Landrith v. Farmers Insurance Company, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

BRET D. LANDRITH, )

)

Plaintiff, )

)

v. ) No. 4:22-cv-00401-DGK

)

FARMERS INSURANCE COMPANY, )

INC., et al., )

)

Defendants. )

ORDER DENYING PLAINTIFF’S MOTION TO SUPPLEMENT THE RECORD ON

APPEAL

Now before the Court is Plaintiff’s Pro Se Motion to Supplement the Record on Appeal.

ECF No. 58. On September 16, 2022, the Court granted Defendants’ motion to dismiss Counts

II–VIII, denied Plaintiff’s motion to certify his constitutional challenge, and remanded Plaintiff’s

remaining claim (vexatious refusal to pay in violation of Mo. Rev. Stat. § 375.420) to the Circuit

Court for Jackson County, Missouri. Order, ECF No. 54. On September 23, 2022, Plaintiff filed

his pro se notice of appeal, ECF No. 55, and this motion to supplement the record on appeal to

include two discovery documents: (1) Plaintiff’s initial request for production from Defendant

Farmers Insurance Company, Inc.; and (2) Plaintiff’s initial request for production from Defendant

Brown & James Law, PC, ECF No. 58.

Plaintiff states these documents were not included in the record pursuant to Local Rule

26.31 and claims the documents will show that he could have proven his 42 U.S.C. § 1981 claim.

1 Parties are generally not permitted to file discovery documents (such as requests for production) with the Court when

they are served. L.R. 26.3. However, this does not prevent parties from ever filing them; they can be filed in support

of discovery disputes and other motions.

Plaintiff relies on Federal Rule of Appellate Procedure Rule 10 in support. Defendants did not

respond.

Under Rule 10(e)(1), “[i]f any difference arises about whether the record truly discloses

what occurred in the district court, the difference must be submitted to and settled by that court

and the record conformed accordingly.” “The purpose of Rule 10(e)(1) is to supplement the

record, and ‘not to supply . . . [a] new record never before the District Court and never considered

by it.’” Keating v. Nebraska Pub. Power Dist., 2010 WL 2884915, at *1 (D. Neb. July 20, 2010)

(quoting United States v. First Nat’l State Bank of New Jersey, 616 F.2d 668, 671 n.4 (3d Cir.

1980)); see United States v. Gammage, 580 F.3d 777, 779 (8th Cir. 2009) (refusing to supplement

record on appeal with documents the district court did not remember or consider in its sentencing

decision); see also Rohrbough v. Wyeth Lab’ys, Inc., 916 F.2d 970, 973 n.8 (4th Cir. 1990) (district

court properly refused to supplement record on appeal with discovery documents since plaintiffs

never filed the documents with the district court or brought them to the court’s attention, and the

court, therefore, did not consider the documents when granting summary judgment).

Here, it is clear the Court never considered the discovery documents in its September 16,

2022, order. Plaintiff served the documents on Defendants just days before (on September 7 and

8, 2022) the Court issued its order and failed to bring the documents to the Court’s attention until

now. As such, this Court lacks the authority to supplement the record on appeal. See Fed. R. App.

P. 10(e)(3) (“All other questions as to the form and content of the record must be presented to the

court of appeals.”); Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 64 (8th Cir. 1993)

(Appellate courts have the authority to consider evidence outside the record when the interests of

justice so demand.). Plaintiff’s motion is, therefore, DENIED.

IT IS SO ORDERED.

Date: February 14, 2023 /s/ Greg Kays

GREG KAYS, JUDGE

UNITED STATES DISTRICT COURT