Reginald A. ROBERTS, Appellant v. Risa Vetri FERMAN; County of Montgomery; James Matthews; Joseph M. Hoeffel, III; Bruce L. Castor, Jr.; Oscar P. Vance, Jr.; Samuel Gallen; Stephen Forzato; Edmund Justice; Carolyn T. Carluccio; Mark Bernstiel; Toni Luter, Sued Individually Held Liable Joint and Severally.
No. 15-2909
United States Court of Appeals, Third Circuit.
June 17, 2016
117
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 13, 2016
OPINION
SMITH, Circuit Judge.
The key question in this case is not an easy one. We must determine when dismissal for failure to comply with
Brian M. Puricelli, Esq., Law Office of Brian Puricelli, 2721 Pickertown Road, Warrington, PA 18976, Counsel for Appellant
Carol A. VanderWoude, Esq., Marshall Dennehey Warner Coleman & Goggin, 18th Floor, 2000 Market Street, Suite 2300, Philadelphia, PA 19103, Counsel for Appellee
I.
Plaintiff Reginald Roberts, a former employee of Montgomery County, Pennsylvania, brought suit against Montgomery County and a number of its employees1 alleging that he “suffered continual retaliation, discrimination and humiliation” at work in violation of Title VII and his constitutional rights. Pl.‘s Am. Compl. 3, ECF No. 4. The complaint, as amended in January 2010, contains five counts, two of which, counts II and III, allege violations of
After briefing and oral argument, the magistrate judge granted in part and denied in part Defendants’ motion for summary judgment, further limiting the claims that would proceed to trial. Important for purposes of this appeal, the magistrate judge denied in part and granted in part summary judgment on counts II and III of the amended complaint. However, after alleging bias on the part of the magistrate judge, Roberts, on October 6, 2011, moved to revoke his consent to adjudication by a magistrate. Roberts’ petition to revoke consent was granted on January 4, 2012, and his motion for recusal based on alleged judicial bias was thus denied as moot. This case was then reassigned to Judge Savage, who scheduled an initial pre-trial conference and prepared the case for trial.
On February 21, 2012, Judge Savage held a final pre-trial conference at which he expressed concern about whether Roberts would be able to make out a proper Monell claim against the County based on the facts as then clearly presented. He also questioned whether the County could legally be held liable under Monell in light of a recent Pennsylvania Supreme Court decision regarding the division of authority between the County and the Commonwealth. With that in mind, Judge Savage asked the parties to submit supplemental briefing on the effect of the recent change in Pennsylvania law. As Roberts’ attorney noted, “[i]f the law is changed, that would be a reason for reconsideration.” Tr. of Final Pretrial Conference at 236, Roberts v. Ferman, No. 09-4895 (February 21, 2012).
At the final pre-trial hearing held the morning before voir dire, Judge Savage re-raised this issue and entertained the parties’ arguments. Ultimately, after considering the supplemental briefing, both sides’ oral arguments, and the magistrate judge‘s opinion, Judge Savage granted summary judgment in favor of Defendants on both counts II and III, reversing the earlier denial by the magistrate judge. The case proceeded to trial on the remaining claims. Six days later, the jury rendered a verdict in favor of Defendants on all counts.
Roberts then filed a timely motion for a new trial or in the alternative for judgment notwithstanding the verdict. In this motion, Roberts made several general allegations of error, focusing primarily on the conduct of the trial judge. For example, Roberts claimed that “[t]he Judge was not clear, consistent and/or fair when making rulings. The Judge‘s conduct towards the Plaintiff showed contempt for the Plaintiff and disfavor toward Plaintiff‘s counsel.” Pl.‘s Post Trial Mot. for New Trial 3, ECF No. 228. In addition, because Roberts again raised allegations of bias—this time by Judge Savage—the case was reassigned to Judge Quiñones. It was then also dis-
Upon learning that the trial record was incomplete, Judge Quiñones granted Roberts’ motion for extraordinary relief and ordered the court reporting company to produce the transcript for this case. Even this order, however, ultimately failed to secure the transcripts. Several months later, and after several more unsuccessful attempts to obtain the trial transcripts, Judge Quiñones denied Roberts’ second, nearly identical, motion for extraordinary relief that again sought to force the court reporting company to turn over the transcript. In a footnote, Judge Quiñones concluded that granting another such motion would be futile, as the court had made numerous failed attempts to obtain the complete trial transcript.
Judge Quiñones instead ordered the parties to recreate the record in compliance with
II.
Before addressing the substance of Roberts’ arguments, we must address an argument raised by Defendants. They note that Roberts failed to include even the available portions of the trial and pre-trial transcripts in the record on appeal. This, Defendants argue, demonstrates a “remarkable lack of diligence” by Roberts and suggests that under Lehman Brothers Holdings, Inc. v. Gateway Funding Diversified Mortgage Services, L.P., 785 F.3d 96 (3d Cir. 2015), Roberts has forfeited his claims by failing to abide by
In Lehman Brothers, appellant Gateway Funding argued that the district court had erred by concluding that it waived an argument in a telephonic oral argument before the court. Gateway Funding then claimed that no record of this proceeding existed, a statement which turned out to be false. We went on to hold that Gateway‘s argument regarding the allegedly erroneous finding of waiver had been for-
We begin by noting that in Lehman Brothers we did not cavalierly hold that any failure to comply with Rule 10(b) would result in forfeiture. Instead, we carefully considered a host of factors, including “whether the defaulting party‘s action is willful or merely inadvertent, whether a lesser sanction can bring about compliance and the degree of prejudice the opposing party has suffered because of the default.” Id. at 101. In so doing, we noted first that Gateway specifically argued on appeal that no record existed of the district court‘s telephonic oral argument. This contention was proven wrong. We thus expressed our concern that Gateway‘s failure to provide a transcript of the telephonic oral argument, a clear violation of Rule 10(b), “at best shows a remarkable lack of diligence and at worst indicates an intent to deceive this Court.” Id. We were also unimpressed by Gateway‘s “weak post hoc justification” for its failure to comply with Rule 10(b). Id. We next took pains to emphasize throughout that this sanction was “not favored,” “unusual,” and “should be sparingly used.” Id. (internal citations and quotation marks omitted). Finally, we explained that even if we considered Gateway‘s argument on the merits, we were unlikely to overturn the district court‘s ruling both because we were reviewing for abuse of discretion and because the transcript did not support Gateway‘s contentions. Id. at 101 n. 2.
The takeaway, then, from Lehman Brothers should be clear: Gateway made an affirmative and serious misstatement in its brief before this Court when it stated that no record of the telephonic oral argument existed. This, we concluded, evinced either an intent to deceive the Court or a “remarkable lack of diligence.” Id. at 101. Even so, that alone was insufficient to warrant forfeiture, because we went on to consider Gateway‘s post hoc explanation for its failure. Only upon finding Gateway‘s explanation lacking did we conclude that forfeiture was an appropriate sanction.
We are not confronted with such a situation here. There is no allegation that Roberts misrepresented the existence or nonexistence of the trial transcript or that the explanation for his omission was a disingenuous post hoc rationalization. Thus, the argument that Roberts showed a “remarkable lack of diligence” here, just as Gateway did in Lehman Brothers, is misplaced. Roberts was derelict in preparing the record for appeal—he certainly should have included the parts of the trial and pre-trial transcripts that were a part of the record—but this failure is simply not comparable to the serious concerns we raised in Lehman Brothers. We therefore conclude that Roberts’ failure to comply with Rule 10(b) does not warrant forfeiture of his claims on appeal.
III.
We next address whether it was an abuse of discretion for the District Court to dismiss Roberts’ post-trial motion because it concluded that he failed to prosecute his case. As we have held on multiple occasions, dismissal for failure to prosecute “must be a sanction of last, not first, resort.” Knoll v. City of Allentown, 707 F.3d 406, 411 (3d Cir. 2013). That being said, we are also well aware that “[t]he power to dismiss for failure to prosecute... rests in
Turning to the facts of this case, the District Court on September 29, 2014, ordered the parties to recreate a trial record according to
Nine months after being ordered to comply with Rule 10(c), Roberts had not submitted a proposed statement to Defendants. Indeed, Roberts’ only response when he was ordered to explain his failure to comply with Rule 10(c) was that “it was agreed by counsel for the Parties... that neither side would agree [to] the other‘s recreation of the trial events, so the effort [to comply with Rule 10(c)] would be futile.” Pl.‘s Opp‘n Resp. to Def.‘s Notice to Dismiss 4, ECF No. 264. Defendants vigorously contest this alleged “agreement.” Roberts then goes on to assert that there is “no such court rule” that allowed the District Court to order the parties to attempt to recreate the record, and further suggests that Judge Quiñones was biased7 against him because “the defendants were also ordered to present a recreated record and they also did not present a recreated record, yet nothing is said of this by the district court.” Appellant‘s Br. 16 n.1.
Roberts’ counsel should take the time to read Rule 10(c). He would then discover “such [a] court rule.” Indeed, it both provides a specific mechanism by which the parties can have their dispute over the contents of the trial court record resolved, and clearly places the responsibility for initially creating the record on the appellant. As a Federal Rule of Appellate Procedure, Rule 10(c) is typically invoked for creating a record for meaningful review on appeal, but district courts have used Rule 10(c) as a guide when, as here, the district court itself needs a reconstructed record in order to rule on the dispute before it. E.g.,
This brings us to the heart of the dispute: whether the District Court abused its discretion in dismissing Roberts’ post-trial motion for failure to prosecute, which was a direct result of his failure to comply with the District Court‘s directive to file a reconstructed record per the process outlined in Rule 10(c). Roberts’ blatant refusal to comply with the District Court‘s September 29, 2014, Order amounts to a willful refusal to move his own post-trial motion forward, which, per Spain and Guyer, places the District Court‘s decision to dismiss for failure to prosecute well within its discretion. We will thus affirm the District Court on that basis.8
IV.
Because we conclude the District Court did not err in dismissing Roberts’ post-trial motion on account of his failing to even attempt to comply with the District Court‘s directive to provide a recreated trial transcript, we need not determine whether a new trial is actually warranted. Even if we were to entertain that question, however, Roberts’ failure to recreate the record pursuant to Rule 10(c) would also foreclose review of the merits of his appeal by our Court.
Courts of appeals have consistently held that when an appellant chooses not to avail him or herself of the procedure available in Rule 10(c) for recreating the trial record, he or she cannot then claim on appeal that the loss of the trial records, without more, necessitates a new trial. This is so primarily because the appellant is responsible for ensuring that the record is sufficiently complete on appeal. Thus, in asking us to grant him a new trial, Roberts must have at least attempted to recreate the record in compliance with Rule 10(c)—an effort he has failed to undertake in the slightest. See, e.g., United States v. Sierra, 981 F.2d 123, 127 (3d Cir. 1992) (“[Appellants] could have sought to reconstruct the record in that respect by conference with trial counsel for submission to the district court. In the absence of that minimal effort ... we see no reason to direct a remand for the purpose of reconstruction of the unrecorded portions of the record.“); United States v. Kelly, 535 F.3d 1229, 1243 (10th Cir. 2008) (“Furthermore, even if Mr. Kelly were able to articulate an adequate claim of prejudice from the purported omissions in the record, that claim would be significantly undermined (if not defeated) by Mr. Kelly‘s failure to avail himself of established procedures—specifically, the procedures of
This, however, is not to say that when a party‘s attempted compliance with Rule 10(c) yields an insufficient record, post-trial or appellate review is limited to that insufficient record. As we have noted before, a recreated trial record “can be satisfactory” because “often, the reconstructed record will enable the appellate court effectively to review the relevant issues.” United States v. Sussman, 709 F.3d 155, 171 (3d Cir. 2013) (quoting Sierra, 981 F.2d at 126). But in Sussman, we specifically left the door open for an appellant to argue that the recreated record was insufficient to provide meaningful review. We explained that, after recreating the record according to Rule 10(c), in order “[t]o qualify for a new trial, ... Sussman must make ‘a specific showing of prejudice’ from the absence of the transcripts.” Id. at 170 (quoting Sierra, 981 F.2d at 125 (“[T]he mere absence of the sidebar transcripts does not signify prejudice.“)); see also United States v. Renton, 700 F.2d 154, 157 (5th Cir. 1983) (“[A]ppellant must show that failure to record and preserve the specific portion of the trial proceedings visits a hardship upon him and prejudices his appeal.“). Without any recreated trial record, however, we cannot even begin to assess whether the requisite prejudice existed here to warrant granting Roberts a new trial.
We are thus satisfied that our holding in this case leaves open avenues for appellants to seek appropriate relief if they can show that they were prejudiced by the loss of part or all of the record below. Such an appellant must comply with the dictates of Rule 10(c) and then present specific reasons why his or her attempt to recreate the record was insufficient. This would allow us on appeal (or the district court when considering a post-trial motion) to properly assess whether we could in fact grant meaningful review of the appellant‘s claims without the actual trial transcript available to us. See, e.g., Bergerco, U.S.A. v. Shipping Corp. of India, Ltd., 896 F.2d 1210, 1215 (9th Cir. 1990) (holding that
V.
We next turn to the second issue Roberts raises on appeal: whether Judge Savage erred in granting summary judgment in favor of Defendants on counts II and III.9 Roberts raises two claims of error, neither of which has merit. First, Roberts claims that it was error for Judge Savage to “reconsider” both counts because the magistrate judge had already entertained a summary judgment motion and denied summary judgment on the same counts. This argument fails for multiple reasons, not the least of which is that Roberts sought to revoke his consent to have the case heard by the magistrate judge on October 6, 2011, and his request was granted on January 4, 2012. Thus, allegations that Judge Savage overstepped his authority are baseless.
In addition, the bald claim that once a motion for summary judgment has been ruled on, the District Court loses the “statutory authority” to later grant summary judgment is simply erroneous. Appellant‘s Br. 27. As we have consistently held, when “(1) new evidence is available; (2) a supervening new law has been announced; or (3) the earlier decision was clearly erroneous and would create manifest injustice,” the law of the case doctrine does not apply and the court is free to reconsider an earlier denial of summary judgment. Pub. Interest Research Grp. of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 117 (3d Cir. 1997). We also have held that “the law of the case doctrine does not limit the power of trial judges to reconsider their prior decisions,” but have noted that when a court does so, it must explain on the record why it is doing so and “take appropriate steps so that the parties are not prejudiced by reliance on the prior ruling.” Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997); see also Krueger Assocs., Inc. v. Am. Dist. Tel. Co. of Pa., 247 F.3d 61, 65 (3d Cir. 2001) (“Under the law of the case doctrine the district court‘s denial of ADT‘s initial summary judgment motion did not create any bar to the court‘s later reconsideration of the renewed motion.“); Preaseau v. Prudential Ins. Co. of Am., 591 F.2d 74, 79-80 (9th Cir. 1979) (“This practice reflects the rule that an order denying a motion for summary judgment is generally interlocutory and subject to reconsideration by the court at any time.” (internal citations omitted)).
In this case, we conclude that Judge Savage did not err in reconsidering the magistrate judge‘s prior denial of summary judgment. Not only were the magistrate judge‘s prior rulings in this case likely void,10 but the record also makes it
Finally, we also reject Roberts’ claim that Judge Savage could not “sua sponte” grant summary judgment since there was no motion filed by Defendants. As we have held, “authority has developed to allow a court to grant summary judgment to a non-moving party” so long as the court gives “notice that [it] is considering a sua sponte summary judgment motion” and “provide[s] the party with an opportunity to present relevant evidence in opposition to that motion.” Chambers Dev. Co. v. Passaic Cty. Utils. Auth., 62 F.3d 582, 584 n. 5 (3d Cir. 1995); see also DL Res., Inc. v. FirstEnergy Sols. Corp., 506 F.3d 209, 223 (3d Cir. 2007) (“District courts may grant summary judgment sua sponte in appropriate circumstances.“). Here, both of the above requirements were met prior to the grant of summary judgment.
VI.
For the reasons discussed above, we will affirm Judge Quiñones’ order denying Roberts’ post-trial motion.