Failure to Recreate the District Court Record as Ordered Leads to a Loss on Appeal

Roberts v. Ferman, 826 F.3d 117 (3d Cir. 2016).  Federal Rule of Appellate Procedure 10(c)  deals with the circumstance in which a transcript of a District Court hearing or trial is unavailable.  In such a case, the appellant “may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection,” submit it to the appellee for objections or amendments, and then to the District Court “for settlement and approval.”

In today’s decision by Judge Smith, transcripts of four of the six trial days in the District Court were lost.  Plaintiff, who had lost at the trial, filed a motion for a new trial.  Among other arguments, he charged the trial judge with bias (one of three judges in the case whom plaintiff accused of bias).  In part because of that accusation, the case was reassigned to a different District Judge.  That judge had no history with the case.  Thus, in order to be able to decide plaintiff’s post-trial motion, the new judge directed that the record be recreates pursuant to Rule of Appellate Procedure 10(c).  Plaintiff declined to do so, asserting that defendants would never agree to any recreation furnished by plaintiff.  As a result, the District Court denied plaintiff’s motion for new trial based on failure to prosecute.  On plaintiff’s appeal, the Third Circuit affirmed, applying the abuse of discretion standard on this issue.

Plaintiff won on a preliminary issue.  Since plaintiffs not only did not recreate the missing transcripts, despite the District Court’s directive, but also failed to include in the appellate record the transcripts that the parties did have, defendants contended that plaintiff had given up any right to appeal by virtue of Federal Rule of Appellate Procedure 10(b).  That rule makes it the appellant’s “duty” to order District Court transcripts.  Defendants relied for this argument on Lehman Brothers Holdings, Inc. v. Gateway Funding Diversified Mortgage Services, L.P., 785 F.3d 96 (3d Cir. 2015), which was discussed here.

Judge Smith found the cases distinguishable.  In Lehman, the appellant had affirmatively misrepresented that there was no transcript.  The court there emphasized that dismissals for failure to comply with Rule 10(b) were “not favored,” “unusual,” and “sparingly used.”  Here, though plaintiff “was derelict in preparing the record for appeal,” his failure was not comparable to the circumstances that led to the dismissal of the appeal in Lehman.

From there, however, things went south for plaintiff.  His “willful refusal to move his own post-trial motion forward” by failing to comply with the order to recreate the transcripts led to the dismissal of his motion for a new trial.  The District Court did not abuse its discretion in ordering dismissal for failure to prosecute.  Though Rule 10(c) is an appellate rule, District Courts have used it as a “guide” in circumstances where, as here (with a judge who was new to the case), the lower court itself needs a reconstructed record in order to rule.

Because plaintiff had made no effort to recreate the record, he could not argue that the loss of the trial record, in itself, required a new trial.  Judge Smith cited a number of other Circuit Court cases that so concluded.  Appellants who do make an effort to recreate the record can then argue that the recreated record is insufficient for meaningful appellate review.  But plaintiff here did not try to recreate the record, so he could not complain.

Plaintiff lost on his other major issue.  At a certain point, a Magistrate Judge, whom the parties had originally agreed could adjudicate the case, had denied defendants’ motion for summary judgment on two counts of plaintiff’s complaint.  Thereafter, however, plaintiff had revoked his consent to adjudication by the Magistrate Judge and accused him of bias.  Later, the District Judge decided to grant summary judgment on those same two counts to defendants, even though they had not moved again for summary judgment.  The judge acted based on intervening decisions of the Supreme Court of the United States and the Supreme Court of Pennsylvania.  Plaintiff asserted that it was improper for the District Judge to revisit that issue.  Judge Smith disagreed on two bases.

First, by revoking consent as to the Magistrate Judge, plaintiff rendered that judge’s prior decisions “likely void.”  Second, the law of the case doctrine does not apply when there is intervening new law or other changed circumstances.  The new decisions from the two Supreme Courts allowed reconsideration of the issues.

Finally, plaintiff argued that the District Judge lacked power to grant summary judgment sua sponte, without a motion by defendants.  Judge Smith observed that a court may grant summary judgment to a non-moving party, provided that all parties are notified that a sua sponte summary judgment motion is being considered and the parties are given a chance to “present relevant evidence in opposition to that motion.”  That procedure was followed here, so plaintiff had no valid argument.