01 CV 5196 (HB)
October 15, 2002
Joseph Miro ("plaintiff") moves under Fed.R.App.P. 10(e)(1) to modify or correct the district court's record for the purposes of appeal. Specifically, plaintiff requests that court deem his supplemental affidavit, dated March 4, 2002, part of the record. For reasons detailed more fully below, plaintiffs motion to supplement the record on appeal is denied.
On February 8, 2002, Plumbers Pipefitters National Pension Fund, et. al. ("defendants") moved for summary judgment. Plaintiff cross-moved for summary judgment on February 21, 2002. Plaintiff agreed to provide clarification through a supplemental affidavit and claimed that he mailed it to the Clerk of the Court and defendants on March 4, 2002. There is no evidence before the Court that the supplemental affidavit was received by defendants or by the Clerk of the Court or even mailed by plaintiff. This Court granted defendants' motion for summary judgment on April 16, 2002, and plaintiff has now appealed and seeks to supplement or correct the record of this Court to include the supplemental affidavit.
Rule 10(e) provides, in pertinent part, that
(1) [i]f any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly. (2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded: (A) on stipulation of the parties; (B) by the district court before or after the record has been forwarded; or (C) by the court of appeals.
Pursuant to Rule 10(e), the moving party must demonstrate that the evidence to be supplemented was before the lower court in the course of its proceedings leading to the judgment under review and was mistakenly omitted from the record. See Schreier v. Weight Watchers Northeast Region. Inc., 872 F. Supp. 1, 3 (E.D.N.Y. 1994).
Here, plaintiff contends that the supplemental affidavit should be part of the record on appeal because he sent a fax to chambers and also mailed a copy to defendants. By contrast, defendants maintain that the Court should not consider the supplemental affidavit to be part of the record on appeal for the following reasons: (1) plaintiffs attorney did not file the supplemental affidavit with the Clerk of the Court; (2) plaintiffs attorney did not properly serve the supplemental affidavit on defendants; (3) plaintiff faxed the supplemental affidavit to the Court after the period in which motions were to be fully briefed according to the pretrial scheduling order ("PTSO"). I agree with defendants.
First, plaintiffs attorney did not file the supplemental affidavit with the Clerk of the Court as required under Fed.R.Civ.P. 5(d), which states that "[a]ll papers after the complaint required to be served upon a party, together with a certificate of service, must be filed with the court within a reasonable time after service." Indeed, filing with the Clerk of the Court is a necessary prerequisite for such an affidavit to become part of the record. Although chambers received a facsimile of the supplemental affidavit on March 5, 2002, the Clerk of the Court received neither the supplemental affidavit nor proof of service. Plaintiffs informal submission (i.e., a facsimile) of unfiled motion papers directly to chambers in no way constitutes an acceptable substitute for filing with the Clerk of the Court. Also, under Rule 10(e) any documents, depositions or other evidence not filed in the district court proceeding may not be considered on appeal. See Dictograph Prods v. Sonotone Corp., 231 F.2d 867 (2d Cir. 1956), cert. dismissed, 352 U.S. 883, 77 (1956).
Second, plaintiff failed to serve defendants with the supplemental affidavit. According to their opposition papers, defendants never received a signed — or, for that matter, an unsigned — copy of the affidavit. Although the mailing of an affidavit constitutes service under Fed.R.Civ.P. 5(b)(2)(B), plaintiff has failed to produce any documentation whatsoever — e.g., receipts — on his moving or reply papers that verifies that he in fact mailed the affidavit. Clearly, an affidavit that was neither filed with the Clerk of the Court nor served may not become part of the record on appeal.
Third, plaintiffs supplemental affidavit was submitted after February 28, 2002, the deadline by which "any motion shall be fully briefed" as set forth in the parties' pretrial scheduling order ("PTSO"). The Court is therefore within its discretion in refusing to consider such a late submission. RGI. Inc. v. Unified Indus., Inc., 963 F.2d 658, 661-62 (4th Cir. 1992).
Plaintiffs reliance on the Federal Rules of Appellate Procedure Rule 10(e) to supplement the record is unavailing, as "[t]he purpose of the rule is to permit correction or modification of the record transmitted to the Court of Appeals so that it adequately reflects what was considered by [the district] court." Indeed, "[i]t is well-settled that the purpose of Rule 10(e) is not to allow a district court "to add to the record on appeal matters that did not occur there in the course of proceedings leading to the judgment under review."' Rubin v. Brady, 1992 WL 350749, *1 (S.D.N.Y. Nov.17, 1992) (quoting Fassett v. Delta Kappa Epsilon (New York), 807 F.2d 1150, 1165 (3rd Cir. 1986)). Because plaintiffs supplemental affidavit was not part of the record when the Court ruled on defendants' summary judgment motion and plaintiffs cross-motion seeking the same, it may not now become part of the record on appeal.
For the foregoing reasons, plaintiffs motion to correct or supplement the record pursuant to Fed.R.App.P. 10(e)(1) is denied.