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Golden v. Mirabile Investment Corp.

United States District Court, W.D. Tennessee, Western Division

August 31, 2017

DERICO GOLDEN Plaintiff,
v.
MIRABILE INVESTMENT CORP. d/b/a BURGER KING, Defendant.

          ORDER

          SAMUEL H. MAYS, JR. UNITED STATES DISTRICT COURT JUDGE

         Before the Court is Plaintiff Derico Golden's Motion to Correct or Modify the Record, filed on August 15, 2017. (ECF No. 91.) Plaintiff seeks to correct omissions from the record under Federal Rule of Appellate Procedure 10(e). (Id. at 1328.)[1] Plaintiff addresses the deposition he filed on November 30, 2015, in response to Defendant Mirabile Investment Corp.'s (“MIC”) Motion for Summary Judgment. (Id. at 1328.) Plaintiff asserts that the deposition was taken over two days, and that on the second day the reporter restarted the page numbers. (Id.) Plaintiff contends that “numerous pages [of the deposition submitted to the Court] were omitted by error or accident, because there were two sets of the same page numbers.” (Id. at 1328-29.) Defendant filed its response on August 25, 2017, in which it argued that Plaintiff's motion should be denied because the “pages of [Plaintiff's] deposition transcript that Plaintiff is arguing should now be included” “were never before the Court.” (ECF No. 92 at 1333.)

         For the reasons stated below, the Court DENIES Plaintiff's Motion to Correct or Modify the Record.

         I. Background

         Plaintiff brought this action pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, as amended by 42 U.S.C. § 1981a, alleging discrimination on the basis of race and sex, and the Age Discrimination in Employment Act of 1974 (“ADEA”), 29 U.S.C. §§ 626 et seq., alleging discrimination on the basis of age. Plaintiff voluntarily dismissed his claim under the ADEA on November 30, 2015. (ECF No. 40.)

         On July 1, 2016, the Court entered an Order granting in part and denying in part Defendant's Motion for Summary Judgment. (ECF No. 46.) The Court granted summary judgment on Plaintiff's hostile work environment claim; his claim that he was discriminated against based on race and sex with regard to promotions, bonuses, raises, leave, different job assignments, and different job standards; and his claim that he was terminated based on sex. (Id. at 437.) The Court denied summary judgment on Plaintiff's claim that he was terminated based on race. (Id.)

         On February 27, 2017, a jury found Defendant not liable on Plaintiff's claim that he was terminated on the basis of race, and the Court entered judgment in favor of Defendant. (ECF No. 76.) Plaintiff appealed, and that appeal is pending before the United States Court of Appeals for the Sixth Circuit.

         Plaintiff now seeks permission to submit deposition excerpts from Plaintiff's deposition transcripts that Plaintiff previously omitted. Defendant opposed the motion on August 25, 2017. (ECF No. 92.)

         II. Legal Standard

         Federal Rule of Appellate Procedure 10(e) provides:

(e) Correction or Modification of the Record.
(1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly.
(2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental ...

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