Singh v. Home Depot, U.S.A., Inc.

12-4996
Singh v. Home Depot, U.S.A., Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the 2nd
4 day of December, two thousand thirteen.
5
6 PRESENT:
7 AMALYA L. KEARSE,
8 DENNIS JACOBS,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 Balwan Singh,
14
15 Plaintiff-Appellant,
16
17 v. 12-4996
18
19 Home Depot U.S.A., Inc.,
20
21 Defendant-Appellee.
22 _____________________________________
23
24 FOR PLAINTIFF-APPELLANT: Balwan Singh, pro se, Bellerose,
25 NY.
26
27 FOR DEFENDANT-APPELLEE: Stephen F. Willig, D’Amato & Lynch,
28 LLP, New York, NY.
29
30
31
32
33
1 Appeal from the judgment of the United States District Court
2 for the Eastern District of New York (Feuerstein, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the appeal be DISMISSED without prejudice to
5 reinstatement.
6 Appellant Balwan Singh, proceeding pro se, appeals from the
7 district court’s judgment dismissing his diversity negligence
8 claim on the defendant’s motion following a bench trial. We
9 assume the parties’ familiarity with the underlying facts, the
10 procedural history of the case, and the issues presented for
11 review.
12 Although Singh’s brief, liberally construed, challenges the
13 scheduling of the bench trial and the evidence presented at
14 trial, he has not provided us with transcripts of the proceedings
15 below. Federal Rule of Appellate Procedure 10(b) requires an
16 appellant, within 14 days after the filing of a notice of appeal,
17 to either (1) order transcripts from any proceedings that are
18 necessary to the appeal from the reporter and file such order
19 with the district court; or (2) file a certificate stating that
20 no transcript will be ordered. Here, Singh did neither.
21 Singh’s failure to provide the relevant transcripts deprives
22 us of the ability to conduct meaningful appellate review. First,
23 without the transcript of the district court’s November 2, 2012
24 scheduling conference, we have no way of knowing, among other
2
1 things, whether Singh informed the court of his then-upcoming
2 trip scheduled for November 4, 2012, a fact that is likely
3 relevant to the issue of whether the district court abused its
4 discretion in scheduling the trial for November 5, 2012. See
5 United States v. Yakobowicz, 427 F.3d 144, 149-50 (2d Cir. 2005)
6 (trial management orders reviewed for abuse of discretion).
7 Second, to the extent Singh’s brief may be construed as
8 challenging the trial evidence, his failure to provide the trial
9 transcript deprives us of the ability to assess that evidence or
10 even review the basis for the district court’s on-the-record
11 dismissal of the action.
12 Accordingly, consistent with the long-established practice
13 of this Court, we are compelled to dismiss Singh’s appeal. See
14 Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (dismissing
15 the portion of the appeal challenging post-trial findings because
16 transcripts from those proceedings were not provided); Gayle v.
17 Walker, 148 F.3d 214, 214 (2d Cir. 1998) (dismissing pro se
18 appeal without prejudice to reinstatement for failure to file
19 transcripts).
20 Singh’s appeal is therefore DISMISSED without prejudice to
21 reinstatement, provided that, within 30 days of the date of this
22 order, he provides this Court with: (1) the relevant transcripts;
23 (2) proof that he has ordered the transcripts; or (3) proof that
24 he has moved in the district court for free transcripts. Upon
3
1 timely filing of the relevant transcripts, the appeal will be
2 reinstated. Failure timely and properly to re-file this action
3 may result in its dismissal with prejudice.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
4