Street et al v. Cottrell, Inc. et al

Filing 27

MEMORANDUM AND ORDER, Denying 24 MOTION for Leave to File Additional Documents for Record on Appeal filed by Cottrell, Inc. Signed by Judge J. Phil Gilbert on 3/20/2012. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOHN STREET and JACKIE STREET,
Plaintiffs,
Case No. 3:11-cv-1119-JPG-DGW
v.
COTTRELL, INC., AUTO HANDLING
CORPORATION, and ROGER OWENS,
Defendants.

MEMORANDUM AND ORDER
This matter comes before the Court on defendant Cottrell, Inc.’s Motion to Designate
Additional Documents for Record on Appeal (Doc. 24). Cottrell proposes adding documents
that were not before the Court and were therefore not considered when the Court issued its
decision remanding this case to state court for lack of jurisdiction.
Generally, modification of a record on appeal is not permitted. “The appellate stage of
the litigation process is not the place to introduce new evidentiary materials.” Berwick Grain
Co. v. Illinois Dep’t of Ag., 116 F.3d 231, 234 (7th Cir. 1997); accord McClendon v. Indiana
Sugars, Inc., 108 F.3d 789, 795 (7th Cir. 1997) (“Evidence that was not proffered to the district
court in accordance with its local rules is not part of the appellate record; it has no place in an
appellate brief.”). The record on appeal in all cases consists solely of “(1) the original papers
and exhibits filed in the district court; (2) the transcript of proceedings, if any; and (3) a certified
copy of the docket entries prepared by the district clerk.” Fed. R. App. P. 10(a). The Seventh
Circuit Court of Appeals has explained why a party may not supplement the record on appeal
with evidence that the district court did not consider: “The parties may rely on appeal only on

materials furnished to the district judge. Otherwise they deprive the opposing party of an
opportunity to comment on them and the district judge of an opportunity to evaluate their
significance.” Henn v. National Geographic Society, 819 F.2d 824, 831 (7th Cir. 1987).
Despite this general rule, modification of the record on appeal is authorized in the limited
circumstances set forth in Federal Rule of Appellate Procedure 10(e). The rule allows the Court
to modify the record “[i]f anything material to either party is omitted from or misstated in the
record by error or accident.” Fed. R. App. P. 10(e)(2). However, where the record accurately
reflects district court proceedings, Rule 10(e) is not applicable. The Court finds that nothing
material is omitted from or misstated in the record of this case. The record accurately reflects
the district court proceedings and contains all the material relied on by the Court in making its
ruling. Accordingly, supplementation of the record under Rule 10(e) is inappropriate. Cottrell
may, of course, ask the Court of Appeals to reconsider this conclusion. See Fed. R. App. P.
10(e)(2)(C).
For this reason, the Court DENIES the Motion to Designate Additional Documents for
Record on Appeal (Doc. 24).
IT IS SO ORDERED.
DATED: March 20, 2012
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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