Lehman Brothers v. Gateway Funding — civil — affirmance — Hardiman

The headline of this post is the first line of today’s opinion, which then continues:

At issue is Rule 10 of the Federal Rules of Appellate Procedure, which imposes certain duties on counsel in preparing the record on appeal. Appellant Gateway Funding Diversified Mortgage Services, L.P. violated Rule 10 when it failed to include in the appellate record a transcript necessary to evaluate its principal claim. We hold that claim forfeited.

Well, that ought to get everyone’s attention, no?

What happened is that, in district court, the judge ruled that an argument had been abandoned by Gateway during a telephonic oral argument. On appeal, Gateway disputed that finding, but it only argued that there was “no record” to support abandonment and it did not order or include a transcript of the argument at issue. But then the appellee included the transcript with its brief, so Gateway argued that its failure to include the transcript was now moot. But “Gateway’s cavalier argument is wrong,” and the omission “at best shows a remarkable lack of diligence and at worst indicates an intent to deceive this Court.” Ow.

Joining Hardiman were Greenaway and Krause. The case was decided without argument, which normally means I don’t list the lawyers, but I’ll save rubber-neckers the click and note that counsel for Gateway was Paul Bucco and Matthew Sack of Davis, Bucco, & Ardizzi.