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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 FRANCO CARACCIOLI, Case No. 5:15-cv-04145-EJD Plaintiff, 9 ORDER DENYING PLAINTIFF’S MOTION TO SUPPLEMENT THE RECORD v. 10 11 FACEBOOK, INC., Re: Dkt. No. 39 United States District Court Northern District of California Defendant. 12 13 In an order filed on March 7, 2016, this court granted Defendant Facebook, Inc.’s 14 (“Facebook”) motion to dismiss the complaint filed by Plaintiff Franco Caraccioli (“Plaintiff”) and 15 denied Plaintiff’s motion for leave to file another amended complaint. Dkt. No. 29. All of 16 Plaintiff’s claims were dismissed without leave to amend, and judgment was entered in favor of 17 Facebook. Plaintiff has since appealed from the judgment. Dkt. No. 31. 18 In conjunction with the appeal, Plaintiff now moves pursuant to Federal Rule of Appellate 19 Procedure 10(e) to supplement the record with the “original agreement” between Plaintiff and 20 Facebook, which according to Plaintiff’s pleading is a document entitled “Privacy Policy” and 21 dated June 28, 2005. Dkt. No. 39. Facebook opposes Plaintiff’s motion. 22 23 24 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: 1. A record on appeal generally consists of three items: (1) “the original papers and 25 exhibits filed in the district court;” (2) “the transcript of proceedings, if any;” and (3) “a certified 26 copy of the docket entries prepared by the district clerk.” Fed. R. App. P. 10(a). “Papers not filed 27 with the district court or admitted into evidence by that court are not part of the clerk’s record and 28 1 Case No.: 5:15-cv-04145-EJD ORDER DENYING PLAINTIFF’S MOTION TO SUPPLEMENT THE RECORD 1 cannot be part of the record on appeal.” Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 2 (9th Cir. 1988). 3 2. Federal Rule of Appellate Procedure 10(e)(2) governs the correction of an appellate 4 record, and allows the court to “correct” or “supplement” the record when “anything material to 5 either party is omitted from or misstated in the record by error or accident.” Importantly, 6 however, the Ninth Circuit has held “that Rule 10(e) is not an appropriate vehicle for expanding 7 the record on appeal with material not considered by the district court in the first instance.” 8 United States v. Davis, No. 15-50244, 2016 U.S. App. LEXIS 12881, at *3 (9th Cir. 2016) (citing 9 United States v. Bischel, 61 F.3d 1429, 1436 n.7 (9th Cir. 1995)). 10 3. Nothing in Plaintiff’s motion suggests that the 2005 Privacy Policy was omitted United States District Court Northern District of California 11 from his pleadings by “error or accident.” In fact, the argument in support of the motion provokes 12 an opposite conclusion. Plaintiff admits he was aware that he may have agreed to terms other than 13 those disclosed in the Privacy Policy he attached to the complaint, and “persistently” tried to 14 obtain a copy of the 2005 Privacy Policy. But despite this awareness and his persistent efforts, 15 Plaintiff nonetheless chose to rely on Facebook’s Privacy Policy dated January 30, 2015, in 16 fashioning his pleadings. That choice was not an error or accident, but rather a conscious decision 17 by Plaintiff to proceed with the information more easily accessible to him at the time. 18 4. Furthermore, Plaintiff’s contention that this court considered “the issue that 19 [Plaintiff] could not obtain the Original Agreement as it was agreed in the year 2005” is 20 inaccurate. In ruling on Facebook’s motion to dismiss, the court merely engaged the examination 21 required by Federal Rule of Civil Procedure 12(b)(6) and limited its review to the complaint and 22 its attachments. The court relied extensively on the 2015 Privacy Policy because it was attached 23 to the complaint. Because the 2005 Privacy Policy was not submitted by Plaintiff, the court did 24 not - and indeed could not - consider it and explicitly stated as much in the order. Caraccioli v. 25 Facebook, Inc., 167 F. Supp. 3d 1056, 1062 n. 3 (N.D. Cal. 2016). Similarly, any representation 26 by Plaintiff the he was unable to obtain a copy of the 2005 Privacy Policy did not factor into the 27 decision on the motion to dismiss since such a representation, if made, is extraneous to issues 28 2 Case No.: 5:15-cv-04145-EJD ORDER DENYING PLAINTIFF’S MOTION TO SUPPLEMENT THE RECORD 1 2 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 3 request to insert a new, post-judgment document that was never filed or considered by the court. 4 As such, the 2005 Privacy Policy is outside the definition provided in Rule 10(a), and cannot be 5 belatedly added to the record through Rule 10(e). 6 For these reasons, Plaintiff’s motion to supplement the record (Dkt. No. 39) is DENIED. 7 8 9 10 United States District Court Northern District of California 11 IT IS SO ORDERED. Dated: February 28, 2017 ______________________________________ EDWARD J. DAVILA United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Case No.: 5:15-cv-04145-EJD ORDER DENYING PLAINTIFF’S MOTION TO SUPPLEMENT THE RECORD

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