Kirk v. Citigroup Global Markets Holdings Inc.

Background

The court received David M. Kirk’s letters concerning “appeal concerns” and requesting a case cited in the court’s May 4, 2021 order. The court attached the requested decision, United States v. Spear, to this order and noted that it had previously attributed that decision to the wrong district.

The court also received Citigroup Global Markets Holdings Inc.’s motion for sanctions, Kirk’s opposition, and Kirk’s cross-motion for sanctions. Because Kirk filed a cross-motion, the court allowed him to respond to any opposition filed by Citigroup. Citigroup’s opposition, if any, was due with its reply by June 15, 2021, and Kirk’s reply to that opposition, if any, was due by June 22, 2021.

Complaint and Amendment Ruling

The court had previously noted that Kirk filed two amended complaints and denied him permission to file a third amended complaint. Kirk argued that his second amended complaint was a replacement for his first amended complaint, which he described as a “rough draft.” The court rejected that characterization, explaining that any change to a complaint filed with the court is considered an amendment. The court designated the second amended complaint as the operative complaint.

The court treated Kirk’s letters as a motion asking it to reconsider its decision denying permission to amend. The court denied Kirk’s motion to amend as futile at this stage. It explained that it was then considering only whether it had authority over the subject matter of the case. Adding particular statutes or extending the alleged fraud period by four days would not change the nature of Kirk’s claims, and Kirk did not assert that those changes would increase his actual damages.

Consolidation and Disposition

Kirk also challenged the court’s decision concerning consolidation of the related cases. The court stated that federal courts have broad discretion over consolidation and that Kirk, because he was representing himself, could not file a consolidated complaint on behalf of all plaintiffs in the related actions. The court further explained that courts generally address doubts about their authority over the subject matter before proceeding. It therefore reconsidered its earlier decision allowing Citigroup to seek consolidation and adopted a coordinated two-track briefing schedule instead. The court stated that the parties could seek permission to file a consolidation motion in the future.

The court denied Kirk’s motion to amend and set the sanctions-related filing schedule described above. It ordered Citigroup to serve Kirk with a copy of the order and file proof of service by June 14, 2021. The order did not rule on the pending sanctions motions.