Malibu Media, LLC v. DOE
Filing
100
ORDER GRANTING IN PART AND DENYING IN PART 94 MOTION to Clarify 10-26-2015 Discovery Conference; GRANTING IN PART AND DENYING IN PART 95 MOTION to Clarify April 16, 2015 Status Conference; DENYING 96 MOTION to Amend/Correct the Record Pursuant to FRAP 10(e); TERMINATING 97 MOTION to Amend/Correct Designation of Record on Appeal as it is not a motion. Signed by Magistrate Judge Terence P. Kemp on 11/4/2016. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Malibu Media, LLC,
:
Plaintiff,
:
v.
:
David Ricupero,
Case No. 2:14-cv-821
:
Magistrate Judge Kemp
Defendant.
:
ORDER
This matter is before the Court to consider three motions
filed by defendant David Ricupero.
These motions include two
separate motions to supplement the record pursuant to
Fed.R.App.P. 10(c) - one relating to the discovery conference
held on October 26, 2015, and one relating to the status
conference held on April 16, 2015 - and a motion to modify the
record on appeal pursuant to Fed.R.App.P. 10(e).
filed a designation of the record on appeal.
He also has
Plaintiff Malibu
Media, LLC has filed a combined response to Mr. Ricupero’s
motions.
Mr. Ricupero has filed a combined reply and the motions
are now ripe for decision.
For the following reasons, the
motions will be granted in part and denied in part.
I.
Background
The factual background of this case has been detailed in
previous orders and the Court will not repeat it here.
By order
dated May 13, 2016, the Court granted, without prejudice and
without condition, Malibu Media’s motion to dismiss this case
pursuant to Rule 41(a)(2).
Mr. Ricupero filed a notice of appeal
on June 12, 2016.
In dismissing the case without prejudice, the Court
considered the typical factors relevant to a request for
dismissal under Rule 41(a)(2), including Mr. Ricupero’s effort
and expense, Malibu Media’s excessive delay or lack of diligence,
Malibu Media’s explanation of the need for dismissal, and whether
a summary judgment motion had been filed.
Unable to conclude
that Mr. Ricupero would face plain legal prejudice from a
dismissal without prejudice, the Court granted Malibu Media’s
motion.
Noting that the purpose of awarding attorney’s fees is
to protect a defendant and not to punish a plaintiff, the Court
declined to award attorney’s fees and costs to Mr. Ricupero.
The
Court reached these conclusions despite Mr. Ricupero’s briefing,
both in response to the motion for voluntary dismissal and
subsequently, detailing at significant length Malibu Media’s
alleged improper or vexatious conduct in pursuing this action.
II.
The Motions
Through his first two motions (Docs. 94 and 95), Mr.
Ricupero seeks, pursuant to Fed.R.App.P. 10(c), to reconstruct
the record of two informal conferences held before the Court by
telephone on October 26, 2015 and April 16, 2015.
His motions
contain statements of the proceedings for each conference based
on counsel’s “contemporaneously-recorded notes” and on “counsel’s
recollection of the conference.”
He contends that the contents
of his statements are necessary for the proper adjudication of
his appeal.
Mr. Ricupero’s counsel signed the motions under
penalty of perjury.
In his third motion (Doc. 96), Mr. Ricupero requests that
the Court modify the record on appeal pursuant to Fed.R.App.P.
10(e).
Specifically, he requests that the Court supplement the
record with documents he sent to the Court in connection with the
discovery conference held on October 26, 2015.
He has attached
these documents to his first motion to supplement the record.
See Doc. 94-1.
He explains that these documents summarize the
discovery disputes between counsel.
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He also requests that the
Court supplement the record with its own notes from that
conference and with an oral order issued at the conference held
on April 16, 2015.
The gist of Mr. Ricupero’s filings is that he is attempting
to demonstrate two things:
(1) that, following the status
conference on April 16, 2015, the parties understood the Court
would not allow the depositions of Mr. Ricupero’s neighbors to be
used in this proceeding; and (2) that, during the discovery
conference on October 26, 2015, the Court ordered Mr. Ricupero to
file a summary judgment motion if Malibu Media failed to produce
documents from third-party Excipio on grounds that these
documents were not within Malibu’s possession, custody or
control.
He explains that his appeal challenges the Court’s
later findings made in connection with the motion for voluntary
dismissal which he believes are inconsistent with discussions had
and orders issued at these conferences.
In its response, with respect to Mr. Ricupero’s statement of
the proceedings of October 26, 2015 (Doc. 94), Malibu Media
disputes the information contained in Paragraphs 2, 5, and 9
through 12.
Malibu Media asserts that Mr. Ricupero’s statements
and recollection contradict the record to the extent that he
contends that the Court ordered him to file a motion for summary
judgment.
As Malibu Media explains, reminding a party that a
motion for summary judgment may be filed at any time is different
from ordering the filing of such a motion.
Further, Malibu Media
points out that, if such an order were made, it would have been
reflected by a briefing schedule or other written documentation
in the record.
With respect to Mr. Ricupero’s statement of the proceedings
of April 16, 2015 (Doc. 95), Malibu Media objects to the
statement in Paragraph 11.
It disputes Mr. Ricupero’s
characterization that the parties understood that the Court would
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not allow the use of the neighbors’ depositions.
Aside from
objecting to Mr. Ricupero’s statements of the proceedings, Malibu
Media has not provided its own statement of the proceedings.
With respect to the motion to modify the record under
Fed.R.Civ.P. 10(e) (Doc. 96), Malibu Media argues that the Rule
is designed only to correct omissions or misstatements.
It
explains that the Rule’s purpose is not permit a party to
introduce new evidence into the record.
Malibu Media also
contends that this document does not reflect the parties’
positions because Malibu did not join in the preparation of the
document and did not have access to it until Mr. Ricupero filed
his current motions.
Mr. Ricupero has filed a brief reply contending that Malibu
Media’s response to his motions to supplement was untimely and,
therefore, its objections cannot be considered.
Mr. Ricupero
also notes that Malibu Media’s counsel did not submit an
affidavit of his recollection of the proceedings.
III.
Fed.R.App.P. 10 (c) and (e)
Fed.R.App.P. 10(c) provides:
(c) Statement of the Evidence When the Proceedings
Were Not Recorded or When a Transcript is Unavailable.
If the transcript of a hearing or trial is unavailable,
the appellant may prepare a statement of the evidence
or proceedings from the best available means, including
the appellant’s recollection. The statement must be
served on the appellee, who may serve objections or
proposed amendments within 14 days after being served.
The statement and any objections or proposed amendments
must then be submitted to the district court for
settlement and approval. As settled and approved, the
statement must be included by the district clerk in the
record on appeal.
In reviewing the submissions of the parties, the Court is
permitted to rely on its own recollection of events.
United
States v. Caramadre, 807 F.3d 359, 376 (1st Cir. 2015).
the Court is not required to give more weight to a
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Further,
contemporaneously recorded lawyer’s notes over its own
recollection.
Id. at 377.
Rather, “the phrase ‘settlement and
approval’ is generous in its scope,” and does not require the
Court to ignore case-related matters within its own knowledge.
Id. at 376-377.
A challenge to a trial court’s account can only
succeed if the account is “‘patently unreasonable or deliberately
false’” resulting in prejudice to presentation of the claims on
appeal.
Id. at 376. (citations omitted).
Fed.R.App.P. 10(e) provides:
(e) Correction or Modification of the Record.
(1) If any difference arises about whether the record
truly discloses what occurred in the district court,
the difference must be submitted to and settled by that
court and the record conformed accordingly.
(2) If anything material to either party is omitted
from or misstated in the record by error or accident,
the omission or misstatement may be corrected and a
supplemental record may be certified and forwarded:
(A) on stipulation of the parties;
(B) by the district court before or after the
record has been forwarded; or
(C) by the court of appeals.
(3) All other questions as to the form and content of
the record must be presented to the court of appeals.
This Rule been explained as follows:
“Normally the record on appeal consists of ‘the
original papers and exhibits filed in the district
court,’‘the transcript of proceedings, if any’ and ‘a
certified copy of the docket entries prepared by the
district clerk.’”Fed.R.App.P. 10(a). “However, ‘if
anything material to either party is omitted from or
misstated in the record by error or accident,’ the rule
allows ‘the omission or misstatement [to] be corrected
and a supplemental record [to] be certified and
forwarded.’” Inland Bulk Transfer Co. v. Cummins
Engine Co., 332 F.3d 1007, 1012 (6th Cir. 2003)(quoting
Fed.R.App.P. 10(e)(2)). Rule 10(e) allows correction
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of the record either by agreement of the parties, by
order of the district court, or by order of the court
of appeals.” Id. (citing Fed.R.App.P. 10(e)(2)). It
“is clear from the rule’s wording, ‘[t]he purpose of
the rule is to allow [] court to correct omissions from
or misstatements in the record for appeal, not to
introduce new evidence in the court of appeals.’” Id.
(quoting S & E Shipping Corp. v. Chesapeake & O. Ry.
Co., 678 F.2d 636, 641 (6th Cir. 1982)). “‘In general,
the appellate court should have before it the record
and facts considered by the District Court.’” Id.
(quoting United States v. Barrow, 118 F.3d 482, 487
(6th Cir. 1997)).
Zwerin v. 533 Short North, LLC, 15 F.Supp.3d 769, 772 (S.D. Ohio
2014).
IV. Analysis
A.
The Motions to Supplement the Record Under Rule 10(c)
Initially, the Court notes that Rule 10(c) states that an
appellant’s statement of the proceedings is to be served on the
appellee, after which the appellee may object or propose
amendments.
The statement and any objections or proposed
amendments are then to be submitted to the Court for settlement
and approval.
here.
This procedure was not followed by the parties
Rather, Mr. Ricupero filed his statements in the form of
motions to supplement the record and a briefing cycle ensued.
Despite both parties’ failure to comply with the procedures of
Rule 10(c), the Court now has before it Mr. Ricupero’s statement
of the proceedings relating to informal conferences held on
October 26, and April 16, 2015, and Malibu Media’s response, so
any technical failure to comply with Rule 10(c) may be
overlooked.
Next, the Court notes that Mr. Ricupero’s Rule 10(c)
statements both relate to informal pretrial conferences.
Typically, absent a request from counsel, the Court does not hold
such conferences on the record.
The provisions of Rule 10(c),
however, have been held to apply to such conferences.
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See, e.g.,
In re Cambridge Literary Properties, Ltd., 271 F.3d 348, 349 (1st
Cir. 2001), citing Athridge v. Rivas, 141 F.3d 357 (D.C. Cir.
1998); see also U.S. v. Caramadre, 807 F.3d at 375 (applying Rule
10(c) in context of unrecorded and untranscribed chambers
conference).
The Court will proceed to settle and approve a statement of
the proceedings in light of Mr. Ricupero’s submissions, Malibu
Media’s objections, and its own recollection.
In doing so, the
Court will keep in mind that the underlying purpose of a
transcript is to provide a complete, true and accurate record of
what occurred at a proceeding.
A transcript would not be framed
by the submission of background information nor would it explain
actions taken following the proceeding, and the Court’s statement
intentionally excludes such matters.
1.
The Informal Discovery Conference held on October 26, 2015
Turning first to the statement of proceedings relating to
the informal discovery conference held on October 26, 2015, the
Court concludes that some of what Mr. Ricupero has submitted can
be characterized as background information that does not indicate
what occurred at the conference.
Consequently, the Court will
not include Paragraphs 1 through 5 of Mr. Ricupero’s submission
in its statement of proceedings.
Paragraphs 6 and 7 appear to address statements made by
counsel during the conference.
Malibu Media has not objected to
Mr. Ricupero’s account of the parties’ positions set forth in
these paragraphs.
The Court’s recollection confirms that these
were the issues discussed at the conference as explained by the
parties.
Paragraph 8 contains quotations of statements purportedly
made by the Court at the conference.
Beyond this, it
characterizes the Court as having “expressed disbelief at
Malibu’s position.”
Malibu Media has not objected to any of the
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information in Paragraph 8.
While Mr. Ricupero may have
accurately recounted the Court’s statements, Mr. Ricupero’s
assessment of the Court’s reaction and his attempt to include
this interpretation in his statement of the proceedings is not
the type of information which should be included in a Rule 10(c)
statement.
Consequently, in approving and settling the statement
of proceedings, the Court will modify the language of Paragraph 8
to exclude this information.
Malibu Media’s primary objection to Mr. Ricupero’s statement
of the proceedings is directed to Paragraphs 9 through 12.
One
objection appears to be that the Court did not issue an order
compelling Malibu Media to provide the requested discovery.
This
objection appears to relate to the language of Paragraph 10.
Malibu Media’s other objection is that the Court did not order
Mr. Ricupero to file a motion for summary judgment.
directed to the language of Paragraphs 11 and 12.
This appears
Malibu Media
does not specifically direct any objection to Paragraph 9 but
notes that this paragraph provides support for its view that the
Court did not order Mr. Ricupero to move for summary judgment.
The Court’s recollection is consistent with Malibu Media’s
objections as they relate to Paragraphs 10, 11 and 12.
It is not
the Court’s typical practice to issue oral orders during a
discovery conference without committing those orders to writing
after the completion of the conference.
The Court has no
recollection of having departed from its typical procedure here.
Additionally, it is not the Court’s practice to compel the
production of documents absent a pending motion to compel.
Again, the Court has no recollection of having departed from its
typical procedure here.
Informal discovery conferences are a
tool which permit the Court to assist parties in resolving
discovery disputes without the need for formal motions practice;
the Court typically acts as a mediator and not an adjudicator.
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Adjudications should appear on the record, and there are no such
adjudications which arose from this conference.
Further, as Malibu Media points out, there is a difference
between a Court’s reminding a party of its ability to move for
summary judgment prior to the discovery cutoff as reflected in
Paragraph 9 and ordering that party to file such a motion.
such order was issued here.
No
Finally, with respect to Paragraph
12, this information does not pertain to the proceeding itself
and would not be reflected in a transcript.
Consequently, in
settling and approving the statement of the proceedings, the
Court will modify the language of paragraph 10 to reflect
accurately the Court’s action and will decline to approve
Paragraphs 11 and 12 in their entirety.
2.
The Status Conference held on April 16, 2015
Almost none of the information contained in the statement of
proceedings relating to the status conference held on April 16,
2015, appears to be information explaining what occurred at the
conference.
Rather, the information contained in Paragraphs 1
through 8 is nothing more than background information that would
not typically be reflected in a transcript of a proceeding.
In
settling and approving the statement of proceedings, the Court
will not approve these paragraphs.
Paragraph 11, on the other hand, is Mr. Ricupero’s view of
counsels’ understanding of a statement made by the Court during
the status conference.
Malibu Media has objected to the
inclusion of this information.
To say the least, this
information in no way reflects any discussion undertaken at the
status conference.
In settling and approving the statement of
the proceedings, the Court will not approve this paragraph.
The only information that arguably would be reflected in a
transcript is contained in Paragraphs 9 and 10.
not objected to these paragraphs.
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Malibu Media has
Turning to Paragraph 9, the
Court’s recollection, consistent with the record in this case, is
that it did not hold Malibu Media in contempt.
It is further
consistent with the record that Mr. Ricupero agreed to withdraw
his motion for contempt (see Docs. 49, 52, and 67), which,
contrary to Mr. Ricupero’s characterization in Paragraph 9, is
not a pleading.
Similarly, it is consistent with the record that
Mr. Ricupero agreed to withdraw his motion (again, not a
pleading) for a protective order as reflected in Paragraph 10
(see Docs. 41, 52, and 67).
The Court does not find inaccurate
the quotation attributed to it in Paragraph 10.
Consequently, in
settling and approving the statement of proceedings, the Court
will modify the language of Paragraphs 9 and 10 to more
accurately reflect the discussion at the status conference.
B.
Mr. Ricupero’s Motion to Modify the Record on Appeal Pursuant
to Rule 10(e)
Turning to Mr. Ricupero’s motion to modify the record on
appeal, Rule 10(e) does not support the supplementation of the
record requested by Mr. Ricupero.
In part, his request to modify
the record seeks the inclusion of a list of “Topics at Issue for
Informal Discovery Conference.”
This request is not designed to correct an “omission” or a
“misstatement” of what actually happened in the proceedings
before this Court.
There is no dispute that such a conference
was held on that day.
Further, there is no dispute that Mr.
Ricupero had issues he sought to raise at that conference.
In
fact, Mr. Ricupero’s stated purpose in seeking to include this
information is to support his position that the Court issued oral
orders at the discovery hearing.
orders were issued.
As discussed above, no such
Moreover, Mr. Ricupero’s proposed discussion
topics would have had no bearing on that issue.
Nor is his list
of proposed topics information that would have been admitted into
the record even had the discovery conference been held on the
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record.
Most significant, however, is that a list of topics that
may or may not have been discussed at an informal discovery
conference was not considered by the Court in concluding that
Malibu Media had sufficiently established its entitlement to a
voluntary dismissal without prejudice and without an award of
costs and fees.
In his motion, Mr. Ricupero also requests that the Court
supplement the record with its own notes from the conference on
October 26, 2016.
No such notes exist.
Finally, Mr. Ricupero
requests that “the record be supplemented with regards to an oral
order issued at the April 16, 2015 status conference” relating to
the use of depositions.
issue such an order.
As explained above, the Court did not
Consequently, the Court of Appeals has
“‘before it the record and facts considered by’” this Court.
See
Zwerin, 15 F.Supp.3d at 774, citing Inland Bulk Transfer Co., 332
F.3d at 1012.
For these reasons, the motion to modify the record
will be denied.
V.
Order
The motion to supplement the record (Doc. 94) is granted in
part and denied in part to the extent that, pursuant to
Fed.R.App.P. 10(c), the Court settles and approves the following
statement of the proceedings relating to the informal discovery
conference held on October 26, 2015:
1. Magistrate Judge Kemp asked counsel for Mr.
Ricupero to explain the issues. Counsel stated that he
had requested the conference because Malibu had refused
to produce relevant documents on the basis that they
were not in its possession, custody, or control.
Rather, Malibu insisted, any relevant evidence of Mr.
Ricupero’s alleged infringements was in the custody of
the foreign investigator it had hired to track the
infringements.
2. Malibu Media’s counsel, Mr. Faroniya, then
explained that Malibu’s investigator, Excipio, was an
“independent third-party entity” over whom Malibu Media
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“had no control.” Mr. Faroniya further stated that Mr.
Ricupero would need to subpoena the documents from
Excipio pursuant to the procedures set forth in the
Hague Convention.
3. Magistrate Judge Kemp stated that he had
“specifically ruled” in unrelated matters on this
“exact issue.’ Magistrate Judge Kemp explained that
“regardless of actual possession, Excipio had acted at
the behest of Malibu Media” when it gathered the
evidence upon which this action is founded. “They had
no other incentive for observing and collecting the
data.”
4. Magistrate Judge Kemp then asked Mr.
Ricupero’s counsel why he had not moved for summary
judgment on the issue. Counsel replied that he had not
because discovery was still open. Magistrate Judge
Kemp explained that “you can move for summary judgment
anytime.”
5. Magistrate Judge Kemp explained that, to the
extent Excipio had documents gathered at Malibu Media’s
direction, Malibu would be deemed in possession of the
relevant documents.
The motion to supplement the record (Doc. 95) is granted in
part and denied in part to the extent that, pursuant to
Fed.R.App.P. 10(c), the Court settles and approves the following
statement of the proceeding relating to the status conference
held on April 16, 2015:
1. The Court declined to sanction Malibu Media
for contempt. Mr. Ricupero agreed to withdraw his
motion requesting that relief.
2. Mr. Ricupero agreed to withdraw his motion for
a protective order. The Court stated, “whether I allow
the depositions to be used is another story.”
The motion to modify the record on appeal (Doc. 96) is
denied.
The document captioned as “Designation of Record on Appeal”
(Doc. 97) is not a motion and shall be removed from the Court’s
pending motions list.
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The Clerk is directed to include this order in the record on
appeal.
/s/ Terence P. Kemp
United States Magistrate Judge
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