab Bank, PLC, 882 F.3d 314, 322–23 (2d Cir. 2018)

(alterations in original) (quoting Acumen Re Mgmt. Corp. v. Gen.

Sec. Nat’l Ins. Co., 769 F.3d 135, 140 (2d Cir. 2014)); see also

Crespo v. Carvajal, No. 17-CV-6329, 2021 WL 4237002, at *2

(E.D.N.Y. Sept. 14, 2021) (quoting Linde; collecting cases). It

is within the Court’s discretion to determine whether there is no

just reason for delay. See Roberts v. Bennaceur, 658 F. App’x

611, 619 (2d Cir. 2016) (quoting L.B. Foster Co. v. Am. Piles,

Inc., 138 F.3d 81, 86 (2d Cir. 1998)). “[I]n deciding whether

there are no just reasons to delay the appeal of individual final

judgments . . . a district court must take into account judicial

administrative interests as well as the equities involved.” Id.

(alterations in original) (quoting Novick v. AXA Network, LLC, 642

F.3d 304, 3011 (2d Cir. 2011)). When making its Rule 54(b) express

determination, the district court should “offer a brief, reasoned

explanation” for that determination. Guippone v. Bay Harbour Mgmt.

LLC, 434 F. App’x 4, 6 (2d Cir. 2011) (further citation omitted).

“In light of the ‘historic federal policy against piecemeal

appeals,’ the Second Circuit has cautioned that ‘[a] certification

under Rule 54(b) should be granted only if there are interests of

sound judicial administration and efficiency to be served, or, in

the infrequent harsh case,’ where ‘there exists ‘some danger of

hardship or injustice through delay which would be alleviated by

immediate appeal.’” Crespo, 2021 WL 4237002, at *3 (quoting

Harriscom Svenska AB, 947 F.2d at 629 (further citation omitted)).

Here, there can be no dispute that there are multiple

claims and parties in this action and that the M&O rendered a final

decision on Plaintiff’s pendency claim. The only open issue is

whether there is no just reason to delay Plaintiff’s appeal of the

pendency claim. Plaintiff contends his son’s “aging out” of the

School District in two years warrants Rule 54(b) certification

because, otherwise, he may not be able to secure an award of

compensatory education.

First, the Court finds judicial administrative interests

do not weigh in favor of certification. This is the first of four

actions Plaintiff commenced regarding the 2020-2021 academic year.

While this action challenged A.K.’s pendency placement under his

IDEA cause of action (the First Cause of Action), in two subsequent

actions,3 he raises similar claims of IDEA violations, as well as

other similar claims, i.e.:

3 In a third action, Case No. 21-CV-3264, Plaintiff, his wife,

and A.K. (hereafter, the “Plaintiffs”) seek a declaratory judgment

that Defendants violated their rights under Section 504, the ADA,

Section 1983, and state contract law (hereafter, the

“Correspondence Action”). They allege that during the course of

a “pending” due process hearing initiated under the IDEA, the

Plaintiffs’ witness, Dr. McLaughlin, a contract employee of the

School District, testified that a March 5, 2021 letter, marked

“Personal and Confidential” from Dr. Ambrosioni, i.e., the subject

Correspondence, caused Dr. McLaughlin “to get very upset.”

(Correspondence Action, Compl., ECF No. 1, ¶¶ 25, 34, 48; see also

Correspondence, Ex. P-1, attached to Compl.) The Correspondence

reviewed Dr. McLaughlin’s contractual role and listed examples of

her acting outside that role. The Correspondence Action Complaint

alleges that Dr. McLaughlin viewed the letter as bullying her to

change her placement recommendation for A.K. and as threatening

her continued employment.

To the extent Plaintiffs allege that any act of retaliation

inflicted upon Dr. McLaughlin is, in essence, an act of retaliation

upon them (see Correspondence Action, Compl. ¶¶ 65,72), Defendants

have moved to dismiss those Section 504 and ADA claims, arguing

Plaintiffs lack standing to bring them. (See Correspondence

(A) Case No. 21-CV-1281: An appeal from the decision of SRO

Hauge, upholding in part IHO Roth’s ruling on Petitioner’s

Due Process Complaint regarding the 2020-2021 academic year

(hereafter, the “Roth/Hauge Appeal”). Petitioner alleges

violations of: the IDEA (1st Cause of Action); Section 504

(2nd Cause of Action); the ADA (3rd Cause of Action); and

Section 1983 (4th Cause of Action (regarding an alleged

Fourteenth Amendment equal protection claim)). He seeks,

among other things, relief of compensatory education. (See

Roth/Hauge Appeal, Compl., ECF No. 1); and

(B) Case No. 21-CV-5924: An appeal from the decision of SRO

Hauge, upholding IHO Schiro’s dismissal of Petitioner’s

second Due Process Complaint regarding the 2020-2021

academic year (hereafter, the “Schiro/Hauge Appeal”).

Again, Petitioner alleges violations of: the IDEA (1st

Cause of Action); Section 504 (2nd Cause of Action); the

ADA (3rd Cause of Action); and Section 1983 (4th Cause of

Action (regarding alleged Fourteenth Amendment due process

Action, Mot. for Pre-Mot. Conf., ECF No. 9, at 1-2.) They raise

similar lack-of-standing arguments as to Plaintiffs’ Section 1983

First Amendment and Due Process claims. (See id. at 2-3.)

Finally, Defendants seek the dismissal of Plaintiffs’ breach of

contract claim, arguing “Plaintiffs’ allegations for violation of

their rights as third-party contractual beneficiaries fail because

they have not alleged the existence of a contract which Defendants

breached.” (Id. at 3.) Defendants’ fully-briefed dismissal motion

is currently pending before the Court. (See Correspondence Action,

ECF Nos. 16 (Dismissal Mot.), 17 (Opp’n), 18 (Reply).)

and equal protection claims)). Further, he again seeks,

among other things, relief of compensatory education. (See

Schiro/Hauge Appeal, Compl., ECF No. 1).

The Court will not consider this case in isolation and ignore the

broader reality that Plaintiff has also commenced these related

Appeals actions. They are, therefore, also considered.

From the Court’s initial review of the Roth/Hauge and

Schiro/Hauge Appeals, it appears that, in sum, Plaintiff: (1)

disagrees with the School District’s position that the School

District lacks the ability to educate A.K. in-district in a 12:1:1

special class or in a hybrid form; and (2) believes A.K. is able

to be educated in the School District’s existing in-district 15:1:1

special class. In other words, Plaintiff’s ultimate goal is to

secure his son’s education within the School District’s high school

in its 15:1:1 special class.4 In essence, the relief sought in

the Roth/Hauge and Schiro/Hauge Appeals is no different than what

he seeks in this action. While Plaintiff commenced this action

seeking, inter alia, an order directing the School District to

provide A.K. his educational instruction in the public library or

in-district, in a pendency placement capacity, when considered in

tandem with the Roth/Hauge and Schiro/Hauge Appeals, which

4 Neither this statement nor any observations in this Order

regarding Roth/Hauge and Schiro/Hauge Appeals is intended to be,

or is, a procedural or substantive ruling as to those actions.

encompass the same 2020-2021 academic year, the Court finds this

action raises claims that are closely related to those in the

Roth/Hauge and Schiro/Hauge Appeals and arise out of largely

overlapping factual allegations. This presents the type of

scenario where the Second Circuit advises against Rule 54(b)

certification. See Crespo, 2021 WL 4237002, at *4 (“The Second

Circuit has therefore advised against Rule 54(b) certification if

the same or closely related issues remain to be litigated, because

the interests of judicial economy are not generally served by

piecemeal appeals that require two (or more) three-judge panels to

familiarize themselves with a given case in successive appeals

from successive decisions on interrelated issues.” (quoting

Novick, 642 F.3d at 311; cleaned up)); see also TADCO Constr. Grp.

Corp. v. Dormitory Auth. of N.Y., No. 08-CV-0073, 2012 WL 3011735,

at *4 (E.D.N.Y. July 23, 2012) (stating that courts have

“repeatedly noted that the district court generally should not

grant a Rule 54(b) certification if the same or closely related

issues remain to be litigated” (quoting Novick, 642 F.3d at 311)).

Hence, the Court finds that judicial administrative interests

weigh against certifying final judgment on Plaintiff’s pendency

claim.

Nor does the Court find that equitable considerations

weigh in favor of granting Rule 54(b) certification.

[I]n light of the policy against piecemeal

appeals, it is incumbent upon a party seeking

immediate relief in the form of a Rule 54(b)

judgment to show not only that the issues are

sufficiently separable to avoid judicial

inefficiency but also that the equities favor

entry of such a judgment.

Novick, 642 F.3d at 314 (emphasis added). Plaintiff’s basis for

requesting Rule 54(b) certification is the potential that A.K.

will “age out” of Defendants’ school system in two years. Without

more, that proffer is speculative. See, e.g., Timperio v. Bronx-

Lebanon Hosp. Ctr., No. 18-CV-1804, 2020 WL 9211177, at *3

(S.D.N.Y. Mar. 9, 2020) (denying motion for entry of partial final

judgment as plaintiff failed to articulate “‘any unusual hardship

or injustice [that] it, or any other party, would endure if

required to await, in accordance with normal federal practice, the

disposition of the entire case before obtaining’ a final judgment”

(alteration in original) (quoting City of N.Y. v. Milhelm Attea &

Bros., No. 06-CV-3620, 2012 WL 4959502, at *3 (E.D.N.Y. Oct. 17,

2012))). Plaintiff has failed to show why two years’ time is not

sufficient for this Court to enter a final judgment in this action.

The same is true regarding rendering decisions in the Roth/Hauge

and Schiro/Hauge Appeals. Thus, in the absence of showing any

unusual hardship or injustice, equitable considerations do not

favor granting Plaintiff Rule 54(b) Motion, certifying the ruling

on his pendency claim to be final.

ORDER TO SHOW CAUSE re: CONSOLIDATION

It is within the Court’s “inherent authority to manage

[its] dockets and courtroom[] with a view toward the efficient and

expedient resolution of cases.” Dietz v. Bouldin, 579 U.S. 40, 47

(2016). Moreover, “[a] court may consolidate related cases sua

sponte under Rule 42(a).” Innovation Ventures v. Ultimate One

Distributing Corp., Nos. 12-CV-5354, 13-CV-6397, 2014 WL 824304,

at *2 (E.D.N.Y. Mar. 3,2014) (quoting Devlin v. Transp. Commc’n

Int’l Union, 175 F.3d 121, 130 (2d Cir.1999)); see also FED. R.

CIV. P. 42(a)(2) (“If actions before the court involve a common

question of law or fact, the court may: (1) join for hearing or

trial any or all matters at issue in the actions; (2) consolidate

the actions; or (3) issue any other orders to avoid unnecessary

cost or delay.”). Indeed, “[t]he trial court has broad discretion

to determine whether consolidation is appropriate.” Johnson v.

Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir. 1990).

Consolidation is favored “to avoid unnecessary costs or delay,”

id. at 1284, and to “expedite trial and eliminate unnecessary

repetition and confusion,” Devlin, 175 F.3d at 130 (internal

citations omitted). See also Chem One, Ltd. v. M/V RICKMERS GENOA,

660 F.3d 626, 642 (2d Cir. 2011) (instructing “that, ‘[i]n

assessing whether consolidation is appropriate in given

circumstances,’ a court ‘should consider both equity and judicial

economy.’” (quoting Devlin, 175 F.3d at 130)). That is,

“consolidation should be considered when savings of expense and

gains of efficiency can be accomplished without sacrifice of

justice.” Chem One, 660 F.3d at 642 (quoting Devlin, 175 F.3d at

130) (emphasis in original; internal quotation marks omitted).

The considerations for Rule 42 consolidation mirror the

considerations for Rule 54(b) certification, i.e., judicial

economy and equity. While the Court has found that those

considerations do not support Rule 54(b) certification, they do

weigh strongly in favor of consolidation. As noted, this action,

the Roth/Hauge Appeal, and the Schiro/Hauge Appeal all: (1) arise

out of A.K’s 2020-2021 academic year and allege interrelated facts;

(2) essentially assert the same causes of action (i.e., violations

of the IDEA, Section 504, the ADA, and Section 1983); and (3) seek

nearly identical relief, including compensatory education relief.

In this action, Plaintiff has recently filed an Amended Complaint

(see ECF No. 29), as to which the Defendants seek permission to

move for dismissal (see ECF No. 32). In the Roth/Hauge and

Schiro/Hauge Appeals, other than the filing of the respective

complaints and answers, no activity has occurred since no

administrative records have been filed yet. (See Roth/Hauge Appeal

Case Docket, in toto; see also Schiro/Hauge Appeal Case Docket, in

toto.) Through consolidation of these action, unnecessary costs

or delay will be avoided, unnecessary repetition and confusion

will likely be eliminated, and a decision regarding all of

Plaintiff’s challenges to the School District’s ruling regarding

A.K.’s 2020-2021 academic year education can be expedited.

Importantly, such an approach should assuage any concerns of A.K.

“aging out” of the School District’s school system. Further, “the

[C]ourt can identify no prejudice that would result from

consolidation of the[se] actions.” Innovation Ventures, 2014 WL

824304, at *3 (citation omitted).

Accordingly, the Parties are to show cause why this case,

Case No. 20-CV-4121, should not be consolidated with the Roth/Hauge

Appeal, Case No.21-CV-1281, and the Schiro/Hauge Appeal, Case No.

21-CV-5924.5 Further, either party may move to consolidate the

Correspondence Action, Case No. 21-CV-3264, with this action.

Relatedly, as it is contemplating consolidating this action with

the Roth/Hauge and Schiro/Hauge Appeals, the Court denies without

prejudice, as premature, the Defendants PMC Motion regarding an

anticipated dismissal motion of Plaintiff’s Amended Complaint.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED:

(A) The Defendants’ PMC Motion (ECF No. 32) is DENIED without

prejudice;

(B) Plaintiff’s Rule 54(b) Motion is DENIED;

(C) By no later than May 23, 2022, Plaintiff and Defendants:

5 The parties are on NOTICE: If consolidation is ordered, the

Court will direct the filing of a “Consolidated Amended Complaint”.

1. Are to SHOW CAUSE (by letter brief not to exceed three

(3) pages and filed in this action only), WHY THIS

CASE SHOULD NOT BE CONSOLIDATED with the Roth/Hauge

Appeal, Case No. 21-CV-1281, and the Schiro/Hauge

Appeal, Case No. 21-CV5924; and

2. May move (by letter motion not to exceed three (3)

pages and filed in this action only) for consolidation

of this case with the Correspondence Action, Case No.

21-CV-3264; and

(D) The Clerk of Court is directed to file a copy of this

Omnibus Order in Case Nos. 21-CV-1281, 21-CV-3264, and

21-CV-5924, with the preamble docket text:

“INFORMATIONAL FILING (see Case No. 20-CV-4121):”.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: May _9_, 2022

Central Islip, New York