OneWest Bank, FSB v. Farrar et al

Filing 243

ORDER granting 238 Plaintiff's Motion For Order Requiring Defendant Christopher Salem to Order and Pay For Transcripts. Signed by JUDGE ALAN C KAY on 5/14/14. (gab, )CERTIFICATE OF SERVICEParticipants register ed to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ONEWEST BANK, FSB,

) Civ. No. 12-00108 ACK-KSC
)
Plaintiff,
)
)
v.
)
)
J. RANDALL FARRAR; CHRISTOPHER
)
SALEM; WAYNE WAGNER; MARY
)
WAGNER; LOT 48A LLC; POOL PRO,
)
INC.; CREDIT ASSOCIATES OF MAUI, )
LTD; JOHN and MARY DOES 1-20;
)
DOE PARTNERSHIPS, CORPORATIONS, )
OR OTHER ENTITIES 1-20,
)
)
Defendants.
)
)
)
ORDER GRANTING PLAINTIFF’S MOTION FOR ORDER REQUIRING DEFENDANT
CHRISTOPHER SALEM TO ORDER AND PAY FOR TRANSCRIPTS
For the following reasons, the Court hereby GRANTS
Plaintiff OneWest Bank, FSB’s Motion for Order Requiring
Defendant Christopher Salem to Order and Pay for Transcripts.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of two loans that Defendants J.
Randall Farrar and Christopher Salem obtained from La Jolla Bank,
FSB, which were secured by two mortgages for each loan on two
pieces of residential property. Because the Court and the parties
are familiar with the extensive history of this case, the Court
includes here only those facts necessary for the disposition of
the instant motion.
On August 26, 2013, the parties placed a settlement on

the record, and the magistrate judge set a status conference
regarding the completion of the settlement agreement for
September 11, 2013. (Doc. Nos. 140, 142, 145.) At the status
conference, the parties informed the magistrate judge that they
were circulating and reviewing the draft settlement agreement.
(Doc. No. 144.) The magistrate judge held another status
conference on September 19, 2013, during which the parties stated
that the settlement documents had been circulated, but that
Defendant Salem needed additional time to review and sign them.
The magistrate judge set a deadline of September 23, 2013 for
Salem to either execute the final settlement agreement or submit
a final redline to the parties for review. (Doc. No. 148.)
Salem did not comply with the magistrate judge’s
instructions, instead circulating to the parties an entirely new
settlement agreement. Plaintiff OneWest Bank, FSB therefore filed
a Motion to Enforce Settlement Agreement on October 1, 2013.
(Doc. No. 156.) A hearing was held on the Motion to Enforce on
October 15, 2013, and on October 31, 2013 the magistrate judge
issued its Findings and Recommendations Granting Plaintiff’s
Motion to Enforce Settlement Agreement. (Doc. No. 171 (“10/31/13
F&R”).) There being no objections to the 10/31/13 F&R, this Court
issued its order adopting it on November 19, 2013. (Doc. No. 173
(“Order to Enforce Settlement”).) On November 26, 2013, Defendant
Salem filed his notice of appeal, informing this Court that he is

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appealing the Order to Enforce Settlement to the Ninth Circuit.
(Doc. No. 174.)
Pursuant to a February 5, 2014 Order issued by the
Ninth Circuit, Defendant Salem was required to order all
necessary transcripts for his pending appeal, or to provide
OneWest with a partial or non-designation of transcripts, as well
as a statement of the issues that Salem intends to present on
appeal. If necessary, OneWest was then required to file and serve
on Salem by March 4, 2014 a designation of additional transcripts
to be ordered, after which Salem was required to either order all
transcripts identified by OneWest, or certify to this district
court that the transcripts are unnecessary to the resolution of
the appeal. Pursuant to the Ninth Circuit’s order, the
transcripts were due on April 17, 2014. (See Doc. No. 226, Ex. A
(February 5, 2014 Order)).
On February 24, 2014, Salem filed his non-designation
of transcripts and statement of issues he intends to present on
appeal. (Doc. No. 226, Ex. B.) In this filing, Salem stated
without elaboration or explanation that no transcripts are
necessary to support the issues to be presented on appeal. (Id.
at 1.) On March 4, 2014, OneWest filed its Notice of Designation
of Additional Transcripts to be Ordered by Defendant Christopher
Salem, requesting that Salem order the following transcripts: (1)
the transcript of the August 26, 2013 settlement on the record,

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(2) the transcript of the September 19, 2013 status conference,
(3) the transcript of the October 1, 2013 pretrial conference,
and (4) the transcript of the October 15, 2013 hearing on
OneWest’s Motion to Enforce.1/ (Doc. No. 226.) OneWest asserted
that the transcripts are necessary because the appeal arises from
Salem’s breach of the settlement agreement the parties put on the
record before the magistrate judge. The transcripts OneWest
requested included that settlement on the record, as well as
subsequent hearings addressing Salem’s breach. (Id. at 3.)
Following OneWest’s March 4, 2014 Notice, Defendant
Salem took no additional action. Thus, on April 29, 2014, OneWest
filed the instant Motion for Order Requiring Defendant
Christopher Salem to Order and Pay for Transcripts. (Doc. No.
238.) Salem filed his Objection to the motion on May 7, 2014.
(Doc. No. 241.) OneWest filed its Reply on May 12, 2014. (Doc.
No. 242.) Pursuant to Local Rule 7.2(e), the Court elects to
decide the instant motion without a hearing.
DISCUSSION
Rule 10 of the Federal Rules of Appellant Procedure
provides a procedure by which the record on appeal is created.

1/

In its Reply in support of the instant motion, OneWest
withdrew its request for Salem to order the transcripts from the
September 19, 2013 and October 1, 2013 conferences before
Magistrate Judge Chang. (Reply at 2 n.1.) As such, OneWest is
requesting that Salem order two transcripts: the transcript of
the August 26, 2013 settlement on the record, and the transcript
from the October 15, 2013 hearing on OneWest’s motion to enforce.
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Pursuant to Rule 10(b), within fourteen days of filing a notice
of appeal, it is the appellant’s duty to either order transcripts
or file a certificate stating that no transcript will be ordered.
If the entire transcript is not ordered, the appellant must file
a statement of the issues he intends to raise on appeal and serve
that statement and the certificate on the appellee. Fed. R. App.
P. 10(b)(3)(A). Then, if the appellee considers it necessary to
have a transcript, he must file and serve on the appellant a
designation of additional parts to be ordered. Fed. R. App. P.
10(b)(3)(B). If the appellant does not then, within fourteen
days, order the designated transcript parts, the appellee may
either order the transcript himself, or file a motion in the
district court for an order requiring the appellant to do so.
Fed. R. App. P. 10(b)(3)(C).
Here, after Salem certified that no transcripts were
necessary, OneWest provided notice to Salem of the transcripts it
believes are necessary for resolution of the appeal on March 4,
2014. (See Doc. No. 226.) Salem did not, within fourteen days,
order the transcripts or otherwise act on OneWest’s notice. The
Court must therefore determine whether to grant OneWest’s motion
and compel Salem to order the transcripts.
Despite a careful review of Rule 10 and the relevant
case law, the Court has found little guidance in the law as to
the standard a district court should apply when ruling on a

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motion to compel an appellant to order a transcript. The Rule
does state that “[i]f the appellant intends to urge on appeal
that a finding or conclusion is unsupported by the evidence or is
contrary to the evidence, the appellant must include in the
record a transcript of all evidence relevant to that finding or
conclusion.” Fed. R. App. P. 10(b)(2). It also states that the
motion to compel should be filed “if the appellee considers it
necessary to have a transcript,” but provides no indication of
the standard a court should apply when considering such a motion.
Likewise, the Court can find no Ninth Circuit precedent that
provides such a standard.
The Ninth Circuit’s Circuit Rules do, however, provide
some guidance regarding the parties’ responsibility for
establishing the record on appeal. For example, the Circuit Rules
indicate that the excerpts of record should include any
documents, including transcripts, that are “necessary to the
resolution of an issue on appeal.” Cir. R. 30-1.4(a). The Circuit
Rules state expressly that the purpose of the excerpts of record
“is to provide each member of the panel with those portions of
the record necessary to reach a decision.” Cir. R. 30-1.1(a).
Indeed, the parties are required to ensure that “those parts of
the record necessary to permit an informed analysis of their
positions are included in the excerpts.” Id. Based on this
language, it appears that those portions of the transcripts that

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are necessary to the resolution of the issues on appeal, and
necessary to permit an informed analysis of the parties’
positions, should be made part of the excerpts of record and,
thus, should be ordered from the district court in the first
instance.
Here, the Court finds that under any standard the
transcripts OneWest has identified are required for resolution of
Salem’s appeal. Salem is appealing this Court’s Order to Enforce
Settlement. (Doc. No. 173.) In that Order, the Court concluded
that the final settlement agreement was consistent with the
material terms set forth in the settlement on the record made
before the magistrate judge on August 26, 2013. (See Doc. Nos.
140, 142.) Salem, in his Objection to the instant motion, appears
to argue that the basis of his appeal is that there was no valid
settlement on the record, and that he should not be compelled to
sign the settlement agreement or abide by its terms. (See Obj. at
5.) Further, in his statement of the issues, Salem stated that he
is claiming in his appeal that the Order to Enforce Settlement
“was not supported by the known facts.” (Doc. No. 226, Ex. B at
2.) Thus, it appears that the existence, validity, and terms of
the settlement between the parties will be at issue on appeal.
The transcript of the August 26, 2013 settlement conference when
the settlement was placed on record will therefore be necessary
for the Ninth Circuit to assess Salem’s claims. Likewise, the

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transcript of the hearing on OneWest’s motion to enforce, which
resulted in the magistrate judge’s decision (as adopted by this
Court) that Salem is appealing will also be necessary and
relevant to the Ninth Circuit’s analysis of Salem’s appeal. As
such, the Court concludes that it is appropriate to order
Defendant Salem to order and pay for those two transcripts.
CONCLUSION
For the foregoing reasons, the Court GRANTS OneWest’s
Motion for Order Requiring Defendant Christopher Salem to Order
and Pay for Transcripts, and ORDERS that Defendant Salem order
and pay for the following transcripts:
1)

Transcript of the August 26, 2013 settlement on the

record with Magistrate Judge Chang; and
2)

Transcript of the October 15, 2013 hearing before

Magistrate Judge Chang on OneWest’s Motion to Enforce.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, May 14, 2014

________________________________
Alan C. Kay
Senior United States District Judge

OneWest Bank, FSB v. J. Randall Farrar et al., Civ. No. 12-00108 ACK KSC,
Order Granting Plaintiff’s Motion for Order Requiring Defendant to Order and
Pay for Transcripts

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