UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Michael Melendez
Case No. 23-cv-172-SM-TSM v. Opinion No. 2024 DNH 094
University of New Hampshire, et al.
O R D E R
Michael Melendez, proceeding pro se, brings claims against
the University of New Hampshire and its employees, alleging
violations of the Americans with Disabilities Act, the
Rehabilitation Act, and the Fourteenth Amendment. Melendez’s
claims arise from his experiences as a law student at the
University of New Hampshire and the school’s decision to
disenroll him because of failing grades. Melendez was granted
leave three times to amend his complaint. 1 He then moved to
supplement his complaint, which was denied, and his motion for
reconsideration was also denied.
1 After the defendants moved to dismiss his complaint, Melendez was granted leave to file a first amended complaint on July 19, 2023. Doc. no. 15. The defendants again moved to dismiss, and the court denied Melendez’s motion to file a second amended complaint without prejudice. End. Or. Oct. 31, 2023. Melendez then was granted leave to file a third amended complaint. Doc. no. 30. When the defendants again moved to dismiss, Melendez sought leave to file a fourth amended complaint, which was granted. Doc. no. 38. In response to the defendants’ motion to dismiss the fourth amended complaint, Melendez again sought to amend, which was denied. Doc. no. 60; Doc. No. 61; End. or. Sept. 10, 2024. Melendez filed an interlocutory appeal of the court’s order
(endorsed order September 10, 2024) granting in part and denying
in part his motion for reconsideration of the denial of his
request to supplement his complaint. He moves for a stay
pending appeal. The defendants object to the motion to stay.
For the reasons that follow, the motion to stay pending appeal
is denied.
Discussion
Melendez asks to stay the court’s endorsed order denying,
in part, his motion for reconsideration of the decision to deny
his motion for leave to supplement his complaint, that was
issued on September 10, 2024. Although Melendez focuses on the
September 10 order, the defendants understood, and the court
agrees, that Melendez is seeking a stay of the entire case,
including the defendants’ motion to dismiss and the motions for
sanctions, pending resolution of his interlocutory appeal.
Whether to grant a stay pending appeal is governed by “the
four-factor test set forth in Nken v. Holder.” United States v.
Texas, 144 S. Ct. 797 (2024) (Mem.). The court considers “‘(1)
[w]hether the stay applicant has made a strong showing that it
is likely to succeed on the merits, (2) whether the applicant
will be irreparably injured absent a stay, (3) whether [the]
issuance of the stay will substantially injure the other parties
2 interested in the proceeding, and (4) where the public interest
lies.’” Dist. 4 Lodge of the Int'l Ass'n of Machinists &
Aerospace Workers Loc. Lodge 207 v. Raimondo, 18 F.4th 38, 42
(1st Cir. 2021) (quoting Nken, 556 U.S. at 426) (additional
quotation marks and citation omitted); Ass’n to Preserve &
Protect Livelihoods v. Town of Bar Harbor, 2024 WL 3088752, at
*1 (D.Me. June 21, 2024). “The first two factor are the most
critical.” Dist. 4 Lodge, 18 F.4th at 42 (internal quotation
marks omitted).
Melendez makes no argument that addresses the factors
necessary to support a stay. Because Melendez has not shown a
likelihood of success on the merits, the court need not address
the remaining factors. See Ass’n to Preserve & Protect
Livelihoods, 2024 WL 3088752, at *1 (noting that failure to show
a likelihood of success on the merits is grounds to deny a
motion to stay pending appeal).
A. Likelihood of Success
As the defendants point out, Melendez is unlikely to
succeed on the merits of his appeal because an interlocutory
order is not usually appealable and because the court’s denial
of his motion to supplement was not an abuse of discretion. The
court addresses the merits issues separately.
3 1. Interlocutory Appeal
In general, parties may not appeal before final judgment.
28 U.S.C. § 1291; Coinbase, Inc. v. Bielski, 599 U.S. 736, 140
(2023). For that reason, interlocutory appeals, those taken
before final judgment, require an exception, which exists in
certain circumstances, such as for appeals from decisions
related to injunctions, related to receivers and receiverships,
and in admiralty cases, § 1292(a), and when a district judge
states in an order that an interlocutory appeal would
“materially advance the ultimate termination of the litigation,”
§ 1292(b). Jurisdiction also exists for immediate appeal under
the collateral order doctrine when an order would “[1]
conclusively determine the disputed question, [2] resolve an
important issue completely separate from the merits of the
action, and [3] be effectively unreviewable on appeal from a
final judgment.” 2 Will v. Hallock, 546 U.S. 345, 349 (2006)
(internal quotation marks omitted); accord Doe v. Mass. Inst. of
Tech., 46 F.4th 61, 65 (1st Cir. 2022).
Melendez makes no argument that his interlocutory appeal
falls within any exception to the final judgment rule, which
would provide jurisdiction for his appeal. The court’s decision
denying Melendez’s motion to supplement his complaint does not
2 Other exceptions also exist in circumstances unrelated to this case.
4 fall into any exception to the final judgment rule or under the
collateral order doctrine. For that reason, Melendez has not
shown a strong likelihood or any likelihood that he will succeed
on appeal.
B. Merits
In addition, Melendez has not shown a likelihood on the
merits of his appeal. Melendez moved to “supplement” his
complaint under Federal Rule of Civil Procedure 15(d) to add two
defendants, an unnamed individual in the information technology
department at the law school and the defendants’ lead attorney
in this case, and to add four additional causes of action. This
motion was Melendez’s fifth attempt to amend his complaint. The
defendants objected to the motion.
Rule 15(d) allows the court to grant leave for a party to
supplement a pleading to add “any transaction, occurrence, or
event that happened after the date of the pleading to be
supplemented.” A motion to supplement under Rule 15(d) “may be
denied where the referenced events occurred before the filing of
the original complaint,” where supplementation would cause undue
delay, where supplementation would be futile, and where
supplementation could cause undue prejudice to the opposing
party. U.S. ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 7
(1st Cir. 2015). The magistrate judge recommended that the
5 district judge deny Melendez’s motion because the supplemental
claims were futile and because supplementation would cause undue
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Michael Melendez
Case No. 23-cv-172-SM-TSM v. Opinion No. 2024 DNH 094
University of New Hampshire, et al.
O R D E R
Michael Melendez, proceeding pro se, brings claims against
the University of New Hampshire and its employees, alleging
violations of the Americans with Disabilities Act, the
Rehabilitation Act, and the Fourteenth Amendment. Melendez’s
claims arise from his experiences as a law student at the
University of New Hampshire and the school’s decision to
disenroll him because of failing grades. Melendez was granted
leave three times to amend his complaint. 1 He then moved to
supplement his complaint, which was denied, and his motion for
reconsideration was also denied.
1 After the defendants moved to dismiss his complaint, Melendez was granted leave to file a first amended complaint on July 19, 2023. Doc. no. 15. The defendants again moved to dismiss, and the court denied Melendez’s motion to file a second amended complaint without prejudice. End. Or. Oct. 31, 2023. Melendez then was granted leave to file a third amended complaint. Doc. no. 30. When the defendants again moved to dismiss, Melendez sought leave to file a fourth amended complaint, which was granted. Doc. no. 38. In response to the defendants’ motion to dismiss the fourth amended complaint, Melendez again sought to amend, which was denied. Doc. no. 60; Doc. No. 61; End. or. Sept. 10, 2024. Melendez filed an interlocutory appeal of the court’s order
(endorsed order September 10, 2024) granting in part and denying
in part his motion for reconsideration of the denial of his
request to supplement his complaint. He moves for a stay
pending appeal. The defendants object to the motion to stay.
For the reasons that follow, the motion to stay pending appeal
is denied.
Discussion
Melendez asks to stay the court’s endorsed order denying,
in part, his motion for reconsideration of the decision to deny
his motion for leave to supplement his complaint, that was
issued on September 10, 2024. Although Melendez focuses on the
September 10 order, the defendants understood, and the court
agrees, that Melendez is seeking a stay of the entire case,
including the defendants’ motion to dismiss and the motions for
sanctions, pending resolution of his interlocutory appeal.
Whether to grant a stay pending appeal is governed by “the
four-factor test set forth in Nken v. Holder.” United States v.
Texas, 144 S. Ct. 797 (2024) (Mem.). The court considers “‘(1)
[w]hether the stay applicant has made a strong showing that it
is likely to succeed on the merits, (2) whether the applicant
will be irreparably injured absent a stay, (3) whether [the]
issuance of the stay will substantially injure the other parties
2 interested in the proceeding, and (4) where the public interest
lies.’” Dist. 4 Lodge of the Int'l Ass'n of Machinists &
Aerospace Workers Loc. Lodge 207 v. Raimondo, 18 F.4th 38, 42
(1st Cir. 2021) (quoting Nken, 556 U.S. at 426) (additional
quotation marks and citation omitted); Ass’n to Preserve &
Protect Livelihoods v. Town of Bar Harbor, 2024 WL 3088752, at
*1 (D.Me. June 21, 2024). “The first two factor are the most
critical.” Dist. 4 Lodge, 18 F.4th at 42 (internal quotation
marks omitted).
Melendez makes no argument that addresses the factors
necessary to support a stay. Because Melendez has not shown a
likelihood of success on the merits, the court need not address
the remaining factors. See Ass’n to Preserve & Protect
Livelihoods, 2024 WL 3088752, at *1 (noting that failure to show
a likelihood of success on the merits is grounds to deny a
motion to stay pending appeal).
A. Likelihood of Success
As the defendants point out, Melendez is unlikely to
succeed on the merits of his appeal because an interlocutory
order is not usually appealable and because the court’s denial
of his motion to supplement was not an abuse of discretion. The
court addresses the merits issues separately.
3 1. Interlocutory Appeal
In general, parties may not appeal before final judgment.
28 U.S.C. § 1291; Coinbase, Inc. v. Bielski, 599 U.S. 736, 140
(2023). For that reason, interlocutory appeals, those taken
before final judgment, require an exception, which exists in
certain circumstances, such as for appeals from decisions
related to injunctions, related to receivers and receiverships,
and in admiralty cases, § 1292(a), and when a district judge
states in an order that an interlocutory appeal would
“materially advance the ultimate termination of the litigation,”
§ 1292(b). Jurisdiction also exists for immediate appeal under
the collateral order doctrine when an order would “[1]
conclusively determine the disputed question, [2] resolve an
important issue completely separate from the merits of the
action, and [3] be effectively unreviewable on appeal from a
final judgment.” 2 Will v. Hallock, 546 U.S. 345, 349 (2006)
(internal quotation marks omitted); accord Doe v. Mass. Inst. of
Tech., 46 F.4th 61, 65 (1st Cir. 2022).
Melendez makes no argument that his interlocutory appeal
falls within any exception to the final judgment rule, which
would provide jurisdiction for his appeal. The court’s decision
denying Melendez’s motion to supplement his complaint does not
2 Other exceptions also exist in circumstances unrelated to this case.
4 fall into any exception to the final judgment rule or under the
collateral order doctrine. For that reason, Melendez has not
shown a strong likelihood or any likelihood that he will succeed
on appeal.
B. Merits
In addition, Melendez has not shown a likelihood on the
merits of his appeal. Melendez moved to “supplement” his
complaint under Federal Rule of Civil Procedure 15(d) to add two
defendants, an unnamed individual in the information technology
department at the law school and the defendants’ lead attorney
in this case, and to add four additional causes of action. This
motion was Melendez’s fifth attempt to amend his complaint. The
defendants objected to the motion.
Rule 15(d) allows the court to grant leave for a party to
supplement a pleading to add “any transaction, occurrence, or
event that happened after the date of the pleading to be
supplemented.” A motion to supplement under Rule 15(d) “may be
denied where the referenced events occurred before the filing of
the original complaint,” where supplementation would cause undue
delay, where supplementation would be futile, and where
supplementation could cause undue prejudice to the opposing
party. U.S. ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 7
(1st Cir. 2015). The magistrate judge recommended that the
5 district judge deny Melendez’s motion because the supplemental
claims were futile and because supplementation would cause undue
prejudice to the defendants. Doc. no. 60. The undersigned
district judge approved and adopted that recommendation. Doc.
no. 61.
In his objection to the report and recommendation, Melendez
argued that he stated viable causes of action for intrusion,
intentional infliction of emotional distress (against two
defendants), and conspiracy. He also argued briefly that his
supplementation would not cause prejudice to the defendants.
Although the district judge understood that the objection was
filed late, the court considered Melendez’s objection and
concluded that it did not change the outcome.
Melendez then moved for reconsideration, arguing that his
objection was filed within the time allowed and that the report
and recommendation was contrary to the applicable law. 3 The
court granted the motions for reconsideration to the extent
Melendez argued that his objection was timely filed, but denied
the motions to the extent they argued that the report and
3 It appears that Melendez may have misunderstood the report and recommendation to recommend dismissal of the claims alleged in the Fourth Amended Complaint. Instead, the report and recommendation addressed only the supplemental claims. The Fourth Amended Complaint remains the applicable pleading in this case.
6 recommendation was contrary to the law. End. Or. Sept. 10,
2024.
Because the court agreed with Melendez on the issue of the
timeliness of his objection, that issue was resolved in his
favor. Melendez has not shown a likelihood that he will succeed
on appeal to the extent he is challenging the denial of his
motion to supplement. As such, Melendez has not made the
required showing to support a stay of this case pending appeal.
C. Irreparable Harm, Injury to Other Parties, and Public Interest
As noted above, Melendez did not address any of the four
factors necessary to support a stay pending appeal. He does not
contend that he will suffer irreparable harm absent a stay, and
the court perceives no irreparable harm to Melendez in these
circumstances. Further, the remaining two factors, injury to
the defendants and the public interest, do not support staying
this case pending appeal, because a stay would delay resolution
of Melendez’s claims when he would suffer no irreparable harm
from continuing the proceedings.
Because Melendez has not shown a likelihood of success on
the merits of his appeal or that he would suffer irreparable
harm absent a stay, he has not provided grounds to impose a stay
pending appeal.
7 Conclusion
For the foregoing reasons, the plaintiff’s motion for a
stay pending appeal (doc. no. 65) is denied.
SO ORDERED.
______________________________ Steven J. McAuliffe United States District Judge
November 8, 2024
cc: Michael Melendez, pro se Counsel of Record