Golden v. Mirabile Investment Corporation
ORDER denying 91 Motion to Correct or Modify the Record. Signed by Judge Samuel H. Mays, Jr on 08/31/2017. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
MIRABILE INVESTMENT CORP.
d/b/a BURGER KING,
Before the Court is Plaintiff Derico Golden’s Motion to
Correct or Modify the Record, filed on August 15, 2017.
Plaintiff seeks to correct omissions from the record
under Federal Rule of Appellate Procedure 10(e).
Plaintiff addresses the deposition he filed on
November 30, 2015, in response to Defendant Mirabile Investment
Corp.’s (“MIC”) Motion for Summary Judgment.
(Id. at 1328.)
Plaintiff asserts that the deposition was taken over two days,
and that on the second day the reporter restarted the page
Plaintiff contends that “numerous pages [of
the deposition submitted to the Court] were omitted by error or
accident, because there were two sets of the same page
Unless otherwise noted, all in-cite page numbers refer to the PageID
(Id. at 1328-29.)
Defendant filed its response on
August 25, 2017, in which it argued that Plaintiff’s motion
should be denied because the “pages of [Plaintiff’s] deposition
transcript that Plaintiff is arguing should now be included”
“were never before the Court.”
(ECF No. 92 at 1333.)
For the reasons stated below, the Court DENIES Plaintiff’s
Motion to Correct or Modify the Record.
Plaintiff brought this action pursuant to Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, as amended by
42 U.S.C. § 1981a, alleging discrimination on the basis of race and
sex, and the Age Discrimination in Employment Act of 1974 (“ADEA”),
29 U.S.C. §§ 626 et seq., alleging discrimination on the basis of
Plaintiff voluntarily dismissed his claim under the ADEA on
November 30, 2015.
(ECF No. 40.)
On July 1, 2016, the Court entered an Order granting in part and
denying in part Defendant’s Motion for Summary Judgment.
The Court granted summary judgment on Plaintiff’s hostile work
environment claim; his claim that he was discriminated against based
on race and sex with regard to promotions, bonuses, raises, leave,
claim that he was terminated based on sex.
(Id. at 437.)
denied summary judgment on Plaintiff’s claim that he was terminated
based on race.
Plaintiff’s claim that he was terminated on the basis of race, and
the Court entered judgment in favor of Defendant. (ECF No. 76.)
Plaintiff appealed, and that appeal is pending before the United
States Court of Appeals for the Sixth Circuit.
Plaintiff now seeks permission to submit deposition excerpts from
Defendant opposed the motion on August 25, 2017.
Federal Rule of Appellate Procedure 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
(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.
Fed. R. App. P. 10(e).
“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.
“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)).
10(e) allows correction of the record by agreement of the
parties, by order of the district court, or by order of the
court of appeals.”
(citing Fed. R. App. P. 10(e)(2)).
“is clear from the rule's wording, ‘[t]he purpose of the rule
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.’”
(quoting S & E
Shipping Corp. v. Chesapeake & O. Ry. Co., 678 F.2d 636, 641
(6th Cir. 1982)); see also Canaday v. Kelley, No. 93-1860, 1994
WL 567512 at *11 (6th Cir. Oct.14,1994) (“Fed. R. App. P. 10(e)
allows modification of the record in only two instances;
namely, when the parties dispute whether the record actually
discloses what occurred in the district court and when a
material matter is omitted by error or accident”); Fassett v.
Delta Kappa Epsilon (New York), 807 F.2d 1150, 1165 (3rd Cir.
1986) (“It is well-settled that the purpose of Rule 10(e) is
not to allow a district court to add to the record on appeal
matters that did not occur there in the course of proceedings
leading to the judgment under review”).
“‘In general, the
appellate court should have before it the record and facts
considered by the District Court.’”
Inland Bulk Transfer Co.,
332 F.3d at 1012 (quoting United States v. Barrow, 118 F.3d
482, 487 (6th Cir. 1997)).
Plaintiff has not met the requirements of Rule 10(e).
Plaintiff does not explain why the additional deposition pages
were material to his response to Defendant’s Motion for Summary
More importantly, permitting Plaintiff to amend the
record with evidence not previously admitted and not considered
by the Court in deciding summary judgment would improperly
introduce new evidence into the appellate record.
Transfer Co., 332 F.3d at 1012.
In its July 1, 2016 Order on Defendant’s Motion for Summary
Judgment, the Court noted the absence of support in the record
for arguments Plaintiff made in his response.
(ECF No. 46 at
414 nn.1-3 (“The pages of Golden’s deposition that the Response
cites to support his contention have not been filed or contain
irrelevant information;” “The pages of Golden’s deposition that
the Response cites have not been filed.”)
Not later than July
1, 2016, it was clear that evidence plaintiff cited was not in
the record and that the Court was not considering it.
The evidence itself, even if considered, would not have been
material to the Court’s decision on summary judgment.
Court denied summary judgment on Plaintiff’s claim that he was
terminated based on his race.
(Id. at 422.)
The Court granted
summary judgment on Plaintiff’s unequal pay claim because his
contentions, even if they had been supported by the record, did
not constitute direct evidence of discrimination.
(Id. at 428-
The Court granted summary judgment on Plaintiff’s hostile
work environment claim and on all of his other Title VII claims
because Plaintiff did not raise those claims in his EEOC
(Id. at 422-23.)
Considering the deposition pages
Plaintiff now seeks to include would not have altered the
The Court did not consider the content of the missing pages
in its decision.
Amending the record to include the immaterial
missing pages, after summary judgment, jury trial, and entry of
judgment would improperly introduce new evidence into the
Chrysler Intern. Corp. v. Cherokee Export
Co., 134 F.3d 370 (Table), 1998 WL 42488, at *3 (6th Cir. 1998)
(per curiam) (Moore, J., concurring) (emphasizing that district
court erred under Rule 10(e) by supplementing record with
missing and unnecessary deposition materials).
court would have before it a record and facts not considered by
the district court.
Plaintiff’s Motion to Correct or Modify the Record is
Plaintiff’s Motion to Correct or Modify the Record is
So ordered this 31st day of August, 2017.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT COURT JUDGE
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