Opinion
03 Civ. 8536 (RWS).
January 4, 2007
MEMORANDUM OPINION
On October 12, 2006, Terry Payton ("Payton") filed a pro se motion pursuant to Rule 10(e), Fed.R.App.P., to amend the record on appeal from this Court's opinion dated September 28, 2006, which granted defendant's motion for summary judgment and dismissed with prejudice the complaint of Payton. By order dated November 21, 2006 (the "November 21 Order"), the Court denied Payton's Rule 10(e) motion because he had not filed a notice of appeal pursuant to Rule 3, Fed.R.App.P., and granted leave to renew upon timely filing of a notice of appeal. Payton now has timely moved for reconsideration pursuant to Rule 59(e), Fed.R.Civ.P., and Rule 6.3 of the Local Rules of Civil Procedure, alleging that a notice of appeal was filed with the Pro Se Office on October 12, 2006. For the reasons stated below, the motion for reconsideration is granted, and Payton's Rule 10(e) motion to amend the record on appeal again is denied.
Payton has produced a copy of a notice of appeal that appears to have been marked received by the Pro Se Office on October 12, 2006. Although the notice of appeal was not entered on the docket within thirty days after entry of the judgment dismissing the complaint, and although defendant claims that it was not served with the notice, the Court will assume for the purpose of this motion that notice of appeal was timely filed pursuant to Rule 4, Fed.R.App.P. Because the November 21 Order was based on Payton's failure to file a notice of appeal, reconsideration is granted.
The record on appeal automatically comprises "(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). The purpose of Rule 10(e) "is to permit correction or modification of the record transmitted to the Court of Appeals so that it adequately reflects what was considered by [the district court]." Rubin v. Brady, No. 89 Civ. 0157 (LMM), 1992 WL 350749, at *1 (S.D.N.Y. Nov. 17, 1992). "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." Id. (quoting Fassett v. Delta Kappa Epsilon (New York), 807 F.2d 1150, 1165 (3d Cir. 1986), cert. denied, 481 U.S. 1070 (1987));see also Schreier v. Weight Watchers Northeast Region, Inc., 872 F. Supp. 1, 3 (E.D.N.Y. 1994) ("The purpose of this rule is . . . not to introduce new evidence in the court of appeals").
Payton has requested that the record on appeal be amended to include: (1) his complaint to the Equal Employment Opportunity Commission (the "EEOC"), (2) defendant's responses to his EEOC complaint, (3) the deposition of Steven Heubeck, and (4) "City University of New York Complaints to the New York State Department of Labor against plaintiff" from February 2003 to about July 2006. Of these documents, two have already been submitted in whole or in part as exhibits to the parties' filings. First, defendant's position statement to the EEOC, dated June 4, 2003, was submitted by defendant in support of its motion for summary judgment. (See Soni Decl. dated August 26, 2005, Ex. K.) Second, excerpts of the transcript of the deposition of Steven Heubeck taken January 21, 2005, were submitted by both parties. (See Soni Decl. dated August 26, 2005, Ex. C; Helferich Decl. dated April 6, 2006, Ex. X; Urena Decl. dated January 10, 2006, Ex. G.) These documents are already contained in the record on appeal, and thus no amendment is necessary.
The remaining items that Payton has requested be included in the record on appeal were not submitted to or considered by this Court. Because Rule 10(e) is intended to ensure that the record "adequately reflects what was considered by [the district court]," Rubin, 1992 WL 350749, at *1, and not to introduce new evidence, it is concluded that the record should not be amended to include these items. Accordingly, Payton's Rule 10(3) motion to amend the record is denied.
It is so ordered.