In Re Allan Kent Kurtz

Filing 20

MINUTES OF IN CHAMBERS - ORDER TO FILE SUPPLEMENTAL RECORD by Judge Dolly M. Gee: The Court requires the full text of the arbitration award to understand the context of the decision. Accordingly, Appellant is hereby ORDERED to file the full text of the arbitration award as a Supplemental Appendix, by no later than 7/5/2013. Court Reporter: Not Reported. (gk)

O

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

Date

CV 12-07175 DMG

June 28, 2013

Title In Re: Allan Kent Kurtz, Allan Kent Kurtz v. 3H Corp (1:11-bk-17064, Page
1:11-ap-1575)
Present: The Honorable

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DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

VALENCIA VALLERY
Deputy Clerk

NOT REPORTED
Court Reporter

Attorneys Present for Plaintiff(s)
None Present

Attorneys Present for Defendant(s)
None Present

Proceedings: IN CHAMBERS—ORDER TO FILE SUPPLEMENTAL RECORD
Appellant Allan Kent Kurtz seeks to appeal a judgment from the Bankruptcy Court
granting summary judgment to Appellee 3H Corporation on the ground that a prior arbitration
proceeding precludes the bankruptcy court from revisiting the issue. Appellant’s excerpts of the
record include passages from the arbitration award, but not the arbitration award in its entirety.
(R. at 25-26.) [Doc. # 18.] Inexplicably, neither side saw fit to include the full text of the
Arbitrator’s Award in the appendix on appeal. The Court requires the full text of the arbitration
award to understand the context of the decision.
The Local Rules Governing Bankruptcy Appeals, Cases, and Proceedings and the Federal
Rules of Bankruptcy Procedure are silent as to the procedure regarding modification of the
record upon appeal to a district court. See Local Rules, Ch. IV; Fed. R. Bankr. P. 8019. When
the Local Bankruptcy Rules and Federal Rules of Bankruptcy Procedure are silent, the Rules of
the United States Court of Appeals for the Ninth Circuit and the Federal Rules of Appellate
Procedure apply. See, e.g., In re Cloobeck, 2:10-CV-01278-GMN, 2011 WL 1899306 (D. Nev.
May 19, 2011); In re Schugg, CV07-1962-PHX-JAT, 2009 WL 1635379 (D. Ariz. June 11,
2009).
Rule 10(e) of the Federal Rules of Appellate Procedure states, in relevant part:
(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

CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MS

O

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

Date

CV 12-07175 DMG

June 28, 2013

Title In Re: Allan Kent Kurtz, Allan Kent Kurtz v. 3H Corp (1:11-bk-17064, Page
1:11-ap-1575)

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(C) by the court of appeals.
 “Rule 10(e) cannot be used to add to or enlarge the record on appeal to include material which

was not before the district court.” United States v. Walker, 601 F.2d 1051, 1054 (9th Cir.1979).
Here, this Court sits in appellate review, and accordingly may order a supplemental record under
Rule 10(e), but only with respect to those items presented to the Bankruptcy Court. The
Bankruptcy Court appears to have had the benefit of the full text of the arbitration award. (R. at
2.)
Accordingly, Appellant is hereby ORDERED to file the full text of the arbitration award
as a Supplemental Appendix, by no later than July 5, 2013.
IT IS SO ORDERED.

CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MS