Zwerin v. 533 Short North LLC

15 F. Supp. 3d 769, 88 Fed. R. Serv. 3d 821, 2014 WL 1666445, 2014 U.S. Dist. LEXIS 60694
CourtDistrict Court, S.D. Ohio
DecidedApril 25, 2014
DocketCase No. 2:10-cv-488
StatusPublished
Cited by1 cases

This text of 15 F. Supp. 3d 769 (Zwerin v. 533 Short North LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zwerin v. 533 Short North LLC, 15 F. Supp. 3d 769, 88 Fed. R. Serv. 3d 821, 2014 WL 1666445, 2014 U.S. Dist. LEXIS 60694 (S.D. Ohio 2014).

Opinion

OPINION AND ORDER

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 DENIES the defendants’ motion.

I.

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 Settle- ■ ment 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 [771]*771submitted the Settlement Agreement to the Court for consideration.

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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 appeal-able.” (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 plaintiffs Motion to Enforce the Settlement Agreement and for Sanctions (ECF No. 106). The Sixth Circuit found that this Court’s decision granting the plaintiffs 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 SupplemenVModify 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.

II.

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.)

[772]*772“Normally, the record on appeal consists of ‘the original papers and exhibits filed in the district court,’ ‘the transcript of proceedings, if an/ and ‘a certified copy of the docket entries prepared by the district clerk.’ ” Fed. R.App. P. 10(a). “However, ‘if anything material to either party is omitted from or misstated in the record by error or accident,’ the rule allows ‘the omission or misstatement [to] be corrected and a supplemental record [to] be certified and forwarded.’ ” Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007, 1012 (6th Cir.2003) (quoting Fed. R.App. P. 10(e)(2)). “Rule 10(e) allows correction of the record either by agreement of the parties, by order of the district court, or by order of the court of appeals.” Id.

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Bluebook (online)
15 F. Supp. 3d 769, 88 Fed. R. Serv. 3d 821, 2014 WL 1666445, 2014 U.S. Dist. LEXIS 60694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zwerin-v-533-short-north-llc-ohsd-2014.