Opinion
CASE NO. 04CV0535WQH.
September 4, 2007
ORDER
The matter before the Court is the Motion to Modify the Record pursuant to Fed.R.App.P. 10 filed by Defendant Charles M. Frye (#438).
On November 14, 2006, the jury rendered its verdict against the Defendants Charles M. Frye, and Professional Development Systems School of Health Sciences and in favor of Plaintiff Excelsior. (Doc. # 368).
On March 23, 2007, this Court entered a "Final Judgment and Permanent Injunction." awarding damages against Defendant Charles M. Frye and Defendant West Haven University on Counts I, II, and III for copyright infringement; against Defendants Charles M. Frye and Professional Development Systems School of Health Sciences on Count IV and VI for copyright infringement and trade secret misappropriation. (Doc. # 417).
On June 14, 2007, this Court entered an order denying the Motion for New Trial filed by Defendant Charles M. Frye, the Motion to Reduce Damage Award and for Other Relief filed by Defendant Charles M. Frye, and the Motion for New Trial filed by Defendant Professional Development Systems School of Health Sciences. (Doc. #431).
On July 3, 2007, Defendant Charles M. Frye filed a Notice of Appeal from the Final Judgment entered on June 14, 2007 and the denial of the Defendant's post-trial motions. (Doc. # 432).
On July 20, 2007, Defendant Charles M. Frye moved this Court for an order permitting the modification of the record on appeal to include post-trial motions (including the attendant memorandum of points and authorities, opposition memorandums, reply memorandum, and exhibits) and the oral transcripts from Excelsior College's Motion to Compel dated June 28, 2005. Defendant Charles M. Frye asserts that these documents are relevant to any meaningful review by the Ninth Circuit Court of Appeal.
On August 2, 2007, Plaintiff filed a response opposing Defendant's motion on the grounds that it is improper, unnecessary and a waste of judicial time and resources. Plaintiff asserts that all of the documents Defendant seeks to add to the record on appeal are already a part of the record on appeal.
Rule 10(a) of the Federal Rules of Appellate Procedure provides that the original papers and exhibits filed in the district court and the transcripts of proceedings constitute the record on appeal. There are no grounds upon which to correct or modify the record on appeal in this case.
IT IS HEREBY ORDERED that the Motion to Modify the Record pursuant to Fed.R.App.P. 10 filed by Defendant Charles M. Frye (#438) is DENIED.