Richard Wallace v. Bashas' Inc. Group Disability

FILED
NOT FOR PUBLICATION APR 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICHARD WALLACE, No. 10-15385
Plaintiff - Appellant, D.C. No. 2:07-cv-02559-JAT
v.
MEMORANDUM *
BASHAS’ INC. GROUP DISABILITY
PLAN,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted April 12, 2011 **
San Francisco, California
Before: FERNANDEZ and RAWLINSON, Circuit Judges, and WELLS, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lesley Wells, Senior District Judge for the United
States District Court, Northern District of Ohio, sitting by designation.
Richard Wallace appeals the district court’s grant of summary judgment to
his former employer, Bashas’ Inc., in an Employee Retirement Income Security
Act (ERISA) action for disability benefits.
Although we are generally tolerant of minor breaches of the procedural rules
governing appellate practice, we have on occasion stricken briefs and dismissed an
appeal for a party’s abject failure to adhere to the procedural requirements. See
N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997) (listing
cases).
Ninth Cir. R. 30-1.1 provides: “In the Ninth Circuit the appendix prescribed
by FRAP 30 is not required. Instead, Circuit Rule 30-1 requires the parties to
prepare excerpts of record. The purpose of the excerpts of record is to provide
each member of the panel with those portions of the record necessary to reach a
decision. The parties should ensure that in accordance with the limitations of
Circuit Rule 30-1, those parts of the record necessary to permit an informed
analysis of their positions are included in the excerpts.”
Appellant has submitted hundreds of pages of unpaginated medical records
in violation of our rules requiring consecutive pagination or tabs with pages within
the tabs consecutively paginated. See Ninth Cir. R. 30-1.6(a). Although the
Excerpt of Record is separated by tabs, the pages within each tab are not
2
consecutively paginated. See id. The table of contents does not describe the
relevant documents within the record or how specific documents can be located.
See id. The result is that the panel members are unable to communicate
meaningfully regarding the facts and issues underlying this appeal. A reference to
a particular Excerpts of Record number is absolutely meaningless because the
record is not compiled in any organized way.
We have tried to correlate the briefing to the record, but after countless
hours and numerous efforts, we have determined that Appellant’s failure to adhere
to the procedural rules prevents a meaningful review of this case. As in N/S Corp.,
we conclude that “appellant has approached our rules with such insouciance that
we cannot overlook its heedlessness.” Id.1
APPEAL DISMISSED.
1
We note that to the extent we were able to decipher the record, it appears
that Appellant’s claim lacks merit.
3