Caraccioli v. Facebook, Inc.

Filing 43

ORDER denying 39 Motion to Supplement the Record. Signed by Judge Edward J. Davila on 2/28/2017. (ejdlc1S, COURT STAFF) (Filed on 2/28/2017) (Additional attachment(s) added on 2/28/2017: # 1 Certificate/Proof of Service) (amkS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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FRANCO CARACCIOLI,

Case No. 5:15-cv-04145-EJD

Plaintiff,
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ORDER DENYING PLAINTIFF’S
MOTION TO SUPPLEMENT THE
RECORD

v.
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FACEBOOK, INC.,

Re: Dkt. No. 39

United States District Court
Northern District of California

Defendant.
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In an order filed on March 7, 2016, this court granted Defendant Facebook, Inc.’s

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(“Facebook”) motion to dismiss the complaint filed by Plaintiff Franco Caraccioli (“Plaintiff”) and

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denied Plaintiff’s motion for leave to file another amended complaint. Dkt. No. 29. All of

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Plaintiff’s claims were dismissed without leave to amend, and judgment was entered in favor of

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Facebook. Plaintiff has since appealed from the judgment. Dkt. No. 31.

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In conjunction with the appeal, Plaintiff now moves pursuant to Federal Rule of Appellate

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Procedure 10(e) to supplement the record with the “original agreement” between Plaintiff and

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Facebook, which according to Plaintiff’s pleading is a document entitled “Privacy Policy” and

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dated June 28, 2005. Dkt. No. 39. Facebook opposes Plaintiff’s motion.

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This matter is suitable for decision without oral argument. Civ. L.R. 7-1(b). As to the
relief requested by Plaintiff, the court finds, concludes and orders as follows:
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A record on appeal generally consists of three items: (1) “the original papers and

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exhibits filed in the district court;” (2) “the transcript of proceedings, if any;” and (3) “a certified

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copy of the docket entries prepared by the district clerk.” Fed. R. App. P. 10(a). “Papers not filed

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with the district court or admitted into evidence by that court are not part of the clerk’s record and

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Case No.: 5:15-cv-04145-EJD
ORDER DENYING PLAINTIFF’S MOTION TO SUPPLEMENT THE RECORD

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cannot be part of the record on appeal.” Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077

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(9th Cir. 1988).

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2.

Federal Rule of Appellate Procedure 10(e)(2) governs the correction of an appellate

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record, and allows the court to “correct” or “supplement” the record when “anything material to

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either party is omitted from or misstated in the record by error or accident.” Importantly,

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however, the Ninth Circuit has held “that Rule 10(e) is not an appropriate vehicle for expanding

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the record on appeal with material not considered by the district court in the first instance.”

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United States v. Davis, No. 15-50244, 2016 U.S. App. LEXIS 12881, at *3 (9th Cir. 2016) (citing

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United States v. Bischel, 61 F.3d 1429, 1436 n.7 (9th Cir. 1995)).

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3.

Nothing in Plaintiff’s motion suggests that the 2005 Privacy Policy was omitted

United States District Court
Northern District of California

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from his pleadings by “error or accident.” In fact, the argument in support of the motion provokes

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an opposite conclusion. Plaintiff admits he was aware that he may have agreed to terms other than

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those disclosed in the Privacy Policy he attached to the complaint, and “persistently” tried to

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obtain a copy of the 2005 Privacy Policy. But despite this awareness and his persistent efforts,

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Plaintiff nonetheless chose to rely on Facebook’s Privacy Policy dated January 30, 2015, in

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fashioning his pleadings. That choice was not an error or accident, but rather a conscious decision

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by Plaintiff to proceed with the information more easily accessible to him at the time.

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Furthermore, Plaintiff’s contention that this court considered “the issue that

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[Plaintiff] could not obtain the Original Agreement as it was agreed in the year 2005” is

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inaccurate. In ruling on Facebook’s motion to dismiss, the court merely engaged the examination

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required by Federal Rule of Civil Procedure 12(b)(6) and limited its review to the complaint and

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its attachments. The court relied extensively on the 2015 Privacy Policy because it was attached

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to the complaint. Because the 2005 Privacy Policy was not submitted by Plaintiff, the court did

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not - and indeed could not - consider it and explicitly stated as much in the order. Caraccioli v.

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Facebook, Inc., 167 F. Supp. 3d 1056, 1062 n. 3 (N.D. Cal. 2016). Similarly, any representation

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by Plaintiff the he was unable to obtain a copy of the 2005 Privacy Policy did not factor into the

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decision on the motion to dismiss since such a representation, if made, is extraneous to issues

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Case No.: 5:15-cv-04145-EJD
ORDER DENYING PLAINTIFF’S MOTION TO SUPPLEMENT THE RECORD

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presented by a Rule 12(b)(6) motion.
In sum, this motion does not constitute a proper effort to correct the record. It is instead a

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request to insert a new, post-judgment document that was never filed or considered by the court.

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As such, the 2005 Privacy Policy is outside the definition provided in Rule 10(a), and cannot be

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belatedly added to the record through Rule 10(e).

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For these reasons, Plaintiff’s motion to supplement the record (Dkt. No. 39) is DENIED.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: February 28, 2017
______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:15-cv-04145-EJD
ORDER DENYING PLAINTIFF’S MOTION TO SUPPLEMENT THE RECORD