Awadh v. Farm Bureau Mutual Insurance Co.

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 2, 2017
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Elisabeth A. Shumaker
Clerk of Court
NASER AWADH; STACY AWADH,
Plaintiffs - Appellants,
v. No. 16-4151
(D.C. No. 1:13-CV-00145-DAK)
FARM BUREAU MUTUAL (D. Utah)
INSURANCE COMPANY,
Defendant - Appellee.
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ORDER AND JUDGMENT*
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Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.
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The parties dispute whether an insurance policy covered a missing skid loader.
The district court granted summary judgment to the insurance company on the
Awadhs’ claims of breach of contract and breach of the duty of good faith and fair
dealing. We summarily affirm the judgment because the Awadhs have failed to
provide the materials necessary for review.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
The Awadhs proceed with counsel. Therefore, under this court’s rules, it is
their duty to file an appendix that serves as the record on appeal. See 10th Cir. R.
10.2(B), 30.1(B)(1); see also Milligan-Hitt v. Bd. of Trs., 523 F.3d 1219, 1231
(10th Cir. 2008) (“[I]n this Circuit we leave the record on appeal in the district court
and rely primarily on an appendix that the parties are obligated to produce,
containing the relevant parts of the record.”). Appellants’ appendix must be
“sufficient for considering and deciding the issues on appeal.” 10th Cir. R.
30.1(B)(1). “If the appendix and its supplements are not sufficient to decide an issue,
we have no obligation to go further and examine documents that should have been
included, and we regularly refuse to hear claims predicated on record evidence not in
the appendix.” Milligan-Hitt, 523 F.3d at 1231.
Appellants’ appendix does not include the insurance company’s motion for
summary judgment, the Awadhs’ response, or the company’s reply. Such filings are
required to be included in a record on appeal, see 10th Cir. R. 10.3(D)(2), and
therefore in appellants’ appendix, see 10th Cir. R. 30.1(B)(1). Omitting them leaves
us unable to evaluate the arguments made before the district court. See Burnett v.
Sw. Bell Tel., L.P., 555 F.3d 906, 908 (10th Cir. 2009). While the insurance
company submitted some of the missing documents in a supplemental appendix,
which it was free to do, see 10th Cir. R. 30.2(A)(1), the supplemental appendix did
not wholly remedy the deficiencies in appellants’ appendix.
Of the documents that are included in appellants’ appendix, many appear to be
exhibits. These documents, however, are not presented in any identifying way.
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Contrary to 10th Cir. R. 30.1(D)(2), they do not show the district court’s electronic
stamp, and it is unclear how or when they were presented to the district court.
Further, it appears that not all exhibits were included. “[W]e are not inclined to
consider reversing the district court based upon the parties’ tacit assurances that we
have before us all of the relevant matter . . . .” Burnett, 555 F.3d at 910.
“[A]n appellant who provides an inadequate record does so at his peril.” Id. at
908 (internal quotation marks omitted). Although “we could access fairly readily the
motions, responses, and replies discussed above on the district court’s electronic
filings system or otherwise, should we choose to do so,” id. at 909, we are not
required to remedy counsel’s omissions, see id. at 910; Milligan-Hitt, 523 F.3d at
1231; 10th Cir. R. 30.1(B)(3). The appendix before us is so inadequate that we will
not overlook or remedy its deficiencies. See Rios v. Bigler, 67 F.3d 1543, 1553
(10th Cir. 1995) (“It is not this court’s burden to hunt down the pertinent materials.
Rather, it is Plaintiff’s responsibility as the appellant to provide us with a proper
record on appeal.”). As a result, we summarily affirm the district court’s judgment.
See Burnett, 555 F.3d at 910.
The decision of the district court is affirmed.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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