Nebraska Data Centers, LLC v. Khayet

Filing 266

MEMORANDUM AND ORDER - The Motion to Consolidate Cases and to Proceed In Forma Pauperis on Appeal, ECF No. 264 , is granted, in part, as follows: a. Defendant Leo Khayet's request to proceed in forma pauperis on appeal is granted; and b. Defend ant Leo Khayet's request that the above-captioned action and Case No. 8:18cv330 be consolidated for purposes of appeal is denied. Ordered by Chief Judge Laurie Smith Camp. (Copies mailed to defaulted defendant Timber Ventures, LLC and Attorney Neil P. Hassler) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

NEBRASKA DATA CENTERS, LLC, and
AMERICAN NEBRASKA LIMITED
PARTNERSHIP,

8:17CV369

Plaintiffs,
MEMORANDUM
AND ORDER

vs.
Leo Khayet and Timber Ventures, LLC,
Defendant.

This matter is before the Court on the Motion to Consolidate Cases and to Proceed
In Forma Pauperis on Appeal, ECF No. 264, filed by Defendant Leo Khayet.
A party to a district-court action who has not previously been permitted to proceed
in forma pauperis in the action must file a motion in the district court with an accompanying
financial affidavit if that party desires to proceed on appeal in forma pauperis. Fed. R.
App. P. 24(a)(1) & (3). Khayet was not previously permitted to proceed in forma pauperis
in this action and he did not attach the requisite financial affidavit. Instead, he relies on
the financial affidavit and permission to proceed in forma pauperis in another action, Case
No. 8:18cv330. ECF Nos. 3 & 8 in Case No. 8:18cv330. Such reliance is not consistent
with the text of Fed. R. App. P. 24(a). However, because this case and Case No.
8:18cv330

are

related,

and

because

the

Court entered

judgment

in

both

contemporaneously, the Court will grant Khayet’s request to proceed on appeal in forma
pauperis based on the permission previously granted in Case No. 8:18cv330. See ECF
No. 8 in Case No. 8:18cv330 (granting leave to proceed in forma pauperis).

The Court will not consolidate this case with Case No. 8:18cv330 for purposes of
appeal because the Court may not have the authority to consolidate the cases for appeal.
Hunter v. Underwood, 362 F.3d 468, 475 (8th Cir. 2004) (“The filing of a notice of appeal
. . . confers jurisdiction on the court of appeals and divests the district court of its control
over those aspects of the case involved in the appeal.”). Accordingly,
IT IS ORDERED: The Motion to Consolidate Cases and to Proceed In Forma
Pauperis on Appeal, ECF No. 264, is granted, in part, as follows:
a.

Defendant Leo Khayet’s request to proceed in forma pauperis on appeal is
granted; and

b.

Defendant Leo Khayet’s request that the above-captioned action and Case
No. 8:18cv330 be consolidated for purposes of appeal is denied.

Dated this 4th day of October, 2018.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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