Killoran v. Westhampton Beach School District et al
OMNIBUS ORDER denying 32 Motion for Pre Motion Conference; denying 33 Motion for Judgment on Partial Findings; and TO SHOW CAUSE re: CONSOLIDATION; IT IS HEREBY ORDERED: (A) The Defendants' PMC Motion (ECF No. 32) is DENIED without prej udice; (B) Plaintiff's Rule 54(b) Motion is DENIED; (C) By no later than May 23, 2022, Plaintiff and Defendants: 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 CONS OLIDATED with the Roth/Hauge Appeal, Case No. 21-CV-1281, and the Schiro/Hauge Appeal, Case No. 21-CV-5924; 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 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 by Judge Joanna Seybert on 5/9/2022. C/ECF (Valle, Christine)
Case 2:20-cv-04121-JS-SIL Document 35 Filed 05/09/22 Page 1 of 15 PageID #: 474
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
on behalf of his son,
OMNIBUS ORDER 1
CONFERENCE, and (b)
54(B) MOTION; and
TO SHOW CAUSE re:
WESTHAMPTON BEACH SCHOOL
DISTRICT; MICHAEL RADDAY,
MARY ANNE AMBROSINI,
as Director of Pupil Personnel;
SUZANNE MENSCH, HALSEY C. STEVENS,
JOYCE DONNESSON, and GEORGE R. KAST,
as Board of Education Members,
Christian Killoran, Esq., Pro Se
132-13 Main Street
Westhampton Beach, New York 11978
Anne C. Leahey, Esq.
Anne Leahey Law, LLC
17 Dumplin Hill Lane
Huntington, New York 11743
SEYBERT, District Judge:
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.
Case 2:20-cv-04121-JS-SIL Document 35 Filed 05/09/22 Page 2 of 15 PageID #: 475
Presently before the Court in this action are:
The Defendants’ request for pre-motion conference (“PMC”)
regarding a proposed Rule 12(b)(6) dismissal motion (see
ECF No. 32); and
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
Plaintiff regarding A.K.’s education during the 2020-2021 academic
PROCEDURAL BACKGROUND 2
On March 22, 2022, the Court issued its Memorandum &
(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
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.
Case 2:20-cv-04121-JS-SIL Document 35 Filed 05/09/22 Page 3 of 15 PageID #: 476
(See M&O at 17.)
Thereafter, on March 29,
2022, Plaintiff filed a Notice of Interlocutory Appeal regarding
this ruling of his “pendency claim.”
28; see also Rule 54(b) Motion.)
(See Appeal Notice, ECF No.
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
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).
“voic[ing] its intention to seek a dismissal of the plaintiff’s
‘Notice of Appeal’ as being ‘interlocutory’.”
of his Rule 54(b) Motion, Plaintiff “submits that his ‘pendency’
claim warrants expeditious adjudication because [A.K.] is now 19
Case 2:20-cv-04121-JS-SIL Document 35 Filed 05/09/22 Page 4 of 15 PageID #: 477
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.”
opposition, the Defendants argue: (1) since “the pending and
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 20202021 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.
Case Docket, in toto.)
The Court finds the Defendants’ Opposition
Case 2:20-cv-04121-JS-SIL Document 35 Filed 05/09/22 Page 5 of 15 PageID #: 478
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
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
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
Case 2:20-cv-04121-JS-SIL Document 35 Filed 05/09/22 Page 6 of 15 PageID #: 479
(E.D.N.Y. Sept. 14, 2021) (quoting Linde; collecting cases).
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.”
(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).
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
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
Case 2:20-cv-04121-JS-SIL Document 35 Filed 05/09/22 Page 7 of 15 PageID #: 480
whether there is no just reason to delay Plaintiff’s appeal of the
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
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.:
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,
“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.
Case 2:20-cv-04121-JS-SIL Document 35 Filed 05/09/22 Page 8 of 15 PageID #: 481
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”).
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)).
among other things, relief of compensatory education. (See
Roth/Hauge Appeal, Compl., ECF No. 1); and
Case No. 21-CV-5924:
An appeal from the decision of SRO
Hauge, upholding IHO Schiro’s dismissal of Petitioner’s
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).)
Case 2:20-cv-04121-JS-SIL Document 35 Filed 05/09/22 Page 9 of 15 PageID #: 482
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
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
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
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.
Case 2:20-cv-04121-JS-SIL Document 35 Filed 05/09/22 Page 10 of 15 PageID #: 483
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
scenario where the Second Circuit advises against Rule 54(b)
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
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,
“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
Nor does the Court find that equitable considerations
weigh in favor of granting Rule 54(b) certification.
Case 2:20-cv-04121-JS-SIL Document 35 Filed 05/09/22 Page 11 of 15 PageID #: 484
[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.
more, that proffer is speculative.
See, e.g., Timperio v. Bronx-
(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,
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.
Case 2:20-cv-04121-JS-SIL Document 35 Filed 05/09/22 Page 12 of 15 PageID #: 485
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
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.”
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,
circumstances,’ a court ‘should consider both equity and judicial
Case 2:20-cv-04121-JS-SIL Document 35 Filed 05/09/22 Page 13 of 15 PageID #: 486
“consolidation should be considered when savings of expense and
gains of efficiency can be accomplished without sacrifice of
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 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
administrative records have been filed yet. (See Roth/Hauge Appeal
Case Docket, in toto; see also Schiro/Hauge Appeal Case Docket, in
Through consolidation of these action, unnecessary costs
or delay will be avoided, unnecessary repetition and confusion
Case 2:20-cv-04121-JS-SIL Document 35 Filed 05/09/22 Page 14 of 15 PageID #: 487
Plaintiff’s challenges to the School District’s ruling regarding
Importantly, such an approach should assuage any concerns of A.K.
“aging out” of the School District’s school system.
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.
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.
Accordingly, IT IS HEREBY ORDERED:
The Defendants’ PMC Motion (ECF No. 32) is DENIED without
Plaintiff’s Rule 54(b) Motion is DENIED;
By no later than May 23, 2022, Plaintiff and Defendants:
The parties are on NOTICE: If consolidation is ordered, the
Court will direct the filing of a “Consolidated Amended Complaint”.
Case 2:20-cv-04121-JS-SIL Document 35 Filed 05/09/22 Page 15 of 15 PageID #: 488
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.
The Clerk of Court is directed to file a copy of this
Omnibus Order in Case Nos. 21-CV-1281, 21-CV-3264, and
“INFORMATIONAL FILING (see Case No. 20-CV-4121):”.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
May _9_, 2022
Central Islip, New York
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