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Nicholas v. City of Binghamton

United States District Court, N.D. New York

July 1, 2014



THOMAS J. McAVOY, Senior District Judge.

Before the Court is Defendants' Motion for an Order from the Court Requiring Plaintiff to Secure and Produce Additional Portions of the Trial Transcript to be Made Part of the Record on Appeal. See dkt. # 155. Plaintiff has responded, and has additionally moved for an Order from the Court Compelling the Defendants to Produce Transcripts of Witness Interviews, which were conducted before trial. See dkt. #156.


Plaintiff Cecilia Nicholas commenced the instant action against the City of Binghamton and Binghamton Police Officers Charles Harder, James Mooney, Captain John Chapman, and Chief Joseph Zikuski (collectively "Defendants") pursuant to 42 U.S.C. § 1983. The case involved Plaintiff's claims that Defendants falsely arrested her, used excessive force in that arrest, engaged in an illegal search, retaliated against her for exercising her free speech rights, violated her rights under the Americans with Disabilities Act, and committed various state-law violations. The Court dismissed most of Plaintiff's claims upon Defendants' summary judgment motion. See dkt. # 54. A jury returned a verdict in the Defendants' favor on Plaintiffs' remaining claims for excessive force, battery, and violation of N.Y. Civil Rights Law Art. 2 § 8 on June 25, 2013. See dkt. # 131. After the Court granted Defendants' motion for attorney's fees and denied the Plaintiff's motion for reconsideration, Plaintiff filed a notice of appeal. See dkt. #s 143, 149, 150. In preparation of her appeal, Plaintiff requested production of only portions of the trial record. See dkt. #s 153, 154, text notice of 5/16/14. Defendants thereafter filed a motion to compel production of additional portions of the record pursuant to Federal Rule of Appellate Procedure 10(b). See dkt. # 155. In responding to that motion, Plaintiff filed a cross-motion seeking an order from the Court compelling the Defendant to produce transcripts of witness interviews conducted before trial and requesting that the Court refer Defendants' counsel to disciplinary authorities. See dkt. #156. Defendants responded that Plaintiff's allegations regarding the additional transcripts and attorney misconduct required production of the entire trial transcript.


A. Defendants' Motion

Defendants seek production of additional portions of the trial transcript in order to defend against Plaintiff's appeal. Federal Rule of Appellate Procedure 10(b) provides the procedures by which an Appellant is to order and prepare the record for appeal. Under that provision, the appellant is required to either "order from the reporter a transcript of such proceedings not already on file as the appellant considers necessary" or "file a certificate stating that no transcript will be ordered." FED. R. APP. P. 10(b)(1)(A)-(B). When the appellant plans to allege on appeal that "a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion." FED. R. APP. P. 10(b)(2). Moreover, an appellant who fails to order the entire transcript "must-within the 14 days provided in Rule 10(b)(1)-file a statement of the issues that the appellant intends to present on the appeal and must serve on the appellee a copy of both" that statement and the order for the transcripts. FED. R. APP. P. 10(b)(3)(A). Within 14 days of such service, an appellee who "considers it necessary to have a transcript of other parts of the proceedings" must "file and serve on the appellant a designation of additional parts to be ordered." FED. R. APP. P. 10(b)(3)(B). If the appellant does not order the additional parts of the record appellee requests within 14 days, the appellee may "either order the parts or move in the district court for an order requiring the appellant to do so." FED. R. APP. P. 10(b)(3)(C). "[T]he appellant must comply with Rule 10(b) and must do whatever else is necessary to enable the clerk to assemble and forward the record.'" Wuersching v. City of Mt. Vernon, 127 Fed.Appx. 8, 9 (2d Cir. 2005) (quoting FED. R. APP. P. 11(a)).

Plaintiff ordered only a partial transcript of the trial, ordering the testimony of three witnesses: Physician Assistant Joseph Brunt, Police Officer James Mooney and Police Officer Charles Harder. In ordering the partial transcript, Plaintiff also identified the issues to be addressed on appeal. Those issues are:

1. Whether it was a deprivation of due process for the District Court to make findings of frivolousness against the plaintiff without providing notice and an opportunity to be heard;
2. Whether there was a sound basis in facts and law for the plaintiff's civil rights claims so as to preclude a finding of frivolousness;
3. Whether the District Court erred in its interpretation of the standard required to make a finding of frivolousness;
4. Whether the District Court made a correct application of the law regarding attorney [sic] fees to the facts of this case;
5. Whether the District Court's decision accurately recites the evidence in this case that it uses to support its findings; and
6. Whether the defendant [sic] counsel made material misrepresentation [sic] of facts and evidence that misled the court to believe the claims ...

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