1 16-277-cv(L) Myers v. Bucca UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMM ARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 8 th day of December, two thousand sixteen. PRESENT: GUIDO CALABRESI, REENA RAGGI, GERARD E. LYNCH, Circuit Judges

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-------------------------------------- ---------------------------- SCOTT MYERS, Plaintiff-Appellant , v. Nos. 16-277-cv(L) 16-471-cv(Con) CHARLES BUCCA, GREG SEELEY, PATROLMAN ROWELL, ALAN FRISBEE, DONNA BAECKMANN, MICHAEL SPITZ, TERRY WILLHELM, and BOBBY HAINES, Defendants-Appellees

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APPEARING FOR APPELLANT: SCOTT MYERS, pro se , Catskill, New York. APPEARING FOR APPELLEES: CRYSTAL R. PECK, Bailey, Johnson, DeLeonardis & Peck, Albany, New York.2 Appeal from orders of the United States Dist rict Court for the Northern District of New York (David N. Hurd, Judge ; Andrew T. Baxter, Magistrate Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the appeal is DISMISSED for lack of appellate jurisdiction and the Appellant’s motions are DENIED. Appellant Scott Myers, proceeding pro se , appeals from the sua sponte dismissal of

all claims in his Second Amended Complaint, othe r than that for malicious prosecution under 42 U.S.C. § 1983 against defendant Rowe ll, and the denial of all related motions. We assume the parties’ familiari ty with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to dismis s this appeal for lack of appellate jurisdiction. “Pursuant to 28 U.S.C. § 1291, we have jurisdiction to hear timely appeals from final judgments or from partial final judgments en tered pursuant to Fed. R. Civ. P. 54(b).”

Petrello v. White , 533 F.3d 110, 113 ( 2d Cir. 2008). A final d ecision “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” In re Roman Catholic Diocese of Albany, N.Y., Inc. , 745 F.3d 30, 35 (2d Cir. 2014) (internal quotation marks omitted). To be final, an order must “conclusively determine[] the pending claims of all the parties to the litigati on . . . unless the court directs the entry of a final judgment as to the dismissed claims or parties” under Fed. R. Civ. P. 54(b). Citizens Accord, Inc. v. To wn of Rochester , 235 F.3d 126, 128 (2d Cir. 2000).3 A district court’s denial of a motion to stay proceedings pending state court litigation is not a final judgment. See Gulfstream Aerospace Corp . v. Mayacamas Corp. , 485 U.S. 271, 275 (1988). Nor is a denial of a motion to bifurcate. See 9A C. Wright & A. Miller, Federal Practice and Procedure § 2392, at 182–83 (3d ed. 2008); cf. In re Master Key Antitrust Litig. , 528 F.2d 5, 14 (2d Cir. 1975) (holding grant of motion to bifurcate not final order). Further, the district court’s dismissal, upon recommendation of the magistrate judge, of certain of Myers’s claims was not a final judgment because the court allowed Myers’s malicious prosecution claim against Ro well to proceed and did not enter partial judgment pursuant to Rule 54(b). See Citizens Accord, Inc. v. Town of Rochester , 235

F.3d at 128. Even if the “m otion to bifurcate” had been construed as a motion for Rule 54(b) certification, the denial of such a motio n would not itself be a final judgment subject to appeal. See, e.g. , Makuc v. Am. Honda Motor Co., Inc. , 692 F.2d 172, 173–74 (1st Cir. 1982). Finally, none of the challenged orders qualifies as an appealable interlocutory

order under 28 U.S.C. § 1292, or under the “collatera l order” doctrine, the latter of which applies only to the conclusive resolution of an important issue, distinct from the merits of the action, and effectively unre viewable in a later appeal. See United States v. Prevezon Holdings Ltd. , 839 F.3d 227, 235 (2d Cir. 2016).4 Because we do not have appe llate jurisdiction, we nece ssarily express no view of the underlying merits of the case. Myers may raise any issues related to his claims when the district court enters a final judgment, if he chooses to ap peal at that time. Accordingly, we DISMISS this appeal for lack of appellate ju risdiction and DENY as moot Myers’s other motions filed in this court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court