EDMUND A. SARGUS, JR., District Judge.
This matter is before the Court on the defendants' Motion to Supplement/Modify the Record on Appeal. (ECF No. 128.) For the reasons that follow, the Court
This Court's docket indicates that in the instant action on May 25, 2012, at Docket Entry numbered 77, the following was filed: "Unopposed MOTION for Settlement by Plaintiff Victoria Zwerin. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D-Proposed Order)."
That same day, the plaintiff filed a Notice of Striking Docket Entry 77, in which she requested that "Docket Entry # 77... be stricken from the record...." (ECF No. 78.)
This Court's docket also shows that on May 25, 2012, at Docket Entry numbered 79, the following was filed: "Unopposed MOTION for Settlement by Plaintiff Victoria Zwerin. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D-Proposed Order)."
In their Motion to Supplement/Modify the Record on Appeal, the defendants explain that they "requested that the plaintiffs withdraw the filing of these documents [Docket Entries 77 and] since they included the Confidential Settlement Agreement as an exhibit along with other confidential information in both the motion and other exhibits.". (Defs' Mot. at 1; ECF No. 128.)
This Court's docket reflects that on May 29, 2012, the Clerk of this Court modified the Docket Entries at numbers 77 and 79, leaving the entries as follows:
05/25/2012 77 * *DOCUMENT STRICKEN AND REMOVED FROM THE DOCKET PER TPK AS IT CONTAINED CONFIDENTIAL INFORMATION * * Unopposed MOTION for Settlement by Plaintiff Victoria Zwerin. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D-Proposed Order) (Frisch, Andrew) Modified on 5/29/2012 (kk2). (Entered: 05/25/2012) 05/25/2012 79 * *DOCUMENT STRICKEN AND REMOVED FROM THE DOCKET PER TPK AS IT CONTAINED CONFIDENTIAL INFORMATION * * Unopposed MOTION for Settlement by Plaintiff Victoria Zwerin. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Frisch, Andrew) Modified on 5/29/2012 (kk2). (Entered: 05/25/2012)
(ECF Nos. 77, 79) (emphasis in original). "TPK" refers to Magistrate Judge Terence P. Kemp, who is one of the judicial officers assigned to this case.
On May 30, 2012, the parties filed a Joint Motion for Preliminary Approval of Class Action Settlement Agreement and to Provide the Court with Settlement Terms In Camera. (ECF No. 80.) On June 7, 2012, the Court granted the parties' Joint Motion for Preliminary Approval of Class Action Settlement Agreement and to Provide the Court with Settlement Terms In Camera, (ECF No. 82.) The parties then
On August 24, 2012, the plaintiffs filed their Motion for Certification of the Settlement Class, Final Approval of the Class Action Settlement, Approval of the FLSA Settlement and Approval of Attorneys' Fees and Costs. (ECF No. 86.) On August 31, the Court held a fairness hearing on the class action settlement. All parties were represented and no objections were entered by counsel nor by any other person. Upon consideration of all information presented to it on brief and in the oral hearing, as well as review of the Settlement Agreement that had been submitted by the parties for in camera review, the Court granted the plaintiff's Motion for Certification of the Settlement Class, Final Approval of the Class Action Settlement, Approval of the FLSA Settlement and Approval of Attorneys' Fees and Costs. (ECF No. 90.) The Court at that same time entered on its docket under seal the Settlement Agreement that it had considered in camera. (ECF No. 89.)
On September 12, 2012, the defendants filed a Motion to Dismiss, in which they argued that this case should be dismissed based upon the plaintiff's counsel's alleged breach of "the parties' confidentiality agreements, and an executed written Confidential Settlement Agreement (previously provided in camera to the court)." (ECF No. 91.) The plaintiff filed a Motion to Enforce the Settlement Agreement and for Sanctions. (ECF No. 93.) This Court denied the defendants' Motion to Dismiss and granted in part and denied in part the plaintiff's Motion to Enforce the Settlement Agreement and for Sanctions. (ECF No. 100.) The defendants appealed this decision and the plaintiffs moved to dismiss the appeal for lack of jurisdiction. The United States Court of Appeals for the Sixth Circuit denied the plaintiff's motion to dismiss, holding that the defendants' post-judgment motion to dismiss was "properly treated as a motion for relief from judgment under Federal Rule of Civil Procedure 60(b)[,]" which "is appealable." (ECF No. 117 at 2.)
Subsequently, the plaintiff filed a Second Motion to Enforce the Settlement Agreement (ECF No. 103), which this Court granted (ECF No. 106), and a Third Motion to Enforce the Settlement Agreement (ECF No. 107), which this Court also granted (ECF No. 112). The defendants appealed this Court's decisions. The Sixth Circuit dismissed as untimely the defendants' appeal of this Court's decision on their Motion to Dismiss/for Relief from Judgment (ECF No. 100), and on its decision on the plaintiff's Motion to Enforce the Settlement Agreement and for Sanctions (ECF No. 106). The Sixth Circuit found that this Court's decision granting the plaintiff's Third Motion to Enforce the Settlement Agreement was timely and appropriately before the appellate court.
On March 26, 2014, the defendants filed a Motion to Supplement/Modify the Record on Appeal. (ECF No. 128.) The plaintiff filed a memorandum in opposition to the defendants' motion (ECF No. 129), and the defendants filed a reply in support of their motion (ECF No. 130). The defendants' motion is now ripe for review.
The defendants have moved pursuant to Federal Rule of Appellate Procedure 10(e), "for an order modifying and supplementing the record with case document entries (DE 77, 77-1-4) which the defendants only recently learned were apparently stricken from the record and not placed under seal or kept in the record after being stricken." (ECF No. 128.)
In their Motion to Supplement/Modify the Record on Appeal, the defendants submit:
Id. at 1-2.
The plaintiff argues that the defendants' motion should be denied, because: "(1) they fail to satisfy their heavy burden on their Motion; (2) there is no authority permitting the relief requested by Defendants; and (3) Defendants themselves have repeatedly argued that this Court below did not consider the materials that are the subject of their Motion to Supplement." (ECF No. 129 at 1.) In their reply, however, the defendants maintain:
(ECF No. 130 at 1-2.) The defendants conclude that applying the law related to Federal Rule of Appellate Procedure 10(e) to these facts requires supplementation of the record:
Id. at 2 (citing S & E Shipping Corp., 678 F.2d at 641 ("We have not allowed the rule to be used to add new evidence that substantially alters the record after notice of appeal has been filed; rather we have allowed enough modification to ensure the accuracy of the record.")).
The Court finds the defendants' request to supplement or modify the record is not well taken for several reasons. First, the documents the defendants seek to add are not undisputedly part of the record, as the defendants contend. Indeed, this Court did not consider those documents, nor does it have any independent knowledge of the contents of those documents other than they contained confidential information. As set forth supra, the record reflects two docket entries that indicate there was an unopposed motion filed by the plaintiff that had attached to it four exhibits. One of those exhibits is identified as a "proposed order," but the others are unidentified. The Docket Entries indicate that Magistrate Judge Kemp directed the Clerk to strike the entries because they contained confidential information. The docket shows that the entries were stricken. Therefore, even if it were so inclined, this Court simply could not "add these documents back into the record" as the defendants request. Nor is it possible for the Court to certify what the entries contained. See Fed. R.App. P. 10(e)(2) ("the omission or misstatement may be corrected and a supplemental record may be certified and forwarded").
Second, the record clearly reflects that the Settlement Agreement the Court considered was the one submitted by the parties for an in camera review. The Court indicated on the record at the fairness hearing that it had reviewed the Settlement Agreement and then filed under seal that document, which is part of the record. (ECF No. 89.)
Third, the defendants' assessment of this Court's action regarding the September 27, 2012 filing is inaccurate. That is, this Court never sua sponte directed that the September 27, 2012, "filing be stricken and placed under seal" as the defendants claim. Instead, the docket unequivocally reflects that the Court only directed the clerk to place the document under seal. The docket does not reflect that any direction was given to strike the document.
09/27/2012 94 RESPONSE in Opposition re 91 MOTION to Dismiss and Request for a Hearing filed by Plaintiff Victoria Zwerin. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (Frisch, Andrew) Modified on 10/30/2012 —Exhibit 1 sealed by the Clerk's Office per request of Judge Sargus' Chambers, (pesl). (Entered: 09/27/2012)
In conclusion, the Court finds that the documents filed at Docket Entries 77 and 79, and then stricken from the docket four days later were not "omitted from or misstated in the record by error or accident." See Fed. R.App. P. 10(e)(2). The appellate court has "before it the record and facts considered by" this Court. See Inland Bulk Transfer Co., 332 F.3d at 1012. Accordingly, the Court