Harris et al v. Cooley et al

Filing 44

MEMORANDUM OPINION AND ORDER denying 43 Plaintiffs' Motion for Correction or Modification of the Record to Include a State Court Pleading. Signed by Magistrate Judge Stephanie K. Bowman on 2/6/2020. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
FRANKLIN DAVID HARRIS JR., et al.,
Case No. 1:17-cv-540
Plaintiffs,
Barrett, J.
Bowman, M.J.

v.
DANIEL COOLEY, et. al,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiffs, who are experienced pro se litigants, filed suit against their next-door
neighbors under the Fair Housing Act. When the neighbors failed to appear, Plaintiffs
obtained an entry of default. However, when Plaintiffs later sought to collect monetary
damages by moving for the entry of default judgment, their motion was denied.
In a Report and Recommendation filed on April 11, 2019, the undersigned
recommended denying Plaintiffs’ motion for default judgment on multiple grounds. The
undersigned explained that upon closer review, it was apparent the Plaintiffs’ complaint,
as amended, failed to state any claim as a matter of law and that this Court lacked
jurisdiction over any of the alleged claims.

On that basis, the undersigned

recommended dismissal of the case. In the alternative, the undersigned recommended
that the case be dismissed under the doctrine of abstention, due to the existence of
related proceedings in state court. (Doc. 33).
The presiding district judge agreed with the primary analysis of the Report and
Recommendation and adopted its conclusion that the complaint should be dismissed for

failure to state any claim and for lack of federal jurisdiction. (Doc. 36). Plaintiffs have
filed an appeal in the Sixth Circuit Court of Appeals, which remains pending.
On December 5, 2019, Plaintiffs filed a motion in this Court seeking “correction or
modification of the record” on appeal under Rule of Appellate Procedure 10(e)(2)(B).
(Doc. 43). The referenced Rule allows the trial court to supplement the record on
appeal only if a “material” item is “omitted from or misstated in the record by error or
accident.” Id. The rule has no application here, where there was no mistake or omission
by this Court. Plaintiffs’ motion seeks the addition of a copy of a related state court
complaint. However, the referenced state court pleading was not included in the record
considered by this Court.
Federal Rule of Appellate Procedure Rule 10(e) does not allow the addition of
records that were not before this Court and is not intended “to enable the losing party to
add new material to the record in order to collaterally attack the trial court’s judgment.”
United States v. Elizalde-Adame, 262 F.3d 637, 641 (7th Cir. 2001). Therefore, the
undersigned will deny this frivolous motion. This case was dismissed based upon the
failure of the complaint to state any federal claim as a matter of law and a lack of federal
jurisdiction. The state court complaint is irrelevant to that determination.
Accordingly, IT IS ORDERED that Plaintiffs’ motion to expand the record to
include a state court pleading (Doc. 43) is DENIED.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
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