The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
MEMORANDUM AND ORDER RE: STATEMENT
OF THE EVIDENCE OR PROCEEDINGS WITH RESPECT TO THE JULY 13, 2010
TELEPHONIC SCHEDULING CONFERENCE [RULE 10(c) OF THE FEDERAL RULES
OF APPELLATE PROCEDURE]
By "Order of Reference" filed June 17, 2010, Judge Whaley referred the underlying litigation to the Magistrate Judge for a settlement conference. The same order directed the parties to contact the Magistrate Judge's chambers to schedule the conference.
In early July, 2010, the Magistrate Judge learned that: (1) despite consultation among the parties and the courtroom deputy clerk, there had been no agreement with respect to an appropriate date for the settlement conference; and (2) Plaintiff David McElroy was asking the courtroom deputy clerk to have the Magistrate Judge "intervene" into the scheduling dispute. Through the courtroom deputy clerk, the Magistrate Judge then set a July 13, 2010 telephonic conference with all parties to discuss the scheduling of the settlement conference.
During this brief telephonic conference on July 13, 2010, the Magistrate Judge scheduled a settlement conference to occur on August 2, 2010.*fn1 Many months later, the Magistrate Judge learned that the Court could not prepare a transcript of the July 13, 2010 telephonic scheduling conference because the cassette tape intended to be used to record the conference had not, in fact, recorded the conference.
As part of the record for an appeal, Plaintiffs now seek a "statement of the evidence or proceedings" with respect to the July 13, 2010 telephonic scheduling conference, pursuant to Rule 10(c) of the Federal Rules of Appellate Procedure. In this regard, Plaintiffs reportedly served on Defendants a proposed "Recreation," and Defendant responded with a proposed "Paraphrased Reconstruction of Hearing Transcript." See "Defendants' and Appellees' Objections and Proposed Amendments, etc.," filed August 19, 2011. Judge Whaley referred this matter to the Magistrate Judge on September 13, 2011. See "Order of Reference," filed September 13, 2011; see also "Amended Order of Reference," filed September 14, 2011.
On September 14, 2011, the Magistrate Judge issued a Minute Order requiring that Plaintiffs file a Reply within thirty days. The Minute Order provided: "If Plaintiffs contend that there exist any material inaccuracies or material omissions in Defendants' 'Paraphrased Reconstruction of Hearing Transcript' set forth in the right-hand columns of pages 2-3 of the 'Proposed Amendments by Defendants/ Appellees,' then Plaintiffs' Reply shall specify each such alleged material inaccuracy and each such alleged material omission." Within the time allotted for Plaintiffs' Reply, the Magistrate Judge received only a single Reply, filed by Plaintiff Everett Seymour on September 26, 2011. This Reply did not specify each "material inaccuracy" and each "material omission" allegedly contained in Defendants' "Paraphrased Reconstruction of Hearing Transcript." Instead, the bulk of the Reply complains of the Court's failure to produce a transcript, criticizes the length of time taken by the Court to advise Plaintiffs of the circumstances regarding the Court's inability to produce a transcript, and expresses vague suspicions concerning a courtroom deputy clerk. With regard to the focus of the Magistrate Judge's September 14, 2011 Minute Order, that is, the extent to which Plaintiffs take issue with Defendants' "Paraphrased Reconstruction of Hearing Transcript," the Reply states only:
Now we go to the statement supposedly by Judge Eick in the Defendants Proposed Amended Recreation does not make sense about the declaratory attorneys fees. The ruling on the declaratory attorney fees was denied on 5/25/2010 docket #156, the only attorneys fees left to be ruled on at the time of the hearing were the attorneys fees filed by David Wimmer on 5/17/2010 docket #s 152,153,154. All the facts show that the Defendants statement is not worth the paper it's written on. We stand by the recreation in full submitted by Plaintiffs.
After considering the parties' differing recreations or reconstructions of the July 13, 2010 telephonic scheduling conference, the Magistrate Judge finds that the Defendants' "Paraphrased Reconstruction of Hearing Transcript" comports much more closely to the Magistrate Judge's recollection of what was actually said at the scheduling conference. The Magistrate Judge hereby settles and approves the following statement of the evidence or proceedings with respect to the July 13, 2010 telephonic scheduling conference:
COURT CLERK: I'm going to call the case. Calling ED CV 08-
0007-RHW(Ex), Everett Seymour, et al. v. McLane Company, et al. Please state your appearances. EVERETT SEYMOUR: Everett Seymour.
DAVID McELROY: David McElroy.
RONALD SELLERS: Ronald Sellers.
DAVID WIMMER: David Wimmer of Swerdlow, ...