Ninth Circuit Rules
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Ninth Circuit Rules |
Table of Contents |
FRAP 11
FORWARDING THE RECORD
(a) Appellant's Duty. An appellant filing a notice of appeal must comply with Rule 10(b) and must do whatever else is necessary to enable the clerk to assemble and forward the record. If there are multiple appeals from a judgment or order, the clerk must forward a single record.
(b) Duties of Reporter and District Clerk.
(1) Reporter's Duty to Prepare and File a Transcript. The reporter must prepare and file a transcript as follows:
(A) Upon receiving an order for a transcript, the reporter must enter at the foot of the order the date of its receipt and the expected completion date and send a copy, so endorsed, to the circuit clerk.
(B) If the transcript cannot be completed within 30 days of the reporter's receipt of the order, the reporter may request the circuit clerk to grant additional time to complete it. The clerk must note on the docket the action taken and notify the parties.
(C) When a transcript is complete, the reporter must file it with the district clerk and notify the circuit clerk of the filing.
(D) If the reporter fails to file the transcript on time, the circuit clerk must notify the district judge and do whatever else the court of appeals directs.
(2) District Clerk's Duty to Forward. When the record is complete, the district clerk must number the documents constituting the record and send them promptly to the circuit clerk together with a list of the documents correspondingly numbered and reasonably identified. Unless directed to do so by a party or the circuit clerk, the district clerk will not send to the court of appeals documents of unusual bulk or weight, physical exhibits other than documents, or other parts of the record designated for omission by local rule of the court of appeals. If the exhibits are unusually bulky or heavy, a party must arrange with the clerks in advance for their transportation and receipt.
(c) Retaining the Record Temporarily in the District Court for Use in Preparing the Appeal. The parties may stipulate, or the district court on motion may order, that the district clerk retain the record temporarily for the parties to use in preparing the papers on appeal. In that event the district clerk must certify to the circuit clerk that the record on appeal is complete. Upon receipt of the appellee's brief, or earlier if the court orders or the parties agree, the appellant must request the district clerk to forward the record.
(d) [Abrogated.]
(e) Retaining the Record by Court Order.
(1) The court of appeals may, by order or local rule, provide that a certified copy of the docket entries be forwarded instead of the entire record. But a party may at any time during the appeal request that designated parts of the record be forwarded.
(2) The district court may order the record or some part of it retained if the court needs it while the appeal is pending, subject, however, to call by the court of appeals.
(3) If part or all of the record is ordered retained, the district clerk must send to the court of appeals a copy of the order and the docket entries together with the parts of the original record allowed by the district court and copies of any parts of the record designated by the parties.
(f) Retaining Parts of the Record in the District Court by Stipulation of the Parties. The parties may agree by written stipulation filed in the district court that designated parts of the record be retained in the district court subject to call by the court of appeals or request by a party. The parts of the record so designated remain a part of the record on appeal.
(g) Record for a Preliminary Motion in the Court of Appeals. If, before the record is forwarded, a party makes any of the following motions in the court of appeals:
o for dismissal;
o for release;
o for a stay pending appeal;
o for additional security on the bond on appeal or on a supersedeas bond; or
o for any other intermediate order -
the district clerk must send the court of appeals any parts of the record designated by any party.
FILING THE REPORTER'S TRANSCRIPT
11-1.1 Time for Filing the Reporter's Transcript
The reporter's transcript shall be filed in the district court within 30 days from the date the Transcript Designation/Ordering Form is filed with the district court, pursuant to the provisions of FRAP 11(b) and in accordance with the scheduling orders issued by the court for all appeals. Upon motion by a reporter, the Clerk of the Court of Appeals or a designated deputy clerk may grant a reasonable extension of time to file the transcript. The grant of an extension of time does not waive the mandatory fee reduction for the late delivery of transcripts unless such waiver is stated in the order.
11-1.2 Procedure for Reporter Defaults
In the event the reporter fails to prepare the transcripts in accordance with the scheduling order issued by the court or within an extension of time granted by this court, appellant shall notify this court of the need to modify the briefing schedule. Such notice shall be filed within 14 days after the due date for filing of the transcripts. The notice shall indicate when the transcripts were designated, when financial arrangements were made or the voucher was approved, the dates of hearings for which transcripts have not been prepared and the name of the reporter assigned to those hearings. (rev. 1/93)
CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 11-1.2
The filing of a motion for an extension of time by a reporter relieves appellant of the requirement to file the notification described in Rule 11-1.2 as to that reporter. (rev. 7/94)
11-1.3 Form and Content of the Reporter's Transcript
The transcript shall be bound by the reporter in a volume or volumes with pages uniformly and consecutively numbered throughout all volumes. It shall include an index with the names of witnesses, the direct, cross, redirect and other examinations, and exhibit numbers, when offered and received or rejected, as well as instructions and colloquy on instructions. The index shall refer to the number of the volume and the page, shall be cumulative for all volumes, and shall be placed in the first volume. The original set of the transcript shall serve as the copy required by 28 U.S.C. sec. 753(b). (rev. 1/93)
THE CERTIFICATE OF RECORD
Upon the filing of the transcript in the district court, or alternatively, when the district court clerk receives notice that no transcript will be ordered, the clerk of the district court shall file a certificate of record with the clerk of the Court of Appeals. The certificate shall attest that all documents which comprise the clerk's record on appeal (pleadings, exhibits and other papers filed) and the reporters' transcript (if any) are available to the parties in the district court clerk's office. The filing of the certificate of record with the Court of Appeals shall indicate that the Court of Appeals considers the record filed.
RETENTION OF THE TRANSCRIPT AND CLERK'S RECORD IN THE DISTRICT COURT DURING PREPARATION OF THE BRIEFS
In all cases, as authorized by FRAP 11(c), both the transcript and the clerk's record shall remain in the custody of the district court for use by the parties in preparing their briefs.
RETENTION OF CLERK'S RECORD IN THE DISTRICT COURT IN CIVIL CASES WHERE EXCERPTS OF RECORD ARE FILED; RETENTION OF PHYSICAL EXHIBITS IN THE DISTRICT COURT; TRANSMITTAL OF REPORTER'S TRANSCRIPT;TRANSMITTAL OF CLERK'S RECORD ON REQUEST
11-4.1 Retention of Clerk's Record in the District Court
Except as noted below, in all civil cases where excerpts of record are to be filed with the Court of Appeals pursuant to Circuit Rule 30-1, the entire clerk's record shall be retained in the district court unless requested by the Court of Appeals. This provision shall not apply to Tax Court Cases or to cases involving review of Social Security Administration determinations of eligibility for disability insurance benefits and supplemental security income benefits. In appeals from the Bankruptcy Appellate Panel, records will be treated in the same fashion as records on appeal in other civil cases arising from the district court.
11-4.2 Retention of Physical Exhibits in the District Court
All physical exhibits in all cases shall be retained in the district court unless requested by the Court of Appeals.
11-4.3 Transmittal of Reporter's Transcript
The reporter's transcript shall be transmitted to the Clerk of the Court of Appeals by the clerk of the district court within 7 days after the district court receives notice from the Court of Appeals that the appellee's brief has been filed.
11-4.4 Transmittal of Clerk's Record Upon Request In cases where the clerk's record is retained in the district court, if a judge or staff member of the Court of Appeals at any time requires all or part of the clerk's record, the judge or staff member shall, through the Clerk of the Court of Appeals, request the record from the district court. The district court clerk shall transmit the record to the requesting judge or staff member within 10 days of receiving the request.
TRANSMITTAL OF THE CLERK'S RECORD AND REPORTER'S TRANSCRIPT AND EXHIBITS IN ALL OTHER CASES
In all cases not falling within the provisions of Circuit Rule 11-4.1, the entire clerk's record and the reporter's transcript shall be transmitted to the Court of Appeals within 7 days after the clerk of the district court receives notice from the Court of Appeals that the appellee's brief has been filed in the Court of Appeals. All physical exhibits shall be retained in the district court unless requested by the Court of Appeals.
PREPARATION OF THE CLERK'S RECORD FOR TRANSMITTAL; NUMBER OF COPIES
11-6.1 Preparation of the Clerk's Record for Transmittal
In cases where the clerk's record is to be transmitted to the Court of Appeals pursuant to Circuit Rule 11-4.4 or Circuit Rule 11-5, the district court clerk shall tab and identify each document by the docket control number assigned when the document was initially entered on the district court docket. The documents shall be assembled in sequence according to filing dates, with a certified copy of the docket entries at the beginning. Papers shall be bound in a volume or volumes with each document individually tabbed showing the number corresponding to the district court docket entry. The docket sheet shall serve as the index.
11-6.2 Number of Copies
In cases where the clerk's record is to be transmitted to the Court of Appeals pursuant to Circuit Rule 11-4.4 or 11-5, the district court shall transmit 1 set of the clerk's record to the Court of Appeals unless the Court of Appeals orders additional copies. If the Court of Appeals requests additional copies, the clerk of the district court shall give notice to the concerned parties, and additional copies shall be provided at the appellant's expense. The parties shall arrange with the clerk of the district court for any copies of the clerk's record needed for their own use.
Cross Reference: Circuit Advisory Committee Note to Rule 27-13, Motions to Seal.