The opinion of the court was delivered by: ARTHUR D. SPATT
Helaine Schreier, the plaintiff-appellant pro se, moves the Court for an Order pursuant to Fed. R. App. P. 10(e) to add documents, which were not introduced into evidence during her jury trial before this Court, to her record on appeal. She also requests the following relief from the Court: 1) that the Court subpoena the phone records of two witnesses who testified at the trial; 2) that the Court accept sworn statements from two additional witnesses; and 3) that the defendant be directed to present a document when referring to a document, although she does not indicate when . . . during appellate argument or during this motion or some other time.
This memorandum decision follows an oral decision, which was rendered from the bench at oral argument on December 9, 1994.
In this employment discrimination action, on May 31, 1994 following a 10 day trial, the jury returned a verdict in favor of the defendant employer, Weight Watchers Northeast Region, Inc. ("Weight Watchers"). Following the trial, the plaintiff, then represented by counsel, made a motion for a new trial pursuant to Fed. R. Civ. P. 59(a), alleging that the jury's verdict contradicted the weight of the evidence and that the testimony of Maryann Povodnich was perjured as well as prejudicial because of surprise to the plaintiff.
The motion for a new trial was denied by an Order of this Court dated September 26, 1994, the Court finding that there was sufficient evidence introduced at trial from which a reasonable jury could find that the plaintiff was not qualified for her work. The Court also found that there was no bad faith by the defendant or unfair prejudice to the plaintiff with regard to the testimony of Maryann Povodnich. The Court further noted that the allegation of perjury on the part of Maryann Povodnich was unsupported.
The plaintiff, proceeding pro se, filed an appeal from that denial on October 17, 1994 with the United States Court of Appeals for the Second Circuit. The plaintiff-appellant requested and was granted an adjournment of the date by which she must file her appeal brief until December 28, 1994 to allow this Court to render a decision on the present motion.
Fed R. App. P. 10(e) provides:
If any difference arises as to whether the record truly discloses what occurred in the district court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the district court either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that the supplemental record be certified and transmitted. . . . (emphasis supplied).
The purpose of this rule is to correct omissions from--or misstatements in--the record on appeal, not to introduce new evidence in the court of appeals. See, e.g., S. & E. Shipping Corp. v. Chesapeake & Ohio Ry. Co., 678 F.2d 636 (6th Cir. 1982); Heath v. Helmick, 173 F.2d 156 (9th Cir. 1949) (stating that Rule 10(e) does not contemplate the introduction of new evidence, even by stipulation). The Court may deny a motion where the proposed documents include unsubstantiated allegations of fact contained therein, which have not been the subject of any adversary proceeding below. In Re Eastern Freight Ways, Inc. 453 F. Supp. 934, 941 (S.D.N.Y. 1977), modified on other grounds, 577 F.2d 175 (2d Cir. 1978).
Because the plaintiff is proceeding without an attorney, the Court must give wide latitude to the papers filed by the pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (pro se se papers are to be held "to less stringent standards than formal pleadings drafted by lawyers"). The Court recognizes that it must make reasonable allowances so that a pro se plaintiff does not forfeit her rights by virtue of her lack of legal training. Seagrave Corp. v. Vista Resources, Inc., 710 F.2d 95 (2d Cir. 1983), cert. dismissed, 468 U.S. 1226, 105 S. Ct. 23, 82 L. Ed. 2d 919 (1984). But the Court is also aware that "'self ...