The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge
) ORDER (1) GRANTING ) PLAINTIFF'S REQUEST FOR AN ) EXTENSION OF TIME TO OPPOSE DEFENDANTS' RULE 11 ) MOTION; (2) DENYING ) PLAINTIFF'S REQUEST TO FILE CROSS-MOTION UNDER RULES ) 11 AND 37; AND (3) DENYING ) PLAINTIFF'S MOTION TO ) RECONSTRUCT THE RECORD ) [Doc. Nos. 191 and 192]
Before the Court are two pending motions filed by Plaintiff Amy Gurvey. On February 19, 2013, Plaintiff filed an Ex Parte Application for a 30 Day Extension of Time to Oppose Defendants' Motion for Rule 11 Sanctions and to File a Cross-Motion Pursuant to Rules 11 and 37. (Doc. No. 191.) On February 23, 2013, Plaintiff filed an Application to Reconstruct the Record pursuant to Federal Rule of Appellate Procedure 10(c). (Doc. No. 192.) As of the date of this Order, Defendants have not opposed either of the instant motions. Under the circumstances, the Court finds it unnecessary to order or await Defendant's responses. The Court will address each of these three requests in Plaintiff's Request for an Extension of Time
On January 22, 2013, Defendants filed a Motion for Sanctions against Plaintiff pursuant to Rule 11 of the Federal Rules of Civil Procedure. (Doc. No. 189.) Thereafter, the Court set a briefing schedule and hearing date for Defendant's motion. (Doc. No. 190.) The Court instructed the parties to file opposition briefs by February 19, 2013 and reply briefs by March 12, 2013. (Id.) The Court set the hearing for April 18, 2013 at 2:00 p.m. (Id.) On February 19, 2013, Plaintiff filed the instant request for a thirty day extension of time in which to file her opposition. (Doc. No. 191.)
Considered in light of the current schedule, Plaintiff's requested extension does not require a continuance of the April 18, 2013 hearing date or cause unnecessary delay in the resolution of Defendants' motion. Therefore, the Court grants Plaintiff's request for a thirty day extension of time in which to oppose Defendants' motion. Accordingly, Plaintiff's opposition brief must be filed by March 21, 2013, and Defendants' reply brief must be filed by April 5, 2013. The hearing date will remain as set previously.
The Court notes, however, that any arguments pertaining to the merits of Defendants' Rule 11 motion made by Plaintiff in her motion for an extension of time will not be considered by the Court when ruling upon Defendants' motion. All of Plaintiff's substantive arguments in this regard must be set forth fully within her opposition brief.
Plaintiff's Request to File a Cross-Motion Under Rule 11 and 37 As an initial matter, the Court notes that Plaintiff does not require permission from the Court to file motions in this action. Should Plaintiff wish to file a motion, she may do so in accordance with the Federal Rules of Civil Procedure, the Southern District's Civil Local Rules, and this Court's Chamber Rules.
While it is unclear what discovery related issues Plaintiff wants to raise under Rule 37, those should be raised before Magistrate Judge Skomal who has supervised discovery in this case. Motions relating to discovery violations, like discovery matters in general, are referred to a magistrate judge for handling in this district. The issue of discovery sanctions, other than claim or affirmative defense preclusion and the striking of evidence and/or witnesses, is within the purview of the magistrate judge, and must be filed in accordance with the magistrate judge's chambers rules as well as the scheduling orders in the case.
Finally, to the extent that Plaintiff requests leave to file a Cross-Motion under Rule 11 in order to avoid the procedural requirements of Rule 11's safe harbor provision, Plaintiff's request is denied. Plaintiff must proceed appropriately under Rule 11 in this regard.
Plaintiff's Motion to Reconstruct the Record
Under Rule 10(c) of the Federal Rules of Appellate Procedure, it is possible to reconstruct the record for purposes of appeal when a transcript of a hearing or trial is unavailable and the proceeding was not recorded. In this instance, the "appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection." Fed. R. App. P. 10(c). The appellant must serve the statement on the appellee, "who may serve objections or proposed amendments within 14 days" after being served with the statement. Id. "The statement and any objections or proposed amendments must then be submitted to the district court for settlement and approval." Id. "As settled and approved, the statement must be included by the district clerk in the record on appeal." Id.
Here, Plaintiff seeks to reconstruct the record with regard to a "missing essential recording" of the June 13, 2011 proceeding before Magistrate Judge Skomal. (Doc. No. 192 at 1.) The Court finds Plaintiff's motion deficient for two reasons. First, Plaintiff has not complied with the procedure set forth within Rule 10(c) for reconstructing the record. Plaintiff has not prepared a statement of the proceedings and served it upon Defendants in order for them to provide objections and proposed amendments. Without this statement, the Court has nothing to consider adding into the record. The role of the Court is to review the provided statement along with any objections and proposed amendments. Only then can the Court settle and approve the final statement to be included by the district clerk in the record on appeal. Here, Plaintiff has not provided her statement reflecting the proceedings or provided any indication that she has served such a statement upon Defendants. As such, Plaintiff has not complied with the proper procedure for reconstructing the record provided by Rule 10(c) and, thus, the Court cannot reconstruct the record under the current circumstances.
Second, Plaintiff seeks reconstruction of a proceeding that is not typically held on the record. Plaintiff states that the "subject of the June 13[,] 2011 hearing was to determine if there was sufficient justification not to sanction Plaintiff who contended she could not fly and physically appear in Magistrate's Courtroom for a personal hearing." at 3.) However, the Court's docket does not reflect her description of the proceeding. Per several docket entries, the June 13, 2011 proceeding was, in fact, a mandatory settlement conference rather than a hearing regarding sanctions based upon Plaintiff's failure to appear. (Doc. No. 69 (case management order setting mandatory settlement conference on June 13, 2011); Doc. No. 88 (minute entry stating "Mandatory Settlement Conference held on June 13, 2011"); and Doc. No. 87 (order to show cause why sanctions should not be imposed for Plaintiff's failure to appear at the mandatory scheduling conference held on June 13, 2011).)*fn1 Pursuant to Civil Local Rule 16.3, settlement conferences, mandatory or otherwise, are "off the record, privileged and confidential, unless otherwise ordered by the court." Generally, settlement communications between the parties are privileged under Rule 408 of the Federal Rules of Evidence. As such, the parties' discussions at mandatory settlement conference are not routinely recorded or transcribed as they are held "off the record." For this reason, the mandatory settlement conference would not typically be part of the record on appeal, and Plaintiff has not provided any evidence why the Court should find otherwise.
To the extent that matters of settlement were adjudicated during the settlement conference, plaintiff has failed to give any meaningful information for the Court to consider.
Under these circumstances, the Court cannot reconstruct the record of the June 13, 2011 proceeding as Plaintiff has not complied with the procedural requirements set forth in Rule 10(c) or established that the June 13, 2011 proceeding should properly be included in the record for appeal. ...