Coach Services, Inc. et al v. Source II, Inc. et al

Filing 58

ORDER denying 55 Motion to Expand Record on Appeal. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COACH, INC. and COACH SERVICES, INC.,
Plaintiffs,
v.

Case No. 15-10740

SOURCE II, INC. and CERHUE ANDRE
WALKER, individually and d/b/a SOURCE II,
INC.,
Defendants.
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ORDER DENYING MOTION TO EXPAND RECORD ON APPEAL
Following the court’s order granting summary judgment as to liability on most of
Plaintiffs’ claims (Dkt. #37) and order awarding statutory damages (Dkt. #48), the court
entered judgment and a permanent injunction against Defendants (Dkt. #52).
Defendants appealed. (Dkt. #53.) Presently before the court is Defendants’ motion to
supplement the record on appeal. For the following reasons, Defendants’ motion is
denied.
The record on appeal includes “(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). A district court is
permitted to correct the record on appeal where “anything material to either party is
omitted from or misstated in the record by error or accident.” Fed. R. App. P. 10(e). The
purpose of the rule is “is to allow the court to correct omissions from or misstatements in

the record for appeal, not to introduce new evidence in the court of appeals.” United
States v. Smith, 344 F.3d 479, 486 (6th Cir. 2003) (citation and alteration omitted).
Defendants ask that the court expand the record to include: (1) Defendant
Walker’s Response to Request for Admissions (Dkt. #27-9); (2) Plaintiffs’ Responses
and Objections to Defendants’ First Set of Interrogatories to Plaintiffs; (3) Defendants’
Amended Response to Plaintiffs’ Request for Statutory Damages (Dkt. #43); and (4)
Plaintiffs’ Reply in Support of Their Request for Statutory Damages (Dkt. #45).
Defendants contend that these documents are necessary “to present a full and fair reply
to [Plaintiffs’] Response Brief” on appeal. (Dkt. #55 Pg. ID 819.)
At the outset, it appears that Defendants misunderstand what is included in the
record on appeal. Pursuant to Federal Rule of Appellate Procedure (“FRAP”) 10(a)(1),
the record includes all papers and exhibits filed in the district court. The Sixth Circuit
directly accesses the district court’s electronic record, which includes the papers and
exhibits filed in the district court. 6 Cir. R. 11(a)(1).1 While the Sixth Circuit requires that
the parties designate relevant documents as part of their principal briefs, see 6 Cir. R.
30(g)(1)2, failure to designate a document does not remove it from the record on appeal.
Three of the four documents identified by Defendants are already on the court’s docket
and are thus already part of the record on appeal. (See Dkt. ##27-9, 43, 45.)

1

The Sixth Circuit Rules are available at
http://www.ca6.uscourts.gov/sites/ca6/files/documents/rules_procedures/Full%20Rules
%20w%20FRAP_hyper.pdf.
2
In their reply brief on the present motion, Defendants attach the parties’
designation and counter-designation of relevant documents ostensibly provided to the
Sixth Circuit. (Dkt. ##57-2, 57-3.) The court assumes that this is the basis for
Defendants’ apparent belief that the court’s entire docket is not part of the appeal
record.

2

In any event, Defendants fail to explain how the four identified documents
(including the one document not already on the court’s docket) amount to an omission
or misstatement that requires correction by the court. Defendants argue that these
documents are necessary to “refute” statements made by Plaintiffs in appeal briefing.
(Dkt. #55 Pg. ID 821; Dkt. #57 Pg. ID 906.) But the purpose of FRAP 10(e) is to permit
the district court to correct misstatements and omissions in the district court record—not
to permit parties to rebut arguments or present new evidence on appeal. Defendants
have not demonstrated that the sole document not already on the court’s docket—
Plaintiffs’ Responses and Objections to Defendants’ First Set of Interrogatories to
Plaintiffs—is necessary to correct a misstatement or omission of the record before this
court. Accordingly,
IT IS ORDERED that Defendants’ motion to expand the record on appeal (Dkt.
#55) is DENIED.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

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Dated: December 7, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, December 7, 2017, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\KNP\Civil\15-10740.COACH.deny.expand.appeal.record.KNP.docx

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