Michael Melendez v. University of New Hampshire, et al.

2025 DNH 007

• Court: District Court, D. New Hampshire
• Decided: January 30, 2025
• Docket: 23-cv-172-SM-TSM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael Melendez

v. Case No. 23-cv-172-SM-TSM Opinion No. 2025 DNH 007 University of New Hampshire, et al.

O R D E R

Michael Melendez filed an interlocutory appeal of this

court’s order denying his motion to supplement his complaint.

Melendez v. UNH, 24—1923 (1st Cir. filed Oct. 9, 2024).

Defendants move, pursuant to Federal Rule of Appellate Procedure

10(b)(3)(C), to have Melendez order and pay for a transcript of

the status conference held by Magistrate Judge Talesha Saint-

Marc on April 25, 2024, which defendants represent includes a

discussion of Melendez’s prior filings that is relevant to the

appeal. Doc. no. 75. Melendez objects to the motion, arguing

that the hearing transcript is not relevant and that defendants

made procedural errors in requesting the transcript.

After defendants moved to have Melendez order and pay for a

transcript, the First Circuit Court of Appeals issued the

following order:

Upon review, it appears that this court may lack jurisdiction to consider this appeal because final judgment has not entered and the challenged order may not be appealable on an interlocutory basis. See 28 U.S.C. §§ 1291, 1292. The appellant is ordered to move for voluntary dismissal of the appeal pursuant to Fed. R. App. P. 42(b), or to show cause, in writing, why this appeal should not be dismissed for lack of jurisdiction. The failure to take action by January 13, 2025, will lead to dismissal of the appeal for lack of diligent prosecution. 1st Cir. R. 3.0(b).

Melendez, 24-1923 (Dec. 30, 2024). The First Circuit’s docket

shows that Melendez has not filed any response to date. It also

shows that the mail containing the order was returned to the

court as undeliverable. Melendez has not complied with the

court’s order, and it appears likely that the appeal will be

dismissed. As a result, at this time it appears there is not

likely to be any need on appeal for the transcript of the status

conference.

Separately but relatedly, Melendez moves pursuant to

Federal Rule of Civil Procedure 54(b) to have the court enter

final judgment on the claims he sought to add to his complaint

in the motion to supplement (doc. no. 42), which was denied, and

is the subject of Melendez’s interlocutory appeal. Doc. no. 95.

Rule 54(b) permits the court to enter final judgment on some,

but not all, of the claims in a case, when there is no just

reason for delay. Here, however, the “claims” that Melendez

references were raised in his motion to supplement, but that

motion was denied. As a result, the supplemental “claims” never

became claims in this case, and of course, those matters have

2 not been adjudicated. Rule 54(b) does not apply in these

circumstances.

Melendez also moves to withdraw his prior motion (doc. no.

76) for reconsideration of the court’s order denying his motion

to stay this case pending appeal. Doc. no. 94. The withdrawal

is allowed.

Conclusion

For the foregoing reasons, defendants’ motion to order a

transcript (doc. no. 75) is denied without prejudice to refile,

if necessary. Plaintiff’s motion for judgment (document no. 95)

is denied. Plaintiff’s motion to withdraw his motion for

reconsideration (doc. no. 94) is granted, and the motion for

reconsideration (doc. no. 76) is withdrawn.

SO ORDERED.

______________________________ Steven J. McAuliffe United States District Judge

January 30, 2025

cc: Michael Melendez, pro se Counsel of record