Opinion
01 Civ. 8556 (HB)
December 6, 2002
Opinion Order
Chuan-Guo Xiao, M.D. ("plaintiff'), pro Se, moves under Fed.R.App.P. 10(e)(1) to supplement the district court's record for the purposes of appeal. Specifically, plaintiff requests that the Court modify the record to include "hidden key documents" that plaintiffs counsel neglected to put before me on the motion for summary judgment that was brought by Continuum Health Partners, Inc. and the Long Island College Hospital (collectively, "defendants"), a motion for summary judgment that I granted on July 17, 2002. See Xiao v. Continuum Health Partners. Inc., 2002 WL 1586954 (S.D.N.Y. July 17, 2002). In addition, plaintiff also moves for reconsideration of my decision under Fed.R.Civ.P. 59(e) and Local Civil Rule 6.3. For the reasons detailed more fully below, plaintiffs motion to supplement the record on appeal is denied, and plaintiffs application for reconsideration is also denied.
BACKGROUND
A detailed factual summary of this case appears in Xiao, 2002 WL 1586954, and familiarity therewith is assumed.
On July 17, 2002, I granted defendants' motion for summary judgment on the ground that, based on the record before me, plaintiff failed to make out a prima facie case of national origin discrimination under Title VII and that there were no genuine issues of material fact in dispute that would prevent judgment as a matter of law. Judgment was entered, and the case closed, on July 22, 2002. On July 29, 2002, plaintiff filed a notice of appeal to the Second Circuit, and on August 20 he moved for an order under Fed.R.App.P. 10 to supplement the record for the purposes of his appeal. In addition, in his affirmation appended to his motion to supplement the record, plaintiff applied for an order of reconsideration under Fed.R.Civ.P. 59 although he failed to provide any legal basis whatsoever for this application.
DISCUSSION
1. Motion to Supplement the Record
Rule 10(e) provides, in pertinent part, that
(1) [i]f 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 conformed accordingly. (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.
Pursuant to Rule 10(e), the moving party must demonstrate that the evidence to be supplemented was before the lower court in the course of its proceedings leading to the judgment under review and was mistakenly omitted from the record. See Miro v. Plumbers Pipefitters Nat'l Pension Fund, 2002 WL 31357702, at * 1 (S.D.N.Y. Oct. 17, 2002) (citing Schreier v. Weight Watchers Northeast Region, Inc., 872 F. Supp. 1, 3 (E.D.N.Y. 1994)). In Armfield v. Jacobson, the court reiterated that "[i]t 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."Armfield v. Jacobson, 1998 WL 199852, at *2 (E.D.N.Y. Mar. 27, 1998) (quotations and citations omitted); see also Schreier v. Weight WatchersNortheast Region, 872 F. Supp. 1, 3 (E.D.N.Y. 1994) (stating that "[t]he purpose of [Rule 10(e)] is to correct omissions from — or misstatements in — the record on appeal, not to introduce new evidence in the court of appeals"); Gomez v. Banco Bilbao Vizcaya, S.A., 1994 WL 577631 (S.D.N.Y. Oct. 19, 1994) (stating that "Rule 10(e). . . is not designed to permit parties to add matters to the record that were not before the district court"). Significantly, both Armfield and Schreier involved pro se litigants. Although the Schreier court acknowledged that "the Court must give wide latitude to the papers filed by the pro se litigants," it nevertheless was aware that "self-representation does not exempt a party from compliance with relevant rules of procedural and substantive law." Schreier, 872 F. Supp. at 3. The courts in both cases held that the pro se plaintiffs could not supplement their respective records on appeal with a variety of documents that were not before the courts below. In addition, the Schreier court also rejected the plaintiff's argument that she should be allowed to supplement the record on appeal on the ground that her counsel was ineffective by failing to include certain documents in the record. See id. at 5 (stating that "[n]or is there any authority for the proposition that documents not introduced at trial should be made part of a record on appeal where the appellant alleges ineffective assistance of counsel").
Here, plaintiff seeks to supplement the record on appeal with the following documents: (1) his W-2 records, which plaintiff obtained from the Internal Revenue Service ("IRS") on July 22, 2002, in other words, after I had already granted defendants' motion for summary judgment (Pl's Aff. Ex. C); (2) statements made by plaintiffs co-worker, Chunwei Ma ("Ma"), with respect to defendants' treatment of plaintiff — statements that were issued on July 23, 2002, again after I had already granted defendants' summary judgment motion (Pl's Aff. Ex. D); (3) a series of letters and emails written to and/or about plaintiff between October 6, 1999 and December 30, 1999 with respect to plaintiffs receipt of his award from the National Institutes of Health (Pl's Aff. Ex. E); random letters dated anywhere from December 11, 1991 to March 9, 2000 with respect to such sundry items as plaintiffs inquiries about a research position at the University of South Florida (see letter dated December 11, 1991) to New York University's School of Medicine's letter to plaintiff confirming the terms of their agreement (see letter dated March 14, 2000) (Pl's Aff. Ex. F). In his affirmation, plaintiff maintains that the Court should allow him to supplement the record for the purposes of appeal on the ground that the attorney who represented him throughout the pendency of this litigation "neglected his duties and did not discover or submit the most important evidences [ sic] to the Court to support my complaints [ sic]" and simply that "[t]he evidences [ sic] to be added to the records are critical for my appeals [ sic] because they are plainly and clearly against all major judgements [ sic] made by Hon. District Judge Baer." (Pl's Aff. ¶¶ 1 2).
Defendants, to the contrary, maintain that (1) two of the documents — Exs. C and D — were submitted to the Court after it had already decided defendants' motion for summary judgment and therefore were not properly part of the record below; and (2) the remaining documents were never produced in discovery and/or submitted to the Court for its consideration. They contend that, because the clear weight of authority militates against supplementing a record on appeal with evidence that was not before the court below, plaintiffs motion should be denied. In addition, they advert to Schreier for the proposition that a claim of ineffective assistance of counsel does not allow a plaintiff to enlarge a record on appeal with documents that were never before the district court in the first instance.
I agree with defendants that the clear weight of authority works in plaintiffs disfavor — even if he is now proceeding pro se. None of the documents that are appended to plaintiffs moving papers were before me when considering defendants' motion for summary judgment; indeed, two of the documents — Ma's statement and the W-2 records — were not even received until after I had decided the motion. Further, decisional authority clearly dictates that whether or not plaintiffs claim of ineffective assistance of counsel has merit is irrelevant for the purpose of a Rule 10(e) motion. Accordingly, plaintiff's motion to supplement the record on appeal is denied.
2. Application for Reconsideration
In a motion for reconsideration brought pursuant to Local Rule 6.3 and Rule 59(e), a plaintiff must demonstrate that the court overlooked controlling decisions or factual matters that were put before it on the underlying motion. See Int'l Top Sports, S.A. v. Pan Am. Sports Network Int'l, 2002 WL 226657 (S.D.N.Y. Feb. 14, 2002); Wiesner v. 321 West 16th St. Assoc., 2000 WL 1585680, at *2 (Oct. 25, 2000 S.D.N.Y.). "The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Trans., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Although a party seeking reconsideration may advert to controlling decisions or factual matters that were before the court on the underlying motion, the party may neither put forth new facts, issues or arguments that were not presented to the court on that motion, see Wiesner, 2000 WL 1585680, at *3, nor revisit issues that the court has already fully considered such that the motion becomes "a substitute for appealing from a final judgment." Id.
Here, although plaintiff summarily states in his affirmation that he wishes for this Court to reconsider its opinion, he has neglected to make a formal motion for reconsideration under Fed.R.Civ.P. 59(e) or to comply with requirements of Local Civil Rule 6.3, which, like Rule 59(e), requires that a motion for reconsideration be filed "within ten (10) days of the docketing of the court's determination of the original motion." Whereas I granted defendants' motion for summary judgment on July 17, 2002, plaintiff did not "apply" for reconsideration until August 23, 2002 and his motion is therefore untimely under Local Civil Rule 6.3. For this reason alone, plaintiffs motion for reconsideration is denied. As theSchreier court makes clear, "self-representation does not exempt a party from compliance with relevant rules of procedural and substantive law."Schreier, 872 F. Supp. at 3. However, even if plaintiff did file a motion for reconsideration in a timely manner, I would nevertheless still deny the motion on the ground that he has pointed to no controlling authority or decisions that were before me, and that I overlooked, on the underlying motion.
CONCLUSION
For the foregoing reasons, plaintiffs motion to supplement the record under Fed.R.App.P. 10(e) is denied, and his motion for reconsideration under Rule 59(e) is also denied. The clerk of the court is instructed to remove this and any other open motions in this matter from my docket.