114 F3d 1194 Lake's Unlimited Inc v. Allen 1-10

114 F.3d 1194

LAKE'S UNLIMITED, INC., a Minnesota Corporation, Lake's
Minnesota Macaws, Inc., a Minnesota Corporation,
and Cheryl J. Lake, individually,
Plaintiffs/Appellants
v.
Gloria Mae ALLEN, d/b/a Allen's Aviaries, and Does 1-10,
Defendants/Appellees.

No. 96-15149.

United States Court of Appeals, Ninth Circuit.

May 15, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.


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1

Before: O'SCANNLAIN and NOONAN, Circuit Judges, and RHOADES,1 District Judge.

ORDER

2

Defendants/Appellees Gloria Mae Allen, dba Allen's Aviaries (hereinafter "Allen") have filed a motion to strike improper portions of record and brief. Allen complains that Plaintiffs/Appellants Lake's Unlimited, Lake's Minnesota Macaws, and Cheryl Lake (collectively, "Lake's") filed an opening brief that extensively cites to Allen's deposition testimony, the bulk of which allegedly was not included in the record when the trial court granted Allen's motion for summary judgment.

3

Because of Lake's alleged failure to comply with appellate rules, Allen asks the Court to strike and disregard Lake's entire opening brief, as well as those excerpts of the record that were not before the trial court. Alternatively, Allen asks the Court to strike those specific pages and citations that were not part of the record before the trial court. Allen also has filed a motion to file a supplemental brief; the supplemental brief complains that portions in Lake's reply brief allude to the deposition testimony in question. Finally, Allen asks the Court to strike ER 81, ER 82, and ER 83, which Lake's concedes were not filed with the trial court.

LEGAL STANDARD

4

Under Fed.R.App.P. 10(a), "[t]he record on appeal consists of the original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court." Papers and evidence that were neither filed with the district court nor otherwise considered by the district court cannot be part of the record on appeal. Kirshner v. Uniden Corp. of America, 842 F.2d 1074 (9th Cir.1988).

DISCUSSION

5

Lake's correctly notes that on November 14, 1995, the transcript of Allen's entire deposition testimony was filed in conjunction with Lake's "motion to compel production of documents and to amend the complaint to allege punitive damages" (hereinafter "motion to compel"). See motion to compel exhibit N, docket nos. 55-56. The trial court did not issue an Order granting Allen's motion for summary judgment until December 21, 1995. See docket no. 61. Because the entire transcript of Allen's deposition had been filed with the trial court prior to December 21, 1995, the deposition transcript was part of the record before the trial court on summary judgment.

6

It is true that Allen claimed that the deposition transcript was improperly authenticated and objected to its inclusion. In its Order granting Allen's motion for summary judgment, however, the trial court responded as follows:

7

Allen objects to portions of Lake's evidence on the basis that it violates federal and local rules. While Allen is correct that Lake's submission of evidence violates Fed.R.Evid. 901, Fed.R.Civ.P. 56(e), and Civil L.R. 7-5(a) because it does not authenticate, through affidavit or declaration, documents submitted to the court as evidence, the court will not sustain Allen's objection for the following reasons. First, Allen herself has relied on some of the contested depositions submitted by Lake's in support of this motion for summary judgment. Second, the deposition testimony submitted by Lake's assists the court in rendering a decision for Allen. Therefore, the court will consider Allen's opposition to Lake's evidence as waived and will analyze all documents submitted by Lake's in opposition to this motion in rendering its decision.


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8

See Order at 2:23-28.

9

The decision to admit Allen's deposition transcript may be reversed only for an abuse of discretion, and should not be reversed absent some prejudice. Monotype Corp. v. International Typefact Corp., 43 F.3d 443, 448 (9th Cir.1994). Allen provided no evidence suggesting that the deposition transcript was altered or otherwise unreliable. Indeed, Allen herself relied upon portions of the deposition transcript, which belies any suggestion that the deposition transcript was suspect.

10

It appears that Allen objected to the deposition transcript's inclusion on solely technical grounds, namely, the absence of proper authentication. We cannot say that the trial court abused its discretion in admitting Allen's deposition transcript under the circumstances. Moreover, because the trial court held that Lake's failed to provide evidence of malice and granted Allen's motion for summary judgment, any evidentiary error in admitting the deposition transcript would have been harmless.

CONCLUSION

11

For the reasons stated above, Allen's motion to strike is denied with regard to Allen's deposition transcript. Allen's motion to strike is granted with respect to ER 81, ER 82, and ER 83. Allen's motion to file a supplemental brief is granted.

1

The Honorable John S. Rhoades, Senior United States District Judge for the Southern District of California, sitting by designation