The opinion of the court was delivered by: Hurley, Senior District Judge
Presently before the Court is defendants' letter application, pursuant to Fed. R. App. Pro. 10(e), to correct the record of this matter to include Exhibits "A" through "U" and permit the electronic filing of said exhibits so that a supplemental electronic record can be forwarded to the Second Circuit. For the reasons set forth below, the motion is granted.
Plaintiff John H. Libaire Jr. ("Plaintiff")commenced this action on March 31, 2006 asserting causes of action for securities fraud, pursuant to Section 10-b of the Exchange Act of 1934, 15 U.S.C. § 78j (the "Exchange Act"), and Rule 10b-5 of the Securities and Exchange Commission promulgated thereunder, 17 C.F.R. § 240.10b-5 ("Rule 10b-5"), as well as common law fraud and breach of fiduciary duties.
By notice of motion dated March 23, 2007, defendants moved for summary judgment and for sanctions. Plaintiff opposed the motion. The motion was referred to Magistrate Judge Boyle.*fn1 By Report and Recommendation dated January 17, 2008 (the "Report"), Judge Boyle recommended that defendants' motion for summary judgment and for sanctions be granted, that plaintiff's complaint be dismissed in its entirety, and that plaintiff and his counsel be sanctioned in an amount equal to the amount of reasonable attorney's fees and costs incurred by defendants. Plaintiff filed objections to the Report. By Order dated March 24, 2008, the Court adopted Judge Boyle's Report in its entirety and referred the amount of sanctions to Judge Boyle. Following a second Report and Recommendation by Judge Boyle dated September 26, 2008 addressing the amount of sanctions and the Court's adoption thereof by Order dated May 22, 2009, judgment was entered and plaintiff filed an appeal therefrom on June 22, 2009.
Thereafter plaintiff moved to alter the judgment and for reconsideration. By Order dated January 21, 2010, the Court granted the motion to the extent of directing an amended judgment to reflect that the state laws claim were dismissed without prejudice but otherwise denied the motion. On February 25, 2010, Plaintiff filed a notice of appeal from the January 21, 2010 Order and the resulting amended judgment. Both appeals remain pending.
In support of their motion for summary judgment and sanctions, defendants filed, inter alia, declarations of Myron Kaplan and Janet Krudop. Although both declarations refer to specifically described materials denoted as exhibits "A" though "U,"*fn2 no exhibits were not filed with the Clerk of Court via ECF. Rather the declarations filed on the Court's ECF system contain a notation "VOLUMINOUS EXHIBITS FILED WITH COURTESY COPY IN CHAMBERS." Inasmuch as the exhibits were not filed with the Clerk of Court, they were not part of the electronic record transmitted to the Second Circuit in connection with plaintiff's appeals. It is that omission which defendants' application seeks to correct.
Plaintiff opposes the motion. First, he argues the application is untimely, pointing to the three years that have past since the motion was filed, the four months that have passed since the Joint Appendix and Appellant's Brief were filed and the "weeks after Appellees' Brief was lodged." (Dkt. No. 74 at 1.) Second, he maintains that the documents were never before the Court and defendants cannot prove they were ever served. Finally, assuming courtesy copies had been delivered to Chambers, plaintiff asserts that the failure to file the exhibits is fatal to the application.
Rule 10 (e) of Federal Rules of Appellate Procedure provides in pertinent part:
(e) Correction or Modification of the Record.
(1) If 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 ...