United States District Court, W.D. Kentucky, Louisville
C. WILLIAM HELM, PLAINTIFF
ALLISON RATTERMAN et al., DEFENDANTS
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge United States District Court.
matter comes before the Court on Plaintiff Dr. William
Helm's Motion to Supplement the Record on Appeal, [R.
33]. Defendants Dr. Allison Ratterman, Angela Koshewa, Dr.
Pamela Feldhoff, and Dr. Eleanor Lederer (hereinafter
"the Defendants") responded, [R. 34], and Helm
replied, [R. 36]. Fully briefed, this matter is now ripe for
adjudication. For the reasons stated herein, Helm's
Motion to Supplement, [R. 33], is DENIED.
28, 2017, this Court dismissed Helm's § 1983 claims
contained in counts one and two of his Complaint, [R. 18]. On
October 17, 2017, this Court granted Defendants' Motion
to Dismiss Helm's Amended Complaint, [R. 20], which
contained claims for fraud by omission, interference, and
breach of fiduciary duty. [R. 30 (Order and Judgment).] On
November 15, 2017, Helm filed a Notice of Appeal alerting
this Court that he appealed this Court's ruling to the
United States Court of Appeals for the Sixth Circuit. [R.
31.] On December 21, 2017, Helm filed the present motion
before the Court, [R. 33].
initial matter, the Court finds that it does not have
jurisdiction to supplement the record with the evidence
proposed by Helm. "It is established that 'the
filing of a notice of appeal divests the district court of
jurisdiction and transfers jurisdiction to the court of
appeals, ' but that the 'district court retains
jurisdiction to proceed with matters that are in aid of the
appeal.'" Inland Bulk Transfer Co. v. Cummins
Engine Co., 332 F.3d 1007, 1013 (6th Cir. 2003) (quoting
Cochran v. Birkel, 651 F.2d 1219, 1221 (6th
Cir.1981), cert, denied, 454 U.S. 1152 (1982)). Helm
has not argued that supplementing the record would aid in the
appeal to the Sixth Circuit, therefore, this Court does not
have jurisdiction to supplement the record. See
Cincinnati Ins. Co. v. Crossman Communities, Inc., No.
05-470-KSF, 2008 WL 11344798 at *1 (Nov. 26, 2008 E.D. Ky.)
("This court finds that it does not have jurisdiction to
supplement the record with the requested evidence because
this matter has been appealed to the Sixth Circuit and Beazer
has not shown that supplementing the record would aid in the
the Court had jurisdiction, the Court is unconvinced by
Helm's motion for the Court to "exercise its
inherent and equitable power to supplement the record on
appeal if the interests of justice so require, when the
material would establish beyond doubt the proper disposition
of the appeal." [R. 33 at 1 (Motion to Supplement).] In
support of this motion, Helm cites to the Sixth Circuit case
of Thompson v. Bell [Id.] Helm provides no
further argument as to why the eight listed documents should
be included in the record on appeal in this matter. In
response, the Defendants argue that Thompson does
not apply to these circumstances. [See R. 34 at 2-3
(Defendants' Response to Motion to Supplement).]
Thompson, Gregory Thompson sought federal habeus
corpus relief from a state court murder conviction. 373 F.3d
at 689-91. After initially granting summary judgment to the
government, the Sixth Circuit decided to use its
"inherent equitable powers to expand the record on
appeal" in order to consider a doctor's deposition.
Id. at 690. The Sixth Circuit allowed consideration
of the deposition for four reasons: (1) the evidence was
negligently omitted, (2) the evidence was "so probative
of Thompson's mental state at the time of the crime,
" (3) there would be no surprise to the government, and
(4) it was a capital case. Id. at 691.
Defendants accurately point to issues with Helm's use of
Thompson in support of his motion. First, the Sixth
Circuit only recognizes the "inherent equitable powers
to expand the record on appeal" as belonging to
appellate courts. See Id. at 690-91 ("[W]e
recognize that a number of our sister circuits have held that
the courts of appeals have the inherent equitable
power to supplement the record on appeal, where the interests
of justice require.") (emphasis added); see also
Cincinnati Ins. Co., No. 05-470-KSF, 2008 WL 11344798 at
*2 ("Thus, to the extent such power exists, it is to be
exercised not by this court, but by the court of
appeals."). The Sixth Circuit never mentions the ability
of a district court to utilize this power. Secondly, the
circumstances in Thompson were exceedingly different
from the case at hand. In contrast to Thompson, Helm
never argues that these documents were "negligently
omitted, " he provides no explanation as to why these
documents are material, there could be surprise to opposing
counsel as to the contents of these documents, and this is
not a capital case.
Court is concerned that the Court of Appeals recently issued
an order "to hold briefing in abeyance . . . pending the
district court's review of the motion to
supplement." [R. 37.] None of the proposed documents
that Helm wishes to supplement into the record were before
the district court when it made its decision.
10(e) of the Federal Rules of Appellate Procedure provides:
(e) Correction or Modification of the Record.
(1) If 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
(2) If anything material to either party is omitted from or
misstated in the record by error or accident, the omission or
misstatement may be corrected and a supplemental ...