Third Circuit Affirms Dismissal Where Post-Trial Movant Refused to Recreate Missing Trial Record

In Roberts v. Ferman, a recent decision by the U.S. Court of Appeals for the Third Circuit, the court affirmed a district court’s decision to dismiss a plaintiff’s post-trial motion for failure to prosecute. Because two-thirds of the trial record was missing, the district court ordered the parties to recreate the trial record in accordance with Federal Rule of Appellate Procedure 10(c). But the plaintiff refused, contending that the court had no such authority. The district court dismissed the post-trial motion and the Third Circuit found no abuse of discretion and affirmed. “[W]hen a plaintiff fails to provide the district court with the materials necessary to resolve the case,” the Court opined, “dismissal for failure to prosecute is an appropriate exercise of the district court’s discretion.” In short, sitting on one’s hands is not an option.

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