Jones v. Jackson Nat. Life Ins. Co.

• Decision Date: 28 April 1993
• Docket Number: No. 1:92-CV-135.,1:92-CV-135.
• Citation: 819 F. Supp. 1385
• Parties: Ellen C. JONES, Executrix of the Estate of Dennis M. Jones, Plaintiff, v. JACKSON NATIONAL LIFE INSURANCE COMPANY, Defendant and Third-Party Plaintiff, v. Terry L. LOTHAMER, d/b/a Insurance and Risk Management, Third-Party Defendant.
• Court: U.S. District Court — Western District of Michigan

819 F. Supp. 1385

Ellen C. JONES, Executrix of the Estate of Dennis M. Jones, Plaintiff, v. JACKSON NATIONAL LIFE INSURANCE COMPANY, Defendant and Third-Party Plaintiff, v. Terry L. LOTHAMER, d/b/a Insurance and Risk Management, Third-Party Defendant.

No. 1:92-CV-135.

United States District Court, W.D. Michigan, Southern Division.

April 28, 1993.

Henry L. Guikema, Grand Rapids, MI, for plaintiff.

David H. Oermann, Detroit, MI, for defendant.

William S. Farr, Grand Rapids, MI, for third-party defendant.

ORDER TAXING COSTS AND DENYING MOTION TO SUPPLEMENT RECORD ON APPEAL

McKEAGUE, District Judge.

On March 19, 1993, the Court awarded summary judgment to plaintiff Ellen C. Jones on her breach of contract claim against defendant Jackson National Life Insurance Company. The Court also awarded summary judgment to third-party defendant Terry L. Lothamer on Jackson National's tort claims against him.

On April 23, 1993, the Court issued a post-judgment order awarding plaintiff costs and interest. The Court neglected to address the matter of third-party defendant Lothamer's taxed bill of costs at that time. Doing so now, the Court finds that no objection to the taxed bill of costs has been filed and that the claimed expenses are reasonable and necessary to the litigation. Accordingly, such costs, in the amount of $1,184.53, are hereby TAXED to third-party plaintiff Jackson National pursuant to Fed.R.Civ.P. 54(d) and 28 U.S.C. § 1920.

Also before the Court is Jackson National's motion to supplement the record on appeal. Jackson National asks the Court to augment the record made in this Court by authorizing inclusion of (1) the transcript of the March 1, 1993, hearing on the parties' cross-motions for summary judgment, and (2) the complete transcripts of seven depositions from which excerpts only were previously filed. Plaintiff has no objection to the motion; third-party defendant Lothamer's position is unknown to the Court.

The 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." Fed.R.App.P. 10(a). Under this definition, the transcript of the March 1, 1993, hearing should clearly be included in the record, and may be so included without express authorization of the district court. Jackson National's motion is, in this respect, GRANTED.

However, the request for leave to include portions of deposition transcripts not formerly filed and which played no role in the adjudication of the claims presented must be denied. Jackson National's motion with respect to these materials is in effect a motion to correct or modify the record under Fed.R.App.P. 10(e):

Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the district court, the difference shall be submitted to and settled by that court and the record made to conform to the truth.

If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the district court, either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals.

Under Rule 10(e), this Court may modify the record only (1) if the parties disagree as to whether the record truly discloses what occurred, or (2) if anything material is omitted from the record by error or accident or is misstated. All other questions concerning the form and content of the record must be presented to the Court of Appeals. Fassett v. Delta Kappa Epsilon (New York), 807 F.2d 1150, 1165 (3rd Cir.1986), cert. denied 481 U.S. 1070, 107 S.Ct. 2463, 95...