PICCOLO v. TOP SHELF PROVISIONS CO INC (2020)

SUMMARY ORDER

Defendants-appellants Top Shelf Provisions Co. Inc. (“Top Shelf”), Rich Dahlem, and Anthony Ciccari (collectively “defendants”) appeal from the August 7, 2019 memorandum and order of the district court denying their motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b). A jury awarded $10,000 to plaintiff-appellee Louis Piccolo after finding that defendants violated the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (the “FLSA”), and the New York Labor Law §§ 190 et seq. (the “NYLL”) in failing to furnish a wage notice and regular wage statements during the time he was employed by them as a driver.² We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal.

The jury was asked to decide multiple claims, and it ruled in favor of plaintiffs on some claims and in favor of defendants on other claims. Defendants contend that the district court erred in denying their motion for judgment as a matter of law because the jury's verdict was inconsistent and because Piccolo's wage statement claim under NYLL 195(3) was not pled in the complaint. Defendants, however, have failed to provide this Court with a copy of the trial transcript. Rule 10 of the Federal Rules of Appellate Procedure requires an appellant to “order from the reporter a transcript of such parts of the proceedings not already on file as the appellant considers necessary.” Fed. R. App. P. 10(b)(1)(A). Additionally, “[i]f the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.” Fed. R. App. P. 10(b)(2). Finally, the appellant “must comply with Rule 10(b) and must do whatever else is necessary to enable the clerk to assemble and forward the record.” Fed. R. App. P. 11(a).

Defendants' failure to provide the trial transcript precludes this Court from reviewing their appeal. While dismissal of an appeal for the failure to obtain a trial transcript is not mandatory, see Savard v. Marine Contracting Inc., 471 F.2d 536, 543 (2d Cir. 1972), it is our practice to do so where the failure to provide the relevant transcripts “deprives this Court of the ability to conduct meaningful appellate review,” Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000). Here, defendants ask us to set aside a jury verdict as inconsistent, something we cannot ascertain without knowing what evidence was submitted to the jury with respect to the different claims. Because the jury's verdict is not necessarily inconsistent on its face, only a close review of relevant portions of the record below could lead to a finding of inconsistency.³ Rather than providing us with the transcript, defendants engage in detailed discussion of the evidence, and argue that “[b]ased on the evidence adduced at trial and the jury's findings,” they are entitled to judgment as a matter of law. Def.-App. Br. at 14-20, 20. Moreover, defendants were given adequate notice of the need to obtain a transcript, as the district court denied their posttrial motion for judgment as a matter of law in part because they “failed to obtain a copy of the trial transcript,” App'x at 214, but they nonetheless failed to remedy the deficiency.

Accordingly, because defendants' failure to obtain the trial transcript precludes meaningful appellate review of their claims, we dismiss.

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For the foregoing reasons, the appeal is DISMISSED.

FOOTNOTES

2.   The jury also awarded $10,000 to opt-in plaintiff John Sudlow, who is not a party to this appeal.

3.   The jury's verdict might simply reflect that neither party had met its burden; in other words, that the evidence was in equipoise.