Kelly v. The City of Mount Vernon
- Philip Halpern
- 7:19-cv-11369
- U.S. District Court · Southern District of New York
- 4
In Kelly v. The City of Mount Vernon, Judge Halpern approved a reconstructed record of an unrecorded conference for Kelly’s appeal.
Robert Kelly, Defendant Richard Thomas, the City of Mount Vernon, and the City of Mount Vernon Urban Renewal Agency; the order also directed the clerk regarding Kelly’s appellate record.
What happened
In Kelly v. The City of Mount Vernon, Robert Kelly asked the court to approve his account of a November 2, 2020 telephone conference because the conference recording could not be found. Defendant Richard Thomas objected and submitted his own account; the City of Mount Vernon and the City of Mount Vernon Urban Renewal Agency took no position.
The conference concerned Kelly’s request to amend his complaint and Thomas’s request to seek judgment based on the pleadings. The court reconstructed what happened using Kelly’s statement, Thomas’s objections and proposed changes, and the court’s own recollection. The reconstruction included discussions about withdrawing an emotional-distress claim and an equal-protection theory, a briefing schedule, settlement, and extending discovery through December 31, 2020.
Judge Halpern approved the court’s reconstruction as the official statement of the November 2 proceedings and directed the clerk to include it in Kelly’s appellate record. The court did not decide the underlying claims or the pending requests to amend the complaint or seek judgment on the pleadings.
The detailed version
- Kelly v. The City of Mount Vernon · No. 7:19-cv-11369
- Philip Halpern
- June 22, 2021
Background
Robert Kelly asked the Court to settle and approve his statement of the proceedings under Federal Rule of Appellate Procedure 10(c). That rule allows an appellant to prepare a statement of what happened at a hearing or trial when a transcript is unavailable, using the best available information. The request concerned a November 2, 2020 telephone conference about Kelly’s proposed amended complaint and Defendant Richard Thomas’s request for permission to file a motion for judgment on the pleadings under Rule 12(c). The City of Mount Vernon and the City of Mount Vernon Urban Renewal Agency did not oppose or support either submission.
The Court could not locate the recording of the conference. It questioned whether the pre-motion conference qualified as a “hearing or trial” under Rule 10(c) and noted that its Minute Entry appeared to adequately describe what occurred. Nevertheless, to eliminate uncertainty and at the parties’ request, the Court considered Kelly’s statement, Thomas’s objections and proposed amendments, and the Court’s own recollection.
Reconstructed proceedings
The Court stated that counsel for all parties and Kelly, who appeared without a lawyer, participated by telephone. Kelly said he intended to withdraw his claim for intentional infliction of emotional distress and remove one theory of his equal-protection claim, which he described as a class-of-one theory. Thomas’s counsel argued that an amendment was unnecessary if Kelly was only withdrawing those matters and adding legal authorities, because those changes could be handled by stipulation or court order. The Court said legal authorities should not be included in the complaint and directed the attorneys to prepare an order and stipulation for Kelly’s review.
The City Defendants stated that they had a motion to dismiss pending and were discussing settlement with Kelly. Regarding Thomas’s proposed Rule 12(c) motion, the Court set deadlines for briefing and said it believed it could address that motion and the City Defendants’ motion to dismiss together. The Court also encouraged timely completion of discovery, extended discovery through December 31, 2020, and did not extend it further.
Ruling
The Court ordered that its reconstruction be “settled and approved” as the statement of the proceedings held on November 2, 2020. It directed the clerk to include the approved reconstruction in the appellate record for Kelly’s appeal. This order addressed the reconstruction of the unavailable record; it did not rule on the merits of Kelly’s claims or decide the proposed amendment, the City Defendants’ motion to dismiss, or Thomas’s proposed Rule 12(c) motion.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.